United States of America v.  SEAN JERVITT HOPKINS, a/k/a Sean Jackson

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4581 
SEAN JERVITT HOPKINS, a/k/a Sean
Jackson,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CR-99-224-AW)
Argued: September 26, 2002
Decided: October 23, 2002
Before WILKINSON, Chief Judge, WIDENER, Circuit Judge,
and HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Widener and Senior Judge Hamilton joined.
COUNSEL
ARGUED: Timothy Joseph Sullivan, SULLIVAN & SULLIVAN,
College Park, Maryland, for Appellant. Ronald Jay Tenpas, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee. ON
BRIEF: Thomas M. DiBiagio, United States Attorney, James M.
Trusty, Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.

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OPINION
WILKINSON, Chief Judge:
Defendant Sean Jervitt Hopkins appeals the judgment of the United
States District Court for the District of Maryland sentencing him to
life imprisonment for various offenses stemming from his use of a
gun during a high speed chase through the streets of Prince George’s
and Montgomery Counties, Maryland. He raises numerous assign-
ments of error, none of which have merit. We thus affirm the judg-
ment.
I.
On March 17, 1999, FBI Special Agent George Dysico and Deputy
United States Marshal Justin Vickers were conducting surveillance of
an apartment complex in Greenbelt, Maryland as part of an effort to
locate and apprehend fugitive Sean Jervitt Hopkins. After seeing Hop-
kins’ vehicle approach and then quickly flee the complex, the officers
activated their emergency lights and began pursuit. A high-speed
chase ensued during which Hopkins drove erratically around the I-
495 beltway and through several residential neighborhoods. Hopkins
consistently drove twenty to thirty miles above the speed limit, cut off
other drivers, and wove in and out of traffic. According to the offi-
cers, Hopkins brandished a pistol and waved it at them through the
window of his car. At several points during the chase, Hopkins veered
to one side of the road, shot at the officers over the roof of his car,
and then veered back to the other shoulder to throw them off his trail.
The chase finally ended when Hopkins’ vehicle struck first a Mont-
gomery County school bus, then a telephone pole, and then caught
fire. At this point, Dysico and Vickers freed Hopkins from the car and
placed him under arrest, noticing for the first time that two small chil-
dren had been in the car during the violent chase. Dysico rescued the
children from the car, injuring his hand in the process.
The officers searched Hopkins and found he was carrying 96
rounds of loose ammunition, a police scanner radio, and 34 individual
baggies containing a substance later confirmed to be cocaine base. A
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search of the car revealed a Sig Sauer .380 semi-automatic pistol with
a partially loaded clip. Subsequent searches of the area failed to
recover any shell casings from Hopkins’ gun, but a fresh groove in
the roof of Hopkins’ car, as well as a crack in the windshield of the
officers’ car, indicated that bullets were fired from Hopkins’ car at the
officers’ vehicle.
On May 24, 1999, a grand jury returned a five count indictment
against Hopkins based on the March 17 car chase. Counts One and
Two of the indictment alleged that Hopkins forcibly assaulted and
resisted federal agents Dysico and Vickers with a deadly and danger-
ous weapon in violation of 18 U.S.C. § 111(b). Count Three alleged
use of a firearm in a crime of violence in violation of 18 U.S.C.
§ 924(c), and Count Four alleged that Hopkins was a felon in posses-
sion of a firearm in violation of 18 U.S.C. § 922(g)(1). Lastly, Count
Five alleged possession with intent to distribute cocaine in violation
of 21 U.S.C. § 841(a)(1).
