United States v. John Hopper , 436 F. App'x 414 ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0366n.06
No. 09-6234 FILED
UNITED STATES COURT OF APPEALS May 31, 2011
FOR THE SIXTH CIRCUIT
LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
JOHN HOPPER, ) MIDDLE DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
Before: MARTIN and SUTTON, Circuit Judges; GRAHAM, District
Judge.*
GRAHAM, Senior District Judge. Defendant-Appellant John
Hopper (“Hopper”) was convicted by a jury of conspiracy to injure
a postal worker engaged in the lawful discharge of his duties,
assaulting a postal worker engaged in the performance of his
official duties with the intent to commit aggravated robbery, and
carrying, using and brandishing a firearm during and in relation to
a crime of violence. On appeal, Hopper raises as error the
admission of evidence of other robberies under Fed. R. Evid.
404(b), the denial of his motions for judgment of acquittal and for
a mistrial, and the district court’s application of the official
victim enhancement under the United States Sentencing Guidelines
(“U.S.S.G.”) at sentencing. For the following reasons, we affirm.
I.
*The Honorable James L. Graham, Senior United States District
Judge for the Southern District of Ohio, sitting by designation.
Hopper was charged by indictment filed in the Middle District
of Tennessee on November 5, 2008, with conspiracy to injure a
postal worker engaged in the lawful discharge of his duties in
violation of 18 U.S.C. § 372 (Count One), assaulting a postal
worker engaged in the performance of his official duties with the
intent to commit aggravated robbery in violation of 18 U.S.C. §
111(a) (Count Two), and carrying, using and brandishing a firearm
during and in relation to a crime of violence (the § 111(a) offense
in Count Two) in violation of 18 U.S.C. § 924(c). Tony Ridley, his
co-conspirator, was also charged in the indictment, but Ridley
pleaded guilty and agreed to testify against Hopper.
Prior to trial, Hopper filed a motion in limine seeking to
prevent the government from introducing evidence of other robberies
allegedly committed by Hopper and Ridley. The government argued
that evidence of these other robberies, which were committed within
the week preceding the indicted offenses, was background evidence
concerning the formation and existence of the conspiracy, and
therefore not subject to Rule 404(b). The district court did not
accept this argument, but found that the evidence was admissible
under Rule 404(b) to prove the identity of Hopper as the robber,
and as bearing on his intent and the existence of a plan.
At trial, the government presented evidence concerning the
robbery of Eric Schafer while he was working as a letter carrier
for the United States Postal Service on February 29, 2008.
Schafer, who was wearing his uniform at the time and driving a
marked Postal Service vehicle, was delivering mail to mailboxes at
an apartment complex located in the White Bridge Road area of
Nashville, Tennessee, at approximately 2:15 p.m. when he felt
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something pressed against the back of his head and heard someone
say, “Give me your f’ing money.” Schafer turned around to see a
gun pointed at his face. He described the robber as a large man,
about 6'2" and 250 pounds, wearing black jeans and a black hoodie,
with a bandanna covering his face, but he was unable to identify
the robber. The robber took his wallet, which contained cash and
debit/credit cards, and his cell phone. The robber then fled in a
black Nissan with no tags and tinted windows, and Schafer called
the police. Schafer spoke with the police for an hour at the scene
of the robbery, and then continued on his mail delivery route. His
cell phone and debit/credit card were used after the robbery
without his authorization.
The robbery was investigated by Postal Inspector Wayne Martin.
Based on bank and phone records provided by Schafer, Martin learned
that the stolen credit card had been used at a Kroger store and at
Citgo and Mapco gas stations. Phone calls were made to a location
at 5800 Maudina and to a phone subscribed in the name of Tony
Ridley. Martin went to the apartment complex located at 5800
Maudina and observed a black Nissan Altima parked near Apartment
J6, which was leased to Lisa Aldridge. The black Nissan was later
pulled over in a traffic stop, and the driver was identified as
Lisa Aldridge. Martin viewed a video of the Kroger transaction
involving the use of the stolen credit card and saw that the woman
involved in that transaction was Aldridge. Aldridge was
interviewed on March 10, 2008. She provided information concerning
what she referred to as the “mailman robbery,” which she stated was
committed by Ridley and “C-Lo.” She admitted using Schafer’s
3
credit card and cell phone, and stated that her Nissan was used
during the robbery.
Hopper was arrested at his father’s house where he resided,
and Hopper acknowledged that his nickname was “C-Lo.” A black
hooded sweatshirt, ammunition and a revolver were found in Hopper’s
bedroom. When asked if this was the gun used in the robbery of a
mail carrier, Hopper looked down and stated, “That’s not the gun.”
Hopper denied knowing Ridley or being affiliated with a gang.
Hopper’s booking information revealed that he was 6'3" tall and
weighed 300 pounds.
Martin testified that when Ridley was first interviewed, he
denied being involved in the Schafer robbery, and denied seeing or
handling a gun. In a later interview, Ridley admitted being the
driver in the Schafer robbery and handling the gun. Ridley told
police that Hopper had been injured playing football in high
school, a fact which was corroborated at trial by the testimony of
Ralph Thompson, the football coach at Maplewood High School.
Lisa Aldridge, Ridley’s girlfriend and the mother of his
child, testified at trial. Aldridge was the owner of a black
Nissan Altima, and the vehicle had temporary tags in February and
March of 2008. She resided at 5800 Maudina Avenue, Apartment J6.
