07-5368-cr(L); 08-5929-cr(CON)
USA v. Bryant (Jones)

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATIO N TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS CO URT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.


       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 29th day
of April, two thousand ten.

Present:
            PIERRE N. LEVAL,
            ROBERT A. KATZMANN,
            BARRINGTON D. PARKER,
                        Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

                Appellee,

                       v.                                 Nos. 07-5368-cr(L); 08-5929-cr(CON)

KENWAYNE JONES,

            Defendant-Appellant.
________________________________________________

For Defendant-Appellant:      BETH M. FARBER, New York, NY

For Appellee:           JAMES P. LOONAN (David C. James, on the brief), Assistant United
                        States Attorneys for Benton J. Campbell, United States Attorney
                        for the Eastern District of New York, Brooklyn, NY
________________________________________________

       Appeal from the United States District Court for the Eastern District of New York
(Trager, J.).
       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Defendant Kenwayne Jones appeals from a judgment of conviction entered on November

7, 2008 (Trager, J.), following a jury trial, convicting him of nine felony counts, including

racketeering, racketeering conspiracy, conspiracy to kidnap, kidnapping, conspiracy to rob,

attempted robbery, use of a firearm in furtherance of a crime of violence, conspiracy to possess

with intent to distribute cocaine base, and distribution and possession with intent to distribute

cocaine base. Jones was sentenced principally to 252 months’ imprisonment. We assume the

parties’ familiarity with the facts and procedural history of the case.

       Jones argues that he was substantially prejudiced by the variance between the conspiracy

charged in the indictment and the one proved at trial. Jones alleges that his “convictions [were]

obtained on the theory that all defendants were members of a single conspiracy although, in fact,

the proof disclosed multiple conspiracies.” United States v. Bertolotti, 529 F.2d 149, 154 (2d

Cir. 1975). Here, the jury reasonably found that the government had proved the single

conspiracy alleged in the indictment beyond a reasonable doubt, and therefore no variance error

occurred. See United States v. Payne, 591 F.3d 46, 62 (2d Cir. 2010). Nor do we find the district

court’s failure to give a multiple-conspiracies instruction to be error because “only one

conspiracy [was] alleged and proved.” See United States v. Maldonado-Rivera, 922 F.2d 934,

962 (2d Cir. 1990) (internal quotations omitted).

       Jones next contends that he was denied his right to present a complete defense when the

district court neither ordered the government to immunize a defense witness who had asserted his

Fifth Amendment privilege nor limited the government’s cross-examination of that witness so as


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not to implicate the privilege. Jones’s argument fails because there is no evidence here of the

type of overreaching or manipulation of the immunity device for tactical reasons by the

prosecution that might require the court to compel the government to immunize his witness. See

United States v. Ebbers, 458 F.3d 110, 119 (2d Cir. 2006). Nor did the district court err in

declining to limit the government’s cross-examination because such a limitation would have

precluded the government from meaningfully cross-examining the witness. See United States v.

Brooks, 82 F.3d 50, 54-55 (2d Cir. 1996) (describing meaningful cross-examination).

       Jones finally asserts that his sentence must be remanded in light of our decision in United

States v. Williams, 558 F.3d 166 (2d Cir. 2009). Jones’s argument is foreclosed by our

subsequent decision in Payne, 591 F.3d at 68.

       We have reviewed Jones’s remaining arguments and conclude that they lack merit.

       Accordingly, for the foregoing reasons, the judgment of the district court is hereby

AFFIRMED.

                                             FOR THE COURT:
                                             CATHERINE O’HAGAN WOLFE, CLERK




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