Opinion for the Court filed by Senior Circuit Judge WILLIAMS.
Five defendants — appellants Baugham and Wells and three others, Honesty, White, and James Nelson, Jr. 1 — were tried together for conspiracy to distribute and to possess with intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 846. Each of the five defendants was also tried in the same proceeding on one or more substantive offenses, each involving drugs, guns, or both. Honesty, White, and James Nelson, Jr., were acquitted on all counts. Baugham was convicted on the conspiracy count, plus two others: distributing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2, and possessing 5 grams or more of cocaine base with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii) and 18 U.S.C. § 2. Wells was also convicted on the conspiracy count, plus two others: distributing 50 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii) and 18 U.S.C. § 2, and possessing a firearm in furtherance of a drug trafficking offense (i.e., the drug conspiracy), in violation of 18 U.S.C. § 924(c)(1).
Baugham and Wells attack their convictions on a variety of grounds; the only ones meriting discussion in a published opinion are claims of insufficiency of evidence of conspiracy and of a fatal variance between the conspiracy alleged and the proof at trial. They also challenge their sentences. We affirm the convictions but vacate the sentences and remand for re-sentencing.
I. The Conspiracy Convictions
Baugham argues that there was insufficient evidence that he conspired with any of the defendants, cooperators, or informants. It is unclear whether Wells also mounts a sufficiency challenge, but the government reads his brief as doing so and therefore presents what it contends is evidence sufficient to support both appellants’ conspiracy convictions. Brief of Appellee at 29-37, esp. 34, 36. Given that this court in any event has the power to notice a plain error
sua sponte, Silber v. United States,
Evidence is sufficient if, when viewed in the light most favorable to the government, it would permit a rational jury to find the elements of conspiracy beyond a reasonable doubt.
United States v. Graham,
The sufficiency and variance issues interact with each other here in a rather complex way. In
United States v. Brisbane,
Here, if the evidence turns out to be sufficient to support the conviction even when the statute is read in accordance with Brisbane, there is no error at all as to sufficiency. Because of all hands’ failure to anticipate Brisbane, the record is relatively weak on whether either the conspiracy alleged in the indictment, or even a Baugham-Wells conspiracy argued by the government as a fallback, actually involved 50 grams of cocaine base as defined in Brisbane. But the evidence, as we shall soon see, is quite abundant for a showing that Baugham and Wells each conspired with cooperating witness Earl Nelson to distribute far more than 50 grams of crack.
Because the parties’ briefs hadn’t addressed the relation between Brisbane and the sufficiency and variance issues, we ordered a second round of briefing, putting to the parties the questions (among others) whether the evidence was adequate to show Baugham-Earl and Wells-Earl conspiracies on the scale of 50 grams of cocaine base as defined in Brisbane and whether reliance on those conspiracies would mean that the variance caused appellants harm justifying reversal. Having studied the second round of briefs, we proceed to those two issues.
A. Sufficiency of the Evidence
Cooperating witness Earl Nelson testified that he purchased an ounce (i.e., about 28 grams) of “crack cocaine” from Baug-ham “more than twenty or thirty” times and that he purchased even more ounces of crack cocaine from Wells.
A sale of drugs does not, however,
per se
establish a conspiracy between seller and buyer to distribute such drugs, or to possess them with intent to distribute. In drawing the distinction between a conspiracy and a non-conspiratorial buyer-seller relationship, the Supreme Court and
*172
this court have considered a variety of factors: the seller’s knowledge of the buyer’s illegal purpose (e.g., to re-sell the drugs) and of any larger organization designed to further that purpose; the seller’s intent to further the buyer’s illegal purpose; the duration and regularity of the dealings; the quantity of drugs sold; the importance of the particular buyer to the particular seller and vice versa; and either party’s special efforts to get the other party to transact with him (including extension of credit) or to make. the entire operation run successfully. See
Direct Sales Co. v. United States,
We conclude that Earl’s purchases from each of the appellants separately fulfill enough of the indicia of conspiracy to support their convictions. We do not decide whether the evidence supports the single broad horizontal-and-vertical conspiracy alleged in the indictment, nor any part of it (e.g., the Baugham-Wells conspiracy identified by the government), aside from the Earl-Baugham and Earl-Wells agreements. We save the variance issue for the next section.
