### UNITED STATES COURT OF APPEALS Tenth Circuit Byron White United States Courthouse

1823 Stout Street Denver, Colorado 80294 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A. Shumaker Clerk Chief Deputy Clerk September 1, 1998

TO: ALL RECIPIENTS OF THE OPINION
RE: 97-3061, United States v. Shinault Filed on July 8, 1998
The opinion filed on July 8, 1998, contains two typ ographical errors. On page 10 of the slip opinion, in the chart, the percentag e of qualified Hispanic veniremen should read “1.50%”, not “.14%”. On page 23, the f irst sentence of the second paragraph should read: “The court did not tell the jury that if they believed the government’s evidence, they had to find the interstate commerce element satisfied. ” Please make the corrections to your copy of the sli p opinion. Very truly yours, Patrick Fisher, Clerk

Keith Nelson Deputy Clerk

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 8 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. MICHAEL D. SHINAULT,

Defendant - Appellant. No. 97-3061

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D. Ct. No. 95-10072-01)
Timothy J. Henry, Assistant Federal Public Defender(David J. Phillips, Federal Public Defender, with him on the briefs), Wichita, Kansas, appearing for Defendant-Appellant. James E. Flory, Assistant United States Attorney, O ffice of the United States Attorney, Topeka, Kansas (Jackie N. Williams, Unite d States Attorney, and David M. Lind, Assistant United States Attorney, Wichita, Kansas, on the brief), appearing for Plaintiff-Appellee.

Before TACHA , MCKAY , and BRISCOE , Circuit Judges.

TACHA , Circuit Judge.

At approximately 3:00 a.m. on July 11, 1995, Defend ant Michael Shinault- 2 -

entered a Food-4-Less grocery store in Wichita, Kan sas. Armed with a semiautomatic pistol, he robbed the store of $250. Abo ut an hour later, the defendant committed a similar armed robbery of a Total gas st ation, netting about $40. The defendant was charged with two counts of violating the Hobbs Act, 18 U.S.C. § 1951 (interfering with interstate commerce by robbe ry), two counts of violating 18 U.S.C. § 924(c) (using or carrying a weapon duri ng a crime of violence), and one count of violating 18 U.S.C. § 922(g)(1) (being a felon in possession of a firearm). A jury returned a guilty verdict on all counts. The defendant now appeals his conviction on several grounds, includin g contentions that the trial violated his constitutional protection against doub le jeopardy and that underrepresentation of minority racial groups in th e pool from which his jury was drawn violated his Sixth Amendment right to an impartial jury. We exercise jurisdiction under 18 U.S.C. § 1291 and affirm. The defendant went to trial in the Wichita-Hutchins on division of the District of Kansas. After voir dire, a jury with n o alternates was sworn. At that point, one of the jurors noted that she had child-c are responsibilities that would make it difficult for her to serve on the jury. Th e district court excused that juror and, without objection from either the government o r the defense, swore in another juror. The jury found the defendant guiltyof all the charged crimes. At the sentencing phase, the district court applied th e Armed Career Criminal- 3 -

enhancement to the defendant’s sentence, based on h is previous criminal history. The defendant’s term of imprisonment totaled 562 mo nths. The defendant appeals on the following grounds: (1) that the jury selection procedures in the District of Kansas denied him his Sixth Amendment right to a jury drawn from a fair cross-section of the communi ty; (2) that the unusual jury selection procedure used in this case violated the Double Jeopardy Clause of the Fifth Amendment; (3) that the court’s instructions to the jury regarding his Hobbs Act crimes effectively removed one element of the c rime from the jury’s consideration; (4) that the court based the Armed C areer Criminal sentence enhancement on insufficient evidence; (5) that Cong ress did not have the power to enact the Hobbs Act; and (6) that the defendant’ s convictions under the Hobbs Act and 18 U.S.C. § 924(c) violated the Double Jeop ardy Clause by imposing multiple punishments on the defendant for the same conduct. I. Jury Composition The defendant first asserts that the jury selection system in the WichitaHutchinson division of the District of Kansas violates the Sixth Amendment and the Jury Selection and Service Act of 1968, 28 U.S. C. §§ 1861, et seq., because it systematically excludes Asians, Blacks, and Hispani cs from jury service. The Sixth Amendment grants criminal defendants the right to trial by an impartial jury. U.S. C ONST
. amend. VI. A jury selection system violates that r ight if the- 4 -

