United States v. Hopkins

608 F. App'x 637
Court of Appeals for the Tenth Circuit·Decided May 22, 2015·No. 13-5072·Unpublished·Cited by 3 cases

Opinions

ORDER AND JUDGMENT *

GREGORY A. PHILLIPS, Circuit Judge.

Deandre Hopkins was indicted, tried, and convicted of conspiring to rob banks, credit unions, and pharmacies in Tulsa, Oklahoma. The district court denied Deandre’s motion for judgment of acquittal, finding that the evidence at trial established the conspiracy as charged. Deandre appeals. We hold that there was a variance between the conspiracy charged and the evidence presented at trial, but we hold that it was not substantially prejudicial. We therefore affirm the district court.

Deandre also raises three other issues. He appeals the denial of his motion in limine to exclude gang-affiliation evidence. He also argues that his conviction for the conspiracy violates the Double Jeopardy Clause. We affirm the district court on these two issues. Finally, he argues that there has been cumulative error. We hold there are insufficient errors to conduct a cumulative error analysis. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm Deandre’s convictions on all counts.

I. FACTS AND PROCEDURAL HISTORY

Following a series of robberies in Tulsa, the local police began to suspect that the robberies were connected. They developed a list of suspects, which included Deandre. The police were interested specifically in seven robberies that took place from August 2009 to November 2011: (1) IBC Bank; (2) Dooley’s Pharmacy; (3) T. Roy Barnes Pharmacy (“Barnes Pharmacy”); (4) Metro Pharmacy and Medical Supplies (“Metro Pharmacy”); (5) CVS Pharmacy; (6) Tulsa Municipal Employees Federal Credit Union (“Tulsa Credit Union”); and (7) Arvest Bank. They came to believe that these robberies had been committed as part of a larger conspiracy by members of the Hoover Crips, a Tulsa street gang.

[639] Based on this investigation, a federal grand jury returned a ten-count indictment against a group of eight coconspira-tors,1 charging that the group had conspired together to commit six of the seven robberies in violation of 18 U.S.C. § 1951(a).2 Deandre was indicted as a member of this conspiracy. Deandre was also charged with committing two of the robberies — Metro Pharmacy and Tulsa Credit Union — and for aiding and abetting the use of a firearm during and in relation to each of the two robberies (crimes of violence) under 18 U.S.C. § 924(c)(l)(A)(ii).3 Deandre had already been tried and convicted in federal court for the underlying substantive offense of robbing the Barnes Pharmacy. The government used the Barnes Pharmacy robbery as an overt act for the Count One conspiracy charge. On appeal to this court for the Barnes Pharmacy robbery charge (not the conspiracy charge), we affirmed his robbery conviction. United States v. Hopkins, 528 Fed.Appx. 782, 782-84 (10th Cir.2013) (unpublished).

A. Barnes Pharmacy

In May 2010, four armed men wearing hoodies, cut-off shirtsleeves wrapped around their faces, and gloves robbed the Barnes Pharmacy. The robbers arrived in a stolen car, took drugs and cash, and stole the pharmacist’s car for the getaway. The car was later found abandoned nearby, with a bag containing the face coverings. Deandre’s DNA was on one of the face coverings left in the car. A jury convicted Deandre of this robbery, and we affirmed his conviction on appeal. Hopkins, 528 Fed.Appx. at 782-84.

B. Metro Pharmacy

This robbery occurred in August 2011. Duncan Herron, the government’s cooperating witness, who had been a part of the larger conspiracy at one time but had made a deal with the government, testified at trial to having participated in the Metro Pharmacy robbery, and he named Christopher Lewis, Marquis Devers, and Vernon Hill as coconspirators. He also later named Dontayne Tiger and Deandre as coconspirators.

Herron admitted to meeting with the group to plan the Metro Pharmacy robbery on August 13, 2011. Later that day, .the group carried out its plan. Herron [640] walked into the pharmacy to buy some medicine, texted Devers as he was leaving, and held open the door for Lewis and Devers (because customers had to be buzzed into the pharmacy). Deandre had given Herron $10 to buy the medicine. Lewis, Vernon, and Devers then robbed the pharmacy with guns. Herron testified that both Tiger and Deandre were lookouts during the Metro Pharmacy robbery.4 After the robbery, the men got into a van that was parked outside of the pharmacy and drove áway. As instructed by Tiger, Herron called 911 to report the robbery after the other men drove away, attempting to divert police attention from his involvement.

Included within the evidence admitted at trial were cell phone records establishing that Devers had called Metro Pharmacy twice before the robbery, that Devers and Herron had communicated by text message during the robbery, and that Lewis and Vernon communicated by cell phone during the robbery.

C. Tulsa Credit Union

In September 2011, a group of assailants robbed the Tulsa Credit Union. Herron testified at trial that he, Tiger, Deandre, Lewis, James Miller, and Devers participated in this robbery. Devers and Deandre picked up Herron and drove to an apartment to plan the robbery, where the others were already waiting. After this meeting, Herron, Devers, Miller, and Deandre drove to an apartment complex, where they stole a Jeep to use in the robbery. Deandre and Tiger then drove the group to the bank in separate cars. Miller, Devers, and Lewis robbed the bank, wearing hoodies, face coverings, and gloves, and carrying guns. One of them fired a gun. The robbers demanded money from multiple tellers, and one teller gave them $170,000 from the vault. Witnesses saw the robbers drive away in the stolen Jeep. Lewis, Devers, and Miller got into the Jeep parked outside the credit union, and Herron drove the stolen Jeep around the corner. Once around the corner, Herron, Miller, and Devers got into a car with Deandre. Lewis got into a separate car with Tiger. They left the Jeep there and all drove to Miller’s sister’s house, and police recovered the Jeep later that day. The group, including Deandre, then divided the money between themselves. Herron received $7,000 for his role in the robbery.

D. The Largér Conspiracy

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United States v. Hopkins, 608 F. App'x 637 (10th Cir. 2015).

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