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Mark A. HOPKINSON

 
 
 
 
 

 

 

 

   
 
 
Classification: Murderer
Characteristics: Revenge - Murder for hire
Number of victims: 4
Date of murders: 1977 / 1979
Date of birth: October 8, 1949
Victims profile: Vincent Vehar, his wife Beverly and son John / Jeffrey Green
Method of murder: Explosives / Stabbing with knife
Location: Uinta County, Wyoming, USA
Status: Executed by lethal injection in Wyoming on January 22, 1992
 
 
 
 
 
 

Mark Hopkinson (October 8, 1949 - January 22, 1992) was a convicted murderer who was executed by the U.S. state of Wyoming in 1992 for the murders of Vincent Vehar, Beverly Vehar, John Vehar, and Jeffrey Green. He is the only person to have been subject to the death penalty in Wyoming since the 1960s.

Hopkinson was convicted of the 1977 bombing of Evanston attorney Vincent Vehar's house, an attack which killed Vehar, as well as his wife Beverly and son John. He was later accused of orchestrating the 1979 murder of Jeffrey Green while under arrest awaiting trial for Vehar's murder.

Although convicted for all four murders, Hopkinson steadfastly mainted his innocence up until his execution. Wyoming Governor Mike Sullivan refused to commute or pardon Hopkinson, despite petitions to do so by death penalty opponents, including Amnesty International.

Hopkinson was executed by lethal injection at the Wyoming State Penitentiary. His last meal was pizza, shared with his mother and other family. Hopkinson's last statement, still maintaining his non-involvement in the crime, was "They have killed an innocent man."

He chose not to allow witnesses at his execution, thus they were brought in afterwards to view his remains and ascertain the sentence had been carried out. Hopkinson was pronounced dead at 12:57 a.m. on the morning of January 22, 1992. His execution was the 159th carried out in the United States since the death penalty was reinstated in 1976.

  


 

Mark Hopkinson (October 8, 1949 - January 22, 1992) was a convicted murderer who was executed by the U.S. state of Wyoming in 1992 for the murders of Vincent Vehar, Beverly Vehar, John Vehar, and Jeffrey Green. He is the only person to have been subject to the death penalty in Wyoming since the 1960s.

The facts of this case present one of the most bizarre stories in the judicial history of the State of Wyoming. The complex and skillfully connected evidentiary chain of events began with the return of Mark Hopkinson to his native home in the Bridger Valley area of southwest Wyoming sometime in 1975.

He had earlier left the Valley after accepting a football scholarship to the University of Arizona. While away he was convicted on charges of delivering controlled substances in 1971. Shortly after his release from a federal prison, he reappeared in Wyoming.

Late in 1975, Mr. Hopkinson became embroiled in two legal disputes in which Vincent Vehar, an attorney, assumed something of an adversarial role. The first dispute arose between two families, the Hopkinsons and the Roitzes over water rights. In 1974, Joe Hopkinson, Mark's father, began doing ground work for a trailer court, in the process covering a ditch carrying water to the Roitzes. The Roitzes consulted Mr. Vehar and, as a result, filed a lawsuit against Joe Hopkinson. Shortly after a judgment was entered in the Roitzes' favor, Mark Hopkinson returned to the Valley. Mark not only assumed control over the development of the trailer court, but also sought to have that judgment reversed on appeal.

In April 1976, Mark visited the Roitzes and asked them if they, together without any attorneys, could work out a settlement. When the Roitzes refused, Mark warned them that he could construct the trailer court in such a manner as to inconvenience them greatly.

On May 6, 1976, Mark revisited the Roitzes and attacked 55-year-old Frank Roitz. After Mark was pulled away from Frank, Mark's father, Joe, armed with a hammer, arrived at the scene. The two men together then beat upon Frank Roitz. When the fracas was finally over, the Roitzes consulted with Mr. Vehar and decided to talk to the county attorney about pressing charges; however, the county attorney was Jim Phillips, who had been hired by Mark to appeal the original judgment. Mr. Phillips, acting in his official capacity, refused to file charges in the matter.

Meanwhile, another dispute pitting Hopkinson against Vehar had begun to brew. In 1975, Joe Hopkinson had approached the Fort Bridger Sewer and Water Board, a client of Mr. Vehar, to see if he could get his proposed trailer court annexed to the sewer district. He wished to connect to the district for the usual $100 charged as the initial hookup fee. Before any official action could be taken, the Board was presented with a petition, signed by 95 percent of the district's membership, seeking to raise the fee.

The Board conducted several public meetings in order to determine what it should charge to hook up the trailer court. After extensive negotiations between Mark's attorney, Mr. Phillips, and the District's attorney, Mr. Vehar, a contract was entered into on March 13, 1976, providing for the annexation of the Hopkinson property to the district and requiring the payment of a hookup fee of $ 300 per trailer.

Once the hookup had been completed, Mark announced that it was his intention not to pay the contract price. During the ensuing struggle in which the Board tried to force Mark to pay, various board members received threats from Mark. This resulted in the filing of a suit on January 28, 1977, by Mr. Vehar on behalf of the Board. The complaint filed not only sought to force Mark to pay the money due under the contract but also requested $50,000 in exemplary damages because of the threats made against the Board members.

During 1976, Mark first hired Jeff Green as a carpenter to work on various projects. Jeff in turn introduced Mark to his friends, Mike Hickey, an admitted alcoholic, and Jamey Hysell. Along with these friends, Jeff had engaged in several larcenies and burglaries in the area.

In June of 1976, Jamey Hysell was arrested for possession of marijuana as a result of a statement made to the authorities by Kelly Wyckhuyse, a fifteen-year-old girl with whom Jamey had spent a night at his place. In retaliation, Jamey plotted with Mike Hickey to murder her. In accordance with their plan Hickey picked Kelly up on June 27, 1976, and took her to an isolated spot in the country where he was to meet Hysell. Because Hickey had already informed Kelly of their plan to kill her, when Hysell failed to show, he struck her on the head with a rock, thus killing her. He then cut out her "privates" to take to Hysell as proof that the job was done and buried her remains.

Late in 1976, Mark Hopkinson first approached Harold James Taylor about "doing a job for him." During the course of their conversations, Hopkinson explained that the job involved working over a man in Evanston, Wyoming. An arrangement was made whereby in exchange for $200 Mr. Taylor agreed to perform the job. Hopkinson then offered Taylor photographs of Vincent Vehar, the intended victim, and explained that he was a lawyer who lived in Evanston. Before the job could be done, Mark came back to Taylor and stated that his people wanted Vincent Vehar killed. Taylor agreed to this but upped his price to $ 600; he received this money on December 19, 1976. Shortly thereafter Taylor announced that he would not murder Vincent Vehar.

In March or April of 1977, Mark had a conversation with Kenny Near, a past president of the Sewer Board. During their talk Mark offered Near about $ 2,000 for testimony that the Sewer Board was acting in a vindictive manner towards the Hopkinsons. However, Mr. Near refused the offer.

