1 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, DefendantsAppellees.

Nov. 2, 1994.

Appeal from the United States Dis trict 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. S ee, 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

constituti onal protection against double jeopardy; (2) the

evidence produced at trial was insufficie nt 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. Lou isiana, 498 U.S. 39, 111 S.Ct.2

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 B lockburger 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 sei zed and carried the

victim from one place to another, or that the acc used 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. S ee La.Rev.Stat.Ann. § 14:41 and

§ 14:42; s ee 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).3

We al so approve the district court's determination that,

viewing the eviden ce in the light most favorable to the

prosecution, a reasonable trier of fact could have fo und the

defendant guilty b eyond a reasonable doubt. U nited 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 testif ied 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

i nstead 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 aggrav ated rape and

aggravated kidnapping took place. A reviewing court must accept

the credibility choices of the jury, unless clear error has been

shown. U

nited 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 reasonable4

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 r esult in an

unconstitutional jury instruction if the instru ction as a whole

conveyed the correct standard of proof. V ictor 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." I d. at ----, 114 S.Ct. at 1248. Therefore, the

Court held that a reference to moral certainty, when used in

co njunction with a reference to an "abiding conviction" did not

render the jury instruction unconstitut ional. I d. at ----, 114

S.Ct. at 1247. As in V ictor, 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 substanti al did not necessarily render the instruction

unconstitutional if other language in the inst ruction clarified5

ambiguity raised by the word substantial. Id. at ----, 114 S.Ct.

a t 1250. In V ictor, 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 o n 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. I d. 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.