                          UNITED STATES COURT OF APPEALS
                                      Tenth Circuit
                           Byron White United States Courthouse
                                    1823 Stout Street
                                 Denver, Colorado 80294
                                     (303) 844-3157
Patrick J. Fisher, Jr.                                                         Elisabeth A. Shumaker
       Clerk                                                                     Chief Deputy Clerk

                                        September 1, 1998


       TO: ALL RECIPIENTS OF THE OPINION

       RE: 97-3061, United States v. Shinault
           Filed on July 8, 1998


              The opinion filed on July 8, 1998, contains two typographical errors. On page
       10 of the slip opinion, in the chart, the percentage of qualified Hispanic veniremen
       should read “1.50%”, not “.14%”. On page 23, the first sentence of the second
       paragraph should read: “The court did not tell the jury that if they believed the
       government’s evidence, they had to find the interstate commerce element satisfied. ”

               Please make the corrections to your copy of the slip opinion.

                                                     Very truly yours,

                                                     Patrick Fisher, Clerk


                                                     Keith Nelson
                                                     Deputy Clerk
                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        JUL 8 1998
                                     PUBLISH
                                                                     PATRICK FISHER
                                                                            Clerk
                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

       v.                                              No. 97-3061

 MICHAEL D. SHINAULT,

             Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF KANSAS
                     (D. Ct. No. 95-10072-01)


Timothy J. Henry, Assistant Federal Public Defender (David J. Phillips, Federal
Public Defender, with him on the briefs), Wichita, Kansas, appearing for
Defendant-Appellant.

James E. Flory, Assistant United States Attorney, Office of the United States
Attorney, Topeka, Kansas (Jackie N. Williams, United States Attorney, and David
M. Lind, Assistant United States Attorney, Wichita, Kansas, on the brief),
appearing for Plaintiff-Appellee.


Before TACHA, MCKAY, and BRISCOE, Circuit Judges.


TACHA, Circuit Judge.



      At approximately 3:00 a.m. on July 11, 1995, Defendant Michael Shinault
entered a Food-4-Less grocery store in Wichita, Kansas. Armed with a semi-

automatic pistol, he robbed the store of $250. About an hour later, the defendant

committed a similar armed robbery of a Total gas station, netting about $40. The

defendant was charged with two counts of violating the Hobbs Act, 18 U.S.C. §

1951 (interfering with interstate commerce by robbery), two counts of violating

18 U.S.C. § 924(c) (using or carrying a weapon during a crime of violence), and

one count of violating 18 U.S.C. § 922(g)(1) (being a felon in possession of a

firearm). A jury returned a guilty verdict on all counts. The defendant now

appeals his conviction on several grounds, including contentions that the trial

violated his constitutional protection against double jeopardy and that

underrepresentation of minority racial groups in the pool from which his jury was

drawn violated his Sixth Amendment right to an impartial jury. We exercise

jurisdiction under 18 U.S.C. § 1291 and affirm.

      The defendant went to trial in the Wichita-Hutchinson division of the

District of Kansas. After voir dire, a jury with no alternates was sworn. At that

point, one of the jurors noted that she had child-care responsibilities that would

make it difficult for her to serve on the jury. The district court excused that juror

and, without objection from either the government or the defense, swore in

another juror. The jury found the defendant guilty of all the charged crimes. At

the sentencing phase, the district court applied the Armed Career Criminal


                                         -2-
enhancement to the defendant’s sentence, based on his previous criminal history.

The defendant’s term of imprisonment totaled 562 months.

      The defendant appeals on the following grounds: (1) that the jury selection

procedures in the District of Kansas denied him his Sixth Amendment right to a

jury drawn from a fair cross-section of the community; (2) that the unusual jury

selection procedure used in this case violated the Double Jeopardy Clause of the

Fifth Amendment; (3) that the court’s instructions to the jury regarding his Hobbs

Act crimes effectively removed one element of the crime from the jury’s

consideration; (4) that the court based the Armed Career Criminal sentence

enhancement on insufficient evidence; (5) that Congress did not have the power

to enact the Hobbs Act; and (6) that the defendant’s convictions under the Hobbs

Act and 18 U.S.C. § 924(c) violated the Double Jeopardy Clause by imposing

multiple punishments on the defendant for the same conduct.

I.    Jury Composition

      The defendant first asserts that the jury selection system in the Wichita-

Hutchinson division of the District of Kansas violates the Sixth Amendment and

the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861, et seq., because it

systematically excludes Asians, Blacks, and Hispanics from jury service. The

Sixth Amendment grants criminal defendants the right to trial by an impartial

jury. U.S. C ONST . amend. VI. A jury selection system violates that right if the


                                        -3-
system does not draw its jury members from a fair cross section of the

community. See Taylor v. Louisiana, 419 U.S. 522, 530 (1975). Similarly, the

Jury Act “ensure[s] that potential grand and petit jurors are selected at random

from a representative cross section of the community and that all qualified

citizens have the opportunity to be considered for service.” United States v.

