NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 13-3770

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UNITED STATES OF AMERICA

v.

MERRELL HOBBS, 

a/k/a REL, a/k/a MURDER

 Merrell Hobbs,

 Appellant 

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On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 10-cr-00620-02)

District Judge: Hon. Lawrence F. Stengel

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

April 24, 2015

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

(Filed:May 11, 2015)

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OPINION

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 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.

Merrell Hobbs 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 in Philadelphia. On appeal, he essentially raises four

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 lead opinion in the case. 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 Hobbs’s appeal.

Hobbs was named along with nineteen other defendants in an eighty-nine count 

superseding indictment. More 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; carjacking and aiding and abetting (count 4), in 

violation of 18 U.S.C. § 2119; carrying and using a firearm during a crime of violence 

(counts 5 and 27), in violation of 18 U.S.C. § 924(c); assault with a deadly weapon in aid 

of racketeering and aiding and abetting (count 26), in violation of 18 U.S.C. § 1959(a)(3); 

distribution of crack cocaine (count 38), in violation of 21 U.S.C. §§ 841(a)(1) and 

(b)(1)(c); possession of crack cocaine with the intent to distribute (counts 41 and 65), in 

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(c); and possession of a firearm in 
3

furtherance of a drug trafficking crime (count 42), in violation of 18 U.S.C. § 924(c). He 

was acquitted of count 5, but convicted of all other counts in which he was named in the 

superseding indictment. The District Court sentenced him to 480 months’ imprisonment 

and five years’ supervised release, and imposed various fines and special assessments. 

II. Discussion1

On appeal, Hobbs challenges the District Court’s denial of his motion for the 

disclosure of metadata, admission of uncharged misconduct without analysis under 

Federal Rule of Evidence 404(b), denial of his motion for a mistrial based on mistaken 

identity evidence, and imposition of consecutive mandatory minimum sentences. We 

address each argument in turn.

A. Disclosure of Metadata2

Hobbs argues that the District Court erred in refusing to order disclosure of the 

metadata associated with the electronic transcription of a statement he gave to the police 

while in custody. According to Hobbs, the government was obligated to produce the 

metadata from the thumb drive upon which his statement to a Philadelphia police 

detective was stored, both because the metadata was Brady material and because Federal 

 

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

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

2 We review the District Court’s evidentiary rulings for an abuse of discretion. 

United States v. Knight, 700 F.3d 59, 62 (3d Cir. 2012). “In reviewing Brady claims, we 

review the District Court’s conclusions of law de novo and its findings of fact for clear 

error.” United States v. Moreno, 727 F.3d 255, 262 (3d Cir. 2013). 
4

Rule of Criminal Procedure 16 requires the metadata’s production.3 But Hobbs has failed 

to show that he is entitled to the information. He requested the metadata because he 

thought it could lead to impeachment information, even though he admitted he had no 

idea what that impeachment information might be, and despite his having a copy of the 

statement, which he did not allege to be inauthentic or inaccurate. In other words, Hobbs 

speculates that there is some unknown possibility that the metadata could potentially be 

helpful in some unknown way. That is far from sufficient to establish a violation of 

either Brady or Federal Rule of Criminal Procedure 16. See Lambert v. Blackwell, 387 

F.3d 210, 252 (3d Cir. 2004) (“[T]o establish a Brady violation requiring relief, a 

defendant must show that (1) the government withheld evidence, either willfully or 

inadvertently; (2) the evidence was favorable, either because it was exculpatory or of 

impeachment value; and (3) the withheld evidence was material.”); Fed. R. Crim. P. 

16(a)(1)(E)(iii) (requiring disclosure of items “material to preparing the defense”). 

Accordingly, the District Court did not err in denying his motion. 

 

3 Hobbs also contends production was required under Federal Rule of Civil 

Procedure 34, claiming that it “may provide guidance and should apply where electronic 

metadata, or the native format is specifically requested and relevant.” (Opening Br. at 23 

(internal quotation marks omitted).) That Rule does deal with the manner and form in 

which electronically stored information should be produced in a civil case when such 

information is discoverable, but the Rule has no relevance in this criminal proceeding, 

especially since the question is whether Hobbs sufficiently established that the metadata 

was discoverable in the first place. 
5

B. Prejudicial Evidence of Uncharged Misconduct4

Hobbs next challenges the District Court’s admission of evidence detailing 

uncharged misconduct – specifically, a victim’s testimony describing a prior assault and a 

Philadelphia police sergeant’s testimony that Hobbs had been arrested for eluding law 

enforcement and reckless endangerment. Hobbs was not charged with either of those acts 

in the superseding indictment, even though he was charged for a subsequent assault of the 

same victim in count 26 of the superseding indictment. As he argued in his pre-trial 

motion to exclude such evidence, Hobbs contends that the testimony should have been 

subjected to a Rule 404(b) analysis, rather than summarily admitted as intrinsic evidence. 

