IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 97-10811 _____________________

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 (4:94-CR-002) _________________________________________________________________

October 22, 1999

Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

In United States v. Parker,

(5th Cir. 1997), our

court affirmed the convictions of Parker under the Hobbs Act for

six counts of obstructing commerce by robbery. Our court reversed

and remanded his convictions under

(c) for using a

firearm during the commission of a federal crime of violence, i.e.,

the robberies. On retrial, Parker has again been convicted on the

section 924(c) counts. He now appeals those convictions. He

contends that the evidence presented at the trial on remand to

support the commission of the predicate offenses (the robberies

under the Hobbs Act that we previously affirmed) was insufficient

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. to support his convictions for the section 924(c) offense of

carrying a gun during a crime of violence that is prosecutable in

federal court. Specifically, he argues that the government failed

to present any evidence in this second trial that the robberies

affected interstate commerce. Parker also argues that if the

evidence was sufficient, the court erroneously instructed the jury

in regard to the section 924(c) offenses. We affirm the judgment

of convictions.

Although we affirm Parker’s convictions, we are unable to

agree upon a uniform analysis to reach this result. Judge Jolly

concludes that the evidence is sufficient with respect to the

underlying predicate offense because Parker testified that he was

convicted of the robberies alleged in the indictment. Judge Jolly

further concludes that the admission of the specific convictions is

an admission of all of the elements of those crimes necessary to

support those convictions. He would also observe that only the

fact of the predicate offense need be proved for a section 924(c)

conviction, not each element of the offense. On the other hand,

especially in the light of Parker’s admission at the second trial

that he committed the robberies, Judge Barksdale would affirm the

convictions under the doctrine of law of the case, that is,

inasmuch as our previous opinion specifically decided that the

government had proved all the elements of the predicate offense,

including the jurisdictional element, he would not allow that fact

to be retried again in this same case. Thus, although based on

2 different analyses, both Judge Jolly and Judge Barksdale agree that

proof of the predicate offense has been satisfied, and thus join to

affirm the section 924(c) convictions of Parker.

Judge Benavides dissents. He concludes that Parker’s

statement that he had been convicted of the two robberies that

“we're talking about here” is insufficient evidence to establish

the interstate element of the predicate offense. Judge Benavides

would not apply, and is unaware of any case which has applied, the

law of the case doctrine to impose one element in a jury's verdict

on a different jury considering a separate and distinct offense.

He further concludes that the application of that doctrine here

would amount to a de facto application of the doctrine of

collateral estoppel against the defendant in the new trial on

remand, which would have the effect of relieving the government of

its constitutional burden of proving the elements of the section

924(c) offenses beyond a reasonable doubt. Judge Benavides

concludes that although the government could have introduced the

previous robbery convictions, affirmed by this court, as evidence

to prove the interstate element of the predicate offenses on

remand, he points out that is not what happened at trial. Although

the government was apparently willing to present evidence of these

previous convictions, and offered to do so, the district court

precluded the government’s introduction of that evidence on the

grounds that it was unnecessary, notwithstanding that at all times

the defendant insisted that the interstate commerce nexus be proved

3 and that such an essential element was for the jury to determine.

Thus, Judge Benavides would reverse the section 924(c) convictions

for insufficiency of the evidence to establish the interstate

element of the predicate offense. Furthermore, Judge Benavides

would hold that the district court committed serious and reversible

error by peremptorily instructing the jury that, because a

conviction had already been obtained on the Hobbs Act robberies

which constituted the predicate offenses of the section 924(c)

counts, the jury need only consider whether a gun was used in

relation to the robberies. Thus, the court's instruction denied

Parker, whose defense was based on a deficiency of the nexus

element, his right to have the jury determine the nexus element of

the section 924(c) prosecution and denied Parker his theory of

defense.

In sum, with Judge Benavides dissenting, the judgment is

A F F I R M E D.

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