Hopper v. Miller
| Decision Date | 16 December 1997 |
| Docket Number | No. 95-3945,95-3945 |
| Citation | 132 F.3d 36 |
| Parties | NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. Timothy HOPPER, Petitioner-Appellant, v. Charles B. MILLER, Superintendent, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court of the Southern District of Indiana, Indianapolis Division, No. IR-94-1375-C-H/G; David F. Hamilton, Judge.
Before RIPPLE, ROVNER and EVANS, Circuit Judges.
In 1985, an Indiana jury found petitioner Timothy Hopper guilty of dealing cocaine (Ind.Code § 35-48-4-1(2)) and conspiracy to deal cocaine (Ind.Code § 35-41-5-2). He was sentenced to two 30-year concurrent prison sentences The Indiana Supreme Court affirmed the conviction, Hopper v. State, 539 N.E.2d 944 (Ind.1989) (Hopper I ) Hopper was unsuccessful in seeking post-conviction relief in the Indiana trial court. and the Indiana Appellate Court affirmed the denial of post-conviction relief Hopper v. State, No. 49A04-9201-PC-26 (Ind App.Ct. Nov. 26,1992) (Hopper II ) (unpublished decision).
Hopper filed a pro se habeas corpus petition pursuant to 28 U.S.C. § 2254, it is his first federal collateral challenge. The district court denied the petition and dismissed the action with prejudice, and Hopper appeals.
Under the holding in Lindh v. Murphy, 117 S.Ct. 2059, 2063 (1997), the amendments enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) do not apply to Hopper's case, because the petition was filed on September 28, 1994, and therefore was pending at the time the new law was enacted. The court will refer to the pre-AEDPA habeas corpus standards.
Hopper argues that the government failed to prove him guilty beyond a reasonable doubt.
In the direct criminal appeal, the Indiana Supreme Court found that the evidence was sufficient to prove that Hopper had been dealing cocaine Hopper I, 539 N.E.2d at 946. The court added that the "facts set forth above demonstrate Hopper's complicity with Freeman in the drug transaction which forms the basis of the underlying charges." and that Hopper was liable under an accomplice theory. Hopper I, 539 N.E.2d at 947 The court concluded: "There was sufficient probative evidence presented to the jury here to justify a verdict of guilty beyond a reasonable doubt." Id., 539 N.E.2d at 947-48.
Under the pre-AEDPA standards, a federal habeas corpus court must view the evidence in a light most favorable to the prosecution, and determine whether any rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The Indiana Supreme Court's factual findings receive a presumption of correctness. 28 U.S.C. § 2254(d) (1995).
In its recitation of the facts. the Indiana Supreme Court stated that a confidential informant, Russell Singleton, met codefendant Melvin Freeman in Fall 1983 and began discussing the "purchase of a large quantity of marijuana in exchange for cocaine." 539 N.E.2d at 945. On January 7, 1984, Singleton and Freeman met and made final plans for the drug deal. "Freeman offered Singleton two kilograms of cocaine worth approximately one hundred thousand dollars ($100,000) in exchange for one thousand (1,000) pounds of marijuana" Id. "Freeman agreed to make a small down payment for the marijuana and pay the balance after thirty days." Id.
On January 19, 1984, Singleton met with Freeman in the morning and agreed that Freeman would send his son to Chicago to pick up the marijuana. Id. That afternoon, Freeman informed Singleton that instead of their original plan, he would prefer that the marijuana be delivered in Indiana instead of Chicago. Id. That evening, both the informant and the undercover agent first became aware that Hopper was involved, when Singleton met Freeman and Hopper at the Quality Inn.
Hopper advised Singleton he was now "running the show" and that he could easily distribute the marijuana. Hopper also requested the marijuana be delivered to southern Indiana instead of Chicago as Hopper had access to a barn in southern Indiana where the marijuana could be safely delivered and stored. Contrary to Freeman's earlier proposal, upon delivery of the marijuana, Hopper would give Singleton one kilogram of cocaine and forty thousand dollars ($40,000) as partial payment for the marijuana.
Hopper I, 539 N.E.2d at 945. Later, undercover Special Agent Fred Moore met Hopper, Freeman, and Singleton at the Quality Inn bar.
When Freeman and Moore left the bar, Hopper told Singleton that Freeman was irresponsible. Singleton was advised [by Hopper] to deal with Hopper in any future transactions and Hopper. by means of a map, gave Singleton directions on where to deliver the marijuana.
