United States v. Richardson

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-12610 July 3, 2008
________________________ THOMAS K. KAHN
CLERK

D.C. Docket No. 04-20705-CV-PAS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DARRYL RICHARDSON,
a.k.a. Picallo,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(July 3, 2008)
Before ANDERSON and BARKETT, Circuit Judges, and TRAGER,* District
Judge.

TRAGER, District Judge:

Appellant, Darryl Richardson, was convicted of one count of conspiracy to

distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846.

Richardson appeals his conviction and his sentence on several grounds, all based

largely on his contention that his various illegal agreements with several

coconspirators constituted not one but multiple conspiracies. Richardson argues

that the evidence presented at trial tended to prove the existence of multiple

distinct conspiracies, which fatally varied from, and was thus insufficient to

support a conviction for, the single overarching conspiracy charged in the

indictment. In addition, Richardson argues that the district court committed

prejudicial error by not instructing the jury regarding his multiple conspiracies

theory and its effect on the relevant statute of limitations. Finally, Richardson

appeals his sentence claiming that the district court considered certain of

Richardson's illegal acts that would have been time-barred under Richardson's

multiple conspiracies theory. For the reasons stated below, Richardson's

conviction and sentence are affirmed.

*
Honorable David G. Trager, United States District Judge for the Eastern District of New
York, sitting by designation.

2
 Background

The government charged Richardson with one count of conspiracy to

distribute cocaine. The indictment reads in relevant part,

From at least in or around 1990, the exact date being
unknown to the Grand Jury, and continuing to in or
about 2001, at Miami, Miami-Dade County, in the
Southern District of Florida, and elsewhere, the
defendant, Darryl Richardson, aka 'Picallo,' did
knowingly and intentionally combine, conspire,
confederate and agree with persons known and unknown
to the Grand Jury to distribute a controlled substance . . .
[that] involved five (5) kilograms or more of a mixture
and substance containing a detectable amount of cocaine.

Richardson was the only person charged in the indictment. The government tried

Richardson three times. The first two trials failed to produce a unanimous jury

verdict, but the third yielded a conviction.

Most of the evidence the government presented against Richardson was in

the form of witness testimony. The government called several individuals who

testified that they trafficked drugs with Richardson. The extent to which this

evidence established the single conspiracy charged in the indictment, as the

government claims, or multiple distinct conspiracies, as Richardson claims, is the

primary issue in this appeal.

The first witness the government called to testify was Gregory Barnes.

3
Barnes testified that he distributed cocaine in Atlanta from 1985 through 1993,

when he was indicted on firearm charges for which he served nine years in prison.

Barnes began to deal drugs with Richardson in 1989 when Barnes was living in

Atlanta and Richardson in Miami. Soon thereafter, Richardson moved into

Barnes's Atlanta apartment. Barnes described many ways in which he mentored

Richardson, and helped establish him in the Miami-to-Atlanta drug trade. Barnes

also referred to Richardson as his "partner." Barnes further testified that he would

supply Richardson with cocaine on consignment, also known as "fronting" him the

cocaine, which Richardson would sell, after which Richardson would pay Barnes

for the drugs. Following Barnes's incarceration in 1993, Barnes and Richardson

did not distribute drugs together again. Thus, Richardson's involvement with

Barnes spanned only from 1989 to 1993.

Following Barnes's testimony, the government called several individuals

who described dealing drugs with Richardson and others between 1992 and 2001,

none of whom claimed to have also worked with Barnes. The focus of

Richardson's appeal is that his association with Barnes cannot be considered part

of the same drug conspiracy or conspiracies that Richardson engaged in from 1992

to 2001 with other individuals.

4
 Even though none of the government's evidence reflects that any of

Richardson's coconspirators worked with both Richardson and Barnes between

1989 and 1993, with regard to at least one, Narvis Benton, the evidence does

establish a temporal overlap. Benton testified that he started dealing drugs with

Richardson in 1992, which was within the period of Barnes and Richardson's

collaboration. Benton, however, denied ever working with or knowing of Barnes.

Moreover, another witness and fellow conspirator, Derrick Blake, testified that he

began to sell cocaine in 1993 or 1994 and began to work with Richardson in

around 1994. If Barnes and Blake testified accurately, their stints dealing drugs

with Richardson could not have overlapped, but may have been separated by as

little as a few months.

