                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-13-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1449




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                                                 NOT PRECEDENTIAL


UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                          No. 04-1449




               UNITED STATES OF AMERICA

                               v.

                  MARCELLAS HOFFMAN,
                                 Appellant


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




           Submitted Under Third Circuit LAR 34.1(a)
                      September 12, 2005

     Before: SLOVITER, BARRY and SMITH, Circuit Judges

                   (Filed September 13, 2005)




                           OPINION
SLOVITER, Circuit Judge.

                                            I.

       Appellant Marcellas Hoffman appeals following his conviction by a jury of various

drug and firearms charges. Because the parties are familiar with the case, we will only

recite the pertinent facts.

       Juan Rosado ran a multi-million dollar drug organization distributing cocaine and

heroin in Philadelphia and the surrounding areas. Hoffman was one of Rosado’s

distributors. Hoffman began purchasing heroin and cocaine from Rosado in the summer

of 2000. At the first drug sale, Hoffman bought 250 grams of cocaine for $7,000, paying

cash for half the drugs and taking the other half on consignment. A few days later

Hoffman told Rosado that he had “finished with the drugs” and that he wished to

purchase more. App. at 200. At this second meeting Hoffman brought the $3,500 due for

the drugs he had purchased on consignment and an additional $7,000 to buy more drugs.

At a later meeting, Hoffman informed Rosado that “he could get rid of a truckload of

drugs in Virginia and that he just needed somebody that could supply him with good

quantities and good price.” App. at 201. Hoffman thereafter bought narcotics from

Rosado on many occasions for sale in Virginia.

       In early 2001, Hoffman decided to rob Rosado and enlisted the help of a former

co-worker, Gary Oliver. Hoffman telephoned Rosado and told him that he was coming to

Philadelphia with $30,000 to purchase 500 grams of heroin and a kilogram of cocaine.



                                            2
Oliver testified that on the morning of January 20, 2001, he drove to Hoffman’s house to

pick him up and that when Hoffman came out of his house he was carrying a “bag with a

couple of handguns in it and one of the butts of the guns was hanging out.” App. at 332.

The two men then drove to Camden, New Jersey where they met Hoffman’s cousin

“Casbah.” The three men then drove to meet Rosado at Porky’s Point restaurant.

         Rosado picked up 390 grams of heroin for Hoffman, but not the cocaine requested

because he had decided he was not ready “to do any more business with [Hoffman].”

App. at 203. Rosado decided to meet Hoffman at 5911 Frontenac Street, Rosado’s stash

house. That evening, Rosado put the heroin in his truck and drove with his wife and

mother-in-law to the Frontenac Street house. He sent David Vasquez, one of his

employees, to meet Hoffman at Porky’s Point and bring him back to the Frontenac Street

house.

         Vasquez did so and told Hoffman, Oliver, and Casbah to follow him to Frontenac

Street. After arriving there, Hoffman gave one gun to Oliver, one to Casbah, and kept

one for himself. Hoffman and Oliver followed Vasquez into the house while Casbah

waited outside. Rosado had not yet arrived. Once inside, Hoffman gave Vasquez only

$16,000, not the agreed upon $30,000. After Vasquez demanded the remaining $14,000,

Hoffman and Oliver pointed their guns at Vasquez, and Hoffman handcuffed him and

demanded to know where the drugs and money were located. Vasquez answered that

Rosado was bringing the drugs, and he was then thrown on the floor and pistol whipped



                                             3
by Hoffman, who shot him in the leg.

      When Rosado arrived, he met Hoffman and they went to the second floor where

Hoffman pointed a gun at Rosado, showed him a badge, told him he was under arrest and

handcuffed him. Hoffman then demanded the drugs. Rosado told him the drugs were in

the truck and that he would get them. Before they went to the truck, Hoffman searched

Rosado and took $1,000 in cash, his credit cards, and his license. At some point during

this time Hoffman also took 800-900 grams of cocaine from the kitchen.

      After exiting the Frontenac Street house, Hoffman placed Rosado in his truck with

Casbah and walked towards Rosado’s truck. Rosado freed himself, jumped out of

Hoffman’s truck, and ran towards his own truck. Hoffman chased Rosado and fired at

him, hitting him once in the buttocks and grazing his leg. Rosado’s wife began driving

the truck towards the two men. Hoffman shot at the truck but ran out of bullets. Rosado

then jumped into the truck and drove away, but Rosado’s wife noted the license plate

number of Hoffman’s truck.

