United States Court of Appeals,
Fifth Circuit.
No. 94-30248
Summary Calendar.
Frank BIAS, Sr., Plaintiff-Appellant,
v.
Richard P. IEYOUB, Attorney General, State of Louisiana, and
Richard Stalder, Secretary, Department of Corrections, Defendants-
Appellees.
Nov. 2, 1994.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before REAVLEY, HIGGINBOTHAM and EMILIO M. GARZA, Circuit Judges.
REAVLEY, Circuit Judge:
Frank Bias (Bias), a Louisiana state prisoner, was convicted
of one count of aggravated rape (La.Rev.Stat. § 14:42 (West 1986))
and one count of aggravated kidnapping (La.Rev.Stat. § 14:44 (West
1986)) and was sentenced to serve life for each conviction. His
convictions were affirmed on appeal. See, State v. Bias, 514 So.2d
571 (La.Ct.App.1987), cert. denied, 519 So.2d 114 (La.1988).
Subsequently, Bias filed applications for post-conviction relief in
state trial court, alleging that: (1) his dual convictions for
aggravated rape and aggravated kidnapping violated his
constitutional protection against double jeopardy; (2) the
evidence produced at trial was insufficient to support his
aggravated rape and aggravated kidnapping convictions; and (3) the
trial court erroneously instructed the jury regarding reasonable
doubt in violation of Cage v. Louisiana, 498 U.S. 39, 111 S.Ct.
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328, 112 L.Ed.2d 339 (1990). The state courts denied relief.
State v. Frank Bias, No. 92-KW-1291 (La.Ct.App. June 29, 1992),
cert. denied, 610 So.2d 815 (La.1993). Bias raised the same claims
in his application for federal habeas corpus relief to the United
States District Court for the Eastern District of Louisiana and the
trial court denied relief. Bias now appeals the federal district
court's dismissal of the writ. We affirm.
DISCUSSION
We approve the trial court's decision that there was no
double jeopardy violation. Under Blockburger v. United States, 284
U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), there is no
double jeopardy violation if each crime requires an element of
proof which the other does not. Aggravated kidnapping requires
proof that the accused either forcibly seized and carried the
victim from one place to another, or that the accused enticed or
persuaded the victim to go from one place to another. This is not
an element of aggravated rape. Aggravated rape requires proof that
the victim was prevented from resisting sexual intercourse because
of one or more of various circumstances. In this case, the
pertinent circumstances were "threats of great or immediate bodily
harm, accompanied by apparent power of execution." This is not an
element of aggravated kidnapping. See La.Rev.Stat.Ann. § 14:41 and
§ 14:42; see also State v. Neal, 550 So.2d 740, 743
(La.Ct.App.1989) (holding that aggravated kidnapping and aggravated
rape each have different elements and therefore convictions for
both do not cause a double jeopardy violation).
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We also approve the district court's determination that,
viewing the evidence in the light most favorable to the
prosecution, a reasonable trier of fact could have found the
defendant guilty beyond a reasonable doubt. United States v.
Pruneda-Gonzalez, 953 F.2d 190, 193 (5th Cir.), cert. denied, ---
U.S. ----, 112 S.Ct. 2952, 119 L.Ed.2d 575 (1992). Bias argues
that the evidence was not sufficient to sustain the conviction of
aggravated rape as opposed to forcible rape and the evidence was
not sufficient to sustain the conviction of aggravated kidnapping.
A co-defendant testified that the three men "raped" the victim.
The victim in this case testified and a co-defendant confirmed that
the defendant had ready access to his gun at all times. Therefore,
a reasonable jury could have found that the rape was aggravated
because the victim was "prevented from resisting the [rape] by
threats of great and immediate bodily harm, accompanied by apparent
power of execution." See La.Rev.Stat.Ann. § 14:42.
The victim testified that she got into the police car because
she was promised that she would be driven home. She testified that
instead she was taken to a secluded place and not released until
after the three men raped her against her will. The jury found
this testimony credible and decided that an aggravated rape and
aggravated kidnapping took place. A reviewing court must accept
the credibility choices of the jury, unless clear error has been
shown. United States v. McKenzie, 768 F.2d 602, 605 (5th
Cir.1985), cert. denied, 474 U.S. 1086, 106 S.Ct. 861, 88 L.Ed.2d
900 (1986). We hold that the jury's verdict is a reasonable
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construction of the evidence in this case.
Finally, Bias claims that the jury instruction given at his
trial was unconstitutional under Cage v. Louisiana, because of the
use of the words "moral certainty," and "actual or a substantial
doubt." The Supreme Court did object to these phrases as used in
the jury instruction given in Cage. 498 U.S. at 329-30, 111 S.Ct.
at 743-44. In a more recent opinion, however, the Supreme Court
has explained that the use of these phrases may not result in an
unconstitutional jury instruction if the instruction as a whole
conveyed the correct standard of proof. Victor v. Nebraska, ---
U.S. ----, ----, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994). We
hold that the jury instruction given in this case is constitutional
under the standard set out by the Supreme Court in Victor.
In Victor, the Supreme Court stated that the language seen as
problematic in the Cage instruction "cannot be sequestered from its
surroundings." Id. at ----, 114 S.Ct. at 1248. Therefore, the
Court held that a reference to moral certainty, when used in
conjunction with a reference to an "abiding conviction" did not
render the jury instruction unconstitutional. Id. at ----, 114
S.Ct. at 1247. As in Victor, the jury instruction in this case
used the phrase "abiding conviction" in connection with the moral
certainty phrase and therefore this phrase does not render the
instruction unconstitutional. The Court in Victor also held that
defining the necessary standard of doubt by using the words actual
or substantial did not necessarily render the instruction
unconstitutional if other language in the instruction clarified
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ambiguity raised by the word substantial. Id. at ----, 114 S.Ct.
at 1250. In Victor, the Court held that if "substantial" was
intended to mean "not seeming or imaginary" rather than "a large
degree," its use in the jury instruction would not be problematic.
The instruction at issue in Victor went on to specify that the
former and not the latter was the context in which the word was
being used. Therefore, the instruction was not improper. Id. In
this case, the instruction went on to state that the doubt must be
a serious one and therefore also clarified the use of the words
"actual or substantial" and avoided providing an unconstitutional
standard.
AFFIRMED.
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