A few hours ago the Atlanta-based United States Court of Appeals for the Eleventh Circuit reversed a former county attorney’s mail fraud and money laundering convictions based on a “material variance” between the allegations in the indictment and the proof at trial. The money laundering charges were based on the underlying fraud case, so these convictions also were reversed. A second set of fraud convictions were affirmed, but because the sentence was based on both sets of fraud charges, the court sent the matter back for a new sentencing hearing. The case is United States v. Lander.
Mr. Lander was the County Attorney of Dixie County, Florida. He also was trying to develop a vitamin company. The Court affirmed the fraud conviction that arose from the scheme involving the vitamin company.
Other fraud and money laundering charges emanated from a different set of facts. Some real estate investors wanted to develop property in the county and approached Lander for assistance. The developers put up about $850,000 as assurance that the project would go forward. Lander deposited these funds into his law firm’s trust account, but used a large chunk of these funds for purposes not related to the real estate development.
The indictment alleged that Mr. Lander engaged in a scheme to defraud by falsely telling the developers that the county required the $850,000 as a performance bond. However, at trial the developers did not recall hearing Landers say this. The government then shifted gears mid-trial, arguing that the scheme to defraud involved Lander falsely telling the developers that he would help them through the regulatory process, when instead he used some of the funds for other purposes.
The Eleventh Circuit noted that a defendant has the right to defend against the specific allegations in an indictment, and when the prosecution changes theories mid-stream this can result in what we lawyers call a “material variance.” If the defendant was surprised and disadvantaged by this change in theory, the variance is deemed to be “prejudicial.” Here, the Court noted that Landers walked into trial planning on defending against a claim that he falsely told the developers one thing, but by the time the prosecutor made the closing argument the government had shifted to a different theory. This prejudicial material variance thus doomed the fraud charges, the money laundering crimes that came out of this supposed scheme, and the sentence that was predicated in part of the reversed charges.