                  UNITED STATES COURT OF APPEALS

                       For the Fifth Circuit



                            No. 90-8598




                     UNITED STATES OF AMERCIA,

                                                 Plaintiff-Appellee,


                              VERSUS


                       JAMES EDWARDS EVANS,

                                                 Defendant-Appellant.




          Appeal from the United States District Court
                For the Western District of Texas
                          (April 9, 1992)
                     ON PETITION FOR REHEARING
     (Opinion December 18, 1991, 5th Cir. 1991, __ F.2d __)


Before WISDOM, HIGGINBOTHAM, and SMITH, Circuit Judges.
PER CURIAM:
     IT IS ORDERED that the petition for rehearing filed in the
above entitled and numbered cause be and the same is hereby
DENIED.
     The panel reversed the appellant's conviction on count 1
because his argument that insufficient evidence supported that
conviction was itself insufficient to justify a reversal of his
conviction.   The trial court's instruction as to the felonious
nature of the defendant's earlier conviction (a conviction to
which he had stipulated) took away no fact-finding
                                  2

responsibilities from the jury.   This Court has written that the
judge's obligation to submit questions of fact to the jury
     does not require that the judge submit all issues
     regarding elements of an offense to the jury. Rather,
     . . . the pertinent inquiry in determining whether an
     issue should be submitted to the jury is whether that
     issue depended upon the probative value of the
     evidence. . . . There are issues which do not depend
     on the probative value of the evidence, and should,
     therefore, be decided by the judge, not the jury.1

     The trial judge properly found, and instructed the jury, as

to the elements of Evans's earlier conviction.   A retrial of

count 1 will not violate the appellant's constitutional rights

under the double jeapordy clause.




     1
        United States v. Vidaure, 861 F.2d 1337, 1340 (5th Cir.
1988), cert.denied, 489 U.S. 1088 (1989).
