UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

UNITED STATES OF AMERICA, 

Plaintiff – Appellee, 

v. 

DEANDRE ANTONIO HOPKINS, 

a/k/a Wet, a/k/a C-Wet, a/k/a Sman, 

Defendant – Appellant. 

No. 13-5072 

(D.C. No. 4:12-CR-00050-JHP-3) 

(N.D. Okla.) 

ORDER AND JUDGMENT

Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges. 

 

Deandre Hopkins was indicted, tried, and convicted of conspiring to rob 

banks, credit unions, and pharmacies in Tulsa, Oklahoma. The district court 

denied Deandre’s motion for judgment of acquittal, finding that the evidence at 

trial established the conspiracy as charged. Deandre appeals. We hold that there 

was a variance between the conspiracy charged and the evidence presented at 

trial, but we hold that it was not substantially prejudicial. We therefore affirm the 

district court. 

  This order and judgment is not binding precedent except under the doctrines 

of law of the case, claim preclusion, and issue preclusion. It may be cited, 

however, for its persuasive value consistent with Federal Rule of Appellate 

Procedure 32.1 and Tenth Circuit Rule 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 22, 2015

Elisabeth A. Shumaker 

Clerk of Court

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Deandre also raises three other issues. He appeals the denial of his motion in 

limine to exclude gang-affiliation evidence. He also argues that his conviction for 

the conspiracy violates the Double Jeopardy Clause. We affirm the district court 

on these two issues. Finally, he argues that there has been cumulative error. We 

hold there are insufficient errors to conduct a cumulative error analysis. 

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm Deandre’s convictions 

on all counts. 

I. FACTS AND PROCEDURAL HISTORY 

Following a series of robberies in Tulsa, the local police began to suspect that 

the robberies were connected. They developed a list of suspects, which included 

Deandre. The police were interested specifically in seven robberies that took 

place from August 2009 to November 2011: (1) IBC Bank; (2) Dooley’s 

Pharmacy; (3) T. Roy Barnes Pharmacy (“Barnes Pharmacy”); (4) Metro 

Pharmacy and Medical Supplies (“Metro Pharmacy”); (5) CVS Pharmacy; (6) 

Tulsa Municipal Employees Federal Credit Union (“Tulsa Credit Union”); and (7) 

Arvest Bank. They came to believe that these robberies had been committed as 

part of a larger conspiracy by members of the Hoover Crips, a Tulsa street gang. 

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Based on this investigation, a federal grand jury returned a ten-count 

indictment against a group of eight coconspirators,1

 charging that the group had 

conspired together to commit six of the seven robberies in violation of 18 U.S.C. 

§ 1951(a).2

 Deandre was indicted as a member of this conspiracy. Deandre was 

also charged with committing two of the robberies—Metro Pharmacy and Tulsa 

Credit Union—and for aiding and abetting the use of a firearm during and in 

relation to each of the two robberies (crimes of violence) under 18 U.S.C. 

§ 924(c)(1)(A)(ii).3

 Deandre had already been tried and convicted in federal court 

 1

 The indictment named eight defendants: Vernon Hill, Christopher Lewis, 

Deandre Hopkins, Marquis Devers, Dontayne Tiger, James Miller, Kenneth 

Hopkins, and Dejuan Hill. Throughout this opinion, we will refer to Vernon, 

Dejuan, and Deandre by their first names because there were other coconspirators 

indicted with the same last names. Deandre, Vernon, and Dejuan were the only 

defendants who proceeded to trial. All of the other indicted coconspirators 

pleaded guilty before trial. Vernon, Dejuan, and Deandre were convicted of all 

charges. Vernon appeals his conviction in a related appeal. United States v. 

Vernon Hill, __ F. App’x __, No. 13-5084 (10th Cir. May 22, 2015) 

(unpublished). Dejuan Hill does as well. United States v. Dejuan Hill, __ F.3d __, 

No. 13-5074 (10th Cir. May 22, 2015). 

2

 The CVS Pharmacy robbery was not charged against any of the 

coconspirators, nor was it listed as an overt act for Count One. Instead, the 

government used this evidence against Vernon in an attempt to tie him to the 

other robberies. 

 

3

 In more complete part for the Metro Pharmacy robbery: “[T]he defendants, 

aiding and abetting each other, knowingly used, carried and brandished firearms 

during and in relation to a crime of violence . . . .” Also, in more complete part 

for the Tulsa Credit Union robbery: “[T]he defendants, and others known to the 

Grand Jury, aiding and abetting each other, knowingly used, carried, brandished 

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for the underlying substantive offense of robbing the Barnes Pharmacy. The 

government used the Barnes Pharmacy robbery as an overt act for the Count One 

conspiracy charge. On appeal to this court for the Barnes Pharmacy robbery 

charge (not the conspiracy charge), we affirmed his robbery conviction. United 

States v. Hopkins, 528 F. App’x 782, 782–84 (10th Cir. 2013) (unpublished). 

