United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 5, 2012 Decided February 12, 2013
No. 09-3044
UNITED STATES OF AMERICA,
APPELLEE
v.
EVERETT M. PURVIS, ALSO KNOWN AS MAN-MAN,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cr-00245-1)
Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A.J.
Kramer, Federal Public Defender. Neil H. Jaffee and Lisa B.
Wright, Assistant Federal Public Defenders, entered
appearances.
James A. Petkun, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Ronald C. Machen Jr.,
U.S. Attorney, and Roy W. McLeese III, Matthew P. Cohen, and
Courtney Denise Spivey, Assistant U.S. Attorneys. Elizabeth
Trosman, Assistant U.S. Attorney, entered an appearance.
Before: ROGERS and GARLAND, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Everett Purvis appeals his
convictions for assault with a dangerous weapon, possession of
a firearm during dangerous offenses, and being a felon in
possession of a firearm. Purvis appeals on the ground that the
district court improperly instructed the jury with respect to his
claim of self-defense. We affirm the judgment of the district
court.
I
On May 14, 2008, a gunfight broke out in front of an
apartment building in the Anacostia neighborhood of
Washington, D.C. Appellant Everett Purvis was one of the
shooters; the other was Phillip Blake. Although neither man
was hit, a witness to the confrontation was injured when a stray
bullet shattered a window and grazed her face. Purvis was
subsequently indicted by a federal grand jury on two counts of
assault with intent to kill while armed, in violation of D.C. Code
§§ 22-401 and 22-4502; one count of assault with a dangerous
weapon, in violation of D.C. Code § 22-402; three counts of
possession of a firearm during a crime of violence or dangerous
offense, in violation of D.C. Code § 22-4504(b); and one count
of possession of a firearm and ammunition by a person
previously convicted of a felony, in violation of 18 U.S.C.
§ 922(g)(1).
At trial, Blake testified that Purvis walked over to him,
accused him of being a government snitch, and pointed a gun at
his head. Trial Tr. 89-90 (Feb. 3, 2009 p.m.). When Purvis told
Blake he was going to kill him, Blake began backing away. Id.
at 90-91. When Blake turned around to run, Purvis started
shooting at him. Id. at 91. “[T]hat’s when I managed to get my
gun from my pocket,” Blake said, “and I shot at him . . . , behind
3
my back while I was running.” Id. at 92. The injured witness
gave testimony corroborating this account; she, too, said that
Purvis had called Blake a snitch and then fired the first shot.
Trial Tr. 31-32, 37-38 (Feb. 4, 2009 p.m.).
Purvis also testified. According to his testimony, it was
Blake who initiated a verbal confrontation and the resulting
shootout. Trial Tr. 104-07 (Feb. 4, 2009 p.m.). Purvis testified
that Blake approached him and “said something -- he was like,
after -- I can’t remember exactly what he said.” Id. at 104.
After a couple of minutes of argument, Purvis said, Blake
“walk[ed] off and like when he got a distance, he just turned
around and started firing.” Id. at 107. Purvis testified that he
then grabbed a gun from a friend and started shooting back at
Blake in self-defense. Id. at 108-09.
The district court instructed the jury that self-defense could
be a defense to a number of the charges against Purvis.1 And it
told the jury the following with respect to Purvis’ claim of self-
defense:
Mr. Purvis is not required to prove that he acted in self-
defense. Where evidence of self-defense is present, the
government must prove beyond a reasonable doubt that
1
The court instructed that self-defense could be a defense to the
D.C. Code offenses of assault with intent to kill while armed, assault
with a dangerous weapon (a lesser included offense), and possession
of a firearm during the commission of a crime of violence or
dangerous offense. Trial Tr. 27 (Feb. 9, 2009 a.m.). It also instructed
that self-defense could be a defense to the federal offense of
possession of a firearm or ammunition by a person previously
convicted of a felony, but only “if you find that the defendant came
into possession of a firearm or ammunition during the actual exercise
of actual self-defense.” Id. at 26.
4
the defendant did not act in self-defense. If the
government has failed to do so, you must find the
defendant not guilty of the applicable offense.
There has been testimony both that Phillip Blake was
the aggressor and that the defendant was the aggressor.
