295 U.S. 78 (1935)
In a federal district court, petitioner Berger was indicted along with seven other persons, including Katz, Rice, and Jones, charged with conspiring to utter counterfeit notes purporting to be issued by designated federal reserve banks.1
The indictment also contained eight counts alleging substantive offenses.2 Katz pleaded guilty to the conspiracy count and testified for the government upon an arrangement that a nolle prosequi would be entered as to the substantive counts.3 Rice and Jones were convicted by the jury upon two of the substantive counts and the conspiracy count, while petitioner Berger was convicted upon the conspiracy count only.4
The evidence at trial tended to establish not a single conspiracy as charged but two conspiracies—one between Rice and Katz and another between Berger, Jones, and Katz—with the only connecting link being that Katz was in both and the same counterfeit money was involved.5 There was no evidence that Berger was a party to the conspiracy between Rice and Katz.6
During the trial, the United States attorney was guilty of misconduct in connection with his cross-examination of witnesses and in his argument to the jury.7 At the conclusion of the evidence, Berger moved to dismiss the indictment as to the conspiracy count on the ground that the evidence was insufficient, but the motion was denied, and petitioner, Rice, Katz, and Jones were sentenced to terms of imprisonment.8
The court of appeals affirmed the judgment, holding that there was a variance between the allegations of the conspiracy count and the proof but that it was not prejudicial, and that the conduct of the prosecuting attorney, although to be condemned, was not sufficiently grave to affect the fairness of the trial.9 The Supreme Court granted certiorari because of a conflict with other circuit courts of appeals in respect of the effect of the alleged variance.
Whether a variance between an indictment charging a single conspiracy and proof establishing two separate conspiracies affected the substantial rights of the petitioner?10
Section 269 of the Judicial Code provides that the court shall give judgment after an examination of the entire record without regard to technical errors which do not affect the substantial rights of the parties.11 The general rule that allegations and proof must correspond rests on two requirements.12 The accused shall be definitely informed as to the charges against him so that he may present his defense and not be taken by surprise by the evidence offered at the trial.13 He shall be protected against another prosecution for the same offense.14
No. In the established facts the indictment charged one conspiracy but the evidence showed two, with Berger connected only to one involving Katz and Jones.15 The variance did not affect Berger's substantial rights because the proof of the other conspiracy did not surprise him or prejudice his case, and the connecting link through Katz did not implicate him in the Rice conspiracy.16 The court of appeals correctly held the variance not prejudicial under the statute.17
The variance did not affect the substantial rights of the petitioner.18
Whether misconduct by the United States attorney in cross-examination of witnesses and in argument to the jury required reversal of the conviction?19
The United States attorney represents a sovereignty whose obligation is to govern impartially and whose interest in a criminal prosecution is that justice shall be done.20 While he may prosecute with earnestness, he is not at liberty to strike foul blows, and improper suggestions or assertions of personal knowledge are apt to carry much weight against the accused.21
Yes. The established facts show the United States attorney engaged in misconduct by misstating facts in cross-examination, suggesting statements made out of court, assuming prejudicial facts not in evidence, bullying witnesses, and making intemperate arguments that invited the jury to conclude a witness knew Berger well but pretended otherwise.22 Given that the case against Berger was weak and depended on accomplice testimony, the pronounced and persistent misconduct created a probable cumulative effect on the jury that could not be disregarded.23
The misconduct by the United States attorney required reversal of the conviction.24