                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"USA v. Bobb" (2006). 2006 Decisions. Paper 12.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/12


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                             NOT PRECEDENTIAL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
                                   _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 28, 2006

                   Before: RENDELL and AMBRO, Circuit Judges
                             PRATTER,* District Judge

                             (Filed: December 28, 2006 )

                                     ___________

                             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

                                              4
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

                                              5
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

                                             6
                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.


                                                7
§ 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

                                            11
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

                                             13
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

                                             14
(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

                                                15
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

                                             16
of the three counts.

_________________




                       17
