         Case: 15-11867   Date Filed: 01/03/2017   Page: 1 of 10


                                                       [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                    _________________________

                           No. 15-11867
                    _________________________

              D.C. Docket No. 1:10-cr-00521-TCB-AJB-4


UNITED STATES OF AMERICA,


                                                             Plaintiff-Appellee,

                                versus


MARK TOMLINSON,
a.k.a. Supa,

                                                        Defendant-Appellant.


                    __________________________

              Appeal from the United States District Court
                 for the Northern District of Georgia
                   __________________________

                           (January 3, 2017)
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Before WILLIAM PRYOR and ROSENBAUM, Circuit Judges, and JOSE
MARTINEZ, * District Judge.

PER CURIAM:

       Appellant Mark Tomlinson challenges his conviction for conspiracy to

possess a controlled substance with the intent to distribute it.                  The Fourth

Superseding Indictment in the case charged Tomlinson and others in ten counts.

Tomlinson, however, was charged in only two of the counts: (1) in Count 1,

Tomlinson was charged with conspiracy to possess with the intent to distribute

MDMA, BZP, and marijuana, in violation of 21 U.S.C. §§ 846, 841(a)(1),

841(b)(1)(C), and 841(b)(1)(D); and (2) in Count 9, Tomlinson was charged with

possession with intent to distribute at least 500 grams of cocaine, BZP, and

MDMA, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 841(b)(1)(C)

and 18 U.S.C. § 2. Tomlinson was tried separately from the other defendants in a

four-day jury trial. The jury convicted Tomlinson on Count 1 but acquitted him on

Count 9.

       Tomlinson raises four issues on appeal: (1) whether sufficient evidence

supported his conviction; (2) whether a fatal variance occurred between the single

conspiracy charged in the indictment and the evidence presented at trial; (3)


       *
          The Honorable José Martínez, United States District Judge for the Southern District of
Florida, sitting by designation.
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whether the district court abused its discretion in declining to give the jury

Tomlinson’s requested multiple-conspiracies instruction; and (4) whether the

district court erred admitting evidence about Tomlinson’s proffer interview. We

have carefully reviewed the record and the parties’ briefs, and we have heard oral

argument.     Because we find no reversible error, we now affirm Tomlinson’s

conviction.

        First, we find that the evidence presented at trial more than sufficiently

supported the guilty verdict on the conspiracy count. We review de novo whether

the record contains sufficient evidence to support a jury’s verdict. United States v.

Harris, 20 F.3d 445, 452 (11th Cir. 1994). In doing so, we view the evidence in

the light most favorable to the government, with all reasonable inferences and

credibility choices made in the government’s favor. Id. The jury’s verdict must

stand if substantial evidence supports it—that is, “unless no trier of fact could have

found guilt beyond a reasonable doubt.” United States v. Calderon, 127 F.3d

1314, 1324 (11th Cir. 1997) (citing United States v. Battle, 892 F.2d 992, 998

(11th Cir. 1990)).

        Here, the evidence against Tomlinson was substantial. During Tomlinson’s

trial, the government presented evidence regarding Tomlinson’s involvement in

drug-trafficking activities from as early as 2007 and continuing until his arrest in

2010.     Most of this evidence was based on the government’s review and

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presentation of evidence from more than 35,000 wiretapped phone calls, during

which the government determined four major premises about Tomlinson and the

drug-trafficking organization with which he was involved in the Atlanta

metropolitan area: (1) that Jerome Bushay was the “cell head” of the Atlanta drug-

trafficking organization, that Bushay was a drug supplier, and that Bushay directed

others in the distribution of drugs; (2) that Otis Henry was also a drug supplier and

that he was the equivalent of a “senior vice president” in the drug-trafficking

organization; (3) that Tomlinson worked cooperatively with Bushay and others in

the drug-trafficking organization, and that Bushay directed Tomlinson to do certain

drug-related tasks; and (4) that Conrad Harvey was the stash-house guard and a

lower-level member of the drug-trafficking organization.

