United States v. Bobb ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
12-28-2006
USA v. Bobb
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5121
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 05-5121
_____________
UNITED STATES OF AMERICA
v.
SHERMAN BOBB,
Appellant
_________________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 03-0333-02)
District Judge: Honorable James M. Munley
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Submitted Under Third Circuit LAR 34.1(a)
November 28, 2006
Before: RENDELL and AMBRO, Circuit Judges
PRATTER,* District Judge
(Filed: December 28, 2006 )
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OPINION OF THE COURT
__________________
* Honorable Gene E.K. Pratter, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
PRATTER, District Judge
The federal government prosecuted Sherman Bobb, contending that he was a
kingpin in a drug trafficking operation in Luzerne County, Pennsylvania. Following a
seven-day trial, the jury convicted him of (1) conspiracy to distribute in excess of
5 kilograms of cocaine, in excess of 1.5 kilograms of cocaine base (crack) and ecstasy;
(2) possession or use of a firearm in furtherance of a drug trafficking felony; and
(3) possession with intent to distribute controlled substances. Mr. Bobb challenged the
sufficiency of the Government’s evidence at the close of the prosecution’s case and
renewed his motion at the close of all of the evidence. The District Court denied these
defense motions, as well as Mr. Bobb’s subsequent Rule 29 Motion for Judgment of
Acquittal.
Mr. Bobb now raises four issues on appeal: (1) whether the evidence was sufficient
to support a conviction on each of the three counts; (2) whether the District Court abused
its discretion in admitting evidence of an assault by Mr. Bobb that had not been charged
in the indictment; (3) whether the District Court abused its discretion or violated the
Confrontation Clause by admitting certain out-of-court statements; and, finally,
(4) whether the District Court abused its discretion by denying Mr. Bobb’s requested jury
instructions concerning testimony by accomplices and individuals who had entered into
plea agreements. For the reasons discussed below, we will affirm the decision of the
District Court.
DISCUSSION
2
A Rule 29 motion for judgment of acquittal obliges a district court to “‘review the
record in the light more favorable to the prosecution to determine whether any rational
trier of fact could have found proof of guilt beyond a reasonable doubt based on the
available evidence.’” United States v. Smith, 294 F.3d 473, 476 (3d Cir. 2002) (quoting
United States v. Wolfe, 245 F.3d 257, 262 (3d Cir. 2001)). This Court reviews grants or
denials of Rule 29 motions de novo and independently applies the same standard as the
District Court.
I. Sufficiency of the Evidence
When sufficiency of the evidence at trial is challenged, the Court must affirm if a
rational trier of fact could have found the defendant guilty beyond a reasonable doubt and
if the verdict is supported by substantial evidence. United States v. Coyle, 63 F.3d 1239,
1243 (3d Cir. 1995). The prosecution may bear this burden entirely through
circumstantial evidence. United States v. Wexler, 838 F.2d 88, 90 (3d Cir. 1988).
A. Conspiracy to Distribute in Excess of 1.5 Kilograms of Crack Cocaine
and in Excess of 5 Kilograms of Cocaine
Mr. Bobb was charged with conspiracy to distribute in excess of 1.5 kilograms of
crack cocaine, in excess of 5 kilograms of cocaine, heroin1 and ecstasy in violation of
21 U.S.C. § 846. The essential elements of conspiracy are “(1) a shared ‘unity of
purpose,’ (2) an intent to achieve a common goal, and (3) an agreement to work together
toward the goal.” United States v. Mastrangelo, 172 F.3d 288, 292 (3d Cir. 1999).
1
The jury did not convict Mr. Bobb on the heroin objective of the conspiracy.
3
Mr. Bobb argues that the evidence demonstrates, at most, various separate conspiracies
rather than a single conspiracy with multiple objectives as alleged in Count 1 of the
indictment.
