U.S. v. Hopkins, 81-1271

• Citation: 716 F.2d 739
• Decision Date: 29 June 1982
• Docket Number: No. 81-1271,81-1271
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Amos A. HOPKINS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 739

716 F.2d 739

UNITED STATES of America, Plaintiff-Appellee, v. Amos A. HOPKINS, Defendant-Appellant.

No. 81-1271.

United States Court of Appeals, Tenth Circuit.

June 29, 1982.

Rehearing Pending.

Mary E. Bane, of Oyler, Smith & Bane, Oklahoma City, Okl., for defendant-appellant.

John R. Osgood, Asst. U. S. Atty., Oklahoma City, Okl. (David L. Russell, U. S. Atty., Oklahoma City, Okl., was on the brief), for plaintiff-appellee.

Before HOLLOWAY, LOGAN and SEYMOUR, Circuit Judges.

HOLLOWAY, Circuit Judge.

This is a direct appeal by the defendant-appellant Amos A. Hopkins from his convictions on eleven counts of mail fraud (Counts I through XI), 18 U.S.C. Sec. 1341, and one count of conspiracy under 18 U.S.C. Sec. 371 (Count XIV) to commit mail fraud and wire fraud, 18 U.S.C. Sec. 1343. A co-defendant, Clifford Aaron Maston, was charged along with Hopkins on two of the mail fraud counts (Counts I and II) ¹ and the conspiracy count (Count XIV), and individually on two mail fraud counts (Counts XII and XIII), under 18 U.S.C. Sec. 1341 and 18 U.S.C. Sec. 2, but Maston was acquitted on all these five counts. Hopkins was sentenced to terms of five years' imprisonment on each of his convictions, the sentences being concurrent.

As grounds for reversal, defendant Hopkins asserts claims that (1) the indictment was fatally defective as to the allegations of the mail fraud counts; (2) the charges and the evidence were insufficient to show a scheme or artifice to defraud; (3) the evidence was insufficient to establish a conspiracy; (4) the indictment and evidence as to counts one through eight in no way showed mailings made in furtherance of a scheme to defraud, as required by Sec. 1341; (5) the trial court erred in refusing to give a good faith defense instruction; and (6) several of the trial judge's rulings on the admission of evidence and the scope of cross-examination, and several of his statements during the course of the trial, prevented defendant from fully presenting his defense and were prejudicial error.

I

Viewing all the evidence, direct and circumstantial, together with all reasonable inferences therefrom, in the light most favorable to the Government as we must on this appeal from a guilty verdict, United States v. Twilligear, 460 F.2d 79, 81-82 (10th Cir.), the evidence tended to show the following facts.

In substance Hopkins was charged, along with Maston, with devising a scheme to defraud and to obtain money by inducing numerous persons to pay for services in assisting them in filing a claim for an Indian land allotment. ² The fee for his assistance varied from approximately $100 to $125 per claim. Defendant is charged in each mail fraud count with knowingly making false representations to obtain money. He allegedly represented that by submitting a specific form (claim form) ³ to the Clark County, Nevada, Recorder's office an individual could obtain up to 160 acres of public domain land in Nevada to be used for various purposes. He is said to have represented that by virtue of their Indian descent they had a right to the Nevada lands and that the right to the land allotments was provided for by various sections of the United States Code, Indian treaties, and case law. (IX R. 392-93; X R. 947-49; Def.Exhs. 21-26, 28 and 598).

Hopkins and Maston provided land descriptions for the claim forms and instructed the claimants that the forms must be accompanied by a thumbprint and a nominal recording fee. Finally, Hopkins provided a Clark County, Nevada, Recorder's address to which the claim forms were to be mailed in some instances advising use of certified mail. He represented that after the claim was filed the claimant would have some rights in the land, these representations varying as to different claimants. (E.g., XI R. 46, 300). ⁴

In 1977 the Clark County, Nevada, Recorder's office began receiving the claim forms. As of December 1980, the time of trial, the Recorder's office had received between 1500 and 1800 such forms. Over 400 of these claims were admitted in evidence. (See e.g., V R. containing 386 claims; Pl.Exhs. 6-9). The claims contained the same information, included a land description, and were accompanied by a small recording fee. ⁵

Maston, the acquitted co-defendant, identified numerous Western Union telegraphic money order receipts of money sent by him to Hopkins in Nevada, California, and Texas. Some of the receipts indicate that the money was sent to Hopkins via teller's cages in gambling casinos in Las Vegas. (E.g., Def.Exhs. 56-58 and 73). The total amount sent was in excess of thirty-two thousand dollars. (X R. 993). Maston also deposited nearly three thousand dollars in a bank account in Hopkins's name. (Def.Exhs. 110-114).

