United States v. Baugham, Reginald

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 31, 2005 Decided June 2, 2006

No. 03-3157

UNITED STATES OF AMERICA,
APPELLEE

v.

REGINALD BAUGHAM, A/K/A REDS,
APPELLANT

Consolidated with
03-3158

Appeals from the United States District Court
for the District of Columbia
(No. 01cr00253-02)
(No. 01cr00253-03)

Anthony D. Martin, appointed by the court, argued the
cause and filed the brief for appellant Reginald Baugham in
No. 03-3157.

Dennis M. Hart, appointed by the court, argued the cause
and filed the brief for appellant Michael Wells in No. 03-
3158.
 2

Suzanne G. Curt, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Kenneth L.
Wainstein, U.S. Attorney, John R. Fisher, Assistant U.S.
Attorney at the time the brief was filed, and David B.
Goodhand and Martin D. Carpenter, Assistant U.S.
Attorneys.

Before: ROGERS, Circuit Judge, and EDWARDS* and
WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.

WILLIAMS, Senior Circuit Judge: 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

* Senior Circuit Judge Edwards was in regular active service at
the time of oral argument.
1
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.
 3

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
resentencing.

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, 370 U.S. 717, 718 (1962), and
assuming in Wells’s favor that our usual deference to the jury
verdict is no greater when the plain-error rule applies, see
United States v. Spinner, 152 F.3d 950, 956 (D.C. Cir. 1998),
we think it appropriate, under these circumstances, to subject
his conspiracy conviction to the same scrutiny as Baugham’s.

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, 83 F.3d 1466, 1471 (D.C. Cir.
 4

1996). The drug conspiracy statute, 21 U.S.C. § 846,
dispenses with the usual requirement of an overt act and
requires only an agreement to commit any offense(s) defined
in the subchapter, United States v. Shabani, 513 U.S. 10, 16-
17 (1994)—in this case, distribution of, or possession with
intent to distribute, 50 grams or more of “cocaine base,” 21
U.S.C. §§ 841(a)(1), (b)(1)(A)(iii).

The sufficiency and variance issues interact with each
other here in a rather complex way. In United States v.
Brisbane, 367 F.3d 910 (D.C. Cir. 2004), we addressed the
“cocaine base” element of the offense, holding that a
conviction premised on “cocaine base” under 21 U.S.C. § 841
cannot stand unless the evidence establishes that the cocaine
at issue was crack or that it was smokable; we left unresolved
whether proof of smokability alone would suffice. Id. at 914.
Appellants did not raise the Brisbane problem below, so we
review for plain error under Federal Rule of Criminal
Procedure 52(b). Thus, the convictions cannot stand 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.” United States v. Olano, 507 U.S. 725, 732
(1993) (citations, internal quotation marks, and brackets
omitted).

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
 5

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 Baugham “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 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
 6

credit) or to make the entire operation run successfully. See
Direct Sales Co. v. United States, 319 U.S. 703, 711-12 & n.8
(1943); United States v. Thomas, 114 F.3d 228, 245 & n.5
(D.C. Cir. 1997); United States v. Baylor, 97 F.3d 542, 543-
44, 547 (D.C. Cir. 1996); United States v. Sobamowo, 892
F.2d 90, 94-95 (D.C. Cir. 1989); United States v. Morris, 836
F.2d 1371, 1373-74 (D.C. Cir. 1988). While the seller’s
knowledge of the buyer’s illegal purpose is necessary to
conviction, Direct Sales, 319 U.S. at 712 & n.8, and multiple
huge sales (much larger than those here) may be sufficient,
United States v. Childress, 58 F.3d 693, 714 (D.C. Cir. 1995),
the cases otherwise say little about how the various factors are
to be weighed.

