FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT May 22, 2015
Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v. No. 13-5072 (D.C. No. 4:12-CR-00050-JHP-3) DEANDRE ANTONIO HOPKINS, (N.D. Okla.) a/k/a Wet, a/k/a C-Wet, a/k/a Sman,
Defendant – Appellant.
ORDER AND JUDGMENT
Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges.
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. This order and judgment is not binding precedent except under the doctrines of law of the case, claim preclusion, and issue preclusion. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. 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.
-2- Based on this investigation, a federal grand jury returned a ten-count
indictment against a group of eight coconspirators, 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)(1)(A)(ii). 3 Deandre had already been tried and convicted in federal court
1 The indictment named eight defendants: Vernon Hill, Christopher Lewis, Deandre Hopkins, Marquis Devers, Dontayne Tiger, James Miller, Kenneth Hopkins, and Dejuan Hill. Throughout this opinion, we will refer to Vernon, Dejuan, and Deandre by their first names because there were other coconspirators indicted with the same last names. Deandre, Vernon, and Dejuan were the only defendants who proceeded to trial. All of the other indicted coconspirators pleaded guilty before trial. Vernon, Dejuan, and Deandre were convicted of all charges. Vernon appeals his conviction in a related appeal. United States v. Vernon Hill, __ F. App’x __, No. 13-5084 (10th Cir. May 22, 2015) (unpublished). Dejuan Hill does as well. United States v. Dejuan Hill, __ F.3d __, No. 13-5074 (10th Cir. May 22, 2015). 2 The CVS Pharmacy robbery was not charged against any of the coconspirators, nor was it listed as an overt act for Count One. Instead, the government used this evidence against Vernon in an attempt to tie him to the other robberies. 3 In more complete part for the Metro Pharmacy robbery: “[T]he defendants, aiding and abetting each other, knowingly used, carried and brandished firearms during and in relation to a crime of violence . . . .” Also, in more complete part for the Tulsa Credit Union robbery: “[T]he defendants, and others known to the Grand Jury, aiding and abetting each other, knowingly used, carried, brandished
-3- 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 F. App’x 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 F. App’x 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
and discharged firearms during and in relation to a crime of violence . . . .”
-4- 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
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 away. 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,
4 Deandre disputes the credibility of this testimony because Herron had not named Deandre as a participant at first, but he later changed his account of the Metro Pharmacy to include Deandre. On appeal, we take the evidence in the light most favorable to the government, and we do not weigh the credibility of witnesses. United States v. Hamilton, 587 F.3d 1199, 1206 (10th Cir. 2009).
-5- 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
-6- Deandre, then divided the money between themselves. Herron received $7,000 for
his role in the robbery.
D. The Larger Conspiracy
The government’s theory of the case at trial was that all eight individuals
indicted had conspired, generally, to commit bank, credit union, and pharmacy
robberies in Tulsa. Most of the evidence establishing this larger conspiracy
centered on each coconspirator’s relationship with the Hoover Crips. The
government also highlighted the similarities between the robberies. Apart from
the three robberies in which Deandre was involved, the government elicited
testimony about four other robberies—IBC Bank, Dooley’s Pharmacy, CVS
Pharmacy, and Arvest Bank—but there was no evidence linking Deandre to any
of those robberies. Because Deandre’s trial included the global conspiracy charge
and was joined with Vernon’s and Dejuan Hill’s, his trial included evidence
regarding these four robberies. But he was not indicted, charged, or convicted for
committing any of them.
E. Procedural History
-7- After the government rested its case, Deandre moved for a Rule 29 judgment
of acquittal on Count One, the conspiracy charge, arguing that the government
had failed to prove interdependence. The district court denied the motion.
The jury convicted Deandre on all five charges against him. On appeal,
Deandre raises four issues. First, he argues that there was insufficient evidence of
interdependence to support his conviction for the global conspiracy. As part of
this issue, he argues that there was a substantially prejudicial variance between
the indictment and what the government proved at trial. Second, Deandre appeals
the denial of his motion to exclude the gang evidence under Fed. R. Evid. 403.