system does not draw its jury members from a fair c ross section of the community. See Taylor v. Louisiana , 419 U.S. 522, 530 (1975). Similarly, the Jury Act “ensure[s] that potential grand and petit jurors are selected at random from a representative cross section of the community and that all qualified citizens have the opportunity to be considered for service.” United States v. Bearden , 659 F.2d 590, 593 (5th Cir. 1981), quoted inUnited States v. Contreras , 108 F.3d 1255, 1265 (10th Cir.), cert. denied , 118 S. Ct. 116 (1997). Because the Jury Act’s fair cross section requirement parallels a defendant’s Sixth Amendment right to trial by an impartial jury, the defendant’ s Jury Act challenge and his constitutional challenge are both evaluated under t he Sixth Amendment standard.
See United States v. Test , 550 F.2d 577, 584-85 (10th Cir. 1976) (en banc) (quoting Taylor , 419 U.S. at 528-30 & n.11). We review the district court’s factual determinatio ns relevant to the defendant’s Sixth Amendment and Jury Act challenge for clear error, see United States v. Gault , -- F.3d --, 1998 WL 177982, at *1 (10th Cir. Apri l 16, 1998), but we review de novo the court’s legal determination w hether a prima facie violation of the fair cross-section requirement has occurred. See United States v. Sanchez-Lopez , 879 F.2d 541, 546 (9th Cir. 1989). The Jury Act requires, as a procedural matter, thata defendant’s motion challenging a district’s jury selection process contain “a sworn statement of facts- 5 -

which, if true, would constitute a substantial fail ure to comply with the [Act].” 28 U.S.C. § 1867(d). The defendant did not file su ch a sworn statement in this case, though he did file a motion with this court t o supplement the record on appeal with such a statement. Even though the Tent h Circuit interprets the sworn statement requirement strictly, see Contreras , 108 F.3d at 1267, in this case, “it is unnecessary to address section 1867, because the me rits dispute properly raised, briefed, and argued by the parties, and carefully c onsidered by the district court, presents an unsurmountable barrier for the appellant,” United States v. Pion , 25 F.3d 18, 22 n.3 (1st Cir. 1994), regardless of the impact of Shinault’s alleged procedural shortcomings on either his statutory cha llenge or his constitutional challenge. In substance, the Jury Act sets forth guidelines fo r selecting grand and petit juries in federal courts. See 28 U.S.C. § 1861. It requires that each judicial district devise a plan for randomly selecting juror s based on voter registration rolls or lists of actual voters. See id. § 1863(b)(2). The plan adopted by the District of Kansas provides for the random selectio n of prospective grand and petit jurors from the official lists of actual vote rs in each of the counties in the six divisions in Kansas. See D. Kan. R. 38.1. The names of individuals selecte d from the actual voter lists are placed on a “MasterJury Wheel” for the division in which the individuals reside. The clerk of the cou rt draws names as needed from- 6 -

the divisional master wheel and mails a jury qualif ication form to the selected individuals. The form asks the potential jurors to identify their racial and ethnic background. All individuals who return the forms, are eligible for service, and are not excused from service, are placed on the “Qu alified Jury Wheel.” One is ineligible to sit on a jury if he or she is not an American citizen, is not eighteen years old, has not resided in the judicial districtfor at least one year, cannot speak or understand English, is physically or mentally in capable of serving, or is a felon. See 28 U.S.C. § 1865(b). Moreover, certain classes of persons, such as active military personnel, are barred as exempt, an d others, such as volunteer safety personnel, will be excused upon request. Se e id. § 1863(b)(5),(6). Once the qualified wheel has been stocked, jury venires are randomly selected from the qualified wheel. The defendant argues that this me thod of jury selection, particularly reliance on lists of actual voters, sy stematically excludes Asians, Blacks, and Hispanics from jury service in the Wich ita-Hutchinson Division of the District of Kansas. In order to establish a prima facie case that a jury selection system violates the Sixth Amendment fair cross section requirement, a defendant must demonstrate: (1) that the group alleged to be excluded is a “dis tinctive” group in the community; (2) that the representationof this group in venires from which juries are selected is not fair and reasonable in relation to the number of such person s in the- 7 -

community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selec tion process. Duren v. Missouri , 439 U.S. 357, 364 (1979). If the defendant prove s a prima facie violation, the government then bears the burd en of proving that attainment of a fair cross section is incompatible with a sign ificant state interest. See id.
at 368. The defendant identifies three groups that are alle gedly unfairly represented in the District of Kansas’s jury system : Asians, Blacks, and Hispanics. The defendant need not belong to any of these groups in order to have standing to object to their exclusion from jury service. See Taylor , 419 U.S. at 526. The government concedes that Asians, Blacks, and Hispanics are all distinctive groups. A. Unfair Representation 1. The Relevant Statistics The second element of the prima facie case requires the defendant to show that representation of the distinctive groups on jury venires in the District of Kansas “is not fair and reasonable in relation t o their numbers in the community.” Duren , 439 U.S. at 364. The defendant and the governmen t disagree about how the three groups’ “numbers in th e community” should be measured. The defendant compares the minorities’ p ercentages on the qualified wheel to the minorities’ percentages among the enti re voting-age population in- 8 -

