NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 11a0366n.06

No. 09-6234

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, )

)

Plaintiff-Appellee, )

)

v. ) ON APPEAL FROM THE UNITED

) STATES DISTRICT COURT FOR THE

JOHN HOPPER, ) MIDDLE DISTRICT OF TENNESSEE

)

Defendant-Appellant. )

Before: MARTIN and SUTTON, Circuit Judges; GRAHAM, District

Judge.*

GRAHAM, Senior District Judge. Defendant-Appellant John

Hopper (“Hopper”) was convicted by a jury of conspiracy to injure

a postal worker engaged in the lawful discharge of his duties,

assaulting a postal worker engaged in the performance of his

official duties with the intent to commit aggravated robbery, and

carrying, using and brandishing a firearm during and in relation to

a crime of violence. On appeal, Hopper raises as error the

admission of evidence of other robberies under Fed. R. Evid.

404(b), the denial of his motions for judgment of acquittal and for

a mistrial, and the district court’s application of the official

victim enhancement under the United States Sentencing Guidelines

(“U.S.S.G.”) at sentencing. For the following reasons, we affirm.

I. 

*The Honorable James L. Graham, Senior United States District

Judge for the Southern District of Ohio, sitting by designation.
Hopper was charged by indictment filed in the Middle District

of Tennessee on November 5, 2008, with conspiracy to injure a

postal worker engaged in the lawful discharge of his duties in

violation of 18 U.S.C. § 372 (Count One), assaulting a postal

worker engaged in the performance of his official duties with the

intent to commit aggravated robbery in violation of 18 U.S.C. §

111(a) (Count Two), and carrying, using and brandishing a firearm

during and in relation to a crime of violence (the § 111(a) offense

in Count Two) in violation of 18 U.S.C. § 924(c). Tony Ridley, his

co-conspirator, was also charged in the indictment, but Ridley

pleaded guilty and agreed to testify against Hopper.

Prior to trial, Hopper filed a motion in limine seeking to

prevent the government from introducing evidence of other robberies

allegedly committed by Hopper and Ridley. The government argued

that evidence of these other robberies, which were committed within

the week preceding the indicted offenses, was background evidence

concerning the formation and existence of the conspiracy, and

therefore not subject to Rule 404(b). The district court did not

accept this argument, but found that the evidence was admissible

under Rule 404(b) to prove the identity of Hopper as the robber,

and as bearing on his intent and the existence of a plan.

At trial, the government presented evidence concerning the

robbery of Eric Schafer while he was working as a letter carrier

for the United States Postal Service on February 29, 2008. 

Schafer, who was wearing his uniform at the time and driving a

marked Postal Service vehicle, was delivering mail to mailboxes at

an apartment complex located in the White Bridge Road area of

Nashville, Tennessee, at approximately 2:15 p.m. when he felt

2
something pressed against the back of his head and heard someone

say, “Give me your f’ing money.” Schafer turned around to see a

gun pointed at his face. He described the robber as a large man,

about 6'2" and 250 pounds, wearing black jeans and a black hoodie,

with a bandanna covering his face, but he was unable to identify

the robber. The robber took his wallet, which contained cash and

debit/credit cards, and his cell phone. The robber then fled in a

black Nissan with no tags and tinted windows, and Schafer called

the police. Schafer spoke with the police for an hour at the scene

of the robbery, and then continued on his mail delivery route. His

cell phone and debit/credit card were used after the robbery

without his authorization.

The robbery was investigated by Postal Inspector Wayne Martin. 

Based on bank and phone records provided by Schafer, Martin learned

that the stolen credit card had been used at a Kroger store and at

Citgo and Mapco gas stations. Phone calls were made to a location

at 5800 Maudina and to a phone subscribed in the name of Tony

Ridley. Martin went to the apartment complex located at 5800

Maudina and observed a black Nissan Altima parked near Apartment

J6, which was leased to Lisa Aldridge. The black Nissan was later

pulled over in a traffic stop, and the driver was identified as

Lisa Aldridge. Martin viewed a video of the Kroger transaction

involving the use of the stolen credit card and saw that the woman

involved in that transaction was Aldridge. Aldridge was

interviewed on March 10, 2008. She provided information concerning

what she referred to as the “mailman robbery,” which she stated was

committed by Ridley and “C-Lo.” She admitted using Schafer’s

3
credit card and cell phone, and stated that her Nissan was used

during the robbery.

Hopper was arrested at his father’s house where he resided,

and Hopper acknowledged that his nickname was “C-Lo.” A black

hooded sweatshirt, ammunition and a revolver were found in Hopper’s

bedroom. When asked if this was the gun used in the robbery of a

mail carrier, Hopper looked down and stated, “That’s not the gun.” 

Hopper denied knowing Ridley or being affiliated with a gang. 

Hopper’s booking information revealed that he was 6'3" tall and

weighed 300 pounds.

Martin testified that when Ridley was first interviewed, he

denied being involved in the Schafer robbery, and denied seeing or

handling a gun. In a later interview, Ridley admitted being the

driver in the Schafer robbery and handling the gun. Ridley told

police that Hopper had been injured playing football in high

school, a fact which was corroborated at trial by the testimony of

Ralph Thompson, the football coach at Maplewood High School. 

Lisa Aldridge, Ridley’s girlfriend and the mother of his

child, testified at trial. Aldridge was the owner of a black

Nissan Altima, and the vehicle had temporary tags in February and

March of 2008. She resided at 5800 Maudina Avenue, Apartment J6. 

