                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                              OCTOBER 2, 2007
                               No. 06-15219                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                     D. C. Docket No. 05-00045-CR-5-RS

UNITED STATES OF AMERICA,


                                                      Plaintiff-Appellee,

                                     versus

TREVIN NUNNALLY,
a.k.a. RICK
                                                      Defendant-Appellant.


                         ________________________

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

                               (October 2, 2007)

Before TJOFLAT, CARNES and HULL, Circuit Judges.

PER CURIAM:

     Trevin Nunnally appeals his conviction for conspiracy to distribute and to
possess with the intent to distribute 50 grams or more of cocaine base and 5

kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A)(ii)-(iii),

and 846. According to the indictment, Nunnally conspired together with Bruce

Falson, Rodderick Davis, and “other persons,” to sell cocaine as part of a single,

overarching conspiracy from January 1, 2000, through the date of the indictment,

December 13, 2005. Nunnally contends on appeal that the district court erred by:

(1) failing to enter a judgment of acquittal for him based on an unconstitutional

constructive amendment of the indictment; (2) failing to enter a judgment of

acquittal for him based on the material variance between the single conspiracy

alleged in the indictment and the proof at trial of multiple conspiracies; (3) failing

to give sua sponte a multiple conspiracy jury instruction; and (4) admitting at trial

statements made by an out-of-court declarant to a co-conspirator that were

recorded from a jail where the co-conspirator was incarcerated.

       Because Nunnally did not raise any of these arguments during his trial, we

review only for plain error. See United States v. Rodriguez, 398 F.3d 1291, 1298

(11th Cir. 2005). Under plain error review, “[a]n appellate court may not correct

an error the defendant failed to raise in the district court unless there is: (1) error,

(2) that is plain, and (3) that affects substantial rights. If all three conditions are

met, an appellate court may then exercise its discretion to notice a forfeited error,



                                             2
but only if (4) the error seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” Id. (quotation marks and citations omitted). An error is

“plain” if “it is obvious and clear under current law.” United States v. Eckhardt,

466 F.3d 938, 948 (11th Cir. 2006), cert. denied, 127 S. Ct. 1305 (2007).

      Nunnally first contends, with regard to the constructive amendment issue,

that the district court erred in failing to enter a judgment of acquittal based on what

he characterizes as an unconstitutional constructive amendment of the indictment.

Nunnally argues that the indictment required that the jury find that the named

defendants conspired together in order to convict him. According to Nunnally,

however, the government’s opening and closing statements and the district court’s

jury instructions were broader than the indictment, impermissibly so, because they

allowed the jury to convict Nunnally if he conspired with the named defendants or

any unnamed co-conspirator. We disagree.

      The Sixth Amendment guarantees a defendant the right to be informed of the

nature of the accusation against him. U.S. Const. amend. VI. And the Fifth

Amendment provides that “[n]o person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.”

U.S. Const. amend. V. “A fundamental principle stemming from this amendment

is that a defendant can only be convicted for a crime charged in the indictment.”



                                            3
United States v. Keller, 916 F.2d 628, 633 (11th Cir. 1990).

      A constructive amendment of an indictment occurs “[w]hen a defendant is

convicted of charges not included in the indictment.” Id. “A jury instruction that

constructively amends a grand jury indictment constitutes per se reversible error

because such an instruction violates a defendant’s constitutional right to be tried on

only those charges presented in a grand jury indictment and creates the possibility

that the defendant may have been convicted on grounds not alleged in the

indictment.” United States v. Cancelliere, 69 F.3d 1116, 1121 (11th Cir. 1995).

       “With regard to [a] conspiracy charge, the basic element which must be

proved is an agreement between two or more persons to violate federal narcotics

law.” United States v. Figueroa, 720 F.2d 1239, 1244 (11th Cir. 1983). “[A]n

individual can be convicted of conspiracy with ‘unknown persons’ referred to in

the indictment.” Id. at 1245 n.8. But where the indictment alleges that only two

people were involved in a conspiracy and does not contain language indicating that

the conspiracy involved unnamed “other” participants, in order to convict the jury

must specifically conclude that the two named defendants conspired together. See

United States v. Keller, 916 F.2d 628, 634–36 (11th Cir. 1990).

      We find no constructive amendment of the indictment here. Nunnally’s

indictment specifically charged him with conspiring with two named defendants,



                                           4
as well as unnamed “other persons.” Thus, the government’s opening statement,

which did not mention Nunnally’s named codefendants, and the government’s

closing argument, which indicated that the government need not prove all of the

named defendants were members of the scheme, did not differ from the indictment.

