FILED
United States Court of Appeals
Tenth Circuit
May 22, 2017
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 15-1421
ISHMAEL PETTY,
Defendant-Appellant.
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NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS;
COLORADO CRIMINAL DEFENSE
BAR,
Amici Curiae.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 1:15-CR-00029-PAB-1)
Gail K. Johnson, Johnson, Brennan & Klein, PLLC, Boulder, Colorado, for
Defendant-Appellant.
J. Bishop Grewell, Assistant United States Attorney (Robert C. Troyer, Acting
United States Attorney, with him on the brief), Denver, Colorado, for Plaintiff-
Appellee.
Norman R. Mueller, Haddon Morgan & Foreman P.C., Denver, Colorado; Kyle
W. Brenton, Davis Graham & Stubbs, LLP, Denver, Colorado, with him on the
brief as Amici Curiae for the Appellant..
Before HARTZ, BALDOCK, and HOLMES, Circuit Judges.
BALDOCK, Circuit Judge.
The Government charged Defendant Ishmael Petty with assaulting three
employees at the federal correctional facility in Florence, Colorado, in violation of
18 U.S.C. § 111(a)(1) & (b). At Defendant’s trial, the district court tendered the jury
the following reasonable doubt instruction. This instruction tracks verbatim the
Tenth Circuit’s Pattern Jury Instruction on reasonable doubt.
The government has the burden of proving the defendant guilty beyond
a reasonable doubt. The law does not require a defendant to prove his
innocence or produce any evidence at all. The government has the
burden of proving the defendant guilty beyond a reasonable doubt, and
if it fails to do so, you must find the defendant not guilty.
Proof beyond a reasonable doubt is proof that leaves you firmly
convinced of the defendant’s guilt. There are few things in this world
that we know with absolute certainty, and in criminal cases the law does
not require proof that overcomes every possible doubt. It is only
required that the government’s proof exclude any “reasonable doubt”
concerning the defendant’s guilt. A reasonable doubt is a doubt based
on reason and common sense after careful and impartial consideration
of all the evidence in the case.
If, based on your consideration of the evidence, you are firmly
convinced that the defendant is guilty of the crimes charged, you must
find him guilty. If, on the other hand, you think there is a real
possibility that he is not guilty, you must give him the benefit of the
doubt and find him not guilty.
ROA Vol. I, at 88; see 10th Cir. Crim. PJI No. 1.05 (2011 ed.). The district court
overruled Defendant’s objections to the instruction, and a jury found Defendant
guilty. The court sentenced Defendant, who was already serving a life sentence for
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the murder of a fellow inmate, to three additional, consecutive, 20-year terms of
imprisonment.
On appeal, Defendant persists in complaining about the district court’s
reasonable doubt instruction. Generally, Defendant contends the court’s instruction
diluted the Government’s burden of proof contrary to his Fifth Amendment right to
due process and his Sixth Amendment right to a fair trial. Specifically, Defendant
complains the instruction is flawed in three respects. First, Defendant asserts the
phrase “firmly convinced” connotes a lesser standard of proof than proof beyond a
reasonable doubt. Second, the instruction, according to Defendant, undermines the
degree of proof required because it fails to communicate that the Government’s
burden is a heavy one, requiring a greater modicum of proof than a civil case. Third,
Defendant says the instruction erroneously fails to inform the jury that reasonable
doubt may arise not only from the evidence but also from the lack of evidence.
Exercising jurisdiction under 28 U.S.C. § 1291, we reject Defendant’s argument that
the reasonable doubt instruction as tendered is unconstitutional, and affirm.
I.
Whether a reasonable doubt instruction comports with the Constitution is a
legal inquiry subject to de novo review. Tillman v. Cook, 215 F.3d 1116, 1123 (10th
Cir. 2000). Nonetheless, a district court still “retain[s] considerable latitude in
instructing juries on reasonable doubt.” United States v. Conway, 73 F.3d 975, 980
(10th Cir. 1995). Such latitude arises from the established precept that “the
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Constitution neither prohibits trial courts from defining reasonable doubt nor
requires them to do so as a matter of course.” Victor v. Nebraska, 511 U.S. 1, 5
(1994). “[S]o long as the court instructs the jury on the necessity that the
defendant’s guilt be proved beyond a reasonable doubt, the Constitution does not
require that any particular form of words be used in advising the jury of the
government’s burden of proof.” Id.