Assuming without deciding that Hobbs is correct that the uncharged misconduct should 

have been subjected to analysis under Rule 404(b), we believe that the error was 

harmless.

It is clear that the admission of testimony describing one uncharged assault and 

describing the incident in which Hobbs eluded law enforcement had no meaningful 

impact on the jury’s verdict, given the volume of evidence against Hobbs and the Harlem 

Boys. The government presented weeks of testimony from co-conspirators and victims, 

detailing the Harlem Boys’ extensive illegal – and frequently violent – activities in 

support of their ongoing large-scale drug trafficking enterprise, including evidence that 

 

4 As we have noted, we review the district court’s evidentiary rulings principally 

on an abuse of discretion standard. Knight, 700 F.3d at 62. “We exercise plenary review, 

however, of [the district court’s] rulings to the extent they are based on a legal 

interpretation of the Federal Rules of Evidence.” Complaint of Consolidation Coal Co., 

123 F.3d 126, 131 (3d Cir. 1997). That includes plenary review “of whether evidence 

falls within the scope of Rule 404(b).” United States v. Cruz, 326 F.3d 392, 394 (3d Cir. 

2003).
6

Hobbs was part of a second assault on the same victim. Based on the overwhelming 

evidence presented, we are left with a sure conviction that the victim’s testimony 

regarding the first assault and the sergeant’s testimony that Hobbs tried to elude the 

police had no impact on the verdict. United States v. Vosburgh, 602 F.3d 512, 540 (3d 

Cir. 2010) (test for harmless error is whether it is highly probable that the error did not 

contribute to the judgment; in other words, the court must possess a sure conviction that 

the error did not prejudice the defendant).

C. Identification Evidence5

Hobbs also challenges the District Court’s denial of his motion for a mistrial after 

a witness incorrectly identified him in a photo spread as having perpetrated an assault that 

he did not commit. Hobbs was charged in the original indictment with assaulting a 

victim named Zambo Forbes, because Forbes, viewing a photo spread, had identified him

as the perpetrator. In the superseding indictment, the government dropped that charge 

because – as the government now admits – Hobbs did not commit that crime and Forbes 

had made a mistaken identification. Before trial, Hobbs moved to suppress the photo and 

the District Court denied that motion based on the government’s representation that it had 

dropped the assault charge and thus that the motion was moot. At trial, however, the 

government elicited testimony from Forbes that he circled Hobbs’s picture in the photo 

spread because it was “the guy [he] assumed shot at [him].” (App. at 2330.) After 

Forbes testified, Hobbs asked the District Court to instruct the jury that he was not 

 

5 We review the District Court’s denial of a motion for a mistrial for an abuse of 

discretion. United States v. Liburd, 607 F.3d 339, 342 (3d Cir. 2010). 
7

charged with assaulting Forbes, but the District Court denied that request because the 

government had not elicited testimony that the person pictured in the photo array was 

Hobbs and because the government represented that it would present testimony that 

Hobbs was not involved in the assault. Hobbs then moved for a mistrial. The 

government explained that it introduced the evidence because it feared that the other 

defendants who were charged with the crime would attempt to use the mistaken 

identification to exculpate themselves. The District Court ultimately denied Hobbs’s 

motion for a mistrial and a government witness testified that Forbes had mistakenly 

identified Hobbs as one of the attackers. In its closing charge to the jury, the District 

Court instructed that Hobbs did not assault Forbes and that the jury should not use that 

identification as evidence against Hobbs. 

