United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 8, 2008 Decided July 17, 2009
No. 07-3092
UNITED STATES OF AMERICA,
APPELLEE
v.
CHARLES EMOR,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 06cr00064-02)
Peter V. Taylor argued the cause for appellant. With him
on the briefs was Danny C. Onorato. David Schertler entered
an appearance.
Michael T. Ambrosino, Assistant U.S. Attorney, argued
the cause for appellee. With him on the brief were Jeffrey A.
Taylor, U.S. Attorney, and Roy W. McLeese III and Elizabeth
Trosman, Assistant U.S. Attorneys.
Before: SENTELLE, Chief Judge, and GARLAND and
GRIFFITH, Circuit Judges.
Opinion for the Count filed by Circuit Judge GRIFFITH.
2
GRIFFITH, Circuit Judge: Charles Emor appeals his
conviction for conspiracy to commit mail fraud on two
grounds. First, that the government’s failure to disclose
exculpatory and impeachment evidence in a timely fashion
violated his rights under Brady v. Maryland, 373 U.S. 83
(1963), and the Jencks Act, 18 U.S.C. § 3500(b) (2006).
Second, that the government hindered his defense by
introducing evidence that the conspiracy began at an earlier
date than alleged in the indictment. We affirm the judgment
of the district court. There is no reasonable probability that
the verdict would have been different had Emor received the
undisclosed evidence, and any variance between the
indictment and the evidence presented at trial did not
substantially prejudice his defense.
I.
By an indictment filed on March 7, 2006, a federal grand
jury charged Emor and co-defendant Dwayne Simmons with
one count of conspiracy to commit mail fraud in violation of
18 U.S.C. § 371, as well as several other charges that were
later dismissed. According to the government’s evidence,
Simmons, a supervisor at the Gateway Computers shipping
department in Hampton, Virginia, devised a scheme to divert
the shipment of computers from legitimate customers to
illegitimate buyers or, in some cases, alternative addresses for
later sale. Simmons recruited Orlando Marshall and Michael
Ralph to find buyers for the diverted computers, facilitate the
illicit transactions, and transport the stolen property. Marshall
and Ralph also enlisted the help of several other individuals,
including Abdul Jalloh, to provide addresses to which the
diverted computers could be shipped without arousing
suspicion. Emor was the primary buyer. He purchased a large
number of the diverted computers at fifty to eighty percent
below the Gateway retail price, acquiring many of them for
3
use at a charter school he founded and reselling others to third
parties. Although the indictment focused on diverted
shipments and illegal transactions between late 2000 and the
middle of 2002, the government’s evidence at trial showed
that Emor began purchasing stolen computers from Ralph and
Marshall as early as 1998.
Ralph, Marshall, and Simmons each pleaded guilty to one
count of conspiracy to commit mail fraud and testified as
government witnesses. Although Ralph and Marshall both
testified that Emor knew the computers were obtained
illegally, the defense maintained that Emor legitimately
purchased the computers at a discounted rate and was
unaware they were stolen. After a three-day trial in December
2006, a jury found Emor guilty, and the district court imposed
a sentence of twelve months in prison followed by three years
of supervised release.1
Prior to trial, Emor filed a motion to compel production
of any material in the government’s possession subject to the
disclosure requirements of Brady v. Maryland, 373 U.S. 83
(1963), and Giglio v. United States, 405 U.S. 154 (1972),
particularly exculpatory evidence related to the co-
conspirators named in the indictment. In response, the
government stated that it “underst[ood] its ongoing
obligations with respect to Brady and Giglio” and promised to
disclose any such materials. App. at 25. Shortly before
Marshall appeared as a witness, the government gave the
defense several documents relating to his expected testimony,
including grand jury transcripts, police reports, and his plea
agreement. Two weeks after trial, however, the government
1
The district court also imposed $69,000 in restitution jointly and
severally on Emor, Simmons, Marshall, Ralph, and Jalloh, and
granted Emor’s motion to remain free on bond pending appeal.
4
informed Emor that it had failed to disclose audio and video
recordings of a July 2002 interview the D.C. Metropolitan
Police Department had conducted with Marshall. In a letter
accompanying copies of these recordings, the prosecutor
acknowledged that the recordings should have been turned
over during the trial, explained that they were inadvertently
overlooked, and asserted that Marshall’s 2002 statements
were consistent with the other documents disclosed prior to
his trial testimony. “Out of an abundance of caution,” the
government also provided Emor with two investigative
reports prepared by John Karr, an inspector for Gateway,
which include a summary of Marshall’s 2002 interview. App.
at 36 (Letter from U.S. Attorney’s Office to Counsel for
Appellant).
