UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-10557

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

CHARLES PARKER, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

January 3, 1996

ON PETITION FOR REHEARING

(Opinion August 22, 1995, 5th Cir. 1995, ___ F.3d ___)

January 3, 1996

Before POLITZ, Chief Judge, JONES, and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Appellant Charles Parker, Jr. ("Parker") filed a motion for

clarification and a motion for rehearing in this cause. The

motions are granted and the previous opinion, United States v.

Parker, 62 F.3d 714 (5th Cir. 1995), is withdrawn and the following

opinion is substituted in its place.2

Parker was convicted of six counts of obstructing commerce by

robbery in violation of the H obbs Act, 18 U.S.C. § 1951, and two

counts of using and carrying a firearm during a crime of violence

in violation of 18 U.S.C. § 924(c). We affirm in part, reverse in

part, and remand to the district court for further proceedings.1 Similar instructions were given as to each of the robberies

charged.

3 FACTS AND PROCEEDINGS BELOW

Parker was convicted of robbing six business establishments in

Fort Worth, Texas within a two week period in the Fall of 1993.

His total take was approximately $500. He was charged 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 counts.

JURY INSTRUCTIONS ON INTERSTATE COMMERCE

The district court instructed the jury as follows:

If you believe beyond a reasonable do ubt the

government's evidence regarding the handling of cash

proceeds from the Payless Shoe Store referred to in Count

1 of the indictment, that is, that monies obtained from

the operati ons of such store were routinely wired or

electronically transferred from the State o f Texas for

deposit in a ba nk in another state, then you are

instructed that the interstate commerce element, which I

have just referred to as the third element of the offense

charged by Count 1 of the indictment has been satisfied. 1

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 (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 cha rged. Neither is

surplusage and neither can be treated as

surplusage. The charge that interstate4 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).

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

charged." G audin

, 115 S. Ct. at 2314. In G audin

, the district

court instructed the jury that, t o convict respondent, 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

indi ctment are material statements.'" I d

. 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 t he ultimate

conclusion of guilt or innocence. Id. 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 c ommerce finding. That is

not how we understand Gaudin

. The language from the G audin opinion

describing the jury instruction in that case clearly refers to the5

statements in question as "alleged," leaving open for the jury's

determination the factual iss ue of whether or not the statements

had been made. Id. at 2313. Additionally, the argument advanced

by the government in Gaudin belies the interpretation proposed by

the government here. There, the government argued that the

requirement that the jury decide all elements of a criminal offense

applies only to t he factual components of the essential elements

and not to mixed questions of f act and law. I d. at 2314. The

Supreme Court rejected this argument, holding that indeed even

application-of-legal-standard-to-fact sorts of questions were the

province of the jury. Id. The question taken away from the jury

by th e trial court in G audin is analogous to the circumstance in

the present case: the trial court charged the jury with deciding

if the alleged acts occurred and 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 o n the basis that a different element was taken aw ay from

t he jury by the trial court in this case. In G audin

, it was

materiality; in this case, it was the finding of an effect on

interstate commerce. The government contends that because the

interstat e commerce element is necessary for jurisdiction, it is

appropriately a matter for the judge's determination. In the Fifth

Circuit, prior to Gaudin, t he trial court determined whether the

facts alleged met the statutory requirement of affecting interstate

commerce. United States v. Hyde , 448 F.2d 815, 839-841 (5th Cir.

1971), cert. denied, 404 U.S. 1058, 92 S. Ct. 736, 30 L. Ed. 2d 7452 Thus, the trial judge's instruction was entirely proper at

the time it was given under existing Fifth Circuit precedent.

6 (1972). 2 This approach was used rather than telling the jury in

general terms what it means to affect commerce and allowing the

jury to determine whether the facts meet the criterion, based upon

the premise that effect on interstate commerce is a jurisdictional

element for which the court has great responsibility. Id.; see

also, United States v. Hooper

, 575 F.2d 496, 497 (5th Cir.), cert.

denied , 439 U.S. 895, 99 S. Ct. 256, 58 L. Ed. 2d 242 (1978).