Mark Hopkinson then turned to Jeff Green and Mike Hickey for ideas as to how to get rid of Vincent Vehar. Several plans were suggested, but none of them were carried through. It was also during this time period that Mark Hopkinson first learned that Mike Hickey had the previous summer killed Kelly Wyckhuyse.

On April 4, 1977, Jeff Green was caught with a bomb in his possession when he was stopped in Utah for speeding while driving Mark Hopkinson's car. He was on his way to Arizona in order to plant the bomb in George Mariscal's car on behalf of Hopkinson. When Mark was informed of Green's plight, he drove to Utah with Hickey and bailed Green out. Hopkinson thereafter refused to further discuss his plans for Vincent Vehar with Jeff Green.

It was during the next four months that Hopkinson asked Mike Hickey about various ideas to either kill William Roitz or Vincent Vehar. Hopkinson promised Hickey $ 2,000 plus expenses and help in covering up the Wyckhuyse murder, if he would take care of one of these two men. Hopkinson and Hickey made several trips to various locations in the area in order to plan how the murder should be executed. Finally, by the end of July, Hopkinson had concluded that it was Vehar who should be killed and that the best way to do it was to toss a bomb through a basement window of the Vehar home.

Hopkinson received notice during the first week in August that he would be deposed by Vehar in connection with the sewer board's lawsuit on August 9, 1977. On Saturday, August 6, when Hopkinson saw Hickey at approximately 6:00 P.M., he ordered him to bomb the Vehar home that night. Hickey then went to the local bar where he stayed until approximately 1:30 A.M. He was then driven out into the country for a liaison with a woman whom he had met at the bar. Afterwards, he returned to the bar at approximately 2:30 A.M. in order to pick up his vehicle. Very drunk he drove home; once there, he discovered that the girl friend with whom he lived had not returned. He then finally decided to go do the job as Hopkinson had demanded.

He was seen by a highway patrolman who was investigating an accident on the Interstate heading toward Evanston, approximately 30 miles away, at 2:45 A.M. He arrived in Evanston and cased the Vehar home. After making sure it was safe, he threw the bomb in the basement window and departed. At approximately 3:35 A.M., the Vehar home exploded. On his way back to the Valley, Hickey picked up a hitchhiker. The hitchhiker testified that this must have occurred sometime between 3:30 and 4:00 A.M. Around 4:30 A.M., Hickey found his girl friend and they returned home.

After the Vehar bombing, Hopkinson decided it would be a good idea if he and Hickey were not seen together. As a result, Hickey saw very little of Hopkinson and was never paid the $ 2,000 that had been agreed upon.

Hickey visited California during the fall; while he was away things began to unravel. Jamey Hysell, at whose command Mike Hickey had killed Kelly Wyckhuyse, was questioned by the police about several larcenies. As leverage, he told them about Kelly's murder. Since Hickey had shown Hysell where the body was, Hysell was able to take authorities to the grave site where the body was found. Hysell also implicated Hickey and Green in several of the small burglaries. The police tracked Hickey down in California and asked him about his involvement in these matters. At the time he denied any connection whatsoever but promised to return to Wyoming shortly. After his arrival back in the state he was charged in the Wyckhuyse murder.

In order to save Hickey, Hopkinson came up with a plan whereby Hickey, Green and Hopkinson would all tell stories implicating Hysell. Eventually this led to the dropping of the murder charges against Hickey and the indictment of Hysell for the murder of Kelly Wyckhuyse. Nonetheless, Hickey did go to prison on burglary charges in the spring of 1978.

It was before and during Jamey Hysell's trial for the murder of Kelly Wyckhuyse in July of 1978 that Jeff Green broke down and decided to tell the truth. He first implicated Hopkinson and Hickey in the Vehar matter and then later, out of fear that Hysell may be put to death, confessed that his statements incriminating Hysell were lies, and that, in fact, Hickey had committed the murder. Green also expressed fears about the repercussions that might befall him as a result of his betrayal of Hopkinson. Green's testimony led to the dismissal of the charges against Hysell. The news of Green's testimony hit the newspapers shortly thereafter. It was at this time that Hopkinson promised Green's sister that he would get Jeff.

In March of 1979, Hopkinson and Hickey were tried in the United States District Court in Cheyenne on federal charges arising out of Green's April 1977 attempt to place a bomb in Mariscal's car. After Jeff Green had testified against him in the trial, Mark Hopkinson also promised Jennifer Larchick that he would get Jeff. As a result of the trial, Hopkinson, but not Hickey, was convicted, sentenced and confined to the federal minimum security facility in Lompoc, California.

At Lompoc Hopkinson had unlimited access to the telephone. Once there he began making numerous telephone calls. From April 8 to May 29, 1979, a period of 51 days, Hopkinson made a total of 114 calls. He called a former roommate from Salt Lake City, Hap Russell, in order to have him visit at Lompoc. According to Russell, during the resulting visit they conspired to suborn perjured testimony in connection with the Mariscal conviction; however, the State argued that in fact what was taking place was the planning of the murder of Jeff Green.

Hopkinson also telephoned Jennifer Larchick numerous times and begged her to send a photo of Jeff Green to Hap Russell. When Jennifer balked at this, Hap Russell came up to see Jennifer in order to convince her to send the photo. Finally she agreed and sent a photo cut from a high school yearbook to Russell on April 24, 1979. Jennifer did not again talk to Hopkinson until May 16.

Meanwhile Hap had contacted John Suesata, a man of an admittedly dubious reputation in Salt Lake City. During their meetings several thousand dollars changed hands.

Early in May of 1979 Hopkinson began phoning an ex-girl friend, Kristi King. After several phone calls, he asked her if she would be willing to hide some money in her bank account for him; to this she agreed.

On May 16 Mark called Jennifer Larchick and asked about Jeff Green's whereabouts. He called again on the 17th making the same inquiry. In the meantime, Jeff Green had gone to Iowa in order to attend the funeral of his grandmother. He and his mother returned the night of the 17th, and on the morning of the 18th he disappeared in the company of two men. Mark Hopkinson once again called Jennifer Larchick to inquire about Jeff Green on May 19th. On May 20, Jeff Green's mutilated body was found, two days before the scheduled opening of the grand jury's investigation into the Vehar bombing. Later in that day Mark Hopkinson made his last call to Jennifer. She advised him that Jeff was dead.

On May 21st, $ 15,000 turned up in Kristi King's bank account. The next day Kristi King received a phone call from someone who identified himself as Joe. He asked Kristi if she had received the $ 20,000 in her bank account yet and became upset when she said no. He then indicated that he would meet her at the airport in order to receive what she had gotten.

When Mark Hopkinson next called Kristi on the 25th of May, she demanded to know what was going on and told him she was going to send the money back to his mother; Mark replied, "No, send it back to Scott." Immediately after this Kristi sent Scott, Mark's brother, three cashier's checks for $ 5,000 each via registered mail.

Mike Hickey, when called to testify before the grand jury convened in Uinta County in the latter part of May, 1979, broke down and confessed not only to the Wyckhuyse killing but also to the Vehar bombing. In a plea bargain arrangement Hickey agreed to turn State's evidence against Mark Hopkinson in the Vehar case in return for a twenty-year sentence for the murder of Kelly Wyckhuyse.

