                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                       No. 10-12818              NOVEMBER 28, 2011
                                   Non-Argument Calendar             JOHN LEY
                                                                       CLERK
                                 ________________________

                            D.C. Docket No. 1:09-cr-00066-KD-C-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                          Plaintiff - Appellee,

    versus

LEONARDO TREMAYNE CARSON,
a.k.a. Nardo,
a.k.a. Leo,

lllllllllllllllllllll                                          Defendant - Appellant.

                                ________________________

                          Appeal from the United States District Court
                             for the Southern District of Alabama
                                 ________________________

                                     (November 28, 2011)

Before WILSON, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

         Leonardo Carson appeals his convictions for conspiracy to possess with
intent to distribute cocaine, cocaine base (crack), and marijuana in violation of 21

U.S.C. § 846, and possession with intent to distribute crack in violation of 21

U.S.C. § 841(a)(1). On appeal, Carson argues four claims: (1) the district court

committed plain error and violated the Double Jeopardy Clause when it imposed a

separate sentence for each of the three conspiracy charges;1 (2) the district court

abused its discretion in admitting into evidence two exhibits concerning a

marijuana conspiracy involving Kurt Vollers and John Newton because the

evidence is hearsay, irrelevant, and unfairly prejudicial; (3) the district court

abused its discretion in excluding evidence of Wilbert Carson’s (Wilbert) suicide

attempts; and (4) the cumulative effect of the alleged errors denied him a fair trial.

                                               I.

       Where a defendant does not object to his multiple sentences below, we

review only for plain error. United States v. Frank, 599 F.3d 1221, 1239 (11th

Cir. 2010), cert. denied, 131 S. Ct. 186 (2010). We “correct a plain error when (1)

an error has occurred, (2) the error was plain, and (3) the error affected substantial

rights.” United States v. Williams, 527 F.3d 1235, 1240 (11th Cir. 2008) (citations



       1
          Carson also challenges the indictment as multiplicitous. However he waived this issue
on appeal under Federal Rule of Criminal Procedure 12(b)(3)(B) by failing to raise the issue
before trial. He can still object to the imposition of multiple sentences. See United States v.
Mastrangelo, 733 F.2d 793, 800 (11th Cir. 1984).

                                               2
and quotation marks omitted).

      “An indictment is multiplicitous if it charges a single offense in more than

one count.” Id. at 1241 (citation omitted). Thus, a multiplicitous indictment

violates double jeopardy principles by giving the jury more than one opportunity

to convict the defendant for the same offense. Id. If counts in the indictment are

multiplicitous, separate sentences resulting from those counts are also

multiplicitous. See United States v. Mastrangelo, 733 F.2d 793, 800 (11th Cir.

1984).

      “We analyze issues of double jeopardy under the test set forth by the

Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76

L.Ed. 306 (1932).” Williams, 527 F.3d at 1240 (citation omitted). “[T]the

Blockburger test is one of statutory interpretation in which we examine the

elements of each offense to determine whether Congress intended to authorize

cumulative punishments.” Id. (citation omitted). Therefore, we must analyze the

statute that Carson was found guilty of violating to see if each offense “requires

proof of an additional fact which the other does not.” Blockburger v. United

States, 284 U.S. at 304, 52 S. Ct. at 182. Where the potentially multiplicitous

violations are all charged under a single statute, the key question “is whether the

legislature authorized separate punishments for separate offenses.” Ward v.

                                          3
United States, 694 F.2d 654, 661 n.13 (11th Cir. 1983) (citation omitted). “When

Congress has authorized punishment for specific types of conspiracies, a

defendant may be prosecuted for each, regardless of whether the different

prohibited objects were the subject of but one conspiratorial agreement.” Id.

(citing Albernaz v. United States, 450 U.S. 333, 337–41, 101 S. Ct. 1137, 1141–43

(1981)).

