[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 12-14796

Non-Argument Calendar

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D.C. Docket No. 8:12-cr-00078-SCB-TBM-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

STANLEY COLLINS, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(June 7, 2013)

Before TJOFLAT, PRYOR and FAY, Circuit Judges.

PER CURIAM: 

Stanley Collins appeals his convictions for conspiracy to possess with intent 

to distribute cocaine and attempted possession with intent to distribute cocaine. On 

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appeal, Collins argues that the district court erroneously denied his motion for a 

judgment of acquittal (“JOA”) as to the conspiracy charge; (2) the district court 

erroneously denied his motion for a JOA as to the attempt charge; and (3) the 

district court abused its discretion in denying an evidentiary hearing for Collins to 

investigate whether to seek a new trial based on newly discovered evidence. For 

the reasons set forth below, we affirm Collins’s convictions. 

I.

In 2012, a federal grand jury returned an indictment, charging Collins with 

conspiracy to possess and distribute five kilograms or more of cocaine in violation 

of 21 U.S.C. § 846 (Count 1), and attempt to possess with intent to distribute five 

kilograms or more of cocaine in violation of 26 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), 

and 846 (Count 2). The indictment alleged that the conspiracy occurred from an 

unknown date until approximately January 2012 and that the attempt offense 

occurred on January 6, 2012. 

Collins proceeded to trial, at which the government presented numerous 

witnesses, including Rene Bernal Vergara (“Bernal”), who was the government’s

confidential informant in the case. Bernal testified that, in 2008, he began living 

with an individual named Diego Banos, who worked with someone named 

Betancourt to sell cocaine. Further, Bernal also became involved with Betancourt 

and helped him deliver cocaine to Collins, who was one of Betancourt’s biggest 

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customers. In 2009 and 2010, Collins purchased one to three kilograms of cocaine 

during each transaction with Betancourt, and Collins paid cash for the drugs. Also, 

prior to purchasing the drugs, Collins would cook it into crack cocaine “cookies” 

to test its quality. In total, Bernal participated in delivering approximately 20 

kilograms of cocaine to Collins. 

Eventually, Betancourt traveled to Mexico and, in November 2011, he asked 

Bernal to help him to sell drugs to Collins. During a recorded phone conversation, 

Bernal scheduled a meeting with Collins for December 8, 2011. The purpose of 

the phone call and the meeting was to discuss a deal for the sale of five kilograms 

of cocaine. During the meeting, Bernal and Collins negotiated a sale for a possible 

total of eight kilograms of cocaine, and Collins agreed to pay $29,500 per 

kilogram. Subsequently, during a recorded phone call on January 5, 2012, Bernal 

and Collins scheduled the transaction for the next day. Prior to the meeting, 

Collins indicated that he had obtained the money to pay for five kilograms. On 

January 6, 2012, Bernal met Collins at a restaurant before going to a separate

location where the drugs were purportedly located and, at the meeting, Collins 

showed Bernal a bag with $150,000 in cash. Bernal then told Collins to follow 

him and an undercover officer to a house where they would complete the deal but, 

in reality, there was no house and Bernal did not intend to deliver any cocaine to 

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Collins. While Collins was following Bernal to the house, the police initiated a 

traffic stop of Collins, who attempted to flee from officers in his car. 

Banos, who had also helped Betancourt deliver cocaine to Collins in 2009 

and 2010, testified similarly to Bernal regarding the drug transactions between 

Collins and Betancourt. Additionally, Dan Gordon, a special agent with the Drug 

Enforcement Administration, testified regarding his role in the investigation of 

Collins and the controlled drug transaction that he arranged between Bernal and 

Collins in January 2012. Gordon testified that, after Collins was arrested, a search 

of his car revealed approximately $150,000 in cash. Although Collins admitted 

that he owned the money, he asserted that he planned to use the money to purchase 

a foreclosed property. However, Collins could not provide further details, such as 

a description or location of the property. Finally, several law enforcement officers 

testified regarding the shooting incident that occurred at Collins’s home on 

September 11, 2010. When officers responded to the crime scene, they discovered 

cocaine and other items that are commonly used in drug sales, including “sandwich 

baggies,” a bottle of inositol, a razor blade, and a digital scale. Moreover, officers 

found “dime baggies” of cocaine that were “individually packaged for sale.”

After the conclusion of the government’s case, Collins moved for a JOA as 

to both counts of the indictment under Fed. R. Crim. P. 29. As to the conspiracy 

charge, he argued that the government’s only evidence was the testimony of Bernal 

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and Banos, and their testimony was not credible because they both made deals with 

the government in exchange for reduced sentences. As to the attempt charge, 

Collins argued that he did not commit an attempt under the applicable law. 

