FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 28, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-15943

Non-Argument Calendar

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D. C. Docket No. 07-00184-CR-J-32HTS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LONNIE LEWIS,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(September 28, 2010)

Before DUBINA, Chief Judge, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

Appellant Lonnie Lewis, through counsel, appeals his conviction for
conspiracy to distribute less than 500 grams of cocaine, in violation of 21 U.S.C.

§§ 846 and 841(b)(1)(C). Lewis raises two arguments on appeal: (1) the district

court erred in denying his motion for judgment of acquittal because there was a

material variance between the charge in the indictment and the actual proof

introduced by the government at trial; and (2) the district court abused its

discretion in precluding him from cross-examining adverse government witnesses

regarding the factual bases contained in their respective plea agreements.

A. Material Variance

We review de novo a district court’s denial of a motion for judgment of

acquittal. United States v. Browne, 505 F.3d 1229, 1253 (11th Cir. 2007). In

determining whether sufficient evidence supports a conviction, “we must view the

evidence in the light most favorable to the government and decide whether a

reasonable fact finder could have reached a conclusion of guilt beyond a

reasonable doubt.” United States v. Herrera, 931 F.2d 761, 762 (11th Cir. 1991).

Furthermore, “[a] jury’s verdict cannot be overturned if any reasonable

construction of the evidence would have allowed the jury to find the defendant

guilty beyond a reasonable doubt.” Id.

“A material variance between an indictment and the government’s proof at

trial occurs if the government proves multiple conspiracies under an indictment

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alleging only a single conspiracy.” United States v. Moore, 525 F.3d 1033, 1042

(11th Cir. 2008) (internal quotation marks omitted). We will not reverse a

conviction based on an allegation of a material variance between the charged

indictment and the proof shown at trial, unless the variance was (1) material and

(2) substantially prejudicial. United States v. Coy, 19 F.3d 629, 633 (11th Cir.

1994). Specifically, this two-step analysis requires us to determine (1) whether a

reasonable jury, viewing the evidence in the light most favorable to the

government, could have found beyond a reasonable doubt that a single conspiracy

existed, and (2) whether the defendant suffered any substantial prejudice if more

than one conspiracy did indeed exist. Id.

In determining whether a reasonable jury could find only one conspiracy

existed, we consider the following factors: “(1) whether a common goal existed,

(2) the nature of the scheme underlying the crimes charged, and (3) the overlap of

participants.” Id. (internal quotation marks omitted). “Separate transactions are

not necessarily separate conspiracies, so long as the conspirators act in concert to

further a common goal.” Moore, 525 F.3d at 1042 (internal quotation marks

omitted) (alteration in orginal).

Regarding the second step, we have held that substantial prejudice occurs

when

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(1) the proof at trial differs so greatly from the charges in the

indictment that the defendant is unfairly surprised and has an

inadequate opportunity to prepare a defense, or (2) if there are so

many defendants and so many separate conspiracies before the jury

that there is a substantial likelihood that the jury transferred evidence

from one conspiracy to a defendant involved in another conspiracy.

Coy, 19 F.3d at 634 (quotation omitted). It is the defendant’s burden to

demonstrate prejudice. See United States v. Calderon, 127 F.3d 1314, 1328 (11th

Cir. 1997).

We hold that the district court did not err in denying Lewis’s motion for

judgment of acquittal because (1) there was sufficient evidence to permit the jury

to conclude that Lewis was involved in a single overarching conspiracy, as alleged

in the indictment, and (2) even assuming that no reasonable jury could have found

that he had participated in a single conspiracy, he fails to show that he was

substantially prejudiced by the alleged material variance.

B. Limitation on Cross-examination

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

discretion. United States v. Baptista-Rodriguez, 17 F.3d 1354, 1371 (11th Cir.

1994). “The trial court is vested with broad discretion in ruling upon the relevancy

and admissibility of evidence.” United States v. Anderson, 872 F.2d 1508, 1515

(11th Cir. 1989). Moreover, “[a]n evidentiary ruling will stand unless the

complaining party has shown a substantial prejudicial effect.” United States v.

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Breitweiser, 357 F.3d 1249, 1254 (11th Cir. 2004) (internal quotations marks

omitted).

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

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

U.S. Const. amend. VI. However, the Sixth Amendment right to confrontation is

not absolute. United States v. Deeb, 13 F.3d 1532, 1537 (11th Cir. 1994). In other

words, while defendants have the right to cross-examine witnesses effectively,

Pointer v. Texas, 380 U.S. 400, 404, 85 S. Ct. 1065, 1068 (1965), they do not have

the right to cross-examine witnesses “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) (internal quotation marks omitted). Trial judges “retain wide latitude

insofar as the Confrontation Clause is concerned to impose reasonable limits on

such cross-examination based on concerns about, among other things, . . .

prejudice, confusion of the issues, . . . or interrogation that is repetitive or only

marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct.

1431, 1435 (1986).

We hold that the district court did not abuse its discretion in precluding

Lewis from cross-examining government witnesses regarding the factual bases

contained in their plea agreements because (1) their testimony would have been

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misleading and only marginally relevant, and (2) the district court allowed Lewis

to extensively cross-examine those witnesses and admitted the factual bases into

the record. Therefore, based on a careful review of the record and the parties’

briefs, we affirm Lewis’s conviction.

AFFIRMED.

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