Bearden, 659 F.2d 590, 593 (5th Cir. 1981), quoted in United States v. Contreras,

108 F.3d 1255, 1265 (10th Cir.), cert. denied, 118 S. Ct. 116 (1997). Because the

Jury Act’s fair cross section requirement parallels a defendant’s Sixth Amendment

right to trial by an impartial jury, the defendant’s Jury Act challenge and his

constitutional challenge are both evaluated under the Sixth Amendment standard.

See United States v. Test, 550 F.2d 577, 584-85 (10th Cir. 1976) (en banc)

(quoting Taylor, 419 U.S. at 528-30 & n.11).

      We review the district court’s factual determinations relevant to the

defendant’s Sixth Amendment and Jury Act challenge for clear error, see United

States v. Gault, -- F.3d --, 1998 WL 177982, at *1 (10th Cir. April 16, 1998), but

we review de novo the court’s legal determination whether a prima facie violation

of the fair cross-section requirement has occurred. See United States v.

Sanchez-Lopez, 879 F.2d 541, 546 (9th Cir. 1989).

      The Jury Act requires, as a procedural matter, that a defendant’s motion

challenging a district’s jury selection process contain “a sworn statement of facts


                                         -4-
which, if true, would constitute a substantial failure to comply with the [Act].”

28 U.S.C. § 1867(d). The defendant did not file such a sworn statement in this

case, though he did file a motion with this court to supplement the record on

appeal with such a statement. Even though the Tenth Circuit interprets the sworn

statement requirement strictly, see Contreras, 108 F.3d at 1267, in this case, “it is

unnecessary to address section 1867, because the merits dispute properly raised,

briefed, and argued by the parties, and carefully considered by the district court,

presents an unsurmountable barrier for the appellant,” United States v. Pion, 25

F.3d 18, 22 n.3 (1st Cir. 1994), regardless of the impact of Shinault’s alleged

procedural shortcomings on either his statutory challenge or his constitutional

challenge.

      In substance, the Jury Act sets forth guidelines for selecting grand and petit

juries in federal courts. See 28 U.S.C. § 1861. It requires that each judicial

district devise a plan for randomly selecting jurors based on voter registration

rolls or lists of actual voters. See id. § 1863(b)(2). The plan adopted by the

District of Kansas provides for the random selection of prospective grand and

petit jurors from the official lists of actual voters in each of the counties in the six

divisions in Kansas. See D. Kan. R. 38.1. The names of individuals selected

from the actual voter lists are placed on a “Master Jury Wheel” for the division in

which the individuals reside. The clerk of the court draws names as needed from


                                          -5-
the divisional master wheel and mails a jury qualification form to the selected

individuals. The form asks the potential jurors to identify their racial and ethnic

background. All individuals who return the forms, are eligible for service, and

are not excused from service, are placed on the “Qualified Jury Wheel.” One is

ineligible to sit on a jury if he or she is not an American citizen, is not eighteen

years old, has not resided in the judicial district for at least one year, cannot speak

or understand English, is physically or mentally incapable of serving, or is a

felon. See 28 U.S.C. § 1865(b). Moreover, certain classes of persons, such as

active military personnel, are barred as exempt, and others, such as volunteer

safety personnel, will be excused upon request. See id. § 1863(b)(5),(6). Once

the qualified wheel has been stocked, jury venires are randomly selected from the

qualified wheel. The defendant argues that this method of jury selection,

particularly reliance on lists of actual voters, systematically excludes Asians,

Blacks, and Hispanics from jury service in the Wichita-Hutchinson Division of

the District of Kansas.

      In order to establish a prima facie case that a jury selection system violates

the Sixth Amendment fair cross section requirement, a defendant must

demonstrate:

      (1) that the group alleged to be excluded is a “distinctive”
      group in the community; (2) that the representation of this
      group in venires from which juries are selected is not fair and
      reasonable in relation to the number of such persons in the

                                          -6-
     community; and (3) that this underrepresentation is due to
     systematic exclusion of the group in the jury-selection process.

Duren v. Missouri, 439 U.S. 357, 364 (1979). If the defendant proves a prima

facie violation, the government then bears the burden of proving that attainment

of a fair cross section is incompatible with a significant state interest. See id.

at 368.

      The defendant identifies three groups that are allegedly unfairly

represented in the District of Kansas’s jury system: Asians, Blacks, and

Hispanics. The defendant need not belong to any of these groups in order to

have standing to object to their exclusion from jury service. See Taylor, 419

U.S. at 526. The government concedes that Asians, Blacks, and Hispanics are

all distinctive groups.

      A. Unfair Representation

             1. The Relevant Statistics

      The second element of the prima facie case requires the defendant to

show that representation of the distinctive groups on jury venires in the District

of Kansas “is not fair and reasonable in relation to their numbers in the

community.” Duren, 439 U.S. at 364. The defendant and the government

disagree about how the three groups’ “numbers in the community” should be

measured. The defendant compares the minorities’ percentages on the qualified

wheel to the minorities’ percentages among the entire voting-age population in

                                          -7-
the Wichita-Hutchinson division. The government contends that the court

should compare the minorities’ percentages on the qualified wheel to their

percentages among that portion of the entire voting-age population that is

eligible to sit on juries.