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.
 7

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 Baugham cited above, Earl shifted seamlessly into
comments that applied to all of his suppliers, suggesting 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, Earl 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 hollering 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 remained 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
 8

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, 401 F.3d 851, 854 (7th Cir. 2005);
United States v. Burroughs, 830 F.2d 1574, 1581 (11th Cir.
1987). Earl testified that when he bought ounces from
Baugham, he received them on credit sometimes, depending
on whether he had the cash and whether Baugham felt
generous. When asked about his general practice after
obtaining an ounce, Earl responded that he would only “pay
him [i.e., Baugham] his thousand” after he’d smoked some of
the crack and distributed the rest, suggesting that sales on
credit were a familiar part of their relationship.

As to Wells, Earl said some of their 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
 9

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, 401 F.3d at 854.

There is also the issue of the buyer’s importance to the
seller and vice versa. 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 Baugham and
Wells’s cooperation to sell a substantial quantity of crack to
Earl in May 2000.
 10

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.
 11

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 their 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, 328 U.S. 750, 776 (1946), i.e., whether the
error had a “substantial and injurious effect or influence in
determining the jury’s verdict,” rather than the one set forth in
Chapman v. California, 386 U.S. 18, 24 (1967), requiring that
for constitutional errors the government must normally show
lack of prejudice beyond a reasonable doubt. The Court
decided Chapman, significantly, against a well-nigh universal
background understanding that all constitutional errors, at
least in federal court, required reversal regardless of any
specific reason to infer an impact. 5 LAFAVE, ISRAEL & KING,
CRIMINAL PROCEDURE § 27.6(c) (2d ed. 1999 & Supp. 2006).

Some divergences between indictment and proof (we use
the neutral term “divergence” advisedly, to encompass both
“constructive amendments” and “variances,” see 4 LAFAVE ET
 12

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, 284 U.S. 299 (1932), see 4
LAFAVE ET AL., supra, § 19.6(b) at 808, a divergence might
expose the defendant to a risk of double jeopardy in violation
of the Fifth Amendment. See Berger v. United States, 295
U.S. 78, 82 (1935) (noting possibilities of surprise and double
jeopardy).

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.
 13

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, 328 U.S. at 753 & n.4, while the proof
instead showed at least eight separate ones, id. at 754-55. The
harm claimed was the risk of “transference of guilt from one
[defendant] to another across the line separating conspiracies,
subconsciously or otherwise.” Id. at 774; see also id. at 766-
67, 769-75. Finding the risk substantial, the Court reversed,
id. at 774, 776, but as in Berger it applied the harmless error
statute and made no reference to reasonable doubt or
automatic reversal, id. at 757-76. This flowed naturally from
appellants’ exclusive reliance on transference of guilt as the
harm, since it is not linked to any specific constitutional
requirement. When it alone is in question, the error is perhaps
best understood as derived from common law, as asserted in
one leading treatise, 5 LAFAVE ET AL., supra § 27.6(b) at 940
n.35, or from the rules governing joinder, which Kotteakos
itself offered as an alternative basis for the holding, 328 U.S.
at 774-75, and which one circuit has argued (in dictum) are
the true basis of the “multiple conspiracy doctrine,” United
States v. Sutherland, 656 F.2d 1181, 1190 n.6 (5th Cir. 1981)
(citing FED. R. CRIM. P. 8(b)).

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.” 295 U.S. at 81. Then:

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
 14

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. Cf. Brecht v. Abrahamson, 507 U.S.
619, 631-32 & n.7 (1993) (alluding to Kotteakos as a
paradigmatic application of the then-prevailing harmless error
statute, which is substantively identical to the current one, 28
U.S.C. § 2111, so far as the harmless error standard itself
goes).

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, 361 U.S. 212 (1960),
the defendant was charged with unlawfully obstructing
shipments of sand into Pennsylvania, while at trial the
prosecutor offered evidence not only of that but also of the
defendant’s obstruction of shipments of steel out of
Pennsylvania. Id. at 213-14. The jury could have convicted
on the basis of shipments of a different commodity and in a
different direction from the ones stated the indictment. Id. at
218-19. Compare United States v. Miller, 471 U.S. 130
(1985); see also 1 WRIGHT, FEDERAL PRACTICE AND
PROCEDURE: CRIMINAL § 127 (3d ed. 1999 & Supp. 2004); 4
LAFAVE ET AL., supra § 19.6(c).