In addition to Barnes, Blake, and Benton, the government called a series of

witnesses who testified about dealing drugs with Richardson and others between

1994 and 2001. This testimony generally revealed that Derrick Blake, Narvis

Benton, Robby Horton, Marvin Griffin, Jesus Wilson, Lamont Harrison, Rocky

Marshal, Christopher Mitchell, Derrick Gloster, Jerry Miller, and, not least,

Roshawn Davis all conspired with Richardson and others to traffic cocaine

between Miami, where cocaine is relatively cheap, and Atlanta, where cocaine is

relatively expensive. Many but not all of these individuals testified. Roshawn

5
Davis did not testify, but the evidence reflects that in addition to working closely

with Richardson, Davis dealt drugs with Blake, Wilson, Harrison, and Mitchell, all

of whom also dealt drugs with Richardson. Moreover, trial testimony revealed

that Benton, Horton, Griffin, and Richardson worked together on drug deals;

Harrison, Davis, and Richardson worked together on drug deals; Davis, Mitchell,

and Richardson worked together on drug deals; and in 1997, after being arrested

along with Wilson and Davis, Richardson asked Blake to arrange bail for all three.

This evidence establishes that many members of Richardson's network of drug

dealers knew and worked with not only Richardson but other members as well.

The defense presented no evidence at trial. Following the government's

case, Richardson moved for a judgment of acquittal based on his contention that

the government's evidence demonstrated a series of unconnected conspiracies

rather than the single conspiracy charged in the indictment, constituting a fatal

variance. The district court denied the motion. The district court also declined to

give two jury instructions that Richardson had requested, each relating to his

multiple conspiracies theory. Richardson appeals from those denials, and also

from the district court's reliance for sentencing purposes on what Richardson

argues is time-barred evidence.

6
 Discussion

(1)

Variance

a. Standard of Review

"We will not reverse a conviction because a single conspiracy is charged in

the indictment while multiple conspiracies may have been revealed at trial unless

the variance is [1] material and [2] substantially prejudiced the defendant." United

States v. Edouard, 485 F.3d 1324, 1347 (11th Cir. 2007) (internal quotations and

citations omitted). Our first step, therefore, is to determine whether there was a

material variance, i.e., whether the evidence supports the jury's conclusion that a

single conspiracy existed. As this Court has recently noted,

Because the jury determines the question of fact as to
whether the evidence establishes a single conspiracy, the
arguable existence of multiple conspiracies does not
constitute a material variance from the indictment if,
viewing the evidence in the light most favorable to the
Government, a reasonable trier of fact could have found
that a single conspiracy existed beyond a reasonable
doubt.

United States v. Moore, 525 F.3d 1033, 1042 (11th Cir. 2008). In other words, a

jury's conclusion that a single conspiracy existed should not be disturbed as long

as it is supported by the evidence. Id. A material variance will only result if there

7
is no evidentiary foundation for the jury's finding of a single conspiracy, and only

then will it need to be determined whether the variance requires reversal, i.e.,

whether it substantially prejudiced Richardson.

b. One or Multiple Conspiracies?

To determine whether a jury could reasonably have found that this evidence

established a single conspiracy beyond a reasonable doubt, we must consider: "(1)

whether a common goal existed; (2) the nature of the underlying scheme; and (3)

the overlap of participants." Id. (emphasis in original). It is important to note that

"[s]eparate transactions are not necessarily separate conspiracies, so long as the

conspirators act in concert to further a common goal. If a defendant's actions

facilitated the endeavors of other co-conspirators, or facilitated the venture as a

whole, a single conspiracy is established." Id. "It is irrelevant that particular

conspirators may not have known other conspirators or may not have participated

in every stage of the conspiracy; all that the government must prove is an

agreement or common purpose to violate the law and intentional joining in this

goal by coconspirators." Edouard, 485 F.3d at 1347 (internal quotations and

citations omitted). Moreover, this Court has held that a jury may find that a single

conspiracy existed when "a 'key man' directs and coordinates the activities and

individual efforts of various combinations of people." Id.

8
 First, the government presented sufficient evidence to support the

conclusion that Richardson and his various confederates, including Barnes,

operated toward a common goal. "Courts typically define the common goal

element as broadly as possible." Moore, 525 F.3d at 1042. And as this Court has

"repeatedly stated, 'common' for the purposes of this test means 'similar' or

'substantially the same' rather than 'shared' or 'coordinate.'" United States v.