       The government’s position has “intellectual merit.” United States v.

Rioux, 97 F.3d 648, 657 (2d Cir. 1996). The defendant’s method (comparing

the minorities’ percentages on the qualified wheel to their percentage in the

entire community) involves a comparison between a population that meets the

eligibility requirements to a population of both eligible and ineligible people.

See id. As the government contends, however, to accurately evaluate whether

the District of Kansas’s use of actual voter lists violates the Sixth Amendment,

we should compare the percentage of minorities in the qualified wheel to the

percentage of minorities in the segment of the general population that is

eligible to serve on juries. Otherwise, it will be difficult to ascertain whether a

disparity is attributable to the district’s use of actual voter lists or to the general

eligibility criteria. For instance, if the percentage of Asians on the qualified

wheel were much smaller than the percentage of Asians in the general

population, we would not know whether the disparity existed because of the

district’s use of actual voter lists or simply because members of that group are

ineligible for jury service at a higher rate than the general population (if, for


                                          -8-
example, many Asians were not United States citizens or did not speak

English). To negate the possibility that the disparities result from the general

eligibility requirements, we would have to compare the qualified wheel to the

portion of the general population that is eligible to serve. See United States v.

Esle, 743 F.2d 1465, 1479 n.3 (11th Cir. 1984) (Tjoflat, J., concurring).

However, there is apparently no reliable measurement of that subset of the

general population.

      Thus, despite the shortcomings of the defendant’s statistical method, we

find that his method of comparison was appropriate under the circumstances of

this case. See Rioux, 97 F.3d at 657 (finding general figures acceptable where

more detailed figures were not available). The defendant derived his

population data from the most recent census, a practice that the Supreme Court

has found adequate in the past. See Duren, 439 U.S. at 364-65 & nn. 22-24.

We now turn to the defendant’s statistics and ask if they show that Asians,

Blacks, or Hispanics are unfairly represented on juries in the Wichita-

Hutchinson division of the District of Kansas.

             2. The Statistical Showing

      In determining whether a group has been underrepresented on jury

venires, “courts generally rely on two methods of comparison: absolute

disparity and comparative disparity.” Gault, -- F.3d at --, 1998 WL 177982, at


                                        -9-
2. Absolute disparity measures the difference between the percentage of a

group in the general population and its percentage in the qualified wheel. For

instance, if Asians constitute 10% of the general population and 5% of the

qualified wheel, the absolute disparity is 5%. Comparative disparity measures

the decreased likelihood that members of an underrepresented group will be

called for jury service, in contrast to what their presence in the community

suggests it should be. This figure is determined by dividing the absolute

disparity of the group by that group’s percentage in the general population. In

the example above, the comparative disparity is 50%: Asians are half as likely

to be on venires as they would be if represented in proportion to their numbers

in the community.

      In this case, the relevant numbers are as follows:

 Distinctive          Asian                 Black                Hispanic
 Group
 Percentage of        1.27%                 5.11%                2.92%
 voting age
 population
 Percentage of        .51%                  2.55%                1.50%
 qualified
 veniremen
 Absolute             .76%                  2.56%                1.42%
 Disparity
 Comparative          59.84%                50.09%               48.63%
 Disparity



                                       - 10 -
      In this circuit, “absolute disparity . . . is the starting place for all other

modes of comparison.” United States v. Yazzie, 660 F.2d 422, 427 (10th Cir.

1981). Here, the greatest absolute disparity is less than 3%, which, as the

district court noted, is far less than the percentages that the Supreme Court has

relied upon in its cases finding Sixth Amendment violations. See, e.g., Duren,

439 U.S. at 365-66 (39% absolute disparity); Jones v. Georgia, 389 U.S. 24

(1967) (14.7%). Courts generally are reluctant to find that the second element

of a prima facie Sixth Amendment case has been satisfied when the absolute

disparities are less than 10%. See United States v. Rioux, 930 F. Supp. 1558,

1570 (D. Conn. 1995) (collecting cases). Furthermore, our circuit has found

that absolute disparities of 4.29% and 7% failed to establish a prima facie

violation. See Yazzie, 660 F.2d at 427 (4.29%); Gault, -- F.3d at --, 1998 WL

177982, at *3 (7%).

      The defendant urges us to focus on the comparative disparities rather

than the absolute disparities because of the small size of the minority

populations in Kansas. Indeed, small absolute disparity figures are less

persuasive in a case such as this, where, because of the minorities’ small

population, even the complete exclusion of the groups would result in absolute

disparities of less than 6%. See United States v. Jackman, 46 F.3d 1240, 1247

(2d Cir. 1995) (noting the weakness of absolute disparity analysis when dealing


                                         - 11 -
with small population).

      The comparative disparities are larger: 48%, 50%, and almost 60%.

While these numbers may be more indicative of a Sixth Amendment violation,

they too are distorted by the small population of the different minority groups.

“[T]he smaller the group is, the more the comparative disparity figure distorts

the proportional representation.” United States v. Hafen, 726 F.2d 21, 24 (1st

Cir. 1984); see United States v. Whiteley, 491 F.2d 1248, 1249 (8th Cir. 1974).

