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

                            1
No. 02-6122                      United States v. Hopper        3    4       United States v. Hopper                                No. 02-6122

methamphetamine–began purchasing it from a company                   the manufacturing process.1 Easterly testified that he again
named Pyrotek. Before his arrest, Brooks had purchased               traveled to Gissendanner’s home to cook more
approximately sixty pounds of red phosphorous for forty-five         methamphetamine and saw Hopper there with his son.
dollars per pound and had sold it for up to sixteen hundred          Easterly testified that Hopper remained in a different room
dollars per pound. The police arrested Brooks in August              with his son, while the other men manufactured
1999, and he was ultimately convicted of conspiracy to               methamphetamine. Following a traffic stop, Easterly was
manufacture methamphetamine.                                         arrested in April 2000 when the police discovered thirty-six
                                                                     grams of methamphetamine on his person. Easterly pleaded
  Upon Brooks’s arrest, the police interviewed Hopper at his         guilty and was sentenced to five years imprisonment.
residence in November 1999 to discuss his connection with
Brooks and his involvement with the sale or distribution of            Before his arrest, however, Easterly had introduced Hopper
red phosphorous. Detective Tommy Farmer testified that at            to James Marter and Mitchell Bivens. Marter and Bivens
this initial interview Hopper admitted that he bought red            subsequently purchased red phosphorous from Hopper.
phosphorous from Brooks and that he sold it at a profit to           Hopper introduced Marter to Gissendanner, and Marter began
people who were involved in the manufacturing of                     purchasing red phosphorous from Gissendanner. Marter
methamphetamine. Brooks’s testimony at Hopper’s trial                testified that he observed Gissendanner and Hopper
corroborated this statement, as he testified that he sold in total   manufacturing methamphetamine in Hopper’s garage and that
“a few pounds, 10 maybe” of red phosphorous to Hopper,               he would help Gissendanner, Gissendanner’s son, and Hopper
charging him approximately $1000 per pound “so he could              with their “cooks.” Marter testified that on one occasion he
make a profit.” Hopper was not arrested or charged with any          had Gissendanner and Gissendanner’s son complete the
crime after this initial interview.                                  manufacturing process for him and that he then shared with
                                                                     them the methamphetamine that resulted. Marter also
  Before learning how to manufacture methamphetamine,                testified that he observed Easterly manufacturing
William Easterly sold the controlled substance to Hopper.            methamphetamine in Hopper’s garage. Both Marter and
After learning how to manufacture methamphetamine,                   Bivens were arrested and pleaded guilty to controlled
Easterly bought red phosphorous from Hopper, later learning          substance offenses.
that Hopper had acquired the red phosphorous from Brooks.
After Brooks’s arrest, Hopper and Easterly drove to the                On June 13, 2001, Detective Farmer again visited Hopper’s
Atlanta home of Jackie Gissendanner, who sold red                    residence to assist a case agent from the Department of
phosphorous and who apparently wanted to learn how to
manufacture methamphetamine. On one visit, Easterly
manufactured methamphetamine on Gissendanner’s premises                  1
with the assistance of Gissendanner and Hopper. Easterly                   W hile Easterly testified that he did so with Hopper’s permission and
                                                                     assistance, Hopper testified that he did not give Easterly permission to
also “cooked” methamphetamine in Hopper’s garage and                 cook methamphetamine in his garage. Hopp er, however, also testified
testified that while Hopper was not “the cook,” he did aid in        that because “there [is] a possibility to everything,” there wa s a po ssibility
                                                                     that Easterly was indeed manufacturing methamphetamine in his garage.
                                                                     Inconsistently, Hopp er’s later testimony states that when he discovered
                                                                     that Easterly was manufac turing methamphetamine on his property he
                                                                     “r[an] him off.” Hopper maintained, however, that he was not present
                                                                     during the manufac turing process.
No. 02-6122                       United States v. Hopper          5    6       United States v. Hopper                          No. 02-6122