the Wichita-Hutchinson division. The government co ntends that the court should compare the minorities’ percentages on the q ualified wheel to their percentages among that portion of the entire voting -age population that is eligible to sit on juries. The government’s position has “intellectual merit.” United States v. Rioux , 97 F.3d 648, 657 (2d Cir. 1996). The defendant’s method (comparing the minorities’ percentages on the qualified wheel to their percentage in the entire community) involves a comparison between a p opulation that meets the eligibility requirements to a population of both el igible and ineligible people.
See id. As the government contends, however, to accuratel y evaluate whether the District of Kansas’s use of actual voter lists violates the Sixth Amendment, we should compare the percentage of minorities in t he qualified wheel to the percentage of minorities in the segment of the gene ral population that is eligible to serve on juries. Otherwise, it will be difficult to ascertain whether a disparity is attributable to the district’s use of actual voter lists or to the general eligibility criteria. For instance, if the percent age of Asians on the qualified wheel were much smaller than the percentage of Asia ns in the general population, we would not know whether the disparityexisted because of the district’s use of actual voter lists or simply because members of that group are ineligible for jury service at a higher rate than t he general population (if, for- 9 -

example, many Asians were not United States citizen s or did not speak English). To negate the possibility that the dispa rities result from the general eligibility requirements, we would have to compare the qualified wheel to the portion of the general population that is eligible to serve. See United States v. Esle , 743 F.2d 1465, 1479 n.3 (11th Cir. 1984) (Tjoflat , J., concurring). However, there is apparently no reliable measurement of that subset of the general population. Thus, despite the shortcomings of the defendant’s s tatistical method, we find that his method of comparison was appropriate under the circumstances of this case. See Rioux , 97 F.3d at 657 (finding general figures acceptabl e where more detailed figures were not available). The def endant derived his population data from the most recent census, a prac tice that the Supreme Court has found adequate in the past. See Duren , 439 U.S. at 364-65 & nn. 22-24. We now turn to the defendant’s statistics and ask i f they show that Asians, Blacks, or Hispanics are unfairly represented on ju ries in the WichitaHutchinson division of the District of Kansas.

2. The Statistical Showing In determining whether a group has been underrepres ented on jury venires, “courts generally rely on two methods of c omparison: absolute disparity and comparative disparity.” Gault , -- F.3d at --, 1998 WL 177982, at- 10 -

2. Absolute disparity measures the difference betw een the percentage of a group in the general population and its percentage in the qualified wheel. For instance, if Asians constitute 10% of the general p opulation and 5% of the qualified wheel, the absolute disparity is 5%. Comparative disparity measures the decreased likelihood that members of an underrepresented group will be called for jury service, in contrast to what their presence in the community suggests it should be. This figure is determined b y dividing the absolute disparity of the group by that group’s percentage i n the general population. In the example above, the comparative disparity is 50% : Asians are half as likely to be on venires as they would be if represented inproportion to their numbers in the community. In this case, the relevant numbers are as follows:

Distinctive Group Asian Black Hispanic Percentage of voting age population 1.27% 5.11% 2.92%

Percentage of qualified veniremen .51% 2.55% 1.50%

Absolute Disparity .76% 2.56% 1.42% Comparative Disparity 59.84% 50.09% 48.63%- 11 -

In this circuit, “absolute disparity . . . is the s tarting place for all other modes of comparison.” United States v. Yazzie , 660 F.2d 422, 427 (10th Cir. 1981). Here, the greatest absolute disparity is le ss than 3%, which, as the district court noted, is far less than the percenta ges that the Supreme Court has relied upon in its cases finding Sixth Amendment vi olations. See, e.g. , Duren , 439 U.S. at 365-66 (39% absolute disparity); Jones v. Georgia , 389 U.S. 24 (1967) (14.7%). Courts generally are reluctant to find that the second element of a prima facie Sixth Amendment case has been sati sfied when the absolute disparities are less than 10%. See United States v. Rioux , 930 F. Supp. 1558, 1570 (D. Conn. 1995) (collecting cases). Furthermo re, our circuit has found that absolute disparities of 4.29% and 7% failed to establish a prima facie violation. See Yazzie , 660 F.2d at 427 (4.29%); Gault , -- F.3d at --, 1998 WL 177982, at *3 (7%). The defendant urges us to focus on the comparative disparities rather than the absolute disparities because of the small size of the minority populations in Kansas. Indeed, small absolute disp arity figures are less persuasive in a case such as this, where, because o f the minorities’ small population, even the complete exclusion of the groups would result in absolute disparities of less than 6%. See United States v. Jackman , 46 F.3d 1240, 1247 (2d Cir. 1995) (noting the weakness of absolute dis parity analysis when dealing- 12 -

