Stain

MEMORANDUM *

Edward Stain challenges his conviction for conspiracy under Count One of the Indictment, which charged him with conspiring to commit all three robberies. The Government concedes that a variance existed between the Indictment and the proof presented at trial, but contends that the variance was nonfatal. We conclude that the variance requires reversal of Stain’s conviction for conspiracy.

A variance requires reversal “if it prejudices a defendant’s substantial rights.” United States v. Adamson, 291 F.3d 606, 615 (9th Cir.2002) (internal quotation marks omitted). Such prejudice may result from the “inadequate opportunity to prepare a defense and exposure to unanticipated evidence at trial.” United States v. Morse, 785 F.2d 771, 775 (9th Cir.1986). “One of the primary purposes of an indictment is to inform a defendant of ‘what he is accused of doing in violation of the criminal law, so that he can prepare his defense.’ ” Adamson, 291 F.3d at 616 (quoting United States v. Tsinhnahijinnie, 112 F.3d 988, 991 (9th Cir.1997)). This purpose was not served here. Based on the Indictment, Stain was prepared to defend against a single conspiracy to commit all three robberies.…