You must first determine from the evidence whether,
in fact, the defendant was the aggressor. If you find
that the defendant was the aggressor or if he provoked
the conflict himself, he cannot rely upon the right of
self-defense to justify his use of force.
Trial Tr. 27-28 (Feb. 9, 2009 a.m.).
After a five-day trial, the jury returned a verdict of guilty on
two lesser included offenses of assault with a dangerous
weapon, as well as on three possession counts. On April 30,
2009, the district court sentenced Purvis to consecutive 63-
month and 48-month terms of imprisonment. Purvis challenges
the district court’s judgment on the single ground that its self-
defense instruction erroneously diluted the government’s burden
of proof.
II
Purvis did not object to the self-defense instruction in the
district court. To the contrary, his trial counsel pronounced
himself “satisfied” with the instruction. Trial Tr. 40 (Feb. 6,
2009 a.m.). Accordingly, we review his claim only for plain
error. United States v. Simpson, 430 F.3d 1177, 1183 (D.C. Cir.
2005). Under that standard: “‘[T]here must be (1) error, (2) that
is plain, and (3) that affect[s] substantial rights. If all three
conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the error
seriously affect[s] the fairness, integrity, or public reputation of
5
judicial proceedings.’” Id. (quoting Johnson v. United States,
520 U.S. 461, 467 (1997)); see also FED. R. CRIM. P. 52(b).
Purvis challenges only one sentence of the jury instruction:
“You must first determine from the evidence whether, in fact,
the defendant was the aggressor.” Trial Tr. 28 (Feb. 9, 2009
a.m.).2 He contends that, rather than requiring the jury to decide
whether the government had proven beyond a reasonable doubt
that he did not act in self-defense, this sentence erroneously
suggested that the jury should engage in a “simple weighing of
each party’s evidence against the other,” Appellant’s Br. 18, in
order to “determine [the] historical truth . . . as [to] whether Mr.
Purvis shot first,” id. at 19. This, Purvis maintains, “sent the
jury veering away from the more subtle and complex inquiry
whether the government had . . . disproved Mr. Purvis’ self-
defense claim” beyond a reasonable doubt, thereby violating
Purvis’ right to due process. Id. at 22; see id. at 16.
At oral argument, Purvis’ counsel acknowledged that he
would not have claimed error if the challenged sentence had
read: “You must first determine beyond a reasonable doubt
whether, in fact, the defendant was the aggressor.” Oral Arg.
Recording at 10:20; see also supra note 2. But that is
2
Purvis does not dispute the instruction that, “[i]f you find that the
defendant was the aggressor or if he provoked the conflict himself, he
cannot rely upon the right of self-defense to justify his use of force.”
Trial Tr. 28 (Feb. 9, 2009 a.m.). See generally Rorie v. United States,
882 A.2d 763, 775 (D.C. 2005) (holding that this instruction “is
appropriately given when there is both evidence of self-defense and
evidence that the defendant provoked the aggression from which he
was defending himself”); United States v. Grover, 485 F.2d 1039,
1042 (D.C. Cir. 1973) (noting that there are exceptions, not present in
the instant case, to the rule that “generally the defense of self-defense
is not available to one who provokes the difficulty” (internal quotation
marks omitted)).
6
effectively what the judge did charge. As set out in Part I above,
just three sentences earlier the court had stated in unequivocal
terms that “the government must prove beyond a reasonable
doubt that the defendant did not act in self-defense.” Trial Tr.
27-28 (Feb. 9, 2009 a.m.). The follow-up instruction to
determine “whether, in fact, the defendant was the aggressor,”
id. at 28, merely highlighted what Purvis acknowledges was the
only element of his self-defense claim that was in dispute at
trial. Oral Arg. Recording at 24:40.3
In urging the contrary position, Purvis necessarily asks us
to view a single sentence of the court’s jury instructions in
isolation. This we may not do. To the contrary, “[i]t is well
established that [an] instruction may not be judged in artificial
isolation, but must be considered in the context of the
instructions as a whole and the trial record.” Estelle v. McGuire,
502 U.S. 62, 72 (1991) (internal quotation marks omitted); see
United States v. Toms, 396 F.3d 427, 436 (D.C. Cir. 2005).