The issue of whether a single conspiracy or multiple conspiracies exist is a fact
question to be decided by a jury. United States v. Perez, 280 F.3d 318, 344 (3d Cir.
2002); United States v. Curran, 20 F.3d 560, 572 (3d Cir. 1994). Where a single
conspiracy is alleged in the indictment, there is a variance if the evidence at trial proves
only the existence of multiple conspiracies. Id.
Although its objectives may be numerous and diverse, a single conspiracy exists if
there is one overall agreement among the parties to carry out those objectives. Braverman
v. United States, 317 U.S. 49, 53-54 (1942). Thus, a single conspiracy is proved when
there is “evidence of a large general scheme, and of aid given by some conspirators to
others in aid of that scheme.” United States v. Reyes, 930 F.2d 310, 312-13 (3d Cir.
1991). A single drug conspiracy “may involve numerous suppliers and distributors
operating under the aegis of a common core group.” United States v. Quintero, 38 F.3d
1317, 1337 (3d Cir. 1994). To establish a single conspiracy, the Government must
demonstrate that the defendant “knew that he was part of a larger drug operation.” Id.
For example, in Blumenthal v. United States, 332 U.S. 539 (1947), four defendants
convicted of conspiring to sell whiskey at above-regulation prices argued on appeal that
there was a variance between the single conspiracy charged in the indictment and the
evidence presented. Id. at 541. Even though “each salesman aided in selling only his
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part,” the Supreme Court nonetheless held that the evidence established a single
conspiracy, because each salesman “knew the lot to be sold was larger and thus that he
was aiding in a larger plan.” Id. By virtue of their separate agreements, the individual
defendants “became parties to the larger common plan, joined together by their
knowledge of its essential features and broad scope, though not of its exact limits, and by
their common single goal.” Id. at 558. Similarly, in Quintero, we held that a
co-conspirator’s testimony about his discussions with the defendant concerning the
treatment of cocaine located in a different city demonstrated the defendant’s awareness of
the larger drug operation and, therefore, was sufficient to support the jury’s finding of a
single conspiracy. Quintero, 38 F.3d at 1337.
In the instant case, the Government presented evidence which, construed in its
favor, demonstrated numerous purchases of controlled substances from Mr. Bobb by
various individuals, and the distribution of drugs to various individuals for future sales.
The evidence also included testimony by individuals who conspired with Mr. Bobb to
distribute drugs. In particular, testimonial evidence indicated that Mr. Bobb provided
drugs to his co-conspirators on credit over an extended period of time; that he relied on
his co-conspirators to make trips to New York with him to replenish his supply of drugs;
and that he trusted his co-conspirators to store drugs for him and to travel abroad to
smuggle drugs.
Mr. Bobb has failed to demonstrate a variance between the single conspiracy
charged in the indictment and the evidence presented at trial. Contrary to Mr. Bobb’s
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assertions, this is not a case where various individuals separately conspired with a
common conspirator. Cf. Kotteakos v. United States, 328 U.S. 750, 771-74 (1946)
(where various defendants separately conspired with a common conspirator, there was
more than one conspiracy since there was no overall goal or common purpose). Even a
cursory review of the testimony and evidence presented here indicates that a rational trier
of fact could have found the existence of a single conspiracy that was pursued by various
people undertaking various acts all to the same end. The evidence demonstrates that, like
the salesmen in Blumenthal, each of the various individuals with whom Mr. Bobb
arranged the sale and purchase of drugs knew “the lot to be sold was larger” and thus
knew he or she was “aiding in a larger plan.” The existence of an overall common
purpose and the conspirators’ knowledge of the larger operation suffice to prove that the
various agreements and arrangements between Mr. Bobb and other individuals were part
of a single conspiracy with multiple objectives, as charged in the indictment.