      In support of these allegations, the government organized its central

evidence against Tomlinson around four specific episodes: the 2007 seizure of

$63,000 from Tomlinson at the Canadian border; the April 2010 seizure of

$102,000 from Ruth Hargreaves after she met with Tomlinson in the driveway of a

house that he owned; Tomlinson’s actions following the Drug Enforcement

Administration’s (“DEA”) October 2010 seizure of over 700,000 pills from

Henry’s house; and the seizure of drugs at Harvey’s “stash house,” which

Tomlinson also owned.       The government also presented evidence comparing

Tomlinson’s nominal declared income to his extensive real and personal property,

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to show that Tomlinson must have been making money from the drug business

since his legal businesses did not explain his extensive assets. Our review of the

record yields the conclusion that the evidence amply supports Tomlinson’s

conviction for conspiracy to possess with intent to distribute controlled substances.

      Second, no variance occurred between the conspiracy count in the

indictment and the evidence presented at trial. “A material variance between an

indictment and the government’s proof at trial occurs if the government proves

multiple conspiracies under an indictment alleging only a single conspiracy.”

United States v. Moore, 525 F.3d 1033, 1042 (11th Cir. 2008) (citation and internal

quotation marks omitted). In determining whether the evidence presented a single

conspiracy at trial, courts consider: “(1) whether a common goal existed; (2) the

nature of the underlying scheme; and (3) the overlap of participants.” United

States v. Richardson, 532 F.3d 1279, 1284 (11th Cir. 2008) (citation and internal

quotation marks omitted). But 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) (quoting United States v. Alred, 144 F.3d 1405, 1414 (11th Cir. 1998)).

      Our close review of the record reveals no material variance between the

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

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Tomlinson argues that the evidence supports the existence of only multiple

conspiracies, not a single conspiracy, and that Tomlinson’s role was limited to

individually “helping” his friends avoid getting caught for their drug-trafficking

activities. But we find that the evidence supports the jury’s determination that a

single drug-trafficking conspiracy existed and that Tomlinson played an active and

important role in it.

      And even if a material variance occurred—which, to be clear, we easily

conclude that it did not—Tomlinson has failed to show that it resulted in

“substantial prejudice.” Indeed, Tomlinson presents no argument to support a

finding that Tomlinson suffered substantial prejudice as the result of an alleged

material variance. Instead, he conclusorily asserts in a single sentence that he “can

establish prejudice, because the government effectively transferred guilt to him vis-

à-vis the ‘alleged’ versus ‘actual’ conspiracies” involved in the April 2010 and

October 2010 events.

      This argument, without any support, cannot demonstrate substantial

prejudice, particularly on this record. Here, Tomlinson was tried alone, in a single-

defendant trial. See Edouard, 485 F.3d at 1348 (relying in part on the fact that the

defendant was tried alone to conclude that the defendant suffered no substantial

prejudice even if a material variance between the indictment and the evidence had

occurred regarding single versus multiple conspiracies).       Tomlinson was also

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named in only two counts of the operative indictment, and the evidence at trial

focused on Tomlinson’s specific role in the conspiracy. In addition, the district

court instructed the jury to focus on only Tomlinson in reaching its decision,

cautioning that Tomlinson was “on trial only for the specific crimes charged in the

indictment” and that the jury was “here to determine from the evidence in this case

whether [Tomlinson] is guilty or not guilty of those specific crimes.” We presume

that the jury follows the court’s instructions. United States v. Ramirez, 426 F.3d

1344, 1352 (11th Cir. 2005). Finally, the split verdict likewise demonstrates that

the “jurors were able to compartmentalize the evidence presented” to them in this

case. United States v. Holt, 777 F.3d 1234, 1264 (11th Cir. 2015).

      Third, the district court did not abuse its discretion when it declined to give

the jury the multiple-conspiracies instruction that Tomlinson requested.           A

multiple-conspiracies instruction is warranted “when the indictment charges

several defendants with one overall conspiracy, but the proof at trial indicates a

jury could reasonably conclude that some of the defendants were involved only in

separate conspiracies unrelated to the overall conspiracy charged in the

indictment.” United States v. Chastain, 198 F.3d 1338, 1350 (11th Cir. 1999).

