United States v. Womack

• Decision Date: 03 August 2007
• Docket Number: No. 06-4266.,06-4266.
• Citation: 496 F.3d 791
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony WOMACK, also known as Bigman, also known as Bigs, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

496 F.3d 791

UNITED STATES of America, Plaintiff-Appellee, v. Anthony WOMACK, also known as Bigman, also known as Bigs, Defendant-Appellant.

No. 06-4266.

United States Court of Appeals, Seventh Circuit.

Argued June 7, 2007.

Decided August 3, 2007.

Ranley R. Killian, Jr., Office of the United States Attorney, Criminal Division, Fairview Heights, IL, Michael C. Carr (argued), Office of the U.S. Attorney, Benton, IL, for Plaintiff-Appellee.

Irl B. Baris (argued), Baris Law Firm, St. Louis, MO, for Defendant-Appellant.

Before BAUER, ROVNER, and SYKES, Circuit Judges.

BAUER, Circuit Judge.

Anthony Womack was arrested when he was indicted, with several other individuals, for conspiracy to possess with intent to distribute and distribution of cocaine in excess of five kilograms, in violation of 21 U.S.C. §§ 841 and 846. At his trial, the jury heard testimony from several witnesses about Womack's role in a cocainedistribution operation led by Carl Parker and Roosevelt Turner in the St. Louis metropolitan area; Turner supplied Womack with cocaine, which Womack then sold to others. The jury also heard from witnesses regarding their cocaine purchases from Womack and their knowledge of Womack's other drug deals.

The jury convicted Womack of both conspiracy to possess with intent to distribute and distribution of cocaine, finding by special verdict that the amount of cocaine was in excess of five kilograms. The district court sentenced Womack to 151 months' imprisonment.

Womack appeals both his conviction and sentence, raising three issues. First, he challenges the sufficiency of the evidence, arguing that the evidence did not show a single conspiracy, as alleged in the indictment. Second, he argues that the district court abused its discretion in denying his motion for a new trial on the ground that the government's star witness, Joe Sharp, committed perjury. Third, Womack contends that the district court erred in imposing a sentence adding a firearm enhancement and finding that the amount of cocaine attributable to Womack was in excess of five kilograms. We affirm.

I. Conspiracy Variance

Womack first argues that the indictment charged a single, overarching conspiracy but the evidence failed to establish this single conspiracy. Instead, he argues, if the government proved anything, it proved the existence of multiple conspiracies, creating a variance.¹ A conspiracy variance claim is a challenge to the sufficiency of the evidence, which we review under a highly deferential standard. See United States v. Nitch, 477 F.3d 933, 936 (7th Cir.2007) (citing United States v. Townsend, 924 F.2d 1385, 1389 (7th Cir. 1991)); United States v. Williams, 272 F.3d 845, 862 (7th Cir.2001). Viewing the evidence in the light most favorable to the government, we ask whether the evidence is sufficient to support the jury's determination. United States v. Magana, 118 F.3d 1173, 1185 (7th Cir.1997).

To overturn a conspiracy conviction because of a variance, the defendant must show that there was a variance between what was charged in the indictment and the evidence at trial and that he was prejudiced by this variance. Williams, 272 F.3d at 862-63. Whether a single conspiracy exists is a question of fact for the jury. Townsend, 924 F.2d at 1389. "Even if the evidence arguably established the existence of multiple conspiracies, there is no material variance from the indictment charging a single conspiracy if a reasonable trier of fact could have found beyond a reasonable doubt the existence of the single conspiracy charged in the indictment." Williams, 272 F.3d at 862 (citing Townsend, 924 F.2d at 1389; United States v. McAllister, 29 F.3d 1180, 1186 (7th Cir.1994)).

Because Womack failed to ask for a jury instruction on multiple conspiracies or otherwise bring this challenge to the attention of the district court, we review that portion of Womack's conspiracy variance claim for plain error only. See United States v. Briscoe, 896 F.2d 1476, 1513 (7th Cir.1990) (applying plain error standard of review because defendants failed to propose multiple conspiracy jury instruction). To establish plain error, Womack must prove (1) that an error occurred; (2) that the error was plain; and (3) that the error affected his substantial rights. See Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).

At trial, the government had the burden of proving the existence of a single conspiracy to distribute cocaine and that Womack knowingly became a member of the conspiracy with the intention to further the conspiracy.