with small population). The comparative disparities are larger: 48%, 50%, a nd almost 60%. While these numbers may be more indicative of a Sixth Amendment violation, they too are distorted by the small population of t he different minority groups. “[T]he smaller the group is, the more the comparati ve disparity figure distorts the proportional representation.” United States v. Hafen , 726 F.2d 21, 24 (1st Cir. 1984); see United States v. Whiteley , 491 F.2d 1248, 1249 (8th Cir. 1974). “For example, in an area that had 500,000 whites an d only one black eligible to serve as jurors, a random selection system that fai led to place the single black on the master wheel would produce a 100 per cent co mparative disparity, even though an all-white jury would clearly form a ‘faircross section’ of the community.” Hafen , 726 F.3d at 24. In this case, considering the sm all size of each of the groups in relation to the larger commun ity, it is not surprising that the comparative disparity numbers are large. It is equally unsurprising that the group with the largest comparative disparity, Asian s, has the fewest members. Although both statistical measurements have their w eaknesses in this situation, there can be no doubt that the figures computed under either method do not demonstrate the type of “marked” or “gross” disparities that we have found necessary to establish that the representatio n of a group is not fair and reasonable in relation to their number in the commu nity. See Gault , -- F.3d at -- 13 -

-, 1998 WL at 177982, at *3 (quoting Test , 550 F.2d at 590). The second element of the Durentest not being satisfied, the defendant cannot mak e out a prima facie case that the District of Kansas’s sele ction procedure violates either the Sixth Amendment or the Jury Service and Selecti on Act of 1968. II. Double Jeopardy The district court empaneled and swore in a complet e jury. Then, after being advised that one of the jurors had child-care responsibilities that would not allow her to serve, the court excused that juro r, replaced her with another, and swore in the new juror. This unusual procedure raises a tangle of double jeopardy issues. We review two different lines of cases in order to resolve those issues. A. The Terminating-Event Requirement The Double Jeopardy Clause of the Fifth Amendment s tates that no person shall be “twice put in jeopardy of life or limb.” U.S. C ONST
. amend. V. The clause protects criminal defendants against hav ing to endure the risk of conviction twice. Thus, the first relevant line of cases expresses the logical principle that the Double Jeopardy Clause does not apply to situations in which the defendant has been placed in jeopardy only once . These cases have their origin in Ball v. United States , 163 U.S. 662, 672 (1896), in which the Supreme Court held that the Double Jeopardy Clause does notprevent a second trial- 14 -

when the defendant’s original conviction has been overturned on appeal. Ball rested on the notion that when a conviction is overturned, a new trial does not present the defendant with a new , or second risk of conviction. Ball “effectively formulated a concept of continuing jeo pardy that has application where criminal proceedings against an accused have not run their full course.” Price v. Georgia , 398 U.S. 323, 326 (1970). The continuing jeopardy principle achieved its fullest expression in Richardson v. United States , 468 U.S. 317, 325 (1984), in which the defendant challenged the p rosecution’s attempt to retry him after his original proceeding had ended i n a mistrial because of a hung jury. The Supreme Court held “that the protec tion of the Double Jeopardy Clause by its terms applies only if there has been some event, such as an acquittal, which terminates the original jeopardy.” Id. ; see also Justices of Boston Mun. Court v. Lydon , 466 U.S. 294, 309 (1984) (rejecting the defendant’s double jeopardy argument because “he fa ils to identify any stage of the state proceedings that can be held to have term inated jeopardy”). The Court said that the declaration of a mistrial, in that in stance, did not terminate his original jeopardy. Only two other circuits have addressed the situatio n before us, the Ninth and the Sixth, and only the Ninth relied on the pri nciple of continuing jeopardy to reject the defendant’s argument (we discuss the Sixth Circuit’s approach- 15 -

infra ). In that case, a jury of twelve, with no alternates, was empaneled and
sworn. See United States v. Trigg , 988 F.2d 1008, 1009 (9th Cir. 1993). Before any testimony was given, the judge excused three jurors because of unavailability and replaced them with three jurors drawn from the venire. See id. The entire new jury was then sworn again. See id. The Ninth Circuit concluded that the unusual proced ure “cannot terminate jeopardy any more than a failure of a jury to reach a verdict.” Id. at 1010. The court held that “jeopardy does not termi nate during the process of jury selection merely because sworn jurors are excu sed during the process of selecting alternates.” Id. The Trigg court apparently interpreted Richardson to mean that there could be no terminating event for D ouble Jeopardy purposes if the original jury had not, at the least, made a dec ision on the merits of the case. See also Richardson , 468 U.S. at 327 (Brennan, J., concurring in part and dissenting in part) (interpreting Richardson to mean that “only an actual judgment of acquittal, or an unreversed conviction, would ‘terminate’ jeopardy and thereby bar retrial”). B. The Right to a Particular Tribunal Trigg and Richardson seem to provide an easy answer here. In equipoise with those cases, however, is the long-standing pri nciple that a defendant has a “valued right to have his trial completed by a particular tribunal.” Illinois v.- 16 -