Earl plainly intended to distribute the crack he bought from each appellant. When asked about his general practice when purchasing ounces from Baugham, Earl testified that the purchase price was $1000 and that if the entire quantity were sold at retail (i.e., “[i]f you bag up an ounce”), the gross revenue would be $2000. In fact, however, Earl said his profit if he “did good” was only $200 or $300, since he exchanged some of the crack for sex, sometimes didn’t get the full price from his retail customers, and smoked some of the crack himself (the only non-distributed portion). Thus, Earl must have typically distributed around half or more of each ounce he purchased from Baugham.
The jury could rationally infer that this testimony also applied to the ounces that Earl purchased from Wells. Earl gave no reason to think his practice differed depending on his supplier. Moreover, immediately after giving the testimony on Baug-ham cited above, Earl shifted seamlessly into comments that applied to all of his suj>pliers, suggesti2ig he didn’t mean his testimony to be specific to Baugham.
Further, there is evidence that each appellant knew of Earl’s intent to distribute and sought to further the distribution. Testifying as to his general practice when purchasing ounces from Baugham, Eai'l said that he could sell an ounce in a day and a half if he worked hard. He said he would sometimes take breaks in the crack house until whoever was supplying him— and here he named Baugham and Wells as examples — -would “come in the crack house holleiing what you doing here in it or why you in here and run me out because you can’t make no money in here.”
In addition, Earl said that Baugham and Wells were aware of his distribution activities during earlier phases of his career during which he was buying sub-ounce quantities, and that they then kept tabs on his selling. On this basis, the jury had every reason to infer that appellants re *173 mained aware of Earl’s distribution activities once they began selling him even larger quantities.
There is also evidence that Earl dealt with each appellant regularly and over a long period. Earl testified that his drug-dealing relationship with Baugham began in 1993, and audiotape evidence confirms that he bought an ounce from him in 2000. Earl said that, over the course of his relationship with Baugham, he initially received sets of tiny “dime bags” at least two to three times per week; next “eight-balls” (each one-eighth of an ounce) one or two times per week, “if [he] did that many”; next quarter-ounces, though Earl didn’t say how frequently; and finally ounces, at least two or three times per week, for a total of over twenty or thirty. As for Wells, Earl said he began dealing drugs for him in 1993 and continued (with a one-year interruption) over a ten-year period, which would cover most of the alleged period of the conspiracy (1992-2000). Earl said that when he was buying ounces from Wells the frequency was at least two or three per week, for a total of more than twenty or thirty.
As we mentioned, credit arrangements can be a significant factor supporting a buyer-seller conspiracy; this is true even if they apply to only some of the transactions. See
United States v. Melendez,
As to Wells, Earl said some of then-dealings were on credit in the early part of his career, when he sold very small quantities. He also testified that people who sold to him on credit would investigate stories he told of his stash being stolen; when asked who these investigating people were, Earl replied, “[p]eople that fronted me” and named Wells (and Baugham) as examples. Further, audiotape evidence shows that, when Baugham and Wells jointly sold an ounce to Earl in May 2000, they agreed that Earl would pay $1000 up front, that Baugham would deliver the drugs later in the day, and that Earl would pay an additional $200 at some unspecified later time. Earl testified that he trusted Wells to follow through on the delivery because “we got a history, so I could trust him. I had trust in him just like he had it in me .... But I’m saying if I gave him my money I know it was good. I never had a problem with him before, so I ain’t— I knew I wasn’t going to have [one] with [him] then. He was going to deliver.” As to the deferred payment of $200, Earl added that “I told [Wells] I don’t have nothing but the thousand. You know I’m good, I owe you shit and I ain’t try to owe you. If I give you thousand, let me give you the two tomorrow. So he knew it was good, so he went for it. It was on him just like it was on me. You had to put trust or something in each other to make the deal go through.” To be sure, this testimony concerns both deferred payment
and
deferred delivery, whereas our cases tend to focus on the former. Yet both indicate “a level of mutual trust,” which at least one other circuit has reasonably identified as an indicator of a buyer-seller conspiracy. See
Melendez,
There is also the issue of the buyer’s importance to the seller and vice versa. *174 Earl had no monopoly on distribution services; many people sold drugs at retail in his selling area. The government certainly did not allege that Baugham or Wells used Earl exclusively, and there’s no reason to think either appellant was especially dependent on Earl, though the mutual build-up of trust between them presumably would have meant there was some cost to replacing him.