Freeman and Moore then entered Singleton's room where Freeman counted the money for the purchase of cocaine and advised Moore he did not wish to deliver the cocaine to the Quality Inn as previously planned He proposed that Moore accompany him and Hopper to the Rodeway Inn where Moore could inspect the cocaine. Freeman, Moore, and Hopper left the Quality Inn and drove to the Rodeway Inn where Hopper had a room Hopper retrieved his possessions from the room, gave the room key to Moore and told Moore he could use the room to view the cocaine. Freeman and Hopper left the hotel, followed by police. Freeman later returned with one (1) kilogram of cocaine Moore paid Freeman fifty thousand dollars ($50,000) for it. Freeman and Hopper were subsequently arrested at the Days Inn
Hopper I, 539 N.E.2d at 945-46.
The federal district court found that the evidence at trial was not only sufficient, it was "devastating as regards Hopper's guilt of the two charges." The district court thoroughly detailed why the evidence was more than sufficient to find Hopper guilty beyond a reasonable doubt.
Although Hopper concedes that a conspiracy existed, he argues that the conversations between Freeman and Singleton "had nothing to do with Hopper, nor was Hopper ever mentioned. Hopper argues that the "jury apparently found [him] guilty solely because [he] was present." Hopper argues further:
Hopper's involvement was more as an onlooker in the vicinity of the transaction, or more appropriately one whose guilt is merely proved by association on the day of the sale, the only day where Hopper is even a named player in the action. It was clear that Singleton did not know anyone else was aware of the deal until late in the day of the sale
It matters little, if at all, that the undercover agent was unaware of Hopper's existence or role in the conspiracy prior to the day the cocaine transaction took place. Hopper argues there was only "the brief appearance and association of Hopper at the very end of the long drawn out conspiracy [which had been] engineered by the confidential informant, Russell Singleton." However, even if Hopper had joined the conspiracy only on the day of the sale, he could still be found to be a member of the conspiracy.
Moreover, in contrast to Hopper's arguments, he was far from a passive "onlooker" who happened to be in "the vicinity." Hopper's conduct once he came on the scene demonstrated that he was intimately involved in the conspiracy which led to the transaction taking place on January 19, 1984. For example, Freeman told Singleton that "the man who had the cocaine" would be present at dinner that night to discuss details. Hopper arrived that night, and told Singleton that Hopper himself would now be "running the show." Hopper explained the terms, and in fact materially altered the terms of Freeman's earlier arrangement with Singleton. Hopper accompanied Freeman and Moore to the Rodeway Inn for an inspection of the cocaine, Hopper took his possessions from the hotel room at the Rodeway Inn, gave a key to Moore, and instructed Moore to use Hopper's room to view the cocaine. Hopper and Freeman drove to another motel, and shortly thereafter Freeman returned to the Rodeway Inn with the kilogram of cocaine. This evidence overwhelmingly puts Hopper in the middle of the conspiracy to deal cocaine, and a considerable distance from a mere onlooker.
Hopper also argues that when he told Moore that Freeman was irresponsible and that Moore should hereafter deal with Hopper, he was referring to the future, and thus the statement did not imply that Hopper was currently involved in the conspiracy. However, the law clearly permits the consideration of references to the future, or even acts committed after the crime, as proof of a defendant's membership in the conspiracy leading to the crime charged.
Hopper next disputes that his providing a map the delivery of the marijuana cannot be used to show he was part of the conspiracy. First, Hopper argues that in relation to the map, he "did not utter one word which could be used" to support a conviction. Second, Hopper argues that the map concerned the delivery of marijuana, and the crime he was charged with concerned cocaine: "There is no evidence that Hopper aided or abetted Freeman in anything to do with cocaine, it is apparent that this [aiding and abetting] instruction clearly confused the jury." Both arguments fall. The cocaine deal for which Hopper was convicted cannot be separated from the marijuana delivery, since the marijuana (plus some cash) was being traded for the cocaine.
Hopper also argues that the DEA agent was permitted to testify as to Freeman's statements "without any personal knowledge of that fact [Hopper's connection to the conspiracy] on the witness's part." Even if the court were applying Fed.R.Evid. 801, which is the same as the Indiana Rule of Evidence 801, the personal...
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