[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-11867

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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.

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Appeal from the United States District Court

for the Northern District of Georgia

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(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 drugtrafficking 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 visà-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 singledefendant 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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