United States v. Gray

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-10797 Summary Calendar __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DERRICK ARNOLD GRAY; LARRY WAYNE WALKER,

Defendants-Appellants.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 3:95-CR-45 - - - - - - - - - - July 11, 1996

Before HIGGINBOTHAM, EMILIO M. GARZA and BENAVIDES, Circuit Judges.

PER CURIAM:*

The Government argues that the evidence should be reviewed

for plain error because the appellants did not reurge their

motion for acquittal at the conclusion of the evidence.

We reject the Government's argument because the record

reflects that the parties and the district court agreed that the

appellants' motion for acquittal made at the close of the

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 95-10797 -2-

Government's case would be considered as having been reurged at

the conclusion of all evidence.

Derrick Arnold Gray and Larry Wayne Walker argue that the

evidence was insufficient to support their convictions for

carjacking because the Government failed to prove that the

carjacked vehicle had been transported, shipped, and received in

interstate commerce.

We have reviewed the record, including the trial

transcripts, the district court's rulings, and the briefs of the

parties, and find that the appellants' carjacking convictions

should be affirmed.

Viewing the evidence in the light most favorable to the

verdict, a rational jury could have found beyond a reasonable

doubt that the carjacked vehicle had been transported in

interstate commerce. See United States v. Johnson, 22 F.3d 106,

108-09 (6th Cir. 1994).

The appellants have abandoned on appeal their argument that

the district court erred in denying their motion to dismiss the

indictment because the Government failed to show that the

offenses committed by the appellants had a direct effect on

interstate commerce. See Brinkmann v. Dallas County Deputy

Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

AFFIRMED.