A. Barnes Pharmacy 

In May 2010, four armed men wearing hoodies, cut-off shirtsleeves wrapped 

around their faces, and gloves robbed the Barnes Pharmacy. The robbers arrived 

in a stolen car, took drugs and cash, and stole the pharmacist’s car for the 

getaway. The car was later found abandoned nearby, with a bag containing the 

face coverings. Deandre’s DNA was on one of the face coverings left in the car. 

A jury convicted Deandre of this robbery, and we affirmed his conviction on 

appeal. Hopkins, 528 F. App’x at 782–84. 

B. Metro Pharmacy 

This robbery occurred in August 2011. Duncan Herron, the government’s 

cooperating witness, who had been a part of the larger conspiracy at one time but 

had made a deal with the government, testified at trial to having participated in 

 

and discharged firearms during and in relation to a crime of violence 

 . . . .” 

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the Metro Pharmacy robbery, and he named Christopher Lewis, Marquis Devers, 

and Vernon Hill as coconspirators. He also later named Dontayne Tiger and 

Deandre as coconspirators. 

Herron admitted to meeting with the group to plan the Metro Pharmacy 

robbery on August 13, 2011. Later that day, the group carried out its plan. Herron 

walked into the pharmacy to buy some medicine, texted Devers as he was 

leaving, and held open the door for Lewis and Devers (because customers had to 

be buzzed into the pharmacy). Deandre had given Herron $10 to buy the 

medicine. Lewis, Vernon, and Devers then robbed the pharmacy with guns. 

Herron testified that both Tiger and Deandre were lookouts during the Metro 

Pharmacy robbery.4

 After the robbery, the men got into a van that was parked 

outside of the pharmacy and drove away. As instructed by Tiger, Herron called 

911 to report the robbery after the other men drove away, attempting to divert 

police attention from his involvement. 

Included within the evidence admitted at trial were cell phone records 

establishing that Devers had called Metro Pharmacy twice before the robbery, 

 4

 Deandre disputes the credibility of this testimony because Herron had not 

named Deandre as a participant at first, but he later changed his account of the 

Metro Pharmacy to include Deandre. On appeal, we take the evidence in the light 

most favorable to the government, and we do not weigh the credibility of 

witnesses. United States v. Hamilton, 587 F.3d 1199, 1206 (10th Cir. 2009). 

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that Devers and Herron had communicated by text message during the robbery, 

and that Lewis and Vernon communicated by cell phone during the robbery.

C. Tulsa Credit Union 

In September 2011, a group of assailants robbed the Tulsa Credit Union. 

Herron testified at trial that he, Tiger, Deandre, Lewis, James Miller, and Devers 

participated in this robbery. Devers and Deandre picked up Herron and drove to 

an apartment to plan the robbery, where the others were already waiting. After 

this meeting, Herron, Devers, Miller, and Deandre drove to an apartment 

complex, where they stole a Jeep to use in the robbery. Deandre and Tiger then 

drove the group to the bank in separate cars. Miller, Devers, and Lewis robbed 

the bank, wearing hoodies, face coverings, and gloves, and carrying guns. One of 

them fired a gun. The robbers demanded money from multiple tellers, and one 

teller gave them $170,000 from the vault. Witnesses saw the robbers drive away 

in the stolen Jeep. Lewis, Devers, and Miller got into the Jeep parked outside the 

credit union, and Herron drove the stolen Jeep around the corner. Once around 

the corner, Herron, Miller, and Devers got into a car with Deandre. Lewis got into 

a separate car with Tiger. They left the Jeep there and all drove to Miller’s 

sister’s house, and police recovered the Jeep later that day. The group, including 

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Deandre, then divided the money between themselves. Herron received $7,000 for 

his role in the robbery. 

D. The Larger Conspiracy 

The government’s theory of the case at trial was that all eight individuals 

indicted had conspired, generally, to commit bank, credit union, and pharmacy 

robberies in Tulsa. Most of the evidence establishing this larger conspiracy 

centered on each coconspirator’s relationship with the Hoover Crips. The 

government also highlighted the similarities between the robberies. Apart from 

the three robberies in which Deandre was involved, the government elicited 

testimony about four other robberies—IBC Bank, Dooley’s Pharmacy, CVS 

Pharmacy, and Arvest Bank—but there was no evidence linking Deandre to any 

of those robberies. Because Deandre’s trial included the global conspiracy charge 

and was joined with Vernon’s and Dejuan Hill’s, his trial included evidence 

regarding these four robberies. But he was not indicted, charged, or convicted for 

committing any of them. 

E. Procedural History 

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After the government rested its case, Deandre moved for a Rule 29 judgment 

of acquittal on Count One, the conspiracy charge, arguing that the government 

had failed to prove interdependence. The district court denied the motion. 

