                                                       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.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                   USDC No. 1:03-CR-272-ALL-SS
                       --------------------

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this opinion should not be published and is not precedent except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
                                    -2-

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
                                    -3-

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
                                  -4-

     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.
