United States v. Bibbs

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
10-31-2005
USA v. Bibbs
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3382
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 04-3382
____________
UNITED STATES OF AMERICA
v.
JESSE BIBBS,
a/k/a BASHIR,
a/k/a MARK COLE,
Jesse Bibbs,
Appellant
____________
Appeal from the United States District Court
For the Eastern District of Pennsylvania
D.C. No.: 02-cr-00473
District Judge: Honorable Petrese B. Tucker
____________
Submitted Under Third Circuit LAR 34.1(a) October 25, 2005
Before: SLOVITER, FISHER, and ROSENN, Circuit Judges
(Filed October 31, 2005)
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OPINION OF THE COURT
____________
ROSENN, Circuit Judge.
The appellant, Jesse Bibbs, was indicted in August 2002 with several others in the
United States District Court for the Eastern District of Pennsylvania for conspiracy to sell
and pass more than $800,000 in counterfeit United States currency in violation of 18
U.S.C. § 371. The indictment also charged him in Counts V and VIII with possession of
counterfeit currency. The District Court granted the Government’s motion to dismiss
Count V and the jury acquitted him on Count VIII. The jury convicted him on Count I.
Bibbs timely appealed. We affirm.
The Court sentenced Bibbs to twelve months’ imprisonment in the instant
proceedings, a fine of $2,500 and supervised release for three years.
Bibbs had been arrested in 2001, together with two other men, after one of them
attempted to pass a counterfeit $100 bill at a mall near Albany, New York. Bibbs was
ultimately charged in State Court with passing counterfeit currency at a CVS store in
Delmar, NY. He pled guilty in 2001 to possession of forged instruments. The State
Court sentenced him to sixteen to thirty-six months’ imprisonment.
In October 1999, Bibbs had pled guilty in the United States District Court for the
Southern District of New York to a misdemeanor for refusing to surrender possession of
counterfeit coins, obligations, and other securities in violation of 18 U.S.C. § 492. The
court sentenced him on January 20, 2000 to three years’ probation. This case was
transferred for supervision to Judge Katz of the United States District Court for the
Eastern District of Pennsylvania.
I.
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Bibbs raises seven issues on appeal, which we discuss briefly. Since we write
primarily for the parties, we will refer only to the facts salient to our discussion.
1. Double jeopardy
Bibbs claims that the trial and conviction for the conspiracy charge now before
this Court violates his right not to be placed in double jeopardy. He argues that the
federal prosecution in this case is for the same substantive offense as his conviction on
the 2001 state charge. He also asserts that the introduction of the guilty plea colloquy
from that conviction violated his double jeopardy rights. We review constitutional claims
de novo. U.S. v. Gordon, 290 F.3d 539, 546 (3d Cir. 2002).
Because conspiracy is a separate offense from the underlying counterfeiting
offense, separate prosecutions for counterfeiting and for conspiracy to counterfeit do not
raise double jeopardy concerns. U.S. v. Felix, 503 U.S. 378, 389-90 (1992) (“The same
overt acts charged in a conspiracy count may also be charged and proved as substantive
offenses, for the agreement to do the act is distinct from the act itself”); U.S. v. Liotard,
817 F.2d 1074, 1077 n.6 (3d Cir. 1987) (acquittal on conspiracy charge did not bar
subsequent prosecution for the substantive charges contained in separate indictment).
Bibbs argues his case is unique because he believed his plea in New York state
court resolved all possible charges and that using his plea colloquy is unfair. To support
his argument Bibbs cites U.S. v. Nyhuis, 211 F.3d 1340 (11th Cir. 2000), which implies a
breached plea agreement might implicate doubly jeopardy. Unlike the defendant in
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Nyhuis, however, Bibbs has no written plea agreement or any evidence to support his
claim that the prosecution had agreed that his plea in the State Court would also resolve
all possible federal charges.