Third, he argues that because he had already been convicted for the Barnes
Pharmacy robbery, his later conviction for conspiring to commit that same
robbery violated the Double Jeopardy Clause. Fourth, he argues that there was
cumulative error.
II. VARIANCE
To prove a conspiracy, the government must show: (1) that two or more
persons agreed to violate the law; (2) that the defendant knew at least the
essential objectives of the conspiracy; (3) that the defendant knowingly and
voluntarily became a part of the conspiracy; and (4) that the alleged
coconspirators were interdependent. United States v. Sells, 477 F.3d 1226, 1235
-8- (10th Cir. 2007). Deandre disputes only whether the government introduced
enough evidence to establish the fourth element, interdependence—and more
importantly, whether the government’s failure to introduce sufficient evidence
constitutes a fatal variance. 5
We treat a conspiracy variance claim as an attack on the sufficiency of the
evidence supporting the jury’s finding that each defendant was a member of the
same conspiracy. United States v. Carnagie, 533 F.3d 1231, 1237 (10th Cir.
2008) (citing United States v. Griffin, 493 F.3d 856, 862 (7th Cir. 2007)). We
review challenges to the sufficiency of the evidence de novo. United States v.
Wells, 739 F.3d 511, 525 (10th Cir. 2014). We must take the evidence and draw
all reasonable inferences in favor of the government. Id. “Distinguishing between
a single, large conspiracy and several smaller conspiracies is often difficult; we
will generally defer to the jury’s determination of the matter.” United States v.
Caldwell, 589 F.3d 1323, 1329 (10th Cir. 2009). We review de novo the existence
of a variance that would support acquittal as a matter of law. Id. at 1328.
5 In his Brief, Deandre discusses whether he could be found guilty of aiding and abetting the robberies, rather than conspiring to commit the robberies. The government argues that Deandre did not raise this argument to the district court, nor did he challenge the sufficiency of the evidence as to his § 924(c) convictions. In his Reply Brief, Deandre admits that he only discusses aiding and abetting as a rhetorical device to challenge interdependence. We conclude that the issue of aiding and abetting is not properly before this court and thus do not consider it. For the same reasons, we do not consider the sufficiency of the evidence for his § 924(c) convictions.
-9- Interdependence is the focal point for determining whether a single conspiracy
existed. Id. at 1329. “Interdependence exists where co-conspirators ‘inten[d] to
act together for their shared mutual benefit within the scope of the conspiracy
charged.’” Id. (alteration in original) (quoting United States v. Evans, 970 F.2d
663, 671 (10th Cir. 1992)). This requires that “each [coconspirator’s] activities
‘constituted essential and integral steps toward the realization of a common,
illicit goal.’” United States v. Edwards, 69 F.3d 419, 431 (10th Cir. 1995)
(quoting United States v. Fox, 902 F.2d 1508, 1514 (10th Cir. 1990)).
Interdependence is often proved by circumstantial evidence, United States v.
Hutchinson, 573 F.3d 1011, 1035 (10th Cir. 2009), and it does not require proof
that the conspirators know the identities or details of each scheme or have
connections with all other members of the conspiracy, United States v. Foy, 641
F.3d 455, 465 (10th Cir. 2011) (reviewing a sufficiency challenge for plain error).
“A variance arises when an indictment charges a single conspiracy but the
evidence presented at trial proves only the existence of multiple conspiracies.”
Carnagie, 533 F.3d at 1237 (citing United States v. Ailsworth, 138 F.3d 843, 848
(10th Cir. 1998)). This constitutes reversible error only if it is prejudicial and
affects the defendant’s substantial rights. 6 Edwards, 69 F.3d at 433; Caldwell,
6 In his Brief, Deandre argues that “a defendant is prejudiced if the Government convicts him of one general conspiracy when, in fact, the evidence
- 10 - 589 F.3d at 1333. We explained in United States v. Windrix that “[a] defendant’s
substantial rights are not prejudiced merely because the defendant is convicted
upon evidence which tends to show a narrower scheme than that contained in the
indictment, provided that the narrower scheme is fully included within the
indictment.” 405 F.3d 1146, 1154 (10th Cir. 2005) (quoting United States v.