“For example, in an area that had 500,000 whites and only one black eligible to

serve as jurors, a random selection system that failed to place the single black

on the master wheel would produce a 100 per cent comparative disparity, even

though an all-white jury would clearly form a ‘fair cross section’ of the

community.” Hafen, 726 F.3d at 24. In this case, considering the small size of

each of the groups in relation to the larger community, it is not surprising that

the comparative disparity numbers are large. It is equally unsurprising that the

group with the largest comparative disparity, Asians, has the fewest members.

      Although both statistical measurements have their weaknesses in this

situation, there can be no doubt that the figures computed under either method

do not demonstrate the type of “marked” or “gross” disparities that we have

found necessary to establish that the representation of a group is not fair and

reasonable in relation to their number in the community. See Gault, -- F.3d at -


                                        - 12 -
-, 1998 WL at 177982, at *3 (quoting Test, 550 F.2d at 590). The second

element of the Duren test not being satisfied, the defendant cannot make out a

prima facie case that the District of Kansas’s selection procedure violates either

the Sixth Amendment or the Jury Service and Selection Act of 1968.

II.    Double Jeopardy

       The district court empaneled and swore in a complete jury. Then, after

being advised that one of the jurors had child-care responsibilities that would

not allow her to serve, the court excused that juror, replaced her with another,

and swore in the new juror. This unusual procedure raises a tangle of double

jeopardy issues. We review two different lines of cases in order to resolve

those issues.

       A.       The Terminating-Event Requirement

       The Double Jeopardy Clause of the Fifth Amendment states that no

person shall be “twice put in jeopardy of life or limb.”   U.S. C ONST . amend. V.

The clause protects criminal defendants against having to endure the risk of

conviction twice. Thus, the first relevant line of cases expresses the logical

principle that the Double Jeopardy Clause does not apply to situations in which

the defendant has been placed in jeopardy only once. These cases have their

origin in Ball v. United States , 163 U.S. 662, 672 (1896), in which the Supreme

Court held that the Double Jeopardy Clause does not prevent a second trial


                                           - 13 -
when the defendant’s original conviction has been overturned on appeal.           Ball

rested on the notion that when a conviction is overturned, a new trial does not

present the defendant with a    new , or second risk of conviction.    Ball

“effectively formulated a concept of continuing jeopardy that has application

where criminal proceedings against an accused have not run their full course.”

Price v. Georgia , 398 U.S. 323, 326 (1970). The continuing jeopardy principle

achieved its fullest expression in   Richardson v. United States , 468 U.S. 317,

325 (1984), in which the defendant challenged the prosecution’s attempt to

retry him after his original proceeding had ended in a mistrial because of a

hung jury. The Supreme Court held “that the protection of the Double Jeopardy

Clause by its terms applies only if there has been some event, such as an

acquittal, which terminates the original jeopardy.”      Id. ; see also Justices of

Boston Mun. Court v. Lydon , 466 U.S. 294, 309 (1984) (rejecting the

defendant’s double jeopardy argument because “he fails to identify any stage of

the state proceedings that can be held to have terminated jeopardy”). The Court

said that the declaration of a mistrial, in that instance, did not terminate his

original jeopardy.

       Only two other circuits have addressed the situation before us, the Ninth

and the Sixth, and only the Ninth relied on the principle of continuing jeopardy

to reject the defendant’s argument (we discuss the Sixth Circuit’s approach


                                          - 14 -
infra ). In that case, a jury of twelve, with no alternates, was empaneled and

sworn. See United States v. Trigg , 988 F.2d 1008, 1009 (9th Cir. 1993).

Before any testimony was given, the judge excused three jurors because of

unavailability and replaced them with three jurors drawn from the venire.           See

id. The entire new jury was then sworn again.        See id.

       The Ninth Circuit concluded that the unusual procedure “cannot

terminate jeopardy any more than a failure of a jury to reach a verdict.”         Id. at

1010. The court held that “jeopardy does not terminate during the process of

jury selection merely because sworn jurors are excused during the process of

selecting alternates.”   Id. The Trigg court apparently interpreted     Richardson to

mean that there could be no terminating event for Double Jeopardy purposes if

the original jury had not, at the least, made a decision on the merits of the case.

See also Richardson , 468 U.S. at 327 (Brennan, J., concurring in part and

dissenting in part) (interpreting   Richardson to mean that “only an actual

judgment of acquittal, or an unreversed conviction, would ‘terminate’ jeopardy

and thereby bar retrial”).

       B.     The Right to a Particular Tribunal

       Trigg and Richardson seem to provide an easy answer here. In equipoise

with those cases, however, is the long-standing principle that a defendant has a

“valued right to have his trial completed by a particular tribunal.”        Illinois v.


                                           - 15 -
Somerville , 410 U.S. 458, 466 (1973) (quoting         Wade v. Hunter , 336 U.S. 684,

689 (1969)). As soon as the jury is sworn, the defendant acquires a

constitutional interest in having that jury see his case through to a conclusion.