The jury convicted Deandre on all five charges against him. On appeal, 

Deandre raises four issues. First, he argues that there was insufficient evidence of 

interdependence to support his conviction for the global conspiracy. As part of 

this issue, he argues that there was a substantially prejudicial variance between 

the indictment and what the government proved at trial. Second, Deandre appeals 

the denial of his motion to exclude the gang evidence under Fed. R. Evid. 403. 

Third, he argues that because he had already been convicted for the Barnes 

Pharmacy robbery, his later conviction for conspiring to commit that same 

robbery violated the Double Jeopardy Clause. Fourth, he argues that there was 

cumulative error. 

II. VARIANCE 

 To prove a conspiracy, the government must show: (1) that two or more 

persons agreed to violate the law; (2) that the defendant knew at least the 

essential objectives of the conspiracy; (3) that the defendant knowingly and 

voluntarily became a part of the conspiracy; and (4) that the alleged 

coconspirators were interdependent. United States v. Sells, 477 F.3d 1226, 1235 

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(10th Cir. 2007). Deandre disputes only whether the government introduced 

enough evidence to establish the fourth element, interdependence—and more 

importantly, whether the government’s failure to introduce sufficient evidence 

constitutes a fatal variance.5

 

We treat a conspiracy variance claim as an attack on the sufficiency of the 

evidence supporting the jury’s finding that each defendant was a member of the 

same conspiracy. United States v. Carnagie, 533 F.3d 1231, 1237 (10th Cir. 

2008) (citing United States v. Griffin, 493 F.3d 856, 862 (7th Cir. 2007)). We 

review challenges to the sufficiency of the evidence de novo. United States v. 

Wells, 739 F.3d 511, 525 (10th Cir. 2014). We must take the evidence and draw 

all reasonable inferences in favor of the government. Id. “Distinguishing between 

a single, large conspiracy and several smaller conspiracies is often difficult; we 

will generally defer to the jury’s determination of the matter.” United States v. 

Caldwell, 589 F.3d 1323, 1329 (10th Cir. 2009). We review de novo the existence 

of a variance that would support acquittal as a matter of law. Id. at 1328. 

 5

 In his Brief, Deandre discusses whether he could be found guilty of aiding 

and abetting the robberies, rather than conspiring to commit the robberies. The 

government argues that Deandre did not raise this argument to the district court, 

nor did he challenge the sufficiency of the evidence as to his § 924(c) 

convictions. In his Reply Brief, Deandre admits that he only discusses aiding and 

abetting as a rhetorical device to challenge interdependence. We conclude that the 

issue of aiding and abetting is not properly before this court and thus do not 

consider it. For the same reasons, we do not consider the sufficiency of the 

evidence for his § 924(c) convictions. 

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Interdependence is the focal point for determining whether a single conspiracy 

existed. Id. at 1329. “Interdependence exists where co-conspirators ‘inten[d] to 

act together for their shared mutual benefit within the scope of the conspiracy 

charged.’” Id. (alteration in original) (quoting United States v. Evans, 970 F.2d 

663, 671 (10th Cir. 1992)). This requires that “each [coconspirator’s] activities 

‘constituted essential and integral steps toward the realization of a common, 

illicit goal.’” United States v. Edwards, 69 F.3d 419, 431 (10th Cir. 1995) 

(quoting United States v. Fox, 902 F.2d 1508, 1514 (10th Cir. 1990)). 

Interdependence is often proved by circumstantial evidence, United States v. 

Hutchinson, 573 F.3d 1011, 1035 (10th Cir. 2009), and it does not require proof 

that the conspirators know the identities or details of each scheme or have 

connections with all other members of the conspiracy, United States v. Foy, 641 

F.3d 455, 465 (10th Cir. 2011) (reviewing a sufficiency challenge for plain error). 

“A variance arises when an indictment charges a single conspiracy but the 

evidence presented at trial proves only the existence of multiple conspiracies.” 

Carnagie, 533 F.3d at 1237 (citing United States v. Ailsworth, 138 F.3d 843, 848 

(10th Cir. 1998)). This constitutes reversible error only if it is prejudicial and 

affects the defendant’s substantial rights.6 Edwards, 69 F.3d at 433; Caldwell, 

 6

 In his Brief, Deandre argues that “a defendant is prejudiced if the 

Government convicts him of one general conspiracy when, in fact, the evidence 

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589 F.3d at 1333. We explained in United States v. Windrix that “[a] defendant’s 

substantial rights are not prejudiced merely because the defendant is convicted 

upon evidence which tends to show a narrower scheme than that contained in the 

indictment, provided that the narrower scheme is fully included within the 

indictment.” 405 F.3d 1146, 1154 (10th Cir. 2005) (quoting United States v. 

Harrison, 942 F.2d 751, 758 (10th Cir. 1991)) (internal quotation marks omitted). 