Harrison, 942 F.2d 751, 758 (10th Cir. 1991)) (internal quotation marks omitted).
Prejudice can occur in a number of ways. First, it can arise when the defendant
did not have sufficient notice of the charges. Id.; see also Carnagie, 533 F.3d at
1241 (citing United States v. Stoner, 98 F.3d 527, 536 (10th Cir. 1996)). “When
an indictment charges a conspiracy among multiple individuals, it generally
provides sufficient notice to a defendant that she must defend against the smaller
conspiracies.” Caldwell, 589 F.3d at 1333. Second, “[a] defendant’s substantial
rights are affected in the context of a variance when the jury determines a
defendant’s guilt by relying on evidence adduced against coconspirators who
were involved in separate conspiracies.” Edwards, 69 F.3d at 433. To evaluate
whether a prejudicial guilt-spillover effect such as this occurred, reviewing courts
look to three factors: (1) whether the separate conspiracies affected the jury’s
proves that there were several smaller conspiracies.” Appellant’s Br. at 19–20 (citing United States v. Kotteakos, 328 U.S. 750 (1946)). Deandre’s characterization of Kotteakos is incorrect. In Kotteakos, the Supreme Court required that the defendant show some prejudice beyond just the fact that the evidence only established smaller conspiracies. 328 U.S. at 773–74.
- 11 - ability to evaluate each defendant’s individual actions; (2) whether the variance
caused the jury to misuse evidence; and (3) the strength of the evidence
underlying the conviction. Carnagie, 533 F.3d at 1241.
Deandre argues that the government failed to prove interdependence for a
global conspiracy to commit robberies in Tulsa. Instead, he argues, the evidence
established only several, smaller conspiracies to commit specific robberies,
resulting in a variance between the indictment and what the government proved at
trial. He further argues that he was prejudiced by a substantial guilt-spillover
effect when the government associated him with crimes for which it did not prove
his direct involvement.
The government argues that no variance between the conspiracy charged and
the evidence adduced at trial occurred and that even if a variance occurred it was
not prejudicial. The government’s theory at trial was that Deandre and his
coconspirators were members or affiliates of the Hoover Crips and that, through
this association, they conspired to commit the six robberies listed as overt acts in
Count One.
We agree with Deandre that the record shows insufficient evidence of a
common unlawful goal or purpose to prove the global conspiracy. See United
States v. Daily, 921 F.2d 994, 1007 (10th Cir. 1990) (“[T]he focal point of the
[interdependence] analysis is whether the alleged co-conspirators were united in a
- 12 - common unlawful goal or purpose.”), overruled on other grounds by United
States v. Gaudin, 515 U.S. 506 (1995). As we explained in Carnagie, “[t]his
common goal, however, is not by itself enough to establish interdependence:
[w]hat is required is a shared, single criminal objective, not just similar or
parallel objectives between similarly situated people.” 533 F.3d at 1239
(emphasis in original) (internal quotation marks omitted) (quoting Evans, 970
F.2d at 671). So even though the general objective of the individual robberies was
to rob businesses of money or drugs, that does not necessarily mean that the
separate groups were interdependent. See id.
After reviewing the record, we conclude that there is insufficient evidence of
one common global conspiracy; instead, we see evidence of smaller, individual
conspiracies. To begin, not all of the robberies were committed by the same men.