Calderon, 127 F.3d 1314, 1327 (11th Cir. 1997). This Court has also noted that

"in a drug conspiracy, in which the object of the conspiracy is clearly illegal and

there are various clandestine functions to perform, the conspirators can be charged

with knowledge that others are performing these different functions." United

States v. Chandler, 388 F.3d 796, 811 n.21 (11th Cir. 2004). Moreover, "[i]t is

often possible, especially with drug conspiracies, to divide a single conspiracy into

sub-agreements. This does not, however, mean that more than one conspiracy

exists. The key is to determine whether the different sub-groups are acting in

furtherance of one overarching plan." Calderon, 127 F.3d at 1329 (11th Cir.

1997). When viewed in the light most favorable to the government, the evidence

in this case clearly shows a common goal of buying and selling cocaine for profit –

in Atlanta, Miami, and elsewhere – among Richardson and his various

coconspirators. See, e.g., United States v. Adams, 1 F.3d 1566, 1583-84 (11th Cir.

9
1993) (holding that the "common goal" inquiry was satisfied by the common crime

of importing marijuana); United States v. Jones, 913 F.2d 1552, 1560-61 (11th

Cir. 1990) (holding that the "common goal" inquiry was satisfied by the common

crime of importing cocaine); United States v. Khoury, 901 F.2d 948, 956-57 (11th

Cir. 1990) (holding that the "common goal" inquiry was satisfied by the common

crime of importing methaqualone). To be sure, Richardson relied on several

suppliers, transporters, and customers – many of whom may not have known about

the others – but the goal of trafficking cocaine with Richardson was common

among them.

Second, the jury reasonably could have found the existence of an underlying

scheme. The government's evidence supported the conclusion that Richardson and

his coconspirators would work together to buy cocaine for relatively low prices in

Miami and sell it for relatively high prices in Atlanta, thereby turning a profit.

Although the evidence did not establish that all of Richardson's coconspirators

only worked together, it did not have to. Even if, on occasion, Richardson's

confederates did drug deals with each other without Richardson's involvement,

that would not undermine the existence of an underlying scheme. The evidence

supported a reasonable conclusion that each coconspirator worked with

Richardson according to Richardson's general scheme.

10
 Third, the evidence demonstrates an overlap of participants and times. The

government's witnesses testified to various drug deals involving various players,

but Richardson almost always played a central role. Gregory Barnes introduced

Richardson to the practice of trafficking drugs between Miami and Atlanta and the

two worked together from 1989 to 1993, when Barnes was arrested and

incarcerated.1 Beginning in 1992, at the latest, and continuing thereafter,

Richardson trafficked drugs between Miami and Atlanta, just like he did with

Barnes, with other individuals – namely Derrick Blake, Narvis Benton, Jesus

Wilson, Lamont Harrison, Rocky Marshal, Christopher Mitchell, Derrick Gloster,

Jerry Miller, and Roshawn Davis. Specifically, as noted, Benton testified that he

began to deal drugs with Richardson in 1992, which was within the period of

Barnes and Richardson's active collaboration, i.e., before Barnes's arrest. Even

though Roshawn Davis did not testify, the evidence reflects that in addition to

working closely with Richardson, he dealt drugs with several of Richardson's

coconspirators. Based on this evidence, when viewed in the light most favorable

1
It bears noting that Barnes's imprisonment did not relieve him of
responsibility for the subsequent acts of members who joined Richardson's
conspiracy much later. "[N]either arrest nor incarceration automatically triggers
withdrawal from a conspiracy." United States v. Gonzalez, 940 F.2d 1413, 1427
(11th Cir. 1991); see also United States v. Finestone, 816 F.2d 583, 589 (11th Cir.
1987).
11
to the government, the jury could have reasonably concluded that Richardson was

"a 'key man' [who] direct[ed] and coordinate[d] the activities and individual efforts

of various combinations of people." See Edouard, 485 F.3d at 1347. Whether

there was overlap among all of Richardson's coconspirators is irrelevant. Id. ("It

is irrelevant that particular conspirators may not have known other conspirators or

[may not] have participated in every stage of the conspiracy; all that the

government must prove . . . is an agreement or common purpose to violate the law

and intentional joining in this goal by co[-]conspirators.") (quoting United States

v. Alred, 144 F.3d 1405, 1415 (11th Cir. 1998)). That Richardson knowingly

involved himself with each conspiratorial act proved at trial is enough for the jury

to have concluded that a single conspiracy existed.

The evidence reflects that during the conspiracy, which the indictment

alleges lasted from 1990 to 2001, several coconspirators joined and exited. This

does not mean, however, that Richardson's various agreements to traffic drugs

with each of them constituted more than one conspiracy. A conspiracy is

presumed to continue until its objectives have been abandoned or accomplished.