Children Services, who had received an anonymous call                   insufficient evidence in the light “most favorable to the
reporting “allegations of domestic violence, lack of                    United States and determine whether any rational trier of fact
supervision, and possible drug activity,” as well as medical            could have found the elements of the offense beyond a
neglect. During this second visit to Hopper’s residence,                reasonable doubt.” United States v. Couch, 367 F.3d 557,
Detective Farmer noticed an odor that he knew to be                     560 (6th Cir. 2004) (internal quotation marks omitted).
associated with the manufacturing of methamphetamine.
Detective Farmer noticed in plain view in the garbage a bottle             Notably, Hopper mischaracterizes the nature of the
of fuel line antifreeze and some coffee filters, both of which          evidence against him relating to the charge of conspiracy to
are used in the manufacturing of methamphetamine. At that               manufacture methamphetamine. Hopper argues that “[h]e did
point, Detective Farmer requested, and received, permission             not participate in large cooks or donate his chemicals for a
to search the premises.2 Detective Farmer noticed in the                portion of the yield, and no one has said he did anything
detached garage a large bottle of hydrogen peroxide and some            based on the success of a future production or sale.” Hopper
muriatic acid–both used to manufacture methamphetamine.                 also notes that Marter “never claimed that Hopper ever
Behind the garage, Detective Farmer noticed a “burn pile,”              cooked with him.” Our review of Marter’s trial testimony
which he knew from experience was a common way that                     indicates that although Hopper did not actually manufacture
people destroyed the evidence of methamphetamine                        the methamphetamine himself because he did not know how
production. Finally, Detective Farmer noticed that beside the           “to cook,” it does indicate that he readily helped in other
barn area there was a worn path leading into the woods. This            ways, such as “get[ting] acetone, clean[ing] jars,” and
path led to an area where Detective Farmer located two                  “filter[ing] dope off.” Moreover, similar evidence indicating
garbage bags, which essentially contained the remains of a              that Hopper actively assisted in the manufacturing process is
methamphetamine lab. Hopper was indicted in October 2001,               reflected in Easterly’s testimony. Easterly testified that
and arrested in December 2001. A second-superseding                     Hopper “helped [him] if [he] needed some help” by “get[ting]
indictment was issued in January 2002, and Hopper was                   Coleman fuel or coffee filters or making the aluminum balls
convicted of two of the offenses contained in the superseding           to go in the muriatic acid.” Under these facts, we hold that
indictment in February 2002. Thereafter, Hopper filed a                 any rational trier of fact could conclude that the United States
motion for a new trial based upon newly discovered evidence,            has met its burden of proving that Hopper conspired to
which the district court denied. This timely appeal followed.           manufacture methamphetamine. See id.3

                                 II.
                                                                            3
                                                                              Hopper also argues that bec ause there was insufficient evidence to
   Hopper argues that insufficient evidence supports his                support the distinguishing element between his conviction of conspiracy
conviction for conspiracy to manufacture methamphetamine                to manu facture methamph etamine and his conviction for conspiracy to
in violation of U.S.C. §§ 846 and 841. We review a claim of             possess red phospho rous–i.e., the agreement to manufacture
                                                                        methamphetamine–the charge of conspiracy to possess red phosphorous
                                                                        knowing and intending that it would be used to manufacture
                                                                        methamphetamine becomes a lesser-included offense of co nspiracy to
    2
                                                                        manufacture methamphetamine. Given our holding that sufficient
      Although Ho ppe r testified that he did not give perm ission to   evidence suppo rts Hopper’s conviction for conspiracy to manufacture
Detective Farmer to search the premises, the district judge, after an   methamphetamine, we find it unnecessary to address this argument
evidentiary hearing, denied Hop per’s motion to suppress evidence,      because it is dependent upon the success of his claim of insufficient
finding D etective Farm er’s account o f the events fully cred ible.    evide nce.
No. 02-6122                      United States v. Hopper       7    8     United States v. Hopper                      No. 02-6122