The testimony established that Turner, a co-leader with Carl Parker of the cocaine-distribution ring, supplied Womack and Kareem Hamilton with multiple kilograms of cocaine, which Womack and Hamilton then sold to others. Joe Sharp, who pleaded guilty to conspiring with Womack and others, testified that he acted as the courier, delivering cocaine concealed in dog food bags on at least ten occasions from Turner to Womack between May 2004 and January 2005. He further testified that he delivered kilogram-quantities to Womack. Sharp received $50 from Womack for each delivery. Sharp also testified that, at Turner's direction, he delivered two kilograms of cocaine from Womack to Hamilton. Consistent with Sharp's testimony, Hamilton testified that this delivery occurred around Christmas of 2004. Sharp also identified the speakers in various taped telephone conversations. In one conversation, Turner directed Womack on how to package the cocaine and then told Sharp to pick the cocaine up from Womack and deliver it to Hamilton. In a different conversation between Womack and Turner, Sharp's voice can be heard informing Womack that he, Womack, did not have to report to Turner and that he, Sharp, would contact Turner to report that he had picked up the packages for delivery. According to Sharp, it was standard procedure for him to call Turner to let him know that the cocaine had been picked up or delivered.

Anthony Watts, who pleaded guilty to conspiring with Womack and others, testified that he purchased four and a half ounces of cocaine from Womack in the summer of 2003. The cocaine that he had purchased was in chunks, indicating that it had been broken directly from a kilogram of cocaine, and was supplied to Womack by Turner. In 2004, Watts paid Womack $25,000 for a kilogram of cocaine. Later, Watts tried to buy another kilogram of cocaine from Womack but was unsuccessful; Womack could not reach Turner to get the cocaine.

Andre Denton also testified that Womack had told him that Turner was his source for cocaine. Corey Neal testified that Joe Sharp was a "runner" for Turner and that Sharp would often show up at Womack's home with a sack in his hand and then leave. Taken together, this testimony established the existence of a conspiracy among Turner, Womack, Hamilton, Sharp, and Watts to possess with intent to distribute cocaine in excess of five kilograms.

Womack argues that evidence also showed that Turner, Sharp, and Hamilton could have been involved in their own separate conspiracy and that Womack had separate dealings with Watts, Brian Greer, Denton, Anthony Stokes, and Neal. He argues further that there was no evidence that any of the cocaine delivered by Sharp ended up in the hands of Watts, Greer, Denton, Stokes, or Neal and that there was no evidence to tie all of these people into one solitary conspiracy. However, "[t]o join a conspiracy . . . is to join an agreement, rather than a group." Townsend, 924 F.2d at 1390. An on-going conspiracy exists even when individuals are coming and going without knowing the extent of the involvement of the other members or even knowing one another. The government was not required to show that Womack conspired with all of the previously indicted co-conspirators, that he was acquainted with Hamilton, Greer, Denton, Stokes, or Neal, or that they were acquainted with each other. The government needed only to prove that Womack joined the agreement alleged. Id. at 1389. On the evidence presented at trial, a reasonable jury could have found beyond a reasonable doubt that there was a single conspiracy to possess with intent to distribute cocaine in excess of five kilograms, in which Womack participated knowingly.

II. Motion for a New Trial

Womack next argues that the district court abused its discretion in denying his motion for a new trial based on newly discovered evidence: Joe Sharp's perjured testimony.

Following his testimony and the conclusion of all evidence on April 4, 2006, Sharp was required to submit a urine sample for a drug test by the probation office. The test results showed a presumptive positive for marijuana. Sharp admitted to smoking marijuana on March 25, 2006 and signed a written statement to that effect. Neither the government nor Womack learned of Sharp's positive drug test until after the jury rendered its verdict. Eventually, Womack moved for a new trial based on newly discovered evidence, arguing that Sharp had perjured himself when testifying at Womack's trial by stating that he was not using drugs.² After a hearing, the district court denied Womack's motion for a new trial, finding that Womack had not established that a misrepresentation had occurred and that evidence that Sharp had used marijuana recently was cumulative and immaterial.

More specifically, the district court explained that the question posed to Sharp about "not using any other narcotic drugs or anything like that" was ambiguous as to the time frame and that Sharp could have interpreted the question to mean that very day. The district court also explained that Sharp may not have considered marijuana to be a "narcotic drug" since his prior addiction was to cocaine. Thus, Womack had failed to show that a misrepresentation had occurred. The district court reasoned further that since the jury also had heard that Sharp had been addicted to cocaine and that he had used drugs, evidence that...