United States v. Hopkins

Opinion

USCA1 Opinion

February 27, 1995     [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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          No. 94-1337

                                    UNITED STATES,
                                      Appellee,

                                          v.

                                 VIVIENE LEE HOPKINS,
                                Defendant - Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                  [Hon. Juan M. P rez-Gim nez, U.S. District Judge]
                                               ___________________

                                 ____________________

                                        Before

                               Torruella, Chief Judge,
                                          ___________

                            Aldrich, Senior Circuit Judge,
                                     ____________________

                              and Stahl, Circuit Judge.
                                         _____________

                                _____________________

               Lydia Lizarribar-Masini, by  Appointment of  the Court,  for
               _______________________
          appellant.
               Jos  A.  Quiles-Espinosa,  Senior Litigation  Counsel,  with
               ________________________
          whom  Guillermo  Gil, United  States  Attorney,  and Rosa  Emilia
                ______________                                 ____________
          Rodr guez-V lez, Executive Assistant United States Attorney, were
          _______________
          on brief for appellee.

____________________

____________________

                                      CORRECTED



____________________



Per Curiam.  Appellant  Viviene Lee Hopkins ("Hopkins")
                    Per Curiam.
                    __________

          challenges her conviction after a  jury trial for importation and

          possession with intent to distribute cocaine, in violation  of 21

          U.S.C.    841(a)(1), 952(a),  and 955.  Hopkins' appeal  rests on

          two  grounds.   First,  she claims  that  her conviction  is  not

          supported  by  sufficient  evidence, see  Fed.  R.  Crim.  P. 29.
                                               ___

          Second,  she  claims  that  the government's  use  during  cross-

          examination of information not provided to defense counsel before

          trial constituted  prosecutorial misconduct, and deprived  her of

          her right to a fair trial.  For the following reasons, we affirm.

                                      BACKGROUND
                                      BACKGROUND

                    We summarize  the evidence in the  light most favorable

          to  the government.  United States v.  Abreu, 952 F.2d 1458, 1460
                               _____________     _____

          (1st Cir.),  cert.  denied, __  U.S.  __, 112  S. Ct.  1695,  118
                       _____  ______

          L.Ed.2d 406  (1992).   Hopkins arrived  at  the Luis  Mu oz-Mar n

          International  Airport in San Juan, Puerto Rico on the morning of

          January 4,  1993  on  a  flight  from  St.  Maarten,  Netherlands

          Antilles.   When Hopkins  deplaned, United State  Customs Service

          Inspector  Stephanie  O'Gorman  asked  Hopkins  for  her  Customs

          Declaration  Form.  The form noted Hopkins' purchase of a stereo.

          Hopkins  also had  the sales  receipt for  the stereo,  which was

          admitted  as evidence  at trial.   Hopkins  was carrying  a large

          stereo box, a small bag, and a handbag.  When questioned, Hopkins

          claimed that she had not yet opened the stereo box.  

                    In Inspector O'Gorman's  experience, stereos and  other

          electronic  appliances  are  often  used to  hide  and  transport

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narcotics.   O'Gorman  became suspicious  because Hopkins  had so

          little luggage, had only spent three days in St. Maarten, and did

          not  have a  suntan.   Acting on  this experience  and suspicion,

          O'Gorman conducted an X-ray examination of the stereo box.  

                    The  X-ray  examination  revealed  "some  shadow areas"

          shaped like packages in the stereo, so O'Gorman decided to search

          the stereo box and its contents.  When lifting the  stereo out of

          the box, O'Gorman noticed  that it was unusually heavy,  and that

          the  view inside  the stereo's  back panel  was blocked  by black

          electrical  tape.  Using some keys, O'Gorman touched the area and

          felt what  she believed to be a package moving.  She then decided

          to  remove the stereo's back panel.  During this search, O'Gorman

          noticed that Hopkins seemed to become increasingly nervous. 

                    As  she  was  pulling  off  the  stereo's  back  panel,

          O'Gorman noticed  that the attaching screws were scratched, as if

          someone had already tried to remove them.  As she pulled the back

          panel  apart, O'Gorman  could see  a  package inside  the stereo.

          When  the  panel was  removed,  O'Gorman  found five  rectangular

          packages  wrapped in  electrical tape.   The packages,  it turned

          out, contained approximately 5.7 kilograms of cocaine.

                    Subsequently,  Hopkins  was  arrested and  indicted  on

          three  counts  of  importation  and  possession  with  intent  to

          distribute.  She pled  not guilty at  her arraignment.  During  a

          two-day  jury  trial,  defense  counsel  moved  for  judgment  of

          acquittal pursuant to  Fed. R. Crim.  P. 29 at  the close of  the

          prosecution's  case.   The defense  did  not, however,  renew its

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motion  before  the  close  of  trial  after  presenting  its own

          evidence.  The jury found Hopkins guilty on all counts.