Bibbs also argues that double jeopardy applies under the Bartkus exception. The
Bartkus exception suggests that double jeopardy may apply if a prosecution by one
sovereign is simply a “sham and a cover” for the successive prosecution by another. U.S.
v. Berry, 164 F.3d 844, 846-47 (3d Cir. 1999). Bibbs’ proffered evidence that the state
police turned over the counterfeit bills to federal agents does not support his argument.
See Bartkus v. People of State of Ill., 359 U.S. 121, 123-24 (1959).
2. The prosecutor’s closing argument
Bibbs argues that the prosecutor committed misconduct by asking the jury in his
closing arguments not to allow Bibbs to “rip up the evidence.” Bibbs’ counsel did not
object to the closing argument at trial. Therefore, we review for plain error. U.S. v.
Moore, 375 F.3d 259, 263 (3d Cir. 2002). The prosecutor’s statement was as follows:
And, the evidence that has come in, has demonstrated . . . that Jesse Bibbs
in fact tried to hide from the police what he was doing. Because if you
look at the evidence, you know, the money orders were all ripped up in the
van. And officer, Investigator Shulman had to put them back together.
When Jesse Bibbs was arrested in Deptford, New Jersey, he didn’t even
give the police officer his correct name and he didn’t have any
identification on him. So I ask you, ladies and gentlemen, don’t let Jesse
Bibbs try and rip up the evidence here. You have the power and the ability
to look at the evidence, piece it together and come to the conclusion that
Jesse Bibbs is guilty as charged and I ask that you do that. Thank you.
These statements refer to a money order Bibbs purchased with counterfeit money, which
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was apparently ripped up as the police closed in on Bibbs’ crew. The reassembled money
order was produced at trial and played a part in the case.
The Government suggests that the comments were simply “a metaphor for the
jury’s responsibility to review the evidence and piece it together as the police had pieced
together the money order.” Bibbs argues that the statement suggests that even if the
elements of the crime are not proven, the jury should still convict him because he is
responsible for destroying any evidence that may be missing.
In the absence of other indicia of prejudice, this Court should follow the more
reasonable interpretation. Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974) (“[A]
court should not lightly infer that a prosecutor intends an ambiguous remark to have its
most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that
meaning from the plethora of less damaging interpretations.”). We believe the more
reasonable assessment of the language is that the prosecutor was simply telling the jury to
carefully consider the evidence and weigh the opposing argument. Bibbs has not met his
burden of proving that an error “seriously affect[ed] the fairness, integrity, or public
reputation of judicial proceedings.” U.S. v. Mornan, 413 F.3d 372, 380 (3d Cir. 2005).
3. Introduction of his guilty plea colloquy
Bibbs’ claims that the introduction of his guilty plea colloquy from the 2001 New
York prosecution was prosecutorial misconduct that violated his due process rights. This
testimony was introduced after a sidebar discussion on how to use it in the most non-
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prejudicial manner possible. Defense counsel asked that the jury not be told the
statements were made in court (which was done), and the jury never found out that Bibbs
had been previously convicted for counterfeiting. Defense counsel made no other
comments about the introduction of the colloquy, and the prosecutor carefully introduced
the colloquy as agreed upon.
Bibbs now claims this evidence was “unfairly prejudicial,” because the jury may
have improperly branded him as a criminal and convicted him on that ground alone.
However, it seems likely the jury gave little credit to the colloquy because he was not
convicted on the counterfeiting charges for which this evidence is most probative.1 The
utility of the colloquy to show an overt act in furtherance of the conspiracy reasonably
outweighed any possible prejudice. See F ED. R. E VID. 403. In any case, there is nothing
to show that the jury was improperly prejudiced.
4. Sufficiency of the evidence
Bibbs next argues that the evidence, consisting largely of testimony by his co-
conspirators (who were hoping for leniency from the prosecutor), was not sufficient to
convict him of conspiracy. Bibbs ignores his admission to passing a counterfeit note, and
other evidence of his involvement in a counterfeiting conspiracy, such as the
demonstration that the fake bill Bibbs passed was made on the same machine as bills his
1
While Bibbs was convicted of conspiracy to counterfeit, the jury found him not guilty
on one charge of possession of counterfeit bills and failed to reach a verdict on a similar
possession charge.
