2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-11-2015

USA v. Hikeem Torrence

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"USA v. Hikeem Torrence" (2015). 2015 Decisions. Paper 486.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13-3771

_____________

UNITED STATES OF AMERICA

v.

HIKEEM TORRENCE, 

a/k/a HAK

 Hikeem Torrence,

 Appellant 

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 10-cr-00620-13)

District Judge: Hon. Lawrence F. Stengel

_______________

Submitted Under Third Circuit L.A.R. 34.1(a)

April 24, 2015

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

(Filed: May 11, 2015)

_______________

OPINION

_______________

 

 This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, 

does not constitute binding precedent.
2

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. 

I. 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 (3d Cir. May 11,

2015). We provide here only the facts relevant to Torrence’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. 
3

§ 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 limine to exclude recorded 

conversations between a confidential informant and Moten. None of his arguments is 

persuasive.2

 

1 The District Court had jurisdiction under 18 U.S.C. § 3231 and we have 

jurisdiction pursuant to 28 U.S.C. § 1291. 

2

In his statement of the issues, Torrence lists three issues for appeal that are 

different from the three issues he actually discusses in his brief and that do not appear to 

be in relation to this case. We assume that this was merely a clerical mistake but, insofar 

as it was not, those three issues are waived. United States v. Pelullo, 399 F.3d 197, 222 

(3d Cir. 2005), as amended (Mar. 8, 2005) (“It is well settled that an appellant’s failure to 

identify or argue an issue in his opening brief constitutes waiver of that issue on 

appeal.”); see also Fed. R. App. P. 28(a)(8). 
4

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 into 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 (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. ... [N]ervous, 

evasive behavior is a pertinent factor in determining reasonable suspicion.” (internal 

 

3 We review the District Court’s denial of a motion to suppress for clear error as to 

the underlying factual findings and exercise plenary review of its application of the law to 

those facts. United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002). 
5

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 Torrence 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 (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 (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).
6

B. Introduction of Evidence of Prior Shooting4

Torrence also complains that, in explaining why the police officers stopped him 

during the June 2, 2010 incident, 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 the 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. 

 

4 We review the District Court’s evidentiary ruling for an abuse of discretion. 

United States v. Brennan, 326 F.3d 176, 182 (3d Cir. 2003). 

5 The District Court’s opinion and the government’s brief tend to focus on whether 

it was permissible for the government to introduce evidence through the testimony of 

cooperating co-conspirators that, in furtherance of the RICO enterprise, Torrence actually 

did shoot a rival drug dealer on June 2. Torrence’s argument on this point, however, is 

not as to that testimony, but is limited to the police testimony regarding their June 2 stop. 

Nonetheless, as we discuss below, evidence that Torrence shot a rival drug dealer was 

relevant to the charged RICO offenses. 
7

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).

 

6 As we have noted, we review the District Court’s evidentiary ruling for an abuse 

of discretion. Brennan, 326 F.3d at 182. 

7 One of the conversations that Torrence complains about is the following 

exchange:

Moten: I don’t know what you heard but I just need my bread. This shit 

crazy. It’s all Hak’s fault. 

Confidential Informant: It’s Hak’s fault? Oh, he done put him on a mission.

(Torrence App. at 700; App. at 5114.) This largely incomprehensible exchange falls in 

the middle of a larger discussion about how one of the Harlem Boys obtained a gun that 

he used during a robbery. Torrence is mentioned by his alias in passing during that 

discussion and his attorney immediately made that point clear during cross examination, 

when he prompted the agent to explain that Torrence had nothing to do with either the 

gun or the robbery. Accordingly, this conversation was not prejudicial to Torrence and 

was relevant to the purpose for which it was admitted. 
8

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.