United States of America v. Cody Wayne Hopkins

United States Court of Appeals
For the Eighth Circuit
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No. 23-2203
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United States of America
Plaintiff - Appellee
v.
Cody Wayne Hopkins
Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Western
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Submitted: February 15, 2024
Filed: April 4, 2024
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Before BENTON, GRASZ, and STRAS, Circuit Judges.
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BENTON, Circuit Judge.
After a jury trial, Cody Wayne Hopkins moved for a new trial, asserting
prosecutorial misconduct. The district court1 denied the motion. Hopkins appeals.
Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
1 The Honorable Jeffrey L. Viken, United States District Judge for the District
of South Dakota, now retired.

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I.
Hopkins was charged with one count of Attempted Enticement of a Minor
Using the Internet, in violation of 18 U.S.C. § 2422(b). He initiated conversations
with a government agent, “Lucy,” through a dating application. Lucy’s profile
showed she was 19 years old. In her first text message to him, Lucy said she was
“13 almost 14” and hoped he was “okay with that.” Hopkins replied, “Oh? Yeh. I’m
still ok with meeting you and spending time with you[.]” Lucy texted she was alone
for the next few days. Hopkins replied he would “come over whenever you’d like
then.” Lucy asked, “Does me being 13 years old bother you?” Hopkins replied,
“No, it doesn't bother me. As long as it stays between me and you. At least till your
old enough.” Twelve minutes later, Hopkins texted, “I like to go down and eat pussy.
I like to tease. And when I fuck, I like to switch it up. So I like all positions. I’m also
down for multiple rounds if youd like[.]” He added he was “on the bigger side” and
that “It might hurt a little in the very beginning but I’ll take my time. Then it’ll feel
really good.” He also asked if she was a virgin.
Lucy asked if he wanted to get a hotel. Hopkins said “yeh.” When she asked
whether he wanted to tell her the things he would like to try, he texted that he liked
it when the “girl is on top” and “letting me eat you out.” Hopkins told her he had a
hotel room for them and asked for her address. Lucy stated she did not want her
neighbors to see anything. She told Hopkins to pick her up at a nearby high school.
Hopkins stated he would be on his “bike” (a motorcycle) because he was from out
of town.
Hopkins pulled into the parking lot on his motorcycle, in an open leather
jacket, bare torso visible to his navel. Police arrested him and seized his phone.
Investigators found 66 text messages between Hopkins and the number used for
Lucy, including the two texts where Lucy told Hopkins she was 13. The text
messages all occurred over a two-and-a-half hour period.

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Immediately interrogated at a Homeland Security office, Hopkins admitted
Lucy told him she was 13. He claimed his intent was just to talk to her, to “take her
on the bike to somewhere around town just to talk,” and just wanted “to figure out
what’s wrong and I can’t do it over text messages because it’s too easy to just shut
your phone off.” Hopkins said he “was screwed,” but also that he was “just playing
along.” Asked, “Do you think it’s okay to talk like this to a child that’s 13 years old
the way that you did?” Hopkins replied, “No.” Asked if this was something he did
often, he said “No, I definitely went too far on this one.”
A.
At trial, Hopkins said he had not previously helped minors or met them online
or in-person (contrary to his comments in his interview with Homeland Security).
During direct examination, he stressed that when interrogated, he had been “going
on severe sleep deprivation.” During cross-examination, this colloquy occurred:
Hopkins: I’m saying in my interview I had been going on
severe sleep deprivation. I got confused with another
person I had met back home.
Prosecutor: You didn’t declare this severe sleep
deprivation to anybody when you were doing your
interview. Correct?
Hopkins: I did declare it, but it was not mentioned in the
reports.
Prosecutor: You declared it on the recording?
Hopkins: No.
In fact, apparently unknown to both counsel at trial, Hopkins did mention to
Homeland Security that he was sleep deprived, but they had agreed to redact part of
his interview from the transcript given to the jury.