Decisions adjudicating challenges to reasonable doubt instructions—the
overwhelming majority of which are unfavorable to the defense—are legion.
Undoubtedly, such challenges are a consequence of “the difficulties inherent in any
attempt to define the [standard] in great detail or to characterize precisely what sort
of doubt might be reasonable.” United States v. Pepe, 501 F.2d 1142, 1143 (10th
Cir. 1974); see also Victor, 511 U.S. at 5 (recognizing the reasonable doubt standard
“defies easy explication”).
As an abstraction the concept of reasonable doubt is not susceptible to
description by terms with sharply defined, concrete meanings. Resort
must be to wording or language, the meaning of which will necessarily
be colored by the experience of each individual. Thus, while the term
itself is common and readily associated by most individuals with our
criminal justice system, it is unlikely that two persons would supply the
same characterization of its meaning. These difficulties have been
acknowledged by the Supreme Court, and the Court has expressed its
doubts about the benefit of attempting a definition more elaborate than
the term “reasonable doubt” itself.
Pepe, 501 F.2d at 1143–44 (citing Dunbar v. United States, 156 U.S. 185, 199
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(1894)). 1 Thus, at the end of the day, “the test we properly apply in evaluating the
constitutionality of a reasonable doubt instruction is not whether we find it
exemplary.” Victor, 511 U.S. at 27 (Ginsburg, J., concurring). Perhaps no such
instruction is. Rather, the proper inquiry requires us to consider the instructions in
their entirety and ask whether a “reasonable likelihood” exists that the jury
“understood the instructions to allow conviction based on proof insufficient to meet
the [reasonable doubt] standard.” Id. at 6 (majority opinion).
II.
Defendant first takes issue with the instruction’s statement that “[p]roof
beyond a reasonable doubt is proof that leaves you firmly convinced of the
defendant’s guilt.” Defendant claims the district court’s formulation of the
applicable standard understates the degree of certainty a jury must reach before
returning a guilty verdict. Defendant says proof that leaves a juror “firmly
convinced” of a defendant’s guilt does not require proof of guilt beyond a reasonable
doubt, but instead requires something akin to clear and convincing proof.
Unfortunately for Defendant, Tenth Circuit precedent says otherwise.
In Conway, we held the district court did not err in equating proof beyond a
1
In Dunbar, the Supreme Court observed: “Repeated attempts have been
made by judges to make clear to the minds of the jury what is meant by the words
‘reasonable doubt’; but . . . ‘[a]ttempts to explain the term “reasonable doubt” do not
usually result in making it any clearer to the minds of the jury.’” Dunbar, 156 U.S.
at 199 (quoting Miles v. United States, 103 U.S. 304, 312 (1880)).
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reasonable doubt with proof that leaves one firmly convinced of a defendant’s guilt.
In other words, the court’s “firmly convinced” formulation of the reasonable doubt
standard did not understate the degree of certainty a jury must reach to find a
criminal defendant guilty. To be sure, the district court’s instruction in the present
case contains language not appearing in the instruction at issue in Conway (language
we shall discuss subsequently). The wording of the instruction challenged here,
however, encompasses entirely the wording of the instruction challenged in Conway.
That instruction read:
Proof beyond a reasonable doubt is proof that leaves you firmly
convinced of the defendant’s guilt. There are very few things in this
world that we know with absolute certainty, and in criminal cases the
law does not require proof that overcomes every possible doubt. If
based on your consideration of the evidence, you are firmly convinced
that the defendant is guilty of the crime charged, you must find him
guilty. If on the other hand, you think there is a real possibility that he
is not guilty, you must give him the benefit of the doubt, and find him
not guilty.
Conway, 73 F.3d at 980.
