                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-27-2002

USA v. Hoffman
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2588




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

Recommended Citation
"USA v. Hoffman" (2002). 2002 Decisions. Paper 777.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/777


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                               NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT


                             No. 02-2588


                     UNITED STATES OF AMERICA

                                  v.

                        MARCELLAS HOFFMAN,
                            a/k/a MOE

                                  Marcellas Hoffman,

                                               Appellant


         On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                   (D.C. Crim. No. 01-00169-2)
            Honorable Robert F. Kelly, District Judge


                     Argued October 18, 2002

           BEFORE: ROTH and GREENBERG, Circuit Judges,
                    and WARD, District Judge*

                   (Filed:    November 26, 2002)




*Honorable Robert J. Ward, Senior Judge of the United States District Court for the
Southern District of New York, sitting by designation.


                                  Patrick L. Meehan
                                  United States Attorney
                                  Laurie Magid
                                  Deputy United States Attorney
                                  for Policy and Appeals
                                  Robert A. Zauzmer (argued)
                                  Assistant United States Attorney
                                  Senior Appellate Counsel
                                  Walter S. Batty, Jr.
                                  Curtis R. Douglas
                                  Assistant United States Attorneys
                                  Suite 1250
                                  615 Chestnut Street
                                  Philadelphia, Pa. 19106

                                       Attorneys for Appellee

                                  Ronald B. Thompson (argued)
                                3003 Lincoln Drive West
                                Suite E
                                Marlton, New Jersey 08053

                                     Attorney for Appellant


                       OPINION OF THE COURT


GREENBERG, Circuit Judge.

       This matter comes on before this court on an appeal from an order entered on
May 15, 2002, denying appellant Marcellas Hoffman’s motion to dismiss the indictment
in this case on double jeopardy grounds. The circumstances of the case are as follows.
A grand jury in the Eastern District of Pennsylvania returned a five-count indictment
against Hoffman charging him with conspiracy to distribute heroin in violation of 21
U.S.C. 846, count one; carrying a firearm during and in relation to a drug felony in
violation of 18 U.S.C. 924(c), count two; brandishing a firearm during and in relation
to a drug felony in violation of 18 U.S.C. 924(c), count three; discharging a firearm
during and in relation to a drug felony in violation of 18 U.S.C. 924(c), count four; and
being a felon in possession of a firearm in violation of 18 U.S.C. 922(g), count five.
Hoffman pleaded not guilty to all of the charges.
      At the trial the district court conducted an evidentiary hearing under Fed. R.
Evid. 404(b) with respect to whether the government should be able to introduce
evidence of Hoffman’s drug transactions with Juan Rosado, a government witness. The
district court ruled that the government could not make reference to these transactions
though it did permit evidence that the two men had met. We, of course, are not
concerned on this appeal with any question regarding whether this ruling was correct and
the government in its brief does not challenge the ruling. Notwithstanding the limitation
on the government’s proofs its questioning of Rosado led the court to conclude that the
jury might "infer that . . . meetings between Rosado and [Hoffman] were drug
transactions, thus nullifying the Court’s earlier ruling excluding that evidence." United
States v. Hoffman, Cr. No. 01-169-2, 2002 U.S. Dist. LEXIS 10303, at *5 (E.D. Pa. June
10, 2002). Consequently, on Hoffman’s motion the court granted a mistrial.
      Before the case was retried, Hoffman moved to dismiss the indictment on double
jeopardy grounds contending that the prosecution acted wrongfully and intentionally
provoked Hoffman into moving for a mistrial. The district court denied that motion
whereupon Hoffman appealed. Subsequently the district court filed the opinion to which
we refer above setting forth its reasons for denying the motion.
      In its opinion the district court explained that Hoffman contended that the
principles enunciated in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083 (1982),
barred the retrial on double jeopardy grounds as the government attempted to provoke a
motion for a mistrial. The court pointed out that under Kennedy a retrial would be barred
if the government’s conduct was intended to "goad" the defendant into moving for a
mistrial. Id. at 675-76, 102 S.Ct. at 2089. The court then set forth its conclusion as
follows:
                      After applying the standard as set forth in Kennedy, this Court
      finds that the exception does not apply in this case as the Government’s
      conduct was not intended to provoke the Defendant to move for a
      mistrial. Rather, the Government’s questioning of the witness
      effectively nullified the Court’s earlier ruling regarding the admission
      of testimony regarding the nine prior drug transactions between the
      Defendant and the witness. This Court granted the Defendant’s motion
      for a mistrial since jury could infer that there was information about the
      prior meetings that they were not allowed to know. Although the
      Government could have possibly avoided the mistrial by instructing
      Rosado before he took the stand not to mention the prior drug
      transactions with Defendant, this conduct was not intended to provoke
      Defendant to move for a mistrial. Therefore, this Court finds that the
      Government’s conduct did not rise to the level of prosecutorial
      misconduct necessary to invoke double jeopardy as it did not intend to
      provoke a mistrial, and, thus, the Double Jeopardy clause does not bar
      retrial of Defendant.

Hoffman, 2002 U.S. Dist. LEXIS 10303, at * 8-9.
      While ordinarily we would not have jurisdiction over an appeal pending a
retrial, in this case the collateral order doctrine is applicable and thus we exercise
jurisdiction under 28 U.S.C. 1291. See Abney v. United States, 431 U.S. 651, 661-62,
97 S.Ct. 2034, 2041-42 (1977). Our review is plenary with respect to the legal issues
before us but is deferential as it is predicated on a clear error basis with respect to the
district court’s findings of fact. Kennedy, 456 U.S. at 675, 102 S.Ct. at 2089; United
States v. Smith, 82 F.3d 1261, 1265 (3d Cir. 1996); United States v. Vallejo, 297 F.3d
1154, 1162 (11th Cir. 2002).
      After a careful review of this matter we have determined to affirm the order of
May 15, 2002. Exercising plenary review we agree with the district court’s explanation
of the law. Furthermore, we cannot find clear error in the district court’s conclusion that
the government’s "conduct was not intended to provoke [Hoffman] to move for a
mistrial." Hoffman, 2002 U.S. Dist. LEXIS 10303, at *9. In this regard we point out
that the district court obviously is in a far better position to ascertain the government’s
subjective intentions than are we as its presence at the trial gave it a feel for the situatio
that we cannot have.




               The order of May 15, 2002, will be affirmed.




                                /s/ Morton I. Greenberg
                                Circuit Judge


DATED:       November 26, 200