Prejudice can occur in a number of ways. First, it can arise when the defendant 

did not have sufficient notice of the charges. Id.; see also Carnagie, 533 F.3d at 

1241 (citing United States v. Stoner, 98 F.3d 527, 536 (10th Cir. 1996)). “When 

an indictment charges a conspiracy among multiple individuals, it generally 

provides sufficient notice to a defendant that she must defend against the smaller 

conspiracies.” Caldwell, 589 F.3d at 1333. Second, “[a] defendant’s substantial 

rights are affected in the context of a variance when the jury determines a 

defendant’s guilt by relying on evidence adduced against coconspirators who 

were involved in separate conspiracies.” Edwards, 69 F.3d at 433. To evaluate 

whether a prejudicial guilt-spillover effect such as this occurred, reviewing courts 

look to three factors: (1) whether the separate conspiracies affected the jury’s 

 

proves that there were several smaller conspiracies.” Appellant’s Br. at 19–20 

(citing United States v. Kotteakos, 328 U.S. 750 (1946)). Deandre’s 

characterization of Kotteakos is incorrect. In Kotteakos, the Supreme Court 

required that the defendant show some prejudice beyond just the fact that the 

evidence only established smaller conspiracies. 328 U.S. at 773–74. 

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ability to evaluate each defendant’s individual actions; (2) whether the variance 

caused the jury to misuse evidence; and (3) the strength of the evidence 

underlying the conviction. Carnagie, 533 F.3d at 1241. 

Deandre argues that the government failed to prove interdependence for a 

global conspiracy to commit robberies in Tulsa. Instead, he argues, the evidence 

established only several, smaller conspiracies to commit specific robberies, 

resulting in a variance between the indictment and what the government proved at 

trial. He further argues that he was prejudiced by a substantial guilt-spillover 

effect when the government associated him with crimes for which it did not prove 

his direct involvement. 

The government argues that no variance between the conspiracy charged and 

the evidence adduced at trial occurred and that even if a variance occurred it was 

not prejudicial. The government’s theory at trial was that Deandre and his 

coconspirators were members or affiliates of the Hoover Crips and that, through 

this association, they conspired to commit the six robberies listed as overt acts in 

Count One. 

We agree with Deandre that the record shows insufficient evidence of a 

common unlawful goal or purpose to prove the global conspiracy. See United 

States v. Daily, 921 F.2d 994, 1007 (10th Cir. 1990) (“[T]he focal point of the 

[interdependence] analysis is whether the alleged co-conspirators were united in a 

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common unlawful goal or purpose.”), overruled on other grounds by United 

States v. Gaudin, 515 U.S. 506 (1995). As we explained in Carnagie, “[t]his 

common goal, however, is not by itself enough to establish interdependence: 

[w]hat is required is a shared, single criminal objective, not just similar or 

parallel objectives between similarly situated people.” 533 F.3d at 1239 

(emphasis in original) (internal quotation marks omitted) (quoting Evans, 970 

F.2d at 671). So even though the general objective of the individual robberies was 

to rob businesses of money or drugs, that does not necessarily mean that the 

separate groups were interdependent. See id. 

After reviewing the record, we conclude that there is insufficient evidence of 

one common global conspiracy; instead, we see evidence of smaller, individual 

conspiracies. To begin, not all of the robberies were committed by the same men. 

While this does not foreclose the possibility that there was a global conspiracy, 

we find it important to note that a different group of men robbed each bank, albeit 

with some overlap among the groups. Further, the government introduced no 

evidence that proceeds from any individual robbery were ever shared with anyone 

not directly participating in that robbery. Additionally, the government did not 

establish that one person directed all of the conspirators, which would have 

allowed the jury to infer that he was calling the shots. To the contrary, the jury 

was left to infer that because all of the conspirators were members or affiliates of 

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the Hoover Crips, they must have had a shared criminal goal sufficient to 

establish interdependence. We think, as a matter of law, that this is insufficient. 

In United States v. Robinson, 978 F.2d 1554, 1563 (10th Cir. 1992), we 

explained that while gang affiliation evidence can be probative circumstantial 

evidence of agreement, purpose, and knowledge for a conspiracy, gang-affiliation 

evidence “alone could not support a conviction.” In that case, unlike here, other 

evidence beyond gang membership helped establish the conspiracy. See id. For 

the conspirators in this case, we see no evidence, other than gang membership, 

that shows or even provides an inference of a shared criminal goal to commit the 

global conspiracy. 

The government asserts that the commonalities between the robberies should 

be enough. We disagree. While commonalities might be sufficient if the means 

and method were unique in some way, that was not the case here. Cf., e.g., United 

States v. Carroll, 207 F.3d 465, 469 (8th Cir. 2000) (applying Fed. R. Evid. 