United States v. Coia, 719 F.2d 1120, 1124-25 (11th Cir. 1983). Thus, once the

conspiracy was established, and as long as Richardson and his partners held the

collective goal of trafficking drugs, a coconspirator's exit would not have

12
terminated the conspiracy, nor would a coconspirator's entrance have started a new

one. Moreover, considering the temporal overlap, nothing in the evidence could

have led the jury to conclude that between 1990 and 2001 Richardson ever

stopped dealing drugs for any material length of time.

Therefore, because the government presented evidence sufficient to

establish a common goal, underlying scheme, and overlap of participants, there

was no material variance, and we will not disturb the jury's verdict.

c. Prejudicial Variance

Nevertheless, even if the jury could not have concluded that Richardson's

work with Barnes was part of the same conspiracy Richardson engaged in later

with other coconspirators – in other words, even were there a material variance –

on the facts of this case the variance would not have engendered substantial

prejudice, and thus would not require reversal. See United States v. Alred, 144

F.3d 1405, 1415 (11th Cir. 1998) (emphasizing that "variance from an indictment

is not always prejudicial, nor is prejudice assumed.") (citations and quotations

omitted). To demonstrate that he was substantially prejudiced, Richardson would

have to show one of two things:

1) that the proof at trial differed so greatly from the
charges that [he] was unfairly surprised and was unable
to prepare an adequate defense; or 2) that there are so

13
 many defendants and separate conspiracies before the
jury that there is a substantial likelihood that the jury
transferred proof of one conspiracy to a defendant
involved in another.

Calderon, 127 F.3d at 1328 (emphasis added).

On the first element, Richardson does not even claim to have been unfairly

surprised or unable to prepare an adequate defense. See, e.g., Edouard, 485 F.3d

at 1348 (noting that there was no substantial prejudice where the appellant did not

claim to have been unfairly surprised or unable to prepare an adequate defense).

Instead, Richardson claims that if the government had charged multiple

conspiracies, as opposed to one, certain of the evidence presented at trial –

namely, the testimony of Barnes – would have been time-barred. Therefore,

according to Richardson, prejudice resulted when the jury, and the court in

sentencing, relied on Barnes's testimony. If we agreed with Richardson that his

agreements with Barnes should be viewed as a separate conspiracy, which we do

not, Richardson is correct that it would be time-barred. Nonetheless, even were

that the case, the government still could have offered Barnes's testimony as

background to show how Richardson developed into a major drug dealer in

Atlanta, as well as to prove Richardson's knowledge of the drug trade. See Fed. R.

Evid. 404(b). Indeed, under Rule 404(b),

14
 [e]vidence, not part of the crime charged but pertaining
to the chain of events explaining the context, motive[,]
and set-up of the crime, is properly admitted if linked in
time and circumstances with the charged crime, or forms
an integral and natural part of an account of the crime, or
is necessary to complete the story of the crime for the
jury.

Edouard, 485 F.3d at 1344 (holding that the district court did not commit plain

error by admitting evidence, in a drug conspiracy prosecution, of uncharged drug

smuggling activity that occurred prior to the conspiracy charged in the indictment)

(internal citations and quotations omitted). According to Barnes's testimony, he

began working with Richardson in 1989 when Richardson was living in Miami,

and soon thereafter helped establish Richardson in the Atlanta drug trade by

introducing him to various people, locations, and methods. During their

collaboration, Barnes and Richardson lived together in Atlanta, and sold drugs

there that had been purchased in Miami. Thus, even if Richardson's involvement

with Barnes could be considered a separate and uncharged conspiracy, Barnes's

testimony could have been properly admitted to establish Richardson's

introduction to the Miami-to-Atlanta drug trade. Thus, Richardson's claim that he

was substantially prejudiced by Barnes's testimony is unavailing.

The second element, regarding whether "there are so many defendants and

separate conspiracies before the jury that there is a substantial likelihood that the

15
jury transferred proof of one conspiracy to a defendant involved in another,"

Calderon, 127 F.3d at 1328, is irrelevant here because Richardson was the hub of

the conspiracy and was tried alone. The point does, however, segue nicely into a

discussion of United States v. Chandler, 388 F.3d 796 (11th Cir. 2004), upon

which Richardson relies heavily.