                                       ANALYSIS
                                       ANALYSIS

                    A.  Sufficiency of the Evidence
                    A.  Sufficiency of the Evidence
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                    Hopkins appeals  her conviction on the  ground that the

          evidence  was  insufficient  to   convict  her  of  the  charges.

          Generally, our standard of review for sufficiency of the evidence

          appeals requires us to review the record to determine whether the

          evidence and  reasonable inferences  therefrom, taken as  a whole

          and in the light most favorable to the prosecution, would allow a

          rational jury  to determine  beyond a  reasonable doubt  that the

          defendant was guilty as charged.  United States v. Mena-Robles, 4
                                            _____________    ___________

          F.3d 1026, 1031  (1st Cir.  1993).  It  is settled law,  however,

          that when a defendant moves for judgment of  acquittal at the end

          of the prosecution's  case, but  then fails to  renew the  motion

          after presenting her  own case, she  waives the original  motion.

          United  States v. Castro-Lara, 970 F.2d 976, 980 (1st Cir. 1992).
          ______________    ___________

          Because the motion is deemed waived, then, the defendant forfeits

          the  benefit  of  the  customary  standard  of  review,  "thereby

          negating  any claim of evidentiary insufficiency unless affirming

          the conviction would work a 'clear and gross injustice'."  Id. at
                                                                     __

          980 n.2 (quoting United  States v. Cheung, 836 F.2d 729,  730 n.1
                           ______________    ______

          (1st Cir. 1988) (per curiam)).

                    Keeping  this  standard in  mind,  our  reading of  the

          record does not reveal any  such injustice.  On the contrary,  it

          appears  that, even if we were to apply the customary standard of

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review,  Hopkins' conviction  is  amply  supported by  admissible

          evidence, particularly the testimony of Inspector O'Gorman.  

                    Moreover, although  Hopkins argues that  the government

          offered  only circumstantial  evidence  of her  knowledge of  the

          illegal  contents of her stereo, this argument is unavailing.  We

          resolve all credibility issues  in favor of the verdict.   United
                                                                     ______

          States  v. Cassiere,  4 F.3d  1006, 1011  (1st  Cir. 1993).   The
          ______     ________

          evidence  may be  entirely  circumstantial and  need not  exclude

          every  reasonable hypothesis  of  innocence;  the factfinder  may

          decide  among reasonable  interpretations of  the evidence.   Id.
                                                                        __

          (quoting United States  v. Batista-Polanco, 927 F.2d  14, 17 (1st
                   _____________     _______________

          Cir.  1991).   Here, the  jury was  entitled to  reasonably infer

          Hopkins' knowledge of  the stereo's contents,  and to reject  her

          testimony on  her  own behalf  at trial  to the  effect that  she

          lacked the requisite knowledge.  

                    Because  we   find  no  indicia  of   "clear  or  gross

          injustice"  surrounding  her   conviction,  and  find  that   her

          conviction  is  supported  by  sufficient  evidence,   we  reject

          Hopkins' sufficiency of the evidence challenge.

                    B.  Prosecutorial Misconduct
                    B.  Prosecutorial Misconduct
                        ________________________

                    Hopkins'  second   claim  on  appeal   involves  events

          surrounding the prosecution's cross-examination of Hopkins on the

          second day of trial.   Upon taking the stand in her  own defense,

          Hopkins testified about buying  the stereo, but averred that  she

          did not remember the salesperson  who sold her the stereo in  St.

          Maarten.  During its  cross-examination of Hopkins, presumably in

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an impeachment attempt, the  government confronted Hopkins with a

          document containing information that the salesperson who sold the

          stereo  had been  identified,  and remembered  selling it  not to

          Hopkins but to a man.1 

                    This cross-examination continued without objection from

          defense counsel.   The government  did not offer  the impeachment

          document  into  evidence.    At  the conclusion  of  this  cross-

          examination, the government provided  defense counsel with a copy

          of the impeachment document, and defense counsel then requested a

          bench  conference.    During  the   conference,  defense  counsel

          explained to the court that, in conducting its own investigation,

          the defense  had interviewed the  salesperson and  had come  away

          with a  different story  than that  contained in the  impeachment

          document.  

                    At  counsel's request,  the court  granted the  defense

          time,  until  after the  lunch recess,  to either  locate another

          witness  to testify or to  decide whether counsel  would take the

          stand and  testify  about the  salesperson's  prior  inconsistent

          statements.  After the lunch recess, however, defense counsel had

          apparently  abandoned  the   matter,  and  called   no  witnesses

          regarding  the   salesperson's  statements  or   the  impeachment

          document's information.

