NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 18 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30022
Plaintiff-Appellee, D.C. No. 6:18-CR-00299
v. MEMORANDUM*
DAVID GEORGE HOPKINS,
Defendant-Appellant.
Appeal from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding
Argued and Submitted May 5, 2021 Portland, Oregon
Before: W. FLETCHER, BEA, and FRIEDLAND, Circuit Judges.
A jury convicted David Hopkins of four crimes: (1) Attempt to Use a Minor
to Produce Visual Depiction of Sexually Explicit Conduct, 18 U.S.C. § 2251(a), (e);
(2) Attempt to Coerce and Entice a Minor, 18 U.S.C. § 2422(b); (3) Travel with
Intent to Engage in Illicit Sexual Conduct, 18 U.S.C. § 2423(b); and (4) Transfer of
Obscene Material to a Minor, 18 U.S.C. § 1470. The convictions stemmed from an
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 Internet sting operation during which an FBI agent pretended to be both an adult
woman and her thirteen-year-old daughter and engaged in sexually explicit chat
conversations with Hopkins under both personas. At trial, Hopkins claimed that the
FBI entrapped him and that he was merely engaged in fantasy roleplay insofar as he
never believed he was conversing with an actual minor. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
1. Hopkins first argues that, although the district court properly
suppressed Hopkins’s custodial statements made in the airport because the FBI had
failed to advise him adequately of his Miranda rights, the district court improperly
ruled that his statements were admissible for impeachment purposes.
“Although a statement, taken in violation of Miranda, may not be used
substantively in the prosecution’s case-in-chief, such a statement, if voluntary, may
be used for impeachment should the Defendant testify inconsistently.” Pollard v.
Galaza, 290 F.3d 1030, 1033 (9th Cir. 2002). In determining the voluntariness of a
custodial statement, we consider the totality of the circumstances and “examine[]
‘whether a defendant’s will was overborne’ by the circumstances surrounding the
giving of” the statement. Dickerson v. United States, 530 U.S. 428, 434 (2000)
(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). We review de novo
the question of voluntariness but review for clear error the district court’s factual
findings. United States v. Heller, 551 F.3d 1108, 1112 (9th Cir. 2009).
2 The totality of the circumstances surrounding the roughly two-and-a-half-
hour interview, which was captured on video, reveals that Hopkins’s statements
were voluntary. Although the interview took place in a secure area, Hopkins seemed
comfortable as he willingly ruminated about a variety of topics, including his
personal life, online footprint, and travel experiences. The overall tone of the
interview remained almost entirely cordial: the district court did not clearly err in
observing that “[n]o threats were made,” “the tone of the interview was calm and
conversational,” Hopkins “showed a willingness and a desire to talk,” “there was no
indication he was intimidated,” and there was no “force or even psychological
pressure applied to him to get him to talk.” Indeed, although Hopkins made
incriminating statements early in the interview by talking about the underaged girl
as if she were real, he then maintained his innocence when confronted with his
sexually explicit conversations and consistently denied engaging in any sexual
conduct with a minor.
Furthermore, Hopkins “does not assert, and the record does not suggest, that
his age, education or intelligence made him susceptible to coercion.” United States
v. Haswood, 350 F.3d 1024, 1029 (9th Cir. 2003). Hopkins complains of no mental,
physical, or psychological frailties that would make him particularly susceptible to
confusion or intimidation. Nor does he assert that the FBI ignored or manipulated
the unequivocal invocation of his rights. Cf. Henry v. Kernan, 197 F.3d 1021, 1027–
3 28 (9th Cir. 1999) (reversing denial of habeas and holding that defendant, who was
“shaken, confused, and frightened, crying in parts,” confessed involuntarily after he
“unequivocally requested an attorney” but police employed “slippery and illegal
[interrogation] tactics”).