Here, not only did the district court specifically instruct the jury
that the government bore the burden of proving the absence of
self-defense beyond a reasonable doubt, Trial Tr. 27-28 (Feb. 9,
2009 a.m.), it repeatedly instructed that the government bore the
burden of proving each of the elements of the charged offenses
beyond a reasonable doubt, see, e.g., id. at 9-10. It also
specifically instructed that the “burden of proof never shifts
throughout the trial.” Id. at 9.
Moreover, in deciding whether a jury instruction was
erroneous, we must consider not only “the content of the entire
jury instruction,” but also “the arguments of counsel.” United
States v. Chan Chun-Yin, 958 F.2d 440, 444 (D.C. Cir. 1992).
3
For example, the government did not dispute that the force
Purvis used would have been reasonable if it had been used in self-
defense.
7
And here, the closing arguments of both the prosecution and the
defense specifically referenced the government’s burden to
disprove Purvis’ self-defense claim beyond a reasonable doubt.
See Trial Tr. 43, 57 (Feb. 9, 2009 a.m.). Given this context, it
would be hard to conclude there was a “reasonable likelihood”
that the jury “applied the challenged instruction in a way that
violates the Constitution.” Jones v. United States, 527 U.S. 373,
390 (1999) (internal quotation marks omitted).
Even if the district court’s instruction were in error, Purvis
could still prevail only if the error were plain, in the sense of
being “‘clear’ or ‘obvious.’” United States v. Bryant, 523 F.3d
349, 353 (D.C. Cir. 2008). This would be so if the instruction
“failed to follow [an] absolutely clear legal norm,” United States
v. Andrews, 532 F.3d 900, 909 (D.C. Cir. 2008) (internal
quotation marks omitted), or “tread upon a well-established
constitutional or legal principle,” United States v. Laureys, 653
F.3d 27, 33 (D.C. Cir. 2011) (internal quotation marks omitted).
But that did not happen here. The district court’s self-defense
instruction reproduced verbatim language from the then-current
version of the model Criminal Jury Instructions for the District
of Columbia (colloquially known as the “Redbook”). See
YOUNG LAWYERS SECTION OF THE BAR ASS’N OF THE DISTRICT
OF COLUMBIA, CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT
OF COLUMBIA, No. 5.16(A) (4th ed. 1993). The District of
Columbia Court of Appeals has held that this language,
including the very sentence disputed by Purvis, “adequately
inform[s] the jury of the controlling legal principles” governing
self-defense. Stewart v. United States, 687 A.2d 576, 581 (D.C.
1996); see also Tyler v. United States, 975 A.2d 848, 857-59
(D.C. 2009). If anything, this suggests that the challenged
8
instruction constituted rather than contravened a clear legal
norm.4
The instruction might also have been plainly erroneous if it
had “contradict[ed] circuit or Supreme Court precedent.”
Laureys, 653 F.3d at 32 (citation omitted). But there is no such
precedent. Indeed, we have twice declined to reverse similar
instructions on plain error review.
In United States v. Spencer, we reviewed an instruction
stating that the jury “must decide whether the officers were lying
or [the defense witnesses] were lying.” 25 F.3d 1105, 1110
(D.C. Cir. 1994). We held that instruction was not plain error
because the district court had “immediately followed up with an
explanation of the [government’s] burden of proof,” and “[t]he
jury could not have construed the court’s remark to mean that
the defendant had the burden of proof, unless it ignored the
court’s other instructions.” Id. Four years later, we affirmed
that holding in United States v. Wilson, 160 F.3d 732 (D.C. Cir.
1998). There, we held that instructing a jury to “determine
where the truth lies” did not by itself impermissibly shift the
burden to the defense, particularly where the district court had
“repeatedly and correctly instruct[ed] the jury that the
government had the burden of proof beyond a reasonable
doubt.” Id. at 747.
4
We note that fidelity to the Redbook cannot alone shield an
instruction from plain error. The Redbook reflects the views of one
committee of one section of the District of Columbia Bar Association,
and “we have never suggested that the Redbook instruction is
mandatory.” United States v. Taylor, 997 F.2d 1551, 1556 (D.C. Cir.
1993). For the same reason, however, the committee’s decision to
withdraw the challenged instruction from the Redbook after Purvis’
trial, as noted in the Appellant’s Reply Br. at 4-5, cannot suffice to
show that the instruction was plainly erroneous.