404(b) to determine whether the characteristics shared by two robberies were 

similar enough to form a modus operandi and concluding that wearing a nylon 

mask, carrying a gun, vaulting over the counter, and putting money in a bag were 

not sufficiently unique). The use of masks, guns, bags, threats, and getaway cars 

does not elevate this string of robberies to one where we can infer that the same 

group orchestrated or carried them out. The government tried to rely on the gangAppellate Case: 13-5072 Document: 01019434773 Date Filed: 05/22/2015 Page: 14 
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affiliation evidence to link all of these facts together and paint a picture of a 

gang-based robbery conspiracy. It also cited the discharge of firearms and the 

demand of money and controlled substances during the robberies in an attempt to 

prove interdependence. To us, this manner of committing these robberies seems 

common, not unique. 

Even further, no evidence showed that the individual robberies “benefitted 

from or depended upon the success of the” other robberies. See Carnagie, 533 

F.3d at 1240 (citing United States v. Yehling, 456 F.3d 1236, 1241 (10th Cir. 

2006) (“[E]ach coconspirator’s ‘actions must facilitate the endeavors of other 

alleged coconspirators or facilitate the venture as a whole.’” (quoting Evans, 970 

F.2d at 670))). In fact, each individual robbery may well have harmed—not 

benefitted—the charged coconspirators not participating in a particular robbery. 

After each robbery, police became more alert to future related robberies and 

concentrated on the involvement of individual Hoover Crips. 

Therefore, we conclude that there was insufficient evidence of 

interdependence introduced at trial to prove a global conspiracy on the scale 

charged by the government. While the government failed to prove the global 

conspiracy charged in the indictment, our inquiry is not complete. We must still 

consider whether the trial evidence established several smaller conspiracies to 

commit the individual, charged robberies. See, e.g., Caldwell, 589 F.3d at 

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1332–33. We conclude that the government introduced sufficient evidence at trial 

to show that Deandre, with others, conspired to rob the Barnes Pharmacy, the 

Metro Pharmacy, and the Tulsa Credit Union. Deandre all but concedes this on 

appeal.7 See Appellant’s Br. at 12 (“[T]he single conspiracy alleged in the 

indictment was not borne out by the trial evidence, which showed not a rigid 

conspiracy, but rather (at most) a string of smaller conspiracies centered around 

the robberies. This was a fatal variance between the allegations and the trial 

evidence which warrants reversal.”). 

Had Count One of the indictment charged Deandre with conspiring separately 

to commit his three robberies, we could affirm those conspiracy convictions 

because Deandre does not challenge the sufficiency of the evidence for the 

smaller conspiracies. But when the government instead chose to charge Deandre 

with conspiring to commit the global conspiracy and failed to prove that global 

 7

 Even if Deandre did not concede this point on appeal, we think that the 

evidence establishing the Barnes Pharmacy, Metro Pharmacy, and Tulsa Credit 

Union robberies was sufficient to prove three individual conspiracies. For the 

Barnes Pharmacy robbery, four men robbed the bank, arriving in a stolen car, and 

Deandre’s DNA was found on one of the face coverings recovered from the 

abandoned car. For the Metro Pharmacy robbery, Duncan Herron testified that 

Deandre had helped plan the robbery, supplied Herron with money to be buzzed 

into the pharmacy, acted as a lookout during the robbery, and was a getaway 

driver. Finally, for the Tulsa Credit Union robbery, Herron testified that Deandre 

helped steal a car for the robbery, drove the coconspirators to the credit union, 

and acted as a getaway driver. We think that all three robberies have sufficient 

evidence to establish three conspiracies. 

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conspiracy at trial, it caused a variance. We must determine whether this variance 

requires us to vacate Deandre’s conviction for Count One. As we discussed 

above, prejudice can occur in two ways: first, it can arise when the defendant did 

not have sufficient notice of the smaller conspiracies; second, a defendant can 

suffer a prejudicial guilt-spillover effect. 

For the first type of prejudice, we conclude that the indictment adequately 

notified Deandre that he had to defend against the smaller conspiracies proved at 

trial. See, e.g., Caldwell, 589 F.3d at 1333 (concluding that when an indictment 

charges a conspiracy among multiple people, the indictment generally provides 

sufficient notice to a defendant that he must defend against the smaller 

conspiracies). The indictment fully contemplated the smaller conspiracies. The 

conspiracy charged in the indictment recited the charged robberies as overt acts. 

See, e.g., Carnagie, 533 F.3d at 1241 (finding no prejudice because the 

defendants knew that the smaller conspiracies were “part and parcel” of the 

overall conspiracies charged) (quoting Ailsworth, 138 F.3d at 850). Based on the 

indictment charges, Deandre was accused of participating in three robberies. The 

indictment notified him of the importance of his membership in the Hoover Crips. 

Because Deandre could anticipate the trial evidence, he cannot reasonably 

contend that he was insufficiently notified of the charges against him. Id.