Based on these post-trial disclosures, as well as a
contention that the evidence at trial went beyond the
timeframe set out in the indictment, Emor filed a series of
motions—for declaration of a mistrial, for judgment of
acquittal, and for a new trial—each of which the district court
denied. In denying Emor’s motion for a new trial, the court
highlighted two potential discrepancies between Marshall’s
2002 interview with police and his trial testimony. First,
Marshall’s 2002 account of a telephone conversation he had
with Emor contained no reference to Emor suggesting he
would lie to investigators and claim he had purchased the
computers legitimately, as Marshall later testified at trial. See
Tr. of Mot. Hr’g 34 (Mar. 20, 2007). Second, Marshall did not
mention in the 2002 interview that Emor knew the computers
were stolen, as he later testified at trial. Id. The court
characterized these inconsistencies as omissions rather than
lies and determined Marshall had been so thoroughly
impeached during cross-examination that timely production of
his 2002 interview would not have changed the outcome of
the trial. Id. at 35–36.
5
In denying Emor’s motion for declaration of mistrial
based on the alleged variance between the indictment’s
timeline and the government’s proof at trial, the district court
noted that when Emor first objected to the introduction of
evidence regarding early stages of the conspiracy, the court
“reserved ruling and asked [him] to provide authority for his
position.” United States v. Emor, No. 06-0064, at 1 (Feb. 7,
2007) (Memorandum Order). Although Emor never provided
any such authority, see id., the court proceeded to address his
renewed motion at the conclusion of trial. Framing the
question as whether Emor “was prejudiced by unfair surprise
as to evidence of conduct outside the charged period,” id. at 4,
the court pointed to materials turned over to the defense
weeks before trial identifying the conspiracy as having begun
in 1998 and concluded that Emor had not sustained his burden
of showing prejudice, see id. at 2–5.
II.
Emor appeals his conviction, arguing that the
government’s untimely disclosures violate both Brady and the
Jencks Act, and that each violation requires a new trial. We
discuss each argument in turn.
A.
Emor contends that the government’s failure to turn over
recordings of Marshall’s 2002 police interview constitutes a
Brady violation and warrants a new trial. Brady requires the
government to disclose, upon request, material evidence
favorable to a criminal defendant. 373 U.S. at 87. This duty
includes both exculpatory and impeachment evidence held by
law enforcement officials. See Giglio, 405 U.S. at 154. We
review de novo whether the government has breached its
6
obligations under Brady. United States v. Oruche, 484 F.3d
590, 596 (D.C. Cir. 2007).
There are three components of a Brady violation: “The
evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either
willfully or inadvertently; and prejudice must have ensued.”
Strickler v. Greene, 527 U.S. 263, 281–82 (1999). The parties
agree that Emor has satisfied the first two components—that
is, the prosecution inadvertently suppressed impeaching
evidence in the form of Marshall’s 2002 police interview. See
Br. of Appellee at 22. At issue is whether the nondisclosure
resulted in prejudice to Emor.
To satisfy the prejudice component, “the withheld
evidence must be ‘material;’ that is, there must be ‘a
reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been
different.’” United States v. Johnson, 519 F.3d 478, 488 (D.C.
Cir. 2008) (quoting Strickler, 527 U.S. at 280). Emor argues
that the withheld recordings are material because they would
have assisted in impeaching Marshall at trial. The government
responds that because Marshall had already been impeached,
his 2002 interview could have been used only for cumulative
impeachment and would not have affected the outcome.
Evidence is material if “the undisclosed information
could have substantially affected the efforts of defense
counsel to impeach the witness, thereby calling into question
the fairness of the ultimate verdict.” United States v. Cuffie,
80 F.3d 514, 517 (D.C. Cir. 1996) (quoting United States v.
Smith, 77 F.3d 511, 515 (D.C. Cir. 1996)). Cumulative
impeachment evidence is generally not material because the
marginal effect of additional impeachment is relatively small
7
and unlikely to result in a different outcome. See Oruche, 484
F.3d at 599 (failure to disclose witness’s admission she lied to
police was not Brady violation because the witness was
“thoroughly impeached” at trial). The simple “fact that other
impeachment evidence was available to defense counsel,”
however, “does not render additional impeachment evidence
immaterial.” Smith, 77 F.3d at 515 (quoting United States v.