A trial was initially scheduled for August 17, 1999, and Hopkins,
through his attorney, filed a motion to suppress evidence of his prior
convictions on July 30, 1999. Proceedings were then continued in
accordance with defendant’s request. Defendant filed four additional
motions seeking to extend the motions deadline and to delay the
motions hearing. On January 3, 2001, the grand jury returned a super-
seding indictment that amended Count Three to add the conclusion
"and in doing so, did brandish and discharge said firearm," amended
Count Four to include the phrase "foreign commerce," and amended
Count Five to state that the drug involved was cocaine base instead
of cocaine powder. On January 24, 2001, Hopkins filed a motion
claiming that his statutory right to a speedy trial had been violated,
and on January 29, 2001, he filed an additional motion seeking to sup-
press evidence. These motions were both denied before trial.
On May 4, 2001, following a four day trial, a jury found Hopkins
guilty on all five counts. However, the jury limited Counts One and
Two to the lesser included offense of forcibly assaulting and resisting
a police officer. See 18 U.S.C. § 111(a). The lesser included offense
instruction was given to the jury at defendant’s request. On June 11,
2001, Hopkins filed a motion for judgment of acquittal as to Counts
One, Two, and Three. This motion was denied. At the sentencing
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hearing, the court found that Hopkins had brandished a firearm in the
course of committing the § 924(c) offense and was thus subject to a
mandatory minimum sentence of seven years. The court also found,
over Hopkins’ objection, that Hopkins was a "three strikes" felon pur-
suant to 18 U.S.C. § 3559(c) and therefore was subject to a mandatory
life sentence. The court additionally sentenced Hopkins to serve 36
months imprisonment for each of Counts One and Two and 300
months imprisonment for each of Counts Four and Five. Final judg-
ment of conviction and sentence was entered on July 20, 2001. Hop-
kins appeals.
II.
Hopkins contends that it was error for the district court to deny his
motion to dismiss the charges against him because the government
failed to comply with his statutory and constitutional right to a speedy
trial.
A.
The Speedy Trial Act requires that "the trial of a defendant charged
in an information or indictment with the commission of an offense
shall commence within seventy days from the filing date (and making
public) of the information or indictment." 18 U.S.C. § 3161(c)(1).
However, the period may be tolled for a variety of reasons, including
when the defendant files a pre-trial motion, 18 U.S.C.
§ 3161(h)(1)(F), or when defense counsel requests more time to pre-
pare, 18 U.S.C. § 3161(h)(8)(A). Although nearly two years passed
between Hopkins’ initial indictment and the commencement of his
trial, his statutory right was not violated because the delay was occa-
sioned almost exclusively by motions and requests from the defendant
himself.
Hopkins acknowledges that his first motion tolled the speedy trial
clock, but he argues that the motion was filed without his authoriza-
tion. Hopkins raises this contention for the first time in this appeal,
though, and it is unsupported by the record. This motion, which
requested that evidence of Hopkins’ prior convictions be suppressed,
was proper and routine for a lawyer representing a client in Hopkins’
situation. The government appropriately relied on the motion in
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assuming that the speedy trial clock was stopped. See 18 U.S.C.
§ 3161(h)(1)(F). Additional delay resulted from Hopkins’ filing of
several motions to extend the time he had to prepare a defense. Thus
again the government had no part in any undue postponement of the
trial. Because none of the delay in getting to trial was attributable to
the government, it cannot be said to have violated Hopkins’ statutory
right to a speedy trial. Cf. United States v. Grimmond, 137 F.3d 823,
829 n.7 (4th Cir. 1998) (indicating that delay resulting from defen-
dant’s own request for trial continuance would not be counted against
the government).
B.
Hopkins also complains that the delay in his trial date was uncon-
stitutional. While no definitive time period has been set for compli-
ance with the constitutional stricture on trial delays, the Supreme
Court established a four factor test in Barker v. Wingo, 407 U.S. 514
(1972), to determine when a defendant’s constitutional right to a
speedy trial is violated. The factors to be considered are (1) the length
of the delay; (2) the reason for the delay; (3) whether defendant
timely asserted his right; and (4) whether delay prejudiced defen-
dant’s case. Id. at 530. While Hopkins contends, with little explana-
tion, that these factors weigh in favor of his claim, they in fact
strongly indicate no infraction of Hopkins’ constitutional right.