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B.
The elements-of-offense instruction stated the elements for attempted
enticement of a minor using the internet. It required the prosecutor to prove that
Hopkins used his phone “to attempt to knowingly persuade, induce, entice, or coerce
an individual under the age of 18 to engage in sexual activity.” The instruction added
that “the government must prove that Mr. Hopkins intended to persuade or entice a
minor into engaging in illegal sexual activity.”
During closing argument, the prosecutor argued that the text messages showed
Hopkins attempted “to persuade, induce, entice, or coerce this child into meeting
with him for the purposes of sexual activity.” The prosecutor implied that Hopkins
was not credible. The prosecutor stressed, among other points, that Hopkins said on
the stand “for the first time” that he was sleep deprived. During rebuttal argument,
the prosecutor said Hopkins “confessed on the stand to exactly what it is we have to
prove, which is that he wanted to entice a minor.” The prosecutor also asserted that
Hopkins could be found guilty because he used “dirty talk” to “entice her to agree
to keep on talking to him and to meet him.” The prosecutor stated that the
government did not have to “prove that he was going to go through with sex,” and
the jury did not have to make that finding either.
Defense counsel then objected, for the only time during either argument: “It
appears that she’s stating that she only has to prove that he intended to entice her
and not entice her to engage in sexual activity.” The court sustained the objection.
The court instructed the jury that the objection was appropriate and elaborated:
Now ladies and gentlemen, the instructions are really
important. So they are the law in the case. You heard me
read them. Refer to them again. You heard them during the
deliberations.

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At the court’s direction, the prosecutor read a sentence from the elements-of-offense
instruction: “What the government must prove is that Mr. Hopkins intended to
persuade or entice a minor into engaging into illegal sexual activity.”
The prosecutor immediately added: “He admitted that to you. He said he
wanted to—he wanted to entice a sexually active person.” The prosecutor also
stated: “The bare-chested guy that showed up in Exhibit 6, clearly wanting to have
sex, clearly enticing to have sex, but we don’t even have to show that.” Further,
“either way he’s guilty. . . whether it’s the more likely scenario that he was there to
have sex with her and he enticed her into coming there, and they were set on the
mind—or rather there was an intent to have illegal sex.”
The jury found Hopkins guilty. Defense counsel moved for a new trial, which
the court denied. Hopkins appeals.
II.
Hopkins argues that the district court should have granted a new trial because
the prosecutor: (1) attacked his credibility based on untrue facts; (2) repeatedly
misstated the elements of the charged crime; and (3) denied him a fair trial by
cumulative prosecutorial misconduct.
A.
Hopkins argues that the prosecution improperly attacked his credibility based
on untrue facts. During cross-examination, the prosecution implied that he was
committing perjury when he said he had told the police he was sleep deprived.
During closing arguments, the prosecution said that the detective did not mention
sleep deprivation and told the jury “[y]ou can consider who you believe in that
situation.” Defense counsel did not object either time. Because Hopkins did in fact
tell a detective that he was sleep deprived, the parties believe this was a clear and
obvious error.

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“This court reviews unpreserved allegations of prosecutorial misconduct for
plain error.” United States v. Foreman, 588 F.3d 1159, 1164 (8th Cir. 2009). Plain
error review is governed by the four-part test. “[B]efore an appellate court can
correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3)
that affects substantial rights. If all three conditions are met, an appellate court may
then exercise its discretion to notice a forfeited error, but only if (4) the error
seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
United States v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en banc), quoting
Johnson v. United States, 520 U.S. 461, 466–67 (1997).
Even if the error here were clear, obvious, and not subject to reasonable
dispute, it did not affect Hopkins’s substantial rights. He argues it did because
credibility was critical to his case. Whether Hopkins told the detective about his
sleep deprivation was a minor part of the trial. The explicit text messages and
Hopkins’s confessions of the facts were overwhelming evidence of his guilt. See
United States v. Miller, 621 F.3d 723, 732–33 (8th Cir. 2010) (reversing conviction
where the objected-to evidence “may” have been sufficient, but “not
overwhelming,” and the timing of the district court’s overruling the objection right
before submission to the jury “likely eliminated the possibility that the jury remained
somehow immune to the potential prejudicial effect of the comments.”); United
States v. Beeks, 224 F.3d 741, 747 (8th Cir. 2000) (reversing conviction that was
substantially bolstered by the prosecutor’s questions, where the evidence was “not
strong” and not “overwhelming”). See generally United States v. Barrera, 628 F.3d
1004, 1009 (8th Cir. 2011) (holding that the evidence against defendant was
overwhelming, and that “even if either or both instances of alleged misconduct were
actually improper, such misconduct was unlikely to have affected the verdict.”);
United States v. Splain, 545 F.2d 1131, 1135–36 (8th Cir. 1976) (“The
overwhelming evidence of guilt in this case convinces us that the prosecutor’s
comment could not have prejudiced [the defendant] or affected the jury verdict.”).