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For the second type of prejudice, we conclude that there was no prejudicial 

guilt-spillover in this case. We apply the three factors discussed in Carnagie: 

First, whether the proliferation of separate crimes or conspiracies 

presented in the case impaired the jury’s ability to segregate each 

individual [conspirator’s] actions and the evidence associated with 

[her or] his participation; 

Second, whether confusion among members of the jury concerning the 

legal limitations on the use of certain evidence resulted from the 

variance; and, 

Third, the strength or weakness of the evidence underlying the jury’s 

conviction. 

533 F.3d at 1241 (alterations in original) (quoting Harrison, 942 F.2d at 758). 

A. The Evidence of Separate Conspiracies 

Did Not Impair the Jury’s Deliberation 

We conclude that the jury could segregate each charged defendant’s actions. 

We are aware that, as the Supreme Court explained in United States v. Kotteakos, 

the risk of prejudice increases when there are more defendants tried and 

conspiracies proved. 328 U.S. 750, 766–67 (1946). In that case, more than 30 

people were indicted, 19 were tried together initially, 13 went to the jury, and at 

least eight separate conspiracies were proved. Id. The Court announced no fixed 

rule for prejudice based on the numbers. See generally id. Instead, in measuring 

substantial prejudice, courts must look to the facts of each case. See generally 

Carnagie, 533 F.3d at 1242 (concluding that trying three defendants together for 

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three separate conspiracies, given other factors, did not constitute prejudice). 

Here, the government tried three defendants together and proved five 

conspiracies.8

 As in Carnagie, “the number of defendants tried and conspiracies 

proven do not reach the magnitude of Kotteakos, and thus the risk of prejudice is 

not as great.” Id. 

B. Evidentiary Spillover 

For two reasons, Deandre claims that evidentiary spillover prejudiced him: 

(1) “[T]he effect [of ‘guilt transference’] was pronounced for [Deandre] because 

of the Government’s use of gang evidence to taint all conspirators”; and (2) he 

was exposed to a general risk of guilt transference from the evidence presented 

against other conspirators from the other robberies. 

We are unpersuaded by his first argument. As we explain later, we conclude 

that the gang-affiliation evidence was properly admitted against Deandre. Even 

had Deandre been tried only for conspiring to commit the three smaller robberies, 

the gang evidence would still have been probative of his and his coconspirators’ 

purpose, knowledge, and intent in committing the three robberies. As to his 

second argument, the evidence demonstrated five separate conspiracies, each to 

 8

 We do not include the IBC Bank robbery because we concluded in Vernon’s 

appeal that there was insufficient evidence to establish a conspiracy to rob that 

bank. Hill, __ F. App’x __, No. 13-5084. We also do not include the CVS 

Pharmacy robbery because that robbery was not even charged in the indictment. 

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commit a separate robbery. As in Carnagie, the evidence here was not so intricate 

that it rendered the jury unable to segregate each defendant’s individual actions. 

See 533 F.3d at 1242. Also, the evidence from the other robberies was “of the 

exact same character” as the evidence from the three robberies involving 

Deandre. See id. at 1242–43. “We have held that such a similarity between 

different transactions cuts against a finding of substantial prejudice.” Id. 

C. Strength or Weakness of Evidence Underlying Conviction 

Finally, we must consider the strength or weakness of the evidence underlying 

the jury’s conviction on Count One, meaning whether the evidence supported 

Deandre’s conviction of the “smaller, separate conspiracies.” See Carnagie, 533 

F.3d at 1243. As explained earlier, Deandre conceded on appeal that there was 

sufficient evidence to prove the smaller, separate conspiracies. We conclude that 

the government’s trial evidence was strong in proving that Deandre conspired to 

rob and robbed the Barnes Pharmacy, the Metro Pharmacy, and the Tulsa Credit 

Union. 

During the Barnes Pharmacy robbery, four armed men wearing hoodies, face 

coverings, and gloves robbed the pharmacy, taking drugs and cash. The robbers 

arrived in a stolen car, and stole the pharmacist’s car for the getaway. The police 

found the car abandoned nearby, with a bag containing the face coverings. 

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Deandre’s DNA was on one of the face coverings left in the pharmacist’s car. 

This all is very strong evidence that Deandre conspired to rob and participated in 

the robbery. 

During the Metro Pharmacy robbery, Herron testified about Deandre’s role in 

the robbery, including Deandre’s actions in: (1) meeting with the others to plan 

it; (2) giving Herron $10 to buy the medicine (which was necessary to get the 

robbers into the pharmacy); and (3) acting as a lookout during the robbery.

Finally, during the Tulsa Credit Union robbery, Herron testified that Deandre 

met with the group to help plan the robbery, helped steal a Jeep to use in the 

robbery, drove the group to the Tulsa Credit Union, acted as a getaway driver, 

and helped divide the proceeds. 