"[O]ne panel may not overrule the decision -- right or wrong

-- of a prior panel, absent en banc reconsideration or a

superseding contrary decision of the Supreme Court." In re Dyke

,

943 F.2d 1435, 1442 (5th Cir. 1991) (citations omitted). However,

Gaudin makes it clear that, although the court must instruct the

jury on the law, criminal defenda nts have a constitutionally

guaranteed right to demand that the jury decide guilt or innocence

on every element, which includes application of the law to the

facts. G audin

, 115 S. Ct . at 2315. In finding constitutional

error, Gaudin provides no basis for distinguishing materiality from

an effect on interstate commerce by labeling the latter

jurisdictional.

Chief Justice Rehnquist, in his concurring opinion, referred

to the "sy llogistic neatness" of the G audin 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 § 1001; therefore, the jury, not the7

Court, must decide the issue of materiality." Gaudin , 115 S. Ct.

at 2320. In applying G audin to the Hobbs Act, we must determine

whether the second premise of the syllogism holds up, i.e.

, whether

affec ting interstate commerce is an element of a Hobbs Act

violati on. The government in G audin did not contest that

materiality was an element of the offense charged. Likewise the

government in this case does not contest that affecting interstate

commerce is an element of a Hobbs Act violation. We find that it

is. Therefore, under Gaudin , it was error for the trial judge to

decide the element of effect on interstate commerce.

However, the Supreme Court explicitly did not determine

whether the constitutional error identified in Gaudin was subject

to a harm less error analysis. G audin

, 115 S. Ct. at 2321

(Rehnquist, C.J., concurring). In C hapman v. California

, 386 U.S.

18, 87 S. Ct. 824, 1 7 L. Ed. 2d 705 (1967), the Supreme Court

rejected the view that all constitutional errors require reversal.

Certain constitutional error s may be harmless in terms of their

effect on the fact-finding process at trial, Delaware v. Van

Arsdall

, 475 U.S. 673, 681, 106 S. Ct. 1431, 1436, 89 L. Ed. 2d 674

(1986), while others, such as total deprivation of the right to

counsel or trial by a biased judge, will always invalidate the

conviction. Sullivan v. Louisiana , ___U.S. ___, 113 S. Ct. 2078,

2080, 124 L. Ed. 2d 182 (1993). We must decide into which category

this particular Gaudin- type error falls.

In this inquiry, different G audin- type errors will produce

different results. While it is error to prevent the jury from8

rendering a v erdict on any element, the harmful-error analysis

differs depending on the particular element excluded from the jury.

For example, Gaudin involved the issue of materiality and noted the

historical significance of decisions indicating that materiality

was a que stion for the jury. G audin

, 115 S. Ct. at 2316-18. In

contrast, the effect on interstate commerce, although an element of

the crime, is purely jurisdictional in nature, with no historical

role whatsoever for the jury in determining the issue. S ee United

States v. Hyde

, 448 F.2d 815, 839 n.34 (5th Cir. 1971), c ert.

denied , 404 U.S. 1058 (1972).

There is a "strong presumption" that constitutional violations

will be subject to harmless-error analysis. S ee Rose v. Clark

, 478

U.S. 570, 579, 106 S. Ct. 3101, 3106-07, 92 L. Ed. 2d 460 (1986).

Indeed, "most constitutional errors can be harmless." Arizona v.

Fulminante

, 499 U.S. 279, 306, 111 S. Ct. 1246, 1263, 113 L. Ed. 2d

302 (1991 ). "Consistent with the jury-trial guarantee, the

question [ Chapman ] instructs the reviewing court to consider is not

what effect the constitutional error might generally be expected to

have upon a reasonable jury, but rather what effect it had upon the

guilty verdict in the case at hand." S ullivan, 113 S. Ct. at 2081.