First, the two year delay before trial was not uncommonly long,
especially in comparison with Barker where no speedy trial violation
was found even though more than five years had elapsed since arrest.
Id. at 533. Second, the delay was occasioned almost exclusively by
requests from the defendant for more time to prepare his case or for
medical treatment outside of the district. The district court correctly
found that the government was not at fault for such delays. See Grim-
mond, 137 F.3d at 829 n.7. Third, the defendant did not timely assert
his speedy trial right, waiting instead until just five days before trial
to raise the issue for the first time. Lastly, and most importantly, the
defendant has not specified how his case was in any way prejudiced
by the delay. Hopkins has not shown, or even argued, that any evi-
dence was damaged or lost, that any witnesses could not be found, or
that his case was harmed in any manner by the delay. Because all four
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Barker factors weigh against Hopkins’ claim, the district court did not
err in finding that his right to a speedy trial was not violated.
III.
Hopkins further contends that the district court erred in permitting
the government to introduce expert testimony by police officer Law-
rence Phillips regarding narcotics trafficking in this case. However,
Phillips’ testimony fits well within the requirements for expert wit-
nesses detailed in Federal Rule of Evidence 702: (1) that the expert
have "specialized knowledge [that] will assist the trier of fact"; (2)
that the expert be qualified to testify because of "knowledge, skill,
experience, training or education"; (3) that the witness base his testi-
mony upon "sufficient facts or data"; and (4) that the witness has used
"reliable principles and methods" and "applied the principles and
methods reliably to the facts of the case." Fed. R. Evid. 702.
A trial judge’s decision on whether to admit testimony of this
nature is given the broadest degree of latitude. See United States v.
Dorsey, 45 F.3d 809, 814 (4th Cir. 1995). The government estab-
lished during voir dire that Phillips had extensive experience and
training in narcotics investigations. Phillips had been a Montgomery
County police officer for ten years and had been a police drug investi-
gator for seven years. Additionally, Phillips received extensive formal
training in conducting narcotics investigations. During his testimony,
Phillips explained how the materials found in Hopkins’ car led him
to believe, based on his experience and training, that Hopkins was
involved in drug distribution. He testified that the separation of the
crack cocaine rocks into separate baggies, as well as the denomina-
tions of bills Hopkins was carrying and his possession of a pager, dig-
ital scale, and small caliber weapon all led Phillips to conclude that
Hopkins was a drug dealer. This testimony both assisted the jury in
determining Hopkins’ guilt and was properly based on Phillips’
observations of the evidence in this case. The district court therefore
did not abuse its discretion in allowing this evidence under Rule 702.
IV.
Hopkins next argues that the government violated his Fifth Amend-
ment right not to be convicted for unindicted crimes. He rests this
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claim on the fact that he was convicted of violating 18 U.S.C.
§ 111(a) but was indicted only for violation of 18 U.S.C. § 111(b).
But, "a defendant in a criminal case cannot complain of error which
he himself has invited." United States v. Herrera, 23 F.3d 74, 75 (4th
Cir. 1994) (internal citation and punctuation omitted). Hopkins specif-
ically requested a jury instruction on the lesser included § 111(a)
offense, and he cannot now claim that this instruction was improper.
Here, as in Herrera, not only did the defendant explicitly request this
very instruction, but "he did so as a matter of sound trial strategy."
Id. at 76. And, as in Herrera, any error in the instruction did not taint
"the integrity of the judicial process" so as to require a new trial on
the basis of an instruction that defendant himself requested. Id. (inter-
nal citation omitted).
