U.S. v. Collins, 91-1484

• Decision Date: 16 July 1992
• Docket Number: No. 91-1484,91-1484
• Citation: 966 F.2d 1214
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gwain COLLINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1214

966 F.2d 1214

UNITED STATES of America, Plaintiff-Appellee, v. Gwain COLLINS, Defendant-Appellant.

No. 91-1484.

United States Court of Appeals Seventh Circuit.

Argued Feb. 19, 1992.

Decided July 16, 1992.

Mel S. Johnson, Chris R. Larsen (argued), Asst. U.S. Attys., Office of U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Anita Rivkin-Carothers, Chicago, Ill. (argued), for defendant-appellant.

Before EASTERBROOK and RIPPLE, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.

HARLINGTON WOOD, Jr., Senior Circuit Judge.

Gwain Collins was tried with Marvin Smith for conspiring to distribute in excess of five kilograms of cocaine in violation of 21 U.S.C. § 846. The jury convicted Collins and the district judge sentenced Collins to fifteen years imprisonment to be followed by a five-year period of supervised release.

Collins argues that this court should reverse his conviction for several reasons. First, Collins argues that there is insufficient evidence that Collins joined a conspiracy. Second, Collins argues that there is a prejudicial variance between the indictment, which alleged one conspiracy, and the evidence at trial, which evidenced multiple conspiracies. Third, Collins argues that the district court's improper jury instructions constituted plain error. And, finally, Collins argues that the prosecutor's misstatement of the law in closing argument substantially prejudiced his right to a fair trial. For the reasons stated below, we affirm Collins's conviction.

I.

The evidence at trial indicates that during the summer of 1987, Darryl Carter and Todd Thompson decided to take a trip from Milwaukee, Wisconsin to Los Angeles, California to meet with a man named Kevin Diggs. Carter lived in Los Angeles between 1972 and 1987, and in 1986 he began purchasing cocaine from Diggs for his personal use. Carter moved to Milwaukee, Wisconsin in the spring of 1987.

During the summer of 1987, Thompson needed a cocaine source, so Carter arranged for Thompson to meet with Diggs in Los Angeles. During this trip, Thompson purchased one-half kilogram of cocaine from Diggs for resale in Milwaukee. In the months following this initial meeting, Carter and Thompson made between four to eight additional trips to Los Angeles so that Thompson could purchase large amounts of cocaine. Carter testified that on each of these subsequent trips the amount of cocaine purchased escalated. And, at least one of these purchases was for as much as two kilograms of cocaine. Carter testified that on these trips the meetings and talks about the drug transactions took place at Diggs's house. Carter further testified that he saw Collins at Diggs's house on about one-half of these trips. During one of the trips to Los Angeles, Carter asked Diggs if he and Thompson could get "fronted" some cocaine, Diggs told Carter that he had some cocaine in Cleveland, Ohio that he would arrange for them to pick up. Two weeks later, Carter, Thompson, and Vincent Wynn, an associate of Carter, traveled from Los Angeles to Cleveland where a man known as "June" fronted them three kilograms of cocaine.

About one week after June fronted these three kilograms to Thompson, Diggs traveled to Milwaukee to collect his money for this delivery as well as other debts Thompson owed him. Collins accompanied Diggs on this trip. After Diggs and Collins arrived in Milwaukee, they met with Carter, Thompson, and Wynn at a Milwaukee nightclub. While at the nightclub, Wynn informed the group that June was in town. According to Wynn's testimony, both Diggs and Collins became visibly angry upon hearing that June was in town, and, in fact, Wynn testified that both Diggs and Collins said they were angered. According to Carter's testimony, Diggs was angry because he thought Thompson might be going behind his back and dealing directly with June.

Later that evening, Diggs and Collins met with Carter and Wynn at the Hyatt Regency Hotel in Milwaukee to discuss Thompson's debt to Diggs. These discussions culminated in Diggs placing a call to "uncle," codefendant Marvin Smith, in Detroit, Michigan and asking him to help collect the Thompson debt. The next day Smith arrived in Milwaukee. Smith and Diggs later visited Thompson and advised him that he should pay Diggs his money. Apparently, soon afterwards, Carter delivered approximately $80,000 in cash in a shoe box to Diggs on behalf of Thompson. Later in the fall of 1987, Carter flew to Los Angeles to bring Diggs another $80,000 in cash from Thompson. This brought a close to the relationship between Thompson and Diggs.

Wynn testified that Diggs had informed him that he could supply him cocaine for $15,000 per kilogram. And, in late 1987, Carter and Wynn took a trip to Los Angeles to discuss with Diggs the possibility of future cocaine transactions. About two weeks later Carter and Wynn again traveled to Los Angeles and bought one kilogram of cocaine from Diggs for $15,000.

