In the case of Stirone v. United States, Nick Stirone was convicted for interfering with interstate commerce by extortion under the Hobbs Act. The indictment charged that he obstructed sand shipments across state lines to a steel mill where it would be used in making steel products shipped out of Pennsylvania. However, during trial evidence was introduced and instructions given indicating that not only did his actions affect sand shipment but also affected steel shipments from Pennsylvania which were not mentioned in the indictment. On appeal, Stirone argued this variance between the charge and proof violated his Fifth Amendment rights as he had no notice that he needed to defend against charges related to obstruction of steel shipments. The Supreme Court agreed with him stating an accused has a right to know what offense is being alleged so they can adequately prepare their defense; any significant alteration after an indictment has been issued violates this right even if there's enough evidence supporting guilt on some other grounds consistent with those presented at trial but not included in the indictment.

In the dissenting opinion for Stirone v. United States, Justice Whittaker argued that the variance between indictment and proof was not fatal to the conviction because it did not alter any essential or material element of the crime charged in the indictment. He contended that both elements - interference with interstate commerce by threats or violence and extortion under color of official right - were present in each count of every charge, regardless if sand or steel was involved. The defendant's rights were protected as he had notice of charges against him and could prepare his defense accordingly; there was no risk of being prosecuted again for this same offense due to double jeopardy rules. Therefore, according to Justice Whittaker, since all necessary elements remained constant throughout prosecution and trial proceedings without prejudice towards defendant's rights, a reversal based on such variance should be deemed unnecessary.