U.S. v. Hopkins

• Decision Date: 19 October 1990
• Docket Number: No. 89-1666,89-1666
• Citation: 916 F.2d 207
• Parties: 31 Fed. R. Evid. Serv. 540 UNITED STATES of America, Plaintiff-Appellee, v. Robert H. HOPKINS, Jr., Morten Hopkins, and John W. Harrell, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 207

916 F.2d 207

31 Fed. R. Evid. Serv. 540

UNITED STATES of America, Plaintiff-Appellee, v. Robert H. HOPKINS, Jr., Morten Hopkins, and John W. Harrell Defendants-Appellants.

No. 89-1666.

United States Court of Appeals Fifth Circuit.

Oct. 19, 1990.

John H. Hagler, Dallas, Tex., for defendants-appellants.

Karen Skrivseth, Crim. Div., Appellate Section, Washington, D.C., Marvin Collins, U.S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Texas.

Before POLITZ and JOHNSON, Circuit Judges. ¹

JOHNSON, Circuit Judge:

Defendants Robert H. Hopkins, Jr., Morten Hopkins, and John W. Harrell appeal from their convictions on various charges of conspiring to commit an offense against the United States, willfully causing the concealment of material facts from a federal agency, willfully misapplying the funds of an institution insured by the Federal Savings and Loan Insurance Corporation, and of knowingly making false entries in the records of that institution. The defendants engaged in all of these activities in order to disguise illegal corporate political contributions to various political action committees.

The defendants urge five grounds for reversing their convictions. They argue 1) that the evidence was not sufficient to establish that they possessed the mental states required for conviction, 2) that the trial court abused its discretion in failing to grant a two week continuance in the midst of their trial, 3) that the trial court improperly allowed the Government to introduce evidence of an extrinsic act, 4) that it was improper for the defendants to be prosecuted under general federal fraud, concealment, and misapplication of funds laws because their actions fall within the ambit of more specific federal election statutes, and 5) that the trial court's orders of restitution were not supported by sufficient factual bases. Because none of the issues raised by the defendants evinces reversible error, the judgment of the district court will be affirmed.

I. FACTS AND PROCEDURAL HISTORY

The details of the defendants' schemes to circumvent the federal election laws, and specifically the prohibition on corporate political contributions, are quite complex. It is not necessary to recount them here. It is enough to say that each of the defendants was an officer or director of one or more savings and loan institutions, and that they wished to make large contributions to various candidates or political groups in an effort to prevent passage of legislation that they felt was unfavorable to the savings and loan industry. Because federal law prohibits federally insured savings and loans from making political contributions, the defendants devised a scheme by which the savings and loans which they controlled would make political contributions indirectly: individual officers and employees of the institutions would be required to make contributions and would then be reimbursed for those contributions by the institution. The reimbursements were disguised either as pay raises or as reimbursements for legitimate business expenses. In the course of this scheme, the defendants falsified various records of the financial institutions involved and concealed certain facts from both bank examiners and federal election authorities.

The defendants were indicted on 47 counts. The charges can be grouped into four categories:

Count 1 conspiring to commit an offense against the United States, ²

Counts 2 & 3 knowingly and willfully causing another to conceal a material fact from the Federal Election Commission, ³

Counts 4-25 knowingly and willfully misapplying the funds of an institution having accounts insured by the FSLIC, ⁴ and

Counts 26-47 knowingly and willfully causing false entries to be made in the records of an institution having accounts insured by the FSLIC. ⁵

The trial lasted four weeks. Defendants Robert and Morten Hopkins (who are brothers) were convicted on all 47 counts. Robert Hopkins was sentenced to concurrent five-year prison terms on counts 1-39, to be followed by five years' probation on counts 40-47. In addition, he was ordered to make restitution of $104,062 to the savings and loan he and his brother controlled. Morten Hopkins was sentenced to five years' probation, with the first six months in confinement, and was also ordered to make restitution of $104,062.

John Harrell was convicted on only two counts, numbers 43 and 44, for knowingly and willfully causing false entries to be made in the records of an institution having accounts insured by the FSLIC. Harrell was sentenced to five years' probation with the first six months in confinement, and ordered to make restitution of $4,000.