Aldridge testified that she met Hopper, known to her as “C-Lo,”

through Ridley and that both Ridley and Hopper were members of the

Rollin’ 40s Crips gang. Aldridge obtained Schafer’s debit/credit

card when Hopper came to her apartment with Ridley after the

robbery. Hopper was carrying a black revolver in his hand which

belonged to Ridley. Ridley announced that they had just robbed a

postal worker. Hopper pulled the card from the black hoodie he was

4
wearing and handed it to her, and Ridley told her to see if the

card worked. Aldridge used Schafer’s debit/credit card at a Kroger

and a Citgo gas station without his authorization. Aldridge also

obtained Schafer’s cell phone from Hopper and used it to make

calls.

Aldridge testified that Ridley and Hopper also discussed two

other robberies, one in which they got $200 in the robbery of a man

at a construction site, and also the robbery of a Mexican man whose

necklace they stole, but the medallion fell off the necklace. The

gun used in these robberies was the gun used in the robbery of the

postal worker, and her black Nissan was used in the two other

robberies as well.

Aldridge further testified that when law enforcement officers

questioned her about the robberies in March of 2008, they showed

her a photo spread that included a photo of Hopper, but she lied

and denied that she recognized anyone. Aldridge stated that she

lied because another gang member, Chris Grissom, was present in her

apartment at the time and she was afraid for the safety of herself

and her children. She also admitted that during initial

questioning, she tried to protect Ridley and was not honest about

Ridley’s ownership of the gun. However, she later informed the

investigators about the gun. Pursuant to a plea agreement,

Aldridge pleaded guilty to the offenses of conspiracy to commit

identification fraud, wire fraud, identification fraud and

aggravated identity theft stemming from her use of Schafer’s credit

card.

Ridley testified that he and Hopper, known to him as “C-Lo,”

committed multiple armed robberies beginning in February of 2008,

5
and that they were members of the Rollin’40s Crips street gang. 

Ridley testified that he and Hopper would ride around in Aldridge’s

black Nissan Altima, which had temporary tags, looking for people

to rob. Ridley testified that both he and Hopper robbed a man

working at the Bellevue apartment complex. They pointed a gun at

the man and took his wallet and cell phone. They also took the

man’s necklace off his neck. Ridley recalled that they took the

medallion off the necklace and the necklace fell to the ground. 

Ridley also testified about the robbery of a man working on a house

on Kentucky. Ridley waited in the car while Hopper left the

vehicle and robbed the man at gunpoint. That same day, Ridley

drove the Nissan to a location where Hopper left the car carrying

the gun and robbed a Mexican man, taking $3.00. Ridley and Hopper

equally split the proceeds from the robberies.

Ridley also testified concerning the Schafer robbery. He

stated that he drove to the mailman’s location and observed the

mailman’s truck. Hopper, dressed in a black hoodie and carrying

the firearm, exited the black Nissan Altima and robbed the mailman. 

Ridley was wearing a sky blue hoodie, that being a gang color for

the Rollin’ 40s Crips. Hopper took the mailman’s wallet, which

contained cash and credit cards, and his cell phone. After the

robbery, Ridley and Hopper returned to Ridley’s apartment, where

Ridley gave a credit card to Aldridge and told her to take it to

Kroger to see if it would work.

Ridley admitted that he initially lied by telling police that

“C-Lo” was not in the photo spread that was shown to him because he

didn’t want “C-Lo” to get caught, but after Ridley was arrested, he

picked Hopper’s photograph out of an array. Ridley’s gun, a .357

6
Magnum revolver, was used in the robberies. After he came under

investigation by the police, Ridley sold the gun in March of 2008

with the assistance of Chris Grissom, another member of the Rowlin’

40s Crips gang, and Percy Eugene Waters, who found a buyer for the

gun. Grissom hid Ridley’s gun for a week at his mother’s house

before Ridley sold the gun. Ridley told Grissom that the gun had

been used in a robbery, and Grissom heard Ridley and Hopper

discussing the mailman robbery. Ridley testified that, pursuant to

a plea agreement, he pleaded guilty to all eight counts of the

indictment with which he was charged. The government agreed not to

request an upward departure if Ridley cooperated.

The government presented other evidence of the uncharged

robberies. Ancieto Lara testified that he was robbed at gunpoint

on February 22, 2008, at approximately 10:00 a.m., while working at

an apartment complex at the Lakes of Bellevue in Nashville,

Tennessee. He was approached by two men wearing dark hooded

sweatshirts. One of the men was big and tall, around 6'4", and the

other was shorter and thinner. The men asked about an apartment

number that did not exist, then pulled a black revolver and

demanded Lara’s wallet. One of the robbers also pulled Lara’s

necklace off his neck, but the pendant or medallion fell to the

ground. The robbers then drove away in what appeared to be a green

Saturn. Lara’s credit card was used for gasoline purchases. At

trial, Lara identified Hopper as being one of the robbers.

Michael Wood, Lara’s co-worker, testified that he was walking

to the other side of the building when he observed two men

approaching Lara. One of the men was wearing a hoodie. When he

7
returned, Lara told him that he had been robbed. Wood helped Lara

find the medallion that had fallen off his necklace.

On February 25, 2008, at approximately 10:30 a.m., Jeffrey

Horner and Billie Inman were painting a house on Kentucky Avenue in

The Nations area when a man came up behind Horner and asked for a

cigarette. Horner testified that he told the man that he did not

smoke, at which point the person stated, “Come on up out of that

pocket with that wallet.” Horner turned and saw the man pointing

a gun at him. The robber took his cell phone, then patted his back

pocket and took his wallet, which contained about $200, while

jamming the gun into Horner’s stomach. The robber fled and got

into the passenger side of a black Altima with temporary tags and

tinted windows. When interviewed by the police, Horner described

the robber as a very large man wearing a black hoodie with the hood

over his head and black pants. At trial, Horner identified Hopper

as the person who robbed him. Inman, who witnessed the robbery,

described the robber as being 6'3" or 6'4" and close to 300 pounds. 