      A short time later, Rosado’s truck was pulled over by police. Rosado informed the

police he had been the victim of a shooting and his wife gave the police Hoffman’s

license plate number. Based on information received from Rosado, the police then

searched the Frontenac Street house, where they discovered Vasquez and Oliver, whom

they detained, and recovered drugs, drug paraphernalia, and a loaded firearm.

      That evening, a police officer observed Hoffman’s truck run a red light in Camden,



                                            4
New Jersey. The officer pulled Hoffman over and, as he approached, observed Hoffman

“making all kind[s] of movements in the vehicle.” App. at 400. The officer ordered

Hoffman to place his hands on the wheel, but Hoffman failed to comply. The officer then

asked for Hoffman’s documentation. Hoffman responded that he had left the documents

at a friend’s house. The officer ordered Hoffman to exit the car. The officer testified that

Hoffman became “rambunctious” and began to “push off.” The officer then conducted a

pat down and felt something in Hoffman’s upper left-hand pocket. The officer shined his

flashlight into the pocket and was able to see it was a box of hollow-point ammunition.

After securing Hoffman and Casbah, who was in the truck, the officer performed an

inventory search of the truck and found a loaded gun and several credit cards in the name

of Roberto Roman, the alias used by Rosado. The officer took Hoffman into custody. He

later posted bail and was released.

       On January 25, 2001, the officer who had arrested Hoffman learned that there may

have been an outstanding warrant for Hoffman or his vehicle. The officer went to the

address Hoffman had given him and observed Hoffman on the street. When Hoffman

saw the police he started to run but was caught and arrested. A federal warrant was

issued for Hoffman on February 1, 2001, and he was transferred from state to federal

custody on April 30, 2001. He was arraigned on May 7, 2001.

       Hoffman’s trial began on February 25, 2002. Prior to trial, the District Court had

ruled that the government could not introduce evidence of Hoffman’s prior drug dealings



                                             5
with Rosado. Nevertheless, on the second day of trial, the government elicited testimony

from which the jury could infer that Hoffman and Rosado had had prior drug dealings.

As a result, the District Court granted a mistrial. Before the case was retried, Hoffman

moved to dismiss the indictment on double jeopardy grounds. The District Court denied

that motion and we affirmed on November 26, 2002. United States v. Hoffman, 52 Fed.

Appx. 591 (3rd Cir. 2002). The mandate was not issued until January 23, 2003.

       On March 6, 2003, the grand jury returned a second superseding indictment

against Hoffman, this time containing facts concerning Rosado’s prior drug transactions

with Hoffman. At the retrial, Hoffman was convicted on all counts.1 He was sentenced

to life imprisonment on counts one, two, and six, ten years on count three, twenty years

on count four, and twenty-five years on count five.2

       Hoffman appeals, claiming (1) there was insufficient evidence to support the

                   1
                       The six counts were as follows: (1) Conspiracy to
            distribute and possess with intent to distribute in excess of 100
            grams of heroin and in excess of 500 grams of cocaine in violation
            of 21 U.S.C. § 846; (2) Attempting to possess with intent to
            distribute in excess of 100 grams, approximately 390 grams, of
            heroin in violation of 21 U.S.C. § 841(a)(1); (3) Using and carrying
            a firearm during and in relation to a drug trafficking crime in
            violation of 18 U.S.C. § 924(c); (4) Hobbs Act Robbery, in
            violation 18 U.S.C. § 1951; (5) Using and carrying a firearm during
            and in relation to a violent crime, in violation of 18 U.S.C. §
            924(c); and (6) Being a felon in possession of a firearm in violation
            of 18 U.S.C. § 922(g)(1).
                   2
                    The District Court had subject matter jurisdiction pursuant
            to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C.
            § 1291.

                                             6
conviction; (2) the government failed to prove a commerce clause nexus; (3) the

conviction subjected him to double jeopardy; and (4) his sentence was unconstitutional in

light of United States v. Booker, 543 U.S.          , 125 S. Ct. 738 (2005). In addition,

Hoffman argues that his Fourth Amendment rights were violated, his Speedy Trial Act

and Fifth Amendment due process rights were violated, and his Sixth Amendment right to

effective assistance of counsel was violated.

                                             II.

       Hoffman argues that his convictions on the drug conspiracy charges and firearms

charges were not supported by sufficient evidence. “In reviewing a jury verdict for

sufficiency of the evidence, we must consider the evidence in the light most favorable to

the government and affirm the judgment if there is substantial evidence from which a

rational trier of fact could find guilt beyond a reasonable doubt.” United States v.