Aldridge testified that she met Hopper, known to her as “C-Lo,”
through Ridley and that both Ridley and Hopper were members of the
Rollin’ 40s Crips gang. Aldridge obtained Schafer’s debit/credit
card when Hopper came to her apartment with Ridley after the
robbery. Hopper was carrying a black revolver in his hand which
belonged to Ridley. Ridley announced that they had just robbed a
postal worker. Hopper pulled the card from the black hoodie he was
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wearing and handed it to her, and Ridley told her to see if the
card worked. Aldridge used Schafer’s debit/credit card at a Kroger
and a Citgo gas station without his authorization. Aldridge also
obtained Schafer’s cell phone from Hopper and used it to make
calls.
Aldridge testified that Ridley and Hopper also discussed two
other robberies, one in which they got $200 in the robbery of a man
at a construction site, and also the robbery of a Mexican man whose
necklace they stole, but the medallion fell off the necklace. The
gun used in these robberies was the gun used in the robbery of the
postal worker, and her black Nissan was used in the two other
robberies as well.
Aldridge further testified that when law enforcement officers
questioned her about the robberies in March of 2008, they showed
her a photo spread that included a photo of Hopper, but she lied
and denied that she recognized anyone. Aldridge stated that she
lied because another gang member, Chris Grissom, was present in her
apartment at the time and she was afraid for the safety of herself
and her children. She also admitted that during initial
questioning, she tried to protect Ridley and was not honest about
Ridley’s ownership of the gun. However, she later informed the
investigators about the gun. Pursuant to a plea agreement,
Aldridge pleaded guilty to the offenses of conspiracy to commit
identification fraud, wire fraud, identification fraud and
aggravated identity theft stemming from her use of Schafer’s credit
card.
Ridley testified that he and Hopper, known to him as “C-Lo,”
committed multiple armed robberies beginning in February of 2008,
5
and that they were members of the Rollin’40s Crips street gang.
Ridley testified that he and Hopper would ride around in Aldridge’s
black Nissan Altima, which had temporary tags, looking for people
to rob. Ridley testified that both he and Hopper robbed a man
working at the Bellevue apartment complex. They pointed a gun at
the man and took his wallet and cell phone. They also took the
man’s necklace off his neck. Ridley recalled that they took the
medallion off the necklace and the necklace fell to the ground.
Ridley also testified about the robbery of a man working on a house
on Kentucky. Ridley waited in the car while Hopper left the
vehicle and robbed the man at gunpoint. That same day, Ridley
drove the Nissan to a location where Hopper left the car carrying
the gun and robbed a Mexican man, taking $3.00. Ridley and Hopper
equally split the proceeds from the robberies.
Ridley also testified concerning the Schafer robbery. He
stated that he drove to the mailman’s location and observed the
mailman’s truck. Hopper, dressed in a black hoodie and carrying
the firearm, exited the black Nissan Altima and robbed the mailman.
Ridley was wearing a sky blue hoodie, that being a gang color for
the Rollin’ 40s Crips. Hopper took the mailman’s wallet, which
contained cash and credit cards, and his cell phone. After the
robbery, Ridley and Hopper returned to Ridley’s apartment, where
Ridley gave a credit card to Aldridge and told her to take it to
Kroger to see if it would work.
Ridley admitted that he initially lied by telling police that
“C-Lo” was not in the photo spread that was shown to him because he
didn’t want “C-Lo” to get caught, but after Ridley was arrested, he
picked Hopper’s photograph out of an array. Ridley’s gun, a .357
6
Magnum revolver, was used in the robberies. After he came under
investigation by the police, Ridley sold the gun in March of 2008
with the assistance of Chris Grissom, another member of the Rowlin’
40s Crips gang, and Percy Eugene Waters, who found a buyer for the
gun. Grissom hid Ridley’s gun for a week at his mother’s house
before Ridley sold the gun. Ridley told Grissom that the gun had
been used in a robbery, and Grissom heard Ridley and Hopper
discussing the mailman robbery. Ridley testified that, pursuant to
a plea agreement, he pleaded guilty to all eight counts of the
indictment with which he was charged. The government agreed not to
request an upward departure if Ridley cooperated.
The government presented other evidence of the uncharged
robberies. Ancieto Lara testified that he was robbed at gunpoint
on February 22, 2008, at approximately 10:00 a.m., while working at
an apartment complex at the Lakes of Bellevue in Nashville,
Tennessee. He was approached by two men wearing dark hooded
sweatshirts. One of the men was big and tall, around 6'4", and the
other was shorter and thinner. The men asked about an apartment
number that did not exist, then pulled a black revolver and
demanded Lara’s wallet. One of the robbers also pulled Lara’s
necklace off his neck, but the pendant or medallion fell to the
ground. The robbers then drove away in what appeared to be a green
Saturn. Lara’s credit card was used for gasoline purchases. At
trial, Lara identified Hopper as being one of the robbers.
Michael Wood, Lara’s co-worker, testified that he was walking
to the other side of the building when he observed two men
approaching Lara. One of the men was wearing a hoodie. When he
7
returned, Lara told him that he had been robbed. Wood helped Lara
find the medallion that had fallen off his necklace.
On February 25, 2008, at approximately 10:30 a.m., Jeffrey
Horner and Billie Inman were painting a house on Kentucky Avenue in
The Nations area when a man came up behind Horner and asked for a
cigarette. Horner testified that he told the man that he did not
smoke, at which point the person stated, “Come on up out of that
pocket with that wallet.” Horner turned and saw the man pointing
a gun at him. The robber took his cell phone, then patted his back
pocket and took his wallet, which contained about $200, while
jamming the gun into Horner’s stomach. The robber fled and got
into the passenger side of a black Altima with temporary tags and
tinted windows. When interviewed by the police, Horner described
the robber as a very large man wearing a black hoodie with the hood
over his head and black pants. At trial, Horner identified Hopper
as the person who robbed him. Inman, who witnessed the robbery,
described the robber as being 6'3" or 6'4" and close to 300 pounds.