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.
 15

Powell, 334 F.3d 42, 45 (D.C. Cir. 2003) (quoting Kotteakos,
328 U.S. at 776). The question is “whether the guilty verdict
actually rendered in this trial was surely unattributable to the
error,” Sullivan v. Louisiana, 508 U.S. 275, 279 (1993); see
also United States v. Maddox, 156 F.3d 1280, 1283-84 (D.C.
Cir. 1998); United States v. Cunningham, 145 F.3d 1385,
1394 (D.C. Cir. 1998).2 This inquiry leads us to ask how
correction of the particular error at issue might have altered
either a defendant’s strategy or the jury’s thinking and
whether such alteration (if any) might have led to a different
verdict in light of all the evidence. An error whose correction
could neither have materially enhanced a defendant’s ability
to present a valid defense, nor have had any plausible effect
on jury reasoning, cannot be prejudicial, even if the totality of
the government’s evidence on a given charge is less than
overwhelming.

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; Powell, 334 F.3d at 45; United States v.
Smart, 98 F.3d 1379, 1390 (D.C. Cir. 1996), or Chapman, see
Satterwhite v. Texas, 486 U.S. 249, 256 (1988).

2
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), Sullivan’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.
 16

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, 216 F.3d 18,
23 (D.C. Cir. 2000); United States v. Gaviria, 116 F.3d 1498,
1516 (D.C. Cir. 1997); United States v. Graham, 83 F.3d
1466, 1471 (D.C. Cir. 1996); United States v. Childress, 58
F.3d 693, 709 (D.C. Cir. 1995); United States v. Tarantino,
846 F.2d 1384, 1391 (D.C. Cir. 1988). See also United States
v. Anderson, 39 F.3d 331, 348 (D.C. Cir. 1994) (assuming the
evidence supported multiple conspiracies rather than the
single one alleged, no reversal was in order because the
prejudice requirement was not fulfilled), rev’d in part on
other grounds, 59 F.3d 1323 (D.C. Cir. 1995) (en banc).
Similar statements about how variance claims should
generally be treated can be found in the case law of every
circuit with criminal jurisdiction. E.g., United States v.
Stigler, 413 F.3d 588, 592 (7th Cir. 2005); United States v.
Salmonese, 352 F.3d 608, 621-22 (2d Cir. 2003); United
States v. Herrera, 289 F.3d 311, 318-19 (5th Cir.), vacated
pending review en banc 300 F.3d 530 (5th Cir.), reinstated in
relevant part, 313 F.3d 882, 885 (5th Cir. 2002) (en banc);
United States v. Lopez-Arce, 267 F.3d 775, 781 (8th Cir.
2001); United States v. Crozier, 259 F.3d 503, 519 (6th Cir.
2001); United States v. Moore, 198 F.3d 793, 795-96 (10th
Cir. 1999); United States v. Candelaria-Silva, 166 F.3d 19, 40
(1st Cir. 1999); United States v. Romer, 148 F.3d 359, 369
(4th Cir. 1998), overruled on other grounds as recognized in
United States v. Strassini, 59 Fed. Appx. 550, 552 (4th Cir.
2003); United States v. Balter, 91 F.3d 427, 441 (3d Cir.
1996); United States v. Starrett, 55 F.3d 1525, 1553 (11th Cir.
1995); United States v. Homick, 964 F.2d 899, 907 (9th Cir.
1992). Indeed, we have found no circuit decision to the
contrary.
 17

