612 F. App'x 100

UNITED STATES of America v. Hikeem TORRENCE, a/k/a Hak Hikeem Torrence, Appellant.

No. 13-3771.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit L.A.R. 34.1(a) April 24, 2015.

Filed: May 11, 2015.

*101Salvatore L. Astolfi, Esq., Katayoun M. Copeland, Esq., Kathy A. Stark, Esq., Office of United States Attorney, Philadelphia, PA, for United States of America.

Michael N. Huff, Esq., Philadelphia, PA, for Hikeem Torrence.

Before: CHAGARES, JORDAN, and BARRY, Circuit Judges.

OPINION *

JORDAN, Circuit Judge.

Hikeem Torrence appeals his conviction and sentence in the United States District Court for the Eastern District of Pennsylvania based on his participation in a large-scale drug-trafficking enterprise known as the “Harlem Boys” that operated in the Bartram Village Housing Development (“Bartram Village”) in Philadelphia. On appeal, he raises three grounds of alleged error. For the following reasons, we will affirm.

*102I. Background

The pertinent factual background surrounding the Harlem Boys drug-trafficking operation is set forth more fully in the opinion addressing the appeal of co-conspirator Ramel Moten. See United States v. Moten, No. 13-3801, Slip Op. at 2-5,— Fed.Appx.-,-, 2015 WL 2179797 (3d Cir. May 11, 2015). We provide here only the facts relevant to Tor-rence’s appeal.

Torrence was named along with nineteen other defendants in an eighty-nine count superseding indictment. Specifically, he was charged with conspiracy to participate in a racketeering enterprise (count 1), in violation of 18 U.S.C. § 1962(d); conspiracy to distribute 280 grams of cocaine base (crack) and marijuana (count 2), in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846; possession with intent .to distribute cocaine base (crack) (count 75), in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); assault with a deadly weapon in aid of racketeering, and aiding and abetting (count 82), in violation of 18 U.S.C. § 1959(a)(4); carrying and using a firearm during a crime of violence, and aiding and abetting (counts 83, 85, and 87), in violation of 18 U.S.C. § 924(c); attempted murder in aid of racketeering, and aiding and abetting (count 84), in violation of 18 U.S.C. § 1959(a)(5); and assault with a deadly weapon in aid of racketeering, and aiding and abetting (count 86), in violation of 18 U.S.C. § 1959(a)(3). '

Torrence was acquitted of one of the counts of assault with a deadly weapon and of the accompanying firearm charge (counts 86 and 87), but was convicted on all other counts in which he was named. The District Court sentenced him to 564 months’ imprisonment and five years’ supervised release and imposed various fines and special assessments.

II. Discussion1

Torrence raises three issues on appeal: (1) whether the District Court erred in refusing to suppress evidence obtained during an allegedly invalid Terry stop; (2) whether the District Court erred in denying his motion in limine to exclude testimony that he was arrested while police were responding to a report of a person with a gun; and (3) whether the District Court erred in denying his motion in li-mine to exclude recorded conversations between a confidential informant and Mo-ten. None of his arguments is persuasive.2

A. Suppression of Evidence3

On June 2, 2010, Philadelphia police officers responded to a radio call reporting a “person with a gun” at 5405 Bartram Drive. (Supp.App. at 416.) Upon arrival, the officers located spent shell casings on the steps of that address. After a bystander told police that the gunman ran *103into one of the apartments at 5401 Harley Terrace, the officers began knocking on doors there. When police knocked on the door of Apartment 3B, Torrence came “bolting” out of that apartment — almost knocking an officer to the ground. (Supp. App. at 379.) As one of the officers struggled to detain Torrence, Torrence open his clenched hand and dropped a small item onto the windowsill. The other officer recovered the item, which was a bag containing several small packets of crack cocaine.

Torrence claims that the evidence should have been suppressed because the stop was without reasonable suspicion or probable cause. We disagree. The officers had reasonable suspicion to detain Torrence when, in response to the police knocking on the door and announcing their presence, he ran out of the apartment where a gunman was reported to be. See Illinois v. Wardlow, 528 U.S. 119, 123, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (“[A]n officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.... [NJervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” (internal quotation marks omitted)); Cf. United States v. Valentine, 232 F.3d 350, 357 (3d Cir.2000) (“[W]e conclude that the officers had reasonable suspicion [to detain and frisk the defendant] after they received the face-to-face tip, were in a high-crime area at 1:00 a.m., and saw [the defendant] and his two companions walk away as soon as they noticed the police car.”). Accordingly, Torrence’s detention was a valid Terry stop and, because they were responding to a radio call of a person with a gun, the officers had sufficient cause to believe Tor-rence was armed and dangerous and were thus permitted to conduct a limited search of his person for weapons. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (holding that an officer may conduct “a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual”). The seizure of the crack cocaine, whether obtained as a result of Torrence’s abandonment or a constitutionally permissible pat-down conducted pursuant to a valid Terry stop, was thus reasonable and the District Court did not err in denying Torrence’s motion to suppress. See Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (police officers may seize nonthreatening contraband detected during a protective pat-down search of the sort permitted by Terry)-, United States v. Coggins, 986 F.2d 651, 652, 654-55 (3d Cir.1993) (crack cocaine that defendant abandoned while in flight from the DEA agent was properly admitted during valid Terry stop).

B. Introduction of Evidence of Prior Shooting4

Torrence also complains that, in explaining why the police officers stopped him during the June 2, 2010 incidentj the jury was allowed to hear that the officers were responding to a radio call for a shooting. He argues that he was not charged with gun possession, nor was it listed as an overt act in the conspiracy, and therefore admitting that testimony was unduly prejudicial. Again, we disagree.

As Torrence acknowledges, the jury was told that the police were responding to a radio call for a shooting to explain why they were present in Bartram Village on the night in question. The evidence that *104the police were responding to a radio call was relevant to provide context to the jury and was, at most, prejudicial in that it showed that Torrence was present in an area where crime and gun violence were common.5 We cannot say that the danger of unfair prejudice substantially outweighed the contextual relevance of the evidence. Fed.R.Evid. 403.

C. Introduction of Recorded Conversations Between Co-Conspirators6

Finally, Torrence argues that the District Court should have excluded two recorded conversations between Moten and a confidential informant that reference “Hak” — Torrence’s alias — shooting a rival drug dealer on June 2. Torrence contends that the conversations were irrelevant, hearsay, and unduly prejudicial.7

First, evidence from co-conspirators that Torrence actually shot at a competing drug dealer — ultimately missing his intended target — was direct evidence of his participation in the Harlem Boys’ enterprise and was thus intrinsic to the charged offenses. United States v. Green, 617 F.3d 233, 248-49 (3d Cir.2010) (evidence of uncharged misconduct is admissible if it “directly proves” the charged offense or if the misconduct was contemporaneous with the charged crime and facilitated its commission). Second, the recording was not hearsay because it was plainly a statement made by a coconspirator during and in furtherance of the conspiracy. See Fed.R.Evid. 801(d)(2)(E). Finally, even though the testimony as to the uncharged misconduct is prejudicial, its probative value is not substantially outweighed by the danger of unfair prejudice. Fed.R.Evid. 403.

III. Conclusion

For the foregoing reasons, we will affirm the rulings of the District Court.

United States v. Torrence
612 F. App'x 100

Case Details

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United States v. Torrence
Decision Date
May 11, 2015
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612 F. App'x 100

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