Somerville , 410 U.S. 458, 466 (1973) (quoting Wade v. Hunter , 336 U.S. 684, 689 (1969)). As soon as the jury is sworn, the def endant acquires a constitutional interest in having that jury see his case through to a conclusion.
See United States v. Martin Linen Supply Co. , 430 U.S. 564, 569 (1977). A proceeding judged by a tribunal other than the one originally selected “may be grossly unfair. It increases the financial and emo tional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an i nnocent defendant may be convicted.” Arizona v. Washington , 434 U.S. 497, 503-04 (1978). The constitutional test derived from the defendant’ s right to have a trial completed by a particular tribunal is well establis hed. Once a particular jury is sworn, the prosecutor may not try the defendant bef ore another jury without demonstrating a “manifest necessity” for the new pr oceeding with a new tribunal. See id. at 505-06. The manifest necessity standard “has b een quoted over and over again to provide guidance in the deci sion of a wide variety of cases.” Id. at 506. The cases protecting the right to a particular trib unal focus on the inception of the proceedings—that is, whether the jury was s worn—while Richardson asks whether there has been an end to those proceedings. We have noted the apparent inconsistency between Richardson and other strains of1 In Watkins , the defendant consented to the procedure, and therefore the court

avoided the manifest necessity analysis. SeeWatkins , 90 F.3d at 142-43. In the instant case, counsel for the defendant did not object initially to the replacement of the juror. It is also true, however, that neither the court nor counsel made defendant aware of the constitutional right that he was forgoing so that he could make an informed, conscious waiver. Our cases may require such a conscious choice for there to be valid consent to a procedure implicating the Double Jeopardy clause. Seeid. at 141-42 (discussing United States v. Rich , 589 F.2d 1025 (10th Cir. 1978)); see alsoUnited States v. Broce , 753 F.2d 811 (10th Cir. 1985), overruled on other grounds by488 U.S. 563 (1989) (finding that defendant does not relinquish right to contest conviction on grounds of Double Jeopardy unless he waived the right knowingly and voluntarily). Given the analysis that follows, however, we find it unnecessary to decide the consent issue here. - 17 - Double Jeopardy jurisprudence before. See United States v. Wood , 958 F.2d 963, 970 (10th Cir. 1992) (noting that some of our cases are “inconsistent with the continuing jeopardy principle suggested in Richardson ”). The different orientations could be read to create a conflict in a case such as this. On the one hand, because jeopardy attached after the swearing of the first jury, and that original tribunal did not ultimately decide the cas e, one might read the precedent to compel the government to prove a manif est necessity for trying the case before a new jury. The Sixth Circuit took thi s approach when faced with a situation similar to the one before us. It held that “[o]nce jeopardy attaches, prosecution of a defendant before a jury other than the original jury . . . is barred unless (1) there is a ‘manifest necessity’ f or a mistrial or (2) the defendant either requests or consents to a mistrial .” Watkins v. Kassulke , 90 F.3d 138, 141 (6th Cir. 1996). 1- 18 -

On the other hand, under Richardson a terminating event must occur before the Double Jeopardy Clause even comes into play. Richardson found that a mistrial by virtue of a hung jury did not te rminate jeopardy. Accordingly, the Ninth Circuit read Richardson to require no manifest necessity analysis at all, on the basis that jury selection p rocedures are much less final than the hung jury at issue in Richardson . See Trigg , 988 F.2d at 1009-1011. C. Resolving the Two Principles The precedent, however, does not conflict. Two poi nts make this clear. First, it is mistaken to interpret Richardson to mean that nothing short of an acquittal or unreversed conviction implicates the D ouble Jeopardy Clause. Richardson used the doctrine of “continuing jeopardy” to find that a mistrial after a hung jury was not a terminating event, and therefore no double jeopardy violation occurred. The Richardson Court primarily relied, however, not on “continuing jeopardy” cases, but on the century and a half of jurisprudence that had already made clear that double jeopardy did notbar retrial in such a circumstance. Thus, the observation that “‘continu ing jeopardy’ describes both a concept and a conclusion” is appropriate. Breed v. Jones , 421 U.S. 519, 534 (1975). In Richardson , the Court used “continuing jeopardy” to describe a conclusion. The Court’s finding that jeopardy neve r terminated was, more than anything, a shorthand expression of a time-tested c onclusion that the retrial- 19 -

procedure at issue did not violate the Double Jeopardy Clause. The Court did not revolutionize our understanding of “continuing jeopardy.” Second and more importantly, continuing jeopardy also “describes . . . a concept .” Breed v. Jones , 421 U.S. 519, 534 (1975) (emphasis added). All o f the Supreme Court’s double jeopardy cases, even tho se that seem to conflict with Richardson , “presuppose[] some identifiable point at which a first trial may be said to have ended.” Lydon , 466 U.S. at 315 (Brennan, J., concurring in part and concurring in the judgment). The Courthas said, for instance, that the manifest necessity test should be used “when a criminal proceeding is terminated without finally resolving the merits.” Arizona v. Washington , 434 U.S. 497, 505 (1978) (emphasis added); see also Somerville , 410 U.S. at 471 (referring to the district court’s decision to “ abort ” the proceedings) (emphasis added). Thus, even those cases that do not explici tly rely on the doctrine of “continuing jeopardy,” implicitly recognize that th e concept is pertinent when deciding double jeopardy questions. The relevant q uestion in this case, then, is when does a defendant’s “continuing jeopardy” termi nate? In order to determine whether the original proceedi ng ever “terminated,” we look to the interests of the Double Jeopardy Clause. See Breed , 421 U.S. at 534. “[T]he continuing jeopardy principle appears to rest on an amalgam of interests—e.g., fairness to society, lack of finali ty, and limited waiver, among- 20 -