Although Inman was unable to identify anyone in a photo spread
shown to him by police after the robbery, he identified Hopper at
trial as being the person who robbed Horner.
At approximately 10:45 a.m. on February 25, 2008, Juan Mendez
was robbed while working at the Village West Apartments on
Tennessee Avenue in Nashville. Mendez testified that he was
throwing garbage away when a man wearing dark clothing and carrying
a gun approached him and demanded his money. Mendez gave him
$3.00. After the robber patted Mendez down and learned that he did
not have a wallet, the robber was picked up by a black car, which
then left the scene. Mendez described the robber as an African-
8
American wearing a dark shirt and pants with a green jacket. The
robber was a little taller and heavier than Mendez, who was 5'11"
and 225 pounds.
At the close of the government’s case, Hopper moved for a
judgment of acquittal. The motion was denied by the district
court. The jury found Hopper guilty on all counts. In preparing
the presentence investigation report, the probation officer grouped
Counts One and Two and applied the Guidelines for assault found in
U.S.S.G. § 2A2.2. The probation officer also applied the victim-
related adjustment for official victim and increased the base
offense level by six levels pursuant to U.S.S.G. § 3A1.2(b).
Hopper objected to the application of this enhancement, and the
district court denied that objection. Hopper was sentenced to a
term of incarceration of forty-one months on Counts One and Two to
run concurrently, and a consecutive term of eighty-four months on
Count Three.
II.
Hopper raises as error the admission of evidence of other
robberies committed by Hopper and Ridley during the week prior to
the offenses charged in the indictment. The government argued
unsuccessfully below, and now contends on appeal, that this
evidence was admissible as background information relevant to the
conspiracy between Hopper and Ridley. We need not address this
issue, because we find that the district court properly admitted
evidence of the uncharged robberies pursuant to Rule 404(b).
Under Rule 404(b), “evidence is not admissible to prove the
character of a person in order to show action in conformity
9
therewith” but such evidence may be admissible for other purposes.
Rule 404(b). In this case, the district court admitted the
evidence as bearing on Hopper’s identity as the robber, his intent,
and proof of the existence of a plan.
There is a three-step process for the admission of Rule 404(b)
evidence. The district court must: (1) make the preliminary
determination regarding whether there is sufficient evidence that
the other acts took place; (2) determine whether the other acts are
admissible for a proper purpose; and (3) determine whether the
other acts evidence is more prejudicial than probative. United
States v. Lattner, 385 F.3d 947, 955 (6th Cir. 2004). Once the
court determines that the evidence is admissible, the court must
instruct the jury concerning the factors supporting admissibility,
explain why the factor is material, and caution the jurors against
using the evidence for an improper purpose. United States v. Bell,
516 F.3d 432, 441 (6th Cir. 2008). In reviewing the admission of
evidence under Rule 404(b), this court reviews for clear error the
district court’s determination that the other act took place,
reviews de novo the district court’s legal determination that the
evidence was admissible for a proper purpose, and reviews for abuse
of discretion the determination that the probative value of the
other acts evidence is not substantially outweighed by its unfairly
prejudicial effect. Id. at 440.
As to the first step, the government is not required to
demonstrate that the other acts occurred by a preponderance of the
evidence, but rather must present some substantiation that they
occurred. Huddleston v. United States, 485 U.S. 681, 689 (1988).
Rule 404(b) evidence is relevant only if the jury can reasonably
10
conclude that the act occurred and that the defendant was the
actor. Id. The record in the instant case reveals that the
government presented sufficient evidence that the previous
robberies of Lara, Horner and Mendez did in fact occur and that
they were committed by Ridley and Hopper, thus satisfying the first
branch of the test.
In regard to the second branch, evidence of other acts is
probative of a material issue other than character if the evidence
is offered for an admissible purpose, the purpose for which the
evidence is offered is material or “in issue” and the evidence is
probative with regard to the purpose for which it is offered.
United States v. Rayborn, 495 F.3d 328, 342 (6th Cir. 2007). The
“government’s purpose in introducing the evidence must be to prove
a fact that the defendant has placed, or conceivably will place, in
issue, or a fact that the statutory elements obligate the
government to prove.” United States v. Merriweather, 78 F.3d 1070,
1076 (6th Cir. 1996).
In this case, the government was required to prove that Hopper
was the person who committed the indicted offenses. Hopper denied
that he was involved in the offenses charged in the indictment or
in the other robberies, thus putting his identity at issue.
Schafer was unable to identify Hopper as the robber because the
robber’s head was covered with a bandanna. Where the identity of
the perpetrator of the crime charged is at issue, evidence that the
defendant committed other acts utilizing the same modus operandi is
admissible as tending to prove that the defendant committed the
crime charged. United States v. Johnson, 27 F.3d 1186, 1194 (6th
Cir. 1994). The theory is that if the method of operation employed
11
in all of the crimes is essentially identical and sufficiently
unique, the method can be said to be the “signature” of the
defendant, thus tending to prove his identity as the perpetrator of
the crime. Id. In this case, all of the victims testified that
the robber came up behind them around mid-day while they were
involved in their tasks. Two robbers were involved in the first
robbery, while one robber was involved in the other robberies and
fled in a vehicle, more specifically described by two of the
victims as a black Nissan with tinted windows and no tags or
temporary tags. All the victims testified that the robber was a
large man over six feet tall, wearing black clothing. In each
case, the robber carried a gun. Two of the victims, Lara and
Horner, identified Hopper at trial as being the robber. Although
there were some differences between the robberies and none of the
other victims were federal employees, it is not necessary that the
crimes be identical in every detail to be admissible under this
theory. United States v. Perry, 438 F.3d 642, 648 (6th Cir. 2006).