      We therefore start by examining the statutory language to decide if the

multiple sentences against Carson are valid. Drug conspiracies are prohibited by

21 U.S.C. § 846, which states that “[a]ny person who attempts or conspires to

commit any offense defined in this subchapter shall be subject to the same

penalties as those prescribed for the offense, the commission of which was the

object of the attempt or conspiracy.” A conspiracy to possess with intent to

distribute violates 21 U.S.C. § 841, which prohibits any person from knowingly or

intentionally possessing with an intent to distribute a controlled substance. The

language of § 846 makes it clear that Congress authorized punishment for

controlled substance conspiracies in the same manner as controlled substance

possession under § 841. The penalties prescribed for § 841 offenses correspond to

different quantities of different controlled substances, and list each drug in the

disjunctive. Compare 21 U.S.C. § 841(b)(1)(A) (punishing equally the possession

                                          4
of 1 kilogram or more of heroin, 5 kilograms or more of cocaine, 280 grams or

more of crack, and 1000 kilograms or more of marijuana), with 21 U.S.C. §

841(b)(1)(B) (providing a different penalty from § 841(b)(1)(A) for 100 grams or

more of heroin, 500 grams or more of cocaine, 28 grams or more of crack, and 100

kilograms or more of marijuana). The statutory language indicates that Congress

intended to impose multiple punishments for possession with intent to distribute of

different controlled substances. See also United States v. Davis, 656 F.2d 153,

156–60 (5th Cir. Unit B 1981) (holding that multiple sentences may be imposed

for “simultaneous possession” of different controlled substances under 21 U.S.C.

§ 841(a)). Because Congress also intended for conspiracies to possess with intent

to distribute to be punished in the same manner as those prescribed in 21 U.S.C.

§ 841, the district court properly imposed multiple sentences against Carson for

each conspiracy that the jury found him guilty of committing. See Albernaz, 450

U.S. at 344, 101 S. Ct. at 1145.

                                        II.

      We review evidentiary admissibility determinations for an abuse of

discretion. United States v. Underwood, 446 F.3d 1340, 1345 (11th Cir. 2006).

We review a district court’s factual finding that a statement was made in the

furtherance of a conspiracy under the clearly erroneous standard. United States v.

                                         5
Bazemore, 41 F.3d 1431, 1433 (11th Cir. 1994).

      Hearsay is a “statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted,” and is generally not admissible. Fed. R. Evid. 801, 802. However,

“inadmissible extrinsic evidence is admissible on redirect as rebuttal evidence,

when defense counsel has opened the door to such evidence during cross-

examination.” United States v. West, 898 F.2d 1493, 1500 (11th Cir. 1990)

(citations omitted).

      An out-of-court statement of a co-conspirator, made during the course and

in furtherance of the conspiracy, is not hearsay. Fed. R. Evid. 801(d)(2)(E).

Before a co-conspirator’s statement may be admitted, however, the government

must prove that: (1) a conspiracy existed; (2) the conspiracy included the declarant

and the defendant against whom the statement is offered; and (3) the declarant

made the statement during the course and in furtherance of the conspiracy. United

States v. Santiago, 837 F.2d 1545, 1549 (11th Cir. 1988). When determining

whether these conditions have been satisfied, the district court may rely on

information provided by the co-conspirator’s proffered statement, as well as

independent external evidence. United States v. Byrom, 910 F.2d 725, 735–36

(11th Cir. 1990). Finally, we “appl[y] a liberal standard in determining whether a

                                           6
statement is made in furtherance of a conspiracy.” Santiago, 837 F.2d at 1549

(citation omitted).

      “Relevant evidence” is “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Fed. R. Evid.

401. Irrelevant evidence is inadmissible. Fed. R. Evid. 402. However, relevant

evidence “may be excluded if its probative value is substantially outweighed by

the danger of unfair prejudice, confusion of the issues, or misleading the jury.”