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B.
Hopkins argues that during rebuttal closing argument, the prosecutor
repeatedly misstated the elements of the charged crime. “The district court enjoys
broad discretion in controlling closing arguments” and this court “will overturn a
conviction only for a clear abuse of that discretion.” United States v. Beaman, 361
F.3d 1061, 1064 (8th Cir. 2004).
Opening the trial, the court instructed the jury that “[s]tatements, arguments,
questions and comments by lawyers . . . are not evidence.” See United States v.
Robinson, 110 F.3d 1320, 1326-27 (8th Cir. 1997) (this lawyer’s-arguments-are-
not-evidence instruction “served to alleviate any risk of prejudicial impact.”). Then,
following defense counsel’s objection, the district court reminded the jury that “the
instructions are really important.” It also noted that the objection was “appropriate,”
followed immediately by having the prosecutor clarify her argument. The
prosecutor then read verbatim the key sentence of the elements-of-offense
instruction to the jury. These curative steps reduced the risk of prejudice, including
for anything that may have happened later. See United States v. Golliher, 820 F.3d
979, 986 (8th Cir. 2016) (deeming the prosecutor’s statements “harmless in light of
the court’s correct instructions to the jury”).
Hopkins claims the prosecutor misstated the elements of the crime three times
after the sustained objection. The district court properly found that after the
sustained objection, the prosecutor did not misstate the elements of the crime.
Regardless, “[i]f an arguably improper statement made during closing argument is
not objected to by defense counsel, we will only reverse under exceptional
circumstances.” United States v. Mullins, 446 F.3d 750, 758 (8th Cir. 2006), citing
United States v. Eldridge, 984 F.2d 943, 947 (8th Cir. 1993). See United States v.
Poitra, 60 F.4th 1098, 1103 (8th Cir. 2023) (“Even if the closing were improper,”
“the strength of the evidence supporting the conviction indicates that the result at
trial would not have been different absent the prosecutor’s rebuttal comments.”);
United States v. Fenner, 600 F.3d 1014, 1024 (8th Cir. 2010) (defendant was not

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“deprived of a fair trial given the strength of the evidence against him” even
assuming the prosecutor advanced an “improper” theory of conviction during
closing argument); United States v. Bryant, 349 F.3d 1093, 1097 (8th Cir. 2003)
(“When strong evidence is presented against a defendant, minor missteps by the
prosecutor do not warrant a new trial.”).
Due to the overwhelming evidence of guilt and the curative actions the district
court took, this case does not present an exceptional circumstance.
C.
Hopkins concludes that the cumulative effect of prosecutorial misconduct
denied him a fair trial. “To obtain a reversal, he must show that the prosecutor made
improper remarks that prejudiced his rights in obtaining a fair trial.” United States
v. Marin, 31 F.4th 1049, 1054–55 (8th Cir. 2022), citing United States v. Crumley,
528 F.3d 1053, 1064 (8th Cir. 2008). “For prejudice, this court looks to (1) the
cumulative effect of the improprieties, (2) the strength of the evidence against the
defendant, and (3) whether the district court took any curative action.” Id., citing
United States v. Darden, 688 F.3d 382, 388 (8th Cir. 2012). Hopkins must
demonstrate “a reasonable probability that the outcome would have been different
absent the alleged error.” Darden, 688 F.3d at 389, quoting United States v. Herbst,
668 F.3d 580, 587 (8th Cir.2012).
Here, Hopkins overstates the significance of the prosecutor’s comments about
sleep deprivation and the prosecutor’s misstatement of the elements. Due to graphic
texts, Hopkins’s confessions, and the court’s acts, there is no reasonable probability
of a different outcome in this case. See United States v. Truax, 64 F.4th 963, 968
(8th Cir. 2023) (In an 18 U.S.C. § 2422(b) case, during rebuttal closing argument,
the prosecutor said defendant’s testimony was uncorroborated, not based on facts,
and his behavior while testifying was a “show” and “theatrics.” Held, “assuming
the argument was improper, there is no reasonable probability that [defendant]
would have been acquitted without the statements. Given the overwhelming

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evidence against [defendant], he cannot show the remarks were clearly injurious, or
that prejudice resulted.”)
The district court properly denied the motion for new trial.
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The judgment is affirmed.
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