O’Conner, 64 F.3d 355, 359 (8th Cir. 1995)). We have
emphasized that “undisclosed impeachment evidence can be
immaterial because of its cumulative nature only if the
witness was already impeached at trial by the same kind of
evidence.” Cuffie, 80 F.3d at 517.
Emor identifies two primary ways in which he could have
impeached Marshall with the undisclosed evidence. Armed
with the July 2002 police interview, he might have sought to
discredit Marshall’s trial testimony that those who purchased
the stolen computers “knew [they] were hot,” Trial Tr. 231
(Dec. 19, 2006), with Marshall’s prior, more benign
suggestion to police that Emor was simply buying a large
number of computers and “would get a price at a discount for
purchasing in bulk,” App. at 45 (Transcript of Marshall
Interview). Emor might also have sought to cast doubt on
Marshall’s suggestion at trial that Emor effectively promised
to lie to the authorities and “say he bought all these computers
legitimately [and] wrote checks to [Ralph] for them,” Trial Tr.
245 (Dec. 19, 2006), by pointing out that Marshall had not
previously mentioned any such comment when recounting the
same conversation during his 2002 interview.
As the government notes, however, Marshall’s credibility
was thoroughly impeached by numerous admissions that he
had previously lied in attempting to cover up or minimize
various aspects of the conspiracy to protect himself and other
conspirators. During cross-examination, Marshall admitted to
8
lying under oath in a separate proceeding about the date on
which he introduced Ralph to Emor. See id. at 253–57.
Marshall also admitted to lying to inspectors when he initially
said he never collected any money from Emor, when he stated
that all the computers were shipped directly from Ralph to
Emor, and when he suggested he knew nothing about
shipments to Emor prior to 2000. Id. at 258, 264–65. In each
instance, defense counsel impeached Marshall on the basis of
inconsistent prior statements made to government inspectors
in the course of their investigations. This impeachment used
the same type of evidence—namely, government interview
and investigation records showing Marshall initially lied
about various aspects of the conspiracy—as Marshall’s July
2002 interview with police investigators. Evidence Marshall
lied to an investigator regarding two aspects of a conspiracy
about which he was repeatedly impeached for lying to
investigators does not constitute a different “kind of
evidence” that would have meaningfully changed the jury’s
assessment of his credibility, see Cuffie, 80 F.3d at 518.
Timely disclosure of Marshall’s 2002 police interview would
not have “substantially affected the efforts of defense counsel
to impeach the witness,” id. at 517, and thus the government’s
nondisclosure does not raise doubt about the fairness of the
jury’s verdict.
Nor were either of the two ways Emor identifies for using
the undisclosed evidence for impeachment likely to have
materially assisted his defense. Marshall’s statement at trial,
that Emor told him he planned to tell the authorities he
“bought all these computers legitimately,” Trial Tr. 245 (Dec.
19, 2006), was not itself inculpatory. Indeed, that is exactly
what Emor did tell authorities and what his counsel argued at
trial. Marshall did not testify that Emor told him he planned to
lie about the legitimacy of the purchase. Hence, impeaching
Marshall’s testimony by sowing doubt that Emor had
9
previously said he planned to say the purchases were
legitimate would not have advanced Emor’s defense.
Moreover, had he wished to cast doubt on Marshall’s
testimony that Emor indicated he would tell investigators he
purchased the computers legitimately, defense counsel could
have done so by referring to Marshall’s interview with Postal
Inspector Marydith Newman, in which he likewise made no
mention of that conversation. See Mem. of Interview 3 (Dec.
1, 2005); see also Smith, 77 F.3d at 515 (suggesting we must
look not only to the ways defense counsel was able to
impeach a witness but also “to the ways in which the witness’
testimony was allowed to stand unchallenged”).
Emor suggests the July 2002 interview is also
exculpatory because Marshall stated that Emor “was pretty
much buying [the computers] at wholesale rate,” App. at 45
(Transcript of Marshall Interview), consistent with Emor’s
defense that he legitimately took advantage of Ralph’s
employee discount and purchased the computers at below-
market prices, see Br. of Appellant at 28–29. But the
prosecution did turn over Detective Vincent Tucci’s summary
of the July 2002 interview before trial, which included a
report of the same statement by Marshall. See MPD
Investigative Supplement Report at 2 (July 16, 2002) (“Mr.
