                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 13-3770
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                                   MERRELL HOBBS,
                                a/k/a REL, a/k/a MURDER

                                        Merrell Hobbs,
                                                  Appellant
                                     _______________

                     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
                                   _______________

                      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.

       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

                                              2
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).

                                             3
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.

                                             4
       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).
                                             5
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).
                                              6
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




                                              7
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.
                                                8
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-of-
       court 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).

                                             9
         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.




                                             10