In fact, conviction for the lesser included felony offense was not
error at all. The Federal Rules of Criminal Procedure expressly antici-
pate that a "defendant may be found guilty of an offense necessarily
included in the offense charged." Fed. R. Crim. P. 31(c); see also
Schmuck v. United States, 489 U.S. 705 (1989). Here, each and every
element of § 111(a), forcibly assaulting, resisting, opposing, imped-
ing, intimidating, or interfering with an officer, is incorporated within
§ 111(b), forcibly assaulting, resisting, opposing, impeding, intimidat-
ing, or interfering with an officer using a deadly or dangerous
weapon. Because each element of § 111(a) was necessarily charged
in the indictment under § 111(b), Hopkins’ Fifth Amendment claim
is without merit.
V.
Next, Hopkins argues that his two 18 U.S.C. § 111(a) convictions
are duplicative and that one of them should therefore be set aside.
Hopkins correctly notes that a single act may only give rise to a single
conviction. United States v. Burns, 990 F.2d 1426, 1438 (4th Cir.
1993). However, the Supreme Court has specifically held that while
a single shot fired at multiple federal officers constitutes only a single
offense, multiple shots may support multiple convictions. Ladner v.
United States, 358 U.S. 169, 178 & n.6 (1958). The evidence pre-
sented by the government shows that Hopkins waved his gun at the
officers at several points during the chase and shot at them on at least
two occasions, both as he drove and as he was stopped in Montgom-
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ery County. Witness Nadia Richards testified specifically that after
Hopkins hit the school bus, he "fired more than twice" at the officers.
Thus, Hopkins engaged in more than one act of forcibly assaulting
and resisting a federal officer, and the district court properly found
that Counts One and Two were not duplicative.
VI.
Hopkins further alleges that the district court erred in denying his
post-trial motion for judgment of acquittal on his § 924(c) offense
because the government failed to prove all of the elements of the
charged offense.
A.
Hopkins first asserts that when the predicate offense to § 924(c) is
separately charged in the indictment, it must be proven beyond a rea-
sonable doubt for the § 924(c) conviction to stand. The indictment
returned by the grand jury on Count III charged that Hopkins had
used a firearm in connection with a crime of violence in violation of
18 U.S.C. § 924(c), and alleged that this crime of violence was an 18
U.S.C. § 111(b) offense as set out in Counts One and Two of the
indictment. Defendant therefore asserts that in order to convict him
under 18 U.S.C. § 924(c), the jury was required to find that Hopkins
had violated 18 U.S.C. § 111(b), and not merely the lesser included
offense of forcibly assaulting and resisting under 18 U.S.C. § 111(a).
Hopkins insists that while the government need not have linked his
§ 924(c) offense to another specific crime in the indictment, United
States v. Randall, 171 F.3d 195, 208 (4th Cir. 1999), because it did
link the charges, the § 924(c) conviction cannot stand without a con-
viction under § 111(b).
Hopkins’ reliance on Randall is misplaced. In Randall, the govern-
ment attempted to prove an entirely different predicate offense for a
§ 924(c) conviction rather than providing evidence of the predicate
offense for which defendant had been indicted. Id. at 205. The court
found that this was a constructive amendment of the indictment and
was fatal to the conviction. Id. at 208-209. Here, the government pre-
sented evidence that Hopkins violated § 111(b) in support of his
§ 924(c) conviction. The fact that the government did not obtain a
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conviction under § 111(b) as well as under § 924(c) does not mean
that the indictment was constructively amended — § 111(b) was still
the predicate offense.
Moreover, a defendant’s conviction under § 924(c) "does not
depend on his being convicted — either previously or contemporane-
ously — of the predicate offense, as long as all of the elements of that
offense are proved and found beyond a reasonable doubt." United
States v. Crump, 120 F.3d 462, 466 (4th Cir. 1997). In Hopkins’ case,
the jury was explicitly instructed on § 111(b) as the predicate offense,
and the evidence was more than sufficient for the jury to find a viola-
tion of each and every element. Thus, even if Hopkins had not for-
mally been convicted of either § 111(a) or § 111(b), the jury could
still have found him guilty beyond a reasonable doubt of violating
§ 924(c) with violation of § 111(b) as the predicate offense. It is irrel-
evant to this principle whether or not the § 111(b) offense was sepa-
rately charged.