As to the parties’ awareness of a larger organization, video and audiotape evidence and the testimony of Earl, a police detective, and a DEA chemist establish Baug-ham and Wells’s cooperation to sell a substantial quantity of crack to Earl in May 2000.
Overall, enough of the indicators of a buyer-seller conspiracy are present to sustain the convictions. The trial court charged the jury on the issue, in terms that correctly stated the law, and to which appellants have raised no objection in either the first or second round of briefing.
Thus, the government presented, at the very least, evidence sufficient to convict each appellant of a conspiracy with Earl to distribute, or to possess with intent to distribute, 50 grams of cocaine base under 21 U.S.C. § 846.
B. Variance
What we’ve just said, of course, doesn’t resolve appellants’ claims that the evidence at trial was insufficient to prove the single conspiracy alleged in the indictment (involving all five defendants plus various co-conspirators) and that the variance between indictment and proof warrants reversal. In response to those claims, the government argues energetically that the proof was sufficient to show the five-defendant-plus conspiracy. We think the proof of such a conspiracy exiguous at best, and as to the narrower Baugham-Wells conspiracy, exiguous on the assumption that Brisbane applies. But we need not go into the matter, for even if the proof suffered from this deficiency — even if it showed three narrow and separate conspiracies, one between Earl and Baugham, another between Earl and Wells and yet another (as appellants contend) among Honesty, James Nelson, Jr., and others — such a variance does not warrant reversal if it was harmless. We conclude that it was.
We first address the standard of review and the burden of persuasion, and then apply them to the record.
1. Standard of Review
We start our harmless error analysis by addressing the tension between general statements about harmless error review of constitutional errors and actual judicial treatment of the sort of variance alleged here.
In them opening briefs, appellants assert only one type of harm arising from variance: “transference of guilt,” especially jury confusion and improper reliance on testimony against one defendant to convict another (possibly inadmissible against the latter defendant under the hearsay rule). Further, in response to this court’s questions about evidence relating to Earl Nelson, Wells claims that affirmance on the basis of his agreement with Earl would be unfair because he lacked notice of this theory at trial.
The proper standard of review for the type of variance claimed here is the conventional one, articulated in
Kotteakos v. United States,
Some divergences between indictment and proof (we use the neutral term “divergence” advisedly, to encompass both “constructive amendments” and “variances,” see 4 Lafave Et Al.,
supra
§ 19.6(c)) plainly have a constitutional dimension. They surely relate to an accused’s Fifth Amendment right not to be tried for a felony “unless on a presentment or indictment of a Grand Jury” and to his Sixth Amendment right “to be informed of the nature and cause of the accusation.” Less obviously, and perhaps less realistically in light of
Blockburger v. United States,
Despite these attributes of divergence errors and the general principle said to govern constitutional error, no decision of the Supreme Court (nor indeed of any other federal appellate court that we can discover) has applied the “reasonable doubt” variant of harmless error, much less automatic reversal, to the kind of divergence claimed here — a charge of one conspiracy but proof of more than one. Berger itself, identifying the possible harms as deprivation of notice (which sounds like the Sixth Amendment right to be informed of the charge) and double jeopardy, straightforwardly applied the prejudice requirement stated in the then-prevailing version of today’s harmless error statute (28 U.S.C. § 2111; see also Fed. R. Crim. P. 52(a)). The Court gave no hint that applying the standard might breach a pre-existing norm of automatic reversal. Given that Berger found conventional harmless error analysis appropriate for the divergence at issue despite a background assumption of automatic reversal for constitutional errors, it follows that such analysis remains appropriate in the post -Chapman world, where the background assumption is less demanding for the government than prior to Chapman.