Mark Hopkinson was then indicted for, among other crimes, the murders of the Vehars and Jeff Green, and brought to trial on September 3, 1979. The appellant elected to produce no evidence on his own behalf and rested at the close of the State's evidence after moving for a judgment of acquittal, which was overruled. After the jury returned their finding of guilt on all six charges, they were asked to deliberate as to whether the death penalty should be imposed on the four murder convictions. The jury returned a recommendation of life imprisonment for the three Vehar counts but death for the murder of Green. Bound by that recommendation, the district court sentenced Mark Hopkinson to two terms of seven and one-half to ten years imprisonment to be served consecutively for the conspiracy convictions, three consecutive terms of life imprisonment for the Vehar killings and to death for the Green murder.

Although convicted for all four murders, Hopkinson steadfastly mainted his innocence up until his execution. Wyoming Governor Mike Sullivan refused to commute or pardon Hopkinson, despite petitions to do so by death penalty opponents, including Amnesty International.

Hopkinson was executed by lethal injection at the Wyoming State Penitentiary. His last meal was pizza, shared with his mother and other family. Hopkinson's last statement, still maintaining his non-involvement in the crime, was "They have killed an innocent man." He chose not to allow witnesses at his execution, thus they were brought in afterwards to view his remains and ascertain the sentence had been carried out. Hopkinson was pronounced dead at 12:57 a.m. on the morning of January 22, 1992. His execution was the 159th carried out in the United States since the death penalty was reinstated in 1976.

References

  • Casper Star-Tribune Capital cases hard to defend March 20, 2004 Tara Westreicher

  • Hopkinson v. State, 632 P.2d 79 (1981)

  • Hopkinson v. State, 664 P.2d 43 (1983)

  • Hopkinson v. Shillinger, 645 F. Supp. 374, 1986

Wikipedia.org

 
 


 

Mark A. Hopkinson (October 8, 1949 January 22, 1992) was a convicted murderer who was executed by the U.S. state of Wyoming in 1992 for the murders of Vincent Vehar, Beverly Vehar, John Vehar, and Jeffrey Green. He is the only person to have been subject to the death penalty in Wyoming since the 1960s.

Background

The facts of this case present one of the most bizarre stories in the judicial history of Wyoming. The complex and skillfully connected evidentiary chain of events began with the return of Mark Hopkinson to his native home in the Bridger Valley area of southwest Wyoming sometime in 1975. He had earlier left the Valley after accepting a football scholarship to the University of Arizona. While away he was convicted on charges of delivering controlled substances in 1971. Shortly after his release from a federal prison, he reappeared in Wyoming.

Hopkinson-Roitzes dispute

Late in 1975, Hopkinson became embroiled in two legal disputes in which Vincent Vehar, an attorney, assumed something of an adversarial role. The first dispute arose between two families, the Hopkinsons and the Roitzes over water rights. In 1974, Joe Hopkinson, Mark's father, began doing ground work for a trailer court, in the process covering a ditch carrying water to the Roitzes. The Roitzes consulted Mr. Vehar and, as a result, filed a lawsuit against Joe Hopkinson. Shortly after a judgment was entered in the Roitzes' favor, Mark Hopkinson returned to the Valley. Mark not only assumed control over the development of the trailer court, but also sought to have that judgment reversed on appeal.

In April 1976, Mark visited the Roitzes and asked them if they, together without any attorneys, could work out a settlement. When the Roitzes refused, Mark warned them that he could construct the trailer court in such a manner as to inconvenience them greatly. On May 6, 1976, Mark revisited the Roitzes and attacked 55-year-old Frank Roitz. After Mark was pulled away from Frank, Mark's father, Joe, armed with a hammer, arrived at the scene. The two men together then beat Frank Roitz. When the fracas was finally over, the Roitzes consulted with Mr. Vehar and decided to talk to the county attorney about pressing charges; however, the county attorney was Jim Phillips, who had been hired by Mark to appeal the original judgment. Mr. Phillips, acting in his official capacity, refused to file charges in the matter.

Water Board dispute

Meanwhile, another dispute pitting Hopkinson against Vehar had begun to brew. In 1975, Joe Hopkinson had approached the Fort Bridger Sewer and Water Board, a client of Mr. Vehar, to see if he could get his proposed trailer court annexed to the sewer district. He wished to connect to the district for the usual $100 initial hookup fee. Before any official action could be taken, the Board was presented with a petition, signed by 95 percent of the district's membership, seeking to raise the fee. The Board conducted several public meetings in order to determine what it should charge to hook up the trailer court. After extensive negotiations between Mark's attorney, Mr. Phillips, and the District's attorney, Mr. Vehar, a contract was entered into on March 13, 1976, providing for the annexation of the Hopkinson property to the district and requiring the payment of a hookup fee of $300 per trailer.

Once the hookup had been completed, Mark announced that it was his intention not to pay the contract price. During the ensuing struggle in which the Board tried to force Mark to pay, various board members received threats from Mark. This resulted in the filing of a suit on January 28, 1977, by Mr. Vehar on behalf of the Board. The complaint filed not only sought to force Mark to pay the money due under the contract but also requested $50,000 in exemplary damages because of the threats made against the Board members.

During 1976, Mark first hired Jeff Green as a carpenter to work on various projects. Jeff in turn introduced Mark to his friends, Mike Hickey, an admitted alcoholic, and Jamey Hysell. Along with these friends, Jeff had engaged in several larcenies and burglaries in the area.

Murder of Kelly Wyckhuyse

In June 1976, Jamey Hysell was arrested for possession of marijuana as a result of a statement made to the authorities by Kelly Wyckhuyse, a fifteen-year-old girl with whom Jamey had spent a night at his place. In retaliation, Jamey plotted with Mike Hickey to murder her. In accordance with their plan Hickey picked Kelly up on June 27, 1976, and took her to an isolated spot in the country where he was to meet Hysell. Because Hickey had already informed Kelly of their plan to kill her, when Hysell failed to show, he struck her on the head with a rock, thus killing her. He then cut out her genitals to take to Hysell as proof that the job was done and buried her remains.

Earlier attempts

Late in 1976, Mark Hopkinson first approached Harold James Taylor about "doing a job for him." During the course of their conversations, Hopkinson explained that the job involved assaulting a man in Evanston, Wyoming. An arrangement was made whereby in exchange for $200 Taylor agreed to perform the job. Hopkinson then offered Taylor photographs of Vincent Vehar, the intended victim, and explained that he was a lawyer who lived in Evanston. Before the job could be done, Mark came back to Taylor and stated that his people wanted Vincent Vehar killed. Taylor agreed to this but upped his price to $600; he received this money on December 19, 1976. Shortly thereafter Taylor announced that he would not murder Vincent Vehar.

In March or April 1977, Mark had a conversation with Kenny Near, a past president of the Sewer Board. During their talk Mark offered Near about $2,000 for testimony that the Sewer Board was acting in a vindictive manner towards the Hopkinsons. However, Near refused the offer.

