U.S. v. Hoppe, 80-1388

• Citation: 645 F.2d 630
• Decision Date: 08 April 1981
• Docket Number: No. 80-1388,80-1388
• Parties: 8 Fed. R. Evid. Serv. 181 UNITED STATES of America, Appellee, v. William Frank HOPPE, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 630

645 F.2d 630

8 Fed. R. Evid. Serv. 181

UNITED STATES of America, Appellee, v. William Frank HOPPE, Appellant.

No. 80-1388.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 11, 1980.

Decided April 8, 1981.

Bruce C. Houdek, James, Odegard, Millert & Houdek, Kansas City, Mo., for appellant.

Ronald S. Reed, Jr., U. S. Atty., J. Whitfield Moody, Asst. U. S. Atty., Kansas City, Mo., for appellee.

Before LAY, Chief Judge, HENLEY, Circuit Judge, and HANSON, ^* Senior District Judge.

HENLEY, Circuit Judge.

Appellant, William Frank Hoppe, was indicted and charged with distribution of a controlled substance, cocaine, in violation of 21 U.S.C. § 841(a)(1). After a jury trial appellant was convicted and sentenced to a term of four years under the provisions of 18 U.S.C. § 4205(b) to be followed by a special parole term of three years. We affirm.

In April, 1979 Gary Crabtree, a former drug dealer and sometime addict, agreed to become a paid informant for the Drug Enforcement Administration (DEA) in Kansas City, Missouri. Task Force Officer Paula Phelan was primarily responsible for directing and monitoring Crabtree's activities.

Soon after becoming an informant, Crabtree contacted the appellant, Hoppe, and arranged to purchase cocaine from him in Denver, Colorado in early May, 1979. Crabtree explained to DEA officials that he and Hoppe previously had been partners in smuggling cocaine from South America into the United States.

Phelan accompanied Crabtree to Denver where she was introduced to Hoppe as a drug dealer from Kansas City interested in doing business with him. After spending several days in Denver, Phelan and Crabtree purchased some cocaine from Hoppe and returned to Kansas City.

After returning from Denver, Phelan told Crabtree to continue pursuing his various drug connections, including Hoppe, and report to her periodically. Crabtree, who lived in northern Arkansas, was given a tape recorder and tapes so that he could record any telephone conversations he had with drug dealers. These tapes were then sent to Phelan. In addition, Crabtree intermittently would call Phelan and discuss his activities. These discussions, some of which concerned Hoppe, were at times recorded; more frequently Phelan took personal notes.

Between May, 1979 and early July, 1979, Crabtree had a number of telephone conversations with Hoppe. From these conversations it was agreed that Hoppe would sell more cocaine to Phelan. Crabtree called Phelan, told her of Hoppe's desire to sell her more cocaine, and gave her a number where Hoppe could be reached.

On July 8, 1979 Phelan called Hoppe who was in Denver. He told Phelan that he wished to sell her more cocaine, that he would be in Kansas City the next day, and that he would contact her when he arrived. On July 9, 1979 Hoppe arrived in Kansas City and telephoned Phelan. Between this time and July 12, 1979, the date of the cocaine sale from which Hoppe's conviction arose, Hoppe and Phelan had a number of telephone conversations. Some of the conversations were recorded while others were not. Phelan took personal notes of those interspersed conversations not recorded. If a conversation was not recorded it was because either Phelan did not have a recorder available or could not turn the recorder on without alerting Hoppe that the conversation was being recorded.

On July 12, 1979 Phelan met Hoppe at a Kansas City bar and purchased cocaine from him. Hoppe was arrested immediately. A preliminary hearing was held on July 20, 1979 and Hoppe was bound over to the grand jury which subsequently returned an indictment against him.

Appellant's trial commenced on October 15, 1979 and resulted in a hung jury, necessitating the declaration of a mistrial. Appellant was tried again on March 25, 1980. Entrapment was his sole defense. He contended that he was constantly pressured to make a drug sale, despite a contrary desire, from the time he initially was contacted by Crabtree until the July 12 cocaine sale. The jury obviously did not accept appellant's defense, and returned a guilty verdict.

Admission of Evidence.