In the present case, th e error had no effect on the guilty

verdict, in that the error did not change the outcome of the case.

The jury found that the underlying predicate acts to the interstate

commerce element did occur. The trial judge ruled that these acts,

as a matter of law, sufficed to s how an effect on interstate

commerce. The trial judge's ruling was a correct statement of the9

law. The trial judge's only error, under G audin

, was in not

allowing the jury to make that finding.

However, because the trial judge's ruling was a correct

statement of the law and the jury found that the underlying

predicate acts did occur, the error did nothing to change the

outcome of the case because under a correct application of the law,

the verdict would have been guilty regardless. In this respect,

the present case is similar to Victor v. Nebraska

, 114 S. Ct. 1239

(1994), where the Supreme Court held that the proper standard of

reviewing allegedly erroneous jury instructions is whether there is

a reasonable likelihood that the jury applied the instructions in

a way that violates the Constitution. In the present case, because

the jury found that the underlying predicate acts did occur, there

is no reasonable likelihood that the jury would have applied a

proper instruction erroneously. We therefore find the error to be

harmless. S ee also, Yates v. Evatt, 500 U.S. 391, 402, 111 S. Ct.

1884, 1892, 114 L. Ed. 2d 432 (1991) (taint of an unconstitutional

burden-shifting jury instruction subject to harmless-error

analysis); Carella v. California

, 491 U.S. 263, 266, 109 S. Ct.

2419, 2421, 105 L. Ed. 2d 218 (1989) (jury instruction containing

an erroneous mandatory presumption subject to harmless-error

analysis) (per curiam); Pope v. Illinois

, 481 U.S. 497, 502-04, 107

S. Ct. 1918, 1921-23, 95 L. Ed. 2d 439 (1987) (jury instruction

misstating an element of an offense subject to harmless-error

analysis); Rose , 478 U.S. at 580, 106 S. Ct. at 3107 (1986) (jury

instruction containing an erroneous rebuttable presumption subject10

to harmless-error analysis). B ut see, Sullivan

, 113 S. Ct at 2082

(erroneous burden of proof instruction n ot subject to harmlesserror analysis). We do not address whether this same error might

be considered harmful in future cases.

DENIAL OF MOTION TO REOPEN

During opening statements, Park er's attorney told the jury

that Parker did not contest that he committed the robberies.

Rather, his theory of the case was that the "firearm" used in the

robberies was a toy pistol, which his father would testify was

found in Parker's trousers after his arrest. Counsel stated that

the sole eyewitness to the robbery in Count 3, David Fleming, would

admit that the weapon he observed "could have been a toy gun."

Fleming was called as a government witness and on cross

examination denied admitting during an interview with Maria Nava,

a defense investigator, that the gun used in the robbery could have

been a toy gun. The defense called Nava later in the trial but did

not question her about Fleming's statement regarding the gun.

Three of the robberies were videotaped, and no gun was visible in

the video tapes.

On March 8, 1994, both parties rested just before noon, and

the jury was dismissed for a lunch break until 1:00. During the

lunch break, Parker moved to reopen his case so t hat he could

recall Nava and "ask her one question that is crucial to my case."

Specifically, Parker wanted to ask Nava wh ether Fleming had

admitted to her that the gun involved in his robbery could have11

been a toy gun. The government opposed the motion, and the court

denied it orally on the record, stating:

the government would be entitled to rebuttal, and I'm not

sure I want to get in to all of that.

. . . I don't

thi nk we're at a point in the trial that that would be

appropriate, so I'm going to deny that request.

The government emphasized the omission of this testimony by arguing

during closing, "You he ard Mr. Fleming. Nobody tested his

credibility."