See United States v. Martin Linen Supply Co.          , 430 U.S. 564, 569 (1977). A

proceeding judged by a tribunal other than the one originally selected “may be

grossly unfair. It increases the financial and emotional burden on the accused,

prolongs the period in which he is stigmatized by an unresolved accusation of

wrongdoing, and may even enhance the risk that an innocent defendant may be

convicted.” Arizona v. Washington , 434 U.S. 497, 503-04 (1978).

      The constitutional test derived from the defendant’s right to have a trial

completed by a particular tribunal is well established. Once a particular jury is

sworn, the prosecutor may not try the defendant before another jury without

demonstrating a “manifest necessity” for the new proceeding with a new

tribunal. See id. at 505-06. The manifest necessity standard “has been quoted

over and over again to provide guidance in the decision of a wide variety of

cases.” Id. at 506.

      The cases protecting the right to a particular tribunal focus on the

inception of the proceedings—that is, whether the jury was sworn—while

Richardson asks whether there has been an           end to those proceedings. We have

noted the apparent inconsistency between       Richardson and other strains of


                                           - 16 -
Double Jeopardy jurisprudence before.        See United States v. Wood , 958 F.2d

963, 970 (10th Cir. 1992) (noting that some of our cases are “inconsistent with

the continuing jeopardy principle suggested in       Richardson ”). The different

orientations could be read to create a conflict in a case such as this. On the one

hand, because jeopardy attached after the swearing of the first jury, and that

original tribunal did not ultimately decide the case, one might read the

precedent to compel the government to prove a manifest necessity for trying the

case before a new jury. The Sixth Circuit took this approach when faced with a

situation similar to the one before us. It held     that “[o]nce jeopardy attaches,

prosecution of a defendant before a jury other than the original jury . . . is

barred unless (1) there is a ‘manifest necessity’ for a mistrial or (2) the

defendant either requests or consents to a mistrial.” Watkins v. Kassulke, 90

F.3d 138, 141 (6th Cir. 1996). 1



       1
         In Watkins, the defendant consented to the procedure, and therefore the court
avoided the manifest necessity analysis. See Watkins, 90 F.3d at 142-43. In the instant
case, counsel for the defendant did not object initially to the replacement of the juror. It
is also true, however, that neither the court nor counsel made defendant aware of the
constitutional right that he was forgoing so that he could make an informed, conscious
waiver. Our cases may require such a conscious choice for there to be valid consent to a
procedure implicating the Double Jeopardy clause. See id. at 141-42 (discussing United
States v. Rich, 589 F.2d 1025 (10th Cir. 1978)); see also United States v. Broce, 753 F.2d
811 (10th Cir. 1985), overruled on other grounds by 488 U.S. 563 (1989) (finding that
defendant does not relinquish right to contest conviction on grounds of Double Jeopardy
unless he waived the right knowingly and voluntarily). Given the analysis that follows,
however, we find it unnecessary to decide the consent issue here.

                                           - 17 -
       On the other hand, under        Richardson a terminating event must occur

before the Double Jeopardy Clause even comes into play.              Richardson found

that a mistrial by virtue of a hung jury did not terminate jeopardy.

Accordingly, the Ninth Circuit read        Richardson to require no manifest necessity

analysis at all, on the basis that jury selection procedures are much less final

than the hung jury at issue in       Richardson . See Trigg , 988 F.2d at 1009-1011.

       C.      Resolving the Two Principles

       The precedent, however, does not conflict. Two points make this clear.

First, it is mistaken to interpret     Richardson to mean that nothing short of an

acquittal or unreversed conviction implicates the Double Jeopardy Clause.

Richardson used the doctrine of “continuing jeopardy” to find that a mistrial

after a hung jury was not a terminating event, and therefore no double jeopardy

violation occurred. The      Richardson Court primarily relied, however, not on

“continuing jeopardy” cases, but on the century and a half of jurisprudence that

had already made clear that double jeopardy did not bar retrial in such a

circumstance. Thus, the observation that “‘continuing jeopardy’ describes both

a concept and a conclusion” is appropriate.            Breed v. Jones , 421 U.S. 519, 534

(1975). In Richardson , the Court used “continuing jeopardy” to describe a

conclusion. The Court’s finding that jeopardy never terminated was, more than

anything, a shorthand expression of a time-tested conclusion that the retrial


                                              - 18 -
procedure at issue did not violate the Double Jeopardy Clause. The Court did

not revolutionize our understanding of “continuing jeopardy.”

       Second and more importantly, continuing jeopardy also “describes . . .          a

concept .” Breed v. Jones , 421 U.S. 519, 534 (1975) (emphasis added). All of

the Supreme Court’s double jeopardy cases, even those that seem to conflict

with Richardson , “presuppose[] some identifiable point at which a first trial

may be said to have ended.”       Lydon , 466 U.S. at 315 (Brennan, J., concurring

in part and concurring in the judgment). The Court has said, for instance, that

the manifest necessity test should be used “when a criminal proceeding          is

terminated without finally resolving the merits.”          Arizona v. Washington , 434

U.S. 497, 505 (1978) (emphasis added);         see also Somerville , 410 U.S. at 471

(referring to the district court’s decision to “      abort ” the proceedings) (emphasis

added). Thus, even those cases that do not explicitly rely on the doctrine of

“continuing jeopardy,” implicitly recognize that the concept is pertinent when

deciding double jeopardy questions. The relevant question in this case, then, is

when does a defendant’s “continuing jeopardy” terminate?