Furthermore, sometime after Diggs told Wynn he could supply him cocaine at $15,000 per kilogram, Wynn testified that he told Jerome Mann, a man involved in the Milwaukee, Wisconsin drug trade, that he could get cocaine at such a price. This was a cheaper price than Mann could get from his Chicago, Illinois supplier. Wynn's testimony indicates that Mann expressed an interest in making large purchases at such a price and that Diggs likewise expressed an interest in large sales at such a price.

In order to help out with one of the deals in which Wynn acted as the middleman between Diggs and Mann, Carter travelled to Los Angeles and picked up a Chevy Blazer at Diggs's house with two suitcases loaded on top. Carter testified that in the presence of Collins, Diggs told Carter to call him at a certain telephone number when he got to Chicago. When Carter called Diggs, Diggs told him to meet him at "auntie's" house on the south side of Chicago. Diggs and Collins were both at auntie's house when Carter arrived. Carter apparently dropped off the suitcase and then checked in at the Westin Hotel in This was not the only transaction where Wynn bought cocaine from Diggs to sell to Mann. Rather, Wynn, Carter, Heard, and Berry each described in detail several other transactions where Wynn brokered large cocaine deals between Diggs and Mann. For example, Wynn testified about one transaction where Mann indicated an interest in 30 kilograms of cocaine. Wynn contacted and made arrangements for a purchase of this amount of cocaine. Diggs said he could have the cocaine in Chicago in a week. When Diggs got to Chicago he called Wynn, and, according to Wynn, Diggs told him to get the money together and come to Chicago. Wynn and Mann's people (Barry and "Willy") brought the money down to Chicago. Wynn testified that he and Heard travelled together to the Hyatt Regency in Chicago. After arriving at the Chicago Hyatt, Heard, Wynn, Craig, and Willy counted the money, and then Wynn went to another room in the Hyatt to meet with Diggs and Collins. Wynn testified that when he arrived he gave the money to Diggs, and after receiving the money Collins and Diggs counted the money in Wynn's presence. According to Wynn, after Collins and Diggs counted the money, Wynn testified that Diggs said that the cocaine was at his auntie's house on the south side of Chicago. At that point Wynn, Barry, and Willie each followed Diggs and Collins to a restaurant around the corner from auntie's house. Then Diggs and Collins drove a black Blazer to auntie's house to pick up the cocaine. Wynn, Barry, Willie, and "June Bug" waited in the parking lot. Wynn testified that about fifteen minutes later someone else drove this same black Blazer back to this restaurant, handed Wynn a suitcase with the cocaine, and Wynn gave this suitcase to Barry and Willie who put it in their trunk and drove it back to Milwaukee.

                Chicago.   Later that same day, Wynn, Anthony Heard (Wynn's friend) and Craig Berry (one of Mann's associates) also arrived at the Westin with a suitcase containing $250,000 in cash.   Later that day, Wynn took the money to Diggs's room where both Diggs and Collins were present.   Heard went with Wynn to Diggs's room, but when they got to Diggs's room with the suitcase, Wynn asked Heard to go to the bedroom.   At one point Heard testified that he opened the bedroom door for a period of five seconds.   At that point Heard testified that he saw Diggs and Wynn counting money.   Heard further indicated in this testimony that "Papa," defendant Collins, was there with Diggs and Wynn, but because Collins had his back to Heard, Heard could not see exactly what Collins was doing
                

Other witnesses also testified to this and other transactions in early 1988 that followed a similar sequence of events, including one other transaction where Wynn testified that he counted money with Collins, and where Wynn went with Collins and Diggs to auntie's house to get the suitcase filled with cocaine. Moreover, various witnesses also described a cocaine deal that transpired in Detroit, Michigan. Hotel records show that this drug transaction occurred between March 11, 1988, and March 15, 1988. Wynn, Heard, and Carter all testified that they traveled from Milwaukee to Chicago in two vehicles. When they arrived in Chicago they met with Diggs and Collins as usual, but later that night Diggs informed them that they would all have to travel to Detroit to consummate the transaction. According to Wynn, this transaction was for 37 kilograms of cocaine, 30 of which were to go to Mann with the remaining 7 going to Wynn.

Subsequently, all the participants drove from Chicago to Detroit in two separate vehicles where they met codefendant Smith, "uncle." The participants then checked into a Days Inn Hotel in Detroit. Carter stated that later on that day Carter's cousin, Carter, Heard, Wynn, Diggs, and Collins went to a restaurant where they met up with Smith. There is some discrepancy regarding the location of this restaurant; Carter...