Mark Hopkinson then turned to Jeff Green and Mike Hickey for ideas as to how to get rid of Vincent Vehar. Several plans were suggested, but none of them were carried through. It was also during this time period that Mark Hopkinson first learned that Mike Hickey had the previous summer killed Kelly Wyckhuyse.

On April 4, 1977, Jeff Green was caught with a bomb in his possession when he was stopped in Utah for speeding while driving Mark Hopkinson's car. He was on his way to Arizona in order to plant the bomb in George Mariscal's car on behalf of Hopkinson. When Mark was informed of Green's plight, he drove to Utah with Hickey and bailed Green out. Hopkinson thereafter refused to further discuss his plans for Vincent Vehar with Jeff Green.

Planning

It was during the next four months that Hopkinson asked Mike Hickey about various ideas to either kill William Roitz or Vincent Vehar. Hopkinson promised Hickey $2,000 plus expenses and help in covering up the Wyckhuyse murder, if he would take care of one of these two men. Hopkinson and Hickey made several trips to various locations in the area in order to plan how the murder should be executed. Finally, by the end of July, Hopkinson had concluded that it was Vehar who should be killed and that the best way to do it was to toss a bomb through a basement window of the Vehar home.

Hopkinson received notice during the first week in August that he would be deposed by Vehar in connection with the Sewer Board's lawsuit on August 9, 1977. On Saturday, August 6, when Hopkinson saw Hickey at approximately 6:00 P.M., he ordered him to bomb the Vehar home that night. Hickey then went to the local bar where he stayed until approximately 1:30 a.m. He was then driven out into the country for a liaison with a woman whom he had met at the bar. Afterwards, he returned to the bar at approximately 2:30 A.M. in order to pick up his vehicle. Very drunk he drove home; once there, he discovered that the girl friend with whom he lived had not returned. He then finally decided to go do the job as Hopkinson had demanded.

The murder of the Vehars

He was seen by a highway patrolman who was investigating an accident on the Interstate heading toward Evanston, approximately 30 miles (50 km) away, at 2:45 a.m. He arrived in Evanston and examined the Vehar home. After making sure it was safe, he threw the bomb in the basement window and departed. At approximately 3:35 a.m., the Vehar home exploded. On his way back to the Valley, Hickey picked up a hitchhiker. The hitchhiker testified that this must have occurred sometime between 3:30 and 4:00 a.m. Around 4:30 a.m., Hickey found his girl friend and they returned home.

After the Vehar bombing, Hopkinson decided it would be a good idea if he and Hickey were not seen together. As a result, Hickey saw very little of Hopkinson and was never paid the $2,000 that had been agreed upon.

Arrests

Hickey visited California during the fall; while he was away things began to unravel. Jamey Hysell, at whose command Mike Hickey had killed Kelly Wyckhuyse, was questioned by the police about several larcenies. As leverage, he told them about Kelly's murder. Since Hickey had shown Hysell where the body was, Hysell was able to take authorities to the grave site where the body was found. Hysell also implicated Hickey and Green in several of the small burglaries. The police tracked Hickey down in California and asked him about his involvement in these matters. At the time he denied any connection whatsoever but promised to return to Wyoming shortly. After his arrival back in the state he was charged in the Wyckhuyse murder.

In order to save Hickey, Hopkinson came up with a plan whereby Hickey, Green and Hopkinson would all tell stories implicating Hysell. Eventually this led to the dropping of the murder charges against Hickey and the indictment of Hysell for the murder of Kelly Wyckhuyse. Nonetheless, Hickey did go to prison on burglary charges in the spring of 1978.

It was before and during Jamey Hysell's trial for the murder of Kelly Wyckhuyse in July 1978 that Jeff Green broke down and decided to tell the truth. He first implicated Hopkinson and Hickey in the Vehar matter and then later, out of fear that Hysell may be put to death, confessed that his statements incriminating Hysell were lies, and that, in fact, Hickey had committed the murder. Green also expressed fears about the repercussions that might befall him as a result of his betrayal of Hopkinson. Green's testimony led to the dismissal of the charges against Hysell. The news of Green's testimony hit the newspapers shortly thereafter. It was at this time that Hopkinson promised Green's sister that he would get Jeff.

Vehar trial

In March 1979, Hopkinson and Hickey were tried in the United States District Court in Cheyenne on federal charges arising out of Green's April 1977 attempt to place a bomb in Mariscal's car. After Jeff Green had testified against him in the trial, Mark Hopkinson also promised Jennifer Larchick that he would get Jeff. As a result of the trial, Hopkinson, but not Hickey, was convicted, sentenced and confined to the federal minimum security facility in Lompoc, California.

Murder of Jeff Green

At Lompoc Hopkinson had unlimited access to the telephone. Once there he began making numerous telephone calls. From April 8 to May 29, 1979, a period of 51 days, Hopkinson made a total of 114 calls. He called a former roommate from Salt Lake City, Hap Russell, in order to have him visit at Lompoc. According to Russell, during the resulting visit they conspired to suborn perjured testimony in connection with the Mariscal conviction; however, the State argued that in fact what was taking place was the planning of the murder of Jeff Green.

Hopkinson also telephoned Jennifer Larchick numerous times and begged her to send a photo of Jeff Green to Hap Russell. When Jennifer balked at this, Hap Russell came up to see Jennifer in order to convince her to send the photo. Finally she agreed and sent a photo cut from a high school yearbook to Russell on April 24, 1979. Jennifer did not again talk to Hopkinson until May 16.

Meanwhile Hap had contacted John Suesata, a man of an admittedly dubious reputation in Salt Lake City. During their meetings several thousand dollars changed hands.

Early in May 1979 Hopkinson began phoning an ex-girl friend, Kristi King. After several phone calls, he asked her if she would be willing to hide some money in her bank account for him; to this she agreed.

On May 16 Mark called Jennifer Larchick and asked about Jeff Green's whereabouts. He called again on the 17th making the same inquiry. In the meantime, Jeff Green had gone to Iowa in order to attend the funeral of his grandmother. He and his mother returned the night of the 17th, and on the morning of the 18th he disappeared in the company of two men. Mark Hopkinson once again called Jennifer Larchick to inquire about Jeff Green on May 19. On May 20, Jeff Green's mutilated body was found, two days before the scheduled opening of the grand jury's investigation into the Vehar bombing. Later in that day Mark Hopkinson made his last call to Jennifer. She advised him that Jeff was dead.

On May 21, $15,000 turned up in Kristi King's bank account. The next day Kristi King received a phone call from someone who identified himself as Joe. He asked Kristi if she had received the $20,000 in her bank account yet and became upset when she said no. He then indicated that he would meet her at the airport in order to receive what she had received.

When Mark Hopkinson next called Kristi on the 25 May, she demanded to know what was going on and told him she was going to send the money back to his mother; Mark replied, "No, send it back to Scott." Immediately after this Kristi sent Scott, Mark's brother, three cashier's checks for $5,000 each via registered mail.

Mike Hickey, when called to testify before the grand jury convened in Uinta County in the latter part of May, 1979, broke down and confessed not only to the Wyckhuyse killing but also to the Vehar bombing. In a plea bargain arrangement Hickey agreed to turn State's evidence against Mark Hopkinson in the Vehar case in return for a twenty-year sentence for the murder of Kelly Wyckhuyse.

