UNITED STATES of America, Plaintiff-Appellee, v. Charles PARKER, Jr., Defendant-Appellant.
No. 94-10557.
United States Court of Appeals, Fifth Circuit.
Jan. 14, 1997.
72-75
Even if these remarks are construed to mean that the judge considered the ability of the Humphreys to make restitution in calculating their sentencеs, it would not amount to plain error. It is not clear, however, that any error occurred. The judge seems to focus on the amount of money taken in the scam and mentions restitution in noting the real loss to the victims. In any еvent, it certainly cannot be said that the error was clear or obvious, because the sentences handed down were within the guidelines, and because, when interpreted in the light most favorable to the defendаnts, the meaning of the trial judge‘s remark is only imprecise.
The Humphreys fail to make the requisite showing of plain error, and, therefore, this point of appeal does not require remanding the case for resentеncing.
IV
We find no merit in any of the points of error advanced by the Humphreys; therefore, the judgment of the district court is AFFIRMED.
Kathleen A. Felton, Department of Justice, Washington, D.C., Frank D. Able, Assistant U.S. Attorney, Office of the United States Attornеy, Dallas, TX, for plaintiff-appellee.
Peter Michael Fleury, Federal Public Defender‘s Office, Fort Worth, TX, for defendant-appellant.
Before POLITZ, Chief Judge, and KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
We granted rehearing en banc to сonsider whether the district court correctly instruct
The panel opinion on petition for rehearing, relying on United States v. Gaudin, — U.S. —, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), concluded that the trial judge erred by reserving for himself the question of whether or not the alleged acts of Appellant Parker affected interstate commerce. Having reviewed the reсord and the briefs and arguments of the parties, we have determined that the trial court committed no Gaudin-type error. Any error that existed in the charge given below was harmless. We therefore leave for anothеr day the question whether Gaudin error, i.e. a failure to submit an essential element of a crime to the jury, is subject to a harmlessness analysis.
The remaining portions of the panel opinion on petition for rehearing, inсluding the discussions of the denial of Parker‘s motion to reopen, the interstate commerce element in the indictment and double jeopardy, are reinstated. See United States v. Parker, 73 F.3d 48, 53-55 (5th Cir.1996).
We AFFIRM Parker‘s Hobbs Act convictions, REVERSE his
AFFIRMED IN PART, REVERSED IN PART, VACATED and REMANDED.
DeMOSS, Circuit Judge, dissenting.
Parker robbed six retail business establishments in Fort Worth, Texas, within a two-week period in the fall of 1993.1 His total take was approximately $500. He was chargеd in federal court with “obstructing, delaying or affecting” interstate commerce by robbery, and with use of a firearm, during two of the robberies. Parker pleaded not guilty and the cases were tried to a jury. The jury found him guilty of all eight сounts. The district court then sentenced Parker to serve 430 months.2
The district court instructed the jury as follows:
If you believe beyond a reasonable doubt the government‘s evidence regarding the handling of cash proceeds from the Payless Shoe Store rеferred to in Count 1 of the indictment, that is, that monies obtained from the operations of such store were routinely wired or electronically transferred from the State of Texas for deposit in a bank in another stаte, then you are instructed that the interstate commerce element, which I have just referred to as
Parker filed these written objections to the court‘s charge:
The finding by the court that certain facts establish the interstate commerce nexus deprives the defendant of due process, and the right to trial by jury. Counsel recognizes Fifth Circuit law allows this procedure under the theory the interstate commerce element is jurisdictional. However, counsel believes current Fifth Circuit law to be in conflict with the logic of Supreme Court precedent. In Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270 [4 L.Ed.2d 252] (1960), the Supreme Court unequivocally stated:
“[T]here are two essential elements of a Hobbs Act crime: interference with commerce, and extortion [in this case, robbery]. Both elements have to be charged. Neither is surplusage and neither can be treatеd as surplusage. The charge that interstate commerce is affected is critical since the Federal Government‘s jurisdiction of this crime rests only on that interference.” (alteration in Parker‘s written objection).4
In United States v. Gaudin, — U.S. —, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), decided after Parker‘s trial, the Supreme Court unanimously held that “[t]he Constitution gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is chаrged.” Gaudin, — U.S. at —, 115 S.Ct. at 2314. In Gaudin, the district court instructed the jury that, to convict the defendant, the government was required to prove, inter alia, that the alleged false statements were material. However, the court further instructed that ” [t]he issue of materiality is not submitted to you for your decision but rather is a matter for the decision of the court. You are instructed
that the statements charged in the indictment are material statements.” Id. at —, 115 S.Ct. at 2313. The Supreme Court upheld the reversal of Gaudin‘s conviction because the jury‘s constitutional responsibility is not merely to determine the facts but to apply the law to those facts and draw the ultimate conclusion of guilt or innocenсe. Id. at —, 115 S.Ct. at 2315.