Fed. R. Evid. 403. We have held that Rule 403 is an “extraordinary remedy”

whose “major function” is to exclude “matter of scant or cumulative probative

force, dragged in by the heels for the sake of its prejudicial effect.” United States

v. Hands, 184 F.3d 1322, 1328 (11th Cir. 1999) (quotations omitted).

      The district court properly admitted government’s exhibit 22, the alleged

drug ledger that Officer Carstarphen found in Newton’s apartment. Although the

ledger was initially excluded, defense counsel asked Officer Carstarphen if he had

seen “a car associated with [Carson] or anything” at Newton’s apartment. The

court’s ruling that use of the word “anything” opened the door to admission of the

drug ledger was not an abuse of the discretion, as the ledger was associated with

Carson and found at the apartment.

                                          7
      The court properly admitted government’s exhibit 25, the text message

between Vollers and Newton, under the co-conspirator exception to the hearsay

rule. The district court’s ruling was supported by the content of the message itself;

the frequent phone calls between Vollers, Newton, and Carson; and the fact that

Vollers and Newton were dealing extremely large quantities of marijuana. Carson

argues that the high volume of phone calls between Vollers, Newton, and Carson

is due to the fact that the three men were teammates on the Dallas Cowboys.

However, this bare allegation does not show that the district court abused its

discretion in permitting government’s exhibit 25 into evidence.

      Furthermore, the exhibits were not irrelevant, as they made it more likely

that Carson could obtain large quantities of marijuana to support the alleged

conspiracy to possess with intent to distribute marijuana, and were not so

prejudicial that they should have been excluded under Rule 403. Therefore, the

exhibits were properly admitted by the district court.

                                         III.

      We review the district court’s restrictions on cross-examination for an abuse

of discretion. United States v. Baptista-Rodriguez, 17 F.3d 1354, 1370–71 (11th

Cir. 1994). The Confrontation Clause of the United States Constitution guarantees

criminal defendants the right to cross-examine witnesses. Pointer v. Texas,

                                          8
380 U.S. 400, 404, 85 S. Ct. 1065, 1068 (1965). The Confrontation Clause

“guarantees only an opportunity for effective cross-examination, not cross-

examination that is effective 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)

(citation and quotation marks omitted). The defendant’s rights under the

Confrontation Clause are satisfied when the “cross-examination permitted exposes

the jury to facts sufficient to evaluate the credibility of the witnesses and enables

defense counsel to establish a record from which he can properly argue why the

witness is less than reliable.” Mills v. Singletary, 161 F.3d 1273, 1288 (11th Cir.

1998) (per curiam) (citation and quotation marks omitted). Once there is

sufficient cross-examination to satisfy the Confrontation Clause, the district court

may limit further cross-examination within its discretion. United States v. Diaz,

26 F.3d 1533, 1539–40 (11th Cir. 1994) (finding that a defendant’s wish to

explore bias on the part of a prosecution witness “does not automatically void the

court’s ability to limit cross-examination”).

       The district court properly limited the cross-examination of Wilbert by

excluding evidence of his suicide attempts, because the jury was able to evaluate

Wibert’s credibility and bias through other facts: his past drug conviction, prior

inconsistent statements about who was transporting how much marijuana from

                                           9
Texas, his plea agreement, and the testimony from Rosemary Carson that Wilbert

told her that the government was exerting pressure on him to testify. Therefore,

the district court did not abuse its discretion when it disallowed evidence of

Wilbert’s suicide attempts.

                                         IV.

      Under the cumulative error doctrine, even if individual judicial errors would

not be sufficient to warrant reversal, the defendant may have been denied a fair

trial when the effect of all the errors is evaluated cumulatively. United States v.

Lopez, 590 F.3d 1238, 1258 (11th Cir. 2009). “In addressing a claim of

cumulative error, we must examine the trial as a whole to determine whether the

appellant was afforded a fundamentally fair trial.” Id. (quotation omitted).

      Here, the district court did not err; therefore, there was no cumulative error.

      AFFIRMED.




                                          10