Green trial

Mark Hopkinson was then indicted for, among other crimes, the murders of the Vehars and Jeff Green, and brought to trial on September 3, 1979. The appellant elected to produce no evidence on his own behalf and rested at the close of the State's evidence after moving for a judgment of acquittal, which was overruled. After the jury returned their finding of guilt on all six charges, they were asked to deliberate as to whether the death penalty should be imposed on the four murder convictions. The jury returned a recommendation of life imprisonment for the three Vehar counts but death for the murder of Green. Bound by that recommendation, the district court sentenced Mark Hopkinson to two terms of seven and one-half to ten years imprisonment to be served consecutively for the conspiracy convictions, three consecutive terms of life imprisonment for the Vehar killings and to death for the Green death.

Execution

Although convicted for all four murders, Hopkinson steadfastly mainted his innocence up until his execution. Wyoming Governor Mike Sullivan refused to commute or pardon Hopkinson, despite petitions to do so by death penalty opponents, including Amnesty International.

Hopkinson was executed by lethal injection at the Wyoming State Penitentiary. His last meal was pizza, shared with his mother and other family. Hopkinson's last statement, still maintaining his non-involvement in the crime, was "They have killed an innocent man." He chose not to allow witnesses at his execution. Witnesses were brought in afterwards to view his remains and ascertain that the sentence had been carried out. Hopkinson was pronounced dead at 12:57 a.m. on the morning of January 22, 1992. His execution was the 159th carried out in the United States since the death penalty was reinstated in 1976.

 
 

631 F.2d 665

UNITED STATES of America, Plaintiff-Appellee,
v.
Mark A. HOPKINSON, Defendant-Appellant.

No. 79-1403.

United States Court of Appeals,
Tenth Circuit.

Argued July 10, 1980.
Decided Sept. 4, 1980.

Before McWILLIAMS, BREITENSTEIN and SEYMOUR, Circuit Judges.

BREITENSTEIN, Circuit Judge.

Defendant-appellant Hopkinson was indicted jointly with Michael Hickey for various offenses relating to an explosive bomb. Count I charged transportation in violation of 18 U.S.C. 844(d) and 844(a). Count II charged possession in violation of 26 U.S.C. 5861(d) and 5871. Count III charged concealment in violation of 18 U.S.C. 842(h) and 844(a). Count IV charged making in violation of 26 U.S.C. 5861(f) and 5871. Count V charged possession in violation of 26 U.S.C. 5861(i) and 5871. Count VI charged conspiracy in violation of 18 U.S.C. 371. Hopkinson was convicted, and Hickey acquitted, on all six counts. Hopkinson appeals and we affirm.

An unindicted conspirator, and government witness, Jeff Green was arrested on April 4, 1977, in Utah by a state officer for speeding. He was driving Hopkinson's car. The officer noticed on the floor of the back seat a box from which an orange fuse was protruding. Green denied knowledge of the box and volunteered to open it. In the box were two sticks of dynamite taped together, a detonator cap attached to one stick, and three or four coils of fuse. The officer arrested Green and took him to the Coalville County jail. The local justice of the peace fixed bail for Green at $10,000. Green called Hopkinson and told him that he, Green, was in jail for speeding.

On the next day Hopkinson and Hickey came to Utah and deposited $2,000 cash bail for Green. Subsequently Green pleaded guilty to possession of a concealed weapon and paid, out of the bail deposit, a $250 fine.

The government traced the dynamite to the Schreiner ranch from which it was stolen, together with some fuse and detonators, sometime between August and October 1976. Government witness Stoddard testified that in late August Hickey and Jamie Hysell came to her home in Mountain View, Wyoming with some dynamite, fuse and blasting caps. Both she and Green told about later experiments and pranks with dynamite.

The participants in the various events detailed in the record resided in isolated communities of an area in southwestern Wyoming known as Bridger Valley. The population centers are five to ten miles apart. Hopkinson's family had lived in Bridger Valley for many years and was engaged in ranching and construction. Hopkinson managed a store in Urie, Wyoming. Government witnesses Lacey and Green testified that Hopkinson claimed that one Mariscal, of Phoenix, Arizona, owed him, Hopkinson, money. Green said that at the request of Hopkinson he telephoned the Mariscal residence in Phoenix to demand payment. He and Hopkinson discussed means of intimidating Mariscal to secure payment.

Hopkinson, Hickey and Green were present when a dynamite bomb was made at Hopkinson's residence. Hopkinson asked Green to take the bomb to Phoenix and blow up Mariscal's car. Green was to receive $2,000 from the money which Hopkinson hoped to get from Mariscal. The plan failed because of the speeding arrest of Green. The dynamite in the bomb was from that which had been stolen from the Schreiner ranch. Two government experts identified a finger print on the box containing the bomb as that of Hopkinson. Ink marks on the box were identified by experts as the same as that of a pen used by a live-in girl friend of Hopkinson. Hopkinson did not testify at the trial.

The record discloses an aura of violence pervading the Wyoming area where various events related to the defendants and the witnesses. A bomb explosion, which killed three persons, and a separate murder had occurred. Considerable publicity had resulted from these events. The trial court, and the lawyers, were concerned with the possibility of prejudice to the defendants by any reference to the violence. Extreme caution was taken to protect the parties from any prejudice which might arise from acts unconnected with the specific offenses for which the defendants were tried.

Hopkinson claims that the trial court impermissibly limited the scope of voir dire examination of prospective jurors. In this regard consideration must be given to the mentioned background of violence and to the defense claim that government witness Green was not worthy of belief. The special prosecutor in the case was an associate in law practice with a Wyoming lawyer who was engaged as a special prosecutor in a state case arising from the violence unconnected with the instant case.

The boundaries of voir dire are within the discretion of the trial court. Rule 24, F.R.Crim.P. and United States v. Polk, 10 Cir., 550 F.2d 1265, 1267, cert. denied 434 U.S. 838, 98 S.Ct. 129, 54 L.Ed.2d 100. This discretion will not be disturbed unless the voir dire was inadequate to test properly the qualifications of the prospective jurors. The court need not ask requested questions which are argumentative or cumulative. United States v. Evans, 10 Cir., 542 F.2d 805, 813, cert. denied 429 U.S. 1101, 97 S.Ct. 1124, 51 L.Ed.2d 550. The case at bar is devoid of any racial overtones.

The trial court handled a difficult situation very well. Its questions were adequate to test qualifications without the intrusion of matters related to other offenses. See United States v. Polizzi, 9 Cir., 500 F.2d 856, 880, citing Beck v. Washington, 369 U.S. 541, 548, 82 S.Ct. 955, 959, 8 L.Ed.2d 98. The identity of, and the jurors knowledge of, the lawyers and their associates were sufficiently presented. Defense counsel pledged to do everything possible to keep the other offenses out of the trial. He may not now complain of the court's refusal to ask questions related to events for which the defendant was not on trial. The jury was fairly selected.