Kotteakos
is of course consistent with this conclusion. There the government tried 19 defendants (of whom six were dropped before the case went to the jury) as alleged members of one conspiracy,
Although the divergence between one and many conspiracies has constitutional overtones,
Berger
itself spoke of the potential harm in very mild terms. First, it noted that it was settled that, where the indictment claims a conspiracy of “several persons” and the proof was sufficient only for “some,” “the variance is not material.”
If the proof had been confined to that conspiracy [one conspiracy, but inadequate against one or more of the accused], the variance, as we have seen, would not have been fatal. Does it become so because, in addition to proof of the conspiracy with which petitioner was connected, proof of a conspiracy with which he was not connected was also furnished and made the basis of a verdict against others?
Id.
Answering its own (perhaps rhetorical) question, the Court proceeded to apply a conventional harmless error analysis.
Id.
at 81-84,
Berger
and
Kotteakos
contrast sharply with the more acute divergences (labeled “constructive amendments”) that lead to reversal automatically, without a specific inquiry as to harm. Thus in
Stirone v. United States,
The harms claimed here are like the ones at issue in
Berger
(surprise) and
Kotteakos
(transference). We therefore apply the conventional harmless error standard, i.e., error is harmful if it had a “substantial and injurious effect or influence in determining the jury’s verdict.”
United States v. Powell,
2. Burden of Persuasion
It is firmly established that the government bears the burden of showing the absence of prejudice in harmless error cases generally, whether decided under
Kotteakos,
see
Olano, 507
U.S. at 734, 741,
Against this background, variance law presents an apparent anomaly. The conspiracy variance cases in our circuit have generally said that the defendant bears the burden of showing prejudice.
United States v. Mathis,
A possible explanation might be that the prejudice from a variance is an element of the violation itself, in the same way that the Supreme Court conceives of prejudice as an element of the violation of the right to effective assistance of counsel,
Strickland v. Washington,
We need not resolve this conflict here. On this record, the government prevails even if it bears the burden. In making that determination, we are guided by Sullivan’s directive to focus on whether the error might have accounted for the outcome.
3. Application
We first consider the issue of transference of “guilt” from one defendant to another. The most obvious ways in which the inclusion of four unnecessary co-defendants (i.e., the three acquitted defendants plus the other appellant) might have affected the jury’s reasoning process are through (1) evidence against either appellant that wouldn’t have been admissible in the absence of the four co-defendants, and (2) jury confusion.
Here, for each of the convictions, the government’s case rested on evidence that would have been admitted even if Baug-ham and Wells had each been tried alone. To show this, we consider each conviction in turn.
First, as to conspiracy, we have already analyzed the evidence that Baugham and Wells each conspired with Earl, whose testimony was admitted directly against each appellant.
Baugham’s conviction on the count of distributing cocaine base rested on a videotape of Baugham handing a clear plastic envelope to one Darryl Young, and the testimony of the videotaping detectives, who after witnessing the hand-off contacted other officers and asked them to follow Young. A chemist’s report identifies as cocaine base the contents of a plastic envelope found on an entertainment center in the apartment into which Young fled. Although some of this evidence is hearsay, arguably non-admissible hearsay, its admission didn’t depend on the inclusion in the indictment of the other four defendants, and Baugham has made no challenge to the sufficiency of the evidence on this count. 3
*179 Baugham’s conviction on the count of possessing 5 grams or more of cocaine base with intent to distribute was equally independent of evidence against the other defendants. It rested on Metropolitan Police Department (“MPD”) detective Witkowski’s testimony that: he had seen Baugham driving a certain ear “on many occasions”; that he acquired a warrant to seize the car; that Baugham, upon encountering Witkowski and other officers, fled in that same car; that Witkowski and other officers located Baugham soon afterward, getting out of the car; that they seized the car; and that Witkowski later participated in a search of the car that produced, from under the back seat, numerous small ziploc bags each containing a white rock substance. A DEA chemist later testified that the substance was crack cocaine. The evidence cited by the government does not support the 5-gram amount; but Baugham has in no way challenged the sufficiency of the evidence underlying this conviction, and we can conceive of no way in which trying Baugham together with his four co-defendants could have made the jury more likely to convict on this count.
