645 F.2d 630 (8th Cir. 1981), 80-1388, United States v. Hoppe

Docket Nº:80-1388.
Citation:645 F.2d 630
Party Name:UNITED STATES of America, Appellee, v. William Frank HOPPE, Appellant.
Case Date:April 08, 1981
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 630

645 F.2d 630 (8th Cir. 1981)

UNITED STATES of America, Appellee,


William Frank HOPPE, Appellant.

No. 80-1388.

United States Court of Appeals, Eighth Circuit

April 8, 1981

Submitted Nov. 11, 1980.

Page 631

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

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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...

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