490 F.3d 208, 226 (2d Cir.2007); United States v. McDermott, 918 F.2d 319, 326 (2d Cir.1990). To determine whether a variance is prejudicial, the court must decide “whether the variance infringes on the ‘substantial rights’ that indictments exist to protect — ‘to inform an accused of the charges against him so that he may prepare his defense and to avoid double jeop ardy.’ ” United States v. Dupre, 462 F.3d 131, 141 (2d Cir.2006) (quoting United States v. D’Anna, 450 F.2d 1201, 1204 (2d Cir.1971)). In the Second Circuit, in general, “an indictment date only needs to be substantially similar to the date established at trial.” United States v. Teague, 93 F.3d 81, 84 (2d Cir.1996) (internal citations and quotations omitted); United States v. Morgenstern, 933 F.2d 1108, 1115 (2d Cir.1991) (<HOLDING>) (internal citations and quotations omitted);
holding the trial court erred when it instructed the jury that it may find the defendant guilty of conspiracy if the jury found the defendant agreed with at least one other person where the indictment charged the defendant with conspiring with a single named individual and the evidence tended to show the defendant may have conspired with a number of persons not just the named coconspirator to commit an unlawful act holding that the jury need not be specifically instructed to find whether there is a connection between the defendant the weapon and the crime holding that the trial court correctly instructed the jury that the defendant had to establish by evidence that outweighed the evidence against him that he lacked the capacity to form specific intent holding the trial court erred in instructing the jury that it may find the defendant guilty if the jury found the defendant had conspired with the two coconspirators named in the indictment or both of them or others where evidence tended to show a conspiracy between the defendant and some person other than the named coconspirators holding that the district court correctly instructed the jury that there had to be a substantial similarity between the indictment and the proof in order to find the defendant guilty