Wells’s conviction on the count of distributing 50 grams or more of cocaine base rested on testimony of cooperator Perry Nelson that he paid Wells $1900 in exchange for 62 grams of crack; a videotape of Perry entering Wells’s apartment building; an audiotape (from a wire worn by Perry) of the transaction itself; and testimony of Witkowski that he received the contraband from Perry immediately after the transaction, that it was a “white rock substance,” that he had it tested by the DEA, and that it came to 59 grams.
Finally, Wells’s conviction on the count of possessing a firearm in further-anee of a drug trafficking conspiracy rested on the MPD’s seizure from Wells’s apartment—within four hours of his sale to Perry Nelson described above—of four pistols (three semi-automatic and at least three loaded), ammunition, $6000 cash, a gram scale, a lease agreement between Wells and the apartment owner, and Wells’s driving license. The seizure was described at length in the testimony of Witkowski, who supervised it. It was also captured on videotape. Although no drugs were recovered during the seizure, the audiotape of Wells’s prior sale to Perry recorded Wells’s statement that he was selling Perry all the drugs he had left.
Thus the government has pointed to evidence underlying the three counts against each defendant (the conspiracy count in common, the two separate counts for each) that is in no way dependent on the fact that the five men were tried together.
The only specific evidence pointed out by either appellant that wouldn’t have been admitted had each been tried alone is the testimony of one Paula Spriggs. Baugham, in an effort to show that his operation was unrelated to that of Wells, called Spriggs, who said she had purchased drugs from Baugham and then testified as follows:
Q. I had asked you whether or not you had ever purchased drugs from Michael Wells?
A. Yes.
Q. And as between Michael Wells and Reginald Baugham’s drugs, whose drugs, if either, had more flavor?
A. Reginald Baugham.
Wells argues that this testimony interfered with his defense of general denial and was
*180
therefore prejudicial. We think it was cumulative and therefore not prejudicial. It was brief and extremely general, in contrast to the extensive and far more specific testimony of Earl and Perry Nelson as to Wells’s longtime drug-dealing; plus the videotape and audiotape evidence (coupled with the testimony of Earl, a police detective, and a DEA chemist) that Wells made a sale of a substantial quantity of crack to Earl; plus the videotape and audiotape evidence (coupled with the testimony of Perry and a police detective) that Wells sold 59 grams to Perry. Wells contends that the Spriggs testimony was uniquely damaging in that it was elicited by Baug-ham, his co-defendant and brother. But the identity of the party eliciting Spriggs’s testimony does not outweigh the fact that the marginal significance of the information she provided was small. Drawing an analogy to a related doctrine, we note that inconsistent defenses do not
per se
justify severance, even when co-defendants “point the accusing finger at one another.”
United States v. Moore,
Conceivably the 3600-page record contains some additional testimony or exhibits relating to these counts that won admission only because of the broader charge, but appellants haven’t pointed us to one iota of such evidence. We are confident, then, that the evidence leading to appellants’ convictions would have reached the jury even if each had been tried alone.
Apart from admissibility of otherwise inadmissible evidence, improper transference of guilt might arise from disparities in the weight or type of evidence against the appellants and others,
United States v. Badru,
Kotteakos,
Finally, we’ve noted before that “the danger of spillover prejudice is minimal when the Government presents tape recordings of individual defendants,” since it’s easier, other things being equal, for a jury to match such evidence to individual defendants.