Although Inman was unable to identify anyone in a photo spread

shown to him by police after the robbery, he identified Hopper at

trial as being the person who robbed Horner.

At approximately 10:45 a.m. on February 25, 2008, Juan Mendez

was robbed while working at the Village West Apartments on

Tennessee Avenue in Nashville. Mendez testified that he was

throwing garbage away when a man wearing dark clothing and carrying

a gun approached him and demanded his money. Mendez gave him

$3.00. After the robber patted Mendez down and learned that he did

not have a wallet, the robber was picked up by a black car, which

then left the scene. Mendez described the robber as an African8
American wearing a dark shirt and pants with a green jacket. The

robber was a little taller and heavier than Mendez, who was 5'11"

and 225 pounds.

At the close of the government’s case, Hopper moved for a

judgment of acquittal. The motion was denied by the district

court. The jury found Hopper guilty on all counts. In preparing

the presentence investigation report, the probation officer grouped

Counts One and Two and applied the Guidelines for assault found in

U.S.S.G. § 2A2.2. The probation officer also applied the victimrelated adjustment for official victim and increased the base

offense level by six levels pursuant to U.S.S.G. § 3A1.2(b). 

Hopper objected to the application of this enhancement, and the

district court denied that objection. Hopper was sentenced to a

term of incarceration of forty-one months on Counts One and Two to

run concurrently, and a consecutive term of eighty-four months on

Count Three.

II.

Hopper raises as error the admission of evidence of other

robberies committed by Hopper and Ridley during the week prior to

the offenses charged in the indictment. The government argued

unsuccessfully below, and now contends on appeal, that this

evidence was admissible as background information relevant to the

conspiracy between Hopper and Ridley. We need not address this

issue, because we find that the district court properly admitted

evidence of the uncharged robberies pursuant to Rule 404(b).

Under Rule 404(b), “evidence is not admissible to prove the

character of a person in order to show action in conformity

9
therewith” but such evidence may be admissible for other purposes. 

Rule 404(b). In this case, the district court admitted the

evidence as bearing on Hopper’s identity as the robber, his intent,

and proof of the existence of a plan.

There is a three-step process for the admission of Rule 404(b)

evidence. The district court must: (1) make the preliminary

determination regarding whether there is sufficient evidence that

the other acts took place; (2) determine whether the other acts are

admissible for a proper purpose; and (3) determine whether the

other acts evidence is more prejudicial than probative. United

States v. Lattner, 385 F.3d 947, 955 (6th Cir. 2004). Once the

court determines that the evidence is admissible, the court must

instruct the jury concerning the factors supporting admissibility,

explain why the factor is material, and caution the jurors against

using the evidence for an improper purpose. United States v. Bell,

516 F.3d 432, 441 (6th Cir. 2008). In reviewing the admission of

evidence under Rule 404(b), this court reviews for clear error the

district court’s determination that the other act took place,

reviews de novo the district court’s legal determination that the

evidence was admissible for a proper purpose, and reviews for abuse

of discretion the determination that the probative value of the

other acts evidence is not substantially outweighed by its unfairly

prejudicial effect. Id. at 440.

As to the first step, the government is not required to

demonstrate that the other acts occurred by a preponderance of the

evidence, but rather must present some substantiation that they

occurred. Huddleston v. United States, 485 U.S. 681, 689 (1988). 

Rule 404(b) evidence is relevant only if the jury can reasonably

10
conclude that the act occurred and that the defendant was the

actor. Id. The record in the instant case reveals that the

government presented sufficient evidence that the previous

robberies of Lara, Horner and Mendez did in fact occur and that

they were committed by Ridley and Hopper, thus satisfying the first

branch of the test.

In regard to the second branch, evidence of other acts is

probative of a material issue other than character if the evidence

is offered for an admissible purpose, the purpose for which the

evidence is offered is material or “in issue” and the evidence is

probative with regard to the purpose for which it is offered.

United States v. Rayborn, 495 F.3d 328, 342 (6th Cir. 2007). The

“government’s purpose in introducing the evidence must be to prove

a fact that the defendant has placed, or conceivably will place, in

issue, or a fact that the statutory elements obligate the

government to prove.” United States v. Merriweather, 78 F.3d 1070,

1076 (6th Cir. 1996).

In this case, the government was required to prove that Hopper

was the person who committed the indicted offenses. Hopper denied

that he was involved in the offenses charged in the indictment or

in the other robberies, thus putting his identity at issue. 

Schafer was unable to identify Hopper as the robber because the

robber’s head was covered with a bandanna. Where the identity of

the perpetrator of the crime charged is at issue, evidence that the

defendant committed other acts utilizing the same modus operandi is

admissible as tending to prove that the defendant committed the

crime charged. United States v. Johnson, 27 F.3d 1186, 1194 (6th

Cir. 1994). The theory is that if the method of operation employed

11
in all of the crimes is essentially identical and sufficiently

unique, the method can be said to be the “signature” of the

defendant, thus tending to prove his identity as the perpetrator of

the crime. Id. In this case, all of the victims testified that

the robber came up behind them around mid-day while they were

involved in their tasks. Two robbers were involved in the first

robbery, while one robber was involved in the other robberies and

fled in a vehicle, more specifically described by two of the

victims as a black Nissan with tinted windows and no tags or

temporary tags. All the victims testified that the robber was a

large man over six feet tall, wearing black clothing. In each

case, the robber carried a gun. Two of the victims, Lara and

Horner, identified Hopper at trial as being the robber. Although

there were some differences between the robberies and none of the

other victims were federal employees, it is not necessary that the

crimes be identical in every detail to be admissible under this

theory. United States v. Perry, 438 F.3d 642, 648 (6th Cir. 2006). 