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, 466 U.S. 668, 692 (1984), and of
the right to prosecutorial disclosure of certain evidence, Kyles
v. Whitley, 514 U.S. 419, 435-36 (1995). See also 5 LAFAVE
ET AL., supra § 27.6(d) at 947-48 & n.74. On that view, it
makes sense to require the defendant to show prejudice. E.g.,
Strickler v. Greene, 527 U.S. 263, 291 (1999) (in
prosecutorial nondisclosure case, “petitioner’s burden is to
establish a reasonable probability of a different result”);
Strickland, 466 U.S. at 687 (“defendant must show that
[counsel’s] deficient performance prejudiced the defense”).
(Though Strickland, Kyles, and Strickler are all habeas cases,
it seems probable that the formula is the same for all
ineffectiveness and nondisclosure claims, see, e.g., 5 LAFAVE
ET AL., supra § 27.6(d) at 947-48 & n.74.) But this theory
seems to run aground on the fact that both Berger, 295 U.S. at
81-84, and Kotteakos, 328 U.S. at 757-76, rely heavily on the
harmless error statute, which would be unnecessary if, in the
absence of prejudice, there were no violation at all. Cf. Kyles,
514 U.S. at 435-37 (discussing prejudice element of
prosecutorial nondisclosure claim without reference to
harmless error statute or rule); Strickland, 466 U.S. at 691-96
(same for ineffective assistance of counsel).

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.
 18

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
Baugham 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

3
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.
 19

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 car “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

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, 953 F.2d 1398, 1399 (D.C. Cir.
1992) (Edwards, J., concurring in denial of rehearing en banc) (“a
mere assertion of fact, in the introductory part of a brief, does not
adequately raise a legal argument predicated on those facts”; “if a
litigant means to raise a particular claim in his brief as a basis for
judgment on appeal, he is ‘obligated to say precisely that in [his]
opening brief and to include an argument, with citations to
authorities in [his] favor,’” quoting Rollins Environmental Services
(NJ), Inc. v. EPA, 937 F.2d 649, 652 n.2 (D.C. Cir. 1991); a “legal
argument” must be “appropriately identified as such—appearing in
a section of the brief devoted to that argument”). Though
Baugham’s statement of facts includes more than the “mere
assertion of fact” that appeared in the brief in Edmond, Baugham
still fails to satisfy the requirements set forth in Rule 28(a)(9) and
explained by Judge Edwards in Edmond, for he omits the issue
entirely from the argument section, never gives a standard of
review, and never cites any authorities. (He also omits the matter
from his statement of issues, in violation of Rule 28(a)(5).)
 20

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 furtherance 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
 21

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 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 Baugham, 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
 22

se justify severance, even when co-defendants “point the
accusing finger at one another.” United States v. Moore, 104
F.3d 377, 384 (D.C. Cir. 1997).

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, 97 F.3d 1471,
1475 (D.C. Cir. 1996) (addressing a similar problem in the
context of misjoinder), or from the presence of “shocking or
inflammatory evidence” that “came in against co-defendants,”
United States v. Alessi, 638 F.2d 466, 475 (2d Cir. 1980).
Here the acquittal of the other three defendants indicates no
such risk with respect to them, and appellants point us to
nothing of the kind. As between Baugham and Wells, the
government’s cases against the two men were not especially
disparate; each was aimed at showing a longtime drug-dealing
career, involving the use of guns, via testimony of law
enforcement officers and cooperators and video and audiotape
evidence of sales.

Kotteakos, 328 U.S. at 766-67, 772-73, also pointed to the
risk of transference that might arise from the sheer number of
co-defendants and resulting jury confusion. See also Mathis,
216 F.3d at 25; Gaviria, 116 F.3d at 1533. But the number
tried here is hardly of that dimension. Our variance cases
have twice approvingly cited Alessi, 638 F.2d at 475, noting
 23

both times that the court there found that ten defendants were
a “sufficiently small” number to enable the jury to give each
individual consideration. Gaviria, 116 F.3d at 1533;
Anderson, 39 F.3d at 348.

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, 116 F.3d at 1533; see also
Mathis, 216 F.3d at 25; Anderson, 39 F.3d at 348. Here,
audio and video recordings helped show Baugham and
Wells’s joint sale to Earl Nelson and Wells’s sale to Perry
Nelson, and a video recording helped show Baugham’s
distribution to Young.