Gaviria,
As in claims of misjoinder, a variance might sometimes injure defendants because of conflicts between their defenses. Apart from Wells’s complaint about Spriggs’s testimony, discussed above, ap *181 pellants make only one claim along these lines. Baugham notes that cooperating witnesses Vincent McSwain, Earl Nelson, Perry Nelson, and James Nelson, Sr., are relatives of co-defendants Honesty and James Nelson, Jr. He suggests (very briefly) that the cooperators testified so as to “minimize the misconduct of their relatives ... while lying about” how they sold crack for Baugham. Wells adopted this same reasoning at oral argument, again with little elaboration. Oral Arg. Tr. at 6. There are two problems with the theory. First, of the four relative-cooperators, one (McSwain) implicated his relative Honesty more than he did appellants, and another (Perry Nelson), while giving testimony that was overall more damaging to appellants than to his relatives, said that he received very significant amounts of crack from McSwain, who, in turn, admitted he was supplied by Honesty. Thus, the record offers relatively little support for appellants’ theory. Second, and perhaps more telling, even if the cooperators’ sympathy for their relatives inclined them against appellants, it’s unclear how separate trials for the two groups would have helped. Presumably the cooperators agreed to testify in the hopes of more favorable sentencing. These incentives wrould have remained the same regardless of whether the trials were separate or combined. One can, of course, hypothesize a chain of reasoning supportive of appellants’ claim. Suppose that (1) despite their pleas, the cooperators would have liked to go easy on everybody, but (2) the combined trial focused them especially on securing a conviction in that trial, and (3) they therefore directed the jury’s wrath away from their relatives and toward appellants. The scenario doesn’t seem to us sufficiently plausible to refute the government’s showing.
As to “transference of guilt,” then, the government has offered convincing reason to believe that any error had no “substantial and injurious effect or influence in determining the jury’s verdict.”
Kottea-kos,
Having disposed of the transference issue, we now turn to Wells’s claim in his supplemental briefs that his defense suffered from lack of notice that he might be convicted on the basis of his dealings with Earl.
In fact Wells received reasonable notice. The indictment, though not referring to Earl by name, did refer to “other persons known and unknown to the grand jury” and alleged that Baugham and Wells, specifically, “distributed quantities of cocaine base ... to other drug dealers” in the very neighborhood where Earl said he dealt with appellants. While the government’s opening statement referenced a large number of alleged conspirators, it made clear that their “common plan” was “to sell crack cocaine to keep the customers there [i.e., in the neighborhood], to keep the supply going so that everyone can make money”; that the “suppliers” *182 were Baugham, Wells, and Honesty; that the “redistributors ... who these wholesale suppliers sold to” included Earl Nelson; and that all the conspirators were “acting as agents for each other.” Further, the opening statement made four distinct explicit references to Earl’s distribution activities on behalf of both Wells and Baugham. At trial, Earl gave more than a full day of testimony, and was cross-examined by counsel for Wells and Baugham. So far as appears, neither Wells nor Baug-ham ever suggested here or in the district court that he was ambushed by this testimony, and it’s hard to imagine how either could have been. In its summation, the government pointed to evidence supporting the claims of vertical conspiracy made in its opening statement, emphasizing that the “resellers” were a “really necessary” part of the selling effort, naming Earl twice as a reseller, and describing some of Earl’s distribution activities on behalf of Baugham and Wells.
Nor does Wells explain what difference greater foreknowledge of the ultimate basis for affirmance would have made. He says he would have argued differently as to “the prejudicial evidence presented by Baugham,” presumably meaning the Spriggs testimony. But he gives no specifics, and given that the testimony itself was not prejudicial, we cannot imagine how a different treatment of it at trial would have made a difference to the outcome.
Wells also says he would have requested different jury instructions. But the district court gave an instruction on the buyer-seller exception to conspiracy liability, which properly stated the law. Granted, there might have been more focus on the exact language if defense counsel had been focused on his client’s dealings with Earl, but even now Wells doesn’t so much as hint at any language he would want altered.