                              III.                                  of itself sufficient to convict him of conspiracy to
                                                                    manufacture methamphetamine.
  We now turn to Hopper’s argument that the jury
instructions were erroneous. Hopper argues that the                   Third, Hopper argues that the district court erred in not
instructions were erroneous in that they allowed the jury to        making a unanimity instruction. Hopper “neither requested
conclude that evidence sufficient to convict him of conspiracy      nor received an enhanced unanimity instruction.” Tosh, 330
to possess red phosphorous was sufficient in and of itself to       F.3d at 842. Most generously construed, Hopper argues that
convict him of conspiracy to manufacture methamphetamine.           the specific identity of his co-conspirators is an element of the
Additionally, Hopper argues, citing no precedential support,        crime of conspiracy to manufacture methamphetamine and, as
that the district court erred by not instructing the jury that it   such, must be unanimously found by the jury. We addressed
had to agree unanimously as to the identity of his co-              a similar argument in United States v. Humphrey, 287 F.3d
conspirators. We find these arguments unpersuasive.                 422 (6th Cir. 2002), overruled on other grounds, United
                                                                    States v. Leachman, 309 F.3d 377 (6th Cir. 2002). In
   First, we note that Hopper made no objections to the jury        Humphrey, we noted: “the specific unanimity instruction
instructions, nor did he specifically request a unanimity           sought by Humphrey is generally required only in one of
instruction. Thus, we are limited to plain-error review.            three circumstances: when the nature of the evidence is
United States v. DeJohn, 368 F.3d 533, 540 (6th Cir. 2004).         particularly complex; when there is a variance between the
Also, in addressing this argument, we assume that the jury          indictment and the proof adduced at trial; or when there is
followed the instructions as given. United States v. Tosh, 330      some tangible evidence of jury confusion, as when the jury
F.3d 836, 842 (6th Cir. 2003) (“A jury’s verdict represents a       has asked questions of the court.” Id.
finding that a crime was committed as alleged in the
indictment . . . . [T]he court must assume that the jurors were       As in Humphrey, none of these circumstances exists in this
diligent in following the precise instructions given to them.”      case. Id. at 440. Hopper points to no evidence indicating that
(internal quotation marks and citations omitted)).                  the jury was confused, and if anything, its finding of not
                                                                    guilty on two of the four counts contained in the indictment
   Second, we reject Hopper’s argument that the jury                indicates that it understood its duties under the instructions.
instructions were erroneous in that they allowed the jury to        Moreover, as we found in Humphrey, the district court
conclude that evidence sufficient to convict him of conspiracy      “provided a thorough instruction on what constitutes a
to possess red phosphorous was sufficient, in and of itself, to     conspiracy.” Id. at 439. Under these circumstances, we find
convict him of conspiracy to manufacture methamphetamine.           Hopper’s argument that the jury instructions were erroneous
The district court clearly instructed the jury on the nature of     without merit.
the two different offenses and the facts that the jury had to
find to convict Hopper of each, independent conspiracy                                            IV.
charge. The district court instructed the jury on each count
contained in the indictment and separately discussed each             Finally, we turn to Hopper’s argument that the district court
element that the United States had to prove beyond a                erred in denying his motion for a new trial. On May 30,
reasonable doubt. The instructions as given simply did not          2002, Hopper filed a motion for a new trial based on newly-
allow the jury to conclude that evidence sufficient to convict      discovered evidence pursuant to Federal Rule of Criminal
Hopper of conspiracy to possess red phosphorous was in and          Procedure 33. The motion argued that he discovered
No. 02-6122                     United States v. Hopper        9    10   United States v. Hopper                 No. 02-6122

evidence after trial indicating that the trial testimony of         Moreover, any use of these statements, given Wooten’s
Marter and Easterly may have been untruthful. The motion            testimony at trial, would be cumulative and merely
was supported by the unsworn statements of four prisoners,          impeachment evidence. See O’Dell, 805 F.2d at 640. Under
each indicating that Marter had stated in conversations with        these circumstances, the district court did not abuse its
them that he and Easterly were testifying in order to reduce        discretion in denying Hopper’s motion for a new trial.
their sentences and that Marter was willing to lie if necessary
to receive a reduction. On June 18, 2002, the district court          For the foregoing reasons, we AFFIRM the judgment of the
denied the motion finding that the evidence was only                district court.
impeachment evidence and that even if the testimony of
Marter were disbelieved, it “would not likely have produced
an acquittal.”
   A motion for a new trial based on newly-discovered
evidence should be granted when the defendant has
demonstrated that “(1) the new evidence was discovered after
trial; (2) the evidence could not have been discovered earlier
with diligence; (3) the evidence is material and not merely
cumulative or impeaching; and (4) the evidence would likely
produce an acquittal.” United States v. O’Dell, 805 F.2d 637,
640 (6th Cir. 1986). We review a district court’s decision to
grant or deny a motion for a new trial based upon newly
discovered evidence for an abuse of discretion. United States
v. Frost, 125 F.3d 346, 382 (6th Cir. 1997).
   The district court did not abuse its discretion in refusing to
grant Hopper’s motion for a new trial based upon newly
discovered evidence. Hopper has not demonstrated that the
“new” evidence was discovered only after trial and that it
could not have been discovered earlier with diligence.
Indeed, Hopper called one of these inmates, James Wooten,
whose statement was attached to his motion for a new trial, to
testify at his trial. Wooten testified to matters that form the
basis of Hopper’s newly-discovered evidence claim—Marter
told him that he was going to testify against Hopper to receive
a sentence reduction and indicated his willingness to lie in the
process. Even though the other inmates whose statements
were attached to Hopper’s motion for a new trial did not
testify at trial, Wooten’s testimony indicates that this
evidence was discoverable to Hopper through due diligence.