Government witness Roger Jarrell, an employee of the Bureau of Land Management (BLM) in Nevada, testified as to the status of the land that some of the claimants had filed for pursuant to Hopkins's guidance. His testimony indicated that, contrary to Hopkins's representations, the land was either unavailable for Indian land allotments until it was reclassified, or was patented to other persons. The land claimed by four of the claimants (Counts I, VII, IX, and XI) had been patented into private ownership as early as 1961 and was thus unavailable for Indian land allotments. ⁶ Jarrell's testimony also related the status of three other claimants (Counts III, IV, and VI) and revealed that, at the least, the land was classified for retention and would require a petition for reclassification in order to be available for an Indian land allotment. ⁷

Other testimony revealed that Hopkins sometimes gave the same legal description to different claimants. (IX R. 435). Hopkins also testified as to his familiarity with Hopkins v. United States, 414 F.2d 464 (9th Cir.) (see n.2, supra ), Kale v. United States, 489 F.2d 449 (9th Cir.), cert. denied, 417 U.S. 915, 94 S.Ct. 2617, 41 L.Ed.2d 220 and Finch v. United States, 387 F.2d 13 (10th Cir.), cert. denied, 390 U.S. 1012, 88 S.Ct. 1262, 20 L.Ed.2d 162, all of which in part address the proper method of filing for an Indian land allotment.

Hopkins vigorously denied any fraud or misrepresentation. He testified at length explaining his belief that Hopkins v. United States, supra, did not decide the issues he was fighting for--namely, the right of every Indian "to pursue his remedy under 25 U.S.Code 345, 346" and for the Indians' rights under 25 U.S.C. Sec. 415 which he claimed "... allowed Indian land, either tribally or individually owned, to be used for grazing purposes, for agricultural purpose, where a sizeable investment would have to be made, or for housing development, recreational development, religious purposes, or any other purpose." (XI R. 1,211). Hopkins testified that the first thing he determined when assisting someone in filing for an Indian land allotment was whether or not the person was of Indian descent, and that a Certificate of Eligibility or Entitlement was not required but was conclusive evidence of the right to an allotment. (XI R. 1,224). He also claimed that the right to a land allotment "is a pre-existing right." (Id.).

Further, Hopkins testified that it was his belief that filing the claim form in Clark County, Nevada, served as notice of an Indian allotment selection, that it was a method of establishing constructive settlement on the land (XI R. 1,227, 1,238), and that the Taylor Grazing Act did not affect the right to Indian land allotments since that right is a "vested right" and the Act "does not allow the Secretary [of the Interior] ... to restrict, diminish or impair any vested right." (XI R. 1,247). Consistent with this position, Hopkins stated that the withdrawal of the ten Western States from settlement, effected by Executive Order in 1934, was only temporary. ⁸ Additionally, Hopkins claimed that the money obtained by him for his assistance in filing claim forms was used generally by the Tribal Indian Land Rights Association (TILRA), 85% being for charitable purposes and some for his livelihood.

Additional evidence will be detailed as necessary in discussing Hopkins's appellate contentions.

II

Sufficiency of the indictment

Defendant urged the insufficiency of the indictment by a pretrial motion. (I R. 20-29). The motion was overruled. On appeal, Hopkins reasserts the contentions made in his pretrial motion, namely, that the indictment was insufficient as to Counts I through XI, both to apprise him of what he had to be prepared to meet at trial and to support a plea of former acquittal or conviction. (Opening Brief of Defendant, 30).

More specifically, defendant Hopkins argues that mail fraud Counts I through VIII ⁹ lack the specificity needed to prepare for trial since the Government failed to distinguish those specific mailings from the more than 1,800 mailings the evidence indicated. Defendant claims that even the specific name of the victim found in each count was unhelpful as there was no charge that that victim mailed the document(s) nor was there any way that Hopkins could determine when the mailings were made unless he was notified of them. Hopkins likewise contends that mail fraud Counts IX through XI are vague and fail to apprise him of what he must be prepared to meet at trial since the charges do not reveal the identity of the drawers of the checks or explain the victim's connections to the allegations.

The general rules for determining the sufficiency of an indictment are well settled. The Sixth Amendment provides that "the accused shall enjoy the right ... to be informed of the nature and cause of the accusation." In Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240, the Supreme Court set forth the essential criteria for measuring the sufficiency of an indictment. First, it must contain the elements of the offense and sufficiently apprise the defendant of what he must be prepared to meet. Second, in case of further proceedings against him...