Finally, Wells argues he would have conducted cross examination differently. Again he gives no specifics. Moreover, his trial defense was a general denial, meaning that he had as much reason to counter all testimony of his drug-selling activity as he would have had if the indictment had named only him and Earl. (We note that the same goes for Baugham, who adopted a “lone wolf’ defense, meaning he had as much reason to refute any of Earl’s testimony that suggested a conspiratorial relationship as he would have had if the indictment had named only him and Earl.) Even under the government’s dominant theory at trial, both appellants had ample incentive to attack the government’s evidence as to their drug-dealing links with each of the charged co-conspirators.
Assuming the government bears the burden of persuasion in harmless error cases involving variance (as it surely does in harmless error cases generally), the government has successfully carried that burden here.
II. Sentences
Sentencing the appellants before the Supreme Court’s decision in
United States v. Booker,
Appellants do, however, make one sentencing claim that we may resolve. They invoke
United States v. Brisbane,
Appellants did not make a
Brisbane
attack on them substantive convictions below, so we review for plain error under Federal Rule of Criminal Procedure 52(b). Under the familiar
Olano
criteria, an affected conviction must be reversed if (1) there is error (2) that is plain and (3) that affects substantial rights, and (4) we find that the error “seriously affects the fairness, integrity or public reputation of judicial proceedings.”
Olano,
Wells confines his discussion of the record to substantive count 23 in the indictment against him, involving the cocaine that Perry Nelson purchased from him in January 2000. He contends that the evidence was insufficient to show that it was crack. We disagree. Witkowski, who personally received the cocaine from Perry, testified that it was a “white rock substance.” Witkowski made clear that he distinguished between rock and powder when he testified at another point that he once recovered “powder cocaine” during a separate operation. Further, Witkowski agreed with examining counsel that “cocaine base” was “another name” for “[c]rack” and that crack was the “vernacular slang for cocaine base.” Further, witnesses who testified to Wells’s regular drug-dealing referred expressly to (or implicitly accepted the prosecutor’s statements regarding) reliance on Wells for crack, without express reference to any other drug. For his part, Wells does not suggest that he dealt a non-crack form of cocaine.
In some ways, the foregoing evidence is less suggestive of crack than in
Johnson,
but in others it is more so. In
Johnson,
the government pointed to evidence that the cocaine’s purity level was comparable to that of crack, that its packaging was
*184
typical of crack, and that defendant had a “cooking kit” (though not shown to be useful only for producing crack),
Johnson,
For his part, Baugham gives no citations to the record but simply makes a series of general assertions to the effect that the witnesses spoke only of cocaine base. These blanket assertions do not hold up. For example, Witkowski testified that the cocaine seized from Young after he received it from Baugham was “crack cocaine” and that the cocaine seized from Baugham’s car in numerous ziploc bags was “a white rock substance.” The record is, at the very least, more complex than Baugham’s blanket assertions suggest, and without more specifics, he cannot carry his burden of showing prejudice.
# % :};
Appellants’ .convictions are affirmed. Their sentences are vacated and their cases are remanded for resentencing not inconsistent with this opinion.
So ordered.
Notes
. One defendant and three witnesses all have the last name "Nelson.’' For clarity, we refer to these four by their full names or first names.
. Although one might perhaps argue that Sullivan 's use of the word "surely” is premised on the constitutional nature of the violation in that case (and consequent application of Chapman 's reasonable doubt standard), Sulli van’s more general directive to focus the inquiry on the connection between the error and the actual verdict would logically seem applicable to every harmless error analysis, whether the error be constitutional or not.
. Baugham’s statement of facts discusses the problem, gives some citations to the record, and says the evidence was insufficient, but the remainder of the brief completely fails to pursue the issue. See Fed. R. App P. 28(a)(9) (the "argument” section of the brief "must contain ... appellant's contentions and the reasons for them, with citation to the authorities and parts of the record on which appellant relies” and must also contain "for each issue, a concise statement of the applicable standard of review”);
Edmond v. U.S. Postal Service General Counsel,