Nor did the court’s instruction that Nunnally could be convicted for conspiracy if

the jury found beyond a reasonable doubt that he conspired with the named

defendants or with the unnamed participants constructively amend the indictment.

See id. at 634 (“The general rule is that ‘[t]he existence of the conspiracy

agreement rather than the identity of those who agree is the essential element to

prove conspiracy.’”) (citations omitted, alteration in original).

      Additionally Nunnally’s reliance on Keller and Harlow v. United States, 301

F.2d 361 (5th Cir. 1962), is misplaced. Keller involved an indictment that alleged

a conspiracy solely between the named defendants without any “other persons”

language. 916 F.2d at 634. Nunnally’s indictment, however, was broader,

including the named defendants as well as other unnamed co-conspirators.

      Harlow is distinguishable as well. The government in Harlow conceded that

one of the named defendants, Addy, conspired solely with the other two named

defendants, and not with any of the unnamed co-conspirators. Harlow, 301 F.2d at

368. Thus, the government recognized that Addy’s conviction should be



                                           5
overturned if the record evidence did not link him with the other two named

defendants. Id. Because the former Fifth Circuit concluded that there was no

competent evidence linking the one named defendant with the other two named

defendants, the Court reversed his conviction for conspiracy. Id. at 368–69. But

that is not the situation here.

       Nunnally next contends that the district court erred because there was a

material variance between the indictment, which alleged a single conspiracy, and

the evidence at trial, which proved that there were multiple conspiracies. Again,

we find no error.

       We will not reverse a conviction because a single conspiracy was charged in

the indictment, but multiple conspiracies were proved at trial, unless the variance is

material and substantially prejudiced the defendant. United States v. Alred, 144

F.3d 1405, 1414 (11th Cir. 1998). “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.” Id. (citations

omitted). But a material variance will not be found 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.” Id.

       There are three relevant factors for determining whether a single conspiracy



                                          6
existed: (1) whether there was a common goal; (2) the nature of the scheme; and

(3) the overlap of participants. Id. “In finding a single conspiracy, there is no

requirement that each conspirator participated in every transaction, knew the other

conspirators, or knew the details of each venture making up the conspiracy.”

United States v. Taylor, 17 F.3d 333, 337 (11th Cir. 1994). “A single conspiracy

may be found where there is a ‘key man’ who directs the illegal activities, while

various combinations of other people exert individual efforts towards the common

goal.” Id. (citations omitted).

      We also have explained that, “to prove a single, unified conspiracy as

opposed to a series of smaller, uncoordinated conspiracies, the government must

show an interdependence among the alleged co-conspirators.” United States v.

Chandler, 388 F.3d 796, 811 (11th Cir. 2004). Separate transactions do not

constitute multiple conspiracies “so long as the conspirators act in concert to

further a common goal.” Id. (emphasis omitted).

      “It 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.” United States v. Calderon, 127

F.3d 1314, 1329 (11th Cir. 1997). Moreover, “‘[t]he fact that various defendants



                                           7
entered the conspiracy at different times[,] . . . performed different functions[, and]

. . . participated in numerous separate transactions does not convert a single

conspiracy to multiple conspiracies.’” Id. (citation omitted, alteration in original).

       We find no material variance here. The government presented testimony

demonstrating that all of the conspirators shared a common plan of possessing and

distributing cocaine. Moreover the government explained the nature of the scheme

and the overlap of participants through testimony that a core group of “other”

participants—Donta Spurlin, Corey Smith, and Marvin Newsome, and, to a lesser

extent, Montaque Seay, Sadderick Noird, and Perry Wilson—purchased the

powder cocaine from one of three suppliers, Nunnally, Falson, or Davis. After

turning the powder cocaine into crack cocaine, they sold the drugs to third parties.

Based on this evidence, a reasonable juror could have found beyond a reasonable

doubt that a single conspiracy to distribute cocaine commenced in 2000 and ended

in 2005, and that Nunnally and the other named and unnamed co-conspirators were

involved in this conspiracy. See Alred, 144 F.3d at 1414.

       Nunnally’s next argument is that the district court erred by failing to give

sua sponte a multiple conspiracy jury instruction.1 We disagree.


       1
         The government argued that Nunnally waived this issue by not objecting to the district
judge’s failure to give sua sponte a multiple conspiracy jury instruction. We reject this
argument. The government’s argument is based upon the invited error doctrine, which holds that
a party waives any objection to a jury instruction when there was some affirmative sign from

                                               8
       “Generally, a multiple conspiracy 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.’” Calderon, 127 F.3d at 1328. We examine whether a

reasonable jury “could . . . have reasonably concluded from the evidence that

multiple conspiracies, rather than the single charged conspiracy, existed.” Id. In

United States v. Edouard, 485 F.3d 1324, 1348–49 (11th Cir. 2007), we concluded

that a district court “committed no error in not giving a multiple conspiracy

instruction,” where the evidence at trial proved “the single conspiracy charged in

the superceding indictment.”