As to the amount of drugs, several witnesses testified as to the quantities of crack
cocaine that Mr. Bobb possessed and distributed in furtherance of the conspiracy. Other
circumstantial evidence presented by a number of witnesses supports an inference that
Mr. Bobb indeed was aware of the approximately 7 kilograms of cocaine smuggled by his
co-conspirators. Moreover, the jury specifically found that the conspiracy involved more
than 5 kilograms of cocaine and 1.5 kilograms of crack cocaine.
B. Possession or Use of a Firearm in Furtherance of a Drug Trafficking
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Felony
The essential elements of a violation of 18 U.S.C. § 924(c) of which Mr. Bobb also
was convicted are (1) the defendant committed either the crime of conspiracy to distribute
and possess with intent to distribute a controlled substance or the crime of possession
with intent to distribute; (2) the defendant knowingly possessed a firearm; and (3) the
defendant knowingly possessed the firearm in furtherance of the crime of conspiracy to
distribute or in furtherance of the crime of possession with intent to distribute.
To support a conviction under this statute, the Government must show that the
firearm was possessed by the defendant to advance or promote criminal activity. United
States v. Lawrence, 308 F.3d 623, 630 (3d Cir. 2002) (“Merely determining that the
defendant was in possession of a sidearm is not enough to support the conviction; we
must also consider whether the weapon was possessed ‘in furtherance of . . . a drug
trafficking crime.’”). In making this determination, the following nonexclusive factors
are relevant:
the type of drug activity that is being conducted, accessibility of
the firearm, the type of the weapon, whether the weapon is
stolen, the status of the possession (legitimate or illegal),
whether the gun is loaded, proximity to drugs or drug profits,
and the time and circumstances under which the gun is found.
United States v. Sparrow, 371 F.3d 851, 853 (3d Cir. 2004) (quoting United States v.
Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir. 2000)).
Mr. Bobb claims the trial evidence is insufficient to convict him of 18 U.S.C.
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§ 924(c) because he argues that the evidence established that he did not actively solicit
the barter of the sawed-off shotgun in question. In this Circuit, bartering crack cocaine
for a gun is not a violation of 18 U.S.C. § 924(c)(1)(A) if the defendant did not actively
solicit the barter of drugs for a gun. United States v. Sumler, 294 F.3d 579, 583 (3d Cir.
2002). At Mr. Bobb’s trial, Melissa Rodriguez testified that she traded the shotgun for
drugs after actively soliciting Mr. Bobb. According to Mr. Bobb, there was no testimony
that Mr. Bobb solicited Ms. Rodriguez. In addition, argues Mr. Bobb, there was no
evidence linking the gun to Mr. Bobb’s drug trafficking crimes.
The evidence, however, is sufficient to find a nexus between the possession of the
gun and the drug trafficking, and to satisfy many of the Ceballos-Torres factors. The jury
specifically found that Mr. Bobb possessed and controlled the gun that was found loaded
in an easily accessible location at the residence where Mr. Bobb stayed. The testimony
also establishes that, during the time period when Mr. Bobb possessed the gun, he was
involved in drug trafficking activities that generated thousands of dollars in proceeds and
provoked at least one assault. In addition, at least three of Mr. Bobb’s co-conspirators
had been robbed of drugs and/or money, and at least one co-conspirator admitted that
while distributing drugs with Mr. Bobb, he possessed several firearms to protect himself.
Finally, the gun in question was an illegal, sawed-off shotgun, obtained in exchange for
crack cocaine. Thus, a rational trier of fact could reasonably find that Mr. Bobb’s
possession of the firearm furthered, advanced or facilitated his drug trafficking activities.
C. Possession with Intent to Distribute Controlled Substances
8
The essential elements of the substantive offense of possession of a controlled
substance with intent to distribute are that the defendant (1) knowingly possessed a
controlled substance with (2) the intent to distribute it. 21 U.S.C. § 841(a)(1). Possession
can be actual or constructive, and may be proven through either direct or circumstantial
evidence. United States v. Martorano, 709 F.2d 863, 866 (3d Cir. 1983). Constructive
possession may be found if the defendant was knowingly in a position, or had the right, to
exercise “dominion and control” over the drug. Id.
