Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-10557
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES PARKER, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
August 22, 1995
Before POLITZ, Chief Judge, JONES, and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Appellant, Charles Parker, Jr. ("Parker") was convicted of six
counts of obstructing commerce by robbery, in violation of the
Hobbs Act, 18 U.S.C. § 1951, and two counts of using and carrying
a firearm during a crime of violence, in violation of 18 U.S.C. §
924(c). We vacate and remand.
FACTS AND PROCEEDINGS BELOW
Parker robbed six business establishments in Fort Worth, Texas
within a two week period in the Fall of 1993. His total take was
approximately $500. Two additional counts charged him with use of
a firearm during two of the robberies.

Parker pleaded not guilty and the cases were tried to a jury.
During opening statements, Parker's attorney told the jury that
Parker did not contest that he committed the robberies. Rather,
his theory of the case was that the "firearm" used in the robberies
was a toy pistol, which his father would testify was found in his
trousers after his arrest. Counsel stated that the sole eyewitness
to the robbery in Count 3, David Fleming, would admit that the
weapon he observed "could have been a toy gun."
Fleming was called as a government witness and on cross
examination denied admitting during an interview with Maria Nava,
a defense investigator, that the gun used in the robbery could have
been a toy gun. The defense called Nava later in the trial, but
did not question her about Fleming's statement regarding the gun.
Three of the robberies were video taped, and no gun was visible in
the video tapes.
On March 8, both parties rested just before noon, and the jury
was dismissed for lunch break until 1:00. During the lunch break,
Parker moved to reopen his case, so that he could recall Nava and
"ask her one question that is crucial to my case." Specifically,
Parker wanted to ask Nava whether Fleming had admitted to her that
the gun involved in his robbery could have been a toy gun. The
government opposed the motion, and the court denied it orally, on
the record, stating:
the government would be entitled to rebuttal, and I'm not
sure I want to get in to all of that....I don't think
we're at a point in the trial that that would be
appropriate, so I'm going to deny that request.
The government emphasized the omission of this testimony by
2

arguing during closing, "You heard Mr. Fleming. Nobody tested his
credibility."
DENIAL OF MOTION TO REOPEN
We review the denial of a motion to reopen a criminal case for
abuse of discretion. United States v. Walker, 772 F.2d 1172 (5th
Cir. 1985). In exercising its discretion on a motion to reopen a
criminal case after the close of evidence, the district court
must consider the timeliness of the motion, the character
of the testimony, and the effect of the granting of the
motion. The party moving to reopen should provide a
reasonable explanation for failure to present the
evidence in its case-in-chief. The evidence proffered
should be relevant, admissible, technically adequate, and
helpful to the jury...[S]uch testimony should not 'imbue
the evidence with distorted importance, prejudice the
opposing party's case, or preclude an adversary from
having an adequate opportunity to meet the additional
evidence offered.'
Id. at 1177, quoting United States v. Thetford, 676 F.2d 170, 182
(5th Cir. 1982). This Court reversed Walker's conviction, finding
that the district court abused its discretion in denying Walker's
motion. The government rested before the end of the day on a
Friday, and Walker moved to reopen the case so that he could
testify at the commencement of court on Monday. Therefore, the
first factor, timeliness, weighed against Walker, but the delay was
termed "minor." Id. at 1177. Second, the character of the
testimony was testimony of the defendant who had not previously
taken the stand, which the court considered of "such inherent
significance" that it weighed "heavily" in favor of the defendant.
Id. at 1178-1179. Third, this Court found that the effect of
granting the motion weighed slightly in favor of Walker, because
3

there was no showing of prejudice to the government, and no
disruption to the orderly flow of testimony or to the court's
docket. Also, any undue emphasis derived from the timing could
have been remedied by a cautionary instruction. Id. at 1179-1183.
Finally, Walker's excuse for delay, that he was emotionally upset
and unprepared to testify on Friday, was found "not significantly
unreasonable." Id. at 1184.
The record does not reveal the weight assigned by the district
court to these enumerated factors in Parker's case. We must
nevertheless apply the factors to Parker. The timeliness of his
motion -- a delay of one hour, during which the court took its
normal lunch break -- weighs in favor of Parker. Second, the
nature of the testimony was an attack on the credibility of the
only eyewitness to the disputed use of a firearm. Parker argues
that it is crucial and goes to the heart of the only disputed fact
in the case. This was magnified by Parker's opening argument, when
counsel told the jury that Fleming would admit the gun might have
been a toy, and by the government's statement in closing that,
"Nobody tested [Fleming's] credibility." The government responds
that the "toy gun theory" was adequately developed through Parker's
father's testimony, the defense had the opportunity to cross
examine Fleming to attack his credibility, and Nava was not an
active participant in the robbery, thereby minimizing the
importance of her testimony. Because the testimony went to the one
disputed fact in the trial, and was the only source of testimony
available to Parker to question the eyewitness account, the second
4

factor weighs in favor of Parker. Third, there is no contention
that reopening testimony would have disrupted the court's docket.
The government contends that reopening testimony would have
confused the jury, prejudiced the government, and placed undue
significance on Nava's additional testimony. Parker disputes that
allowing the testimony right after lunch would have had any adverse
impact on the jury's perception of the evidence. Neither party
addresses the possible effect of a cautionary instruction in this
case. It is clear to us that, with proper cautionary instruction,
the jury could have adequately weighed the additional testimony.
The third factor therefore favors Parker. Finally, the excuse
given, that defense counsel simply made a mistake, seems reasonable
and does not appear to be a subterfuge for seeking delay or unfair
advantage.
Not only do all of the Walker factors favor Parker, this
second conviction under 18 U.S.C. § 924(c) results in a mandatory
twenty (20) year sentence which runs consecutively with the five
(5) year sentence imposed as a result of the first § 924(c)
conviction. Based on the foregoing, we hold that the district
court abused its discretion in denying Parker's motion to reopen.
CONCLUSION
Because of our dispostion of this question, we find it
unnecessary to reach Parker's remaining points of error. Parker's
conviction is VACATED, and the case is REMANDED to the district
court for further proceedings consistent with this opinion.

5