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co-conspirators passed.
This Court will sustain a verdict if “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt” when viewing the evidence in
the light most favorable to the Government. U.S. v. Dent, 149 F.3d 180, 187 (3d Cir.
1998). The testimony of cooperating witnesses may alone be sufficient to uphold a
conviction, especially where the defense has (as in this case) ample opportunity to cross-
examine the Government’s witnesses. U.S. v. Perez, 280 F.3d 318, 344 (3d Cir. 2002);
see Dent, 149 F.3d 180 at 187 (“It is not for us to weigh the evidence or to determine the
credibility of the witnesses.”). When viewed in the light most favorable to the
Government, the testimony is more than sufficient to support Bibbs’ conviction for
conspiracy.
5. Exclusion of a 1980 robbery conviction
Bibbs claims that the exclusion of evidence of a co-conspirator’s prior conviction
to impeach him on cross-examination was an abuse of discretion. The Court noted that it
failed to see any “advantage or probative value” in the 24-year old conviction, and that
Bibbs already had “enough ammunition for cross examination” without it. The Court
further noted that Bibbs failed to give advance written notice to use the conviction, as
required by the Federal Rules of Evidence. Alone, the lack of notice was sufficient
grounds to exclude the conviction. U.S. v Colletti, 984 F.2d 1339, 1343 (3d Cir. 1989).
As it was, Bibbs used four recent convictions for fraud and one older drug offense
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to impeach the co-conspirator at trial. Each of these was much more probative of the
credibility of the witness than the old robbery conviction (which, as a violent crime, was
more likely to prejudice the jury). The court’s statements follow both the reasoning and
spirit of the Federal Rules of Evidence. See F ED. R. E VID. 609(b). There was no abuse of
discretion.
6. Pre-trial motions to dismiss
Bibbs argues that his temporary transfer to Pennsylvania for a hearing on his
probation violation violated the Interstate Agreement on Detainers Act (“IADA”). The
IADA establishes procedures for the resolution of one state’s outstanding charges against
a prisoner of another state. The IADA is triggered where there is “any untried indictment,
information, or complaint on the basis of which a detainer has been lodged.” Interstate
Agreement on Detainers Act, 18 U.S.C. A PP. 2, § 2 Art. III(a) (1970). After the transfer
from a sending state to a receiving state, the IADA requires that all charges in the
receiving state be resolved before the prisoner-defendant is returned to the sending state.
Id. at IV(e). The IADA is inapplicable to transfers involving probation violation charges.
Carchman v. Nash, 473 U.S. 716, 725-26 (1985).
To determine whether there was a violation of the IADA, we need to follow
Bibbs’ path: (a) After his 2001 conviction in the New York state court, he was sent to
Pennsylvania for a hearing on a probation violation rising out of the 2001 conviction.
While there, he was arraigned in the present case in October, 2002. (b) After complaining
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that he was missing his parole hearings in New York, he was sent back to a parole hearing
which was held in December 2003. (c) A detainer was issued in November 2003, and he
was sent back to Pennsylvania after the parole hearing to serve his sentence for his
probation violation and for trial.
The transfer in (a) and (b) above could not have run afoul of the IADA because
the arraignment was not secured by a detainer, but by an unrelated appearance for a
probation violation. Id. When he was brought back to Pennsylvania pursuant to a
detainer, his state custody had ended.
Finally, Bibbs claims the District Court erred by denying his motion to dismiss the
indictment because a witness committed perjury by representing to the Grand Jury that he
never passed counterfeit bills. Bibbs provides no evidence of falsity and no argument that
he was prejudiced by the alleged perjury. The District Court did not err in denying his
motion.
II.
For the forgoing reasons, the District Court’s conviction of Jesse Bibbs for
conspiracy is affirmed.
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