Specifically, the evidence did not show that Collins “got to the point of no return,” 

as he did nothing other than mere planning and preparation. In fact, the officers 

arrested Collins before he exchanged money with the informant and before they 

were at a location with any real or fake cocaine. 

The court denied Collins’s Rule 29 motion, finding that there was more than

ample evidence that, if believed by the jury, would support a guilty verdict as to 

the conspiracy charge. Further, substantial evidence also supported a conviction as 

to the attempt charge. Ultimately, the jury found Collins guilty on both counts.

Subsequently, Collins filed a motion “requesting a hearing regarding newly 

discovered evidence.” Specifically, the motion indicated that Collins’s counsel 

had been prohibited from interviewing or questioning a potential witness, Rolando 

Castaneda, by Castaneda’s counsel, but his potential testimony was “described in 

detail” in an unsolicited letter that Castaneda had sent to Collins’s counsel. Collins 

alleged that, during his confinement, he had been incarcerated with Castaneda, 

who was roommates with another inmate named Ruben Romero Suarez. Suarez 

was on the government’s witness list in Collins’s case, but he was not called as a 

witness at trial. Castaneda’s letter indicated that, at some point during their 

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incarceration, Suarez informed him that Banos planned to testify against Collins in 

an attempt to get “time off from prison.” Further, Suarez told Castaneda that he 

would testify against Collins in exchange for a reduced sentence, “even though he 

knew [Banos] was lying.” In his motion, Collins asserted that it appeared that 

Castaneda would be willing to testify that Suarez and Banos planned to offer 

perjured testimony against Collins, and that Banos actually did so in exchange for 

a lower sentence. Given this new evidence and the significance of Banos’s 

testimony, Collins requested that the court hold an evidentiary hearing, so that 

Castaneda could testify and Collins could consider whether to file a motion for a 

new trial. 

The district court denied Collins’s motion for a hearing. The court found it 

significant that Collins had not filed a motion for a new trial under Fed. R. Crim. P. 

33(b)(1). Instead, Collins asserted that he had been prohibited from interviewing 

or questioning Castaneda, and he requested a hearing at which Castaneda would 

testify, so that Collins could then consider whether to file a motion for a new trial. 

The court found that it was apparent that further investigation was necessary for 

Collins to determine whether he should seek a new trial, and such investigation 

was “not within the purview of the [c]ourt’s function.” Subsequently, the court 

imposed concurrent life sentences as to each count. 

II.

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We review de novo a district court’s denial of a motion for a JOA on 

sufficiency of the evidence grounds. United States v. Yates, 438 F.3d 1307, 1311-

12 (11th Cir.2006) (en banc). In considering the sufficiency of the evidence, we 

view the evidence in the light most favorable to the government, and draw all 

reasonable factual inferences in favor of the jury’s verdict. United States v. 

Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009). The evidence is sufficient to 

support a conviction if “a reasonable trier of fact could find that the evidence 

established guilt beyond a reasonable doubt.” Id. at 1284-85. Whether the 

evidence is direct or circumstantial, we will accept all reasonable inferences that 

tend to support the government’s case. United States v. Williams, 390 F.3d 1319, 

1324 (11th Cir. 2004). The jury is free to choose among reasonable constructions 

of the evidence, and we must accept a jury’s determinations of witness credibility. 

Id. at 1323.

When a party fails to raise a specific argument before the district court, we 

review only for plain error. United States v. Olano, 507 U.S. 725, 731-32, 113 S.

Ct. 1770, 1776, 123 L. Ed. 2d 508 (1993). Under plain error review, the appellant 

must show (1) an error that (2) is plain, (3) affects substantial rights, and (4) 

seriously affects the fairness, integrity, or public reputation of judicial proceedings. 

Id. at 732, 113 S. Ct. at 1776.

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“To sustain a conviction for conspiracy to distribute narcotics the 

government must prove that 1) an agreement existed between two or more people 

to distribute the drugs; 2) that the defendant at issue knew of the conspiratorial 

goal; and 3) that he knowingly joined or participated in the illegal venture.” 

United States v. Brown, 587 F.3d 1082, 1089 (11th Cir. 2009). Even in cases 

where individual dealers compete for drug sales, a conspiracy exists where “their 

combined efforts produced a haven for the illegal distribution of drugs.” Id. In 

this Circuit, it is well established that, “where there are repeated transactions 

buying and selling large quantities of illegal drugs, that is sufficient evidence that 

the participants were involved in a conspiracy to distribute those drugs in the 

market.” Id. In order to have an “agreement” to support a conspiracy conviction, 

the government must prove the existence of “an agreement with the same joint 

criminal objective.” United States v. Dekle, 165 F.3d 826, 829 (11th Cir. 1999). 

