UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4124

BILLY HICKS WILLIAMS,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 96-4425

LESTER DEWAYNE LANGLEY, a/k/a

Deadeye,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4572

JOHNNY BRUCE STACY, a/k/a Sadie,

Defendant-Appellant.

Appeals from the United States District Court

for the Western District of North Carolina, at Shelby.

Lacy H. Thornburg, District Judge.

(CR-94-37)

Argued: August 14, 1997

Decided: January 15, 1998
Before RUSSELL and HALL, Circuit Judges, and MICHAEL,

Senior United States District Judge for the

Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Milton Gordon Widenhouse, Jr., Assistant Federal Public

Defender, Raleigh, North Carolina, for Appellant Langley; Stanford

K. Clontz, BALEY, BALEY & CLONTZ, P.A., Asheville, North

Carolina, for Appellant Williams; Charles Robinson Brewer, Asheville, North Carolina, for Appellant Stacy. Deborah Ann Ausburn,

Assistant United States Attorney, Asheville, North Carolina, for

Appellee. ON BRIEF: Mark T. Calloway, United States Attorney,

Asheville, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The Appellants, Billy Hicks Williams, Lester DeWayne Langley

and Johnny Bruce Stacy, appeal their convictions and sentences for

their roles in a conspiracy to transport staggering quantities of marijuana from Texas to North Carolina. The operation started small. The

initial shipments arrived from Rio Grande City, Texas, to Rutherford

County, North Carolina, in door panels of cars, specially outfitted

pick-ups, and gas tanks. Under the leadership of Jerry Dean Early, Sr.

and his nephew, Kyle Beard, the organization grew steadily. After

several years, the marijuana was arriving in North Carolina in

 2
eighteen-wheel tractor-trailers up to 1000 pounds at a time. Not surprisingly, an undertaking of this scale required numerous coconspirators, and the appellants each filled numerous roles in the

operation.

The appellants were indicted on one count of conspiracy to distribute marijuana in violation of 21 U.S.C. § 846 (1994). Williams and

Langley were also indicted on two counts of possession with intent

to distribute marijuana in violation of 21 U.S.C.§ 841(a)(1) (1994).

At a joint trial involving two other co-conspirators, a jury returned a

guilty verdict for all three with regard to the conspiracy charge, but

acquitted both Williams and Langley of the possession count. At sentencing, the district court declined to find that Williams was entitled

to a reduction under U.S. Sentencing Guidelines Manual § 3B1.2

(1995). The district court found that Langley was subject to a threelevel enhancement under USSG § 3B1.1. Appellants appeal their convictions, and Williams and Langley assign error to their sentences.

In challenging their convictions, all three apellants join in the argument that at trial, the Government engendered a"fatal" variance

between the single conspiracy charged in the indictment and the evidence of multiple conspiracies they contend the Government actually

proved. See Kotteakos v. United States, 328 U.S. 750, 756-57 (1946).

Such a variance jeopardizes the safeguards for individualizing each

defendant in relation to the mass. Id. at 773. Our system of criminal

justice does not tolerate mass trial, as "[t]hat way lies the drift toward

totalitarian institutions." Id. It is with this principle in mind that we

consider the appellants' claim that their trial amounted to a mass conviction based on evidence of multiple conspiracies not charged in the

indictment.

In challenging a conspiracy conviction, an appellant"may establish

the existence of a material variance by showing that the indictment

alleged a single conspiracy but that the government's proof at trial

established the existence of multiple, separate conspiracies." United

States v. Kennedy, 32 F.3d 876, 883 (4th Cir. 1994). Whether the evidence shows a single conspiracy or multiple conspiracies is, however,

a question of fact and is properly the province of the jury. See United

States v. Banks, 10 F.3d 1044, 1051 (4th Cir. 1993); United States v.

Urbanik, 801 F.2d 692, 695 (4th Cir. 1986). Where a jury is properly

 3
instructed regarding a single versus multiple conspiracies, a finding

of a single conspiracy must stand unless the evidence, taken in the

light most favorable to the Government, would not allow a reasonable

jury to reach such a conclusion. See United States v. Camps, 32 F.3d

102, 104 (4th Cir. 1994). Moreover, the variance provides grounds for

disturbing the verdict "`only if the appellant shows that the variance

infringed his `substantial rights' and thereby resulted in actual prejudice.'" United States v. Ford, 88 F.3d 1350, 1360 (4th Cir.) (quoting

Kennedy, 32 F.3d at 883), cert. denied, ___ U.S. ___, 65 U.S.L.W.

3369 (U.S. Nov. 18, 1996) (No. 96-6379). "To show actual prejudice,

an appellant must demonstrate that the multiple conspiracy variance

created a spillover effect, such that `the jury was likely to transfer evidence from one conspiracy to a defendant involved in an unrelated

conspiracy.'" Id. Here, the record discloses sufficient evidence for a

reasonable jury to find the appellants guilty of participating in a single

conspiracy.