       In order to determine whether the original proceeding ever “terminated,”

we look to the interests of the Double Jeopardy Clause.          See Breed , 421 U.S. at

534. “[T]he continuing jeopardy principle appears to rest on an amalgam of

interests—e.g., fairness to society, lack of finality, and limited waiver, among


                                             - 19 -
others.” Price v. Georgia , 398 U.S. 323, 329 n.4 (1970).

      The question of whether jeopardy has objectively
      “terminated” should be analyzed in terms of the policies of
      the Double Jeopardy Clause, namely its concern that repeated
      trials may subject a defendant to embarrassment, expense and
      ordeal and compel him to live in a continuing state of anxiety
      and insecurity, as well as enhancing the possibility that even
      though innocent he may be found guilty.   Jeopardy may be
      said to have terminated only when the posture of a trial in
      some objective sense leaves that defendant in such a position
      that resumption of proceedings would implicate those
      policies.


Lydon , 466 U.S. at 320 (Brennan, J., concurring in part and concurring in the

judgment) (emphasis added) (citations and internal quotation marks and

alterations omitted);   see also Lovato v. New Mexico , 242 U.S. 199, 201 (noting

that mere irregularity of procedure does not implicate the Double Jeopardy

Clause). Only if the trial before the new tribunal reasonably implicates the

policies described above has the first proceeding terminated. Only then do we

proceed to the manifest necessity analysis.

       The procedure in this case did not threaten the defendant with any of the

harms that the Double Jeopardy Clause was meant to prevent. The replacement

of one juror before any witnesses had testified did not reasonably subject the

defendant to “embarrassment, expense and ordeal,” or force him to live in a

“continuing state of anxiety,” to any greater extent than that he would have

experienced if the district court had sworn an alternate along with the original

                                         - 20 -
twelve jury members and thereby avoided the issue before us altogether.

Furthermore, for us to hold that the trial terminated at such a preliminary stage,

without any allegation that the replacement was attributable to prosecutorial

tactics, would frustrate “society’s interest in giving the prosecution one

complete opportunity to convict those who have violated its laws.”    Arizona v.

Washington , 434 U.S. 497, 509 (1978).

       The defendant cannot point to any event that terminated the original

jeopardy. That being the case, his Double Jeopardy challenge cannot succeed.

III.   United States v. Gaudin

       The defendant argues next that, in conflict with the Supreme Court’s

decision in United States v. Gaudin, 515 U.S. 506 (1995), the jury instructions

in this case removed one element of the Hobbs Act violation from the jury’s

consideration. In Gaudin, the Supreme Court recognized that the “Constitution

gives a criminal defendant the right to have a jury determine, beyond a

reasonable doubt, his guilt of every element of the crime with which he is

charged.” Id. at 522-23. The jury’s constitutional responsibility to determine

whether the defendant is guilty of each element includes not only finding facts,

but also applying the facts to legal principles. See id. at 512-13.

       In Gaudin, the government charged the defendant with making false

statements on a loan document in violation of 18 U.S.C. § 1001. See id. at 507.


                                         - 21 -
Although the crime required a finding that the alleged statements were material

to the federal agencies insuring the loan, the court did not submit the issue of

materiality to the jury. See id. at 508. The court said to the jury: “You are

instructed that the statements charged in the indictment are material

statements.” Id. The Supreme Court found that the district court’s practice

violated the defendant’s right to have the jury determine his guilt of each

element of the crime. See id. at 522-23.

      In this case, the defendant was charged with, among other things,

violating the Hobbs Act, a statute that makes it a crime to obstruct interstate

commerce by robbery. See 18 U.S.C. § 1951. One element of that offense is

interference with interstate commerce. See Stirone v. United States, 361 U.S.

212, 218 (1960). The court here submitted the interstate commerce element to

the jury, instructing them as follows:

            The defendant need not have intended or anticipated an
     effect on interstate commerce. You may find the effect is a
     natural consequence of his actions. If you find the defendant
     intended to take certain actions, that is, he did the acts charged
     in the Indictment in order to obtain property, and you find
     those actions have either caused, or would probably cause, an
     effect on interstate commerce, then you may find the
     requirements of this element have been satisfied.
            If you decide there was any effect at all on interstate
     commerce, then that is enough to satisfy this element. The
     effect can be minimal. For example, if a successful robbery of
     money would prevent the use of those funds to purchase
     articles which travel through interstate commerce, that would
     be a sufficient effect on interstate commerce.

                                         - 22 -
Jury Instruction #15. According to the defendant, the italicized portion of this

instruction dictated to the jury how they should apply the law to the facts of

this case and, therefore, violated the Gaudin rule.

       The defendant’s case is unlike Gaudin in at least one important respect.