The Tenth Circuit has specifically addressed this issue in the con-
text of a § 924(c) conviction. See United States v. Hill, 971 F.2d 1461
(10th Cir. 1992)(en banc). In Hill, the defendant was acquitted on
every count of the predicate drug trafficking offense. Nonetheless, the
court found that a "defendant need not be convicted of the underlying
crime in order to be convicted of § 924(c)." Id. at 1464. In fact, "[a]
defendant need not even be charged with the underlying crime to be
convicted under § 924(c)," so long as the underlying offense is one
for which defendant could be prosecuted. Id. Because the evidence
was sufficient for a rational trier to find that Hill was guilty of the
predicate offense, the fact that the jury did not find him guilty of that
offense was irrelevant to the § 924(c) calculus. Id. at 1469. Here, as
discussed in part C below, the evidence was more than sufficient for
the jury to reasonably find that Hopkins violated every element of
§ 924(c). Therefore it is irrelevant that the jury did not find in some
other count that the same evidence sufficiently supported a § 111(b)
conviction.
B.
Hopkins next contends that in convicting him of only the § 111(a)
offense of forcibly resisting a federal officer instead of the § 111(b)
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offense of forcibly resisting with a dangerous and deadly weapon, the
jury implicitly found that Hopkins had not used a dangerous weapon
during the assault. He therefore asserts that the § 924(c) conviction
must fail. However, the Supreme Court has found that "inconsistent
verdicts — even verdicts that acquit on a predicate offense while con-
victing on the compound offense—should not necessarily be inter-
preted as a windfall to the Government at the defendant’s expense."
United States v. Powell, 469 U.S. 57, 65 (1984). The Court reasoned
that it is just as likely that "the jury, convinced of guilt, properly
reached its conclusion on the compound offense, and then through
mistake, compromise, or lenity, arrived at an inconsistent conclusion
on the lesser offense." Id. Thus, such seemingly inconsistent conclu-
sions should not be set aside as error unless the evidence in the case
is insufficient to "support any rational determination of guilt beyond
a reasonable doubt." Id. at 67. The jury’s determination that Hopkins
used a gun when he committed the § 924(c) offense was supported by
ample evidence, as discussed in the next section. Therefore, his con-
viction will not be set aside just because the jury may have found in
a different count that he had not used a gun when he violated
§ 111(a).
C.
Lastly, Hopkins asserts that the government’s evidence at trial
"failed as a matter of law to establish a sufficient nexus between the
§ 924(c) charge" and the underlying offenses because the government
did not adequately prove that Hopkins used a dangerous and deadly
weapon during and in relation to the assault on Dysico and Vickers.
The district court correctly found, however, that the evidence was suf-
ficient for a reasonable jury to convict Hopkins of violating § 924(c).
The evidence presented at trial included the testimony of Dysico
that Hopkins "fired several shots at" them; the testimony of Vickers
that "on several occasions [Hopkins] discharged that weapon, shoot-
ing the weapon towards our vehicle and towards us"; and the testi-
mony of two civilian witnesses who saw and heard multiple shots.
Additionally, two forensic experts testified that the indentations in
Hopkins’ and Dysico’s cars were consistent with bullets having been
fired from Hopkins’ vehicle at the officers. One of these experts also
testified to the presence of lead on swabs taken from those indenta-
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tions, further supporting the contention that the holes were made by
bullets. Because this evidence is sufficient to support the greater
charge of using a dangerous and deadly weapon while forcibly resist-
ing an officer of the United States under § 111(b), it is also sufficient
to support a charge of using a firearm in a crime of violence in viola-
tion of 18 U.S.C. § 924(c).1
VII.