In Chandler, several defendants were charged with participating in a single

conspiracy to commit mail fraud. The fraud involved a trivia game conducted by

McDonald's restaurant. "The games were played by visiting the restaurant,

purchasing food, and collecting the game stamps that were attached to the various

food products sold by McDonald's. Certain game stamps were 'winners,' worth

substantial sums of money." Id. at 799. Jerome Jacobson – the hub of the charged

conspiracy – worked for the marketing company that McDonald's employed to

develop, manage, and advertise the game. Id. "The indictment alleged that

Jacobson would embezzle these game stamps and conspire with friends, relatives,

and others to act as 'recruiters,' who would in turn solicit other friends and

relatives to submit the stolen winning game stamps to McDonald's and collect the

prize money." Id. Jacobson was joined in the indictment, but he pleaded guilty

prior to trial. The defendants at trial were among those who recruited winners or

redeemed stolen game stamps, and were convicted for having participated in the

16
single charged conspiracy. Id. The panel reversed the conviction because it found

a material and prejudicial variance between the indictment and the evidence.

The government did not prove, nor did it even allege, that the Chandler

defendants had any knowledge of Jacobson or the underlying embezzlement. Id.

at 800. Thus, Chandler compared the charged conspiracy to a rimless wheel, i.e.,

"one in which various defendants enter into separate agreements with a common

defendant, but where the defendants have no connection with one another, other

than the common defendant's involvement in each transaction." Chandler went on

to note, "We have reversed convictions where such knowledge [among the

individual spokes] was lacking, finding no agreement to the overall conspiracy,

and holding that the individual spokes constituted separate conspiracies." See id.

(citing United States v. Ellis, 709 F.2d 688, 690 (11th Cir. 1983) (overruled on

other grounds by United States v. Lane, 474 U.S. 438 (1986)); United States v.

Nettles, 570 F.2d 547, 551 (5th Cir. 1978); United States v. Levine, 546 F.2d 658,

663 (5th Cir. 1977) (overruled on other grounds by Lane, 474 U.S. 438)).

Richardson would like us to analogize his case to Chandler, and to the other

"rimless wheel" conspiracy cases cited by Chandler. All of those cases, however,

as well as Chandler itself, differ markedly from the present case because the only

defendant in this case, Richardson, was not a spoke, but the hub of all the

17
conspiratorial acts the government sought to prove at trial. Thus, the concern that

largely motivated the holding in Chandler – i.e., that in a "multi-defendant

conspiracy prosecution . . . individuals who are not actually members of the group

will be swept into the conspiratorial net," Chandler, 388 F.3d at 798 – is of no

moment today. This is simply not a case where the government seeks to hold a

defendant who played a peripheral role in a vast conspiracy liable for criminal acts

of third parties about which the defendant had no knowledge. Richardson has not

claimed, nor could he credibly, that he was innocently unaware of any of the

illegal acts testified to at trial by his various associates. Richardson was the only

defendant, he was the hub, and all of the government's evidence sought to

establish his and nobody else's guilt.

d. Remedy for Variance

Furthermore, even if we agreed with Richardson that his association with

Barnes, which lasted from 1989 to 1993, cannot be considered part of the same

conspiracy that Richardson engaged in later with other individuals, and that he

was somehow prejudiced by the variance, the appropriate remedy still would not

be the acquittal sought by Richardson. The prosecution need not prove exactly

what the indictment alleges. It is sufficient for the government to prove a subset

of the allegations in the indictment, as long as the allegations that are proved

18
support a conviction for the charged offense. See United States v. Ward, 486 F.3d

1212, 1227 (11th Cir. 2007); see also United States v. Duff, 76 F.3d 122, 126 (7th

Cir. 1996) (citing United States v. Miller, 471 U.S. 130 (1985)) ( "A prosecutor

may elect to proceed on a subset of the allegations in the indictment, proving a

conspiracy smaller than the one alleged.") . The evidence unquestionably

establishes that Richardson participated in at least one conspiracy within the time

frame of the indictment. The remedy for someone in Richardson's position –

assuming multiple conspiracies were established – was not an acquittal, but a

ruling excluding evidence unrelated to the charged conspiracy. This remedy,

however, would not have been proper in this instance. Each of the conspiracies

could have been charged separately in one indictment and tried together, provided

at least one act in furtherance of the conspiracy occurred within the limitations

period. And the evidence outside of the statute of limitations – i.e., that relating to

Barnes – would have most likely been admitted under Rule 404(b) in order to

prove how Richardson became involved with and knowledgeable about the drug

trade. Moreover, the record does not reflect that Richardson ever asked the district

court to exclude Barnes's testimony or to instruct the jury not to consider it as

direct evidence. He merely requested a generic statute of limitations instruction,

which, as discussed below, was not supported by the evidence.