The circumstances of the uncharged robberies were sufficiently

unique and sufficiently similar to the Schafer robbery to be

relevant and probative of the robber’s identity.

Hopper’s intent was also at issue. Other act evidence is

admissible if specific intent is a statutory element of the

offense. Conspiracy is a specific intent crime because the

government must prove that the defendant had the specific intent to

further the common unlawful objective of the conspiracy. 

Merriweather, 78 F.3d at 1078. An intent to assault, impede,

intimidate or interfere is an element of the § 111(a) charge. See

United States v. Feola, 420 U.S. 671, 684 (1975). To prove the §

12
924(c) charge, the government was required to prove that Hopper

knowingly used and carried a firearm during the commission of the

offenses, the term “knowingly” being defined in this context as

“voluntarily and intentionally[.]” See Sixth Circuit Pattern Jury

Instructions § 12.01 (citing United States v. Odom, 13 F.3d 949,

961 (6th Cir. 1994)(defining “knowingly” in the context of an 18

U.S.C. § 922(g)(1)) firearms offense)).

The district court also admitted the evidence for the purpose

of showing the existence of a plan. To prove the conspiracy

offense in Count One, the government was required to prove the

existence of a common plan or objective. See United States v.

Damra, 621 F.3d 474, 498 (6th Cir. 2010)(describing a conspiracy

under 18 U.S.C. § 371). In Counts Two and Three of the indictment,

Ridley and Hopper were charged both as principals under §§ 111(a)

and 924(c)(1)(A)(ii) and under 18 U.S.C. § 2 as aiders and

abettors. Aiding and abetting requires that a defendant “in some

sort associate himself with the venture, that he participates in it

as something he wishes to bring about, and that he seek by his

action to make it succeed.” United States v. Davis, 306 F.3d 398,

409 (6th Cir. 2002). Thus, the evidence of the other robberies was

relevant to show that Hopper and Ridley had a common plan or goal

to commit the offenses alleged in the indictment.

Hopper argues that the prejudicial impact of this evidence

outweighs its probative value. The district court’s decision in

this balancing process “is afforded great deference” and the

evidence is viewed in the light most favorable to its proponent,

maximizing its probative value and minimizing its prejudicial

effect. Bell, 516 F.3d at 445. Hopper argues that his knowledge

13
or intent to commit the offenses alleged in the indictment could be

proved by other means, namely, through the testimony of Aldridge

and Ridley. However, his attorney strenuously argued to the jury

that Aldridge and Ridley were not credible witnesses. The

government contends that the other act evidence is therefore

relevant to corroborate the testimony of Ridley and Aldridge

concerning the existence of the conspiracy between Hopper and

Ridley. Hopper notes that the credibility of witnesses is at issue

in every case, and that the credibility of these witnesses could

have been bolstered in other ways. However, Hopper does not

specify what those other means are. In concluding that the

probative value of the evidence outweighed its prejudicial effect,

the district court commented that although “404(b) is not geared to

answer challenges to credibility[,] ... those challenges relate to

the issues of identity, as to who actually was in charge of the

gun, who used the gun in this case, and whether or not Mr. Hopper

had the requisite intent for a conviction in this case by showing

his involvement in similar robberies.” Since Hopper challenged the

testimony of Ridley and Aldridge which bore upon the issues of

identity, intent and plan, this made the other act evidence which

was probative of those same issues all the more relevant.

The potential prejudicial effect of this evidence was also

significantly mitigated by the fact that the district court twice

instructed the jury on the manner in which this evidence could be

considered. Before evidence of the uncharged robberies was

presented, the court instructed the jury as follows:

You are about to hear evidence of some other robberies

other than those charged in this indictment. You are not

to consider that evidence of those past robberies to

determine the character of the defendant or to determine

14
whether or not he acted in the present case before you in

accordance with any character or character traits that

may be implicated by other robberies that people say he

was involved in.

If you find that the defendant did commit other robberies

or if you find that he aided and abetted someone else in

committing the armed robberies, you cannot consider this

evidence as proof that he committed the offense before

you now, the mailman robbery.

Instead, you can consider this evidence only for certain

limited purposes, such as to show the defendant’s

identity as the person who committed the crimes charged

in the indictment before you; or to show the defendant’s

intent to commit the crimes charged in the present

indictment; or, if relevant, to show that the defendant

had a plan or planned to commit crimes, including the one

charged in the indictment.

So you may not consider this evidence for any other

purpose except for those limited purposes that I have put

before you.

Vol. 3 at 340-341. At the conclusion of the trial, the court

charged the jury as follows:

You’ve heard testimony that the defendant and Tony Ridley

committed armed robbery of individuals other than the

armed robbery of Eric Schafer that is at issue in the

offenses charged in this indictment.

If you find the defendant committed other armed robberies

or if you find the defendant aided and abetted Tony

Ridley in committing other armed robberies, you cannot

consider such evidence as proof of the defendant’s

character or that the defendant committed the offenses

for which he is now on trial.

Instead, you can consider the evidence only for certain

limited purposes as explained to you earlier, such as the

following: (1) To show the defendant’s identity as the

person who committed the crimes charged in the

indictment; (2) To show the defendant’s intent to commit

the crimes charged in the indictment; and (3) To show the

defendant planned to commit the crimes charged in the

indictment. You may not consider the evidence for any

other purpose than for the limited purposes just stated.

