dissenting in part:
I join fully in the dissenting opinion of Judge Easterbrook as to the inapplicability of section 2(a) in this case. The Continuing Criminal Enterprise statute, 21 U.S.C. § 848, is aimed at defendants occupying a particular status, that of “kingpin,” and application of the aiding and abetting provision makes little sense in this setting.
I write separately to address the problem that occupied most of the defendant’s brief, and which has been dealt with summarily by the majority: whether changes between the indictment and the proof at trial varied or amended the indictment in this case. This court addresses many claims that we conclude to be without merit; it has been our custom to state some reason for our conclusions, even if the reasoning can be summarized in a sentence or two. This procedure seems basic in most cases to the legitimacy of the system.1
In this case Pino-Perez complains that because a key government witness became unavailable, the government’s proof at trial on two of the counts of the indictment pertained to completely different transactions than those forming the original basis for these counts as brought in by the grand jury.2 This presents a somewhat different situation from the more usual variance problem, in which the incident alleged in the indictment and proved at trial are the same, but the original date alleged in the indictment was incorrect. See U.S. v. Leibowitz, 857 F.2d 373 (7th Cir.1988). While some inaccuracy as to dates is clearly permissible, Ledbetter v. United States, 170 U.S. 606, 18 S.Ct. 774, 42 L.Ed. 1162 (1898), the government is not permitted to generate new grounds for counts of an indictment when witnesses become unavailable or new crimes come to light. See Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). However, in this case, we cannot say with certainty that this is what has happened because there was no bill of particulars from which to ascertain exactly which incidents are alleged in each count of the indictment. The proof at trial seems adequate under the language of the grand jury indictments, although the circumstances strongly suggest that the defendant’s argument is not frivolous.
. See, e.g., T. Tyler, Why People Follow the Law: Procedural Justice, Legitimacy, and Compliance (1989).
. Specifically, Count XI was apparently based on an incident, involving only Pino-Perez and Nichols, that Nichols reported as having occurred on or about November 17. Count IX had apparently been based upon an incident involving a witness, Janet Rains, who testified only that the transaction had occurred "in the winter months." At trial the government used the Rains transaction as proof of Count XI, and introduced a wholly new incident not mentioned in Nichols’ original report (a transaction involving witness Larry Chapel) as proof on Count IX.