       Even where a multiple conspiracy instruction is warranted, we will not

reverse a conviction for failure to give the instruction unless the defendant can

show he was “substantially prejudiced by the refusal to give the instruction.” Id. at

1330. We have explained that “[t]o find such prejudice, we would have to

conclude that the evidence of multiple conspiracies was so strong that the jury



counsel at trial that the challenged jury instruction was acceptable. See United States v.
Silvestri, 409 F.3d 1311, 1337 (11th Cir. 2005). But that doctrine is inappropriate here because
Nunnally made no affirmative sign of agreement. We review a defendant not objecting to a
district court’s failure to give sua sponte a particular jury instruction for plain error. United
States v. Dean, 487 F.3d 840, 846 (11th Cir. 2007).


                                                9
would probably have acquitted [the defendant] of the conspiracy charges had it

been given the tendered instruction.” Id.

      There was no error here. As discussed above, the government presented

sufficient evidence for a reasonable juror to find beyond a reasonable doubt that

Nunnally was involved in the single conspiracy charged. The government

presented evidence that the conspirators all shared in a common plan of possessing

and distributing cocaine. And some of the participants in the conspiracy testified

about the nature, and overlap in participants, of the scheme. Therefore, we cannot

say that if it had been given the instruction the jury probably would have acquitted

Nunnally. See Calderon, 127 F.3d at 1329.

      Finally, Nunnally argues that the district court violated his rights under the

Sixth Amendment’s Confrontation Clause by admitting the telephone conversation

between Tameka Corbett and Corey Smith even though Corbett did not testify at

trial and was not subject to cross-examination.

      The Confrontation Clause provides that “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with witnesses against him.”

U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354

(2004), the Supreme Court held that the Sixth Amendment’s Confrontation Clause

bars the admission of out-of-court testimonial statements offered for the truth of



                                            10
the matter asserted, unless the declarant is unavailable and the defendant had a

prior opportunity for cross-examination. Id. at 59 n.9, 68, 124 S. Ct. at 1369 n.9,

1374. The Supreme Court, however, declined to “spell out a comprehensive

definition of ‘testimonial.’” Id. at 68, 124 S. Ct. at 1374. The distinction is

significant because non-testimonial hearsay is not subject to the Confrontation

Clause. See Davis v. Washington, ___U.S. ___, 126 S. Ct. 2266, 2273–78 (2006).

      Even where evidence was improperly admitted, we will not reverse for plain

error unless the error affected the defendant’s substantial rights. See United States

v. Arbolaez, 450 F.3d 1283, 1291 (11th Cir. 2006). “The inquiry as to a

defendant’s substantial rights . . . means that the error must have been prejudicial:

It must have affected the outcome of the district court proceedings.’” Id. (citation

omitted). “The standard for showing that is the familiar reasonable probability of a

different result formulation, which means a probability ‘sufficient to undermine

confidence in the outcome.’” Rodriguez, 398 F.3d at 1299 (citations omitted). In

Arbolaez, we concluded that the defendant’s Confrontation Clause claim failed

under plain error review, because he could not demonstrate that his rights were

substantially affected by the admission of testimonial hearsay statements, in light

of the “substantial admissible evidence against [him].” 450 F.3d at 1291.

      We conclude that the district court here did not plainly err in admitting the



                                          11
transcript of the tape-recorded conversation between co-conspirator Smith and his

mother-in-law, Corbett. Even assuming that the district court erred by admitting

the transcript, Nunnally cannot demonstrate that the error affected his substantial

rights, i.e. a probability sufficient to undermine the confidence in the outcome.

      The government presented the testimony from other admitted co-

conspirators, including Spurlin, Newsome, Seay, Noird, and Smith, who all

consistently testified about Nunnally’s participation in the conspiracy. The

government also presented corroborating evidence to show Nunnally’s

involvement in the conspiracy, including the testimony of DEA agent Daniel Kane

that he obtained a car rental agreement, dated October 27, 2004, which showed that

Newsome rented a car and named Nunnally as an additional driver, as well as

Nunnally’s cellular telephone records, which showed that he made and received

calls from Newsome and Spurlin. Because of all this evidence, Nunnally cannot

demonstrate that a reasonable juror would have reached a different verdict, or that

the admission of the telephone conversation undermines confidence in the outcome

of his case. Thus, Nunnally cannot show that his substantial rights were affected

by the district court’s error, if any, in admitting the recorded conversation between

Smith and Corbett.

      AFFIRMED.



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