In the instant case, the police seized drugs from the residence of James Ford.
Mr. Ford testified that Mr. Bobb had recruited him to store the drugs, that the drugs in the
residence belonged to Mr. Bobb, and that Mr. Bobb distributed drugs from Mr. Ford’s
residence. Mr. Bobb now claims that there is no evidence of his ability to control what
was inside Mr. Ford’s residence. Viewed in the light most favorable to the Government,
however, Mr. Ford’s testimony is sufficient to support a finding of Mr. Bobb’s guilt
beyond a reasonable doubt on each of the elements, including his constructive possession
of the drugs.
II. Admitting Evidence of an Assault Not Charged in the Indictment
The Court reviews the District Court’s decision to admit or exclude evidence for
abuse of discretion. United States v. Retos, 25 F.3d 1220, 1227 (3d Cir. 1994). However,
to the extent the District Court’s admission of evidence was based on an interpretation of
the Federal Rules of Evidence, the standard of review is plenary. Mr. Bobb appeals the
District Court’s admission of evidence of Mr. Bobb’s assault of one Nicholas Williams,
9
an act that was not charged in the indictment.
“Rule 404(b), which proscribes the admission of evidence of other crimes when
offered to prove bad character, does not apply to evidence of uncharged offenses
committed by a defendant when those acts are intrinsic to the proof of the charged
offense.” United States v. Gibbs, 190 F.3d 188, 217 (3d Cir. 1999) (holding that
defendant’s participation in uncharged acts of violence was admissible as direct proof of
the conspiracy with which he was charged). Even if such proof is “extremely prejudicial
to the defendant,” the trial court “would have no discretion to exclude it because it is
proof of the ultimate issue in the case.” Id. at 217-18 (quoting 22 CHARLES A. WRIGHT &
KENNETH W. GRAHAM, JR., FEDERAL PRACTICE AND PROCEDURE § 5239, at 450-451
(1978)).
In the instant case, the indictment specifically alleged that Mr. Bobb was an
“organizer and leader” of the conspiracy charged in Count 1 of the indictment. The
Government contends that evidence of the assault on Mr. Williams, a drug user who was
an admitted participant in the conspiracy, was probative of this allegation. At trial,
Mr. Bobb objected to this evidence as being uncharged misconduct “totally unrelated to
what Mr. Bobb is on trial for.” Mr. Bobb now argues on appeal that the District Court
admitted the evidence of the assault without engaging in the balancing of probative value
and prejudice required under Rules 403 and 404.
Under either objection, we conclude that the District Court properly admitted
evidence of the assault. Mr. Bobb was charged with conspiring to distribute crack and
10
cocaine. The assault and circumstances surrounding the assault (which was supposedly
prompted by missing crack that Mr. Bobb believed Mr. Williams had taken) are direct
evidence of Mr. Bobb’s participation in and enforcement of the conspiracy in a leadership
role, and, as such, this evidence was properly admitted.
III. Admitting Evidence of Hearsay Statements
The same standards apply to the Court’s consideration of Mr. Bobb’s challenge to
the District Court’s admission of co-conspirators’ statements.
A. Application of Federal Rule of Evidence 801(d)(2)(E)
Under Rule 801(d)(2)(E), the out-of-court statements of a defendant’s
co-conspirators are not excluded as hearsay. Before any such statement may be admitted,
however, the proponent must establish by a preponderance of the evidence that (1) the
conspiracy existed; (2) both the defendant and the declarant were members of the
conspiracy; and (3) the statement was made in the course of the conspiracy and in
furtherance of the conspiracy. United States v. McGlory, 968 F.2d 309, 333 (3d Cir.
