U.S. v. Barrera-Gonzales, BARRERA-GONZALES

• Decision Date: 03 January 1992
• Docket Number: No. 91-2018,BARRERA-GONZALES,91-2018
• Citation: 952 F.2d 1269
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carlos, also known as Oscar Barrera-Gonzales, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1269

952 F.2d 1269

UNITED STATES of America, Plaintiff-Appellee, v. Carlos BARRERA-GONZALES, also known as Oscar

Barrera-Gonzales, Defendant-Appellant.

No. 91-2018.

United States Court of Appeals, Tenth Circuit.

Jan. 3, 1992.

William L. Lutz, U.S. Atty., and Louis E. Valencia, Asst. United States Attorney, Albuquerque, N.M., for plaintiff-appellee.

Michael G. Katz, Federal Public Defender, and Susan L. Foreman, Asst. Federal Public Defender, Denver, Colo., for defendant-appellant.

Before SEYMOUR, BARRETT and BALDOCK, Circuit Judges.

BARRETT, Senior Circuit Judge.

Carlos Barrera-Gonzales (Barrera) appeals from his sentence entered on January 14, 1991, following a jury conviction of guilty to a three-count indictment. Count I charged conspiracy (with co-defendant Navarette) to possess with intent to distribute heroin. Count II charged possession with intent to distribute less than 100 grams of heroin on June 11, 1990. Count IV charged possession with intent to distribute more than 100 grams of heroin on June 20, 1990. These charges were brought pursuant to 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and (b)(1)(C), and 846 and 18 U.S.C. § 2. The sole challenge on appeal is that the trial court committed plain error in its instruction to the jury regarding the government's burden of proof beyond a reasonable doubt.

Barrera contends that the following instruction given by the trial court, to which he did not lodge a contemporaneous objection as required by Fed.R.Crim.P. 30, constituted plain error under Fed.R.Crim.P. 52(b):

As I have said many times, the government has the burden of proving the defendant guilty beyond a reasonable doubt. Now, some of you may have served as jurors in civil cases where you were told that it is only necessary to prove that a fact is more likely true than not true.

In criminal cases, the government's proof must be more powerful than that. It must be beyond a reasonable doubt. Now, proof beyond a reasonable doubt, is proof that leaves you firmly convinced of the defendant's guilt. Now, 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.

(R., Vol. IV, pp. 394-95).

Barrera argues that "[t]his reasonable doubt instruction completely lacked the standard formulation that reasonable doubt is a doubt that would cause a reasonable person to hesitate to act. It also diluted the government's burden of proof by equating being 'firmly convinced' of guilt with proof beyond a reasonable doubt. Furthermore, its language regarding a finding of a 'real possibility that he is not guilty' impermissibly shifted the burden of guilt to the defense. These flaws in the instruction misled the jury as to the constitutional standard it was to utilize in reaching a verdict and require that Mr. Barrera be granted a new trial." (Brief of Appellant, pp. 9-10).

The government, while recognizing that this court, in United States v. Leaphart, 513 F.2d 747, 750 (10th Cir.1975), encouraged the trial courts to employ the "hesitation to act" language suggested by the United States Supreme Court, argues that the phrase "proof that leaves you firmly convinced" requires more persuasion and that, arguably, a person who is "firmly convinced" has no reasonable doubt. (Brief of Appellee, pp. 9-11). We agree.

It is elementary, as instructed by the trial court, that the burden of proof cast upon the prosecution in a criminal case is to establish beyond a reasonable doubt all elements of the offense charged. United States v. Brown, 540 F.2d 1048, 1053 (10th Cir.1976), cert. denied, 429 U.S. 1100, 97 S.Ct. 1122, 51 L.Ed.2d 549 (1977). In the case at bar, the trial judge used the terms "reasonable doubt" or "beyond a reasonable doubt" twelve times during the course of his instructions to the jury. The sufficiency of the district court's instructions to the jury involve questions of law, which require de novo review. United States v. Agnew, 931 F.2d 1397 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 237, 116 L.Ed.2d 193 (1991). In examining a challenge to jury instructions, the appellate court must review the record as a whole to determine whether the instructions stated the governing law and provided the jury with ample understanding of the issues and standards applicable. Big Horn Coal Co. v. Commonwealth Edison Co., 852 F.2d 1259 (10th Cir.1988).

In Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), the Supreme Court reviewed a "reasonable doubt" instruction where the trial judge defined it as the kind of doubt which folks in the more serious and important affairs of their lives would be willing to act upon. Holding that the "willing to act" instruction was not misleading on reasonable doubt when considered with the instructions as a whole, the Court nevertheless opined that:

We think this section of the charge should have been in terms of the kind of doubt that would make a person hesitate to act, see Bishop v. United States, 71 App.D.D. [C.] 132, 137-38, 107 F.2d 297, 303, rather than the kind on which he would be willing to act. But we believe that the instruction as given was not of the type that could mislead the jury into finding no reasonable doubt when in fact there was some.

Id. at 140, 75 S.Ct. at 138.

In Bishop v. United States, supra, the court approved a "reasonable doubt" instruction reading:

Reasonable doubt is a doubt arising from the evidence, or from a lack of evidence, after consideration of all the evidence. It is not a vague, speculative, imaginary, something, but just such a doubt as would cause reasonable men to hesitate to act upon it in matters of importance to themselves.

107 F.2d at 303.

In keeping with Holland and Bishop, this court, in United States v. Leaphart, supra, observed that, consistent with Holland, the preferable "reasonable doubt" instruction is one couched in terms of the kind of doubt that would make a person hesitate to act; however, we there held that the giving of the following charge did not constitute reversible error:

Proof beyond a reasonable doubt is established if the evidence is such as a reasonably prudent man would be willing to rely and act upon in the most important of his own affairs. A defendant is not to be convicted on mere suspicion or conjecture.

513 F.2d at 749.

Thus, although we have earmarked Holland 's "hesitate to act" charge as the preferable definition of reasonable doubt, this court has rarely held that other definitions of reasonable doubt given in charges to juries in this circuit constitute reversible error. To be sure, in Monk v. Zelez, 901 F.2d 885 (10th Cir.1990), we held that a reasonable doubt instruction which equated a "reasonable doubt" with a "substantial doubt," coupled with "willingness to act" language, was constitutionally defective as violative of the due process clause of the Fifth Amendment. On the other hand, we have upheld several "reasonable doubt" instructions which have strayed from the "hesitate to act" formula:

In United States v. Heath, 580 F.2d 1011, 1025 (10th Cir.1978), cert. denied, 439 U.S. 1075, 99 S.Ct. 850, 59 L.Ed.2d 42 (1979), we reviewed a jury instruction given on specific intent, which included the following language: "As a general rule, it is reasonable to infer that a person ordinarily intends all of the natural and probable consequences of acts knowingly done and knowingly omitted." The court was not enthusiastic with this language, but nevertheless held that the "[c]harge as a whole is satisfactory in terms of requiring that the jury be convinced beyond a reasonable doubt as to each element, including that of intent." See also, United States v. MacKay, 491 F.2d 616 (10th Cir.), cert. denied, 416 U.S. 972, 94 S.Ct. 1996, 40 L.Ed.2d 560 (1974).

In United States v. Pepe, 501 F.2d 1142, 1143 (10th Cir.1974), we held that the trial court did not commit reversible error in giving the following "reasonable doubt" instruction when considered with the instructions as a whole:

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