United States v. Hopkinson

• Decision Date: 04 March 1974
• Docket Number: No. 73-1301.,73-1301.
• Parties: UNITED STATES of America, Appellee, v. Mark HOPKINSON et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

492 F.2d 1041 (1974)

UNITED STATES of America, Appellee, v. Mark HOPKINSON et al., Defendants, Appellants.

No. 73-1301.

United States Court of Appeals, First Circuit.

Argued January 9, 1974.

Decided March 4, 1974.

Albert H. Russell, Jr., with whom Alfred Paul Farese, Everett, Mass., was on brief, for appellants.

James J. McLaughlin, Atty., Crim. Div., Dept. of Justice, with whom William J. Deachman, U. S. Atty., was on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Hopkinson, Mancini and DePietro were indicted for possession of 286,984 grams of marijuana with intent to distribute, illegal importation, and conspiracy to import.¹ Following a jury trial, Hopkinson and Mancini were found guilty of possession with intent to distribute and conspiracy to import, but the jury was unable to reach a verdict on the importation count against them. The court granted DePietro's motions for acquittal of conspiracy and importation, and the jury found him guilty only of simple possession, 21 U.S.C. § 844(a), rather than possession with intent to distribute.

A government agent testified that he had observed Heffernan, an unindicted co-conspirator, leave from a Texas airport in a small empty aircraft and return several hours later with 18 Spanishmarked boxes of marijuana. After he was arrested, Heffernan agreed to complete his delivery exactly as previously arranged — only under the control of government agents — and he flew to New Hampshire where he was met by the three defendants. Heffernan was a principal witness for the government at the trial.

Appellants contest several evidentiary rulings and the court's failure either to grant their motions for acquittal based on entrapment or to give their requested jury instructions on entrapment.

The first three asserted errors concern the admission of testimony revealing that Hopkinson and Mancini had engaged earlier in other criminal activity, namely armed robbery and illegal importation and distribution of marijuana.² But the prior incidents were part of a continuing scheme to establish a large scale marijuana distributorship. There was testimony that "the purpose of getting the robbery money was . . . to set up a distributorship for marijuana in the United States." Following the robbery, Hopkinson and Mancini imported 225 pounds of marijuana from Mexico; Heffernan testified Hopkinson,

"wanted to know what price we could get for the marijuana in Boston, how soon we could get rid of it, because he had to pay his suppliers back in Mexico, and how soon we could expect to get enough money for the flight down to Mexico for the downpayment and cost of the aircraft."

When the first marijuana lot was being sold, Hopkinson and Heffernan discussed details of the importation conspiracy charged in the indictment. Mancini, who had received large payments for deliveries from the 225 pound lot, provided Heffernan with funds to pay the downpayment on the aircraft and to finance the Mexican venture. Evidence of prior criminal activity "is admissible if it is so related to or connected with the crime charged as to establish a common scheme or purpose so associated that proof of one tends to prove the other, or if both are connected with a single purpose and in pursuance of a single object . . ." Green v. United States, 176 F.2d 541, 543 (1st Cir. 1949). Here the prior history fleshed out the circumstances of the later conspiracy. The earlier marijuana importation and subsequent sale were, moreover, admissible as prior similar acts to prove intent to distribute. New England Enterprises, Inc. v. United States, 400 F.2d 58, 70 (1st Cir. 1968).

Also objected to was Heffernan's testimony that Hopkinson asked him if he would be willing to fly marijuana from Mexico into the United States and "that it would be minimal risk, because he Hopkinson had done this in the past, and he had a very good contact in Mexico and I would be very safe." While the reference to prior importations was, by itself, irrelevant, the statement as a whole was relevant to the conspiracy to import, one aspect of which was Hopkinson's attempt to induce Heffernan to act as pilot. Cf. United States v. Johnson, 467 F.2d 804, 807 (1st Cir. 1972); United States v. Ravich, 421 F.2d 1196, 1204 (2d Cir. 1970). Had Hopkinson objected we would be faced with deciding whether the statement's legitimate probative value was outweighed by the possibility of prejudice. But Hopkinson did not object, nor did he ask for a limiting instruction. We cannot say that the court committed plain error nor see that the statement could have materially prejudiced Mancini who was not present during the conversation.

Appellants claim error in the admission into evidence of copies, not originals of two rental contracts for a truck and aircraft. However, in the case of the Hertz truck rental agreement, it is now too late to raise the best evidence rule. At trial defendants first objected without stating a reason. Later a reason was given to the effect that the signature on the form could only indicate a name but not identify ...