15
Vol. 4A at 36-37. These instructions were adequate to minimize any

risk of prejudice to Hopper.

Finally, any error in the admission of Rule 404(b) evidence is

subject to a harmless error analysis. “An error in the admission

of evidence does not require granting a criminal defendant a new

trial unless the error affects ‘substantial rights.’” United

States v. DeSantis, 134 F.3d 760, 769 (6th Cir. 1998)(quoting Fed.

R. Crim. P. 52(a)). When the government presents other convincing

evidence, the admission of improper Rule 404(b) evidence may be

harmless error. Bell, 516 F.3d at 447. Here, the government also

presented testimony from Ridley, a co-conspirator, and Aldridge

concerning Hopper’s participation in the offenses charged in the

indictment. See United States v. Clark, 634 F.3d 874, 878 (6th

Cir. 2011)(concluding that any error in the admission of Rule

404(b) evidence was harmless in light of the extensive testimony

from two co-defendants about defendant’s involvement in the string

of robberies). Even assuming that the evidence of uncharged

robberies should not have been allowed under Rule 404(b), any error

in the admission of that evidence was harmless.

III. 

Hopper argues that the trial court erred in denying his motion

for judgment of acquittal. This court reviews de novo the denial

of a motion for judgment of acquittal, viewing the evidence in “a

light most favorable to the prosecution, giving the prosecution the

benefit of all reasonable inferences from the testimony.” United

States v. McAuliffe, 490 F.3d 526, 537 (6th Cir. 2007). “The

relevant question in assessing a challenge to the sufficiency of

16
the evidence is whether any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” 

Id.; see also Jackson v. Virginia, 443 U.S. 307, 319 (1979). “A

defendant claiming insufficiency of the evidence bears a very heavy

burden.” United States v. Graham, 622 F.3d 445, 448 (6th Cir.

2010)(citations omitted). This court affords the same weight to

both circumstantial and direct evidence, and does not weigh the

evidence presented, consider the credibility of witnesses, or

substitute its judgment for that of the jury. Id.

Count Two charged Hopper with an offense under § 111(a). That

section provides in relevant part that any person who “forcibly

assaults, ... impedes, intimidates, or interferes with any person

designated in section 1114 of this title while engaged in ... the

performance of official duties” shall be subject to a term of

imprisonment, which is enhanced if the defendant acted with the

intent to commit another felony, in this case, aggravated robbery,

and further enhanced under § 111(b) by the use of a deadly or

dangerous weapon during the commission of the offense. § 111(a)

and (b). Section 1114 refers to “any officer or employee of the

United States or of any agency in any branch of the United States

Government[.]” 18 U.S.C. § 1114. The term “agency” includes any

“independent establishment” of the United States. 18 U.S.C. § 6. 

The United States Postal Service is an “independent establishment”

of the United States. 39 U.S.C. § 201.

It is well established that § 111(a) does not require proof of

knowledge on the part of the offender that the victim of the

assault is a federal officer. See Feola, 420 U.S. at 684; United

States v. Farrow, 198 F.3d 179, 186 (6th Cir. 1999). The Supreme

17
Court noted in Feola that the fulfillment of the congressional goal

to protect federal officers requires “the highest possible degree

of certainty that those who killed or assaulted federal officers

were brought to justice.” 420 U.S. at 684. The Court further

stated that “in order to effectuate the congressional purpose of

according maximum protection to federal officers by making

prosecution for assaults upon them cognizable in the federal

courts, § 111 cannot be construed as embodying an unexpressed

requirement that an assailant be aware that his victim is a federal

officer. All the statute requires is an intent to assault, not an

intent to assault a federal officer.” Id.

Hopper argues that the offense had nothing to do with the

mail, as no mail was stolen, and that he and Ridley were just

riding around looking for people to rob, regardless of their

employment. Hopper contends that there is no evidence that the

victim was chosen because of his status as a federal employee. 

However, there is no language of § 111 which requires a specific

intent on the part the offender to target a federal employee. 

Since the Supreme Court in Feola stated that the offender does not

have to know that his victim is a federal officer, no such

requirement can reasonably be read into the statute. See Farrow,

198 F.3d at 187 n.8 (noting, without deciding the issue, that other

courts have held that under § 111(a), the government is not

required to show a specific intent to injure a federal officer, but

only the knowing commission of the acts constituting the offense). 

Even if we were to accept Hopper’s interpretation of the statute,

there is evidence that Hopper knew that Schafer was a federal

officer or employee because Schafer was wearing his mail carrier

18
uniform, using his marked Postal Service vehicle, and delivering

the mail at the time of the robbery. Thus, the jury could

reasonably have found that Hopper acted with the intent to injure

a federal officer.

As to Hopper’s argument that there is no evidence that he

specifically intended to impede or interfere with the delivery of

the mail, the language of § 111(a) does not require such an intent. 

That section prohibits impeding or interfering with a government

employee “while [the government employee was] engaged in ... the

performance of official duties[.]” § 111(a) (emphasis supplied). 

This language does not require that the offender’s acts be

specifically motivated by an intent to impede or interfere with the

victim’s official duties; rather, the offender’s acts must simply

have the effect of impeding or interfering with the government

employee at a time when he is performing his official duties. 

Likewise, the statute requires that the assault or intimidation of

a federal employee must occur “while” the employee is engaged in

the performance of his official duties, but says nothing about the

assault or intimidation having to be motivated by the fact that the

employee is a government employee or because he is engaged in the

performance of his official duties.