In sum, there was sufficient evidence for the jury to find Deandre guilty of the 

three, smaller conspiracies. Deandre has failed to demonstrate that he suffered a 

substantially prejudicial variance. We affirm his conviction on Count One. 

III. GANG-AFFILIATION EVIDENCE 

 Under Fed. R. Evid. 403, a trial court may exclude “relevant evidence if its 

probative value is substantially outweighed by a danger of . . . unfair prejudice 

. . . .” We review evidentiary determinations for an abuse of discretion. United 

States v. MacKay, 715 F.3d 807, 839 (10th Cir. 2013). “Our abuse of discretion 

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review affords the district court considerable discretion in performing the Rule 

403 balancing test because district court judges have front-row seats during trial 

and extensive experience ruling on evidentiary issues.” United States v. 

Archuleta, 737 F.3d 1287, 1292 (10th Cir. 2013) (quoting MacKay, 715 F.3d at 

839). 

We have held that where conspiracy is charged, “gang-affiliation testimony 

may be relevant.” Id. 1293–94 (citing multiple cases from this circuit allowing 

the admission of gang-affiliation evidence to help prove conspiracy). 

Specifically, we deem gang-affiliation evidence as probative and “directly 

relevant” to establishing some of the elements for a conspiracy—the agreement, 

purpose, and knowledge of coconspirators. Robinson, 978 F.2d at 1562. But gangaffiliation evidence alone cannot support a conviction. Id. at 1563. 

The government introduced evidence that Deandre and the other 

coconspirators were members or affiliates of the Hoover Crips. The government 

relied on this evidence to establish interdependence for the global conspiracy. In 

this regard, Herron testified that Deandre was a member of the 39 sect of the 

Hoover Crips. Along the same line, Officer Steven Sanders testified that the 

department considered Deandre a certified gang member, relying on the Tulsa 

police department’s system for “certifying” people as gang members. 

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Before trial, Deandre filed a motion in limine, seeking to prevent the 

government from introducing any evidence about his affiliation with the Hoover 

Crips. He argued that the government could not show with certainty that he was a 

gang member or that the robberies were sanctioned by the gang’s leadership. He 

also argued under Fed. R. Evid. 403 that the danger of unfair prejudice from this 

evidence would substantially outweigh its probative value. The district court 

denied Deandre’s motion, concluding that the gang-affiliation evidence was 

circumstantial evidence supporting the conspiracy charge. The court also 

concluded that the probative value of the evidence outweighed any danger of 

unfair prejudice. 

On appeal, Deandre argues that the gang evidence caused “the negative 

aspects of the gang [to be] imputed to him.”9

 Accordingly, he urges this court to 

reverse and remand for a new trial.10 The government argues that the probative 

 9

 Deandre submits two cases from this court for the proposition that “mere 

gang membership, by itself, is not evidence of criminal activity.” He cites United 

States v. Roach, 582 F.3d 1192, 1202 (10th Cir. 2009) (holding that the gang 

evidence was too stale to establish probable cause for a search warrant), and 

Robinson, 978 F.2d at 1563. Deandre’s argument misses the point. Here, the 

government used the gang-affiliation evidence as circumstantial evidence that the 

conspirators agreed about the conspiracy’s purpose and to show they knew about 

the conspiracy, not as evidence of independent criminal activity. 

10 The government contends that the motion in limine was narrower than 

Deandre contends on appeal. The government explains, “[I]n his motion in 

limine, [Deandre] specifically moved to prohibit the government from 

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value of the evidence was not substantially outweighed by the danger of unfair 

prejudice. Even if it was an abuse of discretion to admit the evidence, the 

government asserts that the error was harmless.

We conclude that the district court did not abuse its discretion. When the 

district court ruled on the motion in limine, the coconspirators were set for a joint 

trial based on the global conspiracy count. The probative value of the gang 

evidence for that count was considerable. We must remember that the three 

defendants at trial had disputed interdependence by arguing that not all 

coconspirators knew each other or had a joint motive. Therefore, the gangaffiliation evidence was circumstantial evidence opposing that argument. See

Robinson, 978 F.2d at 1562–63 (“Circumstantial evidence is often the strongest 

evidence of conspiracy.”). Even for the individual conspiracies that were actually 

established at trial, this evidence had probative value. 

Additionally, the danger of unfair prejudice was limited, given that the gangaffiliation evidence was only a small part of the evidence linking Deandre to the 

 

‘introducing evidence at trial of any alleged affiliation of the Defendant, Deandre 

Hopkins, with the Hoover Crips street gang.’” On appeal, however, Deandre 

characterizes the scope of his motion more broadly, asserting that the motion 

sought “‘to restrict the government from introducing gang evidence’ altogether.” 

