United States v. Charles Parker, Jr.

104 F.3d 72, 1997 WL 11652

Opinions

ROBERT M. PARKER, Circuit Judge:

We granted rehearing en banc to consider whether the district court correctly instructed the Appellant Charles Parker, Jr.’s (“Parker”) jury on the elements of a Hobbs Act offense, 18 U.S.C. § 1951, and whether, if the instruction was erroneous, the error was subject to a harmless error analysis.

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 record and the briefs and arguments of the parties, we have determined that the trial court committed no Gau-din-type error. Any error that existed in the charge given below was harmless. We therefore leave for another 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, including 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 § 924(c) convictions, VACATE his sentence, and REMAND this cause to the district court for further proceedings consistent with this opinion.

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