United States v. Credit ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-20703
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JAMES EDWARD CREDIT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
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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
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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
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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.
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