In Gaudin, the court did not submit the materiality element to the jury. Two

other circuits appear to have held that the Gaudin rule is limited to cases in

which the element at issue was not submitted to the jury. See United States v.

Castleberry, 116 F.3d 1384, 1389 (11th Cir.), cert. denied, 118 S. Ct. 341

(1997); United States v. Parker, 104 F.3d 72, 73 (5th Cir.) (en banc), cert.

denied, 117 S. Ct. 1720; id. at 73-75 (DeMoss, J., dissenting). We need not

decide here whether, as the defendant argues, the rule in Gaudin extends to a

case in which the element was submitted but in such a way as to effectively

dictate the jury’s application of the law to the facts because, even if Gaudin

could reach so far, the instruction here did not effectively remove the issue

from the jury’s consideration.

       The court did not tell the jury that if they believed the government’s

evidence, they had to find the interstate commerce element satisfied.   Instead,

the court merely concluded its definition of interstate commerce by giving an

example. That example did not tie a legal result to the particular facts of the

defendant’s case. The defendant goes too far in reading Gaudin to prohibit


                                          - 23 -
attempts to clarify the law for jurors, especially on such an unfamiliar subject

as interstate commerce.

IV.      Armed Career Criminal Enhancement

         The defendant also challenges his sentence enhancement for being an

Armed Career Criminal pursuant to 18 U.S.C. § 924(e) and section 4B1.4 of the

Sentencing Guidelines. When reviewing sentence enhancements under the

sentencing guidelines, we accept the factual findings of the district court unless

they are clearly erroneous. See United States v. Farnsworth, 92 F.3d 1001,

1009 (10th Cir.), cert. denied, 117 S. Ct. 596 (1996). At sentencing, the district

court may rely on facts stated in the presentence report unless the defendant has

objected to them. See United States v. O’Dell, 965 F.2d 937, 938 (10th Cir.

1992). When a defendant objects to a fact in a presentence report, the

government must prove that fact at a sentencing hearing by a preponderance of

the evidence. United States v. Easterling, 921 F.2d 1073, 1078 (10th Cir.

1990).

         A criminal defendant is subject to the Armed Career Criminal

enhancement if he is convicted of violating 18 U.S.C. § 922(g) and has at least

three prior convictions for “violent felonies” or “serious drug offenses.” See

U.S. S ENTENCING G UIDELINES M ANUAL § 4B1.4 commentary; 18 U.S.C. §

924(e)(2) (defining “violent felony” and “serious drug offense”). The


                                        - 24 -
presentence report recommended that Mr. Shinault be sentenced as an Armed

Career Criminal. The defendant objected on the grounds that two of three

convictions forming the basis for the Armed Career Criminal

enhancement—those listed in paragraphs 53 and 54 of the presentence

report—charged a person other than Mr. Shinault. The charging documents in

those convictions named Richard L. Bumphus as the perpetrator for one crime

and Michael Washington for the other.

      At the sentencing hearing, the man who prepared the presentence report,

Jim Fritz, a probation officer from the U.S. Probation Department, testified that

Mr. Shinault was in fact the person convicted of the crimes listed in paragraphs

53 and 54 of the presentence report. Mr. Fritz testified first that court

documents pertaining to the prior convictions noted that Richard L. Bumphus

and Michael Washington were aliases of Mr. Shinault. Second, Mr. Fritz

testified that he also referenced Mr. Shinault’s FBI “rap sheet,” which listed

him as the perpetrator of the two previous crimes. Mr. Fritz confirmed that the

FBI does not enter a conviction on a person’s record without first comparing

fingerprint samples to ensure that the updated record is accurate. According to

Fritz’s testimony, the FBI had matched Mr. Shinault’s fingerprints with those

of the defendants in the previous cases. The district court made its findings on

the basis of this evidence, and we cannot say that it clearly erred in doing so.


                                        - 25 -
      The defendant asserts that the district court also clearly erred in finding

that the third prior conviction was established even though the government

presented no information relating to it at the sentencing hearing. The

defendant, however, did not object to the presentence report on the ground that

the third conviction was inaccurate; the defendant only contended that he was

not the person convicted of the crimes identified in paragraphs 53 and 54.

“Failure to object to a fact in a presentence report, or failure to object at the

hearing, acts as an admission of fact.” United States v. Deninno, 29 F.3d 572,

580 (10th Cir. 1994). Thus, the district court was justified in relying on the

presentence report for proof of the first conviction.

V.    Commerce Clause and Multiple Punishment Challenges

      The defendant raises two final arguments that this court has previously

addressed and rejected. First, the defendant contends that Congress lacked the

constitutional authority under the Commerce Clause to enact the Hobbs Act.

We have held, however, that “[b]ecause the Hobbs Act regulates activities that

in aggregate have a substantial effect on interstate commerce,” the Act is a

“permissible exercise of the authority granted to Congress under the Commerce

Clause.” United States v. Bolton , 68 F.3d 396, 399 (10th Cir. 1995),     cert.

denied , 516 U.S. 1137 (1996); see also United States v. Romero , 122 F.3d

1334, 1340 (10th. Cir. 1997),   cert. denied , 118 S. Ct. 1310 (1998).