19
 In sum, even if we found a material variance – and on this record we do not

– Richardson has not demonstrated substantial prejudice, and therefore, any

variance was not fatal in the sense that it entitled him to an acquittal.2

(2)

Jury Instructions

a. Standard of Review

In claims closely related to his variance claim, Richardson argues that his

conviction should be vacated because the district court committed prejudicial error

by not delivering two proposed jury instructions – one dealing with Richardson's

multiple conspiracies theory; the other, the relevant statute of limitations.

We review a district court's refusal to give a requested

2
Indeed, even if Barnes and Richardson were tried jointly and charged with
the same conspiracy, and assuming the evidence established the existence of two
separate conspiracies rather than one, the variance would not entitle either
defendant to an acquittal (assuming of course that Barnes's separate conspiracy
was within the limitations period). On the contrary, the evidence would still be
sufficient to support a conviction for each defendant whom the evidence
established as a member of any drug conspiracy during the period charged in the
indictment. The proper remedy for the variance would not be an acquittal, but a
limiting instruction telling the jury that when deliberating on the guilt of a
defendant it may only rely on evidence of conspiracies involving that particular
defendant. If this remedy would be insufficient because of the prejudicial impact
or spillover from the other conspiracy, the appropriate remedy would be severance
and a new trial, but still not an acquittal.
20
 jury instruction for an abuse of discretion. We will find
reversible error only if (1) the requested instruction
correctly stated the law; (2) the actual charge to the jury
did not substantially cover the proposed instruction; and
(3) the failure to give the instruction substantially
impaired the defendant's ability to present an effective
defense.

United States v. Palma, 511 F.3d 1311, 1314-15 (11th Cir. 2008) (citations and

quotations omitted). A defendant is generally entitled to a jury instruction relating

to his theory of the defense if, when viewed in the light most favorable to the

accused, the evidence supports the theory. Id. As a matter of law, we review de

novo whether the evidence sufficiently supports a proposed theory-of-the-defense

instruction. Edouard, 485 F.3d at 1348-49.

b. Multiple Conspiracies Jury Instruction

The first of Richardson's proposed jury instructions at issue relates to his

multiple conspiracies theory and is identical to an Eleventh Circuit Pattern Jury

Instruction, which provides:

You are further instructed, with regard to the alleged
conspiracy offense, that proof of several separate
conspiracies is not proof of the single, overall conspiracy
charged in the indictment unless one of the several
conspiracies which is proved is the single conspiracy
which the indictment charges.

What you must do is determine whether the single
conspiracy charged in the indictment existed between

21
 two or more conspirators. If you find that no such
conspiracy existed, then you must acquit the Defendant[]
of that charge. However, if you decide that such a
conspiracy did exist, you must then determine who the
members were; and, if you should find that a particular
Defendant was a member of some other conspiracy, not
the one charged in the indictment, then you must acquit
th[e] Defendant.

In other words, to find a Defendant guilty you must
unanimously find that such Defendant was a member of
the conspiracy charged in the indictment and not a
member of some other separate conspiracy.

Eleventh Circuit Pattern Jury Instructions (Criminal) 13.3 (emphasis added). The

general thrust of Richardson's appeal is that we should vacate his conviction

because the evidence demonstrated his participation in multiple distinct

conspiracies, as opposed to the single conspiracy charged. Thus, he argues that

this proposed instruction was necessary to explain to the jury that if it found that

the single conspiracy charged in the indictment did not exist, the jury should

render a verdict of acquittal. We disagree. Where the evidence establishes

multiple conspiracies there is a variance, and the issue then is whether a defendant

has been prejudiced. As discussed above, however, we doubt that the requested

charge, whose language seems to require an acquittal upon a finding of multiple

conspiracies, is ever appropriate where there is sufficient evidence to establish a

defendant's membership in at least one conspiracy within the scope of the

22
indictment. This is particularly the case when the defendant, like Richardson, is at

the center of each of the multiple conspiracies he claims existed, all of which

occurred during the time frame of the indictment.3

At the outset, it bears emphasis that Richardson was tried alone. This is not

a case where several defendants were tried together for their varying degrees of

participation in a single conspiracy. This Court has very recently reiterated that

[g]enerally, a multiple conspiracies instruction is
required where the indictment charges several defendants
with one overall conspiracy, but the proof at trial
indicates that a jury could reasonably conclude that some
of the defendants were only involved in separate
conspiracies unrelated to the overall conspiracy charged
in the indictment.

