U.S. v. Bobb

• Decision Date: 28 December 2006
• Docket Number: No. 05-5121.,05-5121.
• Citation: 471 F.3d 491
• Parties: UNITED STATES of America v. Sherman BOBB, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

471 F.3d 491

UNITED STATES of America v. Sherman BOBB, Appellant.

No. 05-5121.

United States Court of Appeals, Third Circuit.

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

Filed December 28, 2006.

COPYRIGHT MATERIAL OMITTED

William S. Houser, Office of United States Attorney, Scranton, PA, for United States of America.

James A. Swetz, Cramer, Swetz & McManus, Stroudsburg, PA, for Sherman Bobb.

Before RENDELL and AMBRO, Circuit Judges, PRATTER,^* District Judge.

OPINION OF THE COURT

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

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). 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, 63 S.Ct. 99, 87 L.Ed. 23 (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, 68 S.Ct. 248, 92 L.Ed. 154 (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, 68 S.Ct. 248. Even though "each salesman aided in selling only his 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, 68 S.Ct. 248. 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 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, 66 S.Ct. 1239, 90 L.Ed. 1557 (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 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 (6th 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...