United States of America v. James K. Hopper

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0319P (6th Cir.)
File Name: 04a0319p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA
Plaintiff-Appellee,
v.
JAMES K. HOPPER,
Defendant-Appellant.
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No. 02-6122
Appeal from the United States District Court
for the Eastern District of Tennessee at Chattanooga.
No. 01-00191—R. Allan Edgar, Chief District Judge.
Argued: August 10, 2004
Decided and Filed: September 21, 2004
Before: KEITH, MARTIN, and ROGERS, Circuit Judges.
_________________
COUNSEL
ARGUED: Charles P. Dupree, Chattanooga, Tennessee, for
Appellant. Steven S. Neff, ASSISTANT UNITED STATES
ATTORNEY, Chattanooga, Tennessee, for Appellee.
ON BRIEF: Charles P. Dupree, Chattanooga, Tennessee, for
Appellant. Paul W. Laymon, Jr., ASSISTANT UNITED
STATES ATTORNEY, Chattanooga, Tennessee, for
Appellee.
2 United States v. Hopper No. 02-6122
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OPINION
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BOYCE F. MARTIN, JR., Circuit Judge. James K. Hopper
appeals his jury conviction of conspiracy to possess red
phosphorous knowing and intending that it would be used to
manufacture methamphetamine in violation of 21 U.S.C.
§§ 846 and 843, and of conspiracy to manufacture
methamphetamine in violation of 21 U.S.C. §§ 846 and 841.
Hopper also appeals the district court’s denial of his motion
for a new trial based upon newly-discovered evidence. For
the reasons that follow, we AFFIRM the judgment of the
district court.
I.
On January 8, 2002, Hopper was named in a four-count
superseding indictment charging him with various controlled
substance offenses. The jury found Hopper not guilty of the
offense of knowingly and intentionally manufacturing
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C), and of knowingly and intentionally possessing
the materials necessary to manufacture methamphetamine
with the intent that it would be used to manufacture
methamphetamine in violation of 21 U.S.C. § 843(a)(6).
However, the jury found him guilty of conspiring to possess
red phosphorous knowing and intending that it would be used
to manufacture methamphetamine in violation of 21 U.S.C.
§§ 843(a)(6) and 846, and of conspiring to manufacture 500
grams or more of a substance containing methamphetamine
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846.
The following evidence adduced at trial demonstrated
Hopper’s involvement in his conspiracy convictions.
In early 1999, Charles “Bobo” Brooks, after learning the
amount of money that could be made from the selling of red
phosphorous–an ingredient necessary to manufacture

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No. 02-6122 United States v. Hopper 3
methamphetamine–began purchasing it from a company
named Pyrotek. Before his arrest, Brooks had purchased
approximately sixty pounds of red phosphorous for forty-five
dollars per pound and had sold it for up to sixteen hundred
dollars per pound. The police arrested Brooks in August
1999, and he was ultimately convicted of conspiracy to
manufacture methamphetamine.
Upon Brooks’s arrest, the police interviewed Hopper at his
residence in November 1999 to discuss his connection with
Brooks and his involvement with the sale or distribution of
red phosphorous. Detective Tommy Farmer testified that at
this initial interview Hopper admitted that he bought red
phosphorous from Brooks and that he sold it at a profit to
people who were involved in the manufacturing of
methamphetamine. Brooks’s testimony at Hopper’s trial
corroborated this statement, as he testified that he sold in total
“a few pounds, 10 maybe” of red phosphorous to Hopper,
charging him approximately $1000 per pound “so he could
make a profit.” Hopper was not arrested or charged with any
crime after this initial interview.
Before learning how to manufacture methamphetamine,
William Easterly sold the controlled substance to Hopper.
After learning how to manufacture methamphetamine,
Easterly bought red phosphorous from Hopper, later learning
that Hopper had acquired the red phosphorous from Brooks.