                                         - 26 -
      The defendant also argues that his convictions violate his Fifth

Amendment rights. For each of the defendant’s acts of robbery, the jury

convicted him of violating both the Hobbs Act (committing a robbery affecting

interstate commerce) and 18 U.S.C. § 924(c) (using or carrying a weapon

during a crime of violence). The crime of violence supporting the defendant’s

section 924(c) conviction was the Hobbs Act violation. The defendant

contends that his convictions under both the Hobbs Act and section 924(c)

violated the double jeopardy protection against receiving multiple punishment

for the same conduct.   See Blockburger v. United States , 284 U.S. 299 (1932).

We have previously rejected this double jeopardy challenge, however, because

“Congress may impose multiple punishment for the same conduct without

violating the Double Jeopardy Clause if it clearly expresses its intent to do so,”

and Congress did so in section 924(c).    United States v. Overstreet , 40 F.3d

1090, 1093, 1095 (10th Cir. 1994).

                                     Conclusion

      We hold (1) that the jury selection procedures in the Wichita-Hutchinson

division of the District of Kansas did not deny the defendant the right to a jury

drawn from a fair cross-section of the community, (2) that the unusual jury

selection procedure used in this case did not violate the defendant’s right not to

be tried twice for the same offense, (3) that the court did not take an element of


                                         - 27 -
the crime away from the jury’s consideration, (4) that the court did not clearly

err in making its factual determinations related to the Armed Career Criminal

sentence enhancement, (5) that Congress did not exceed its constitutional

authority under the Commerce Clause in passing the Hobbs Act, and (6) that

the defendant’s convictions under the Hobbs Act and 18 U.S.C. § 924(c) do not

amount to multiple punishments for the same conduct. We AFFIRM.




                                       - 28 -
No. 97-3061, United States v. Shinault

McKAY, Circuit Judge, dissenting:


      I concur with everything that the court has said with one reservation. I

cannot accept the court’s disregard for clear and unmodified Supreme Court

precedent that once a jury is empaneled and sworn, double jeopardy attaches

and the defendant has a “‘valued right to have his trial completed by a

particular tribunal.’” See Arizona v. Washington, 434 U.S. 497, 503 (1978)

(quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)); Downum v. United States,

372 U.S. 734, 736 (1963); see also United States v. Rich, 589 F.2d 1025, 1030-

31 (10th Cir. 1978). A defendant’s right to have his trial completed by the

original jury is an independent and integral aspect of the Double Jeopardy

Clause. See Crist v. Bretz, 437 U.S. 28, 35-36, 38 (1978) (recognizing that a

defendant’s right to a particular jury is integral to the guarantee against double

jeopardy because it “lies at the foundation of the federal rule that jeopardy

attaches when the jury is empaneled and sworn”).

      The cases which articulate a defendant’s right to a particular tribunal are

easily harmonized with the line of cases requiring some event to terminate the

original jeopardy. See Richardson v. United States, 468 U.S. 317, 325 (1984);

Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 309 (1984). The

harmony is simple: Once jeopardy attaches, the defendant’s right to a

particular tribunal may be overcome if there is manifest necessity for a mistrial
or the defendant requests or consents to a mistrial. In other words, where

manifest necessity is found or a defendant requests or consents to a mistrial, the

loss of the right does not violate the Double Jeopardy Clause. See Arizona,

434 U.S. at 505; United States v. Dinitz, 424 U.S. 600, 606-07 (1976); Wade,

336 U.S. at 689; Watkins v. Kassulke, 90 F.3d 138, 141 (6th Cir. 1996); Rich,

589 F.2d at 1031-32; see also Illinois v. Somerville, 410 U.S. 458, 463, 468-71

(1973) (holding that despite weighty interest of defendant in having his fate

determined by the jury first empaneled, defendant’s double jeopardy rights

were not violated by court’s declaration of mistrial which was required by

“manifest necessity” or the “ends of public justice”) (quoting United States v.

Perez, 9 Wheat. 579, 580 (1824)). More importantly, the Supreme Court has

found no conflict between the continuing jeopardy cases which require a

terminating event and the cases which affirm a defendant’s right to a particular

tribunal.

      Although Defendant does not appear to have objected initially to the

replacement of the juror after the original jury was empaneled and sworn, I

agree with the majority’s footnote that “neither the court nor counsel made

[D]efendant aware of the constitutional right that he was forgoing so that he

could make an informed, conscious waiver.” Ante, at 17 n.1; see Rich, 589

F.2d at 1032-33. Thus because Defendant does not appear to have consented or


                                        -2-
requested a mistrial, and because the trial court made no finding of manifest

necessity for a mistrial, I believe that the replacement of the juror and the

subsequent trial with a jury different from the original sworn jury violated

Defendant’s right to a particular tribunal and his double jeopardy rights. See

Rich, 589 F.2d at 1031-32. Had the trial court taken the simple measure of

having an alternate juror sworn in the first place, we would not be confronted

with this problem. Under these circumstances, however, I would reverse the

judgment.




                                         -3-