We review the denial of a motion to reopen a criminal case for

abuse of discretion. United States v. Walker , 772 F.2d 1172 (5th

Cir. 1985). In exercising its discretion on a motion to reopen a

criminal case after the close of evidence, the district court

must consider the timeliness of the motion, the character

of the testimony, and the effect of the granting of the

motion. The party moving to reopen should provide a

reasonable explanation for failure to present the

evidence in its case-in-chi ef. The evidence proffered

should be relevant, admissible, technically adequate, and

helpful to the jury. . . . [S]uch testimony should not

"imbue the evidence with distorted importance, prejudice

the opposing party's case, or preclude an adversary from

having an adequate opportunity to meet the additional

evidence offered."

Id. at 1177, quoting United States v. Thetford , 676 F.2d 170, 182

(5th Cir. 1982), cert. denied

, 459 U.S. 1148, 103 S. Ct. 790, 74 L.

Ed. 2d 996 (1983). In W alker

, this court reversed the conviction,

finding that the district court abused its discretion in de nying

Walker's motion. The government rested before the end of the day

on a Friday, and Walker moved to reopen the case so that he could

testify at the commencement of court on Monday. Therefore, the

first factor, timeliness, weighed against Walker, but the delay was

termed "minor." Id

. at 1177. Second, the character of the12

tes timony was testimony of the defendant who had not previously

taken the stand, which this court considered of "such inherent

significance" that it weighed "heavily" in favor of the defendant.

Id. at 1178-1179. Third, this court found that the effect of

granting the motion weigh ed slightly in favor of Walker because

there was no showing of prejudice to the government and no

disruption to the orderly flow of testimony or to the district

court's docket. Also, any undue emphasis derived from the timing

could have been remedied by a cautionary instruction. Id. at 1179-

1183. Finally, Walker's excuse for delay, that he was emotionally

upset and unprepared to testify on Fr iday, was found "not

significantly unreasonable." Id . at 1184.

The record does not reveal the weight assigned by the district

court to these enumerated factors in Parker's case. We must

nevertheless apply the factors to Parker. The timeliness of his

motion

-- a delay of one hour, during which the court took its

normal lunch break -- weighs in favor of Parker.

Second, the nature of the testimony was an attack on the

credibility of the only eyewitness to the disputed use of a

firearm. Parker argues that it is crucial and goes to the heart of

the only disputed fact in the case. This was magnified by Parker's

opening argument, when c ounsel told the jury that Fleming would

admit the gun might have been a toy, and by the government's

statement in closing that, "Nobody tested [Fleming's] credibility."

The government responds t hat the "toy gun theory" was adequately

developed through Parker's father's testimony, the defense had the13

opportunity to cross examine Fleming to attack his credibility, and

Nava was not an active participant in the robbery, thereby

minimizing the importance of her testimony. Because the testimony

went to the one disputed fact in the trial and was the only source

of testimony available to Park er to question the eyewitness

account, the second factor weighs in favor of Parker.

Third, there is no contention that reopening testimony would

have disrupted the court's docket. The government contends that

reopening testimony would have confused the jury, prejudiced the

government, and placed undue significance on Nava's additional

testimony. Parker disputes that allowing the testimony right after

lunch would have had any adverse impact on the jury's perception of

the evidence. Neither party addresses the possible effect of a

cautionary instruction in this case. It is clear to us that, with

proper cautionary in s truction, the jury could have adequately

weighed the additional testimony. The third factor therefore

favors Parker.

Finally, the excuse given, that defense counsel simply made a

mistake, seems reasonable and does not appear to be a subterfuge

for seeking delay or unfair advantage.

Not only do all of the Walker factors favor Parker, this

second conviction under 18 U.S.C. § 924(c) results in a mandatory

twenty (20) year sentence which runs consecutively with the five

(5) year sentence imposed as a result of t he first § 924(c)

conviction. Based on the foregoing, we hold that the district

c ourt abused its discretion in denying Parker's motion to reo pen3 Although the erroneously omitted testimony pertained to only

the Fleming robbery, it could have affected the jury's decision as

to the other § 924 robbery as well. Thus, the trial court's error

tainted both § 924 convictions, and both must be reversed.

14 his case as to the § 924(c) convictions. 3 This error had no impact

on the Hobbs Act convictions, and they therefore remain intact.