After Brooks’s arrest, Hopper and Easterly drove to the
Atlanta home of Jackie Gissendanner, who sold red
phosphorous and who apparently wanted to learn how to
manufacture methamphetamine. On one visit, Easterly
manufactured methamphetamine on Gissendanner’s premises
with the assistance of Gissendanner and Hopper. Easterly
also “cooked” methamphetamine in Hopper’s garage and
testified that while Hopper was not “the cook,” he did aid in
4 United States v. Hopper No. 02-6122
1W hile Easterly testified that he did so with Hopper’s permission and
assistance, Hopper testified that he did not give Easterly permission to
cook methamphetamine in his garage. Hopp er, however, also testified
that because “there [is] a possibility to everything,” there wa s a possibility
that Easterly was indeed manufacturing methamphetamine in his garage.
Inconsistently, Hopp er’s later testimony states that when he discovered
that Easterly was manufacturing methamphetamine on his property he
“r[an] him off.” Hopper maintained, however, that he was not present
during the manufacturing process.
the manufacturing process.1 Easterly testified that he again
traveled to Gissendanner’s home to cook more
methamphetamine and saw Hopper there with his son.
Easterly testified that Hopper remained in a different room
with his son, while the other men manufactured
methamphetamine. Following a traffic stop, Easterly was
arrested in April 2000 when the police discovered thirty-six
grams of methamphetamine on his person. Easterly pleaded
guilty and was sentenced to five years imprisonment.
Before his arrest, however, Easterly had introduced Hopper
to James Marter and Mitchell Bivens. Marter and Bivens
subsequently purchased red phosphorous from Hopper.
Hopper introduced Marter to Gissendanner, and Marter began
purchasing red phosphorous from Gissendanner. Marter
testified that he observed Gissendanner and Hopper
manufacturing methamphetamine in Hopper’s garage and that
he would help Gissendanner, Gissendanner’s son, and Hopper
with their “cooks.” Marter testified that on one occasion he
had Gissendanner and Gissendanner’s son complete the
manufacturing process for him and that he then shared with
them the methamphetamine that resulted. Marter also
testified that he observed Easterly manufacturing
methamphetamine in Hopper’s garage. Both Marter and
Bivens were arrested and pleaded guilty to controlled
substance offenses.
On June 13, 2001, Detective Farmer again visited Hopper’s
residence to assist a case agent from the Department of

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No. 02-6122 United States v. Hopper 5
2Although Hoppe r testified that he did not give perm ission to
Detective Farmer to search the premises, the district judge, after an
evidentiary hearing, denied Hop per’s motion to suppress evidence,
finding D etective Farm er’s account o f the events fully cred ible.
Children Services, who had received an anonymous call
reporting “allegations of domestic violence, lack of
supervision, and possible drug activity,” as well as medical
neglect. During this second visit to Hopper’s residence,
Detective Farmer noticed an odor that he knew to be
associated with the manufacturing of methamphetamine.
Detective Farmer noticed in plain view in the garbage a bottle
of fuel line antifreeze and some coffee filters, both of which
are used in the manufacturing of methamphetamine. At that
point, Detective Farmer requested, and received, permission
to search the premises.2 Detective Farmer noticed in the
detached garage a large bottle of hydrogen peroxide and some
muriatic acid–both used to manufacture methamphetamine.
Behind the garage, Detective Farmer noticed a “burn pile,”
which he knew from experience was a common way that
people destroyed the evidence of methamphetamine
production. Finally, Detective Farmer noticed that beside the
barn area there was a worn path leading into the woods. This
path led to an area where Detective Farmer located two
garbage bags, which essentially contained the remains of a
methamphetamine lab. Hopper was indicted in October 2001,
and arrested in December 2001. A second-superseding
indictment was issued in January 2002, and Hopper was
convicted of two of the offenses contained in the superseding
indictment in February 2002. Thereafter, Hopper filed a
motion for a new trial based upon newly discovered evidence,
which the district court denied. This timely appeal followed.
II.
