United States District Court, M.D. Pennsylvania
November 16, 2005.
UNITED STATES OF AMERICA,
SHERMAN BOBB, Defendant.
The opinion of the court was delivered by: JAMES MUNLEY, District Judge
Before the court for disposition is the defendant's motion for
judgment of acquittal, which was filed under Rule 29 of the
Federal Rules of Criminal Procedure.*fn1 The matter has been
fully briefed and is ripe for disposition.
This case involves a drug trafficking ring centered in Luzerne
County Pennsylvania. The government alleges that Defendant
Sherman Bobb was the head of this nefarious enterprise. On
September 23, 2004, the United States filed a Third Superseding
Indictment against defendant charging him with: Count 1,
conspiracy regarding distribution and possession with intent to
distribute in excess of five kilograms of cocaine, 1.5 kilograms of cocaine base (crack),
heroin, and methylenedioxymethamphetamine (ecstasy), in violation
of 21 U.S.C. § 846; Count 2, possession of a firearm in
furtherance of a drug trafficking felony, in violation of
18 U.S.C. § 924(c)(1)(A)(I) and 924(c); and Count 3, possession with
intent to distribute in excess of five (5) grams of cocaine base
(crack), in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B),
18 U.S.C. § 2. (See Doc. 184).
On January 20, 2005, after a seven-day trial, a jury returned a
guilty verdict against the defendant with respect to the
conspiracy charges involving cocaine and cocaine base (crack),
possession of a firearm in furtherance of a drug trafficking
crime and possession with intent to distribute in excess of five
(5) grams of crack cocaine. (See Doc. 302).
Defendant now moves for a judgment of acquittal on all the
charges under Rule 29 of the Federal Rules of Criminal Procedure.
The matter has been fully briefed. After a careful review, we
will deny the defendant's motion.
The defendant challenges the sufficiency of the evidence with
regard to the following counts: 1) Count I, conspiracy; 2) Count
II, use or possession of a firearm in furtherance of a drug
trafficking felony; 3) Count III, possession with intent to
deliver controlled substance found in James Ford's residence; and
4) the drug weight findings rendered by the jury with respect to Count I. We find no
merit to any of the defendant's contentions. We shall nonetheless
address them below in seriatim.
I. Sufficiency of evidence with regard to Count I, conspiracy
Count I of the indictment charges defendant with conspiracy to
distribute and possess with intent to distribute controlled
substances, including, cocaine base (crack) and
methylenedioxymethamphetamine (ecstasy), in violation of
21 U.S.C. § 846, which provides: "Any person who attempts or
conspires to commit any offense defined in the subchapter shall
be subject to the same penalties as those prescribed for the
offense, the commission of which was the object of the attempt or
Defendant's position is that although a single conspiracy is
alleged in the indictment, the evidence at trial proved the
existence of multiple conspiracies. The defense argues that even
if a common objective can be assumed among certain individuals,
the evidence reveals the existence of at least three different
conspiracies.*fn2 Defendant contends that because a single
conspiracy is alleged in the indictment, a variance exists
between the indictment and the proof at trial, and he should thus
be acquitted.*fn3 Defendant's arguments are without merit.
The law provides that "When there is a variance between the
indictment and the proof at trial and when that variance
prejudices a substantial right of the defendant, . . . the
conviction must be vacated." United States v. Padilla,
982 F.2d 110, 113 (3d Cir. 1990); United States v. Balter, 91 F.3d 427,
441 (3d Cir. 1996). Thus, in order for defendant's argument to be
successful, he must establish both a variance and prejudice to a
substantial right. He has done neither.
Drug conspiracies that involve multiple suppliers and
distributors "operating under the aegis of a common core group
can be treated as a single conspiracy." Id. at 114. In the
instant case, the core group was headed by Defendant Sherman
Bobb. At trial, many witnesses testified that he supplied them
drugs to sell.
