                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                                                NOT PRECEDENTIAL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)
                                    ____________

                             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.



                                             2
        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



                                               3
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

                                             4
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-



                                              5
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.

                                              6
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



                                             7
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



                                             8
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.




                                             9
