United States v. Bryant (Jones)

375 F. App'x 95

• Court: Court of Appeals for the Second Circuit
• Decided: April 29, 2010
• Docket: 07-5368-cr(L), 08-5929-cr(CON)
• Status: Unpublished

Opinion

SUMMARY ORDER

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 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.