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, appellants 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’
 24

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 would 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.” Kotteakos, 328 U.S. at 776. In reaching
this conclusion, we do not rely on its suggestion that the
court’s charge required the jury to acquit of conspiracy unless
it found the “single conspiracy charged in the indictment.”
Cf. Mathis, 216 F.3d at 25. The trial court had given such a
charge in Kotteakos; Justice Douglas, citing Judge Hand’s
opinion for the Second Circuit, noted that it was error, but an
error favoring defendants. See 328 U.S. at 778-79 (Douglas,
J., dissenting). Though favoring the defendants, its role is
quite obscure. As the jury acquitted the other three charged
conspirators, we must infer that it disregarded that portion of
the charge (assuming the passage meant what the government
claims). The passage cited gives the government no extra
mileage.
 25

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”
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
Baugham 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
 26

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.
 27

II. Sentences

Sentencing the appellants before the Supreme Court’s
decision in United States v. Booker, 543 U.S. 220 (2005), the
district court treated the U.S. Sentencing Guidelines as
mandatory. Under Booker, of course, this violated their Sixth
Amendment rights. Though the government’s brief conceded
that at trial the appellants had preserved their claims under the
principle established in Booker, it erroneously suggested that
such a preserved claim merited only a limited remand under
United States v. Coles, 403 F.3d 764 (D.C. Cir. 2005), to seek
the district court’s position on whether it would have imposed
a different sentence had it recognized its discretion.
Government counsel at oral argument corrected this mistake
and conceded that the proper remedy in this case is a remand
for full-blown resentencing. So the sentences will be vacated
and the case remanded.

Appellants do, however, make one sentencing claim that
we may resolve. They invoke United States v. Brisbane, 367
F.3d 910 (D.C. Cir. 2004), which, as we noted at the outset of
the opinion, holds that convictions dependent on “cocaine
base” under 21 U.S.C. § 841 require evidence that the cocaine
at issue was either crack or smokable (leaving unresolved
whether proof of smokability alone was enough). Id. at 914.
Appellants argue that the evidence against them fails to
establish these characteristics. In addressing appellants’
sufficiency and variance attacks on the conspiracy conviction
we considered Brisbane on our own initiative, finding
evidence supporting each appellant’s participation in a vertical
conspiracy involving far more than the 50 grams of crack for
which each was convicted of conspiring to distribute.
 28

Appellants did not make a Brisbane attack on their
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, 507 U.S. at 732 (citations,
internal quotation marks, and brackets omitted). The Supreme
Court has left unresolved whether, where the law on a point
was simply non-existent at the time of trial (as it was here,
since Brisbane was decided after appellants were sentenced
and pre-Brisbane cases contained no strong signs one way or
the other), an error under the law at the time of appeal can be
regarded as plain. Johnson v. United States, 520 U.S. 461,
467-68 (1997); see also United States v. Johnson, 437 F.3d
69, 74 (D.C. Cir. 2006). As in our Johnson decision, we
assume in appellants’ favor that, if there was any error, it was
plain. Thus we turn to the third element of Olano, the
requirement that appellants “make a specific showing of
prejudice,” 507 U.S. at 735, i.e., show that the error “affected
the outcome of the district court proceedings,” id. at 734.
Appellants fail to make that showing.

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
 29

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 typical of crack, and that defendant had a
“cooking kit” (though not shown to be useful only for
producing crack), Johnson, 437 F.3d at 75; here, those items
are missing. But there are offsetting strengths to the
government’s case—Wells’s notoriety as a crack dealer, the
detective’s understanding that “cocaine base” is generally
synonymous with crack, and the detective’s ability to
distinguish between rock and powder. And, as in Johnson,
437 F.3d at 75, an officer described the substance as a “white
rock.” Overall, Wells has failed to carry his burden of
showing that the evidence was inadequate.

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.
 30

* * *

Appellants’ convictions are affirmed. Their sentences are
vacated and their cases are remanded for resentencing not
inconsistent with this opinion.

So ordered.