The government contends that Gaudin differs from this case in that, in Gaudin, the trial court took a factual element away from the jury entirely, while in this case the jury was instructed that they—not the judge—had to believe beyond a reasonable doubt the evidence supporting an interstate commerce finding. That is not how I read Gaudin.
The language from the Gaudin opinion describing the jury instruction clearly refers to the statements in question as “alleged,” leaving the factual issue of whether or not the statements had been made for the jury to decide. Id. at —, 115 S.Ct. at 2313. Additionally, the argument advanced by the government in Gaudin belies the interpretation proposed by the government here. In Gaudin, the government argued that the requirement that the jury decide all elements of a criminal offense applies only to the fаctual components of the essential elements and not to mixed questions of fact and law. Id. at —, 115 S.Ct. at 2314. The Supreme Court rejected this argument, holding that even mixed questions of law and fact were the province of the jury. Id. The question taken away from the jury by the trial court in Gaudin is analogous to the circumstance in the present case. The trial court charged the jury with deciding if the alleged acts occurred and improperly reserved for itself the question of whether or not the alleged acts affected interstate commerce.
The government next attempts to distinguish Parker‘s case from Gaudin on the basis that a different element of the crime was taken away from the jury by the trial
Chief Justice Rehnquist, in his concurring opinion, referred to the “syllogistic neatness” of the Gaudin decision: “every element of an offense charged must be proven to the satisfaction of the jury beyond a reasonable doubt; ‘materiality’ is an element of the offense charged under
Finally, the government contends that the instructions in this case can be distinguished frоm the instructions in Gaudin because the instructions in this case “did not entirely remove” the element of “effects on commerce” from the jury‘s consideration, while the instruction in Gaudin entirely removed the element of materiality. Unfоrtunately, in my view, the en banc majority swallowed this distinction hook, line and sinker, without so much as one citation to any case or any elaborations of what reasoning they used to arrive at this conclusion. A determinаtion that “the trial court committed no Gaudin-type error,” which is the heart of the majority‘s opinion, gives no indication whatsoever to the Bench and bar of this Circuit (i) as to what “a Gaudin-type error” is nor (ii) how elements of a crime which involve mixed questions of fact and law should be submitted after the Supreme Court‘s decision in Gaudin. This is the second occasion (see United States v. McGuire, 99 F.3d 671 (1996)) on which our Court has, in my view, ducked its obligation to give guidance to judges and practitioners as to developing legal issues.
I respectfully dissent from the conclusory disposition of this case.
DENNIS, Circuit Judge, dissenting.
I respectfully dissent from the majority‘s decision that “no Gaudin-type error” occurred and to “leave for another day the question whether a Gaudin error, i.e. a failure to submit an essential element of a crime to the jury, is subject to a harmlessness analysis“.
Notes
| Count 1 | October 29, 1993 Saida Cervera | Payless Shoe Store $136.00 |
| Count 2 | November 4, 1993 Nancy Dold | Chevron Station $ 27.00 |
| Count 3 | November 5, 1993 David Fleming | Chief Auto Parts Store $ 40.00 |
| Count 4 | Use of gun in regard to Count 3 | |
| Count 5 | November 5, 1993 Gilbert Neal | Fina Station $ 50.00 |
| Count 6 | Use of gun in Count 5 | |
| Count 7 | November 6, 1993 Rhonda Taylor | Diamond Shamrock Service Station $ 97.00 |
| Count 8 | November 11, 1993 Lisa Edwards | Edwards Drug Store $109.00 |
130 months each as to Counts 1, 2, 3, 5, 7 and 8 to run concurrently
60 months as to Count 4 to run consecutively to Counts 1, 2, 3, 5, 7 and 8
240 months as to Count 6 to run consecutively to prior sentences
430 months total to serve.