Hopkins’s argument primarily focuses on one statement from early in the
interview, in which the FBI informed Hopkins that he could not leave the secure area
“[u]ntil we get this sorted out.” Relying on United States v. Preston, 751 F.3d 1008
(9th Cir. 2014), Hopkins argues that this statement coerced him into talking. In
Preston, the police had “told Preston that he was free to leave only after he finished
answering their questions, and threatened that they would keep returning until
Preston did so,” a tactic that “paired the prospect of relentless questioning with false
promises of leniency.” Id. at 1026. But, here, no such promises were made to
Hopkins; indeed, the FBI reminded Hopkins that he was under no obligation to speak
with them. In all, the factual circumstances underlying this case are drastically
different than those for which we have held that the accused’s statements were
involuntary. Cf. id. at 1027–28 (vacating conviction and holding that confession
was involuntary due to “Preston’s severe intellectual impairment; the police’s
repetitive questioning and the threats that it would continue without end; the pressure
placed on Preston to adopt certain responses; the use of alternative questions that
assumed his culpability; the officers’ multiple deceptions about how the statement
4 would be used; the suggestive questioning that provided details of the alleged crime;
and the false promises of leniency”).
2. Hopkins also argues that the district court improperly admitted
evidence of three sexually explicit chat conversations, which the Government had
offered to prove that Hopkins had a pre-existing sexual interest in minors, because
the conversations occurred before the instant offenses. We review de novo “whether
evidence is other act[s] evidence within the meaning of Federal Rule of [Evidence]
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 18 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30022
Plaintiff-Appellee, D.C. No. 6:18-CR-00299
v. MEMORANDUM*
DAVID GEORGE HOPKINS,
Defendant-Appellant.
Appeal from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding
Argued and Submitted May 5, 2021 Portland, Oregon
Before: W. FLETCHER, BEA, and FRIEDLAND, Circuit Judges.
A jury convicted David Hopkins of four crimes: (1) Attempt to Use a Minor
to Produce Visual Depiction of Sexually Explicit Conduct, 18 U.S.C. § 2251(a), (e);
(2) Attempt to Coerce and Entice a Minor, 18 U.S.C. § 2422(b); (3) Travel with
Intent to Engage in Illicit Sexual Conduct, 18 U.S.C. § 2423(b); and (4) Transfer of
Obscene Material to a Minor, 18 U.S.C. § 1470. The convictions stemmed from an
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 Internet sting operation during which an FBI agent pretended to be both an adult
woman and her thirteen-year-old daughter and engaged in sexually explicit chat
conversations with Hopkins under both personas. At trial, Hopkins claimed that the
FBI entrapped him and that he was merely engaged in fantasy roleplay insofar as he
never believed he was conversing with an actual minor. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
1. Hopkins first argues that, although the district court properly
suppressed Hopkins’s custodial statements made in the airport because the FBI had
failed to advise him adequately of his Miranda rights, the district court improperly
ruled that his statements were admissible for impeachment purposes.
“Although a statement, taken in violation of Miranda, may not be used
substantively in the prosecution’s case-in-chief, such a statement, if voluntary, may
be used for impeachment should the Defendant testify inconsistently.” Pollard v.
Galaza, 290 F.3d 1030, 1033 (9th Cir. 2002). In determining the voluntariness of a
custodial statement, we consider the totality of the circumstances and “examine[]
‘whether a defendant’s will was overborne’ by the circumstances surrounding the
giving of” the statement. Dickerson v. United States, 530 U.S. 428, 434 (2000)
(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). We review de novo
the question of voluntariness but review for clear error the district court’s factual
findings. United States v. Heller, 551 F.3d 1108, 1112 (9th Cir. 2009).
2 The totality of the circumstances surrounding the roughly two-and-a-half-
hour interview, which was captured on video, reveals that Hopkins’s statements
were voluntary. Although the interview took place in a secure area, Hopkins seemed
comfortable as he willingly ruminated about a variety of topics, including his
personal life, online footprint, and travel experiences. The overall tone of the
interview remained almost entirely cordial: the district court did not clearly err in
observing that “[n]o threats were made,” “the tone of the interview was calm and
conversational,” Hopkins “showed a willingness and a desire to talk,” “there was no
indication he was intimidated,” and there was no “force or even psychological
pressure applied to him to get him to talk.” Indeed, although Hopkins made
incriminating statements early in the interview by talking about the underaged girl
as if she were real, he then maintained his innocence when confronted with his
sexually explicit conversations and consistently denied engaging in any sexual
conduct with a minor.