Hopkins next asserts that the district court improperly allowed the
government to introduce evidence during sentencing to determine
whether Hopkins was subject to 18 U.S.C. § 3559(c), the recidivist
sentencing statute. This provision requires the court to impose a life
sentence on any person convicted of a serious violent felony if he has
previously been convicted of two other violent felonies or another
violent felony and a serious drug offense. The government, at the
behest of the district court, introduced new evidence after it had
already concluded its sentencing presentation. This evidence con-
sisted of sections of the District of Columbia Criminal Code relating
to the statutory maximum penalties associated with Hopkins’ two
prior narcotics convictions. Hopkins argues that although the sentenc-
ing court "is afforded wide latitude in the exercise of its discretion in
this type of matter," when the court is considering a matter as weighty
as a life sentence, it should observe a "heightened burden of proof."
Therefore, Hopkins suggests that the submission of this additional
information violated his due process rights.
The court’s request for and acceptance of this evidence was well
within its discretion. During a sentencing hearing, the wide degree of
discretion normally afforded a district court on evidentiary matters is
even greater, because the Federal Rules of Evidence do not apply.
United States v. Hassan El, 5 F.3d 726, 731 (4th Cir. 1993); see also
Fed. R. Evid. 1101(d)(3). A sentencing court may hear any relevant
evidence so long as there are sufficient indicia of its reliability.
1Hopkins makes the related argument that, because his § 924(c) con-
viction was in error, the district court incorrectly sentenced him to a life
term pursuant to 18 U.S.C. § 3559(c) when the necessary predicate
offenses did not exist. Because we find that he was properly convicted
under § 924(c), his sentence under § 3559(c) was also proper.
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U.S.S.G. § 6A1.3(a). Because the evidence challenged here consisted
only of sections of the District of Columbia Criminal Code, there is
no question as to its reliability. Therefore, it was not an abuse of the
court’s discretion to allow the presentation of this evidence to help in
resolving a disputed question of law — whether the offenses commit-
ted by Hopkins were subject to maximum penalties of at least ten years.2
VIII.
Lastly, Hopkins argues that the district court erred in imposing a
sentencing enhancement on him for brandishing a firearm, because
the issue of brandishing was not submitted to the jury as required by
the Sixth Amendment. The Supreme Court rejected this same conten-
tion in Harris v. United States, 122 S.Ct. 2406 (2002). In Harris, the
defendant, as here, objected to the imposition of a mandatory seven
year minimum sentence for brandishing a gun in connection with a
drug trafficking offense. Defendant argued that brandishing should be
considered an element of a separate offense, and that he was neither
indicted nor tried for that offense. Id. at 2411. The Supreme Court,
however, found that Congress did not intend to make brandishing a
separate element of a § 924(c) offense, but rather intended it as a sen-
tencing factor to be addressed by the court. Id. at 2412. As such, it
need not be "alleged in the indictment, submitted to the jury, or estab-
lished beyond a reasonable doubt." Id. at 2410.
The use of sentencing factors has been found to be constitutional,
so long as the judge still "impose[s] a sentence within a range pro-
vided by statute." Id. Here, the judicial finding of brandishing did not
serve to increase the maximum penalty against Hopkins, but rather
served to guide the discretion of the judge in choosing a sentence by
setting a mandatory minimum. Hopkins makes no argument that this
finding increases the potential maximum penalty against him.
2In fact, the statute does not require that predicate state convictions be
subject to a maximum term of imprisonment, so long as the offense
would have been punishable under § 401(b)(1)(A) or § 408 of the Con-
trolled Substances Act or § 1010(b)(1)(A) of the Controlled Substances
Import and Export Act. See 18 U.S.C. § 3559(c)(2)(H)(ii). Thus, the doc-
uments were irrelevant even for the purpose for which they were intro-
duced.
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Because brandishing is a legitimate sentencing factor and not an ele-
ment of the crime of forcibly resisting, and because the sentence
imposed was within the range allowed by statute, Hopkins’ constitu-
tional right was not violated.
IX.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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