Marshall also told investigators that Mr. Charles
Emor[] . . . was purchasing systems in bulk and at a reduced
price . . . .”). Emor has not shown why cross-examination
using recordings of the interview would have been anything
more than cumulative of the cross-examination he could have
conducted using Detective Tucci’s notes of that interview.
We also note, as does the government, that although
Emor could have used the recordings or notes to impeach
Marshall, he could not have used them as substantive
evidence under the hearsay rules because the taped statement
10
was not “given under oath subject to the penalty of perjury at
a trial, hearing, or other proceeding, or in a deposition,” FED.
R. EVID. 801(d)(1)(A); see also United States v. Livingston,
661 F.2d 239, 242–44 (D.C. Cir. 1981) (reversible error to
allow use of prior unsworn statement to a postal inspector as
substantive evidence). Emor maintains that had he been able
to confront Marshall with the statement during cross-
examination, “Marshall may well have conceded that that
was, indeed, the truth.” Reply Br. of Appellant at 4. In the
face of such a claim, we must inquire into “how effectively
the evidence could have been used in cross-examination.”
United States v. Bowie, 198 F.3d 905, 911 (D.C. Cir. 1999).
There is little reason to suppose Marshall would have
stood by his initial suggestion to police that Emor was merely
purchasing computers at a legitimate wholesale rate. His trial
testimony provided much circumstantial evidence that the
purchases were anything but legitimate. Marshall admitted
that he personally delivered the redirected computers to
various secondary buyers, Trial Tr. 223 (Dec. 19, 2006), that
purchasers often paid for the computers in cash, id. at 232,
that many of the transactions took place at convenience stores
and fast food restaurants, id. at 225, 228, that he instructed
buyers not to register the computers with Gateway, id. at 231,
that he personally oversaw repairs and technical service, id. at
232, and that the computers were sold for extremely low
prices, id. Indeed, Marshall specifically admitted to knowing
the computers were stolen, id. at 229, and explained that the
purchasers “knew that the computers were hot,” id. at 231.
And even were it not contradicted by his trial testimony,
Marshall’s 2002 reference to a “wholesale” price, App. at 45
(Transcript of Marshall Interview), provides little direct
support for Emor’s defense that he was merely taking
advantage of Ralph’s “employee discount,” see Trial Tr. 532–
33 (Dec. 20, 2006), because the two forms of below-retail
11
purchasing are conceptually and practically distinct. In short,
Emor failed to demonstrate that anything from Marshall’s
2002 interview “could reasonably be taken to put the whole
case in such a different light as to undermine confidence in
the verdict,” Kyles v. Whitley, 514 U.S. 419, 435 (1995).2
B.
Emor also argues that the government’s failure to timely
disclose Marshall’s July 2002 interview violates the Jencks
Act and warrants a new trial. The Jencks Act requires the
government to disclose any prior “statement” made by a
prosecution witness that “relates to the subject matter as to
which the witness has testified.” 18 U.S.C. § 3500(b).3 We
review de novo whether the Jencks Act applies. United States
v. Williams-Davis, 90 F.3d 490, 512 (D.C. Cir. 1996). When a
Jencks Act violation has occurred, we apply the harmless
error standard to determine whether a new trial is appropriate.
2
Because a defendant seeking a new trial on the basis of newly
discovered evidence must show that the evidence “would probably
produce an acquittal,” United States v. Williams, 233 F.3d 592, 593
(D.C. Cir. 2000) (quoting Thompson v. United States, 188 F.2d 652,
653 (D.C. Cir. 1951) (emphasis added)), Emor’s suggestion that the
recent discovery of Marshall’s July 2002 interview warrants a new
trial even under this admittedly higher standard, see Br. of
Appellant at 36, likewise fails.
3
The statute defines “statement” to include “(1) a written statement
made by said witness and signed or otherwise adopted or approved
by him; (2) a stenographic, mechanical, electrical, or other
recording, or a transcription thereof, which is a substantially
verbatim recital of an oral statement made by said witness and
recorded contemporaneously with the making of such oral
statement; or (3) a statement, however taken or recorded, or a
transcription thereof, if any, made by said witness to a grand jury.”
18 U.S.C. § 3500(e).
12
United States v. Lam Kwong-Wah, 924 F.2d 298, 310 (D.C.
Cir. 1991).