Haywood, 363 F.3d 200, 204 n.3 (3d Cir. 2004) (internal quotations and citation omitted).

Viewing the evidence in that light, we conclude that the government did provide

sufficient evidence to prove the existence of a conspiracy, not merely a buyer-seller

relationship. United States v. Gibbs, 190 F.3d 188 (3d Cir. 1999).

       In Gibbs, we held that the essential elements of a conspiracy are: (1) a unity of

purpose between the alleged conspirators; (2) an intent to achieve a common goal; and (3)

an agreement to work together toward that goal. Id. at 197; see also United States v.

Pressler, 256 F.3d 144, 147 (3d Cir. 2001). The government presented sufficient evidence



                                                7
to satisfy each of these elements. For example, there was evidence that Rosado ran a

large cocaine and heroin distribution organization, that Hoffman distributed drugs in

Virginia, and that Hoffman wanted Rosado to be his source for the drugs he sold in

Virginia. There was also evidence of multiple drug transactions between the two men at

which Hoffman purchased large amounts of cocaine and heroin, and evidence of trust as

shown by the fact that Rosado permitted Hoffman to purchase some of the drugs on

credit. Finally, the jury heard evidence that Hoffman was aware of other parts of

Rosado’s drug conspiracy, such as where he obtained his drugs and the identities of some

of the employees he used to distribute them, and that Hoffman frequently called Rosado

to agree upon drug purchase amounts, prices, meeting times, and places. A rational jury

could have found a conspiracy to distribute cocaine and heroin beyond a reasonable

doubt.

         We reject Hoffman’s contention that there was a variance in the proof presented.

The evidence offered at trial did not prove facts “materially different” from those alleged

in the second superseding indictment. United States v. Balter, 91 F.3d 427, 441 (3d Cir.

1996).

         There was also sufficient evidence to find that Hoffman possessed the drugs with

intent to distribute. However, the challenge to the sufficiency of evidence was not raised

in a timely motion for judgment of acquittal pursuant to Rule 29 of the Federal Rules of

Criminal Procedure, and therefore we review only for plain error. United States v.



                                              8
Powell, 113 F.3d 464, 466-67 (3d Cir. 1997). We find none.

       Hoffman also argues that there was insufficient evidence to support his conviction

under 18 U.S.C. § 924(c)(1)(A) for either “carrying and use during and in relation to a

drug trafficking offense” (count three) or carrying and use “during and in relation to a

crime of violence” (count five). Once again, we review for plain error. Powell, 113 F.3d

at 466-67. We find none.

       Under 18 U.S.C. § 924(c), anyone who “uses or carries a firearm, or who, in

furtherance of any such crime, possesses a firearm, shall, in addition to the punishment

provided for such crime of violence or drug trafficking crime,” be sentenced to a term of

imprisonment of not less than five years. There was ample testimony that Hoffman

“actively employed” a firearm during the commission of a drug trafficking crime and a

crime of violence. Bailey v. United States, 516 US 137, 144 (1995). Oliver, Vasquez,

and Rosado testified that Hoffman carried three firearms to the site of the robbery, that he

handed two of these guns to Casbah and Oliver to assist him in the robbery, that he

pointed a handgun at Vasquez and shot him in the leg, that he pointed a gun at Rosado

and shot him in the buttocks and leg, and that he fired shots at Rosado’s wife when she

was driving Rosado’s truck. The testimony of these witnesses provides sufficient

evidence to support Smith’s firearm conviction under 18 U.S.C. § 924(c).

       Hoffman also argues that there was insufficient evidence to support his conviction

for being a felon in possession of a firearm. Hoffman did not file a Rule 29 motion on



                                             9
this issue and we review for plain error. Powell, 113 F.3d at 466-67. Hoffman argues

that there was insufficient evidence to find that he was in possession of the firearm found

in the console of his truck after he was arrested for running a red light because it was not

within his control. Hoffman’s argument is without merit. See New York v. Belton, 453

U.S. 454, 460 (1981) (holding that if firearm is in passenger compartment of vehicle and

is accessible, it is within control of driver). It follows that none of Hoffman’s contentions

challenging his convictions on the basis of sufficiency of evidence are persuasive.

                                            III.