"A single conspiracy exists where there is `one overall agreement,'

or `one general business venture.' Whether there is a single conspiracy or multiple conspiracies depends upon the overlap of key actors,

methods, and goals." United States v. Leavis , 853 F.2d 215, 218 (4th

Cir. 1988) (citations omitted). In light of the standard we must

employ, the evidence would allow a reasonable jury to conclude that

there was a single conspiracy. That conspiracy existed for the purpose

of bringing marijuana from its source in Texas over the highways in

trucks to be received and distributed by an organization constructed

by Kyle Beard and Jerry Dean Early, Sr. That "general business venture" guided by the two common actors for a single goal is sufficient

to provide a reasonable jury with evidence to conclude that a single

conspiracy existed.

Appellants' attempts to describe multiple conspiracies are unavailing, as they rely on interpretations of the evidence made in something

less than a light most favorable to the guilty verdicts. See Camps, 32

F.3d at 104. In addition, the fact that the jury acquitted the appellants

on the substantive offense does not demonstrate a material variance

or significant jury confusion as the appellants suggest. The verdict

shows that the jury found the evidence of the substantive offense

lacking, but does not prove that the government's evidence pointed

inescapably to the existence of proof of multiple conspiracies with

 4
resultant jury confusion. Finally, even assuming a variance in the

proof, the appellants have failed to identify any substantial "spillover"

of evidence that would provide the basis for the"actual prejudice"

necessary to find these convictions unsound. See Ford, 88 F.3d at

1360-61. Without this "actual prejudice," there is no ground for overturning these convictions.

Appellants also assign error to the district court's decision to

restrict the cross-examination of a government witness regarding the

efforts of co-conspirators to implicate the witness's sister in the conspiracy. Specifically, the district court declined to allow the witness

to respond to a question regarding the co-conspirators' motivation for

implicating the sister. Restrictions on the scope of cross-examination

are within the sound discretion of the trial judge, and trial courts are

generally given wide latitude to set reasonable limits to prevent

harassment, prejudice, or confusion of the issues. See United States

v. Ambers, 85 F.3d 173, 176 (4th Cir. 1996); United States v.

McMillon, 14 F.3d 948, 956 (4th Cir. 1994). An abuse of that discretion occurs when the court fails or refuses to exercise its discretion

or when the court's exercise of discretion is flawed by an erroneous

legal or factual premise. See James v. Jacobson , 6 F.3d 233, 239 (4th

Cir. 1993).

The district court's decision to disallow the answer to defense

counsel's question did not amount to an abuse of discretion. Counsel

had ample opportunity to cross-examine the witness to attack his

credibility. Counsel elicited internally inconsistent testimony and testimony that tended to show that the witness had the opportunity to coordinate his testimony with that of the other Government witnesses in

an attempt to provide testimony more likely to result in leniency from

the Government in sentencing. In addition, co-counsel elicited testimony that the witness had not initially implicated Langley or Williams, but remembered their involvement later. Through the witness's

direct testimony, the jury was aware that the witness was a convicted

felon who received a sentence reduced by five years because of the

Government's intervention on his behalf. Moreover, the witness had

previously responded that he did not know specifically who had

implicated his sister. Therefore, any testimony regarding the motivation of these unknown persons would be speculation of the highest

 5
order. The district court did not abuse its discretion in limiting the

cross-examination of the witness on this front.*

Similarly, the district court did not abuse its discretion in refusing

to allow another witness to answer a question regarding the witness's

reason for warning Langley to stay away from Early. The appellants

suggest only that the answer to the question would have been relevant

to the proceedings. The witness had already testified that he warned

Langley away from Early because of Early's "reputation." The district

court did not abuse its discretion in excluding counsel's attempt to

elaborate for the witness in the form of a question.

Next, Stacy contends that the district court erred in denying his

motion for a new trial based on the "discovery" of a recording of a

conversation involving Stacy, his wife, Beard and his wife. After the

trial, Stacy's wife and friends reviewed more than one hundred hours

of recordings made by the Government during the course of the investigation. Although the Government had made the recordings available

to defense counsel, the Government provided no assistance in locating

the tapes on which Stacy's voice appeared. Stacy's wife and friends

discovered one recording involving Stacy. It is that discovery that

Stacy contends required a new trial.

Stacy argued in his motion that the recording of the discussion warranted a new trial because it was the only time he had been recorded

and the conversation contained no reference to the distribution of

marijuana. The district court denied the motion. A district court

should only grant a motion for a new trial based on newly discovered

evidence if: (1) the evidence is newly discovered; (2) the court may

infer diligence on the part of the movant in discovering the evidence

from the facts alleged; (3) the evidence relied upon is not merely

cumulative or impeaching; (4) the evidence is material to the issues

involved; and (5) the evidence would probably result in acquittal at

a new trial. See United States v. Singh, 54 F.3d 1182, 1190 (4th Cir.

