[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15943 ELEVENTH CIRCUIT
SEPTEMBER 28, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 07-00184-CR-J-32HTS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LONNIE LEWIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 28, 2010)
Before DUBINA, Chief Judge, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant Lonnie Lewis, through counsel, appeals his conviction for
conspiracy to distribute less than 500 grams of cocaine, in violation of 21 U.S.C.
§§ 846 and 841(b)(1)(C). Lewis raises two arguments on appeal: (1) the district
court erred in denying his motion for judgment of acquittal because there was a
material variance between the charge in the indictment and the actual proof
introduced by the government at trial; and (2) the district court abused its
discretion in precluding him from cross-examining adverse government witnesses
regarding the factual bases contained in their respective plea agreements.
A. Material Variance
We review de novo a district court’s denial of a motion for judgment of
acquittal. United States v. Browne, 505 F.3d 1229, 1253 (11th Cir. 2007). In
determining whether sufficient evidence supports a conviction, “we must view the
evidence in the light most favorable to the government and decide whether a
reasonable fact finder could have reached a conclusion of guilt beyond a
reasonable doubt.” United States v. Herrera, 931 F.2d 761, 762 (11th Cir. 1991).
Furthermore, “[a] jury’s verdict cannot be overturned if any reasonable
construction of the evidence would have allowed the jury to find the defendant
guilty beyond a reasonable doubt.” Id.
“A material variance between an indictment and the government’s proof at
trial occurs if the government proves multiple conspiracies under an indictment
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alleging only a single conspiracy.” United States v. Moore, 525 F.3d 1033, 1042
(11th Cir. 2008) (internal quotation marks omitted). We will not reverse a
conviction based on an allegation of a material variance between the charged
indictment and the proof shown at trial, unless the variance was (1) material and
(2) substantially prejudicial. United States v. Coy, 19 F.3d 629, 633 (11th Cir.
1994). Specifically, this two-step analysis requires us to determine (1) whether a
reasonable jury, viewing the evidence in the light most favorable to the
government, could have found beyond a reasonable doubt that a single conspiracy
existed, and (2) whether the defendant suffered any substantial prejudice if more
than one conspiracy did indeed exist. Id.
In determining whether a reasonable jury could find only one conspiracy
existed, we consider the following factors: “(1) whether a common goal existed,
(2) the nature of the scheme underlying the crimes charged, and (3) the overlap of
participants.” Id. (internal quotation marks omitted). “Separate transactions are
not necessarily separate conspiracies, so long as the conspirators act in concert to
further a common goal.” Moore, 525 F.3d at 1042 (internal quotation marks
omitted) (alteration in orginal).
Regarding the second step, we have held that substantial prejudice occurs
when
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(1) the proof at trial differs so greatly from the charges in the
indictment that the defendant is unfairly surprised and has an
inadequate opportunity to prepare a defense, or (2) if there are so
many defendants and so many separate conspiracies before the jury
that there is a substantial likelihood that the jury transferred evidence
from one conspiracy to a defendant involved in another conspiracy.
Coy, 19 F.3d at 634 (quotation omitted). It is the defendant’s burden to
demonstrate prejudice. See United States v. Calderon, 127 F.3d 1314, 1328 (11th
Cir. 1997).
We hold that the district court did not err in denying Lewis’s motion for
judgment of acquittal because (1) there was sufficient evidence to permit the jury
to conclude that Lewis was involved in a single overarching conspiracy, as alleged
in the indictment, and (2) even assuming that no reasonable jury could have found
that he had participated in a single conspiracy, he fails to show that he was
substantially prejudiced by the alleged material variance.
B. Limitation on Cross-examination
We review a district court’s restrictions on cross-examination for an abuse of
discretion. United States v. Baptista-Rodriguez, 17 F.3d 1354, 1371 (11th Cir.
1994). “The trial court is vested with broad discretion in ruling upon the relevancy
and admissibility of evidence.” United States v. Anderson, 872 F.2d 1508, 1515
(11th Cir. 1989). Moreover, “[a]n evidentiary ruling will stand unless the
complaining party has shown a substantial prejudicial effect.” United States v.
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Breitweiser, 357 F.3d 1249, 1254 (11th Cir. 2004) (internal quotations marks
omitted).
The Confrontation Clause provides that, “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him.”
U.S. Const. amend. VI. However, the Sixth Amendment right to confrontation is
not absolute. United States v. Deeb, 13 F.3d 1532, 1537 (11th Cir. 1994). In other
words, while defendants have the right to cross-examine witnesses effectively,
Pointer v. Texas, 380 U.S. 400, 404, 85 S. Ct. 1065, 1068 (1965), they do not have
the right to cross-examine witnesses “in whatever way, and to whatever extent, the
defense might wish,” Kentucky v. Stincer, 482 U.S. 730, 739, 107 S. Ct. 2658,
2664 (1987) (internal quotation marks omitted). Trial judges “retain wide latitude
insofar as the Confrontation Clause is concerned to impose reasonable limits on
such cross-examination based on concerns about, among other things, . . .
prejudice, confusion of the issues, . . . or interrogation that is repetitive or only
marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct.
1431, 1435 (1986).
We hold that the district court did not abuse its discretion in precluding
Lewis from cross-examining government witnesses regarding the factual bases
contained in their plea agreements because (1) their testimony would have been
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misleading and only marginally relevant, and (2) the district court allowed Lewis
to extensively cross-examine those witnesses and admitted the factual bases into
the record. Therefore, based on a careful review of the record and the parties’
briefs, we affirm Lewis’s conviction.
AFFIRMED.
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