Moore, 525 F.3d at 1044(citing Calderon, 127 F.3d at 1328) (first emphasis

added). Thus, it seems clear that the instruction is intended for use in cases

charging multiple defendants with a single conspiracy, which makes sense. In

those cases there is a legitimate concern that a defendant who operated on the

3
Even in Kotteakos v. United States, 328 U.S. 750 (1946) – which is the
source of much of the law surrounding variance in conspiracy prosecutions – the
Supreme Court, after finding a material and prejudicial variance between the
indictment, which charged several defendants for a single conspiracy, and the
evidence, which established multiple conspiracies, did not direct an acquittal. Id.
at 776. Rather, the Court reversed and remanded for further proceedings to
determine the guilt of each defendant for only those particular conspiracies of
which he was a member, presumably in separate trials without the risk of prejudice
from spillover evidence of unrelated conspiracies. Id.
23
periphery of a large, overarching conspiracy will be unfairly grouped in with a

larger conspiracy than he intended to join. The same cannot be said of cases, like

this one, where the indictment charges only one defendant who is at the hub of the

conspiracy. Indeed, when denying Richardson's requested charge, the district

court relied, at least in part, on this distinction. See Appellant's Br. at 41-42

(quoting the record). Although this Court has not expressly ruled on the question,

at least one circuit court considers a multiple conspiracies instruction

inappropriate in the trial of a single defendant, see United States v. Corey, 566

F.2d 429, 431 n.3 (2d Cir. 1977) (citing United States v. Sir Kue Chin, 534 F.2d

1032 (2d Cir. 1976)), and we are aware of no case in this circuit finding that a

district court fatally erred by not delivering the multiple conspiracies instruction in

a single-defendant case. For the reasons set forth below, we agree with the Second

Circuit, and find that the district court correctly concluded that the multiple

conspiracies instruction was neither necessary nor appropriate.

The multiple conspiracies instruction can be thought of as embodying three

possible defense theories. First, that the jury must acquit unless it finds beyond a

reasonable doubt that the conspiracy charged in the indictment existed. Second,

that even if the charged conspiracy existed, the jury must acquit unless it finds

beyond a reasonable doubt that Richardson was a member of it. And third, that the

24
jury must acquit unless it finds beyond a reasonable doubt that all of Richardson's

illegal agreements constituted one conspiracy, i.e., that his conspiracy with Barnes

was not separate or distinct. None of these defense theories justify the multiple

conspiracies instruction in this case.

First, to the extent Richardson's defense was that the single conspiracy did

not exist, his proposed instruction would have been redundant and thus

unnecessary. The instructions that the court delivered to the jury, absent the

proposed multiple conspiracies instruction, adequately explained that Richardson

should be acquitted if the evidence failed to establish the existence of the charged

conspiracy. Specifically, the court's instructions included the following:

What the evidence in the case must show beyond a
reasonable doubt is: First: That two or more persons in
some way or manner came to a mutual understanding to
try to accomplish a common and unlawful plan, as
charged in the indictment; Second: That [the] Defendant,
knowing the unlawful purpose of the plan, willfully
joined in it; and Third: That the purpose of the unlawful
plan was to distribute cocaine.

...

You will note that the Indictment charges that the
offense was committed 'on or about' a certain date. The
Government does not have to prove with certainty the
exact date of the alleged offense. It is sufficient if the
Government proves beyond a reasonable doubt that the
offense was committed on a date reasonably near the

25
 date alleged.

...

The Defendant is on trial only for the specific offense
alleged in the indictment.

These instructions clearly explained that unless the government proved the

conspiracy charged in the indictment beyond a reasonable doubt, the jury must

acquit Richardson. Our holding in United States v. Calderon, 127 F.3d 1314 (11th

Cir. 1997), is instructive on this point. In that case, multiple defendants were

charged with a single drug conspiracy, making it a much more appropriate case for

the multiple conspiracies instruction than this one. Nevertheless, the panel held

that the district court did not err by not giving it, partly because the instructions

the court did give, which mirrored in all material respects the Richardson

instructions excerpted above, "adequately informed the jury that in order to

convict, it must find that each appellant joined in the conspiracy charged." Id. at

1329-30. In this case, as in Calderon, the instructions as given adequately told the

jury what it needed to know.

Second, to the extent Richardson's defense was that even if the single

conspiracy did exist, he was not a member of it, his theory finds no support in the

evidence. Richardson was the only defendant tried. Thus, all of the government's

26
evidence had to be relevant to his guilt. Once the jury concluded that the charged

conspiracy did exist, there is no evidence whatsoever that could have led the jury

to conclude that Richardson was not a member of it for its entire duration.

