## Facts

- Jacob Berger and others were indicted in federal court for conspiracy to utter counterfeit Federal Reserve notes and for related substantive counterfeiting offenses.
- Berger was convicted only on the conspiracy count; certain co-defendants were convicted on substantive counts and the conspiracy count.
- A cooperating defendant pleaded guilty to the conspiracy count and testified for the government in exchange for dismissal of substantive counts.
- The indictment alleged a single conspiracy involving multiple defendants to utter counterfeit notes with knowledge of their counterfeit nature.
- The proof tended to show two related but distinct conspiracies: one between Rice and Katz, and a separate one between Berger, Jones, and Katz; Katz participated in both, but there was no evidence Berger joined the Rice–Katz conspiracy.
- The prosecutor engaged in repeated improper conduct during cross-examination and closing argument, described as pronounced and persistent with a probable cumulative effect on the jury.
- The court of appeals affirmed, finding a variance but no prejudice to substantial rights and treating the misconduct as insufficient to require reversal.

## Issues

1. Whether a variance requires reversal when an indictment charges a single conspiracy but the proof shows a conspiracy involving fewer defendants or shows two conspiracies involving different subsets of defendants.
2. Whether persistent prosecutorial misconduct in cross-examination and summation so prejudiced the defendant that the conviction could not be sustained under the federal harmless-error rule.

## Decision

- The Supreme Court unanimously reversed and remanded.
- The Court held that the variance between the single-conspiracy allegation and proof of fewer participants or two conspiracies was not automatically fatal; reversal depends on prejudice to substantial rights.
- The Court concluded that the prosecutor’s misconduct was gross and persistent and, given the weakness of the government’s case, created a substantial likelihood of prejudice that could not be treated as harmless.

## Legal Principles

- Variance between an indictment and the proof warrants reversal only if it affects the defendant’s substantial rights, including by causing unfair surprise in preparing a defense or by impairing protection against a later prosecution for the same offense.
- Harmless-error review requires examination of the entire record; error may be disregarded only when substantial prejudice does not appear.
- A federal prosecutor’s duty is to seek justice, not merely convictions; the prosecutor may proceed vigorously but may not use improper methods likely to produce a wrongful conviction.
- Persistent improper questioning or argument, especially in a close case, can require mistrial or reversal if not effectively counteracted by the trial court.

## Conclusion

The Court clarified that conspiracy variances are assessed for prejudice rather than treated as per se reversible, but it reversed Berger’s conviction because the prosecutor’s pronounced and persistent misconduct, combined with a weak evidentiary case, substantially denied Berger a fair trial under harmless-error principles.


Berger v. United States, 295 U.S. 78 (1935)