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U.S. v. BOBB

November 16, 2005.

UNITED STATES OF AMERICA,
v.
SHERMAN BOBB, Defendant.



The opinion of the court was delivered by: JAMES MUNLEY, District Judge

MEMORANDUM

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.

Background

  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.

  Discussion

  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 conspiracy."

  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 ...


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