In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4266
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTHONY WOMACK, also known as
BIGMAN, also known as BIGS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 05 CR 30015—David R. Herndon, Judge.
____________
ARGUED JUNE 7, 2007—DECIDED AUGUST 3, 2007
____________
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 cocaine-distribution 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.
2 No. 06-4266
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
1
A variance occurs when the facts proved at trial differ from
those charged in the indictment. See generally United States
v. Miller, 471 U.S. 130, 105 S. Ct. 1811, 85 L. Ed. 2d 99 (1985).
No. 06-4266 3
the evidence is sufficient to support the jury’s determina-
tion. United States v. Magana, 118 F.3d 1173, 1185 (7th
Cir. 1997).
To overturn a conspiracy conviction because of a vari-
ance, 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 argu-
ably established the existence of multiple conspiracies,
there is no material variance from the indictment charg-
ing 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 con-
spiracy with the intention to further the conspiracy.
The testimony established that Turner, a co-leader with
Carl Parker of the cocaine-distribution ring, supplied
4 No. 06-4266
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 pro-
cedure 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 testi-
No. 06-4266 5
fied 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 conspir-
acy . . . 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 with-
out 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.
6 No. 06-4266
Following his testimony and the conclusion of all evi-
dence 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 dis-
covered 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.
2
On direct examination, Sharp testified as follows:
Q. Getting out of time sequence just a little bit, was there
a time you got yourself off of cocaine?
A. Yes, sir, it is.
Q. And about when would that have been?
A. At the turn of the millennium.
Q. Some time around 2000?
A. Yes.
On cross-examination by defense counsel, Sharp testified as
follows:
Q. Now, you’ve stated that you got clean in about the year
2000, right?
A. Yes, sir, I did.
Q. And you’re not using any other narcotic drugs or any-
thing like that?
A. No, sir, I’m not.
No. 06-4266 7
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 mis-
representation 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 Sharp had used marijuana recently was
cumulative and, accordingly, immaterial. The district
court then stated that there was no evidence that Sharp
had used marijuana on the date that he testified and that
Sharp’s testimony was unaffected by any marijuana use.
The district court also found that Sharp was a credible
witness and that it would not have made a difference to
the jury had they known that Sharp had made a misrepre-
sentation about smoking marijuana or that he had
smoked marijuana because he was otherwise so credible.
To win a new trial based on a claim that a government
witness committed perjury (assuming as in this case that
the government did not knowingly present the false
testimony), Womack “will have to show that the existence
of the perjured testimony (1) came to [his] knowledge only
after trial; (2) could not have been discovered sooner
with due diligence; (3) was material; and (4) would proba-
bly have led to an acquittal had it not been heard by the
jury.” United States v. Mitrione, 357 F.3d 712, 718 (7th
Cir. 2004), rev’d in part on Booker grounds, 543 U.S. 1097,
125 S. Ct. 984, 160 L. Ed. 2d 988 (2005). Womack has
failed to establish the requisite grounds for a new trial.
In Jarrett v. United States, 822 F.2d 1438, 1445 (7th Cir.
1987), a case virtually indistinguishable from the present
one, the government’s witness testified falsely as to her
8 No. 06-4266
use of drugs on the day she testified against the defendant.
After trial and the defendant’s conviction, it was discov-
ered that the witness had snorted THC on the day that she
gave her testimony. This Court affirmed the district court’s
decision denying the defendant’s motion for a new trial,
reasoning that the jury had heard of the witness’s history
of drug use, and the judge and jury had ample opportunity
to assess the witness’s credibility. There also was no
evidence in the record to establish that the witness had
testified falsely regarding the defendant’s participation
in the robbery.
Jarrett is directly applicable here. Given the ambiguities
in the questions posed to Sharp about his drug use, we
agree with the district court’s finding that Womack did not
establish that Sharp had perjured himself. Even assuming
that Sharp gave perjured testimony, however, his drug
use was only relevant as to his ability “to perceive the
underlying events and testify lucidly at trial.” Id. at 1445
(citing United States v. Leonard, 494 F.2d 955, 971 (D.C.