Hopper argues that insufficient evidence supports his
conviction for conspiracy to manufacture methamphetamine
in violation of U.S.C. §§ 846 and 841. We review a claim of
6 United States v. Hopper No. 02-6122
3Hopper also argues that bec ause there was insufficient evidence to
support the distinguishing element between his conviction of conspiracy
to manufacture methamph etamine and his conviction for conspiracy to
possess red phospho rous–i.e., the agreement to manufacture
methamphetamine–the charge of conspiracy to possess red phosphorous
knowing and intending that it would be used to manufacture
methamphetamine becomes a lesser-included offense of co nspiracy to
manufacture methamphetamine. Given our holding that sufficient
evidence supports Hopper’s conviction for conspiracy to manufacture
methamphetamine, we find it unnecessary to address this argument
because it is dependent upon the success of his claim of insufficient
evidence.
insufficient evidence in the light “most favorable to the
United States and determine whether any rational trier of fact
could have found the elements of the offense beyond a
reasonable doubt.” United States v. Couch, 367 F.3d 557,
560 (6th Cir. 2004) (internal quotation marks omitted).
Notably, Hopper mischaracterizes the nature of the
evidence against him relating to the charge of conspiracy to
manufacture methamphetamine. Hopper argues that “[h]e did
not participate in large cooks or donate his chemicals for a
portion of the yield, and no one has said he did anything
based on the success of a future production or sale.” Hopper
also notes that Marter “never claimed that Hopper ever
cooked with him.” Our review of Marter’s trial testimony
indicates that although Hopper did not actually manufacture
the methamphetamine himself because he did not know how
“to cook,” it does indicate that he readily helped in other
ways, such as “get[ting] acetone, clean[ing] jars,” and
“filter[ing] dope off.” Moreover, similar evidence indicating
that Hopper actively assisted in the manufacturing process is
reflected in Easterly’s testimony. Easterly testified that
Hopper “helped [him] if [he] needed some help” by “get[ting]
Coleman fuel or coffee filters or making the aluminum balls
to go in the muriatic acid.” Under these facts, we hold that
any rational trier of fact could conclude that the United States
has met its burden of proving that Hopper conspired to
manufacture methamphetamine. See id.3

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No. 02-6122 United States v. Hopper 7
III.
We now turn to Hopper’s argument that the jury
instructions were erroneous. Hopper argues that the
instructions were erroneous in that they allowed the jury to
conclude that evidence sufficient to convict him of conspiracy
to possess red phosphorous was sufficient in and of itself to
convict him of conspiracy to manufacture methamphetamine.
Additionally, Hopper argues, citing no precedential support,
that the district court erred by not instructing the jury that it
had to agree unanimously as to the identity of his co-
conspirators. We find these arguments unpersuasive.
First, we note that Hopper made no objections to the jury
instructions, nor did he specifically request a unanimity
instruction. Thus, we are limited to plain-error review.
United States v. DeJohn, 368 F.3d 533, 540 (6th Cir. 2004).
Also, in addressing this argument, we assume that the jury
followed the instructions as given. United States v. Tosh, 330
F.3d 836, 842 (6th Cir. 2003) (“A jury’s verdict represents a
finding that a crime was committed as alleged in the
indictment . . . . [T]he court must assume that the jurors were
diligent in following the precise instructions given to them.”
(internal quotation marks and citations omitted)).
Second, we reject Hopper’s argument that the jury
instructions were erroneous in that they allowed the jury to
conclude that evidence sufficient to convict him of conspiracy
to possess red phosphorous was sufficient, in and of itself, to
convict him of conspiracy to manufacture methamphetamine.
The district court clearly instructed the jury on the nature of
the two different offenses and the facts that the jury had to
find to convict Hopper of each, independent conspiracy
charge. The district court instructed the jury on each count
contained in the indictment and separately discussed each
element that the United States had to prove beyond a
reasonable doubt. The instructions as given simply did not
allow the jury to conclude that evidence sufficient to convict
Hopper of conspiracy to possess red phosphorous was in and
8 United States v. Hopper No. 02-6122
of itself sufficient to convict him of conspiracy to
manufacture methamphetamine.
