IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-10811
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES PARKER, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
(4:94-CR-002)
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October 22, 1999
Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
In United States v. Parker, 104 F.3d 72 (5th Cir. 1997), our
court affirmed the convictions of Parker under the Hobbs Act for
six counts of obstructing commerce by robbery. Our court reversed
and remanded his convictions under 18 U.S.C. § 924(c) for using a
firearm during the commission of a federal crime of violence, i.e.,
the robberies. On retrial, Parker has again been convicted on the
section 924(c) counts. He now appeals those convictions. He
contends that the evidence presented at the trial on remand to
support the commission of the predicate offenses (the robberies
under the Hobbs Act that we previously affirmed) was insufficient
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
to support his convictions for the section 924(c) offense of
carrying a gun during a crime of violence that is prosecutable in
federal court. Specifically, he argues that the government failed
to present any evidence in this second trial that the robberies
affected interstate commerce. Parker also argues that if the
evidence was sufficient, the court erroneously instructed the jury
in regard to the section 924(c) offenses. We affirm the judgment
of convictions.
Although we affirm Parker’s convictions, we are unable to
agree upon a uniform analysis to reach this result. Judge Jolly
concludes that the evidence is sufficient with respect to the
underlying predicate offense because Parker testified that he was
convicted of the robberies alleged in the indictment. Judge Jolly
further concludes that the admission of the specific convictions is
an admission of all of the elements of those crimes necessary to
support those convictions. He would also observe that only the
fact of the predicate offense need be proved for a section 924(c)
conviction, not each element of the offense. On the other hand,
especially in the light of Parker’s admission at the second trial
that he committed the robberies, Judge Barksdale would affirm the
convictions under the doctrine of law of the case, that is,
inasmuch as our previous opinion specifically decided that the
government had proved all the elements of the predicate offense,
including the jurisdictional element, he would not allow that fact
to be retried again in this same case. Thus, although based on
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different analyses, both Judge Jolly and Judge Barksdale agree that
proof of the predicate offense has been satisfied, and thus join to
affirm the section 924(c) convictions of Parker.
Judge Benavides dissents. He concludes that Parker’s
statement that he had been convicted of the two robberies that
“we're talking about here” is insufficient evidence to establish
the interstate element of the predicate offense. Judge Benavides
would not apply, and is unaware of any case which has applied, the
law of the case doctrine to impose one element in a jury's verdict
on a different jury considering a separate and distinct offense.
He further concludes that the application of that doctrine here
would amount to a de facto application of the doctrine of
collateral estoppel against the defendant in the new trial on
remand, which would have the effect of relieving the government of
its constitutional burden of proving the elements of the section
924(c) offenses beyond a reasonable doubt. Judge Benavides
concludes that although the government could have introduced the
previous robbery convictions, affirmed by this court, as evidence
to prove the interstate element of the predicate offenses on
remand, he points out that is not what happened at trial. Although
the government was apparently willing to present evidence of these
previous convictions, and offered to do so, the district court
precluded the government’s introduction of that evidence on the
grounds that it was unnecessary, notwithstanding that at all times
the defendant insisted that the interstate commerce nexus be proved
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and that such an essential element was for the jury to determine.
Thus, Judge Benavides would reverse the section 924(c) convictions
for insufficiency of the evidence to establish the interstate
element of the predicate offense. Furthermore, Judge Benavides
would hold that the district court committed serious and reversible
error by peremptorily instructing the jury that, because a
conviction had already been obtained on the Hobbs Act robberies
which constituted the predicate offenses of the section 924(c)
counts, the jury need only consider whether a gun was used in
relation to the robberies. Thus, the court's instruction denied
Parker, whose defense was based on a deficiency of the nexus
element, his right to have the jury determine the nexus element of
the section 924(c) prosecution and denied Parker his theory of
defense.
In sum, with Judge Benavides dissenting, the judgment is
A F F I R M E D.
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