To the extent the government is correct, this distinction may be relevant as it 

would compel us to review Deandre’s claims for plain error rather than abuse of 

discretion. We need not resolve this dispute, however, because we conclude that 

all of the gang evidence was admissible even under the less deferential abuse of 

discretion standard. 

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individual conspiracies and robberies. There was other evidence, both direct and 

circumstantial, tending to show that Deandre was involved. For instance, the 

police found Deandre’s DNA in the getaway car for the Barnes Pharmacy 

robbery. For the Metro Pharmacy robbery, Herron testified that Deandre helped 

plan the robbery, gave Herron money to use to get into the building, and acted as 

a lookout during the robbery. Herron also testified about Deandre’s involvement 

in the Tulsa Credit Union robbery, explaining that Deandre was the getaway 

driver. The jury was not left to rely solely on Deandre’s purported gang 

membership in determining whether he was a member of the conspiracy and had 

participated in the robberies. 

Given the high degree of probative value and the limited danger of unfair 

prejudice, we conclude that the district court did not abuse its discretion under 

Rule 403 in admitting the evidence. 

IV. DOUBLE JEOPARDY 

The Supreme Court has held that “a substantive crime and a conspiracy to 

commit that crime are not the ‘same [offense]’ for double jeopardy purposes.” 

United States v. Felix, 503 U.S. 378, 389 (1992). A defendant can be tried and 

convicted for each without violating Double Jeopardy. Id. 

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Deandre argues that his previous prosecution and conviction for the Barnes 

Pharmacy robbery must bar his later prosecution in this case for conspiring to 

commit that robbery. He acknowledges on appeal that he raises this argument to 

preserve it for appeal to the Supreme Court. We agree with the government that 

Felix requires that this court hold that there was no Double Jeopardy violation. 

We conclude that Deandre’s indictment and conviction for conspiracy did not 

violate Double Jeopardy. 

V. CUMULATIVE ERROR

When analyzing cumulative error, we aggregate all actual errors and consider 

whether their cumulative effect denied the defendant a fundamentally fair trial. 

United States v. Rivera, 900 F.2d 1462, 1477 (10th Cir. 1990) (en banc); see also

United States v. Toles, 297 F.3d 959, 972 (10th Cir. 2002). We consider only 

actual errors, not just the possibility that the district court might have done 

something differently. Rivera, 900 F.2d at 1470–71. Errors are only those 

violations “of an established legal standard defining a particular error,” not just 

incidents a reviewing court considers troubling. Id. at 1471. As its name suggests, 

there must be at least two errors in order to undertake a cumulative error analysis. 

Id. at 1469. 

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Deandre argues that he has proven three relevant errors: (1) lack of 

interdependence; (2) introduction of the gang-affiliation evidence; and (3) a 

Double Jeopardy violation. The government argues that Deandre cannot show any 

errors, let alone cumulative error. 

 We did not find any error regarding the gang-affiliation evidence or the 

Double Jeopardy claim. Because we concluded that there was a variance, we must 

include the variance in our consideration of cumulative error. But one error is 

insufficient to even warrant conducting a cumulative error analysis. We therefore 

hold that there was no cumulative error in this case. 

VI. CONCLUSION 

 We affirm Deandre’s convictions as to all counts. 

 ENTERED FOR THE COURT 

 Gregory A. Phillips 

 Circuit Judge 

 

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No. 13-5072, United States v DeAndre Hopkins 

McHUGH, Circuit Judge, concurring: 

 I am pleased to join in the majority’s thorough and thoughtful Order and Judgment 

affirming Deandre’s convictions. I write separately to explain why I conclude the 

variance in this case did not prejudice Deandre’s right to a fair trial. As I described in my 

concurring and dissenting opinion in United States v. [Dejuan] Hill, __ F.3d __, 

No. 13-5074 (10th Cir. May 22, 2015) (McHugh, J. concurring and dissenting), the 

government’s decision to charge and try the defendants for participating in a global 

conspiracy for which there was insufficient evidence carried with it the risk of prejudicial 

spillover. But in Deandre’s case, the variance did not cause substantial prejudice. The 

government alleged Deandre participated in three of the seven robberies, including the 

Tulsa Credit Union robbery, which was the most violent of the seven.1

 As the majority 

explains, much of the gang evidence admitted was directly relevant to Deandre’s 

involvement in all three robberies. And even if the global conspiracy theory allowed the 

government to introduce some inflammatory evidence that had little relevance to 

Deandre, the overwhelming evidence of Deandre’s guilt with respect to the Barnes 

Pharmacy, Metro Pharmacy, and Tulsa Credit Union robberies makes it unlikely that the 

admission of this evidence improperly influenced the jury’s verdict. Therefore, I concur 

in the majority’s conclusion that the variance did not interfere with Deandre’s right to a 

fair trial. 

 

1

 The other two robberies were of the Barnes Pharmacy and the Metro Pharmacy. 

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