We are left to wonder what motivated the prosecutor’s conduct in this regard. The 

decision to elicit mistaken identification testimony was misguided, particularly after the 

government had represented to the District Court that Hobbs’s motion to suppress was 

moot. The prosecutor’s justification – that he wanted to preempt the use of that mistaken 

identification by the defendants who were charged with the assault – is an awfully poor 

reason to introduce confusing and irrelevant evidence. That said, the error in eliciting 

that testimony and the District Court’s error in permitting it without immediate correction

– and we think it important to note that both were indeed error – were harmless. First, 

Hobbs’s attorney cross-examined the case agent, who testified that the Forbes 
8

identification was a mistake.6 That exchange made it sufficiently clear to the jury that 

Forbes’s identification of Hobbs was not accurate. Moreover, at trial, the two Harlem 

Boys who actually did commit the assault described the attack and its participants, which 

did not include Hobbs. Further, the District Court later instructed the jury that Hobbs 

was not charged with the Forbes assault and that they could not consider the assault as 

evidence against Hobbs.7 That the Court did not give the instruction until its final charge 

 

6 Specifically, the following exchange occurred: 

Counsel for Hobbs: [T]he indictment does not charge Mr. Hobbs with any 

involvement in the June 19th 2008 assault on Zambo Forbes, correct?

Agent Bowman: That is correct.

...

Counsel for Hobbs: Based on your investigation, the identification that Mr. 

Forbes made ... was a mistaken identity ... ?

Agent Bowman: That’s right.

Counsel for Hobbs: Okay. And that identification was of Mr. Hobbs, 

correct?

Agent Bowman: Correct.

Counsel for Hobbs: But your investigation concluded that Mr. Forbes was 

wrong, correct?

Agent Bowman: Yes

(App. at 2472-73.) 

7 Specifically, the Court instructed the jury as follows:

During the testimony of Zambo Forbes, you heard testimony concerning an 

out-of-court identification by Mr. Forbes of the defendant, Merrell Hobbs. 
9

to the jury does not change our analysis because, again, the day after Forbes testified, 

Hobbs’s attorney elicited testimony from the case agent that Hobbs was not involved in 

the Forbes attack. Finally, as discussed above, the properly admitted evidence of guilt in 

this case was overwhelming. Accordingly, we are confident that the errors did not 

prejudice Hobbs. 

D. Sentencing Error8

Finally, Hobbs argues that the consecutive mandatory minimum sentences 

imposed by the District Court violated the Double Jeopardy Clause of the Fifth 

Amendment. The District Court imposed consecutive mandatory sentences of five years 

for count 27 and twenty-five years for count 42 – both violations of 18 U.S.C. § 924(c) 

for possession of a firearm during a crime of violence and during a drug trafficking 

offense, respectively. Hobbs argues that, because both gun crimes are predicated on the 

same drug conspiracy charged in count 2 of the indictment, they are multiplicitous. He is 

wrong.

 

Mr. Hobbs is not charged with participation in the alleged assault of Zambo 

Forbes, that’s at Count 28, and the government did not introduce the 

evidence to show any connection between Mr. Hobbs and that incident. 

You are therefore instructed that you cannot consider or use that out-ofcourt identification as part of the government’s case against Mr. Hobbs. 

(App. at 8693.)

8 We exercise plenary review over the District Court’s imposition of consecutive 

mandatory sentences under 18 U.S.C. § 924(c). United States v. Diaz, 592 F.3d 467, 470 

(3d Cir. 2010). 
10

In United States v. Diaz, we explained that, when a defendant is charged with one 

drug trafficking offense, he may not be convicted of two separate counts of carrying a 

firearm in relation to that single offense. 592 F.3d 467, 475 (3d Cir. 2010). But that is 

not what happened here. Hobbs was convicted of one count of assault with a deadly 

weapon in aid of racketeering – and an accompanying § 924(c) offense – and a separate 

count of possession of crack with the intent to distribute – and an accompanying § 924(c) 

offense. Those are two separate crimes, only one of which is contained in the conspiracy 

charged in count 2 of the superseding indictment. Accordingly, because there are two 

separate offenses and two accompanying firearms charges, the consecutive mandatory 

minimum sentences are not multiplicitous and do not violate Double Jeopardy. United 

States v. Kennedy, 682 F.3d 244, 257 (3d Cir. 2012) (“Because Kennedy was convicted 

of two distinct possession-with-intent-to-distribute counts, and because the jury properly 

found that he possessed separate firearms in furtherance of those crimes, his concomitant 

§ 924(c) convictions were not multiplicitous.”)

III. Conclusion

For the forgoing reasons, we will affirm the judgment and sentence of the District 

Court.