Like the challenged instruction in Conway, the instruction here (1) informed
the jury that it should not find Defendant guilty unless it was firmly convinced of his
guilt and (2) cautioned the jury that it must acquit Defendant in the presence of “a
real possibility that he is not guilty.” As we held in Conway, “the ‘firmly convinced’
language, juxtaposed with the insistence that a jury must acquit in the presence of
‘a real possibility’ that the defendant is not guilty, is a correct and comprehensible
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statement of the reasonable doubt standard.” Id.; see also United States v. Barrera-
Gonzales, 952 F.2d 1269, 1271 (10th Cir. 1992). 2
This brings us to Defendant’s second complaint about the district court’s
reasonable doubt instruction. Defendant emphasizes the word “only” in the sentence
that reads: “It is only required that the government’s proof exclude any ‘reasonable
doubt’ concerning the defendant’s guilt.” (emphasis added). Notably, this sentence
did not appear in the instruction at issue in Conway. According to Defendant, to cast
the reasonable doubt standard in terms of something that is “only required”
undermines the Government’s burden by suggesting its burden is not heavy or
difficult to meet. Defendant’s argument is not without superficial force. But the
wording Defendant emphasizes “cannot be sequestered from its surroundings.”
Victor, 511 U.S. at 16. We do not read selected portions of a jury instruction in
isolation, removed from their context. See Cupp v. Naughten, 414 U.S. 141, 146–47
(1973) (accepting the “well-established proposition that a single instruction to a jury
may not be judged in artificial isolation, but must be viewed in the context of the
overall charge.”).
2
Worth noting here is that the Supreme Court opined in Victor that “[a]n
instruction cast in terms of an abiding conviction as to guilt . . . correctly states the
government’s burden of proof.” Victor, 511 U.S. 14–15. Two years prior, we opined
in Barrera-Gonzales that “the term[] ‘firmly convinced’ requires more persuasion
than terms such as ‘reasonable certainty’ or ‘abiding conviction as to guilt.’”
Barrera-Gonzales, 952 F.2d at 1273. In fact, we observed that “arguably a person
who is ‘firmly convinced’ [of a defendant’s guilt] has no reasonable doubt.” Id. at
1271.
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The sentence immediately preceding the statement about which Defendant
complains explains that “in criminal cases the law does not require proof that
overcomes every possible doubt.” The statement to which Defendant objects next
contrasts the reasonable doubt standard with the notion of absolute certainty. The
word “only” points out that proof beyond a reasonable doubt is not proof that
overcomes all doubt. See United States v. Kieffer, 681 F.3d 1143, 1152 (10th Cir.
2012). The following sentence, which also does not appear in the Conway
instruction, then properly describes reasonable doubt as a “doubt based on reason and
common sense after careful consideration of all the evidence in the case.” See id. at
1159. In other words, the instruction first tells the jury what the reasonable doubt
standard does not require, i.e., “absolute certainty” of guilt, and second tells the jury
what reasonable doubt is, i.e., a doubt “based on reason and common sense.” We
discern no constitutional error in the instruction’s approach.
Defendant’s final challenge to the district court’s reasonable doubt instruction
is based on its failure to inform the jury that reasonable doubt may arise from a lack
of evidence. But the realization that the Government will fail to meet its burden of
proof if it fails to present the necessary evidence of guilt is quite apparent from the
instruction considered as a whole, in particular the statements that (1) “[t]he
government has the burden of proving the defendant guilty beyond a reasonable
doubt,” (2) “the government’s proof [must] exclude any ‘reasonable doubt’
concerning the defendant’s guilt, (3) “[t]he law does not require a defendant to prove
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his innocence or produce any evidence at all,” and (4) the jury must base its verdict
on “consideration of the evidence.” Any reasonable juror would understand from the
instruction’s wording that the Government must present evidence sufficient to
establish Defendant’s guilt beyond a reasonable doubt and that a failure to present
evidence sufficient to meet its burden must result in Defendant’s acquittal.
III.
The reasonable doubt instruction Defendant advocates—one that contrasts the
Government’s burden of proof in a criminal case with that in a civil case, informs the
jury of the strict or heavy nature of the Government’s burden in a criminal case, and
tells the jury reasonable doubt may arise from the Government’s failure to present
sufficient evidence—may well pass constitutional muster. But such recognition does
not inevitably lead to the conclusion that the reasonable doubt instruction the district
court tendered to the jury in this case, i.e., an instruction identical to the Tenth
Circuit’s Pattern Jury Instruction on reasonable doubt, denied Defendant due process
or deprived him of a fair trial. For the reasons we have stated, we conclude the
reasonable doubt instruction at issue, taken as a whole, adequately conveyed the
concept of reasonable doubt to the jury. This is to say no reasonable likelihood
exists that the jury selected to determine Defendant’s guilt applied the instruction in
a manner violative of the Constitution.
AFFIRMED.
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