1995). This Court reviews a district court's denial of a motion for new

_________________________________________________________________

*In two footnotes to their brief, the Appellants assign error to two

additional evidentiary rulings on the part of the district court. Because

they have failed to advance a sufficient argument regarding these claims,

they do not provide us with reason to disturb the district court's rulings.

 6
trial based on newly discovered evidence for abuse of discretion. See

id. There is no question that the district court exercised its discretion,

and no evidence that the court applied either erroneous factual or

legal premises. See James, 6 F.3d at 239.

Stacy endeavors to show that the district court abused its discretion

by failing to hold a hearing on the motion for a new trial. However,

even assuming that the existence of a single conversation between

Beard and Stacy during which they did not discuss the enormous marijuana operation is the type of evidence contemplated by Fed. R.

Crim. P. 33, it simply strains credulity to suggest that the introduction

of the tape of this discussion would result in an acquittal at a new

trial. The fact that Stacy could be heard only once on the surveillance

tapes is not likely to lead a jury to ignore the other evidence implicating Stacy and acquit him. The district court did not abuse its discretion in denying the motion for a new trial.

To the extent that Stacy attempts to cast this issue as a violation of

the precepts of Brady v. Maryland, 373 U.S. 83 (1963), it is similarly

unavailing. Under Brady, the "[s]uppression of exculpatory evidence

by the Government that is material to the outcome of a trial" is violative of the Due Process Clause of the Constitution. United States v.

Kelly, 35 F.3d 929, 936 (4th Cir. 1994). The strictures of Brady are

not violated, however, if the information allegedly withheld by the

prosecution was reasonably available to the defendant. As we held in

United States v. Wilson, "where the exculpatory information is not

only available to the defendant but also lies in a source where a reasonable defendant would have looked, a defendant is not entitled to

the benefit of the Brady doctrine." 901 F.2d 378, 381 (4th Cir. 1990).

Here, the information was contained in the Government's open file

and the tapes were readily available to the defense team. It would

have been time-consuming, but not unreasonable, for counsel to scour

the fruits of the Government's surveillance for evidence that either

tended to implicate or exculpate his client. Stacy's wife was able to

discover the conversation, but she was unfortunately motivated to

search the tapes only after her husband was convicted. The fact that

the Government would not undertake this time-consuming task for the

defense does not transform this situation into a Brady violation. The

innocuous nature of the evidence which was not placed before the

jury as a result of the incomplete search of the audio tapes belies any

 7
suggestion that the evidence would have been material to the jury's

verdict with respect to Stacy. The district court committed no error in

denying the motion for new trial.

Both Williams and Langley suggest the district court erred in

reaching the applicable offense level for the purpose of sentencing

them under the Guidelines. Williams attacks the district court's denial

of his motion for a reduction as a minimal or minor participant in the

conspiracy under USSG § 3B1.2. A district court may grant a twolevel reduction to a defendant who "is less culpable than most other

participants, but whose role could not be described as minimal."

USSG § 3B1.2, comment. (n.3). The court's determination is "heavily

dependent upon the facts of the particular case," USSG § 3B1.2, comment. (backg'd), and is reviewed for clear error. See United States v.

Reavis, 48 F.3d 763, 768 (4th Cir. 1995). The defendant has the burden of convincing the court by a preponderance of the evidence that

he is entitled to the adjustment. Id. at 769.

There was no clear error in the district court's finding that Williams failed to meet that burden. "A finding is`clearly erroneous'

when although there is evidence to support it, the reviewing court on

the entire evidence is left with the definite and firm conviction that

a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). The evidence leaves no such conviction in this case. The evidence at trial showed that Williams helped

haul, store, unload and deliver large quantities of marijuana. Williams

also was responsible for moving transfer trucks to new hiding locations. In light of this level of involvement in the conspiracy, the district court's refusal to grant a reduction was not clearly erroneous.

Similarly, Langley challenges the district court's decision to

impose an enhancement for his role as a manager or supervisor in a

conspiracy involving five or more participants. USSG§ 3B1.1(b). As

with the reduction for minimal participation, the district court's findings of fact concerning a § 3B1.1 adjustment must be affirmed unless

they are clearly erroneous. See United States v. Smith, 914 F.2d 565,

569 (4th Cir. 1990). In light of that standard, there was no error in

applying the enhancement. The leaders of the conspiracy both agreed

that Langley oversaw unloading and distribution operations including

responsibility for ascertaining the quantity of marijuana received. In

 8
addition, the evidence showed that on several occasions Langley was

responsible for planning the lodging for truck drivers transporting

marijuana from Texas to North Carolina. The evidence is sufficient

to support the enhancement and is not overridden by Langley's inferences drawn from isolated references to the transcript. See United

States v. Hyppolite, 65 F.3d 1151, 1159 (4th Cir. 1995), cert. denied,

___ U.S. ___, 64 U.S.L.W. 3708 (U.S. Apr. 22, 1996) (No. 95-8395).

Finding no error either at trial or in sentencing, we affirm the convictions and sentences.

AFFIRMED

 9