Ron and Sharon Kuykendall were close friends of Hoppe and acquainted with Crabtree. At times Crabtree would call the Kuykendalls when trying to contact Hoppe. In order to show that Hoppe had no desire to deal with Crabtree, and indeed was trying to avoid him, appellant called Sharon Kuykendall as a witness. On direct examination, Sharon Kuykendall gave testimony conflicting with that previously given by Crabtree. On cross-examination the following exchange occurred:

Q. (U. S. Attorney) You are the wife of Ron Kuykendall, I believe you testified?

A. (Sharon Kuykendall) Yes.

Q. Mr. Kuykendall was on trial in another courtroom in this Court House about a month ago, was he not?

A. Yes.

Q. Mr. Crabtree was a witness in that case, was he not?

A. Yes.

Q. Mr. Kuykendall was convicted, was he not?

A. Yes.

Appellant's objection to this testimony was overruled.

We note initially that this evidence was in no respect admitted for its substantive value. Rather, the evidence was used to show Sharon Kuykendall's possible bias toward Crabtree. Appellant contends that since the evidence showed no bias toward a party, but only toward another witness, that it is inadmissible. We disagree.

Evidence tending to show a witness' emotion, which emotion has a bearing on that witness' probability of telling the truth, is admissible. J. Wigmore & J. Chadbourn, Evidence In Trials At Common Law vol. IIIA § 940, at 775 (rev.1970). Sharon Kuykendall's probable hostility toward Crabtree, resulting from his earlier testimony against her husband, certainly bears on her veracity. "We have difficulty in envisioning a situation responding more completely to the orthodox test of bias, the quality of emotional partiality." Johnson v. Brewer, 521 F.2d 556, 561 (8th Cir. 1975) (footnote omitted).

Appellant also contends that the probative value of the evidence is outweighed by its potential for prejudice and for that reason should be excluded. During the course of the trial, some evidence was introduced showing a close personal and working relationship between Hoppe and Ron Kuykendall. Appellant asserts that this evidence gave the jury the impression that Hoppe and Ron Kuykendall were codefendants, and led them to conclude that if Ron Kuykendall had been found guilty, then Hoppe also must be guilty.

We recognize, of course, that the probative value of an item or body of evidence may be so outweighed by its prejudicial effect that Rule 403 calls for exclusion. However, the task of balancing the probative value of the evidence against its purely prejudicial effect is primarily one for the trial court. And if the trial judge in the exercise of his discretion determines that the evidence should be admitted, we normally defer to his judgment.

United States v. Hall, 565 F.2d 1052, 1055 (8th Cir. 1977) (citation omitted). The district judge recognized the potential prejudicial effect of this evidence and gave a limiting instruction. Evidence of this relationship did not dominate the trial but was introduced only tangentially to the primary evidence. In the circumstances, we cannot say that the district judge's decision to admit the evidence was an abuse of discretion. United States v. Bogers, 635 F.2d 749, 751 (8th Cir. 1980).

Jury Instructions.

Appellant contends that the district court erred in failing to instruct the jury that, for purposes of entrapment, they should treat the informant Crabtree as a government agent. In support of his proffered instruction, appellant cites United States v. Sheldon, 544 F.2d 213 (5th Cir. 1976).

Sheldon involved facts similar to the present case. A government informant dealt with the defendant for a number of weeks, repeatedly soliciting him to enter into a drug deal. Shortly before the actual drug sale, however, the informant stepped out of the picture and a government agent pursued the deal and made the purchase. The instruction given by the trial court effectively directed the jury that for purposes of entrapment they were to treat the informant's activities separately from the government agent's activities, and could not consider them as a continuous solicitation.

The court of appeals, recognizing that the activities of the informant were those of the government, found this instruction erroneous. We note that no such misleading instruction was given in the present case. Appellant reads Sheldon to require specifically instructing the jury that an informant and the government are one and the same. Our reading of Sheldon does not leave us with that conclusion.

"(We) do not think that, by calling the instruction in Sheldon erroneous, the Fifth Circuit in any way implied 'informers' are to be labeled 'agents.' " United States v. Turner, 490 F.Supp. 583, 594 (E.D.Mich.1979). Though in the present case the jury was not specifically instructed to treat the informant as a government agent, the instructions given clearly tied the two together. Unlike Sheldon, the instructions did not prohibit such an association, and for that reason we find no error.

Appellant also contends the district court erred in failing to give his requested addict-informant instruction. This requested instruction suggests factors unique to an addict-informant which might have a particular bearing on his credibility. Several circuits have indicated that upon request such...