Assuming the government’s failure to disclose recordings
of Marshall’s 2002 police interview violated the Jencks Act,
which neither party disputes, Emor is not entitled to relief
because the violation was harmless. As discussed above,
Marshall’s 2002 statements would have assisted Emor only in
further impeaching an already impeached witness. Thus, as
we have already concluded in our Brady analysis, the
government’s failure to disclose the recordings did not affect
the outcome of the trial. See United States v. Carter, 70 F.3d
146, 148 (D.C. Cir. 1995) (“If the unproduced statement
could not have assisted the defense in cross-examining the
witness, there is no reason for the trial court to order a mistrial
or for an appellate court to reverse a conviction.”).
Emor also argues the government committed a Jencks
Act violation with respect to investigative reports authored by
John Karr, a prosecution witness who worked as an inspector
for Gateway. Only the first two pages of Karr’s second
investigative report relate to his testimony at trial and are thus
within the scope of the Jencks Act. Compare App. at 60–61
(Report of July 17, 2002), with Trial Tr. 363–73 (Dec. 19,
2006). See also Norinsberg Corp. v. U.S. Dep’t of Agric., 47
F.3d 1224, 1229 (D.C. Cir. 1995) (emphasizing that the
“relates to” provision of the Jencks Act includes only “the
subject matter as to which the witness has testified” and not
the “subject matter of the proceeding” generally). And Emor
has not identified any information contained in these pages
that conflicts with Karr’s trial testimony.
Even were we to conclude that the full content of both
Karr reports constitutes Jencks material, Emor has failed to
show that withholding those reports was in fact harmful to his
13
case. For example, although he suggests that information in
the Karr reports about Jalloh’s involvement in the scheme
would have prompted the defense to interview and obtain
exculpatory material from Jalloh, Emor was aware that Jalloh
pleaded guilty as a co-conspirator and received Jalloh’s plea
agreement documents months prior to trial. See
Norinsberg, 47 F.3d at 1230 (finding harmless the failure to
disclose Jencks material when “the [information sought]
merely duplicate[s] matter already in the defendant’s
possession”) (alterations in original); Landry v. FDIC, 204
F.3d 1125, 1137 (D.C. Cir. 2000) (finding harmless the failure
to disclose Jencks materials that effectively “duplicate other
evidence in the record”). Likewise, Emor’s contention that a
supposed discrepancy between the “122 computers” the
investigating detective suggested were delivered to Marshall’s
address and the “169 packages” described in Karr’s second
report would have called into question “the thoroughness and
good faith of the government’s investigation,” Br. of
Appellant at 33 n.10, is unconvincing because the precise
number of computers shipped to Marshall was never at issue
during trial. See Norinsberg, 47 F.3d at 1230 (suggesting that
whether such an error is harmless involves determining
“whether Jencks material could have been used effectively in
defense of the charge”). In short, Emor has failed to show that
disclosure of the Karr reports would have affected the trial’s
outcome, and therefore any error in failing to produce them
after his testimony on direct examination was harmless.
III.
Finally, Emor contends that a variance between the
timeline set forth in his indictment and the years for which the
government presented evidence at trial resulted in substantial
prejudice and requires a new trial. The first count of the
indictment alleged a conspiracy “[f]rom between in or about
14
December, 2000, until in or about May, 2002” among Emor,
Simmons, Marshall, Ralph, Jalloh, and others. App. at 2
(Indictment). In its response to Emor’s request for a bill of
particulars, the government asserted that “the indictment
defines the defendant’s role in the charged conspiracy in a
manner sufficient to avoid surprise and permit the defendant
to prepare a defense.” App. at 26. According to Emor, the
prosecution’s case went beyond the bounds set by the
indictment. The government, he contends, “chang[ed] its
theory of prosecution” at trial “by adding a two-year period of
the alleged conspiracy” during 1998 and 1999, and thereby
“severely prejudiced [his] ability to meet those new
allegations.” Br. of Appellant at 38. Without notice of the
accusations against him and others during those early years,
often referred to as “Phase 1” of the conspiracy, Emor claims
he was unable to gather evidence to show “that the activity
attributed to him in 1998 and 1999 actually involved Mr.
Jalloh, not him,” Reply Br. of Appellant at 15, and “to
disprove the newly alleged timeframe and the whole ‘Phase 1’
theory,” Br. of Appellant at 38.
“A variance between the allegations of the indictment
and the proof at trial constitutes grounds for reversal only if
the appellant proves (1) that the evidence at trial established
facts materially variant from those alleged in the indictment,
and (2) that the variance caused substantial prejudice.” United
States v. Tarantino, 846 F.2d 1384, 1391 (D.C. Cir. 1988). In
particular, a discrepancy between the facts alleged in an
indictment and the evidence actually proffered may be cause
for a new trial if the divergence prejudiced the defendant by
depriving him “of notice of the details of the charge against
him,” United States v. Barry, 938 F.2d 1327, 1329 (D.C. Cir.