The circumstances of the uncharged robberies were sufficiently
unique and sufficiently similar to the Schafer robbery to be
relevant and probative of the robber’s identity.
Hopper’s intent was also at issue. Other act evidence is
admissible if specific intent is a statutory element of the
offense. Conspiracy is a specific intent crime because the
government must prove that the defendant had the specific intent to
further the common unlawful objective of the conspiracy.
Merriweather, 78 F.3d at 1078. An intent to assault, impede,
intimidate or interfere is an element of the § 111(a) charge. See
United States v. Feola, 420 U.S. 671, 684 (1975). To prove the §
12
924(c) charge, the government was required to prove that Hopper
knowingly used and carried a firearm during the commission of the
offenses, the term “knowingly” being defined in this context as
“voluntarily and intentionally[.]” See Sixth Circuit Pattern Jury
Instructions § 12.01 (citing United States v. Odom, 13 F.3d 949,
961 (6th Cir. 1994)(defining “knowingly” in the context of an 18
U.S.C. § 922(g)(1)) firearms offense)).
The district court also admitted the evidence for the purpose
of showing the existence of a plan. To prove the conspiracy
offense in Count One, the government was required to prove the
existence of a common plan or objective. See United States v.
Damra, 621 F.3d 474, 498 (6th Cir. 2010)(describing a conspiracy
under 18 U.S.C. § 371). In Counts Two and Three of the indictment,
Ridley and Hopper were charged both as principals under §§ 111(a)
and 924(c)(1)(A)(ii) and under 18 U.S.C. § 2 as aiders and
abettors. Aiding and abetting requires that a defendant “in some
sort associate himself with the venture, that he participates in it
as something he wishes to bring about, and that he seek by his
action to make it succeed.” United States v. Davis, 306 F.3d 398,
409 (6th Cir. 2002). Thus, the evidence of the other robberies was
relevant to show that Hopper and Ridley had a common plan or goal
to commit the offenses alleged in the indictment.
Hopper argues that the prejudicial impact of this evidence
outweighs its probative value. The district court’s decision in
this balancing process “is afforded great deference” and the
evidence is viewed in the light most favorable to its proponent,
maximizing its probative value and minimizing its prejudicial
effect. Bell, 516 F.3d at 445. Hopper argues that his knowledge
13
or intent to commit the offenses alleged in the indictment could be
proved by other means, namely, through the testimony of Aldridge
and Ridley. However, his attorney strenuously argued to the jury
that Aldridge and Ridley were not credible witnesses. The
government contends that the other act evidence is therefore
relevant to corroborate the testimony of Ridley and Aldridge
concerning the existence of the conspiracy between Hopper and
Ridley. Hopper notes that the credibility of witnesses is at issue
in every case, and that the credibility of these witnesses could
have been bolstered in other ways. However, Hopper does not
specify what those other means are. In concluding that the
probative value of the evidence outweighed its prejudicial effect,
the district court commented that although “404(b) is not geared to
answer challenges to credibility[,] ... those challenges relate to
the issues of identity, as to who actually was in charge of the
gun, who used the gun in this case, and whether or not Mr. Hopper
had the requisite intent for a conviction in this case by showing
his involvement in similar robberies.” Since Hopper challenged the
testimony of Ridley and Aldridge which bore upon the issues of
identity, intent and plan, this made the other act evidence which
was probative of those same issues all the more relevant.
The potential prejudicial effect of this evidence was also
significantly mitigated by the fact that the district court twice
instructed the jury on the manner in which this evidence could be
considered. Before evidence of the uncharged robberies was
presented, the court instructed the jury as follows:
You are about to hear evidence of some other robberies
other than those charged in this indictment. You are not
to consider that evidence of those past robberies to
determine the character of the defendant or to determine
14
whether or not he acted in the present case before you in
accordance with any character or character traits that
may be implicated by other robberies that people say he
was involved in.
If you find that the defendant did commit other robberies
or if you find that he aided and abetted someone else in
committing the armed robberies, you cannot consider this
evidence as proof that he committed the offense before
you now, the mailman robbery.
Instead, you can consider this evidence only for certain
limited purposes, such as to show the defendant’s
identity as the person who committed the crimes charged
in the indictment before you; or to show the defendant’s
intent to commit the crimes charged in the present
indictment; or, if relevant, to show that the defendant
had a plan or planned to commit crimes, including the one
charged in the indictment.
So you may not consider this evidence for any other
purpose except for those limited purposes that I have put
before you.
Vol. 3 at 340-341. At the conclusion of the trial, the court
charged the jury as follows:
You’ve heard testimony that the defendant and Tony Ridley
committed armed robbery of individuals other than the
armed robbery of Eric Schafer that is at issue in the
offenses charged in this indictment.
If you find the defendant committed other armed robberies
or if you find the defendant aided and abetted Tony
Ridley in committing other armed robberies, you cannot
consider such evidence as proof of the defendant’s
character or that the defendant committed the offenses
for which he is now on trial.
Instead, you can consider the evidence only for certain
limited purposes as explained to you earlier, such as the
following: (1) To show the defendant’s identity as the
person who committed the crimes charged in the
indictment; (2) To show the defendant’s intent to commit
the crimes charged in the indictment; and (3) To show the
defendant planned to commit the crimes charged in the
indictment. You may not consider the evidence for any
other purpose than for the limited purposes just stated.