Defendant made a timely motion for severance which was denied. His claim was that in a joint trial he could not impeach witness Green with inconsistent statements allegedly relating to co-defendant Hickey and another crime of violence. The position of the defendant is that although he desired no reference to the other crimes, he wished to use alleged statements of Green with reference to one of those crimes in order to discredit Green. The positions are inconsistent.

The severance motion was made and considered in limine. The joinder of the defendants was proper under Rule 8(b), F.R.Crim.P. That rule is construed broadly to allow liberal joinder to enhance the efficiency of the judicial system. United States v. Isaacs, 7 Cir., 493 F.2d 1124, 1158, cert. denied 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146. The grant of a severance lies in the sound discretion of the trial court and a defendant has a heavy burden to show prejudice by the joinder. United States v. Smaldone, 10 Cir., 485 F.2d 1333, 1345, cert. denied 416 U.S. 936, 951, 94 S.Ct. 1934, 1960, 40 L.Ed.2d 286, 301. See also United States v. Parnell, 10 Cir., 581 F.2d 1374, 1383, cert. denied 439 U.S. 1076, 99 S.Ct. 852, 59 L.Ed.2d 44. Defendant has not carried that burden. Defendant is not helped by reference to Rule 14 relating to relief from a prejudicial joinder. Denial of Rule 14 relief is within the discretion of the trial court and reviewable only for abuse of discretion or plain error affecting substantial rights. United States v. Isaacs, 493 F.2d at 1159. The argument that a separate trial might give the defendant a better chance of acquittal does not suffice to sustain the defendant's burden of showing prejudice. United States v. Parnell, 581 F.2d at 1383, and United States v. Isaacs, 493 F.2d at 1160. Defendant was given full opportunity to discredit witness Green. The trial court properly denied the request for severance.

Defendant argues that the convictions of all six counts must be reversed because of inconsistency with the verdicts acquitting his co-defendant on all counts. The character and quality of the defenses of Hopkinson and Hickey were so different that the jury had a reasonable basis for return of different verdicts. Hopkinson had a motive and the testimony of experts connected him with the destructive device. No motivation is shown for Hickey and he had an alibi which, if believed, contradicted important parts of the government evidence. In any event, consistency in verdicts is not required. Hamling v. United States, 418 U.S. 87, 101, 94 S.Ct. 2887, 2899, 41 L.Ed.2d 590. See also United States v. Beitscher, 10 Cir., 467 F.2d 269, 274.

The argument that the acquittal of co-conspirator Hickey on the conspiracy count precludes conviction of Hopkinson on that count is of no avail. The principle that one may not conspire with himself is of no materiality. Green was named as an unindicted co-conspirator. Green testified that he and Hopkinson acted in concert to make and transport the bomb. Accordingly, the acquittal of Hickey is immaterial. United States v. Sparrow, 10 Cir., 470 F.2d 885, 888, cert. denied 411 U.S. 936, 93 S.Ct. 1913, 36 L.Ed.2d 397.

Defendant's attack on the sufficiency of the evidence emphasizes the unreliability of the testimony of witness Green. Although Green's credibility was vigorously assailed, the jury must have believed his testimony implicating Hopkinson. Ample corroboration for important aspects of Green's testimony was supplied by other witnesses, including the government's experts. The credibility of witnesses is not for our consideration. United States v. Weiss, 10 Cir., 431 F.2d 1402, 1407. We examine the proof sustaining the conviction in the light most favorable to the government to determine whether substantial evidence, together with reasonable inferences therefrom, suffices to support the conviction. United States v. Swallow, 10 Cir., 511 F.2d 514, 517. Hopkinson had a fair trial and the record sustains the jury verdict.

Affirmed.

 
 

767 F.2d 705

UNITED STATES of America, Plaintiff-Appellee,
v.
Michael J. HICKEY, Defendant,
Mark A. Hopkinson, Appellant.

No. 84-1847.

United States Court of Appeals,
Tenth Circuit.

July 11, 1985.

Before McKAY and SETH, Circuit Judges, and WEINSHIENK, District Judge*.

SETH, Circuit Judge.

The question presented for decision is whether the common law right of access to court records extends to the sealed plea bargain of a criminal defendant now enrolled in the witness protection program of the United States Marshal's Service.

Mark A. Hopkinson brings this appeal from an order of the United States District Court for the District of Wyoming denying him access to the court file of one Michael J. Hickey. The file contains the details of Mr. Hickey's plea bargain on federal charges stemming from a bombing incident. The court sealed the file at the request of the United States Attorney in order to safeguard its contents from disclosure. The appellant asserted that inspection was necessary to determine whether the file contained any exculpatory information, citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. However, the appellant made no allegation of prosecutorial misconduct or the purposeful suppression of material evidence. The motion, seeking review of "all pertinent information" touching on Mark Hopkinson's conviction, was couched in general terms. The government resisted the motion on the grounds that the file might reveal Mr. Hickey's present location. Any such revelation could be potentially dangerous to Mr. Hickey in light of the fact that the appellant is presently under a sentence of death for orchestrating the murder of a witness against him. The appellant masterminded that crime while imprisoned in a federal facility in California. The trial court concluded that the government had a "serious and fundamental interest in maintaining the records under seal." The court reviewed the file and determined it contained only administrative matters. The court found nothing "relevant" to the appellant's case.

The facts underlying the appellant's convictions in state court are particularly heinous. The history of the case is recited exhaustively in the various decisions of the Wyoming Supreme Court dealing with the direct and collateral appeals. See generally Hopkinson v. State, 632 P.2d 79 (Wyo.) (Hopkinson I ); Hopkinson v. State, 664 P.2d 43 (Wyo.) (Hopkinson II ); Hopkinson v. State, 679 P.2d 1008 (Wyo.) (Hopkinson III ). However, a brief review of the genesis of the Hopkinson case is important in assessing the propriety of the exercise of the trial court's discretion.

Beginning in 1975, the appellant developed an intense animosity towards Vincent Vehar, an attorney representing parties embroiled in civil litigation against the appellant's family. The appellant plotted with two friends, Michael Hickey and Jeff Green, to kill Vincent Vehar. During this planning phase, the appellant dispatched Jeff Green to Arizona to bomb the car of one of the appellant's debtors. The mission was abortive; Mr. Green was stopped in Utah for speeding and the bomb was discovered. The appellant and Michael Hickey bailed Mr. Green out of jail. At this point Jeff Green was dropped from the discussions concerning the Vehar killing.

The appellant knew that Michael Hickey had killed a 15-year-old girl named Kelly Wyckhuyse. He offered Mr. Hickey $2,000 and his assistance in covering up the Wyckhuyse murder if he would kill Vincent Vehar. On August 6, 1977, the appellant "ordered Hickey to blow up the Vehar home that night; Hickey did. Vehar, his wife and one son were killed by the explosion--another son was seriously injured." Hopkinson II, 664 P.2d at 49. Michael Hickey then left for California.

