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PRACTICE NOTE: U.S. v. Bourque (1st Cir. 1976) 541 F2d 290, 293-96; U.S. v. Leibowitz (7th Cir. 1988) 857 F2d 373, 378-79 [alibi]; U.S. v. Cina (7th Cir. 1983) 699 F2d 853, 859.

    See also NCJIC 251.2.1.4 [Alibi: Time Of Offense ("On Or About") Instruction Improper When Defendant Relies On Alibi] and NCJIC Chapter 40 [Variance Between Pleading And Proof].

See generally, NCJIC 305.20.4 [Time Or Date Of Offense].

See generally, NCJIC 40.4 [Date Of Crime Charged: Federal Circuit Model Instructions And Notes]. 

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    40.2    Time And Date Of Crime: Variance Between Pleading And Proof

PRACTICE NOTE:  A variance between information and proof is usually not fatal to the prosecution and the jury may base its verdict upon the date shown by the evidence. (See People v. Jennings (CA 1991) 53 C3d 334, 358 [279 CR 780]; People v. Cox (CA 1968) 259 CA2d 653, 661 [66 CR 576].) However, the variance is material if the preliminary hearing failed to provide the correct date and the defendant was misled into relying upon an alibi for the date alleged in the information. (Cox, 259 CA2d at 660; see also NCJIC 300.2 [Due Process: Notice].) In such a case, the defense must ask for a continuance to preserve the issue for appeal. (See also NCJIC 40.3 [Time of Crime: Request For Continuance Necessary To Preserve Variance Issue].)

See generally, NCJIC 305.20.4 [Time Or Date Of Offense].

   See generally, NCJIC 40.4 [Date Of Crime Charged: Federal Circuit Model Instructions And Notes]. 

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PRACTICE NOTE:  Even if the defendant is misled, a motion for continuance may be necessary to preserve the issue for appeal as in other analogous situations. (See People v. Cox (CA 1968) 259 CA2d 653, 661 [66 CR 576]; see also Gray v. Netherland (1996) 518 US 152, 167 [116 SCt 2074; 135 LEd2d 457] formal request for continuance required to preserve lack of notice claim regarding prosecution evidence]; Metro Atlanta Trucking Co., Inc. v. Kyzer (GA 1995) 458 SE2d 416, 418 [request for continuance required to preserve issue as to unavailability of material witness]; People v. Gawthrop (MI 1983) 345 NW2d 204, 206 [request for continuance required to preserve issue regarding lack of notice as to prosecution witness]; WTFO, Inc. v. Braithwaite (TX 1995) 899 SW2d 709, 715 [failure to object to the lack of notice of venue hearing or to request a motion for continuance waives the error].)

See generally, NCJIC 305.20.4 [Time Or Date Of Offense].

See generally, NCJIC 40.4 [Date Of Crime Charged: Federal Circuit Model Instructions And Notes]. 

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 VOLUME 4 - CHAPTER 40

    40.4     Date Of Crime Charged: Federal Circuit Model Instructions And Notes 

RELATED FEDERAL MODEL INSTRUCTIONS:

See 5th Circuit Pattern Jury Instructions - Criminal 1.18.

See also 6th Circuit Pattern Jury Instructions - Criminal 2.04.

See also 7th Circuit Federal Jury Instructions - Criminal 4.04.

See also 11th Circuit Pattern Jury Instructions - Criminal BI 9.1.

See also 11th Circuit Pattern Jury Instructions - Criminal BI 9.2.

See also Federal Judicial Center, Pattern Criminal Jury Instructions 47.