15
Vol. 4A at 36-37. These instructions were adequate to minimize any
risk of prejudice to Hopper.
Finally, any error in the admission of Rule 404(b) evidence is
subject to a harmless error analysis. “An error in the admission
of evidence does not require granting a criminal defendant a new
trial unless the error affects ‘substantial rights.’” United
States v. DeSantis, 134 F.3d 760, 769 (6th Cir. 1998)(quoting Fed.
R. Crim. P. 52(a)). When the government presents other convincing
evidence, the admission of improper Rule 404(b) evidence may be
harmless error. Bell, 516 F.3d at 447. Here, the government also
presented testimony from Ridley, a co-conspirator, and Aldridge
concerning Hopper’s participation in the offenses charged in the
indictment. See United States v. Clark, 634 F.3d 874, 878 (6th
Cir. 2011)(concluding that any error in the admission of Rule
404(b) evidence was harmless in light of the extensive testimony
from two co-defendants about defendant’s involvement in the string
of robberies). Even assuming that the evidence of uncharged
robberies should not have been allowed under Rule 404(b), any error
in the admission of that evidence was harmless.
III.
Hopper argues that the trial court erred in denying his motion
for judgment of acquittal. This court reviews de novo the denial
of a motion for judgment of acquittal, viewing the evidence in “a
light most favorable to the prosecution, giving the prosecution the
benefit of all reasonable inferences from the testimony.” United
States v. McAuliffe, 490 F.3d 526, 537 (6th Cir. 2007). “The
relevant question in assessing a challenge to the sufficiency of
16
the evidence is whether any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.”
Id.; see also Jackson v. Virginia, 443 U.S. 307, 319 (1979). “A
defendant claiming insufficiency of the evidence bears a very heavy
burden.” United States v. Graham, 622 F.3d 445, 448 (6th Cir.
2010)(citations omitted). This court affords the same weight to
both circumstantial and direct evidence, and does not weigh the
evidence presented, consider the credibility of witnesses, or
substitute its judgment for that of the jury. Id.Count Two charged Hopper with an offense under § 111(a). That
section provides in relevant part that any person who “forcibly
assaults, ... impedes, intimidates, or interferes with any person
designated in section 1114 of this title while engaged in ... the
performance of official duties” shall be subject to a term of
imprisonment, which is enhanced if the defendant acted with the
intent to commit another felony, in this case, aggravated robbery,
and further enhanced under § 111(b) by the use of a deadly or
dangerous weapon during the commission of the offense. § 111(a)
and (b). Section 1114 refers to “any officer or employee of the
United States or of any agency in any branch of the United States
Government[.]” 18 U.S.C. § 1114. The term “agency” includes any
“independent establishment” of the United States. 18 U.S.C. § 6.
The United States Postal Service is an “independent establishment”
of the United States. 39 U.S.C. § 201.
It is well established that § 111(a) does not require proof of
knowledge on the part of the offender that the victim of the
assault is a federal officer. See Feola, 420 U.S. at 684; United
States v. Farrow, 198 F.3d 179, 186 (6th Cir. 1999). The Supreme
17
Court noted in Feola that the fulfillment of the congressional goal
to protect federal officers requires “the highest possible degree
of certainty that those who killed or assaulted federal officers
were brought to justice.” 420 U.S. at 684. The Court further
stated that “in order to effectuate the congressional purpose of
according maximum protection to federal officers by making
prosecution for assaults upon them cognizable in the federal
courts, § 111 cannot be construed as embodying an unexpressed
requirement that an assailant be aware that his victim is a federal
officer. All the statute requires is an intent to assault, not an
intent to assault a federal officer.” Id.
Hopper argues that the offense had nothing to do with the
mail, as no mail was stolen, and that he and Ridley were just
riding around looking for people to rob, regardless of their
employment. Hopper contends that there is no evidence that the
victim was chosen because of his status as a federal employee.
However, there is no language of § 111 which requires a specific
intent on the part the offender to target a federal employee.
Since the Supreme Court in Feola stated that the offender does not
have to know that his victim is a federal officer, no such
requirement can reasonably be read into the statute. See Farrow,
198 F.3d at 187 n.8 (noting, without deciding the issue, that other
courts have held that under § 111(a), the government is not
required to show a specific intent to injure a federal officer, but
only the knowing commission of the acts constituting the offense).
Even if we were to accept Hopper’s interpretation of the statute,
there is evidence that Hopper knew that Schafer was a federal
officer or employee because Schafer was wearing his mail carrier
18
uniform, using his marked Postal Service vehicle, and delivering
the mail at the time of the robbery. Thus, the jury could
reasonably have found that Hopper acted with the intent to injure
a federal officer.
As to Hopper’s argument that there is no evidence that he
specifically intended to impede or interfere with the delivery of
the mail, the language of § 111(a) does not require such an intent.
That section prohibits impeding or interfering with a government
employee “while [the government employee was] engaged in ... the
performance of official duties[.]” § 111(a) (emphasis supplied).
This language does not require that the offender’s acts be
specifically motivated by an intent to impede or interfere with the
victim’s official duties; rather, the offender’s acts must simply
have the effect of impeding or interfering with the government
employee at a time when he is performing his official duties.
Likewise, the statute requires that the assault or intimidation of
a federal employee must occur “while” the employee is engaged in
the performance of his official duties, but says nothing about the
assault or intimidation having to be motivated by the fact that the
employee is a government employee or because he is engaged in the
performance of his official duties.
