United States v. Credit

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 5, 1996
• Docket: 95-20703
• Status: Published

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

No. 95-20703 Summary Calendar _______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JAMES EDWARD CREDIT,

Defendant-Appellant.

_________________________

Appeal from the United States District Court for the Southern District of Texas _________________________

September 4, 1996

Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

James Credit appeals his conviction of, and sentence for,

aggravated bank robbery (specifically, federally insured credit

unions) (in violation of 18 U.S.C. § 2113), robbery of a post

office (in violation of 18 U.S.C. § 2114), and use of a firearm

during a violent crime (in violation of 18 U.S.C. § 924(c)).

Finding no error, we affirm.

I.

Most of the issues that Credit raises on appeal are of little

or no merit, and we can dispose of them with limited discussion. The evidence is easily sufficient, as there were eyewitnesses to

the robbery, and their credibility is left to the jury. There is

no problem with the district court's refusal to sever the counts in

order to try separately each of the five robberies for which Credit

was charged. The robberies were of a similar character and thus

satisfy the standard of FED. R. CRIM. P. 8(a).

The district court's refusal to admit the pen packets of four

other men was not error. Credit has not alleged any personal

connection to the men. He avers only that they have criminal

records for theft, auto theft, and burglary, offenses that have no

bearing on the modus operandi of the robberies at issue here.

Credit challenges the photo identification procedure used to

identify him, asserting that the spread was impermissibly sugges-

tive in that he was the only heavyset subject with a rounded face

in a set of six photographs. The photos were of six men of about

the same age and skin tone. There is no allegation of improperly

suggestive statements made to the witnesses. The procedures

employed for identification were correct.

Credit avers that the district court admitted, without proper

foundation, documents used to establish an essential

elementSSnamely, that the institutions were federally insured. As

Credit failed to object to this evidence at trial, we review for

plain error. There is no showing that Credit's substantial rights

are affected, as he makes no showing that any of the institutions

is not federally insured.

Credit attacks the $15,000 fine, contending that there is no

2 indication that he will ever be able to pay it. The district court

found that he would be able to work and pay the fine, and Credit

did not shoulder his burden of showing otherwise. See United

States v. Altamirano, 11 F.3d 52, 54 (5th Cir. 1993).

II.

Credit contends that the district court erred by refusing to

instruct the jury on the definition of "crime of violence" as that

term is used in 18 U.S.C. § 924(c)(1). He argues that this

deprived him of his right to have the jury determine that he was

guilty of every element of the firearms counts. See United States

v. Gaudin, 115 S. Ct. 2310, 2320 (1995).

In United States v. Jones, 993 F.2d 58, 61 (5th Cir. 1993), a

defendant argued that the court improperly instructed the jury by

charging that it could convict him of a § 924(c)(1) offense if it

found him guilty of an attempted bank robbery count, because that

count charged a "crime of violence." We reversed, holding that the

charge was erroneous, because the attempted robbery count "never

included the essential element of violence in its description of

the crime . . . ." Id. at 62.

Here, by contrast, the court instructed the jury that it must

find that Credit committed robbery "by means of force or violence

or intimidation" and that he "put in jeopardy the life of some

person by the use of dangerous weapon or device." It then told the

jury that, to find Credit guilty of the § 924(c)(1) charge, the

government was required to show that he committed the robberies

3 alleged in the previous counts, and that "robbery of a credit union

or post office is a crime of violence." These instructions were

sufficient, as the previous instructions regarding bank robbery

"included the essential element of violence." See Jones, 993 F.2d

at 62.

Our sister circuits have held that, in the context of jury

charges, the definition of "crime of violence" is a matter of

statutory interpretation that is a "purely legal judgment" for the

court. See United States v. Weston, 960 F.2d 212, 217 (1st Cir.

1992); see also United States v. Moore, 38 F.3d 977, 979 (8th Cir.

1994); United States v. Amparo, 68 F.3d 1222, 1225-26 (9th Cir.

1995), cert. denied, 116 S. Ct. 1055 (1996). We join these

circuits, which have reasoned soundly that this is, indeed, a

question of law that should not be submitted to the jury.

The judgments of conviction and sentence are AFFIRMED.