While this does not foreclose the possibility that there was a global conspiracy,
we find it important to note that a different group of men robbed each bank, albeit
with some overlap among the groups. Further, the government introduced no
evidence that proceeds from any individual robbery were ever shared with anyone
not directly participating in that robbery. Additionally, the government did not
establish that one person directed all of the conspirators, which would have
allowed the jury to infer that he was calling the shots. To the contrary, the jury
was left to infer that because all of the conspirators were members or affiliates of
- 13 - the Hoover Crips, they must have had a shared criminal goal sufficient to
establish interdependence. We think, as a matter of law, that this is insufficient.
In United States v. Robinson, 978 F.2d 1554, 1563 (10th Cir. 1992), we
explained that while gang affiliation evidence can be probative circumstantial
evidence of agreement, purpose, and knowledge for a conspiracy, gang-affiliation
evidence “alone could not support a conviction.” In that case, unlike here, other
evidence beyond gang membership helped establish the conspiracy. See id. For
the conspirators in this case, we see no evidence, other than gang membership,
that shows or even provides an inference of a shared criminal goal to commit the
global conspiracy.
The government asserts that the commonalities between the robberies should
be enough. We disagree. While commonalities might be sufficient if the means
and method were unique in some way, that was not the case here. Cf., e.g., United
States v. Carroll, 207 F.3d 465, 469 (8th Cir. 2000) (applying Fed. R. Evid.
404(b) to determine whether the characteristics shared by two robberies were
similar enough to form a modus operandi and concluding that wearing a nylon
mask, carrying a gun, vaulting over the counter, and putting money in a bag were
not sufficiently unique). The use of masks, guns, bags, threats, and getaway cars
does not elevate this string of robberies to one where we can infer that the same
group orchestrated or carried them out. The government tried to rely on the gang-
- 14 - affiliation evidence to link all of these facts together and paint a picture of a
gang-based robbery conspiracy. It also cited the discharge of firearms and the
demand of money and controlled substances during the robberies in an attempt to
prove interdependence. To us, this manner of committing these robberies seems
common, not unique.
Even further, no evidence showed that the individual robberies “benefitted
from or depended upon the success of the” other robberies. See Carnagie, 533
F.3d at 1240 (citing United States v. Yehling, 456 F.3d 1236, 1241 (10th Cir.
2006) (“[E]ach coconspirator’s ‘actions must facilitate the endeavors of other
alleged coconspirators or facilitate the venture as a whole.’” (quoting Evans, 970
F.2d at 670))). In fact, each individual robbery may well have harmed—not
benefitted—the charged coconspirators not participating in a particular robbery.
After each robbery, police became more alert to future related robberies and
concentrated on the involvement of individual Hoover Crips.
Therefore, we conclude that there was insufficient evidence of
interdependence introduced at trial to prove a global conspiracy on the scale
charged by the government. While the government failed to prove the global
conspiracy charged in the indictment, our inquiry is not complete. We must still
consider whether the trial evidence established several smaller conspiracies to
commit the individual, charged robberies. See, e.g., Caldwell, 589 F.3d at
- 15 - 1332–33. We conclude that the government introduced sufficient evidence at trial
to show that Deandre, with others, conspired to rob the Barnes Pharmacy, the
Metro Pharmacy, and the Tulsa Credit Union. Deandre all but concedes this on
appeal. 7 See Appellant’s Br. at 12 (“[T]he single conspiracy alleged in the
indictment was not borne out by the trial evidence, which showed not a rigid
conspiracy, but rather (at most) a string of smaller conspiracies centered around
the robberies. This was a fatal variance between the allegations and the trial
evidence which warrants reversal.”).
Had Count One of the indictment charged Deandre with conspiring separately
to commit his three robberies, we could affirm those conspiracy convictions
because Deandre does not challenge the sufficiency of the evidence for the
smaller conspiracies. But when the government instead chose to charge Deandre
with conspiring to commit the global conspiracy and failed to prove that global
7 Even if Deandre did not concede this point on appeal, we think that the evidence establishing the Barnes Pharmacy, Metro Pharmacy, and Tulsa Credit Union robberies was sufficient to prove three individual conspiracies. For the Barnes Pharmacy robbery, four men robbed the bank, arriving in a stolen car, and Deandre’s DNA was found on one of the face coverings recovered from the abandoned car. For the Metro Pharmacy robbery, Duncan Herron testified that Deandre had helped plan the robbery, supplied Herron with money to be buzzed into the pharmacy, acted as a lookout during the robbery, and was a getaway driver. Finally, for the Tulsa Credit Union robbery, Herron testified that Deandre helped steal a car for the robbery, drove the coconspirators to the credit union, and acted as a getaway driver. We think that all three robberies have sufficient evidence to establish three conspiracies.