Thus, to establish an offense under § 111(a), the government
is only required to prove that the defendant acted knowingly and
intentionally in committing acts that constituted assaulting,
impeding, intimidating, or interfering with a person, and that the
person was in fact a federal employee who was engaged in his or her
official duties at the time of the offense. The evidence presented
was sufficient for the jury to find that Hopper knowingly and
19
intentionally held a gun to Schafer’s head and robbed him, and that
in doing so, he assaulted and intimidated Schafer, a federal
employee, at a time when he was engaged in his official duties.
There was also evidence that the robbery impeded and interfered
with Schafer while he was engaged in his official duties because
his delivery of the mail was delayed at least an hour while he
reported the robbery to the police.
Hopper also argues that the evidence is insufficient to
support the conspiracy charge in Count One. Section 372 provides
in relevant part that it is an offense for two or more persons to
conspire to “injure [an officer of the United States] in his person
or property ... while engaged in the lawful discharge [of the
duties of his office].” To establish a conspiracy, the government
must prove that (1) the conspiracy described in the indictment was
wilfully formed and existed at or about the time alleged; (2) the
accused wilfully became a member of the conspiracy; (3) one of the
conspirators thereafter knowingly committed at least one overt act
charged in the indictment at or about the time alleged; and (4)
that overt act was knowingly done in furtherance of the
conspiracy’s object. Damra, 621 F.3d at 498 (describing a
conspiracy under 18 U.S.C. § 371). “The existence of a criminal
conspiracy need not be proven by direct evidence, a common plan may
be inferred from circumstantial evidence.” United States v.
Branham, 97 F.3d 835, 854 (6th Cir. 1996). A defendant need only
know of the conspiracy, associate himself with it, and knowingly
contribute his efforts in its furtherance, and every member of a
conspiracy need not be an active participant in every phase of the
20
conspiracy. United States v. Beverly, 369 F.3d 516, 532 (6th Cir.
2004).
Hopper argues that the government was required to prove that
the object of the conspiracy was specifically to rob a federal
officer. He contends that since all of the other victims robbed
during the course of the conspiracy were not federal employees and
no mail was stolen during the robbery of Schafer, the government
failed to prove that he conspired with Ridley to injure,
specifically, a federal employee in his person or property while he
was engaged in his official duties. The clause of § 372 which is
the subject of Count One of the indictment simply requires an
intent to injure an individual in his person or property, that the
individual is an officer of the United States, and that the injury
is planned to occur while the individual is engaged in the lawful
discharge of his duties. It says nothing about having a specific
purpose to impede or interfere with those official duties. The
statute also says “his person or property,” not government property
such as the mail. § 372 (emphasis supplied).
The reasoning of the Supreme Court in Feola is applicable
here, although that case involved a charge of conspiracy to violate
§ 111(a). The Supreme Court held that a conspiracy to violate §
111(a) did not require an agreement to assault a federal officer
specifically or knowledge on the part of the conspirators that the
person to be assaulted was a federal employee. 420 U.S. at 694-96.
The Court stated:
If the agreement calls for an attack on an individual
specifically identified, either by name or by some unique
characteristic, as the putative buyers in the present
case, and that specifically identified individual is in
fact a federal officer, the agreement may be fairly
characterized as one calling for an assault upon a
21
federal officer, even though the parties were unaware of
the victim’s actual identity and even though they would
not have agreed to the assault had they known that
identity.
The policy reasons for not requiring a specific purpose to assault
a federal employee in the prosecution of a conspiracy under §
111(a) also apply to a conspiracy to injure a federal employee in
his person or property while he is engaged in his official duties.
Even if § 372 requires proof that the purpose of the
conspiracy was to injure a federal employee specifically, the
evidence showed that Ridley and Hopper observed Schafer, who was
dressed in his mail carrier uniform and using a marked mail truck,
as they were driving around looking for a victim to rob. Thus, the
two conspirators knew that Schafer was a government employee
engaged in his official duties before Hopper left the car to rob
him. The jury could reasonably conclude from the evidence that
Ridley and Hopper agreed to rob, specifically, a federal officer
engaged in his official duties.
Hopper argues that since his conviction on the firearm charge
in Count Three was based on the commission of the § 111(a) charge
alleged in Count Two, his conviction on the firearm count must also
be reversed if the court finds that Count Two is not supported by
sufficient evidence. Since we have concluded that his conviction
on Count Two is supported by sufficient evidence, this argument
fails.
IV.
In his third assignment of error, Hopper asserts that the
district court erred in denying his motion for a mistrial based on
a comment made by the prosecutor during closing argument concerning
22
his being dressed in gang colors during jury selection. During
trial, there was testimony that Hopper and Ridley knew each other
as members of the Rollin’ 40s Crips gang, and that the gang’s color
was sky blue. During rebuttal argument, the prosecutor stated:
How many times did defense counsel refer to that man as
a “kid”? Five? Ten? You know, the defendant is a
Rollin’ 40 Crips gang member. He flew the flag in here
during jury selection. Remember that sky blue stuff that
he was wearing. He was flying the flag on Tuesday.”
Vol. 4B at 25-26. Defense counsel objected to this comment on the
ground that it was “inappropriate,” and the court stated, “All
right. Stick to the facts of the case.” Vol. 4B at 26. Later,
while the jury was deliberating, and during a conference with
counsel to discuss questions which had been submitted by the jury,
defense counsel moved for a mistrial, not because of the reference
to Hopper’s gang membership, which was disclosed by the testimony
in the case, but rather because there was no evidence that Hopper
had selected those clothes. Counsel indicated that Hopper’s mother
had brought the clothes for Hopper to wear instead of his jail
garb. The government argued that the comment was for the purpose
of reminding the jury that Hopper was an adult gang member in
response to defense counsel’s efforts to elicit sympathy from the
jury on Hopper’s behalf by repeatedly calling him a “kid.”