Cir. 1974)). There was no indication that Sharp’s testi-
mony was impaired by his use of marijuana several days
earlier or that it adversely affected his perception of the
events in question. As in Jarrett, Womack’s newly discov-
ered evidence of Sharp’s drug use was nothing more than
“a collateral attempt to impeach” Sharp’s testimony and
was “therefore merely cumulative with respect to the
question of [Sharp’s] credibility concerning [his] use of
drugs.” Id. at 1446. Additionally, while Sharp admitted at
trial that he was a drug courier and that he had used
cocaine for years, the jury apparently found him credible
as a witness. As a result, it is unlikely that the additional
knowledge that Sharp had used marijuana recently would
have influenced the jury to discredit Sharp’s detailed
testimony about the drug conspiracy. Thus, the district
court properly denied Womack’s motion for a new trial.
No. 06-4266 9
III. Womack’s Sentence
Finally, Womack argues that the district court erred in
enhancing his sentence for possession of a firearm and
finding Womack’s relevant conduct to include between five
and fifteen kilograms of cocaine. Our review of the district
court’s factual findings at sentencing is for clear error; and
our review of the application of those facts to the Sentenc-
ing Guidelines is de novo. United States v. Haddad, 462
F.3d 783, 793 (7th Cir. 2006).
At the time of his arrest, Womack informed the arresting
officers that he had a gun in his bedroom closet. At
Womack’s direction, the officers recovered a .40 caliber
semiautomatic pistol, which was on the top shelf of the
closet under some clothing, and $16,830 in cash, bundled
in various denominations, from Womack’s nightstand.
After hearing the testimony at trial that Womack had a
surveillance system at his home, that Sharp delivered
cocaine to Womack at his home, and that Womack sold
cocaine to Neal from his home, the district court inferred
that the $16,830 was drug money and that the gun was
connected to the cocaine trafficking. The district court
therefore applied a two-level enhancement to Womack’s
offense level, pursuant to U.S.S.G. § 2D1.1(b)(1). We find
that the district court did not clearly err in doing so.
“To support an enhancement under § 2D1.1(b)(1), the
government bears the burden of proving by a preponder-
ance of the evidence that a gun was possessed during the
commission of the offense or relevant conduct.” United
States v. Olson, 450 F.3d 655, 684 (7th Cir. 2006) (citing
United States v. Berthiaume, 233 F.3d 1000, 1003-04 (7th
Cir. 2000)). “If the government satisfies this standard, the
burden shifts to the defendant to show that it was clearly
improbable that the gun was connected to the offense.” Id.
The government satisfied its burden with evidence that
Womack had a gun in his possession at his home, where
10 No. 06-4266
he received and sold cocaine, particularly when the gun
was in such close proximity to a significant stash of money
bundled in various denominations. Womack offered no
contrary evidence. Thus, the district court did not err in
adding the two-level enhancement to Womack’s offense
level for possession of a gun under § 2D1.1(b)(1).
The district court also did not err in finding that
Womack’s relevant conduct included between five and
fifteen kilograms of cocaine. The jury rendered a special
verdict finding that Womack conspired to distribute in
excess of five kilograms of cocaine. On Sharp’s testimony
alone, who testified that he made ten or more deliveries of
cocaine to Womack and that he delivered kilogram-quanti-
ties to Womack, the jury and the district court could
reach the reasonable conclusion that Womack’s relevant
conduct included more than five kilograms of cocaine.
Moreover, the jury and the district court heard from
Brian Greer, Anthony Watts, Andre Denton, and Corey
Neal, who testified regarding the drugs that they had
purchased or saw being purchased from Womack. Greer
testified that he had bought four and a half ounces of
cocaine from Womack at Womack’s house in November or
December 2003. In January or February 2004, he pur-
chased an additional nine ounces of cocaine from Womack.
Watts testified that he had purchased four and a half
ounces of cocaine from Womack during the summer of
2003 and, during 2004, a kilogram of cocaine. Denton
testified that he had witnessed Womack selling cocaine
to “Chubbs” and Bacardi Holmes that was packaged in
plastic sandwich bags. Neal testified that he did odd jobs
for Womack and was paid between five and ten times
with a gram or one-sixteenth of an ounce of cocaine. Neal
also purchased a quarter-ounce of cocaine from Womack in
the fall of 2004 and saw Womack selling an ounce of
cocaine each to three individuals. Womack has not identi-
fied anything in the record that would lead to the con-
No. 06-4266 11
clusion that testimony of the government witnesses was
unbelievable. Accordingly, we find that the district court
did not clearly err in finding for purposes of sentencing
that Womack’s relevant conduct included between five
and fifteen kilograms of cocaine.
IV. Conclusion
For the foregoing reasons, Womack’s conviction and
sentence are AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-3-07