Does the prosecution introduce evidence of cocaine to the jury during cross-examination of witnesses?

The defendants in the case at bar were sufficiently apprised of the charges laid against them in Count Two of the indictment. It was the defense, not the prosecution, which introduced the evidence of cocaine during their cross-examination of Government witnesses. The Government's case related to a heroin processing and packaging operation only in the late summer and early autumn of 1976. ⁸ Further, the Only variance alleged by the appellants is the exact nature of the substance involved, heroin or cocaine; the time, place, people, and object proved at trial are in all respects those alleged in Count Two of the indictment. Whether the substance was cocaine or heroin makes no difference under 21 U.S.C. 841, the statute cited in Count Two of the indictment. Such a variance, affecting neither the Government's case nor the sentence imposed, ⁹ cannot have prejudiced the ability of the defendants to make their defense to the charge that they violated 21 U.S.C. 841. United States v. Garguilo, 554 F.2d 59, 63 (2d Cir. 1977) ("A material variance occurs only if 'the prosecutor has attempted to rely at the trial upon theories and evidence that were not "fairly embraced in the charges made in the indictment." ' "); See, e. g., United States v. Marshall, 153 U.S.App.D.C. 83, 471 F.2d 1051 (1972). Nor is there any chance of a second prosecution for the same offense. Count Two names the defendants, the date and place of the crime, and the crime alleged. Read in conjunction with the charge to the jury, there can be no doubt that the

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