Third, to the extent Richardson's defense was that the jury should acquit him

because his agreement with Barnes constituted a separate conspiracy, the

instruction would have been incorrect. As we stated above in our discussion of

the variance claim, even had the evidence demonstrated the existence of two

distinct conspiracies – one with Barnes and one with everyone else – Richardson

would have been entitled to, at most, exclusion of the evidence relating to Barnes,

but certainly not an acquittal, as the evidence more than amply established

Richardson's participation in a drug conspiracy during the time frame of the

indictment.

c. Statute of Limitations Jury Instruction

Although Richardson did not ask the court to exclude evidence of

conspiracies unrelated to the charged conspiracy – which would have been the

appropriate remedy had multiple conspiracies been established – he did propose

the following instruction regarding the relevant statute of limitations:

As a defense, the Defendant asserts that there is a
conflict in the testimony as to the date of the termination
or end of the conspiracy. The law requires that the

27
 Government prove that the conspiracy charged continued
to function less than five years before the return of the
Indictment. The Indictment was returned on September
23, [2004]. Thus, you must determine whether the
conspiracy continued after September 23, 1999. If you
find that the conspiracy continued after September 23,
1999, then the defense fails, and you should disregard it.
However, if you find that the evidence shows that the
conspiracy ceased prior to September 23, 1999, then you
must find the Defendant not guilty.

Richardson argues that the district court erred by not delivering this instruction

because had the jury determined that the government's evidence established not

one but multiple distinct conspiracies, certain of those distinct conspiracies may

have been time-barred. Thus, argues Richardson, the instruction was necessary to

explain to the jury that it should not rely on evidence of time-barred conspiracies.

Richardson has not argued that all of his agreements comprising the charged

conspiracy occurred outside of the limitations period, only that some of them did.

We find Richardson's argument unavailing. The indictment charged a

single conspiracy that spanned from 1990 to 2001. The jury convicted Richardson

of this conspiracy, and we have already rejected Richardson's claim that a material

and prejudicial variance existed between the crime charged and the crime proved.

There is no evidence whatsoever, even when viewed in the light most favorable to

Richardson, that could have led a reasonable jury to conclude that the conspiracy,

28
as charged, ended prior to September 23, 1999. But again, even if there had been

distinct time-barred conspiracies, the appropriate remedy for someone in the hub

position was not an acquittal. Because more than ample evidence established that

at least one conspiracy existed within the statute of limitations, the appropriate

remedy for Richardson to have sought was either the exclusion of evidence

relating to Barnes (and other unrelated conspiracies) or an instruction to the jury

not to consider Barnes's testimony as direct evidence of the charged conspiracy.

The record does not reflect that Richardson ever asked for this particular remedy,

and neither of the jury instructions he did propose would have achieved the proper

result. Thus, the district court did not commit prejudicial error by not delivering

Richardson's proposed instructions.

(3)

Sentencing

Richardson's last argument concerns his sentence. He argues that the

district court erroneously relied on evidence of what he believes is the time-barred

conspiracy with Barnes to determine his sentence. Thus, his argument can only

succeed if we accept his prior argument that he was a member of multiple distinct

conspiracies, some of which were time-barred, rather than one overarching

29
conspiracy as charged in the indictment, which could not have been time-barred.

Because we have already affirmed his conviction for the single conspiracy

charged, his sentence must also be affirmed.

Conclusion

We conclude that there was no material and prejudicial variance between

the single conspiracy charged in the indictment and the evidence presented at trial.

Even had there been a material variance in that the evidence established multiple

conspiracies, acquittal would not have been appropriate as the evidence

established Richardson's involvement in at least one conspiracy within the scope

of the indictment. Nor would the variance require reversal and a new trial because

the evidence from the other conspiracies would have been admissible under Rule

404(b). Thus, Richardson would not have been prejudiced. We further conclude

that the district court did not err, let alone prejudicially so, by declining to deliver

two requested jury instructions. The requested multiple conspiracies instruction

would have been inappropriate both because this case involved a single defendant

– who, moreover, was at the hub of the drug conspiracy or conspiracies – and

because an acquittal, which the charge requested, was not appropriate or justified.

Moreover, because the conspiracy as charged in the indictment continued into the

30
limitations period, the statute of limitations instruction was also not appropriate.

The evidence of what Richardson claims was a separate and time-barred

conspiracy would have been admissible under Rule 404(b), and in any event, the

requested charge sought improper relief – an acquittal. Last, because Richardson

was convicted of a single conspiracy which was not time-barred, and his variance

claim has been rejected, we conclude that the district court did not rely on

improper evidence in sentencing. Accordingly, Richardson's conviction and

sentence are

AFFIRMED.

31