608 F. App'x 637
10th Cir.2015Background
- Deandre Hopkins was indicted with seven others for a single, "global" conspiracy to commit multiple bank, credit union, and pharmacy robberies in Tulsa (overt acts listed seven robberies); he was also charged with two specific robberies and related § 924(c) counts.
- At trial the government presented evidence tying Hopkins to three robberies: Barnes Pharmacy (DNA on face covering; earlier separate conviction affirmed on appeal), Metro Pharmacy (cooperator Herron testified Hopkins planned, supplied money, acted as lookout), and Tulsa Credit Union (Herron testified Hopkins helped plan, stole a Jeep, acted as getaway driver, and shared proceeds).
- The government’s broader theory relied heavily on Hoover Crips gang-affiliation evidence and alleged commonalities among the robberies to show one interconnected conspiracy among eight defendants.
- The district court denied Hopkins’s Rule 29 motion challenging interdependence and admitted gang-affiliation evidence over Hopkins’s objection under Rule 403; the jury convicted Hopkins on all counts.
- On appeal Hopkins argued (1) insufficient evidence of interdependence / prejudicial variance between the indictment and proof, (2) erroneous admission of gang-affiliation evidence, (3) double jeopardy because he had been previously convicted separately for the Barnes Pharmacy robbery, and (4) cumulative error.
Issues
| Issue | Hopkins' Argument | Government's Argument | Held |
|---|---|---|---|
| Variance / interdependence (single global conspiracy) | Proof showed only multiple smaller conspiracies, not one global conspiracy; variance prejudiced his substantial rights | Evidence supported a single conspiracy through gang affiliation and common robbery features; any variance was not prejudicial | There was a variance: insufficient evidence of a single global conspiracy; but the evidence did prove three smaller conspiracies (Barnes, Metro, Tulsa Credit Union) and the variance was not substantially prejudicial, so Count One affirmed |
| Admission of gang-affiliation evidence (Rule 403) | Gang evidence unfairly prejudiced jury by imputing criminal character; should be excluded | Gang evidence was circumstantial, probative of agreement, purpose, and knowledge for conspiracy; probative value outweighed prejudice | No abuse of discretion: gang-affiliation evidence was admissible and not unduly prejudicial given other strong evidence against Hopkins |
| Double jeopardy (convicted earlier for Barnes robbery) | Prior substantive conviction for Barnes Pharmacy should bar later conspiracy conviction as to same robbery | Felix controls: conspiracy and substantive offense are distinct for double jeopardy purposes | Double jeopardy claim rejected; prior robbery conviction did not bar conspiracy conviction |
| Cumulative error | Combined errors (variance, gang evidence, double jeopardy) denied fair trial | No errors (or harmless) so no cumulative error | No cumulative-error relief: only one actual error (variance), which was not prejudicial enough to reverse |
Key Cases Cited
- United States v. Sells, 477 F.3d 1226 (10th Cir. 2007) (elements of conspiracy)
- United States v. Carnegie, 533 F.3d 1231 (10th Cir. 2008) (variance review and interdependence analysis)
- United States v. Caldwell, 589 F.3d 1323 (10th Cir. 2009) (notice and prejudice in conspiracy variance cases)
- United States v. Windrix, 405 F.3d 1146 (10th Cir. 2005) (variance prejudice—narrower scheme within indictment may not prejudice)
- United States v. Felix, 503 U.S. 378 (1992) (conspiracy and substantive offense are distinct for Double Jeopardy)
- Kotteakos v. United States, 328 U.S. 750 (1946) (risk of prejudice from multiple conspiracies and many defendants)
- United States v. Robinson, 978 F.2d 1554 (10th Cir. 1992) (gang affiliation can be circumstantial evidence for conspiracy but alone is insufficient)
- United States v. Edwards, 69 F.3d 419 (10th Cir. 1995) (interdependence requires integral steps toward common illicit goal)