- 16 - conspiracy at trial, it caused a variance. We must determine whether this variance
requires us to vacate Deandre’s conviction for Count One. As we discussed
above, prejudice can occur in two ways: first, it can arise when the defendant did
not have sufficient notice of the smaller conspiracies; second, a defendant can
suffer a prejudicial guilt-spillover effect.
For the first type of prejudice, we conclude that the indictment adequately
notified Deandre that he had to defend against the smaller conspiracies proved at
trial. See, e.g., Caldwell, 589 F.3d at 1333 (concluding that when an indictment
charges a conspiracy among multiple people, the indictment generally provides
sufficient notice to a defendant that he must defend against the smaller
conspiracies). The indictment fully contemplated the smaller conspiracies. The
conspiracy charged in the indictment recited the charged robberies as overt acts.
See, e.g., Carnagie, 533 F.3d at 1241 (finding no prejudice because the
defendants knew that the smaller conspiracies were “part and parcel” of the
overall conspiracies charged) (quoting Ailsworth, 138 F.3d at 850). Based on the
indictment charges, Deandre was accused of participating in three robberies. The
indictment notified him of the importance of his membership in the Hoover Crips.
Because Deandre could anticipate the trial evidence, he cannot reasonably
contend that he was insufficiently notified of the charges against him. Id.
- 17 - For the second type of prejudice, we conclude that there was no prejudicial
guilt-spillover in this case. We apply the three factors discussed in Carnagie:
First, whether the proliferation of separate crimes or conspiracies presented in the case impaired the jury’s ability to segregate each individual [conspirator’s] actions and the evidence associated with [her or] his participation;
Second, whether confusion among members of the jury concerning the legal limitations on the use of certain evidence resulted from the variance; and,
Third, the strength or weakness of the evidence underlying the jury’s conviction.
533 F.3d at 1241 (alterations in original) (quoting Harrison, 942 F.2d at 758).
A. The Evidence of Separate Conspiracies Did Not Impair the Jury’s Deliberation
We conclude that the jury could segregate each charged defendant’s actions.
We are aware that, as the Supreme Court explained in United States v. Kotteakos,
the risk of prejudice increases when there are more defendants tried and
conspiracies proved. 328 U.S. 750, 766–67 (1946). In that case, more than 30
people were indicted, 19 were tried together initially, 13 went to the jury, and at
least eight separate conspiracies were proved. Id. The Court announced no fixed
rule for prejudice based on the numbers. See generally id. Instead, in measuring
substantial prejudice, courts must look to the facts of each case. See generally
Carnagie, 533 F.3d at 1242 (concluding that trying three defendants together for
- 18 - three separate conspiracies, given other factors, did not constitute prejudice).
Here, the government tried three defendants together and proved five
conspiracies. 8 As in Carnagie, “the number of defendants tried and conspiracies
proven do not reach the magnitude of Kotteakos, and thus the risk of prejudice is
not as great.” Id.
B. Evidentiary Spillover
For two reasons, Deandre claims that evidentiary spillover prejudiced him:
(1) “[T]he effect [of ‘guilt transference’] was pronounced for [Deandre] because
of the Government’s use of gang evidence to taint all conspirators”; and (2) he
was exposed to a general risk of guilt transference from the evidence presented
against other conspirators from the other robberies.