Tomlinson argues that a multiple-conspiracies instruction was necessary in his case

because, “based on the evidence at trial, a reasonable jury could find that there




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were multiple conspiracies proved and not just the single conspiracy charged in the

indictment.”

      We disagree. First, as we have already explained, the evidence presented at

trial does not support Tomlinson’s multiple-conspiracies theory.              Second, the

subject matter of the alleged multiple conspiracies was substantially covered by the

single-conspiracy charge the district court gave the jury. And third, Tomlinson

was tried alone, minimizing the risk that he would be unfairly swept up in the

evidence of others’ involvement in the charged conspiracy. We have previously

noted that we are unaware of any case in this circuit concluding that a district court

committed reversible error by declining to deliver the multiple-conspiracies

instruction in a single-defendant trial. See Richardson, 532 F.3d at 1291. That

remains true.

      Finally, we find no error in the district court’s admission of evidence about

Tomlinson’s proffer meeting. The government’s letter setting forth the terms of

the proffer session provided, in relevant part, as follows:

               If [Tomlinson] subsequently takes a position in any legal
               proceeding that is inconsistent with the proffer—whether
               in pleadings, oral argument, witness testimony,
               documentary evidence, questioning of witnesses, or any
               other manner—the Government may use your client’s
               proffer statements, and all evidence obtained directly or
               indirectly therefrom in any responsive pleading and
               argument, and for cross-examination, impeachment, or
               rebuttal evidence.

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      During his proffer session, Tomlinson essentially conceded his role in the

drug-trafficking conspiracy. Among other admissions, he admitted to negotiating

the price of marijuana with a supplier for the organization and then providing the

purchased marijuana to a co-conspirator. Tomlinson likewise stated that he gave

the marijuana supplier directions to where the co-conspirator was located so the

supplier could then obtain payment for the marijuana sale. In addition, Tomlinson

admitted that he charged co-conspirator Harvey with various drug-related errands

for both Tomlinson and Bushay. Tomlinson also said that he agreed to transport

drug proceeds on behalf of Bushay.

      Yet during trial, Tomlinson’s defense insisted in opening argument that

Tomlinson was not involved in the conspiracy to distribute drugs and that he had

only ever been involved in any way with drug distribution under coercion, when

Mexican drug dealers in Arizona threatened to harm him if he refused. This story

was plainly contradicted by Tomlinson’s proffer statement, in which he never so

much as suggested that he had been coerced into dealing drugs and he, in fact,

admitted his voluntary participation in the scheme. Under the express terms of the

proffer agreement, then, the Government was entitled to use Tomlinson’s proffer

statement as rebuttal evidence.

      Nor, as Tomlinson suggests, did admission of Tomlinson’s proffer statement

violate Rule 410, Fed. R. Evid., or Rule 613, Fed. R. Evid. With respect to Rule

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410, the proffer agreement specifically provided that Tomlinson “waives any right

to challenge the admissibility of [his proffer] statements or information under

F.R.E. 410.” And in the absence of any affirmative indication that Tomlinson

entered the proffer agreement unknowingly or involuntarily, Tomlinson’s waiver

of Rule 410’s protections is “valid and enforceable.” United States v. Mezzanatto,

513 U.S. 196, 210 (1995).

      As for Rule 613, true, Rule 613(b) states that “[e]xtrinsic evidence of a

witness’s prior inconsistent statement is admissible only if the witness is given an

opportunity to explain or deny the statement and an adverse party is given an

opportunity to examine the witness about it, or if justice so requires.” But Rule

613(b) further explains, “This subdivision (b) does not apply to an opposing

party’s statement under Rule 801(d)(2).” Fed. R. Evid. 613(b) (emphasis added).

Tomlinson’s statements during the proffer session, as testified to by a Government

witness, were admissions of a party opponent under Rule 801(d)(2). See United

States v. Garmany, 762 F.2d 929, 938 (11th Cir. 1985). In short, we find no error

in the district court’s admission of Tomlinson’s proffer statement.

      For the foregoing reasons, Tomlinson’s conviction is affirmed.

      AFFIRMED.




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