9
The instruction at issue here falls comfortably within the
holdings of Spencer and Wilson. As in those cases, the district
court highlighted for the jury the main factual issue to be
decided -- “whether, in fact, the defendant was the aggressor” --
but did so in the context of other instructions that properly set
forth the government’s burden of proof. Indeed, whereas the
district court in Spencer merely addressed the government’s
ultimate burden of proof, here the trial court specifically
instructed the jury that the government had to disprove Purvis’
self-defense claim beyond a reasonable doubt.
Purvis points to two D.C. Circuit cases in support of his
plain error argument. Both are readily distinguishable. In
United States v. Rawlings, we found plain error where the
court’s instructions “required [the jury] to decide whom to
believe or what actually occurred,” noting that “[t]he court’s
emphasis on resolving the factual dispute was plainly
inconsistent with its otherwise adequate burden of proof and
reasonable doubt instructions.” 73 F.3d 1145, 1148-49 (D.C.
Cir. 1996). We expressly noted, however, that our reversal did
not rest on the ground that the instruction “by itself
impermissibly shifted the burden of proof to the defendant.” Id.
at 1148 n.4. Rather, “[a]ny confusion” the instruction caused
“was compounded by [a] clumsy instruction on the elements of
the charged offense . . . [that] purported to establish a hierarchy
among the offense elements.” Id. at 1149. It was the “combined
effect” of the challenged instructions that “divert[ed] the jurors’
focus” from the crucial question of whether the government had
proven the elements of the offense beyond a reasonable doubt.
Id.; accord Wilson, 160 F.3d at 747 (explaining that the reversal
in Rawlings “turned on a combination of errors”).
Our decision in United States v. Alston, 551 F.2d 315 (D.C.
Cir. 1976), is also distinguishable. There, the trial court
expressly invited a weighing exercise by instructing jurors to
10
“analyze the testimony presented by [the defendant] in
contradistinction to the testimony presented by the Government”
regarding the defendant’s alibi defense. Id. at 317. Those
instructions were erroneous, we said, because “‘[a] defendant is
entitled to specific instructions on the burden of proof on alibi
issues because the jury is likely to become confused about the
burden of proof when an appellant offers this type of evidence.’”
Id. at 319 (quoting United States v. Booz, 451 F.2d 719, 723 (3d
Cir. 1971)). Here, the district court specifically instructed the
jury that the government bore the burden of proving the absence
of self-defense beyond a reasonable doubt. Hence, unlike the
district court in Alston, the court “adequately emphasize[d] that
the burden of proof does not shift when a defendant voluntarily
undertakes to present a specific defense.” Id. at 317.
Finally, Purvis points to Holloway v. United States, in
which the District of Columbia Court of Appeals considered a
challenge to a jury instruction on the defendant’s theory of
defense -- accident -- in an arson case. 25 A.3d 898 (D.C.
2011). There, the trial judge had instructed that “[t]he question
is whether or not [the fire] was intentionally set or whether it
was an accident.” Id. at 902. The Court of Appeals
acknowledged that it had previously “identified a heightened
risk” that a jury might not understand that the government
retains its burden of proof “when a defendant presents an
affirmative defense such as alibi, self-defense, or (as in this
case) accident.” Id. at 903. But it explained that “[t]he standard
way of dealing satisfactorily with the problem is for the trial
court to . . . explicitly inform[] the jury of the government’s
burden to disprove the defense beyond a reasonable doubt.” Id.
Concluding that the trial court had effectively done so, the Court
of Appeals held, as we do here, that there was “no reasonable
likelihood that the jury was confused or misled into diluting the
government’s burden of proof or shifting the burden of proof”
to the defendant. Id. at 905.
11
In short, the instruction that Purvis challenges did not
contradict any precedent of this court or the Supreme Court.
Nor did it contravene any clear legal norm. If anything, cases
from our circuit and the D.C. Court of Appeals point in the
opposite direction. That is sufficient for us to conclude that the
instruction was not plainly erroneous, and there is no need to
consider the remaining elements of the plain error standard. See
United States v. Olano, 507 U.S. 725, 732 (1993).
III
For the foregoing reasons, the judgment of the district court
is
Affirmed.