Thus, to establish an offense under § 111(a), the government

is only required to prove that the defendant acted knowingly and

intentionally in committing acts that constituted assaulting,

impeding, intimidating, or interfering with a person, and that the

person was in fact a federal employee who was engaged in his or her

official duties at the time of the offense. The evidence presented

was sufficient for the jury to find that Hopper knowingly and

19
intentionally held a gun to Schafer’s head and robbed him, and that

in doing so, he assaulted and intimidated Schafer, a federal

employee, at a time when he was engaged in his official duties. 

There was also evidence that the robbery impeded and interfered

with Schafer while he was engaged in his official duties because

his delivery of the mail was delayed at least an hour while he

reported the robbery to the police. 

Hopper also argues that the evidence is insufficient to

support the conspiracy charge in Count One. Section 372 provides

in relevant part that it is an offense for two or more persons to

conspire to “injure [an officer of the United States] in his person

or property ... while engaged in the lawful discharge [of the

duties of his office].” To establish a conspiracy, the government

must prove that (1) the conspiracy described in the indictment was

wilfully formed and existed at or about the time alleged; (2) the

accused wilfully became a member of the conspiracy; (3) one of the

conspirators thereafter knowingly committed at least one overt act

charged in the indictment at or about the time alleged; and (4)

that overt act was knowingly done in furtherance of the

conspiracy’s object. Damra, 621 F.3d at 498 (describing a

conspiracy under 18 U.S.C. § 371). “The existence of a criminal

conspiracy need not be proven by direct evidence, a common plan may

be inferred from circumstantial evidence.” United States v.

Branham, 97 F.3d 835, 854 (6th Cir. 1996). A defendant need only

know of the conspiracy, associate himself with it, and knowingly

contribute his efforts in its furtherance, and every member of a

conspiracy need not be an active participant in every phase of the

20
conspiracy. United States v. Beverly, 369 F.3d 516, 532 (6th Cir.

2004).

Hopper argues that the government was required to prove that

the object of the conspiracy was specifically to rob a federal

officer. He contends that since all of the other victims robbed

during the course of the conspiracy were not federal employees and

no mail was stolen during the robbery of Schafer, the government

failed to prove that he conspired with Ridley to injure,

specifically, a federal employee in his person or property while he

was engaged in his official duties. The clause of § 372 which is

the subject of Count One of the indictment simply requires an

intent to injure an individual in his person or property, that the

individual is an officer of the United States, and that the injury

is planned to occur while the individual is engaged in the lawful

discharge of his duties. It says nothing about having a specific

purpose to impede or interfere with those official duties. The

statute also says “his person or property,” not government property

such as the mail. § 372 (emphasis supplied).

The reasoning of the Supreme Court in Feola is applicable

here, although that case involved a charge of conspiracy to violate

§ 111(a). The Supreme Court held that a conspiracy to violate §

111(a) did not require an agreement to assault a federal officer

specifically or knowledge on the part of the conspirators that the

person to be assaulted was a federal employee. 420 U.S. at 694-96. 

The Court stated:

If the agreement calls for an attack on an individual

specifically identified, either by name or by some unique

characteristic, as the putative buyers in the present

case, and that specifically identified individual is in

fact a federal officer, the agreement may be fairly

characterized as one calling for an assault upon a

21
federal officer, even though the parties were unaware of

the victim’s actual identity and even though they would

not have agreed to the assault had they known that

identity.

The policy reasons for not requiring a specific purpose to assault

a federal employee in the prosecution of a conspiracy under §

111(a) also apply to a conspiracy to injure a federal employee in

his person or property while he is engaged in his official duties.

Even if § 372 requires proof that the purpose of the

conspiracy was to injure a federal employee specifically, the

evidence showed that Ridley and Hopper observed Schafer, who was

dressed in his mail carrier uniform and using a marked mail truck,

as they were driving around looking for a victim to rob. Thus, the

two conspirators knew that Schafer was a government employee

engaged in his official duties before Hopper left the car to rob

him. The jury could reasonably conclude from the evidence that

Ridley and Hopper agreed to rob, specifically, a federal officer

engaged in his official duties.

Hopper argues that since his conviction on the firearm charge

in Count Three was based on the commission of the § 111(a) charge

alleged in Count Two, his conviction on the firearm count must also

be reversed if the court finds that Count Two is not supported by

sufficient evidence. Since we have concluded that his conviction

on Count Two is supported by sufficient evidence, this argument

fails.

IV.

In his third assignment of error, Hopper asserts that the

district court erred in denying his motion for a mistrial based on

a comment made by the prosecutor during closing argument concerning

22
his being dressed in gang colors during jury selection. During

trial, there was testimony that Hopper and Ridley knew each other

as members of the Rollin’ 40s Crips gang, and that the gang’s color

was sky blue. During rebuttal argument, the prosecutor stated:

How many times did defense counsel refer to that man as

a “kid”? Five? Ten? You know, the defendant is a

Rollin’ 40 Crips gang member. He flew the flag in here

during jury selection. Remember that sky blue stuff that

he was wearing. He was flying the flag on Tuesday.” 

Vol. 4B at 25-26. Defense counsel objected to this comment on the

ground that it was “inappropriate,” and the court stated, “All

right. Stick to the facts of the case.” Vol. 4B at 26. Later,

while the jury was deliberating, and during a conference with

counsel to discuss questions which had been submitted by the jury,

defense counsel moved for a mistrial, not because of the reference

to Hopper’s gang membership, which was disclosed by the testimony

in the case, but rather because there was no evidence that Hopper

had selected those clothes. Counsel indicated that Hopper’s mother

had brought the clothes for Hopper to wear instead of his jail

garb. The government argued that the comment was for the purpose

of reminding the jury that Hopper was an adult gang member in

response to defense counsel’s efforts to elicit sympathy from the

jury on Hopper’s behalf by repeatedly calling him a “kid.”