While a simple buy and sell transaction is not sufficient proof of a conspiracy, a 

continuing relationship between two persons that results in the repeated transfer of 

illegal drugs to the purchaser is sufficient to support an inference that the buyer 

and seller were engaged in a conspiracy. United States v. Thompson, 422 F.3d 

1285, 1292 (11th Cir. 2005). “An illegal agreement may be inferred from the 

conspirators’ conduct and other circumstantial evidence.” United States v. 

Baptista-Rodriguez, 17 F.3d 1354, 1374 (11th Cir. 1994). 

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As an initial matter, although Collins moved for a JOA as to the conspiracy 

count, he raises a new argument for the first time on appeal. Specifically, before 

the district court, Collins argued that the only testimony supporting the conspiracy 

charge was offered by witnesses who were not credible. However, on appeal, he 

argues for the first time that evidence did not establish that he shared a joint 

criminal objective with any individual co-conspirator, and it established only that 

he had a buyer-seller relationship with Betancourt. Thus, we review his argument 

only for plain error. See Olano, 507 U.S. at 731-32, 113 S. Ct. at 1776.

Regardless, under either standard of review, the district court did not err in 

denying Collins’s motion for a JOA as to the conspiracy count. Specifically, 

evidence showed that, between 2009 and 2011, Collins and Betancourt engaged in 

an ongoing relationship in which Collins repeatedly purchased kilogram quantities 

of cocaine from Betancourt. See Thompson, 422 F.3d at 1292. In total, Collins 

purchased at least 20 kilograms of cocaine from Betancourt, and Collins paid cash 

for 1 to 3 kilograms of cocaine during each transaction. Additionally, before 

purchasing the cocaine, Collins would cook some of it to test its quality. Although 

Collins had an objective to purchase cocaine and Betancourt had an objective to 

sell cocaine, evidence of their ongoing relationship of buying and selling large 

quantities of cocaine was sufficient for the jury to infer that they shared a joint 

criminal objective to distribute cocaine. See id.; Brown, 587 F.3d at 1089. 

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Moreover, additional circumstantial evidence supported a reasonable inference that 

Collins purchased the cocaine for resale. See Williams, 390 F.3d at 1324. 

Specifically, a search of Collins’s home in September 2010 revealed several items 

that are commonly used in drug sales, including sandwich baggies, a razor blade, 

inositol, a digital scale, and cocaine that was “individually packaged for sale.” 

Based on this evidence, a rational jury could have found beyond a reasonable 

doubt that Collins conspired with Betancourt to possess and illegally distribute at 

least five kilograms of cocaine. See Jiminez, 564 F.3d at 1284-85.

In sum, viewing the evidence in the light most favorable to the government, 

with all inferences and credibility choices made in its favor, the district court did 

not err in concluding that sufficient evidence supported a guilty verdict as to the 

conspiracy count. See id. at 1284.

III.

To sustain a conviction for attempted possession with intent to distribute 

cocaine, the government must prove beyond a reasonable doubt that the defendant 

(1) acted with the kind of culpability required to possess cocaine knowingly and 

willfully and with the intent to distribute it; and (2) engaged in conduct which 

constitutes a substantial step toward the commission of the crime under 

circumstances strongly corroborative of his criminal intent. United States v. 

McDowell, 250 F.3d 1354, 1365 (11th Cir. 2001). Further, “a substantial step must 

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be more than remote preparation, and must be conduct strongly corroborative of 

the firmness of the defendant’s criminal intent.” United States v. Ballinger, 395 

F.3d 1218, 1238 n.8 (11th Cir. 2005).

The district court did not err in denying Collins’s motion for a JOA as to the 

attempt charge, as evidence was sufficient to show that he took several substantial 

steps towards the commission of the underlying drug offense. See McDowell, 250 

F.3d at 1365. Specifically, evidence showed that, in December 2011, Collins met 

with Bernal to discuss a transaction in which Collins would purchase between five 

to eight kilograms of cocaine from Bernal and, during the meeting, Bernal agreed 

to a price of $29,500 per kilogram. On January 6, 2012, during a recorded phone 

call, Collins told Bernal that he had obtained enough cash to pay for five kilograms 

of cocaine, which, at the agreed-upon price would have been $147,500. The next 

day, Collins drove to a restaurant to meet Bernal, he showed Bernal $150,000 in 

cash, and he agreed to follow Bernal to a house, where the drugs were purportedly 

located. This evidence showed that Collins’s conduct went beyond mere planning 

and preparation to commit the underlying offense, as he took several substantial 

steps towards completing the drug transaction. Ballinger, 395 F.3d at 1238 n.8. 

Although the police arrested Collins before he purchased any real or fake drugs, he 

acted with the kind of culpability that showed his intent to possess and distribute 

cocaine. See McDowell, 250 F.3d at 1365. 

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Further, other evidence supported a jury verdict that Collins intended to 

participate in an illegal drug transaction. Specifically, after the police initiated the 

traffic stop, Collins fled from police at a high rate of speed before he was 

apprehended. Additionally, in a post-arrest statement, Collins failed to provide an 

adequate explanation for why he brought $150,000 in cash to meet Bernal. 

