UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4688
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICCO LAMONT MCKOY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (5:06-cr-00168-H)
Submitted: April 17, 2008 Decided: May 8, 2008
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
John Keating Wiles, CHESHIRE, PARKER, SCHNEIDER, BRYAN & VITALE,
Raleigh, North Carolina, for Appellant. George E. B. Holding,
United States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ricco Lamont McKoy appeals his jury convictions for
possession with intent to distribute marijuana, in violation of 21
U.S.C. § 841(a)(1) (2000), possession of a firearm and ammunition
by a convicted felon, in violation of 18 U.S.C.A. §§ 922(g)(1), 924
(West 2000 & Supp. 2007), and possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C.A. § 924(c)(1)(A)(iii). McKoy contends the district court
plainly erred in its preliminary instructions to the jury regarding
the Government’s burden of proof in a criminal trial. While
conceding the district court gave an accurate description of the
reasonable doubt standard during its closing instructions to the
jury, McKoy claims this failed to negate the prejudicial effect of
the original instructions, which “obliged the jury to discount the
weight of the Government’s burden.” Because there is no reasonable
likelihood the jury understood the district court’s instructions to
allow for conviction based on a lesser standard of proof, we
affirm.
McKoy raised no objection to the district court’s
instructions regarding reasonable doubt; accordingly, his claim is
reviewed for plain error. Fed. R. Crim. P. 52(b); United States v.
Olano, 507 U.S. 725, 731-32 (1993). Four conditions must be met
before this court will notice plain error: (1) there must be error;
(2) it must be plain under current law; (3) it must affect
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substantial rights, typically meaning the defendant is prejudiced
by the error in that it affected the outcome of the proceedings;
and (4) the error seriously affected the fairness, integrity, or
public reputation of judicial proceedings. Id. at 732-37.
Due process requires that every element of a crime be
proven by the prosecution beyond a reasonable doubt. See In re
Winship, 397 U.S. 358, 364 (1970). A reasonable doubt instruction
that decreases the Government’s burden of proof is constitutionally
deficient and qualifies as structural error that requires reversal
of the conviction. See Sullivan v. Louisiana, 508 U.S. 275, 280-82
(1993). While the district court must instruct the jury as to the
application of the reasonable doubt standard in a criminal case,
Jackson v. Virginia, 443 U.S. 307, 320 n.14 (1979), this court has
joined “in the general condemnation of trial court attempts to
define reasonable doubt in their jury instructions.” United States
v. Moss, 756 F.2d 329, 333 (4th Cir. 1985); see also United States
v. Reives, 15 F.3d 42, 46 (4th Cir. 1994).
An attempt by the trial court to define reasonable doubt
will not require automatic reversal of a conviction; however, “at
some point a reasonable doubt definition may be so incomprehensible
or potentially prejudicial to require reversal.” Moss, 756 F.2d at
333. Accordingly, the reviewing court must determine “whether
there is a reasonable likelihood that the jury understood the
instructions to allow conviction based on proof insufficient to
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meet the [constitutional] standard.” Victor v. Nebraska, 511 U.S.
1, 6 (1994); see also United States v. Williams, 152 F.3d 294, 298
(4th Cir. 1998). A conviction will not be reversed as long as “the
instructions, taken as a whole, adequately state the controlling
law.” United States v. Wills, 346 F.3d 476, 492 (4th Cir. 2003)
(internal quotation and citation omitted).
During its preliminary instructions to the jury, the
district court stated:
[T]he Government must prove the defendant’s guilt beyond
a reasonable doubt. I’ll give you further instructions
on this point later, but bear in mind that in this
respect in a criminal case the burden of proof of beyond
a reasonable doubt is a slightly higher standard of proof
than that required in a civil lawsuit, where the burden
of proof is the preponderance of the evidence or the
greater weight of the evidence.
At the close of evidence, the district court provided its final
instructions to the jury, stating:
[W]hile the Government’s burden is a strict or heavy
burden, it is not necessary that the defendant’s guilt be
proved beyond all possible doubt. It is only required
that the Government’s proof exclude any reasonable doubt
concerning a defendant’s guilt. A reasonable doubt is a
real doubt, based upon reason and common sense after
careful and impartial consideration of all the evidence
in a case.
We agree McKoy is correct that the district court’s
preliminary instruction describing the reasonable doubt standard
was inaccurate. By describing the level of proof required for a
criminal conviction as only “slightly higher” than the
preponderance of the evidence standard used in civil cases, the
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district court failed to properly distinguish between these two
standards. While the civil standard of proof shares risk equally
between parties, the “unique” reasonable doubt standard reflects
our society’s concern that the risk of error to the defendant must
be minimized even if some who are guilty may go free as a result.
See Addington v. Texas, 441 U.S. 418, 427-28 (1979). However, the
district court’s instructions, which seemingly equated the
reasonable doubt standard with the intermediate “clear and
convincing” standard used in some civil settings, see California ex
rel. Cooper v. Mitchell Bros.’ Santa Ana Theater, 454 U.S. 90, 93
n.6 (1981), failed to accurately convey to the jury the heavy
standard of proof required for conviction in a criminal case.
Nevertheless, this error did not occur during the
district court’s final instructions to the jury; rather, the
misstatement was part of the court’s opening instructions in the
case. In its preliminary statements, the district court noted that
the jurors would be provided with “further instructions” on the
meaning of reasonable doubt at the close of the case. In its final
charge to the jury, the court instructed the jury on “the rules of
law that you must follow and apply in deciding this case,” adding
that the jurors must “follow the law as I explain it you . . . and
you must follow all of my instructions as a whole.” The court also
provided the jury with a written copy of its instructions, which
included an accurate description of the reasonable doubt standard,
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and noted that the written instructions should be used “for any
reference you may later need to make.” Accordingly, we find the
jury was aware of the fact that the final written instructions
would control their deliberations.
As McKoy concedes, the district court’s final
instructions to the jury on the reasonable doubt standard were
“unobjectionable.” Final instructions to the jury may serve to
cure errors in previous directives provided by the trial court.
See United States v. McIver, 470 F.3d 550, 561 (4th Cir. 2006)
(citing United States v. Tran Trong Cuong, 18 F.3d 1132, 1138 (4th
Cir. 1994)), cert. denied, 127 S. Ct. 2276 (2007). Furthermore,
the absence of error in the final charge to the jury is highly
relevant in determining whether a jury was misled by an earlier
misstatement. See United States v. Ruiz, 462 F.3d 1082, 1087 (9th
Cir. 2006); United States v. Ciak, 102 F.3d 38, 46 (2d Cir. 1996);
United States v. Romero, 32 F.3d 641, 652 (1st Cir. 1994).
Accordingly, the district court’s instructions, taken as a whole,
served to adequately define the concept of reasonable doubt. See
Wills, 346 F.3d at 492. While the district court erred in its
earlier directives, McKoy’s substantial rights were unaffected, as
there is no reasonable likelihood the jury understood the
instructions to allow for a conviction based on a lesser standard
of proof. See Olano, 507 U.S. at 734-35. Therefore, we conclude
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the district court’s preliminary instructions to the jury did not
constitute plain error.
Accordingly, we affirm McKoy’s convictions. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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