THE INTERSTATE COMMERCE ELEMENT IN THE INDICTMENT

The indictment alleged that Parker did "obstruct , delay and

affect commerce by robbery" in violation of 18 U.S.C. § 1951 (the

Hobbs Act). That statute criminalizes the act of "affect[ing]

commerce by robbery" and defines commerce in a separate section as

interstate commerce. 18 U.S.C. § 1951(b)(3). However, there is

nothing in the indictment itse lf either alleging an impact on

interstate commerce specifically or alleging facts which amount to

an effect on interstate commerce.

An indictment must allege every element of a charged offense

in order to insure that the defendant has been accorded the

protection guaranteed by the Fifth Amendment of a grand jury's

finding that there is probable cause to believe that the defendant

committed the charged crime. S ee United States v. Deisch

, 20 F.3d

139 (5th Cir. 1994). As stated earlier, an effect on i nt erstate

commerce is an essential element of a Hobbs Act violation.

The district court and the government rely on United States v.

Williams

, 679 F.2d 504 (5th Cir. 1982), cert. denied

, 459 U.S.

1111, 103 S. Ct. 742, 74 L. Ed. 2d 963 (1983), which held that an

indictment that alleged effects on interstate commerce in

conclusory terms (without factual specifici ty) was not fatally4 "Whoever, during and in relation to any crime of violence or

drug trafficking crime . . . for which he may be prosecuted in a

court of the United States, uses or carries a f irearm, shall, in

15 insufficient. That reliance is misplaced. Unlike the present

case, the indictment in Willi ams did allege effect on interstate

commerce, id. at 508, so the issue before this panel was not at

issue in Williams. However, in U nite d States v. Gipson , 46 F.3d

472, 474 (5th Cir. 1995), this court held that an indictment that

charged a Hobbs Act violation in language vir tually identical to

that used in this case was adequate. We therefore find no merit in

Parker's contention.

DOUBLE JEOPARDY

In two of the robberies, Parker was charged and convicted of

violation of both 18 U.S.C. § 1951 and 18 U.S.C. § 924(c). Parker

contends that under the test set out in Blockburger v. United

States

, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 2d 535 (1932) (each

conviction must require proof of a fact or element that the other

does not), these two convictions violate the double j eopardy

prohibition.

This Circuit has acknowledged that the "same eleme nts" test

still controls. United States v. Martinez , 28 F.3d 444, 446 (5th

Cir.), cert. de nied, 115 S. Ct. 281, 130 L. Ed. 2d 197 (1994).

Martinez case held that §§ 1951 and 924(c)(1) passed the

Blockburger test because § 1951 requires proof of threats or force

but not possession of a weapon, while § 924 requires proof that the

defendant used or carried a weapon but not that the weapon was used

for threat or force. 4 Additionally, subsequent to M a rtinez thisaddition to the punishment provided for such crime . . . be

sentenced to impris onment for five years . . . ." 18 U.S.C. §

924(c)(1). It could be argued that in order to convict under §

924, the government has to prove every element of the cri me of

violence relied on, and therefore under the Blockburger test there

is no element of § 1951 which is not a necessary element of § 924.

However, that argument has been foreclosed by Martinez

.

16 court again addressed the issue in United States v. Gonzales

, 40

F.3d 735 (5th Cir. 1994), cert. denied, 115 S. Ct. 1716, 131 L. Ed.

2d 575 (1995), holding that cumulative sentences imposed pursuant

to § 924 are permissible because the legislature intended to

authorize such punishments.

We therefore hold that Fifth Circuit precedent for ecloses

Parker's position.

CONCLUSION

We AFFIRM Parker's Hobbs Act convictions, REVERSE his § 924(c)

convictions, VACATE his sentence, and REMAND this cause to the

district court for further proceedings c onsistent with this

opinion.

AFFIRMED IN PART, REVERSED IN PART, VACATED and REMANDED.