       Hoffman argues that the government failed to prove that his activities affected

interstate commerce and that, as a result, his convictions for conspiracy to commit

robbery under the Hobbs Act, 18 U.S.C. § 1951, must be reversed. Because Hoffman did

not file a Rule 29 motion regarding this issue, we review for plain error. Powell, 113

F.3d at 466-67. Hoffman relies on United States v. Lopez, 514 U.S. 549 (1995).

However, we have held that drug trafficking affects interstate commerce. United States

v. Orozco, 98 F.3d 105, 107 (3d Cir. 1996). Interference with a drug dealer’s business

has been held to violate the Hobbs Act because of the interstate character of drug dealing.

United States v. Cox, 942 F.2d 1282, 1286 (8th Cir. 1991). Accordingly, a conspiracy to

rob drug traffickers may affect interstate commerce. See United States v. Clausen, 328

F.3d 708, 711 (3d Cir. 2003) (holding that conviction for Hobbs Act robbery is

constitutional so long as it has de minimis impact on interstate commerce); United States



                                             10
v. Jones, 30 F.3d 276, 285 (2d Cir. 1994) (holding that robbery of proceeds intended for

purchase of cocaine affected interstate commerce). Therefore, we will affirm the

conviction for conspiracy to commit a Hobbs Act robbery.

                                             IV.

       Hoffman contends that counts two, three, four, and five were multiplicitous and

thereby exposed him to double jeopardy. Hoffman did not file a Rule 29 motion

regarding this issue; we thus review for plain error. Powell, 113 F.3d at 466-67. The rule

governing multiplicity in an indictment was set forth in Blockburger v. United States, 284

U.S. 299 (1932): “Where the same act or transaction constitutes a violation of two

distinct statutory provisions, the test to be applied to determine whether there are two

offenses or only one is whether each provision requires proof of a fact which the other

does not.” Id. at 304; see also United States v. Hodge, 211 F.3d 74, 78 (3d Cir. 2000)

(“To determine whether the offenses grow out of the same occurrence, we apply the test

set forth in Blockburger.”).

       In the present case Hoffman concedes that “all these crimes have some different

elements,” but argues that “realistically, [they] all turn on the same facts – the Frontenac

Street robbery.” Appellant’s Br. at 44. The contention that all the charges are

“realistically” related to the Frontenac Street robbery is, however, irrelevant. Because

each charge contains different elements, the counts are not multiplicitous and did not

subject Hoffman to double jeopardy.



                                             11
                                             V.

       Hoffman argues that the District Court erred in denying his motion to suppress the

gun recovered from his truck that was found during the search following his arrest. We

review the motion to suppress for clear error as to the underlying factual findings and

exercise plenary review of the District Court’s application of the law to those facts.

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

       We reject Hoffman’s argument that there was insufficient cause for the police

officer to examine the box he felt during the pat down, to arrest Hoffman, and to search

his truck. The officer was permitted to conduct a pat down of Hoffman and search the

area within his control after Hoffman made numerous suspicious movements and

continued to do so even after being ordered to put his hands on the steering wheel. New

York v. Belton, 453 U.S. 454 (1981); Terry v. Ohio, 392 U.S. 1 (1968); see also United

States v. Murphy, 261 F.3d 741(8th Cir. 2001).

       As a result of the pat down, the officer felt a box-like object in Hoffman’s pocket,

and was able to determine that it was a box of hollow-point bullets by shining his

flashlight at Hoffman’s pocket. Therefore, the box is admissible under the plain view

exception to the warrant requirement. See generally United States v. Lang, 8 F.3d 268

(5th Cir. 1993). Hoffman was arrested only after the officer discovered the bullets, which

are contraband in the state of New Jersey. Accordingly, the officer had probable cause to

arrest Hoffman. The officer had reasonable suspicion to conduct the pat down and the



                                             12
bullets were contraband in plain view.

                                            VI.

       Hoffman argues that the District Court should have dismissed the second

superseding indictment for violation of the Speedy Trial Act and that the delay between

his arrest and the second superseding indictment violated his due process rights. The

District Court’s construction of the statutory provisions of the Speedy Trial Act is subject

to plenary review and the Court’s conclusions of fact are reviewed for clear error. See

United States v. Dyer, 325 F.3d 464, 467 (3d Cir. 2003).

       Hoffman’s argument relates to the period between the first trial and the second.

