FILED
United States Court of Appeals
Tenth Circuit
June 17, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 12-5155
DEANDRE ANTONIO HOPKINS, (D.C. No. 4: 12-CR-00044-CVE-1)
a/k/a Wet, a/k/a C-Wet, a/k/a Sman, (N. D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, Chief Judge, ANDERSON and BALDOCK, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,
therefore, submitted without oral argument.
Deandre Antonio Hopkins appeals his conviction of robbery involving a
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
controlled substance in violation of 18 U.S.C. § 2118(a), (c)(1). In this direct
appeal, Hopkins asserts that the district court erred by admitting the testimony of
a Federal Bureau of Investigation (FBI) agent who identified Hopkins as one of
the robbers from a surveillance video of the robbery. Exercising jurisdiction
pursuant to 28 U.S.C. § 1291, we affirm.
I
On May 7, 2010, four armed and masked men robbed T. Roy Barnes
Pharmacy in Tulsa, Oklahoma. The robbers stole drugs, money, and a Ford
Explorer belonging to the pharmacist, Susan Greek, which the robbers used as a
getaway car. Police discovered the Ford Explorer abandoned near the pharmacy
later that day. After police returned her Ford Explorer, Ms. Greek discovered in
the back of her car a bag containing shirt-sleeve masks 1 similar to those worn by
the robbers. Ms. Greek surrendered this evidence to the police.
During the jury trial, FBI agent Charles Jones identified Hopkins as one of
the four robbers. Agent Jones testified that he had viewed the surveillance video
several times, frame-by-frame, and enlarged the images from the video. Based
only on his observations from watching the surveillance video, Agent Jones
identified Hopkins as one of the robbers. Because the robbers’ faces were
1
The pharmacist and pharmacy technician testified that the robbers wore
“handkerchief[s]” and pieces of cloth over their faces as masks. R. Vol. II, at 26,
33, 42, 63. The torn shirt sleeves found in the Ford Explorer were believed to be
the masks worn by the robbers. Id. at 102-03.
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obstructed by masks, Agent Jones based his identification on Hopkins’s similar
“complexion,” height, and weight to one of the robbers. 2 R. Vol. II, at 133-34. In
addition to Agent Jones’s testimony, the operations manager for the Tulsa County
Police Department forensic lab testified that a major contributor to DNA found on
one of the masks discovered in the Ford Explorer matched Hopkins’s DNA.
Included in the evidence considered by the jury was the surveillance video,
which they viewed twice: once during trial and again during deliberations. The
jury found Hopkins guilty on one of count of robbery involving a controlled
substance, in violation of 18 U.S.C. § 2118(a), (c)(1), and acquitted Hopkins on
one of count of brandishing a gun during a crime of violence, in violation of 18
U.S.C. § 924(c). The district court sentenced Hopkins to 144 months’
imprisonment and five years of supervised release.
On appeal, Hopkins argues that the district court erroneously admitted
Agent Jones’s identification testimony. Specifically, Hopkins argues Agent Jones
had no prior interactions with Hopkins and, therefore, his testimony is unreliable
and would not aid the trier of fact in identifying Hopkins from the surveillance
video. See Fed. R. Evid. 701; cf. United States v. Contreras, 536 F.3d 1167, 1170
(10th Cir. 2008) (concluding that district court did not abuse its discretion by
2
“Complexion” in this context appears to mean the skin tone of the
exposed robbers’ faces because the robbers were “pretty much covered head to
toe, gloves, mask, eyewear, everything.” R. Vol. II, at 26, 33.
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admitting probation officer’s identification of the defendant from a robbery
surveillance video because she had previous interactions with the defendant and
“offered the jury a more sophisticated identification than they could make on their
own”).
II
Generally, we review a district court’s admission of evidence for abuse of
discretion. See Contreras, 536 F.3d at 1169. However, Hopkins concedes that he
did not object to the district court’s admission of Agent Jones’s identification
testimony or the surveillance video. Accordingly, we review the district court’s
admission of this testimony for plain error. “Under the plain error standard, we
may reverse only if a defendant demonstrates (1) error (2) that is plain, (3) that
prejudices his substantial rights, and (4) that seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United States v.
Mendiola, 696 F.3d 1033, 1036 (10th Cir. 2012) (quotation omitted). Because
Hopkins has not satisfied the third prong of plain error, we conclude the claimed
error does not provide any grounds for reversal. See United States v. Gantt, 679
F.3d 1240, 1246 (10th Cir. 2012) (“Because all four requirements must be met,
the failure of any one will foreclose relief and the others need not be addressed.”).
III
To satisfy the third prong of plain error, Hopkins must show “a reasonable
probability that, but for the error claimed, the result of the proceeding would have
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been different.” United States v. Gonzalez-Huerta, 403 F.3d 727, 733 (10th Cir.
2005) (en banc) (quotation omitted). As his sole argument that the third prong of
plain error is satisfied, Hopkins states that “it [cannot] be reasonably argued that
[Agent Jones’s testimony] did not affect [his] substantial rights, as the only issue
before [the] jury was whether [Hopkins] was one of the robbers at the pharmacy.”
Aplt. Reply Br. at 2. Hopkins neither discusses the other evidence linking him to
the robbery, nor does he even allege that the outcome of the proceedings would
have been different had Agent Jones not testified. Even if we were to exclude
Agent Jones’s testimony, there remains DNA evidence connecting Hopkins to one
of the masks found in Ms. Greek’s Ford Explorer shortly after the robbery. Even
if we assume the district court erred in admitting Agent Jones’s identification
testimony, Hopkins has not shown a reasonable probability that the result of his
trial would have been different without that testimony. Accordingly, he has not
overcome the high bar of plain error review. See Puckett v. United States, 556
U.S. 129, 136 (2009) (“Meeting all four prongs [of plain error] is difficult, as it
should be.” (quotation omitted)).
IV
For the foregoing reasons, we AFFIRM.
Entered for the Court
Mary Beck Briscoe
Chief Judge
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