                                                     NOT PRECEDENTIAL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.
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.



                                             2
§ 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).

                                              3
       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).

                                               4
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).




                                             5
       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.

                                              6
       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 co-

conspirator 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.
                                            7
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.




                                             8