others.” Price v. Georgia , 398 U.S. 323, 329 n.4 (1970). The question of whether jeopardy has objectively “terminated” should be analyzed in terms of the pol icies of the Double Jeopardy Clause, namely its concern thatrepeated trials may subject a defendant to embarrassment, expense and ordeal and compel him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. Jeopardy may be said to have terminated only when the posture of a trial in some objective sense leaves that defendant in such a position that resumption of proceedings would implicate thos e policies.
Lydon , 466 U.S. at 320 (Brennan, J., concurring in part and concurring in the judgment) (emphasis added) (citations and internal quotation marks and alterations omitted); see also Lovato v. New Mexico , 242 U.S. 199, 201 (noting that mere irregularity of procedure does not implic ate the Double Jeopardy Clause). Only if the trial before the new tribunal reasonably implicates the policies described above has the first proceeding t erminated. Only then do we proceed to the manifest necessity analysis. The procedure in this case did not threaten the def endant with any of the harms that the Double Jeopardy Clause was meant to prevent. The replacement of one juror before any witnesses had testified didnot reasonably subject the defendant to “embarrassment, expense and ordeal,” o r force him to live in a “continuing state of anxiety,” to any greater exten t than that he would have experienced if the district court had sworn an alte rnate along with the original- 21 -

twelve jury members and thereby avoided the issue b efore us altogether. Furthermore, for us to hold that the trial terminat ed at such a preliminary stage, without any allegation that the replacement was att ributable to prosecutorial tactics, would frustrate “society’s interest in giv ing the prosecution one complete opportunity to convict those who have violated its laws.” Arizona v. Washington , 434 U.S. 497, 509 (1978). The defendant cannot point to any event that termin ated the original jeopardy. That being the case, his Double Jeopardychallenge cannot succeed. III. United States v. Gaudin The defendant argues next that, in conflict with th e Supreme Court’s decision in United States v. Gaudin , 515 U.S. 506 (1995), the jury instructions in this case removed one element of the Hobbs Act v iolation from the jury’s consideration. In Gaudin , the Supreme Court recognized that the “Constituti on 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 charged.” Id. at 522-23. The jury’s constitutional responsibili ty to determine whether the defendant is guilty of each element inc ludes not only finding facts, but also applying the facts to legal principles. S ee id. at 512-13. In Gaudin , the government charged the defendant with making false statements on a loan document in violation of 18 U. S.C. § 1001. See id. at 507.- 22 -

Although the crime required a finding that the alle ged statements were material to the federal agencies insuring the loan, the court did not submit the issue of materiality to the jury. See id. at 508. The court said to the jury: “You are instructed that the statements charged in the indic tment are material statements.” Id. The Supreme Court found that the district court’s practice violated the defendant’s right to have the jury det ermine his guilt of each element of the crime. See id. at 522-23. In this case, the defendant was charged with, among other things, violating the Hobbs Act, a statute that makes it a crime to obstruct interstate commerce by robbery. See 18 U.S.C. § 1951. One element of that offense is interference with interstate commerce. See Stirone v. United States , 361 U.S. 212, 218 (1960). The court here submitted the inte rstate commerce element to the jury, instructing them as follows:

The defendant need not have intended or anticipated an effect on interstate commerce. You may find the ef fect is a natural consequence of his actions. If you find th e defendant intended to take certain actions, that is, he did t he acts charged in the Indictment in order to obtain property, and you find those actions have either caused, or would probablycause, an effect on interstate commerce, then you may find th e requirements of this element have been satisfied. If you decide there was any effect at all on inters tate commerce, then that is enough to satisfy this eleme nt. The effect can be minimal. For example, if a successful robbery of money would prevent the use of those funds to purch ase articles which travel through interstate commerce, that would be a sufficient effect on interstate commerce