Although he stated that he intended to use the money to purchase a foreclosed 

property, he could not identify the property or provide any details about the alleged 

real estate transaction. Thus, viewing the evidence in the light most favorable to 

the government, the district court did not err in concluding that a rational juror 

could have found beyond a reasonable doubt that Collins attempted to possess and 

distribute five kilograms or more of cocaine. See Jiminez, 564 F.3d at 1285.

IV.

We review a denial of a motion for new trial for abuse of discretion. United 

States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (en banc). Likewise, we 

review for abuse of discretion a district court’s decision concerning whether to 

hold an evidentiary hearing. United States v. Massey, 89 F.3d 1433, 1443 (11th 

Cir.1996). Fed. R. Crim. P. 33 provides that “the court may vacate any judgment 

and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). 

In United States v. Jernigan, 341 F.3d 1273 (11th Cir. 2003), we held that, to 

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succeed on a Rule 33 motion based on newly discovered evidence, the defendant 

must establish that:

(1) the evidence was discovered after trial, (2) the failure of the 

defendant to discover the evidence was not due to a lack of due 

diligence, (3) the evidence is not merely cumulative or impeaching, 

(4) the evidence is material to issues before the court, and (5) the 

evidence is such that a new trial would probably produce a different 

result.

Jernigan,341 F.3d at 1287.

When the resolution of a motion for a new trial is clear, the district court is 

not required to hold an evidentiary hearing. Id. at 1289. “Where evidentiary 

hearings are ordered, it is because of certain unique situations typically involving 

allegations of jury tampering, prosecutorial misconduct, or third party confession.” 

United States v. Hamilton, 559 F.2d 1370, 1373 (5th Cir. 1977). A district court 

should grant an evidentiary hearing on a motion for new trial where the defendant 

offers “sufficient evidence that [his] allegations and reports could materially have 

affected his trial.” United States v. Fernandez, 136 F.3d 1434, 1438-39 (11th Cir. 

1998). In United States v. Espinosa-Hernandez, 918 F.2d 911, 913-14 (11th Cir. 

1990), a case on which Collins relies on appeal, we ordered an evidentiary hearing 

on a defendant’s motion for a new trial, where new evidence showed that a 

narcotics agent who testified at the defendant’s trial had been indicted for “serious 

and disturbing breaches of the public trust”—including lying about his history of 

using and selling drugs on his federal job application, distributing cocaine, and 

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allegedly helping an informant escape from custody. Specifically, we concluded 

that a hearing was warranted because discovery might show “that [the agent] 

committed perjury in [the defendant’s] trial or a related proceeding” and, if so, a 

new trial would be necessary to “remove the taint” from Espinosa’s conviction. Id.

Here, Collins cannot show that the district court abused its discretion in 

denying an evidentiary hearing because he never filed a motion for a new trial 

based on newly discovered evidence. See Massey, 89 F.3d at 1443. Moreover, 

Collins does not provide, and research does not reveal, any binding authority 

suggesting that he was entitled to a court-ordered evidentiary hearing to investigate 

whether any potential evidence would support such a motion. Collins’s reliance on 

Espinosa-Hernandez is misplaced because, in that case, the defendant had moved 

for a new trial based on new evidence that a government agent, who testified 

against the defendant, had been indicted for serious offenses involving dishonesty. 

See Espinosa-Hernandez, 918 F.2d at 913-14. In contrast, Collins has not moved 

for a new trial based on newly discovered evidence because he appears to concede 

that the allegations in Castaneda’s letter, standing alone, were insufficient to 

warrant such a motion. Although Collins now asserts that he should also be 

permitted to question Suarez at an evidentiary hearing, he provides no explanation 

for why he has been unable to question Suarez regarding whether the claims about 

Suarez in Castaneda’s letter are true. 

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Regardless, even if Collins had filed a Rule 33 motion, he was not entitled to 

a hearing because his alleged new evidence was merely impeaching and it would 

have been unlikely to produce a different result at trial. See Jernigan,341 F.3d at 

1287. Castaneda’s letter suggests that he might testify that he heard from Suarez, a 

non-testifying inmate, that Banos, another inmate, testified falsely. However, even 

assuming that such testimony would have been admissible for impeachment, 

Banos’s testimony was corroborated by other evidence. Specifically, Bernal and 

Banos both testified regarding the drug transactions between Collins and

Betancourt, and Collins has not alleged that Bernal testified falsely. Notably, both 

Bernal and Banos testified that they cooperated with the government in an attempt 

to receive a reduced sentence or other benefits, and the jury could have rejected 

their testimony on that basis. For the foregoing reasons, we affirm Collins’s 

convictions

AFFIRMED.

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