An accomplice in the Wyckhuyse murder implicated Michael Hickey for that crime. He was charged with murder. Michael Hickey, the appellant, and Jeff Green conspired together to protect Mr. Hickey; they concocted stories which implicated the accomplice rather than Michael Hickey. The charges against him were dropped, and the accomplice was charged. During the accomplice's trial, Jeff Green broke down. He implicated the appellant and Michael Hickey in the Vehar bombing and stated that Michael Hickey killed the Wyckhuyse girl.

The appellant and Michael Hickey were tried in the United States District Court in Wyoming in March 1979 on federal charges stemming from the attempted Arizona bombing. Jeff Green testified as an unindicted coconspirator against the appellant. Michael Hickey was acquitted. The appellant was convicted and sentenced to prison at the Lompoc, California facility. This court affirmed the conviction. See United States v. Hopkinson, 631 F.2d 665 (10th Cir.).

While at Lompoc, the appellant directed unknown parties to kill Jeff Green. His mutilated body was discovered shortly before the opening of the grand jury investigation into the Vehar deaths. Hopkinson II, 664 P.2d at 50.

Michael Hickey entered into two distinct plea bargain arrangements. In exchange for pleading guilty to second degree murder in the Wyckhuyse case and testifying on the appellant's role in the Vehar bombing, Michael Hickey received complete immunity from prosecution in the Vehar deaths in the state court proceedings. Michael Hickey received a 20-year sentence for the Wyckhuyse murder. This sentence ran concurrently with a 20-year sentence later imposed in federal court for setting the explosion that maimed the surviving Vehar son. The federal sentence resulted from a separate plea bargain arrangement. There is no doubt that the contents of the state court plea bargain were known. The agreement was read into the record at the penalty hearing after the remand in Hopkinson I. See Hopkinson II, 664 P.2d at 62, 63. There is also no doubt that at least the general terms of the federal plea bargain were known. See Hopkinson I, 632 P.2d at 105 n. 13.

The appellant was convicted of the murder of Jeff Green and received the death sentence. The appellant also was convicted of the Vehar murders and received three sentences of imprisonment for life. Because the appellant repeatedly asserts that Michael Hickey was the "key" witness against him, it should be pointed out that Mr. Hickey's testimony only concerned the Vehar killings. The case against the appellant for the murder of Jeff Green was based on circumstantial evidence arising out of the appellant's actions while incarcerated at Lompoc. Michael Hickey was an important witness in the Vehar prosecution. However, he was not at all a "key" witness in the aspect of the case for which the appellant was sentenced to death, namely, the Green assassination. Hence any alleged improprieties in the federal plea bargain would only have significance for the Vehar convictions.

The appellant essentially makes three arguments. First, he contends that the common law right of access to court records requires the production of Michael Hickey's file. Secondly, the appellant asserts the trial court erred in not allowing a hearing on his motion. Finally, the appellant argues that his Brady request, in the context of his pending death sentence, compels full access to the sealed file. We reject all three arguments and therefore affirm the decision of the trial court.

We begin by acknowledging the axiom that a common law right exists to inspect and copy judicial records. See, e.g., In re Knight Publishing Company, 743 F.2d 231, 235 (4th Cir.); In re National Broadcasting Company, Inc., 653 F.2d 609, 612 (D.C.Cir.). The right is an important aspect of the overriding concern with preserving the integrity of the law enforcement and judicial processes. United States v. Hubbard, 650 F.2d 293, 315 (D.C.Cir.). However, the right is not absolute. All courts have supervisory powers over their own records and files. Nixon v. Warner Communications, Inc., 435 U.S. 589, 598, 98 S.Ct. 1306, 1312, 55 L.Ed.2d 570; Crystal Grower's Corporation v. Dobbins, 616 F.2d 458, 461 (10th Cir.). Thus a court, in its discretion, may seal documents "if the public's right of access is outweighed by competing interests." In re Knight Publishing Company, 743 F.2d at 235. The Supreme Court discussed a number of the traditional exceptions to the general rule of access in the Nixon case. There the Court stated:

"[A]ccess has been denied where court files might have become a vehicle for improper purposes. For example, the common-law right of inspection has bowed before the power of a court to insure that its records are not 'used to gratify private spite or promote public scandal' through the publication of 'the painful and sometimes disgusting details of a divorce case.' Similarly, courts have refused to permit their files to serve as reservoirs of libelous statements for press consumption, or as sources of business information that might harm a litigant's competitive standing."

Nixon v. Warner Communications, Inc., 435 U.S. at 598, 98 S.Ct. at 1312 (citations omitted). The Court pointed out that because the analysis of the question of limiting access is necessarily fact-bound, there can be no comprehensive formula for decisionmaking. Id. at 599, 98 S.Ct. at 1312. "[T]he decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case." Id. Thus the trial court in the present case had the supervisory power to act as it did. The question remains whether the court abused its discretion in foreclosing access to the details of Mr. Hickey's plea bargain.

The trial court's discretion is not unlimited. In re National Broadcasting Company, Inc., 653 F.2d at 613. The court must consider the relevant facts and circumstances of the particular case and weigh the relative interests of the parties. In our view the trial court adequately considered these factors. The court was well aware of the appellant's propensity for violence and his ability to commit criminal acts from within the confines of prison. Mr. Hickey's future safety could depend on his continued anonymity in the witness protection program. Accordingly, we agree that the government's interest in denying access to the file was compelling. This interest, absent any countervailing considerations, is sufficient to justify the exercise of the court's discretionary authority.

It is clear the court did weigh the interests of the appellant in making its decision. The court conducted an in camera inspection of the file to determine whether it contained any material relevant to the appellant's defense. The court concluded the file held nothing of value for the appellant. Hence there were no countervailing interests sufficient to overcome the showing made by the government or requiring the production of the file in the interests of justice. The appellant's generalized claim that the file might contain helpful matter does not outweigh the government's justifiable concern with safety. In light of the circumstances surrounding the case, the in camera examination was justified. We find no indication that the trial court abused its discretion by failing to adequately evaluate the interests of the parties.

From the record as outlined in the state court decisions it appears that at least the basic form of the federal plea bargain was known to the appellant, the jury, and the public from the time of the first trial. See Hopkinson I, 632 P.2d at 105, 108; Hopkinson II, 664 P.2d at 50. The jury knew a federal plea bargain existed, and that testimony was given in exchange for a 20-year sentence on a lesser charge in the Vehar matter. If the common law right of access were absolute, as the appellant contends, the efficacy of the witness protection program would be substantially at risk.

The appellant alludes to an argument that there is a constitutional right of access to court files and documents stemming from the First and Sixth Amendments. In support of this proposition the appellant resorts to Press-Enterprise Company v. Superior Court of California, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629, and Waller v. Georgia, --- U.S. ----, 104 S.Ct. 2210, 81 L.Ed.2d 31. These cases do not purport to decide the constitutional dimensions, if any, of the question before us. On the contrary, the cases deal with the general issue of closed pretrial and trial proceedings. Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, remains the only decision by the Supreme Court directly dealing with the more narrow issue of access to court files. There the Court rejected the broadcasters' claim that release of the Watergate tapes was mandated by the First Amendment guarantees of free speech and press or the Sixth Amendment guarantee of a public trial. See Nixon v. Warner Communications, Inc., 435 U.S. at 608-10, 98 S.Ct. at 1317-18. The recent decisions of the Court dealing with a limited First Amendment right of the public and press to attend trial proceedings have neither expressly nor sub silentio overruled or questioned Nixon. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 n. 18, 100 S.Ct. 2814, 2830 n. 18, 65 L.Ed.2d 973.

