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

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).

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
No. 06-4266 3

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
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 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 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 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.
6 No. 06-4266

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 anything like that?

A. No, sir, I’m not.

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.
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 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 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 misrepresentation 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 probably 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 discovered 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 testimony 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 discovered 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 Sentencing 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 preponderance 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-quantities 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 purchased 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 identified 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