The district court found that both the prosecutor’s comment

and defense counsel’s reference to Hopper as being a “kid” were

improper. The court further noted that there was evidence

concerning Hopper’s membership in the gang and the gang color, and

concluded that the comment did not warrant granting a mistrial. 

Defense counsel asked for a curative instruction, and there was

some discussion about counsel submitting a proposed instruction to

23
the court. Since the jury had forwarded a question to the court

during deliberations concerning Hopper’s gang membership, counsel

for the government suggested that the court include a statement

about the government’s comment concerning clothing in the court’s

response, and defense counsel agreed with that approach. However,

the court’s written note to the jury is not in the record.

This court reviews the denial of a motion for a mistrial based

on prosecutorial misconduct for abuse of discretion. United States

v. Wettstain, 618 F.3d 577, 588 (6th Cir. 2010). The “relevant

question is whether the prosecutor’s comments so infected the trial

with unfairness as to make the resulting conviction a denial of due

process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). The

first step of the analysis is to determine: (1) whether the

prosecutor’s remarks were improper; and, if so, (2) whether they

were flagrant. Wettstain, 618 F.3d at 589. Improper remarks that

are flagrant amount to per se reversible error, while improper

remarks that are not flagrant may or may not be reversible. United

States v. Hargrove, 416 F.3d 486, 493 (6th Cir. 2005).

To determine whether the remarks were flagrant, the court

looks at: (1) whether the statements tended to mislead the jury and

prejudice the defendant; (2) whether the statements were isolated

or extensive; (3) whether the statements were deliberately placed

before the jury; and (4) the overall strength of the evidence

against the defendant. United States v. Gonzalez, 512 F.3d 285,

292 (6th Cir. 2008). This court reverses for improper nonflagrant prosecutorial misconduct only where: (1) the proof against

the defendant was not overwhelming; (2) defense counsel objected to

the conduct; and (3) the district court failed to give a curative

24
instruction. United States v. Brown, 66 F.3d 124, 127 (6th Cir.

1995).

The prosecutor’s remark in this case was technically improper

because there was no evidence that Hopper actually picked what to

wear during jury selection. However, the prosecutor’s remarks must

be considered within the context of the trial as a whole. United

States v. Wells, 623 F.3d 332, 338 (6th Cir. 2010). There was

evidence, which came in without objection, that Hopper was a gang

member and that sky blue was the gang color. The reference to

Hopper wearing gang colors did not inject his gang membership into

the trial for the first time, and therefore any prejudice to Hopper

would have been minimal or nonexistent. See Ho Thai Nguyen v.

Terhune, 192 F.App’x 603, 604-05 (9th Cir. 2006)(finding that

prosecutor’s suggestion that shooting was gang-related because

victim was wearing gang color did not deny petitioner a fair trial

where there was evidence of petitioner’s gang membership and the

clothing color of rival gang). Although defense counsel stated

that Hopper’s mother brought his clothes, the defense did not deny

that the blue gang color clothes Hopper was wearing were his

clothes. Although the statement was deliberate, it was isolated. 

Inappropriate but isolated prosecutorial comments do not warrant a

new trial. Wells, 623 F.3d at 338. In more egregious cases,

courts have found that prosecutorial comments concerning

defendant’s gang membership during closing argument did not deprive

the defendant of a fair trial. See United States v. Rodgers, 51

F.3d 1044 (table), 1995 WL 153134 at *8-10 (5th Cir. March 23,

1995)(repeated improper references to gangs was harmless error);

United States ex rel. Garcia v. Lane, 698 F.2d 900, 901-902 (7th

25
Cir. 1983)(repeated references to petitioner’s gang membership did

not deny defendant a fair trial).

The evidence against Hopper was otherwise strong, since Ridley

and Aldridge testified concerning Hopper’s involvement in the

offenses. Hopper’s identity as the robber was also supported by

the other act evidence. Defense counsel objected and the court in

essence sustained the objection, stating, “All right. Stick to the

facts of the case.” Vol. 4B at 26. The court instructed the jury

at the beginning of the case and during the final charge that the

statements of counsel are not evidence. It was not until after the

jury retired to deliberate that defense counsel moved for a

mistrial and requested a curative instruction, thereby depriving

the trial court of the opportunity to address the matter during

closing argument. The district court agreed to give a curative

instruction as part of his written answer to the jury questions,

and the court may have done so, although that instruction is not in

the record. The district court did not abuse its discretion in

denying the motion for a mistrial.

V.

Hopper’s final assignment of error concerns the district

court’s application of the official victim enhancement in

calculating his offence level under the advisory Guidelines.

U.S.S.G. § 3A1.2(a) directs that if the victim was a government

employee and the “offense of conviction was motivated by such

status,” the base offense level is increased by three levels. 

Under U.S.S.G. § 3A1.2(b), if the factors described in subsection

(a) are satisfied and if the applicable Chapter Two guideline is

26
from Chapter Two, Part A (Offenses Against the Person), then the

base offense level is increased by six levels. In this case, the

base offense level was increased by six levels because the

probation officer applied the guideline for aggravated assault in

U.S.S.G. § 2A2.2.

The district court’s factual findings concerning whether the

prerequisites for the enhancement have been met are reviewed for

clear error. See Farrow, 198 F.3d at 196. Legal conclusions

regarding the Guidelines are reviewed de novo. United States v.