.- 23 -

Jury Instruction #15. According to the defendant, the italicized portion of this instruction dictated to the jury how they should ap ply the law to the facts of this case and, therefore, violated the Gaudinrule. The defendant’s case is unlike Gaudinin at least one important respect. In Gaudin , the court did not submit the materiality element to the jury. Two other circuits appear to have held that the Gaudin rule is limited to cases in which the element at issue was not submitted to the jury. See United States v. Castleberry , 116 F.3d 1384, 1389 (11th Cir.), cert. denied , 118 S. Ct. 341 (1997); United States v. Parker , 104 F.3d 72, 73 (5th Cir.) (en banc), cert. denied , 117 S. Ct. 1720; id. at 73-75 (DeMoss, J., dissenting). We need not decide here whether, as the defendant argues, the r ule in Gaudinextends to a case in which the element was submitted but in such a way as to effectively dictate the jury’s application of the law to the fa cts because, even if Gaudin could reach so far, the instruction here did not ef fectively remove the issue from the jury’s consideration. The court did not tell the jury that if they believ ed the government’s evidence, they had to find the interstate commerce element satisfied. Instead, the court merely concluded its definition of inters tate commerce by giving an example. That example did not tie a legal result t o the particular facts of the defendant’s case. The defendant goes too far in re ading Gaudinto prohibit- 24 -

attempts to clarify the law for jurors, especially on such an unfamiliar subject as interstate commerce. IV. Armed Career Criminal Enhancement The defendant also challenges his sentence enhancem ent for being an Armed Career Criminal pursuant to 18 U.S.C. § 924(e ) and section 4B1.4 of the Sentencing Guidelines. When reviewing sentence enh ancements under the sentencing guidelines, we accept the factual findin gs of the district court unless they are clearly erroneous. See United States v. Farnsworth , 92 F.3d 1001, 1009 (10th Cir.), cert. denied , 117 S. Ct. 596 (1996). At sentencing, the distri ct court may rely on facts stated in the presentence r eport unless the defendant has objected to them. See United States v. O’Dell , 965 F.2d 937, 938 (10th Cir. 1992). When a defendant objects to a fact in a pre sentence report, the government must prove that fact at a sentencing hea ring by a preponderance of the evidence. United States v. Easterling , 921 F.2d 1073, 1078 (10th Cir. 1990). A criminal defendant is subject to the Armed CareerCriminal enhancement if he is convicted of violating 18 U.S. C. § 922(g) and has at least three prior convictions for “violent felonies” or “ serious drug offenses.” See
U.S. S ENTENCING G UIDELINES M ANUAL § 4B1.4 commentary; 18 U.S.C. § 924(e)(2) (defining “violent felony” and “serious d rug offense”). The- 25 -

presentence report recommended that Mr. Shinault be sentenced as an Armed Career Criminal. The defendant objected on the gro unds that two of three convictions forming the basis for the Armed Career Criminal enhancement—those listed in paragraphs 53 and 54 of the presentence report—charged a person other than Mr. Shinault. T he charging documents in those convictions named Richard L. Bumphus as the p erpetrator for one crime and Michael Washington for the other. At the sentencing hearing, the man who prepared the presentence report, Jim Fritz, a probation officer from the U.S. Probat ion Department, testified that Mr. Shinault was in fact the person convicted of th e crimes listed in paragraphs 53 and 54 of the presentence report. Mr. Fritz test ified first that court documents pertaining to the prior convictions notedthat Richard L. Bumphus and Michael Washington were aliases of Mr. Shinault . Second, Mr. Fritz testified that he also referenced Mr. Shinault’s FB I “rap sheet,” which listed him as the perpetrator of the two previous crimes. Mr. Fritz confirmed that the FBI does not enter a conviction on a person’s recor d without first comparing fingerprint samples to ensure that the updated reco rd is accurate. According to Fritz’s testimony, the FBI had matched Mr. Shinault ’s fingerprints with those of the defendants in the previous cases. The distr ict court made its findings on the basis of this evidence, and we cannot say that it clearly erred in doing so.- 26 -

The defendant asserts that the district court also clearly erred in finding that the third prior conviction was established eve n though the government presented no information relating to it at the sent encing hearing. The defendant, however, did not object to the presenten ce report on the ground that the third conviction was inaccurate; the defendant only contended that he was not the person convicted of the crimes identified i n paragraphs 53 and 54. “Failure to object to a fact in a presentence report, or failure to object at the hearing, acts as an admission of fact.” United States v. Deninno , 29 F.3d 572, 580 (10th Cir. 1994). Thus, the district court was justified in relying on the presentence report for proof of the first convictio n. V. Commerce Clause and Multiple Punishment Challenges The defendant raises two final arguments that this court has previously addressed and rejected. First, the defendant conte nds that Congress lacked the constitutional authority under the Commerce Clause to enact the Hobbs Act. We have held, however, that “[b]ecause the Hobbs Ac t regulates activities that in aggregate have a substantial effect on interstat e commerce,” the Act is a “permissible exercise of the authority granted to C ongress under the Commerce Clause.” United States v. Bolton , 68 F.3d 396, 399 (10th Cir. 1995), cert. denied , 516 U.S. 1137 (1996); see also United States v. Romero , 122 F.3d 1334, 1340 (10th. Cir. 1997), cert. denied , 118 S. Ct. 1310 (1998).- 27 -