Furthermore, Hopkins “does not assert, and the record does not suggest, that
his age, education or intelligence made him susceptible to coercion.” United States
v. Haswood, 350 F.3d 1024, 1029 (9th Cir. 2003). Hopkins complains of no mental,
physical, or psychological frailties that would make him particularly susceptible to
confusion or intimidation. Nor does he assert that the FBI ignored or manipulated
the unequivocal invocation of his rights. Cf. Henry v. Kernan, 197 F.3d 1021, 1027–
3 28 (9th Cir. 1999) (reversing denial of habeas and holding that defendant, who was
“shaken, confused, and frightened, crying in parts,” confessed involuntarily after he
“unequivocally requested an attorney” but police employed “slippery and illegal
[interrogation] tactics”).
Hopkins’s argument primarily focuses on one statement from early in the
interview, in which the FBI informed Hopkins that he could not leave the secure area
“[u]ntil we get this sorted out.” Relying on United States v. Preston, 751 F.3d 1008
(9th Cir. 2014), Hopkins argues that this statement coerced him into talking. In
Preston, the police had “told Preston that he was free to leave only after he finished
answering their questions, and threatened that they would keep returning until
Preston did so,” a tactic that “paired the prospect of relentless questioning with false
promises of leniency.” Id. at 1026. But, here, no such promises were made to
Hopkins; indeed, the FBI reminded Hopkins that he was under no obligation to speak
with them. In all, the factual circumstances underlying this case are drastically
different than those for which we have held that the accused’s statements were
involuntary. Cf. id. at 1027–28 (vacating conviction and holding that confession
was involuntary due to “Preston’s severe intellectual impairment; the police’s
repetitive questioning and the threats that it would continue without end; the pressure
placed on Preston to adopt certain responses; the use of alternative questions that
assumed his culpability; the officers’ multiple deceptions about how the statement
4 would be used; the suggestive questioning that provided details of the alleged crime;
and the false promises of leniency”).
2. Hopkins also argues that the district court improperly admitted
evidence of three sexually explicit chat conversations, which the Government had
offered to prove that Hopkins had a pre-existing sexual interest in minors, because
the conversations occurred before the instant offenses. We review de novo “whether
evidence is other act[s] evidence within the meaning of Federal Rule of [Evidence]
404(b), but the admission of this evidence for abuse of discretion.” United States v.
Carpenter, 923 F.3d 1172, 1180–81 (9th Cir. 2019).
Hopkins’s sexually explicit chat conversations are admissible because they
tend to (1) refute his entrapment defense by proving that he “was predisposed to
commit the crime before being contacted by government agents”; and (2) prove his
subjective intent to engage in sexual conduct with a minor, not an adult woman,
when he flew to Portland. See United States v. Curtin, 489 F.3d 935, 945–51 (9th
Cir. 2007) (en banc) (holding that fictional “stories containing graphic descriptions
of sexual acts with minors” were admissible to refute entrapment defense and to
prove intent where defendant was the subject of an Internet sting operation in which
an FBI agent posed as a minor).1 The conversations “provided a glimpse into
1 Although we held in Curtin that the fictional stories were relevant under Rule 404(b), we ultimately reversed and remanded for a new trial because the district court had abused its discretion under Rule 403 by “not read[ing] every word of the 5 [Hopkins]’s sexual interest in children and, as such, were highly probative of
whether he wanted to have sex with [the purported minor].” Id. at 950 (internal
citation omitted); see also United States v. Poehlman, 217 F.3d 692, 703–04 (9th
Cir. 2000) (explaining that in entrapment cases, “the question is whether there is
evidence to support a finding that [defendant] was disposed to have sex with minors
prior to opening his correspondence with [the undercover agent]” and courts “must
consider what evidence there is as to [defendant]’s state of mind prior to his contact,”
such as “e-mails or chat room postings where [defendant] expressed an interest in
sex with children,” “items which disclosed an interest in sex with children,” or
testimony “indicating that [defendant] had behaved inappropriately toward children
or otherwise manifested a sexual interest in them”). Accordingly, the district court
did not err in admitting Hopkins’s sexually explicit chat conversations. Nor did the
district court err by declining to exclude the conversations under Rule 403 of the
Federal Rules of Evidence: the conversations did not unduly prejudice Hopkins
because other, unchallenged evidence established his sexual interest in minors and
featured the same degree of sexual explicitness.
AFFIRMED.
five disputed stories in preparation for making its balancing decision.” Curtin, 489 F.3d at 956–58. 6