The appellant next contends he was entitled to a formal hearing on his motion to produce the sealed court file. No rule, statute, or case law is offered in support of this contention. Under the Federal Rules of Criminal Procedure the trial court has the discretion to grant or deny a hearing on this type of motion. See, e.g., Fed.R.Crim.P. 47, 57(b). We conclude there was no abuse of discretion in the court's denial of a formal hearing.

Finally, the appellant argues that production of the file is required by the decision in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. Appellant's reliance on Brady is misplaced. It is unclear whether the appellant properly presented a Brady request. Normally, the criminal defendant makes a request for Brady material, that is, exculpatory material, during the discovery phase prior to trial. The request is directed towards the prosecution. The litigable issue arising out of Brady disputes is usually premised on the defendant's assertion that the prosecutor withheld or suppressed evidence favorable to the accused that came to light after trial. Here we are confronted with a situation where the defendant makes a Brady request after trial and conviction. The request is directed to the United States District Court rather than the prosecutor. The request seeks information from the court file of another defendant, not the movant's own file. Further, there is no allegation in the motion of any prosecutorial misconduct. Rather, invoking Brady, the appellant simply sought "any material that is exculpatory in nature." It is apparent, therefore, that a Brady request brought in this posture is defective.

Even assuming that a Brady request was properly made, the argument must fail. We must conclude that the appellant made only a general Brady request. The language of the request comports with the terms of other requests that have been characterized as general. See e.g., Chaney v. Brown, 730 F.2d 1334, 1342 n. 11 (10th Cir.). Because the request falls within the ambit of United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342, constitutional error exists only if the suppressed evidence creates a reasonable doubt as to the appellant's guilt that did not otherwise exist.

There is nothing in the plea bargain to raise a reasonable doubt as to guilt or punishment that did not otherwise exist. As mentioned, the jury knew that Michael Hickey testified under both state and federal plea bargains. The exact terms of the state plea bargain were known. The general terms of the federal plea bargain were known as well. The jury knew that Michael Hickey had committed despicable crimes and had perjured himself before. Obviously his credibility was put in issue. His testimony was corroborated, however, by other witnesses. The prosecutor's case against the appellant for the murder of Jeff Green was entirely circumstantial and did not depend on Michael Hickey. Mr. Hickey was extensively cross-examined. Thus the plea bargain could not create a reasonable doubt as to the question of guilt or punishment because its basic substance was known. The contents of the closed file merely indicated Michael Hickey agreed to fully cooperate in exchange for a finite sentence on a lesser federal explosives charge and immunity for the Vehar deaths. This the jury already knew or could clearly infer from the testimony. The jury was sufficiently apprised of the deals under which Mr. Hickey testified.

Finally, this case is clearly distinguishable from our decision in Chaney v. Brown, 730 F.2d 1334. There we held that where a criminal defendant made a specific Brady request, the failure to disclose the requested information could have affected the jury's decision to impose the death penalty. Thus the death penalty could not stand. The reason why the information might have affected the jury's sentence was because the evidence related to possible mitigating factors. It was possible the defendant may not have personally killed the victims or that he was not present at the killings. Id. at 1351. The evidence also was relevant to aggravating circumstances that originally supported the jury's imposition of the death penalty.

In the present case, however, the details of the federal plea bargain have absolutely no bearing on mitigating or aggravating circumstances surrounding the jury's choice of the death penalty. As discussed, the details of the state plea bargain were known to the jury. The evidence was clear that the appellant was not present at either the Vehar killings or the torture-murder of Jeff Green. The situation presented in Chaney was fundamentally different. The federal plea bargain had no connection with aggravating or mitigating circumstances surrounding the choice of punishment. Chaney is inapposite. We have considered the several opinions in United States v. Bagley, --- U.S. ----, 105 S.Ct. 3375, 87 L.Ed.2d 481, and conclude that the test there described has been followed in this case as to the materiality issue. The conclusions herein on the Brady issue are not based on the specificity of the request.

In sum, the trial court did not abuse its discretion in denying access to the file. Nor was production of the file compelled by Brady.

AFFIRMED.

The mandate shall issue forthwith.

*****

McKAY, Circuit Judge, concurring in part, dissenting in part:

Petitioner in this case seeks access to the plea bargain entered into by one of the government's witnesses against him. He has put forth two theories. First, he argues that he has a common law right of access to the file. Second, he argues that he is entitled to see any exculpatory material in the file under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). While I agree with the majority that the file contains no Brady material, I believe that the common law right of access requires that petitioner be granted access to it.

The majority finds that petitioner has no common law right of access to the file because the government's interest in the safety of the witness outweighs whatever interest the petitioner may have in the contents of the file. As the court notes, the decision is best left to the discretion of the trial court. However, the trial court's discretion is not absolute. In re National Broadcasting Co., Inc., 653 F.2d 609, 613 (D.C.Cir.1981). The courts have made it clear that there is a presumption in favor of a public right of access, Nixon v. Warner Communications, 435 U.S. 589, 602, 98 S.Ct. 1306, 1314, 55 L.Ed.2d 570 (1978), and that restricting this right of access "is rarely the proper protection." In re National Broadcasting, 653 F.2d at 615.

While protection of third persons such as the witness involved in this case is unquestionably a compelling reason for closing files, neither the government, the district court nor the majority of this panel has explained how disclosure of the file will jeopardize the safety of the witness. All have simply asserted that, because they view the defendant in this case to be exceptionally clever, he may, in some manner which we cannot fathom, glean the location of the witness from the contents of the file. This is exactly the argument that the defendant makes which is rejected by the majority in the Brady analysis, i.e., that he, because of his specialized knowledge of the case, may glean from the contents of the file exculpating information that we cannot fathom.

I have reviewed the file for both purposes, as has the majority. I can find no information which I conceive as exculpating and therefore deny the defendant's request under the Brady analysis. By the same token, I can find nothing that would jeopardize the safety of the witness. Balanced against this is the presumption in favor of a public right of access. If defendant's speculations cannot overcome the Brady threshold, then I am unwilling to allow the state's speculations to overcome the presumption in favor of a public right of access, and it is disingenuous for the majority to do so. If the court's finding that there is nothing in the file that will aid the petitioner in his criminal appeals can undermine his legitimate desire to make that determination for himself, then surely the court's finding that there is nothing in the file that will jeopardize the safety of the witness undermines the state's fanciful musings about the defendant's clairvoyance. Since the state has made no reasonable argument that the witness' safety will be jeopardized by release of these materials, the presumption in favor of the public right of access is not, in my opinion, overcome. Accordingly, I must dissent.

*****

*

Honorable Zita L. Weinshienk, United States District Judge for the District of Colorado, sitting by designation

 

 

 
 
 
 
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