We affirmed the District Court’s order denying Hoffman’s motion to dismiss on double

jeopardy grounds on November 26, 2002, but we did not issue the mandate until January

23, 2003. We reject Hoffman’s argument that the government was required to try him

within seventy days of our opinion. The Speedy Trial Act requires that “trial shall

commence within seventy days from the date the action occasioning the retrial becomes

final.” 18 U.S.C. §§ 3161(e). We have held that “[t]he action of a court of appeals does

not become final until its mandate is issued.” United States v. Felton, 811 F.2d 190, 198

(3d Cir. 1987) (en banc).

       Hoffman moved to dismiss his second superseding indictment on Speedy Trial

grounds on March 10, 2003, the date he was arraigned. On that date, only forty-six days

had passed since the mandate had issued. His motion argued that the seventy days had



                                             13
passed, but he used the November 26, 2002 opinion as the inception of that time period.

The District Court held a hearing on Hoffman’s motion on March 13, 2003, reserved

decision, and on April 16, 2003, denied the motion because the seventy-day period had

not expired.3

       On June 23, 2003, the Court entered an order pursuant to 18 U.S.C. §

3161(h)(8)(A) continuing the trial date on the basis of the judge’s findings that the ends

of justice served by the continuance outweighed the best interest of the public and the

defendant in a speedy trial. Because Hoffman did not raise a Speedy Trial claim after

May 10, 2003 (the seventieth day of the seventy-day Speedy Trial period) and before June

23, 2003 (the date of the continuance), the trial, which commenced on October 7, 2003,

did not violate the Speedy Trial Act.

       Hoffman also argues that the government violated the Speedy Trial Act because it

impermissibly delayed securing the second superseding indictment and thereby violated

Hoffman’s due process rights. The Due Process Clause of the Fifth Amendment requires

dismissal of an indictment “if it [is] shown . . . that the pre-indictment delay . . . caused

substantial prejudice to [the accused’s] rights to a fair trial and that the delay was an

intentional device to gain tactical advantage over the accused.” United States v. Marion,

404 U.S. 307, 324 (1971). In the present case Hoffman has failed to allege any prejudice


                    3
                     The period of March 10, 2003 to April 16, 2003 (the time
             period between the motion and decision) is excluded from the
             seventy-day Speedy Trial period under 18 U.S.C. § 3161(h)(1)(F).

                                              14
caused by the purported delay and has failed to show that the delay was used to gain a

tactical advantage. The District Court recognized that the second superseding indictment

was delayed due to the need to conduct further investigation, not to gain an improper

tactical advantage or to prejudice Hoffman. See United States v. Sasso, 59 F.3d 341, 352

(2d Cir. 1995) (finding post-indictment action appropriate to prepare superseding

indictments against persons already charged).

       Lastly, Hoffman argues that the government violated the Speedy Trial Act because

his arrest by New Jersey state police in January 2001 was pursuant to federal charges and

that he was thus in federal custody for purposes of the Speedy Trial Act. However, as the

District Court correctly recognized, the Speedy Trial Act did not apply until Hoffman was

taken into federal custody on April 30, 2001. Therefore, because Hoffman’s initial

appearance and arraignment were conducted within thirty days of being taken into federal

custody, there was no violation of the Speedy Trial Act.4




                   4
                      Hoffman also raises an ineffective assistance of counsel
            claim. We have repeatedly stated that Sixth Amendment claims of
            ineffective assistance of counsel should ordinarily be raised in a
            collateral proceeding pursuant to 28 U.S.C. § 2255 rather than on
            direct appeal. United States v. Oliva, 46 F.3d 320, 325 (3d Cir.
            1995). Hoffman’s claim does not fall into the narrow exception we
            have recognized to this rule. See Government of the Virgin Islands
            v. Zepp, 748 F.2d 125, 133-134 (3d Cir. 1989). We thus deny
            Hoffman’s ineffective assistance of counsel claim without
            prejudice to his ability to raise the issue in an appropriate collateral
            proceeding.

                                              15
                                            VII.

       At the time of Hoffman’s sentencing, the District Court did not have the benefit of

the Supreme Court’s decision in United States v. Booker, 543 U.S.        , 125 S. Ct. 738

(2005). Following Booker, we held in United States v. Davis, 407 F.3d 162 (3d Cir.

2005) (en banc), that a defendant’s substantial rights may have been affected where the

District Court erred by treating the Guidelines as mandatory rather than advisory.

Therefore, having concluded that sentencing issues that arise in light of the Booker

decision are best determined by the District Court in the first instance, Davis, 407 F.3d at

165-66, we will affirm Hoffman’s conviction but vacate the sentence and remand for re-

sentencing.




                                             16