We are unpersuaded by his first argument. As we explain later, we conclude
that the gang-affiliation evidence was properly admitted against Deandre. Even
had Deandre been tried only for conspiring to commit the three smaller robberies,
the gang evidence would still have been probative of his and his coconspirators’
purpose, knowledge, and intent in committing the three robberies. As to his
second argument, the evidence demonstrated five separate conspiracies, each to 8 We do not include the IBC Bank robbery because we concluded in Vernon’s appeal that there was insufficient evidence to establish a conspiracy to rob that bank. Hill, __ F. App’x __, No. 13-5084. We also do not include the CVS Pharmacy robbery because that robbery was not even charged in the indictment.
- 19 - commit a separate robbery. As in Carnagie, the evidence here was not so intricate
that it rendered the jury unable to segregate each defendant’s individual actions.
See 533 F.3d at 1242. Also, the evidence from the other robberies was “of the
exact same character” as the evidence from the three robberies involving
Deandre. See id. at 1242–43. “We have held that such a similarity between
different transactions cuts against a finding of substantial prejudice.” Id.
C. Strength or Weakness of Evidence Underlying Conviction
Finally, we must consider the strength or weakness of the evidence underlying
the jury’s conviction on Count One, meaning whether the evidence supported
Deandre’s conviction of the “smaller, separate conspiracies.” See Carnagie, 533
F.3d at 1243. As explained earlier, Deandre conceded on appeal that there was
sufficient evidence to prove the smaller, separate conspiracies. We conclude that
the government’s trial evidence was strong in proving that Deandre conspired to
rob and robbed the Barnes Pharmacy, the Metro Pharmacy, and the Tulsa Credit
Union.
During the Barnes Pharmacy robbery, four armed men wearing hoodies, face
coverings, and gloves robbed the pharmacy, taking drugs and cash. The robbers
arrived in a stolen car, and stole the pharmacist’s car for the getaway. The police
found the car abandoned nearby, with a bag containing the face coverings.
- 20 - Deandre’s DNA was on one of the face coverings left in the pharmacist’s car.
This all is very strong evidence that Deandre conspired to rob and participated in
the robbery.
During the Metro Pharmacy robbery, Herron testified about Deandre’s role in
the robbery, including Deandre’s actions in: (1) meeting with the others to plan
it; (2) giving Herron $10 to buy the medicine (which was necessary to get the
robbers into the pharmacy); and (3) acting as a lookout during the robbery.
Finally, during the Tulsa Credit Union robbery, Herron testified that Deandre
met with the group to help plan the robbery, helped steal a Jeep to use in the
robbery, drove the group to the Tulsa Credit Union, acted as a getaway driver,
and helped divide the proceeds.
In sum, there was sufficient evidence for the jury to find Deandre guilty of the
three, smaller conspiracies. Deandre has failed to demonstrate that he suffered a
substantially prejudicial variance. We affirm his conviction on Count One.
III. GANG-AFFILIATION EVIDENCE
Under Fed. R. Evid. 403, a trial court may exclude “relevant evidence if its
probative value is substantially outweighed by a danger of . . . unfair prejudice
. . . .” We review evidentiary determinations for an abuse of discretion. United
States v. MacKay, 715 F.3d 807, 839 (10th Cir. 2013). “Our abuse of discretion
- 21 - review affords the district court considerable discretion in performing the Rule
403 balancing test because district court judges have front-row seats during trial
and extensive experience ruling on evidentiary issues.” United States v.
Archuleta, 737 F.3d 1287, 1292 (10th Cir. 2013) (quoting MacKay, 715 F.3d at
839).
We have held that where conspiracy is charged, “gang-affiliation testimony
may be relevant.” Id. 1293–94 (citing multiple cases from this circuit allowing
the admission of gang-affiliation evidence to help prove conspiracy).
Specifically, we deem gang-affiliation evidence as probative and “directly
relevant” to establishing some of the elements for a conspiracy—the agreement,
purpose, and knowledge of coconspirators. Robinson, 978 F.2d at 1562. But gang-
affiliation evidence alone cannot support a conviction. Id. at 1563.
