United States v. Hopkins, CR. 20-50095-JLV

CourtUnited States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
Docket NumberCR. 20-50095-JLV
Decision Date25 January 2023



No. CR. 20-50095-JLV

United States District Court, D. South Dakota, Western Division

January 25, 2023




A jury convicted defendant Cody Hopkins of attempted enticement of a minor using the internet. (Docket 72). Defendant filed a post-trial motion for new trial together with three legal memoranda. (Dockets 77, 78, 83 & 85). The government opposes defendant's motion. (Docket 84). For the reasons stated below, defendant's motion is denied.



On August 25, 2022, a jury convicted Mr. Hopkins of attempted enticement of a minor using the internet in violation of 18 U.S.C. § 2422(b). (Dockets 19 & 71-72). On September 6, 2022, Mr. Hopkins timely filed a motion for a new trial together with a legal memorandum. (Dockets 77 & 78). The court directed the defendant to order the transcript of the trial closing arguments. (Docket 79). On September 21, 2022, defendant filed an excerpt of


the trial transcript (the “transcript”). (Docket 80). The transcript included the trial testimony of Mr. Hopkins and the closing arguments of the parties. Id. The government moved the court to require the defendant to file a supplemental brief specifically referencing the transcript in support of his new trial motion prior to filing its responsive brief. (Docket 81). The court granted the government's motion. (Docket 82). The order established new deadlines for the filing of briefs. Id. Additional briefs were filed by the parties. (Dockets 83-85).


Defendant's motion seeks a new trial pursuant to Fed. R. Crim. P. 33 on two grounds. (Docket 83). Those are:

A. Prosecutorial misconduct-sleep deprivation, credibility misleading the jury; and
B. Prosecutorial misconduct-misrepresentation of burden of proof



Fed. R. Crim. P. 33(a) gives the district court authority to vacate a judgment and grant a new trial in the interest of justice. Defendant timely filed his motion within 14 days of the verdict. Fed. R. Crim. P. 33(b)(2). The decision to grant or deny a Rule 33 motion “is within the sound discretion of the [district] court.” United States v. Campos, 306 F.3d 577, 579 (8th Cir. 2002). The court's discretion is both broad and limited. Id. It is broad to the extent the court “can weigh the evidence, disbelieve witnesses, and grant a new trial even where there is substantial


evidence to sustain the verdict.” Id. (internal quotation marks and citations omitted). “[T]he court need not view the evidence most favorably to the verdict.” United States v. Worman, 622 F.3d 969, 977 (8th Cir. 2010); United States v. Lacey, 219 F.3d 779, 783-84 (8th Cir. 2000) (In determining whether to grant a Rule 33 motion, “the court need not view the evidence in the light most favorable to the government, but may instead weigh the evidence and evaluate for itself the credibility of the witnesses.”).

The court's discretion is limited to the extent the court must allow the jury's verdict to stand unless it determines a miscarriage of justice will occur. Id.; see also United States v. McCraney, 612 F.3d 1057, 1064 (8th Cir. 2010) (“Where a defendant moves for a new trial on the grounds that the verdict is contrary to the weight of the evidence, the district court should grant the motion if the evidence weighs heavily enough against the verdict that a miscarriage of justice may have occurred.”) (internal quotation marks and citation omitted); Worman, 622 F.3d at 978 (“A district court will upset a jury's finding only if it ultimately determines that a miscarriage of justice will occur.”); United States v. Camacho, 555 F.3d 695, 705 (8th Cir. 2009) (“[A] new trial motion based on insufficiency of the evidence is to be granted only if the weight of the evidence is heavy enough in favor of acquittal that a guilty verdict may have been a miscarriage of justice.”); United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980) (“If the court concludes that, despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred, it


may set aside the verdict, grant a new trial, and submit the issues for determination by another jury.”).

Because a motion for new trial based on the weight of the evidence is “generally disfavored,” the district court should use its authority to grant a Rule 33 motion “sparingly and with caution.” Campos, 306 F.3d at 579 (internal quotation marks and citations omitted); see also United States v. Bertling, 510 F.3d 804, 808 (8th Cir. 2007) (“A district court should not grant a motion for a new trial simply because it would have reached a different verdict.”) (citations omitted).