II. DISCUSSION

A. Sufficiency of the Evidence

The defendants admit that they engaged in the activities that constitute indirect corporate political contributions. They challenge their convictions by arguing that the prosecution failed to present evidence sufficient to prove that the defendants possessed the mental states required for conviction by the statutes under which they were charged. The standard of review of a claim of insufficiency of the evidence is well settled. ⁶ The conviction must be sustained if, considering the evidence in the light most favorable to the prosecution, a rational trier of fact could have found that the evidence established the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Weddell, 800 F.2d 1404, 1406-07 (5th Cir.1986). Viewed under this standard of review the evidence was plainly sufficient to support each of the defendants' convictions.

1. Conspiracy to Commit an Offense Against the United States

Count 1 of the indictment charges the defendants with conspiracy to defraud or commit an offense against the United States. Defendants Robert Hopkins and Morten Hopkins were convicted of this offense.

To establish a conspiracy under 18 U.S.C. Sec. 371 the Government must prove that there was an agreement between two or more persons to defraud the United States or to violate a law of the United States, that one of the persons committed an overt act in furtherance of the conspiracy, and that the defendant possessed the requisite intent to further an unlawful objective of the conspiracy. United States v. Medrano, 836 F.2d 861, 863-64 (5th Cir.), cert. denied, 488 U.S. 818, 109 S.Ct. 58, 102 L.Ed.2d 36 (1988); United States v. Colwell, 764 F.2d 1070, 1072 (5th Cir.1985). The agreement necessary to establish the existence of a conspiracy can be established by circumstantial evidence:

[w]here the circumstances are such as to warrant a jury in finding that the conspirators had a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement, the conclusion that a conspiracy is established is justified.

American Tobacco Co. v. United States, 328 U.S. 781, 810, 66 S.Ct. 1125, 1139, 90 L.Ed. 1575 (1946). See also United States v. Cuni, 689 F.2d 1353, 1356 (11th Cir.1982); United States v. Graves, 669 F.2d 964, 969 (5th Cir.1982). There need not be an express or formal agreement; a tacit understanding is sufficient. Ianelli v. United States, 420 U.S. 770, 777 n. 10, 95 S.Ct. 1284, 1289 n. 10, 43 L.Ed.2d 616 (1975); United States v. Martin, 790 F.2d 1215, 1219 (5th Cir.), cert. denied, 479 U.S. 868, 107 S.Ct. 231, 93 L.Ed.2d 157 (1986).

A rational jury could easily conclude that the evidence proved the Hopkins' agreement to violate the law. The evidence showed that the Hopkins together conducted meetings for their employees about contributing to a political action committee that Robert Hopkins had formed, that both Hopkins received copies of the by-laws of that political action committee, that both had authority to sign checks for the political action committee, that both were involved in deciding that officers of the savings and loan would be reimbursed for their contributions to the political action committee by way of pay raises and in deciding the amount of those raises, and that both contacted officers of the savings and loan to solicit political contributions which were reimbursed through false cash advances or travel vouchers. A jury could readily infer from these circumstances that Robert and Morten Hopkins shared a unity of purpose or common design to arrange and disguise indirect corporate political contributions.

Having presented ample proof of an agreement between the defendants, the next question is whether the Government also satisfactorily proved the defendants' intent to commit an offense against, or defraud the United States. The Supreme Court has defined this element of the crime under Sec. 371:

To conspire to defraud the United States means primarily to cheat the government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation [or] chicane[ry].

Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 512, 68 L.Ed. 968 (1924). See also Dennis v. United States, 384 U.S. 855, 861, 86 S.Ct. 1840, 1844, 16 L.Ed.2d 973 (1966).

The statute "is designed and intended to protect the integrity of the United States and its agencies, programs and policies." United States v. Burgin, 621 F.2d 1352, 1356 (5th Cir.), cert. denied, 449 U.S. 1015, 101 S.Ct. 574, 66 L.Ed.2d 474 (1980). See also United States v. Winkle, 587 F.2d 705, 708 (5th Cir.), cert. denied, 444 U.S. 827, 100 S.Ct. 51, 62 L.Ed.2d 34 (1979). Moreover, the evidence need not show that a...