The district court found that both the prosecutor’s comment
and defense counsel’s reference to Hopper as being a “kid” were
improper. The court further noted that there was evidence
concerning Hopper’s membership in the gang and the gang color, and
concluded that the comment did not warrant granting a mistrial.
Defense counsel asked for a curative instruction, and there was
some discussion about counsel submitting a proposed instruction to
23
the court. Since the jury had forwarded a question to the court
during deliberations concerning Hopper’s gang membership, counsel
for the government suggested that the court include a statement
about the government’s comment concerning clothing in the court’s
response, and defense counsel agreed with that approach. However,
the court’s written note to the jury is not in the record.
This court reviews the denial of a motion for a mistrial based
on prosecutorial misconduct for abuse of discretion. United States
v. Wettstain, 618 F.3d 577, 588 (6th Cir. 2010). The “relevant
question is whether the prosecutor’s comments so infected the trial
with unfairness as to make the resulting conviction a denial of due
process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). The
first step of the analysis is to determine: (1) whether the
prosecutor’s remarks were improper; and, if so, (2) whether they
were flagrant. Wettstain, 618 F.3d at 589. Improper remarks that
are flagrant amount to per se reversible error, while improper
remarks that are not flagrant may or may not be reversible. United
States v. Hargrove, 416 F.3d 486, 493 (6th Cir. 2005).
To determine whether the remarks were flagrant, the court
looks at: (1) whether the statements tended to mislead the jury and
prejudice the defendant; (2) whether the statements were isolated
or extensive; (3) whether the statements were deliberately placed
before the jury; and (4) the overall strength of the evidence
against the defendant. United States v. Gonzalez, 512 F.3d 285,
292 (6th Cir. 2008). This court reverses for improper non-
flagrant prosecutorial misconduct only where: (1) the proof against
the defendant was not overwhelming; (2) defense counsel objected to
the conduct; and (3) the district court failed to give a curative
24
instruction. United States v. Brown, 66 F.3d 124, 127 (6th Cir.
1995).
The prosecutor’s remark in this case was technically improper
because there was no evidence that Hopper actually picked what to
wear during jury selection. However, the prosecutor’s remarks must
be considered within the context of the trial as a whole. United
States v. Wells, 623 F.3d 332, 338 (6th Cir. 2010). There was
evidence, which came in without objection, that Hopper was a gang
member and that sky blue was the gang color. The reference to
Hopper wearing gang colors did not inject his gang membership into
the trial for the first time, and therefore any prejudice to Hopper
would have been minimal or nonexistent. See Ho Thai Nguyen v.
Terhune, 192 F.App’x 603, 604-05 (9th Cir. 2006)(finding that
prosecutor’s suggestion that shooting was gang-related because
victim was wearing gang color did not deny petitioner a fair trial
where there was evidence of petitioner’s gang membership and the
clothing color of rival gang). Although defense counsel stated
that Hopper’s mother brought his clothes, the defense did not deny
that the blue gang color clothes Hopper was wearing were his
clothes. Although the statement was deliberate, it was isolated.
Inappropriate but isolated prosecutorial comments do not warrant a
new trial. Wells, 623 F.3d at 338. In more egregious cases,
courts have found that prosecutorial comments concerning
defendant’s gang membership during closing argument did not deprive
the defendant of a fair trial. See United States v. Rodgers, 51
F.3d 1044 (table), 1995 WL 153134 at *8-10 (5th Cir. March 23,
1995)(repeated improper references to gangs was harmless error);
United States ex rel. Garcia v. Lane, 698 F.2d 900, 901-902 (7th
25
Cir. 1983)(repeated references to petitioner’s gang membership did
not deny defendant a fair trial).
The evidence against Hopper was otherwise strong, since Ridley
and Aldridge testified concerning Hopper’s involvement in the
offenses. Hopper’s identity as the robber was also supported by
the other act evidence. Defense counsel objected and the court in
essence sustained the objection, stating, “All right. Stick to the
facts of the case.” Vol. 4B at 26. The court instructed the jury
at the beginning of the case and during the final charge that the
statements of counsel are not evidence. It was not until after the
jury retired to deliberate that defense counsel moved for a
mistrial and requested a curative instruction, thereby depriving
the trial court of the opportunity to address the matter during
closing argument. The district court agreed to give a curative
instruction as part of his written answer to the jury questions,
and the court may have done so, although that instruction is not in
the record. The district court did not abuse its discretion in
denying the motion for a mistrial.
V.
Hopper’s final assignment of error concerns the district
court’s application of the official victim enhancement in
calculating his offence level under the advisory Guidelines.
U.S.S.G. § 3A1.2(a) directs that if the victim was a government
employee and the “offense of conviction was motivated by such
status,” the base offense level is increased by three levels.
Under U.S.S.G. § 3A1.2(b), if the factors described in subsection
(a) are satisfied and if the applicable Chapter Two guideline is
26
from Chapter Two, Part A (Offenses Against the Person), then the
base offense level is increased by six levels. In this case, the
base offense level was increased by six levels because the
probation officer applied the guideline for aggravated assault in
U.S.S.G. § 2A2.2.
The district court’s factual findings concerning whether the
prerequisites for the enhancement have been met are reviewed for
clear error. See Farrow, 198 F.3d at 196. Legal conclusions
regarding the Guidelines are reviewed de novo. United States v.
Talley, 164 F.3d 989, 1003 (6th Cir. 1999).