To receive a new trial based on prosecutorial misconduct, “defendant must show that the government's conduct was improper and that it ‘affected the defendant's substantial rights so as to deprive him of a fair trial.' ” United States v. Clayton, 787 F.3d 929, 933 (8th Cir. 2015) (quoting United States v. Hunter, 770 F.3d 740, 743 (8th Cir. 2014)) (some internal quotation marks omitted). “In assessing the prejudicial impact of prosecutorial misconduct [the court] must consider: 1) the cumulative effect of the misconduct; 2) the strength of the properly admitted evidence; and 3) the curative actions taken by the district court.” United States v. Wadlington, 233 F.3d 1067, 1077 (8th Cir. 2000).

While “a single misstep on the part of the prosecutor may be so destructive to the right to a fair trial that reversal is mandated[,] . . . the key question


ultimately is whether the prosecutor's comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.' ” United States v. Schneider, 157 F.Supp.2d 1044, 1055 (N.D. Iowa 2001) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)).


A. Prosecutorial Misconduct-Sleep Deprivation, Credibility, Misleading the Jury

Mr. Hopkins' argument begins in the government's cross-examination of him during trial. Mr. Hopkins told the jury the statements in his post-arrest law enforcement interview were not lies but rather were the consequence of “going on severe sleep deprivation.” (Docket 80 at p. 27:13-28:3). The following exchange occurred with government counsel:

Q. And would you also agree, like you discussed today and in your interview, you're a mechanic by trade. Correct?
A. Yes.
Q. You're-you don't have any specialized training in rescuing abused and neglected children. Would you agree?
A. It was just experience.
Q. But no formal training or expertise in it?
A. No.
Q. And that experience was one time that you previously met a minor online, met that person, and concluded you helped her. Correct?
A. No.
Q. You discussed one time. Was [sic] there more times that you didn't disclose to the police that you met minors and helped them?
A. No.
Q. There was just the once. Correct?
A. No.
Q. So there was more?
A. No.
Q. What are you saying “no” to? You never met a person, so you lied in your interview?
A. I'm saying in my interview I had been going on severe sleep deprivation. I got confused with another person I had met back home.
Q. You didn't declare this severe sleep deprivation to anybody when you were doing your interview. Correct?
A. I did declare it, but it was not mentioned in the reports.
Q. You declared it on the recording?
A. No.

(Docket 80 at p. 27:4-28:10).

During re-direct examination, Mr. Hopkins clarified he spoke about sleep deprivation with “the officer that was taking [him] to the precinct.” Id. at pp. 34:25-35:1. This discussion centered around Mr. Hopkins' alleged conversation with Detective Almeida, the officer who transported defendant to the Homeland Security detention center.


In its initial closing argument, the government addressed defendant's intent in light of the court's Instruction No. 5. (Docket 80 at p. 45:22-24) (referencing Docket 64 at p. 9). The argument developed as follows:

Now, what he says, whether it was in the interview with law enforcement or up here today on the stand, if you believe any of it, you can consider that. But it is only one part of the consideration.
Again, as we discussed in jury selection, you can determine someone's intent by looking at how they act, what they say before, during, after an event. And the law says intent may be proven just like anything else. You can consider any statements made or acts done by the defendant and all the facts and circumstances in evidence which may aid in determining the defendant's intent.
You may, but are not required to, infer that a person intends the natural and probable consequences of acts knowingly done or knowingly admitted -- omitted.
And let's talk a little bit more about the defendant's admissions and what he said in the interview with law enforcement. Before we get into that, I want you to think back this morning. Detective Almeida was on the stand. He testified, and he told you that he was the transport officer for Mr. Hopkins on the night of his arrest. He took him from Stevens High School to Homeland Security Investigations' office.
And during that time, he made one statement. The defendant made one statement that, “Hey, does this happen a lot?” Detective [Almeida] had to clarify. He said, “Do people solicit underage people around here often?” Detective Almeida answered that question, said, “Probably the same as anywhere else.”
And then I asked him under oath if there was anything else that the defendant told him that

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