The government introduced evidence that Deandre and the other
coconspirators were members or affiliates of the Hoover Crips. The government
relied on this evidence to establish interdependence for the global conspiracy. In
this regard, Herron testified that Deandre was a member of the 39 sect of the
Hoover Crips. Along the same line, Officer Steven Sanders testified that the
department considered Deandre a certified gang member, relying on the Tulsa
police department’s system for “certifying” people as gang members.
- 22 - Before trial, Deandre filed a motion in limine, seeking to prevent the
government from introducing any evidence about his affiliation with the Hoover
Crips. He argued that the government could not show with certainty that he was a
gang member or that the robberies were sanctioned by the gang’s leadership. He
also argued under Fed. R. Evid. 403 that the danger of unfair prejudice from this
evidence would substantially outweigh its probative value. The district court
denied Deandre’s motion, concluding that the gang-affiliation evidence was
circumstantial evidence supporting the conspiracy charge. The court also
concluded that the probative value of the evidence outweighed any danger of
unfair prejudice.
On appeal, Deandre argues that the gang evidence caused “the negative
aspects of the gang [to be] imputed to him.” 9 Accordingly, he urges this court to
reverse and remand for a new trial. 10 The government argues that the probative
9 Deandre submits two cases from this court for the proposition that “mere gang membership, by itself, is not evidence of criminal activity.” He cites United States v. Roach, 582 F.3d 1192, 1202 (10th Cir. 2009) (holding that the gang evidence was too stale to establish probable cause for a search warrant), and Robinson, 978 F.2d at 1563. Deandre’s argument misses the point. Here, the government used the gang-affiliation evidence as circumstantial evidence that the conspirators agreed about the conspiracy’s purpose and to show they knew about the conspiracy, not as evidence of independent criminal activity. 10 The government contends that the motion in limine was narrower than Deandre contends on appeal. The government explains, “[I]n his motion in limine, [Deandre] specifically moved to prohibit the government from
- 23 - value of the evidence was not substantially outweighed by the danger of unfair
prejudice. Even if it was an abuse of discretion to admit the evidence, the
government asserts that the error was harmless.
We conclude that the district court did not abuse its discretion. When the
district court ruled on the motion in limine, the coconspirators were set for a joint
trial based on the global conspiracy count. The probative value of the gang
evidence for that count was considerable. We must remember that the three
defendants at trial had disputed interdependence by arguing that not all
coconspirators knew each other or had a joint motive. Therefore, the gang-
affiliation evidence was circumstantial evidence opposing that argument. See
Robinson, 978 F.2d at 1562–63 (“Circumstantial evidence is often the strongest
evidence of conspiracy.”). Even for the individual conspiracies that were actually
established at trial, this evidence had probative value.
Additionally, the danger of unfair prejudice was limited, given that the gang-
affiliation evidence was only a small part of the evidence linking Deandre to the
‘introducing evidence at trial of any alleged affiliation of the Defendant, Deandre Hopkins, with the Hoover Crips street gang.’” On appeal, however, Deandre characterizes the scope of his motion more broadly, asserting that the motion sought “‘to restrict the government from introducing gang evidence’ altogether.” To the extent the government is correct, this distinction may be relevant as it would compel us to review Deandre’s claims for plain error rather than abuse of discretion. We need not resolve this dispute, however, because we conclude that all of the gang evidence was admissible even under the less deferential abuse of discretion standard.
- 24 - individual conspiracies and robberies. There was other evidence, both direct and
circumstantial, tending to show that Deandre was involved. For instance, the
police found Deandre’s DNA in the getaway car for the Barnes Pharmacy
robbery. For the Metro Pharmacy robbery, Herron testified that Deandre helped
plan the robbery, gave Herron money to use to get into the building, and acted as
a lookout during the robbery. Herron also testified about Deandre’s involvement
in the Tulsa Credit Union robbery, explaining that Deandre was the getaway
driver. The jury was not left to rely solely on Deandre’s purported gang
membership in determining whether he was a member of the conspiracy and had
participated in the robberies.
