U.S. v. Hopkins

• Decision Date: 18 June 1975
• Docket Number: No. 74-2293,74-2293
• Citation: 518 F.2d 152
• Parties: UNITED STATES of America v. Arthur HOPKINS et al. Appeal of James DINKINS.
• Court: U.S. Court of Appeals — Third Circuit

Page 152

518 F.2d 152

UNITED STATES of America v. Arthur HOPKINS et al.

Appeal of James DINKINS.

No. 74-2293.

United States Court of Appeals, Third Circuit.

Argued April 14, 1975.

Decided June 18, 1975.

Edward H. Weis, Asst. Defender, Defender Ass'n of Philadelphia, Philadelphia, Pa., for appellants.

Robert E. J. Curran, U. S. Atty., Walter S. Batty, Jr., Thomas J. McBride, Asst. U. S. Attys., Philadelphia, Pa., for U. S.

Before SEITZ, Chief Judge, and ROSENN and WEIS, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

James Hargrove Dinkins was indicted for distribution of heroin and conspiracy to distribute heroin. He allegedly conspired with Arthur Hopkins, Alfred S. Fletcher, and James Reid to sell two "bundles" of heroin to a Government informant, Calvin Butler. ¹ Midway through the Government's case-in-chief, the United States District Court for the Eastern District of Pennsylvania determined that sufficient independent evidence of Dinkins' participation in the alleged conspiracy had been adduced to permit the jury to consider with respect to Dinkins the hearsay declarations of his alleged coconspirators. The jury found Dinkins guilty on both the substantive and conspiracy counts. After denying Dinkins' motion for judgment of acquittal, the district court sentenced him on the substantive count to three years' imprisonment followed by a three-year special parole term. On the conspiracy count, the district court suspended sentence and placed Dinkins on probation for a five-year period running consecutively to the term of imprisonment imposed on the substantive count.

Dinkins makes the following contentions on appeal:

(1) The evidence on the substantive count, which consisted primarily of Butler's testimony, was insufficient since Butler was a paid informant, a drug addict with criminal charges outstanding against him, and his testimony was uncorroborated.

(2) The district court committed plain error in failing to give certain jury instructions concerning Butler's unreliability which were not requested by Dinkins.

(3) The district court erred in permitting the hearsay declarations of Dinkins' alleged coconspirators to be admitted in evidence against him.

(4) When the challenged hearsay declarations are excluded, the record is insufficient to support the conspiracy conviction.

(5) Dinkins is entitled to a new trial on the substantive count because admission in evidence of the challenged hearsay declarations did not constitute harmless error.

We affirm Dinkins' conviction on the substantive count and reverse his conviction on the conspiracy count.

I.

The Government's case rested primarily on the testimony of Calvin Butler, the informant. Butler's testimony was corroborated in part, however, by federal agents who kept him under surveillance immediately before and during the critical period of his alleged transaction with Dinkins.

On the evening in question, Butler was cooperating with federal agents in Philadelphia in an attempt to purchase heroin from Arthur Hopkins. Butler and Agent Bannister drove to the vicinity of 20th and York Streets, whereupon Butler alighted from the car. Although initially unsuccessful in locating Hopkins, Butler eventually encountered Alfred Fletcher, who agreed to telephone Hopkins. Fletcher departed to make his call and then returned, informing Butler that Hopkins was on his way. By this time, Agent Bannister had left. Butler therefore called him at his office and told him that Hopkins was coming.

Hopkins informed Butler when they met that he had distributed all his heroin among his workers, but that he knew where some heroin could be obtained. Butler, accompanied by James Reid who identified himself as an employee of Hopkins, was to go to 8th and Susquehanna Streets. Reid and Butler encountered Agent Bannister, who had returned posing as Butler's principal, at the corner of 21st and Boston Streets. Agent Bannister drove them to 8th and Susquehanna Streets, whereupon Butler and Reid entered Twardy's Bar.

Butler testified that Reid introduced him to appellant Dinkins. After discussing price with Dinkins for five bundles of heroin, Butler went outside to confer with Agent Bannister. Agent Bannister gave Butler $200 and instructed him to purchase only two bundles of heroin.

As Butler was returning to make the purchase, Agent Bannister observed Dinkins emerge from the bar. Agent Bannister testified:

Mr. Butler then approached Mr. Dinkins, and what appeared to be a short conversation ensued. Mr. Dinkins then sort of motioned Mr. Butler into the bar and proceeded to walk east on Susquehanna to 802 Susquehanna, which he entered at approximately 10:18. A few moments later I observed Mr. Dinkins exit 802 Susquehanna and reenter the bar.

According to Butler's testimony, he purchased two bundles of heroin from Dinkins. Immediately thereafter, Butler and Reid left the bar and rejoined Agent Bannister at his car, where Butler gave Bannister the heroin.

II.

We are satisfied that the evidence, exclusive of the hearsay statements of alleged coconspirators, is sufficient to sustain Dinkins' conviction on the substantive count. We recognize that Butler was a heroin addict who may have been experiencing symptoms of withdrawal at the time of the transaction with Dinkins. We also are aware that Butler had criminal charges outstanding against him and was compensated for his services as an informant. The extent to which these factors derogated from Butler's credibility, however, was exhaustively developed in the testimony. Moreover, Butler's testimony was corroborated in significant respects by federal agents. We consider especially significant the testimony of Agent Bannister concerning the interaction between Butler and Dinkins outside Twardy's Bar.

Had Dinkins requested a more extensive jury instruction on Butler's credibility, he might have been entitled to one. We are cognizant of the dangers inherent in the testimony of drug addicts, especially those who are paid informants and have criminal charges pending against them. In the present case, however, we believe that the district court did not commit plain error in failing to instruct the jury more specifically on the effect which Butler's status as a paid informant and drug addict with criminal charges pending might have had on his credibility.

The jury's attention was focused upon Butler's lack of reliability by lengthy cross-examination, both of Butler and of the federal agents who observed him. A comprehensive inquiry was made into the criminal charges against Butler and the payments for his services as an informant. The effect of Butler's addiction upon his perception was delved into, both generally and with respect to the evening on which the alleged transaction with Dinkins occurred. Against this backdrop, the district court instructed the jury concerning credibility:

You should carefully scrutinize all the testimony given, the circumstances under which each witness has testified, and every matter in evidence which tends to show whether a witness is worthy of belief. Consider each witness' intelligence, motive and state of mind, and demeanor and manner while on the stand. Consider the witness' ability to observe the matters as to which he has testified, and whether he impresses you as having an accurate recollection of these matters. Consider also any relation each witness may bear to either side of the case; the manner in which each witness might be affected by the verdict; and the extent to which, if at all, each witness is either supported or contradicted by other evidence in the case.

Now, the testimony of an informer who provides evidence against a defendant for pay, or for immunity from punishment, or for personal advantage or vindication, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness. The jury must determine whether the informer's testimony has been affected by interest, or by prejudice against the defendant.

Now, the testimony of a witness may be discredited or impeached by showing that the witness has been convicted of a felony, that is, of a crime punishable by imprisonment for a term of years. Prior conviction does not render a witness incompetent to testify,...