USA v. Mark Tomlinson

Filing

Opinion issued by court as to Appellant Mark Tomlinson. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-11867

Date Filed: 01/03/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_________________________
No. 15-11867
_________________________
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.

__________________________
Appeal from the United States District Court
for the Northern District of Georgia
__________________________
(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).
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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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