Given the high degree of probative value and the limited danger of unfair
prejudice, we conclude that the district court did not abuse its discretion under
Rule 403 in admitting the evidence.
IV. DOUBLE JEOPARDY
The Supreme Court has held that “a substantive crime and a conspiracy to
commit that crime are not the ‘same [offense]’ for double jeopardy purposes.”
United States v. Felix, 503 U.S. 378, 389 (1992). A defendant can be tried and
convicted for each without violating Double Jeopardy. Id.
- 25 - Deandre argues that his previous prosecution and conviction for the Barnes
Pharmacy robbery must bar his later prosecution in this case for conspiring to
commit that robbery. He acknowledges on appeal that he raises this argument to
preserve it for appeal to the Supreme Court. We agree with the government that
Felix requires that this court hold that there was no Double Jeopardy violation.
We conclude that Deandre’s indictment and conviction for conspiracy did not
violate Double Jeopardy.
V. CUMULATIVE ERROR
When analyzing cumulative error, we aggregate all actual errors and consider
whether their cumulative effect denied the defendant a fundamentally fair trial.
United States v. Rivera, 900 F.2d 1462, 1477 (10th Cir. 1990) (en banc); see also
United States v. Toles, 297 F.3d 959, 972 (10th Cir. 2002). We consider only
actual errors, not just the possibility that the district court might have done
something differently. Rivera, 900 F.2d at 1470–71. Errors are only those
violations “of an established legal standard defining a particular error,” not just
incidents a reviewing court considers troubling. Id. at 1471. As its name suggests,
there must be at least two errors in order to undertake a cumulative error analysis.
Id. at 1469.
- 26 - Deandre argues that he has proven three relevant errors: (1) lack of
interdependence; (2) introduction of the gang-affiliation evidence; and (3) a
Double Jeopardy violation. The government argues that Deandre cannot show any
errors, let alone cumulative error.
We did not find any error regarding the gang-affiliation evidence or the
Double Jeopardy claim. Because we concluded that there was a variance, we must
include the variance in our consideration of cumulative error. But one error is
insufficient to even warrant conducting a cumulative error analysis. We therefore
hold that there was no cumulative error in this case.
VI. CONCLUSION
We affirm Deandre’s convictions as to all counts.
ENTERED FOR THE COURT
Gregory A. Phillips Circuit Judge
- 27 - No. 13-5072, United States v DeAndre Hopkins
McHUGH, Circuit Judge, concurring:
I am pleased to join in the majority’s thorough and thoughtful Order and Judgment
affirming Deandre’s convictions. I write separately to explain why I conclude the
variance in this case did not prejudice Deandre’s right to a fair trial. As I described in my
concurring and dissenting opinion in United States v. [Dejuan] Hill, __ F.3d __,
No. 13-5074 (10th Cir. May 22, 2015) (McHugh, J. concurring and dissenting), the
government’s decision to charge and try the defendants for participating in a global
conspiracy for which there was insufficient evidence carried with it the risk of prejudicial
spillover. But in Deandre’s case, the variance did not cause substantial prejudice. The
government alleged Deandre participated in three of the seven robberies, including the
Tulsa Credit Union robbery, which was the most violent of the seven.1 As the majority
explains, much of the gang evidence admitted was directly relevant to Deandre’s
involvement in all three robberies. And even if the global conspiracy theory allowed the
government to introduce some inflammatory evidence that had little relevance to
Deandre, the overwhelming evidence of Deandre’s guilt with respect to the Barnes
Pharmacy, Metro Pharmacy, and Tulsa Credit Union robberies makes it unlikely that the
admission of this evidence improperly influenced the jury’s verdict. Therefore, I concur
in the majority’s conclusion that the variance did not interfere with Deandre’s right to a
fair trial.
1 The other two robberies were of the Barnes Pharmacy and the Metro Pharmacy.