Some of the witnesses and their testimony include: Dawn Newell
sold crack cocaine for the defendant, (N.T. 1/13/05 at 102-103);
Amy Sims sold crack cocaine for the defendant, in fact, she made
nearly $10,000.00 a day doing so, (id. at 149-50, 225); Shawn
Edwards also sold crack cocaine for the defendant, (N.T. 1/12/05
at 29-30, 33-34); Quayce Thompson testified that he and the
defendant were in a drug trafficking conspiracy and made more
than $20,000 profit per week, (id. at 55-57, 107); Christina Singleton was involved in counting money, picking
up money and delivering packages of crack cocaine (id. at
159-161); Geovanni Johnson sold crack cocaine for the defendant
(id. at 205); as Danielle Lee was another of the defendant's
crack dealers (N.T. 1/13/05 at 268-70); Lydia Cooper was involved
in the crack distribution, (N.T. 1/18/05 at 147-48); and Julie
Gyle testified that she sold crack for the defendant (id. at
The witnesses' testimony at trial established that they were
all in a conspiracy with the defendant. The fact that the
testimony indicated that some individual sold different drugs or
may not have known about other parties of the conspiracy does not
render this a case of multiple conspiracies. The law provides
that "[t]he government need not prove that each defendant knew
all the details, goals, or other participants." Id. at 114. The
goal of the conspiracy at issue was the sale of drugs for profit.
This crime was established at trial by the testimony of many
witnesses. Accordingly, no variance exists.
Even if we had found that a variance existed, the defendant
would still need to establish that he was prejudiced by the
variance in order for his conviction to be vacated. Padilla,
982 F.2d at 113.
To show prejudice, a defendant must generally show
that the indictment either did not sufficiently
inform him of the charges against him so that he
could prepare his defense and not be misled or surprised at trial or that the
variance created a danger that the defendant could be
prosecuted a second time for the same offense.
Balter, 91 F.3d at 441. Defendant has not established any
prejudice, nor has he even addressed the prejudice issue in his
Accordingly, defendant's first issue is without merit because
no variance is found between the indictment and the proof at
trial, and moreover, he has not established or alleged any
II. Sufficiency of evidence with regard to Count II, use or
possession of a firearm in furtherance of a drug trafficking
Count II of the indictment charges defendant with a violation
of 18 U.S.C. § 924(c). This section criminalizes the possession
of a firearm in furtherance of a drug trafficking crime for which
a person may be prosecuted in a United States court. The jury
found the defendant guilty of this charge. (Doc. 302, Verdict at
8). He now challenges the sufficiency of the government's
evidence that he possessed a gun in furtherance of a commission
of a crime.
The law provides as follows: In reviewing a challenge to the sufficiency of the
evidence, we apply a particularly deferential
standard of review. The verdict must be sustained if
there is substantial evidence to support it. It is
not our role to weigh the evidence or to determine
the credibility of the witnesses. We must view the
evidence in the light most favorable to the
Government and sustain the verdict if any rational
juror could have found the elements of the crime
beyond a reasonable doubt.
United States v. Cartwright, 359 F.3d 281
, 285-86 (3d Cir.
2004) (internal quotation marks and citations omitted).
Defendant does not challenge the fact that he was in possession
of a firearm. He asserts that his mere possession of the firearm
is not sufficient to establish a violation of section 924 (c) and
therefore, he should be acquitted of this charge. We disagree
with the defendant and find that the evidence established more
than mere possession of the firearm.
The law provides that the mere presence of a gun is not
sufficient to find a defendant guilty under section 924(c).
United States v. Sparrow, 371 F.3d 851, 853 (3d Cir. 2004). The
government must present evidence that the gun in the defendant's
possession actually furthered the drug trafficking offense. Id.
In determining whether a firearm advanced or helped forward a
drug trafficking crime the Third Circuit Court of Appeals has
held that the following nonexclusive factors are relevant: the
type of drug activity that is being conducted; accessibility of
the firearm; 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
In the instant case, the application of the facts to these
factors supports the jury's verdict. Defendant was involved in a
longstanding, sometimes violent, drug distribution ring. (See
N.T. 1/18/05 at 185-86, 223 (discussing various robberies and a
beating that occurred during the conspiracy)). The firearm was
accessible to the defendant as it was kept at the residence of
Danielle Lee where he stayed at times. At the time the gun was
obtained, he lived at Lee's residence for two weeks and kept the
gun in his room. (N.T. 1/18/05 at 6-7). The weapon was an illegal
sawed off shotgun that had been acquired through a trade for
fifty dollars worth of crack cocaine. (N.T. 1/18/05 at 4).
Moreover, the gun was loaded at the time it was found. (N.T.
1/12/05 at 251).