Hopper argues that the § 3A1.2(a) enhancement does not apply
in this case. Hopper cites United States v. Cherry, 10 F.3d 1003(3rd Cir. 1993) and United States v. Klump, 21 F.3d 1117 (Table,
1994 WL 143943 (9th Cir. April 22, 1994). Those cases hold that
the enhancement does not apply where there was no individual victim
involved in the offense of conviction. That is not the case here,
where Schafer was an individual victim of the § 111 offense.
Hopper argues there was no evidence that the robbery was
motivated by Schafer’s status as a government employee, noting
Ridley’s testimony that the two men were just riding around looking
for people to rob, and also noting the fact that no mail was
stolen. The government argued below that Hopper knew that Schafer
was a mail carrier and, as such, was probably a more lucrative
victim, as well as a more vulnerable victim because he was engaged
in his duties at the time of the robbery (preoccupied with putting
mail in the boxes with his back to Hopper, thereby allowing Hopper
to sneak up behind him). In denying Hopper’s objection, the
district court stated:
27
The instructions also address motivation, that the
offense of conviction was motivated by the fact that the
victim was a government officer or employee.
But to be motivated by one’s official status does not
require that the victim’s status be the only or the sole
reason or even the primary reason for the assault. The
fact that the ... defendant knew that the victim was a
government official at the time of the offense, in this
case the robbery, may be sufficient for finding that he
was motivated by his official status.
It is, I think, uncontested that Mr. Hopper and Mr.
Ridley, the driver, were driving around looking for
somebody to rob and they saw this postal officer. They
saw his truck, which was plainly marked United States
Postal Service. The letter carrier victim, Mr. Schafer,
was standing beside the truck, in his postal uniform.
He had a box of mail that he was distributing in an
apartment–multi-tenant apartment mailbox, facing the
mailbox as he was placing the mail in the various
compartments for the apartments, when Mr. Hopper, driven
by Mr. Ridley, drove up. Mr. Hopper came out, drew his
pistol, came up behind him, and robbed him.
So under the facts of the trial, there was no question
that he knew at that time that he was robbing this postal
letter carrier who was involved in his official duties.
And the Court finds that that was sufficient motivation
to meet the requirement under the statute.... And the
Court believes that that may not have been his sole or
only reason for robbing Mr. Schafer. They were looking
for money. But the fact that he knew that he was robbing
a United States Postal Inspector has consequences in the
victim-related adjustments[.]
Vol. 5 at 636-37.
The district court correctly stated that the official status
of the victim need not be the sole or primary motivation for the
offense. See United States v. Abbott, 221 F.App’x 186, 189 (4th
Cir. 2007). Therefore, the fact that Hopper robbed Schafer to
obtain money and other property does not preclude a finding that
the robbery was also motivated by Schafer’s official status. The
28
district court correctly noted that the fact that Hopper was aware
that Schafer was a mail carrier may be sufficient for finding that
Hopper was motivated by Schafer’s official status. See Farrow, 198
F.3d at 196-98 (discussing defendant’s knowledge of the fact that
victims of assault were INS agents in upholding application of
official victim enhancement); see also United States v. Garcia, 34
F.3d 6, 13 (1st Cir. 1994)(upholding application of enhancement
where defendant knew that the officers he attempted to run down
with his car were law enforcement officials); United States v.
Salim, 287 F.Supp.2d 250, 307 (S.D.N.Y. 2003)(defendant’s knowledge
that victim was a corrections officer at the time of the attack was
sufficient for a finding that defendant was motivated by the
officer’s official status in attacking him), aff’d 549 F.3d 67 (2d
Cir. 2008).
Even assuming that evidence of knowledge of the victim’s
official status alone is not sufficient to draw an inference of
motivation, the district court also made reference to the
government’s argument that Schafer was facing the mailbox and
placing mail in the compartments when Hopper came up behind him.
Since Schafer was distracted and preoccupied with his official
duties, this made him an easy target. The district court’s finding
that the offense was motivated by Schafer’s official status is
supported by the evidence.
Hopper also argues that it is inconsistent for the government
to argue that the robbery of Schafer was like the other robberies
of persons who were not government employees for the purpose of
admitting Rule 404(b) evidence, but then to argue that the robbery
of Schafer was motivated by his official status. However, the fact
29
that the robberies were factually similar for purposes of a Rule
404(b) analysis does not mean that Hopper was not motivated at
least in part by the fact that Schafer was a mail carrier in
choosing him as a victim.
Hopper also argues that the § 3A1.2(a) official victim
enhancement should not be applied because that would result in
double counting in light of the fact that the probation officer
also applied the specific offense characteristic in § 2A2.2(b)(6),
which increases the guideline range by two levels where the
defendant is convicted under § 111(b) for committing the § 111
offense using a deadly weapon. The guideline notes indicate that
this was not impermissible double counting. Application Note 4 to
§ 2A2.2 states that if “subsection (b)(6) applies, § 3A1.2(a)
(Official Victim) also shall apply.” U.S.S.G. § 2A2.2, Application
Note 4. Application Note 2 to § 3A1.2 states, “Do not apply this
adjustment if the offense guideline specifically incorporates this
factor. The only offense guideline in Chapter Two that
specifically incorporates this factor is § 2A2.4 (Obstructing or
Impeding Officers.)” That guideline is not applicable in this
case. The application of both the official victim enhancement and
the specific offense characteristic did not constitute improper
double counting.
In summary, we find no error in the district court’s
application of the official victim enhancement.
VI.
For the foregoing reasons, we affirm the judgment and sentence
of the district court.
30