United States v. Benjamin , 129 F. App'x 887 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 26, 2005
Charles R. Fulbruge III
Clerk
No. 04-50553
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DALE A. BENJAMIN, also known as
Dale Benjamin,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:03-CR-272-ALL-SS
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Dale Benjamin appeals from his jury-trial conviction for
being a felon in possession of a firearm in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2). Benjamin argues that the trial
court violated his protection against double jeopardy when the
court declared a mistrial and a second jury found him guilty of
the charged offense, that the trial court committed errors with
*
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this opinion should not be published and is not precedent except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.
No. 04-50553
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respect to an Allen1 charge, that the evidence was insufficient
to establish possession of a firearm, and that 18 U.S.C. § 922(g)
is unconstitutional.
Double jeopardy
Benjamin did not contemporaneously and expressly object to
the trial court’s sua sponte declaration of a mistrial at trial,
but filed his “motion to bar retrial on grounds of double
jeopardy” nearly two weeks after the trial court declared a
mistrial. Accordingly, his double jeopardy argument is waived by
implied consent. See United States v. Palmer, 122 F.3d 215, 218-
19 (5th Cir. 1997); United States v. Nichols, 977 F.2d 972, 973-
75 (5th Cir. 1992) (when a defendant “does not object timely to
the declaration of a mistrial, his double jeopardy claim may be
vitiated by his consent.”).
Allen charge
Benjamin argues that the trial court issued an improper
modified Allen charge, erred in giving the jury a typewritten
Allen charge, and failed to give the jury a second standard Allen
charge. Because Benjamin failed to raise these objections at
trial, they are reviewed for plain error. See United States v.
McClatchy, 249 F.3d 348, 359 (5th Cir. 2001).
First, the modified Allen charge that the trial court gave
to the jury was neither coercive nor prejudicial. See id.
Rather, the trial court encouraged the jurors to continue
1
Allen v. United States, 164 U.S. 492, 501-02 (1896).
No. 04-50553
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deliberating without surrendering any firm convictions. Benjamin
does not allege that the trial court’s modified Allen charge
imposed a coercive deadline, contained threats regarding lengthy
deliberations, or pressured the views of minority jurors. See
United States v. Solomon, 565 F.2d 364, 366 (5th Cir. 1978).
Second, Benjamin argues that the trial court was required to
issue the jury an Allen charge by an oral instruction instead of
through a typewritten form. Benjamin fails to demonstrate plain
error with respect to this format. See Solomon, 565 F.2d at 366.
Finally, Benjamin argues that the trial court erred in
failing to issue the jury a second Allen charge that conformed to
a standard pattern jury charge. Benjamin provides no authority
for his argument that the trial court was required to issue
another Allen charge after the court’s first modified charge had
failed. Accordingly, Benjamin cannot establish plain error with
respect to his Allen charge arguments. See Solomon, 565 F.2d at
366.
Sufficiency of the evidence
Benjamin argues that the evidence was insufficient to
establish that he possessed the firearm. Benjamin properly
preserved this issue by unsuccessfully moving for a judgment of
acquittal at the close of the Government’s case and at the close
of all evidence; therefore, this issue is reviewed de novo. See
United States v. Izydore, 167 F.3d 213, 219 (5th Cir. 1999).
No. 04-50553
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The record contains testimony from the officer who pursued
Benjamin and observed him carrying a firearm. Although Benjamin
argues that this testimony was incredible, the jury was entitled
to believe the testimony of the officer. See United States v.
Gadison, 8 F.3d 186, 190 (5th Cir. 1993).
Constitutionality of 18 U.S.C. § 922(g)
For the first time on appeal, Benjamin argues that 18 U.S.C.
§ 922(g) is unconstitutional because the Government failed to
establish a sufficient nexus between the firearm that he
possessed and interstate commerce. Benjamin acknowledges that
his argument is foreclosed by this court’s precedent; however, he
raises the argument to preserve it for Supreme Court review.
This court has emphasized that the constitutionality of
§ 922(g) is not open to question. United States v. Daugherty,
264 F.3d 513, 518 (5th Cir. 2001). A panel of this court cannot
overrule a prior panel’s decision in the absence of an
intervening contrary or superseding decision by this court
sitting en banc or by the United States Supreme Court. United
States v. Short, 181 F.3d 620, 624 (5th Cir. 1999). No such
decision exists. Benjamin’s argument is foreclosed. The
judgment of the trial court is AFFIRMED.