Additionally, Christina Singleton, one of the defendant's girl
friends and the mother of his child, testified that she saw
defendant with a gun tucked into his waistband, and that he
carried it for protection. (N.T. 1/12/05 at 162-63). Although
this gun was not the sawed-off shotgun, this testimony is
relevant as a factor to determine the manner in which the
defendant utilized firearms.
All these factors support the jury's conclusion that the
firearm was used to further a drug trafficking offense, and we
find the defendant's argument is without merit.
III. Sufficiency of the Evidence with respect Count III
possession with intent to distribute cocaine base (crack)
Count Three of the indictment charges defendant with possession
with intent to distribute cocaine base (crack). The elements of
this crime are to knowingly possess the controlled substance with
intent to distribute. The issue presented by the defendant is
whether he can be found to have "possessed" the drugs at issue
although they were found at another's residence.
Under the law, "[i]t is well settled that when a defendant is
charged with possession of a controlled substance with intent to
distribute it in violation of 21 U.S.C. § 841(a)(1), possession
can be either actual or constructive. . . . Constructive
possession may be shown through either direct or circumstantial
evidence." United States v. Martorano, 709 F.2d 863, 866 (3d
"The term `constructive possession' has a precise legal
meaning: A person who, although not in actual possession,
knowingly has both the power and the intention at a given time to
exercise dominion or control over a thing, either directly or
through another person or persons, is then in constructive
possession of it." United States v. Garth, 188 F.3d 99, 112 (3d
The evidence presented at the trial allowed the jury to
conclude that although the defendant was not in actual physical possession of the drugs
at issue, he constructively possessed them.
The facts supporting this charge as presented at trial are: On
December 22, 2003, law enforcement officers seized more than five
(5) grams of cocaine base (crack) from the residence of James
Ford. Ford testified that these drugs were contained in a package
that defendant had asked him to hold for him. (N.T. 1/18/05 at
124, 126). The package contained crack cocaine, and Ford turned
it all over to the authorities from the United States Drug
Enforcement Agency when they came to his house to question him.
(Id. at 127).*fn5 During the time that Ford held the
drugs, Lydia Cooper, one of the defendant's associates, made
three to four trips to the house to pick up some them. (Id. at
Defendant claims that the evidence fails to establish that he
had any control over these drugs. When viewed in the light most
favorable to the government, we find that while these drugs were
found at Ford's residence, the jury could certainly have
concluded that defendant possessed them. Ford's testimony
establishes that the defendant asked him to hold the drugs for
him and defendant's associate, Lydia Cooper, made several trips
to the Ford house to retrieve some of the drugs. It can be inferred that the defendant had not given possession of the drugs
to Ford. He was merely holding them until such time as the
defendant or his associates retrieved them. Defendant's argument
is, therefore, without merit.
IV. Drug quantities found by the jury
Lastly, in its verdict, the jury found that defendant conspired
to distribute in excess of five (5) kilograms of powder cocaine
and in excess of 1.5 kilograms of crack cocaine. (Doc. 302,
Verdict, p. 5, 11) Defendant argues that these findings are not
supported by the evidence. We disagree.
Crack cocaine is sold in a quantity called an "eight ball."
(N.T. 1/10/05 at 11). One eight ball weighs 3.5 grams. (Id.).
Lydia Cooper testified that she saw thousands of eight balls
distributed by Sherman Bobb to his various co-conspirators. (N.T.
1/18/05). One thousand eight balls weigh 3.5 kilograms. The
testimony establishes that there were actually "thousands" of
eight balls, hence, the jury could properly conclude that the
amount of crack cocaine present in the case was in excess of 1.5
With regard to the powder cocaine, the jury found that
defendant conspired to distribute in excess of five (5)
kilograms. The evidence revealed on one occasion Louis Lee was
caught smuggling 3.579 kilograms of powder cocaine for the
defendant. (N.T., 1/12/05 at p. 19-20). During her testimony,
Danielle Lee testified to another trip where she and her husband, Louis, smuggled about
four kilograms of cocaine in two false bottom suitcases. (N.T.
1/18/05 at 32). From this testimony, the jury certainly could
have concluded that the defendant conspired to distribute in
excess of five (5) kilograms of powder cocaine.
For the above reasons, we reject the defendant's argument that
the jury's findings with respect to drug weight were not
supported by the evidence.
We find no merit to any of the defendant's arguments and will
deny his motion for judgment of acquittal. An appropriate order
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