1996). In determining whether the statement is admissible as a statement of a
co-conspirator, the court may consider the statement itself. Bourjaily v. United States,
483 U.S. 171, 181 (1987). While a casual conversation between co-conspirators does not
meet the “in furtherance” requirement, “statements between co-conspirators which
provide reassurance, serve to maintain trust and cohesiveness among them, or inform
each other of the current status of the conspiracy further the ends of the conspiracy and
are admissible so long as the other requirements of Rule 801(d)(2)(E) are met.” United
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States v. Ammar, 714 F.2d 238, 252 (3d Cir. 1983).
Mr. Bobb specifically objects to statements admitted during the trial testimony of
Julie Gyle, Melissa Rodriguez, Amy Sims and Danielle Lee. The declarants included
Mr. Bobb, co-conspirators and non-conspirators, whose statements ostensibly were
offered to give context and not for their truth. Mr. Bobb contends that the Government
failed to satisfy the foundation requirements for the co-conspirator statements.
The co-conspirator statements presented during the testimony of Julie Gyle,
Melissa Rodriguez and Danielle Lee concerned, respectively, the amount of money
Ms. Gyle was told she would receive for her drug sales, the quantity of crack members of
the conspiracy had available for distribution, and the quantity of crack cocaine in
Ms. Lee’s false bottom suitcase. These statements were all made by undisputed
co-conspirators in the course of the conspiracy and in furtherance of the conspiracy and
thus are admissible under FRE 801(d)(2)(E).
Mr. Bobb also objected to the admission of certain surreptitiously recorded
conversations played during the testimony of Amy Sims on the ground that there was
insufficient evidence to establish that Ms. Sims, Mr. Bobb and the declarant were
members of the conspiracy. The District Court, however, found the evidence sufficient to
meet the foundational requirements, and we agree that the evidence amply supports this
conclusion.
B. The Confrontation Clause
Mr. Bobb further contends that the recorded statements, even if not offered for
12
their truth, violated his rights under the Confrontation Clause.
During the pendency of Mr. Bobb’s trial, this Court held in United States v.
Hendricks, 395 F.3d 173 (3d Cir. 2005), that surreptitiously monitored conversations and
statements are not “testimonial” for purposes of Crawford v. Washington. Id. at 181.
Specifically, with regard to recorded statements of co-conspirators, we held that “party
admissions and co-conspirator portions” of disputed tape recordings are “nontestimonial
and thus, assuming compliance with the Federal Rules of Evidence, are admissible.” Id.
at 183-84. We further noted that the Confrontation Clause “‘does not bar the use of
testimonial statements for purposes other than establishing the truth of the matter
asserted.’” Id. at 183 (citing United States v. Crawford, 541 U.S. 36, 59 n.9 (2004)); see
also United States v. Trala, 386 F.3d 536, 544-45 (3d Cir. 2004) (finding no
Confrontation Clause violation where reliability of out-of-court statements was not at
issue and where the statements were not introduced for their truth).
Mr. Bobb urges that Hendricks be confined to its specific facts and also attempts to
distinguish Hendricks because the declarant in Hendricks was a confidential informant.
However, the holding in Hendricks did not turn on its own unique facts and did not rest
on the status of the declarant; rather, its focus was on the non-testimonial nature of
surreptitiously recorded conversations and the purpose for which they are offered. Here,
the out-of-court statements were surreptitiously recorded and either were made by
co-conspirators or, if made by non-conspirators, were offered for the purpose of
establishing context, not for their truth. Thus, under Hendricks, the admission of the
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recorded statements in Mr. Bobb’s trial did not violate the Confrontation Clause.
In sum, the District Court did not abuse its discretion in admitting the disputed
hearsay statements.
IV. Jury Instructions
With regard to issues of both phrasing and omissions, the Court reviews a trial
court’s jury instructions for abuse of discretion. United States v. Zehrbach, 47 F.3d 1252,
1260 (3d Cir. 1995). In reviewing a refusal to give a requested jury instruction, the Court
evaluates “whether the preferred instruction was legally correct, whether or not it was
substantially covered by other instructions, and whether its omission prejudiced the
defendant.” United States v. Pitt, 193 F.3d 751, 755-56 (3d Cir. 1999). A trial court is
not obligated to instruct the jury using the precise words suggested by counsel. United
States v. Turley, 891 F.2d 57, 62 (3d Cir. 1989).