1991) (quoting Gaither v. United States, 413 F.2d 1061, 1072
(D.C. Cir. 1969)).
15
Emor had notice that the evidence at trial would include
testimony about the early years of the scheme. Despite
Emor’s contention that the government “ambush[ed]” him
with new information relating to the first phase of the
conspiracy, Br. of Appellant at 38, materials disclosed prior to
trial indicated that prosecution witnesses would identify the
scheme as having begun in 1998. More than six weeks prior
to trial, the government provided Emor with Simmons’s plea
agreement and statement of offense, which clearly identified
the conspiracy as having started prior to 2000 and mentioned
Emor, using his initials, as one of those to whom “many of the
stolen computers went.” R. Material Tab 8, Exhibit 2 at 1
(Statement of Offense for Simmons). A week before trial, the
government also provided the defense with notes from a
postal inspector’s interview with Simmons, who indicated the
conspiracy started in 1998 and said Emor provided “a lot of
addresses” for the diverted computers. R. Material Tab 8,
Exhibit 3 at 1–2 (Memorandum of Interview with Simmons).
Indeed, the defense did not object when, during its opening
statement, the government described the conspiracy as
beginning “all the way back in 1998” and stated that Emor
was involved in the scheme during “those first couple of
years.” Trial Tr. 104–05 (Dec. 18, 2006). Instead, defense
counsel agreed in his own opening statement that “the
evidence in this case will establish that in 1998 Dwayne
Simmons and Michael Ralph agreed to steal Gateway
computers,” id. at 110, and sought to confront the Phase 1
issue by arguing that Emor “didn’t know Mr. Ralph or Mr.
Simmons in 1998,” id. at 111.
Regardless of whether Emor was sufficiently apprised in
advance of trial that the government believed the conspiracy
began in 1998, “this is not a case where the Government’s
evidence allowed a defendant to be convicted of a different
conspiracy or offense than that alleged in the indictment,”
16
United States v. Brooks, 524 F.3d 549, 563 (4th Cir. 2008).
The indictment contained a detailed description of the alleged
conspiracy, including its members, its goals, its means of
operation, and a catalogue of overt acts taken in furtherance of
the scheme. See App. at 1–5 (Indictment). The government’s
documentary evidence—including phone, bank, and shipping
records—related to overt acts within the timeframe set out in
the indictment. All critical aspects of the conspiracy remained
unchanged throughout its existence, and the precise timing of
the criminal scheme was not a material element either in the
indictment or during trial. Moreover, the jury instruction
regarding the conspiracy contained the same dates as the
indictment. Trial Tr. 600 (Dec. 20, 2006) (explaining that the
government was required to prove, inter alia, that “between
December 2000 and May 2002, an agreement existed between
two or more people to commit the crime of mail fraud . . .”).
Emor has not identified a divergence between the indictment
and the evidence on which his conviction was based that
would have caused substantial prejudice. Cf. United States v.
Childress, 58 F.3d 693, 709 (D.C. Cir. 1995) (concluding that
a variance is grounds for reversal only if the defendant shows
he was substantially prejudiced by, for example, “the spillover
effect” of evidence from other conspiracies or activities to
which he was not a party).
The primary issue at trial was whether Emor knew the
computers he acquired were stolen. Emor has not provided
any reason for us to conclude that the government’s evidence
with respect to the early stages of the conspiracy prejudiced
his ability to assert that defense. See, e.g., Trial Tr. 110–13
(Dec. 18, 2006) (defense counsel acknowledging that the
conspiracy commenced in 1998 and arguing that Emor had no
knowledge the computers were stolen). In fact, as the
government notes, trial testimony by several cooperating
witnesses regarding the initial phase of the scheme was
17
thoroughly impeached by earlier inconsistent statements in
which each claimed the conspiracy did not start before 2000.
If anything, inclusion at trial of testimony pertaining to Phase
1 of the conspiracy inured to Emor’s benefit by casting some
doubt on the entire testimony of these witnesses. Any
variance between the timeline in his indictment and the years
for which evidence was presented at trial did not result in
substantial prejudice to Emor’s defense.
IV.
For the foregoing reasons, the district court’s judgment is
Affirmed.