Third, Hopper argues that the district court erred in not
making a unanimity instruction. Hopper “neither requested
nor received an enhanced unanimity instruction.” Tosh, 330
F.3d at 842. Most generously construed, Hopper argues that
the specific identity of his co-conspirators is an element of the
crime of conspiracy to manufacture methamphetamine and, as
such, must be unanimously found by the jury. We addressed
a similar argument in United States v. Humphrey, 287 F.3d
422 (6th Cir. 2002), overruled on other grounds, United
States v. Leachman, 309 F.3d 377 (6th Cir. 2002). In
Humphrey, we noted: “the specific unanimity instruction
sought by Humphrey is generally required only in one of
three circumstances: when the nature of the evidence is
particularly complex; when there is a variance between the
indictment and the proof adduced at trial; or when there is
some tangible evidence of jury confusion, as when the jury
has asked questions of the court.” Id.
As in Humphrey, none of these circumstances exists in this
case. Id. at 440. Hopper points to no evidence indicating that
the jury was confused, and if anything, its finding of not
guilty on two of the four counts contained in the indictment
indicates that it understood its duties under the instructions.
Moreover, as we found in Humphrey, the district court
“provided a thorough instruction on what constitutes a
conspiracy.” Id. at 439. Under these circumstances, we find
Hopper’s argument that the jury instructions were erroneous
without merit.
IV.
Finally, we turn to Hopper’s argument that the district court
erred in denying his motion for a new trial. On May 30,
2002, Hopper filed a motion for a new trial based on newly-
discovered evidence pursuant to Federal Rule of Criminal
Procedure 33. The motion argued that he discovered

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No. 02-6122 United States v. Hopper 9
evidence after trial indicating that the trial testimony of
Marter and Easterly may have been untruthful. The motion
was supported by the unsworn statements of four prisoners,
each indicating that Marter had stated in conversations with
them that he and Easterly were testifying in order to reduce
their sentences and that Marter was willing to lie if necessary
to receive a reduction. On June 18, 2002, the district court
denied the motion finding that the evidence was only
impeachment evidence and that even if the testimony of
Marter were disbelieved, it “would not likely have produced
an acquittal.”
A motion for a new trial based on newly-discovered
evidence should be granted when the defendant has
demonstrated that “(1) the new evidence was discovered after
trial; (2) the evidence could not have been discovered earlier
with diligence; (3) the evidence is material and not merely
cumulative or impeaching; and (4) the evidence would likely
produce an acquittal.” United States v. O’Dell, 805 F.2d 637,
640 (6th Cir. 1986). We review a district court’s decision to
grant or deny a motion for a new trial based upon newly
discovered evidence for an abuse of discretion. United States
v. Frost, 125 F.3d 346, 382 (6th Cir. 1997).
The district court did not abuse its discretion in refusing to
grant Hopper’s motion for a new trial based upon newly
discovered evidence. Hopper has not demonstrated that the
“new” evidence was discovered only after trial and that it
could not have been discovered earlier with diligence.
Indeed, Hopper called one of these inmates, James Wooten,
whose statement was attached to his motion for a new trial, to
testify at his trial. Wooten testified to matters that form the
basis of Hopper’s newly-discovered evidence claim—Marter
told him that he was going to testify against Hopper to receive
a sentence reduction and indicated his willingness to lie in the
process. Even though the other inmates whose statements
were attached to Hopper’s motion for a new trial did not
testify at trial, Wooten’s testimony indicates that this
evidence was discoverable to Hopper through due diligence.
10 United States v. Hopper No. 02-6122
Moreover, any use of these statements, given Wooten’s
testimony at trial, would be cumulative and merely
impeachment evidence. See O’Dell, 805 F.2d at 640. Under
these circumstances, the district court did not abuse its
discretion in denying Hopper’s motion for a new trial.
For the foregoing reasons, we AFFIRM the judgment of the
district court.

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