The defendant also argues that his convictions viol ate his Fifth Amendment rights. For each of the defendant’s acts of robbery, the jury convicted him of violating both the Hobbs Act (comm itting a robbery affecting interstate commerce) and 18 U.S.C. § 924(c) (using or carrying a weapon during a crime of violence). The crime of violence supporting the defendant’s section 924(c) conviction was the Hobbs Act violati on. The defendant contends that his convictions under both the Hobbs Act and section 924(c) violated the double jeopardy protection against rec eiving multiple punishment for the same conduct. See Blockburger v. United States , 284 U.S. 299 (1932). We have previously rejected this double jeopardy ch allenge, however, because “Congress may impose multiple punishment for the same conduct without violating the Double Jeopardy Clause if it clearly expresses its intent to do so,” and Congress did so in section 924(c). United States v. Overstreet , 40 F.3d 1090, 1093, 1095 (10th Cir. 1994).
Conclusion We hold (1) that the jury selection procedures in t he Wichita-Hutchinson division of the District of Kansas did not deny the defendant the right to a jury drawn from a fair cross-section of the community, ( 2) that the unusual jury selection procedure used in this case did not violate the defendant’s right not to be tried twice for the same offense, (3) that the c ourt did not take an element of- 28 -

the crime away from the jury’s consideration, (4) t hat the court did not clearly err in making its factual determinations related to the Armed Career Criminal sentence enhancement, (5) that Congress did not exc eed its constitutional authority under the Commerce Clause in passing the Hobbs Act, and (6) that the defendant’s convictions under the Hobbs Act and18 U.S.C. § 924(c) do not amount to multiple punishments for the same conduct . We AFFIRM.No. 97-3061, United States v. Shinault

McKAY, Circuit Judge, dissenting:
I concur with everything that the court has said wi th one reservation. I cannot accept the court’s disregard for clear and u nmodified Supreme Court precedent that once a jury is empaneled and sworn, double jeopardy attaches and the defendant has a “‘valued right to have his trial completed by a particular tribunal.’” See Arizona v. Washington , 434 U.S. 497, 503 (1978) (quoting Wade v. Hunter , 336 U.S. 684, 689 (1949)); Downum v. United State s , 372 U.S. 734, 736 (1963); see also United States v. Rich , 589 F.2d 1025, 1030- 31 (10th Cir. 1978). A defendant’s right to have h is trial completed by the original jury is an independent and integral aspectof the Double Jeopardy Clause. See Crist v. Bretz , 437 U.S. 28, 35-36, 38 (1978) (recognizing that a defendant’s right to a particular jury is integral to the guarantee against double jeopardy because it “lies at the foundation of the federal rule that jeopardy attaches when the jury is empaneled and sworn”). The cases which articulate a defendant’s right to aparticular tribunal are easily harmonized with the line of cases requiring some event to terminate the original jeopardy. See Richardson v. United States , 468 U.S. 317, 325 (1984); Justices of Boston Mun. Court v. Lydon , 466 U.S. 294, 309 (1984). The harmony is simple: Once jeopardy attaches, the def endant’s right to a particular tribunal may be overcome if there is man ifest necessity for a mistrial- 2 -

or the defendant requests or consents to a mistrial . In other words, where manifest necessity is found or a defendant requests or consents to a mistrial, the loss of the right does not violate the Double Jeopardy Clause. See Arizona , 434 U.S. at 505; United States v. Dinitz , 424 U.S. 600, 606-07 (1976); Wade , 336 U.S. at 689; Watkins v. Kassulke , 90 F.3d 138, 141 (6th Cir. 1996); Rich , 589 F.2d at 1031-32; see also Illinois v. Somerville , 410 U.S. 458, 463, 468-71 (1973) (holding that despite weighty interest of de fendant in having his fate determined by the jury first empaneled, defendant’s double jeopardy rights were not violated by court’s declaration of mistria l which was required by “manifest necessity” or the “ends of public justice ”) (quoting United States v.
Perez , 9 Wheat. 579, 580 (1824)). More importantly, the Supreme Court has found no conflict between the continuing jeopardy c ases which require a terminating event and the cases which affirm a defe ndant’s right to a particular tribunal. Although Defendant does not appear to have objectedinitially to the replacement of the juror after the original jury wa s empaneled and sworn, I agree with the majority’s footnote that “neither th e court nor counsel made [D]efendant aware of the constitutional right that he was forgoing so that he could make an informed, conscious waiver.” Ante , at 17 n.1; see Rich , 589 F.2d at 1032-33. Thus because Defendant does not appear to have consented or- 3 -

requested a mistrial, and because the trial court m ade no finding of manifest necessity for a mistrial, I believe that the replac ement of the juror and the subsequent trial with a jury different from the ori ginal sworn jury violated Defendant’s right to a particular tribunal and his double jeopardy rights. See Rich , 589 F.2d at 1031-32. Had the trial court taken t he simple measure of having an alternate juror sworn in the first place, we would not be confronted with this problem. Under these circumstances, howe ver, I would reverse the judgment.