Talley, 164 F.3d 989, 1003 (6th Cir. 1999).

Hopper argues that the § 3A1.2(a) enhancement does not apply

in this case. Hopper cites United States v. Cherry, 10 F.3d 1003

(3rd Cir. 1993) and United States v. Klump, 21 F.3d 1117 (Table,

1994 WL 143943 (9th Cir. April 22, 1994). Those cases hold that

the enhancement does not apply where there was no individual victim

involved in the offense of conviction. That is not the case here,

where Schafer was an individual victim of the § 111 offense.

Hopper argues there was no evidence that the robbery was

motivated by Schafer’s status as a government employee, noting

Ridley’s testimony that the two men were just riding around looking

for people to rob, and also noting the fact that no mail was

stolen. The government argued below that Hopper knew that Schafer

was a mail carrier and, as such, was probably a more lucrative

victim, as well as a more vulnerable victim because he was engaged

in his duties at the time of the robbery (preoccupied with putting

mail in the boxes with his back to Hopper, thereby allowing Hopper

to sneak up behind him). In denying Hopper’s objection, the

district court stated:

27
The instructions also address motivation, that the

offense of conviction was motivated by the fact that the

victim was a government officer or employee.

But to be motivated by one’s official status does not

require that the victim’s status be the only or the sole

reason or even the primary reason for the assault. The

fact that the ... defendant knew that the victim was a

government official at the time of the offense, in this

case the robbery, may be sufficient for finding that he

was motivated by his official status.

It is, I think, uncontested that Mr. Hopper and Mr.

Ridley, the driver, were driving around looking for

somebody to rob and they saw this postal officer. They

saw his truck, which was plainly marked United States

Postal Service. The letter carrier victim, Mr. Schafer,

was standing beside the truck, in his postal uniform.

He had a box of mail that he was distributing in an

apartment–multi-tenant apartment mailbox, facing the

mailbox as he was placing the mail in the various

compartments for the apartments, when Mr. Hopper, driven

by Mr. Ridley, drove up. Mr. Hopper came out, drew his

pistol, came up behind him, and robbed him.

So under the facts of the trial, there was no question

that he knew at that time that he was robbing this postal

letter carrier who was involved in his official duties. 

And the Court finds that that was sufficient motivation

to meet the requirement under the statute.... And the

Court believes that that may not have been his sole or

only reason for robbing Mr. Schafer. They were looking

for money. But the fact that he knew that he was robbing

a United States Postal Inspector has consequences in the

victim-related adjustments[.]

Vol. 5 at 636-37.

The district court correctly stated that the official status

of the victim need not be the sole or primary motivation for the

offense. See United States v. Abbott, 221 F.App’x 186, 189 (4th

Cir. 2007). Therefore, the fact that Hopper robbed Schafer to

obtain money and other property does not preclude a finding that

the robbery was also motivated by Schafer’s official status. The

28
district court correctly noted that the fact that Hopper was aware

that Schafer was a mail carrier may be sufficient for finding that

Hopper was motivated by Schafer’s official status. See Farrow, 198

F.3d at 196-98 (discussing defendant’s knowledge of the fact that

victims of assault were INS agents in upholding application of

official victim enhancement); see also United States v. Garcia, 34

F.3d 6, 13 (1st Cir. 1994)(upholding application of enhancement

where defendant knew that the officers he attempted to run down

with his car were law enforcement officials); United States v.

Salim, 287 F.Supp.2d 250, 307 (S.D.N.Y. 2003)(defendant’s knowledge

that victim was a corrections officer at the time of the attack was

sufficient for a finding that defendant was motivated by the

officer’s official status in attacking him), aff’d 549 F.3d 67 (2d

Cir. 2008).

Even assuming that evidence of knowledge of the victim’s

official status alone is not sufficient to draw an inference of

motivation, the district court also made reference to the

government’s argument that Schafer was facing the mailbox and

placing mail in the compartments when Hopper came up behind him. 

Since Schafer was distracted and preoccupied with his official

duties, this made him an easy target. The district court’s finding

that the offense was motivated by Schafer’s official status is

supported by the evidence. 

Hopper also argues that it is inconsistent for the government

to argue that the robbery of Schafer was like the other robberies

of persons who were not government employees for the purpose of

admitting Rule 404(b) evidence, but then to argue that the robbery

of Schafer was motivated by his official status. However, the fact

29
that the robberies were factually similar for purposes of a Rule

404(b) analysis does not mean that Hopper was not motivated at

least in part by the fact that Schafer was a mail carrier in

choosing him as a victim. 

Hopper also argues that the § 3A1.2(a) official victim

enhancement should not be applied because that would result in

double counting in light of the fact that the probation officer

also applied the specific offense characteristic in § 2A2.2(b)(6),

which increases the guideline range by two levels where the

defendant is convicted under § 111(b) for committing the § 111

offense using a deadly weapon. The guideline notes indicate that

this was not impermissible double counting. Application Note 4 to

§ 2A2.2 states that if “subsection (b)(6) applies, § 3A1.2(a)

(Official Victim) also shall apply.” U.S.S.G. § 2A2.2, Application

Note 4. Application Note 2 to § 3A1.2 states, “Do not apply this

adjustment if the offense guideline specifically incorporates this

factor. The only offense guideline in Chapter Two that

specifically incorporates this factor is § 2A2.4 (Obstructing or

Impeding Officers.)” That guideline is not applicable in this

case. The application of both the official victim enhancement and

the specific offense characteristic did not constitute improper

double counting.

In summary, we find no error in the district court’s

application of the official victim enhancement.

VI.

For the foregoing reasons, we affirm the judgment and sentence

of the district court.

30