                    Hopkins now claims on  appeal that the government's use

          of the impeachment document constituted prosecutorial misconduct,
                              
          ____________________

          1   The government explains that it had just received a facsimile
          transmission from the St.  Maartens' police force, reporting this
          information, that very morning.  

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and prejudiced her ability  to obtain a  fair trial.  Because  no

          objections to the cross-examination or the use of the impeachment

          document were made during trial, however, our standard  of review

          is for "plain error."  United States v. Montas, 41  F.3d 775, 779
                                 _____________    ______

          (1st Cir. 1994); United States v.  Rosales, 19 F.3d 763, 765 (1st
                           _____________     _______

          Cir. 1994); see Fed. R. Crim.  P. 52(b).  Under this standard, we
                      ___

          will reverse only if  the error seriously affected  the fairness,

          integrity,  or public  reputation  of  the judicial  proceedings,

          Rosales, 19 F.3d  at 765, or  where a miscarriage of  justice has
          _______

          occurred.   United States v. Olivio-Infante, 938  F.2d 1406, 1411
                      _____________    ______________

          (1st Cir. 1991).

                    We find  it difficult to  discern any error  here, much

          less  that  rising  to the  level  of  "plain  error."   Hopkins,

          somewhat   cryptically,  claims  that   the  government  unfairly

          withheld  information  from  the  defense  in  violation  of  the

          discovery rule, Fed. R. Crim. P.  16(a)(1)(A), which requires the

          government to provide the defense with "the substance of any oral

          statment which the government intends to offer in evidence at the
                                        ____________________________

          trial  .  . .  .  "  (emphasis added).    The  problem with  this

          argument,  however, is  that  the government  did  not offer  the

          document  or its contents into  evidence; indeed, its  use of the

          document  was spurred solely by  Hopkins' testimony on the stand,

          the substance of which the government could  not have anticipated

          in exact detail.   We have held that although Rule 16 encompasses

          statements that the government  believes it will likely introduce

          in  rebuttal as well as  in its case-in-chief,  the rule does not

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and  cannot  encompass statements  that  the  government, at  the

          outset, does not know about,  has no reason to find out  about or

          take  note of,  and  would be  unlikely  to introduce  at  trial.

          United  States v. Ferrer-Cruz, 899 F.2d 135, 140 (1st Cir. 1990).
          ______________    ___________

          Similarly, the government cannot  be required to anticipate every

          possible defense, assume what the defendant's trial testimony may

          be,  and  then  furnish  the defense  with  otherwise  irrelevant

          material that might be used for impeachment.  Id. (quoting United
                                                        __           ______

          States v.  Gleason, 616 F.2d 2, 25  (2d Cir. 1979), cert. denied,
          ______     _______                                  _____ ______

          444 U.S. 1082  (1980), and cert. denied sub nom. Carter v. United
                                 _________ _______________ ______    ______

          States,  445  U.S. 931  (1980)).    Because the  government  only
          ______

          received the  information that morning,2 provided  counsel with a

          copy of the document at trial, and did not introduce the document

          into evidence but only used  it to impeach Hopkins, we find  that

          the government did not violate Rule 16's discovery requirements.

                    Finally, we do not agree with Hopkins' contentions that

          the  use of the document to impeach her was unfairly prejudicial.

          We do not see how  the use of the document could have inflamed or

          misled the  jury.  In fact,  if the document had  been introduced

                              
          ____________________

          2  Of course, Rule 16 imposes a continuing duty on the government
          to disclose discoverable evidence  that comes to light throughout
          the course of the proceedings.  Ferrer-Cruz, 899 F.2d at 140.  In
          this case,  the government did  provide defense counsel  with the
          document at the trial  that day, after receiving the  document in
          the morning.   The defense certainly  received the document  with
          ample time to  analyze it.  Its failure to  address or respond to
          the government's  use of the document in its own case seems to be
          a tactical decision,  rather than  a result  of unfair  surprise.
          Indeed, defense counsel never requested a continuance or filed an
          objection to the document,  which it would have been  entitled to
          do.

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into evidence, it may have actually aided Hopkins' defense, as it

          would have provided the jury with an alternative theory about who

          may  have purchased the  stereo.  In any  event, the document was

          only  used to impeach Hopkins'  testimony and was  not offered as

          evidence.  We simply do not see any error here.3

                                      CONCLUSION
                                      CONCLUSION

                    For  the  foregoing  reasons,  Hopkins'  conviction  is

          affirmed.
          ________

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          3   As  the government  points  out in  its  brief, even  if  the
          government's use of  the document  were error, it  could only  be
          termed  harmless error in light  of the abundance  of evidence of
          Hopkins' culpability, and  certainly would not rise to  the level
          of error required for reversal.

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