A. Requested Jury Instruction Number 5
With regard to requested jury instruction No. 5, Mr. Bobb contends he was
prejudiced by the District Court’s refusal to instruct the jury that “accomplices are corrupt
and polluted sources.” Mr. Bobb argues that the language actually used by the District
Court did not convey the “true nature” of the sources used by the Government. However,
Mr. Bobb failed to object to the trial court’s accomplice testimony instruction at trial, and
thus he waived this claim. Therefore, it is now subject to review for plain error. United
States v. Guadalupe, 402 F.3d 409, 410 n.1 (3d Cir. 2005). Under the plain error
standard, “‘before an appellate court can correct an error not raised at trial, there must be
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(1) error, (2) that is plain, and (3) that affect[s] substantial rights. If all three conditions
are met, an appellate court may then exercise its discretion to notice a forfeited error, but
only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings.’” United States v. Vazquez, 271 F.3d 93, 99 (3d Cir. 2001) (quoting
Johnson v. United States, 520 U.S. 461, 467 (1997)).
The District Court’s instruction advised the jury that the accomplice testimony
“must be scrutinized with great care and viewed with particular caution.” In particular,
the District Court advised the jury: “You should ask yourselves whether or not the so-
called accomplices would benefit more by lying or telling the truth. Was their testimony
made-up in any way because they believed or hoped that they would somehow receive
favorable treatment by testifying falsely?”
We have specifically long held that there is “[n]o mandatory requirement that
accomplice testimony be described as emanating from a corrupt or polluted source.”
United States v. DeLarosa, 450 F.2d 1057, 1061 (3d Cir. 1971). Accordingly, the District
Court did not plainly err in omitting the specific language requested by Mr. Bobb, and the
instruction adequately expressed the nature of accomplice testimony.
B. Requested Jury Instruction Number 8
With regard to requested jury instruction No. 8, Mr. Bobb contends that he was
prejudiced by the District Court’s refusal to include, concerning the credibility of
cooperating witnesses who had entered into plea agreements, an instruction that even a
mandatory minimum sentence may be reduced upon motion by the Government. The
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Government responds that (1) none of the witnesses who entered into cooperation plea
agreements pleaded guilty to a charge carrying a mandatory minimum sentence; and
(2) the trial evidence, including the cross-examination of the witnesses, made clear to the
jury that the cooperating witnesses had the possibility of receiving sentencing departure
motions and what that meant. In addition, the plea agreement of each cooperating witness
was admitted in evidence at trial, thus providing the jury with the complete terms of the
various agreements. The District Court’s instructions also included general instructions
on the credibility of witnesses who might have something to gain from their testimony.
The jury had ample evidence of the witnesses’ plea agreements and the possible
significance of those agreements. The jury was instructed to take the witnesses’ interests,
motivation and credibility into consideration. We find that Mr. Bobb was not prejudiced
and the District Court did not abuse its discretion in omitting the requested instruction.
CONCLUSION
The evidence presented at Mr. Bobb’s trial was sufficient to support a conviction
of (1) conspiracy to distribute in excess of 5 kilograms of cocaine, in excess of 1.5
kilograms of cocaine base (crack) and ecstasy; (2) possession or use of a firearm in
furtherance of a drug trafficking felony; and (3) possession with intent to distribute
controlled substances. The District Court properly admitted evidence of the assault not
charged in the indictment, as well as the statements of co-conspirators and
non-conspirators. And, finally, the District Court did not err by denying Mr. Bobb’s
requested jury instructions. Therefore, we will affirm the judgment of conviction on each
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of the three counts.
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