United States v. Bryant (Jones)

07-5368-cr(L); 08-5929-cr(CON)
USA v. Bryant (Jones)
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATIO N TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS CO URT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 29th day
of April, two thousand ten.
Present:
PIERRE N. LEVAL,
ROBERT A. KATZMANN,
BARRINGTON D. PARKER,
Circuit Judges.
________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. Nos. 07-5368-cr(L); 08-5929-cr(CON)
KENWAYNE JONES,
Defendant-Appellant.
________________________________________________
For Defendant-Appellant: BETH M. FARBER, New York, NY
For Appellee: JAMES P. LOONAN (David C. James, on the brief), Assistant United
States Attorneys for Benton J. Campbell, United States Attorney
for the Eastern District of New York, Brooklyn, NY
________________________________________________
Appeal from the United States District Court for the Eastern District of New York
(Trager, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court be and hereby is AFFIRMED.
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
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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.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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