United States of America, Plaintiff-appellee, v. Harney Elihu Hooper, Jr., Defendant-appellant, 575 F.2d 496 (5th Cir. 1978)

Defendant Harney Elihu Hooper, Jr., president of the police jury in St. Charles Parish, Louisiana, was charged with using his political office to obtain money from various businesses that were operating or seeking to operate in the Parish. Hooper was convicted of twelve counts of extortion and one count of conspiracy in violation of the Hobbs Act, 18 U.S.C. § 1951.¹  Three issues are raised on his appeal which he claims require reversal of his conviction. First, defendant contends that the district court erred in instructing the jury that an effect on interstate commerce had been shown if the Government's evidence was believed. Second, Hooper asserts that the trial court abused its discretion in refusing to allow him and a codefendant more than a joint total of ten peremptory challenges. Finally, defendant urges that the district court committed error by furnishing the jury with a written copy of the jury charges. After reviewing these issues, we find no error, and affirm the conviction.

The district judge in this case instructed the jury that

(i)t is the duty of the Court and not the jury to determine whether the Government's evidence, if you believe it beyond a reasonable doubt, established that interstate commerce was affected by the conduct of the defendants so as to bring the activities of the defendants within the scope of the Hobbs Act and sustain Federal jurisdiction.

In other words, with respect to the interstate commerce aspects of the indictment, you need only to decide whether you believe beyond reasonable doubt the evidence offered by the Government to establish an effect on interstate commerce. Therefore, I charge you that the evidence in this case, if you thus believe it, meets the requirements of Title 18, Section 1951, United States Code, insofar as the conduct of the defendants has affected interstate commerce, and thereby sustains the Court's jurisdiction within the scope of the Hobbs Act.

Defendant relies on the Supreme Court's decision in Stirone v. United States, 361 U.S. 212, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960) in contending that this instruction improperly took the issue of the effect on interstate commerce away from the jury. Such reliance is misplaced, as Stirone involved the narrow question of "whether (the defendant) was convicted of an offense not charged in the indictment." Id. at 213, 80 S. Ct. at 271. In United States v. Hyde, 5 Cir., 1971, 448 F.2d 815, 834-43, cert. denied, 404 U.S. 1058, 92 S. Ct. 736, 30 L. Ed. 2d 745 (1972), this court considered the propriety of an almost identical instruction,²  and concluded that(a)ll of the Hobbs Act cases agree that the court should determine whether the facts alleged meet the statutory requirement of affecting interstate commerce. (citations omitted) This approach is used rather than telling the jury in general terms what it means to affect commerce and allowing the jury to determine whether the facts meet this criterion, because this is a jurisdictional element for which the court has a great responsibility.

Id. at 839. This reasoning is appropriate in the present case, and we therefore reject defendant's contention.³ 

Defendant's insistence that the district court abused its discretion by refusing to allow the two codefendants more than ten peremptory challenges is also without merit. In United States v. Bentley, 5 Cir., 1974, 503 F.2d 957, 958, this court stated that "(t)he number of peremptory challenges afforded a defendant is governed by F.R.Cr.P. Rule 24(b) and the discretion of the judge." Rule 24(b) provides that

(i)f the offense charged is punishable by death, each side is entitled to 20 peremptory challenges. If the offense charged is punishable by imprisonment for more than one year, the government is entitled to 6 peremptory challenges and the defendant or defendants jointly to 10 peremptory challenges. If the offense charged is punishable by imprisonment for not more than one year or by fine or both, each side is entitled to 3 peremptory challenges. If there is more than one defendant, the court may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly.

Defendant asserts that the district court abused its discretion because he was placed in an inferior position to that of the Government, since each defendant in effect had only five peremptory challenges compared to the Government's six. Defendant also claims that there was a conflict of interest between the two defendants, and that the "dilution" of the peremptory challenges by requiring the defendants to jointly exercise the challenges was therefore prejudicial. We are unconvinced by defendant's reasoning. The two defendants exercised their challenges jointly, and defendant Hooper has not shown that there was any actual conflict between the two defendants as to the use of the peremptory challenges in the jury selection. There was no abridgement of defendant's right to exercise peremptory challenges and no evidence that "the jury as finally selected was other than representative and impartial." See United States v. Scott, 5 Cir., 555 F.2d 522, 533, cert. denied, --- U.S. ---, 98 S. Ct. 610, 54 L. Ed. 2d 478 (1977) (where four defendants were allowed a total of twelve challenges and the Government was allowed seven).

The final ground of error put forth by defendant is that the district court incorrectly provided the jury with a written copy of the jury charges. In United States v. Schilleci, 5 Cir., 1977, 545 F.2d 519, this court expressed disapproval of the practice of furnishing the jury with written copies of the jury charge, but stated, however, that the practice was "not error in itself." Id. at 526. As none of the circumstances that created the risk of prejudice in Schilleci is present in this case,⁴  we reject defendant's contention.

AFFIRMED.