U.S. v. Birbal

• Decision Date: 02 August 1995
• Docket Number: 1212,D,Nos. 712,s. 712
• Citation: 62 F.3d 456
• Parties: 42 Fed. R. Evid. Serv. 1256 UNITED STATES of America, Appellee, v. Premnath BIRBAL, also known as Winston, and John T. Wright, Defendants-Appellants. ockets 94-1320, 94-1461.
• Court: U.S. Court of Appeals — Second Circuit

Page 456

62 F.3d 456

42 Fed. R. Evid. Serv. 1256

UNITED STATES of America, Appellee, v. Premnath BIRBAL, also known as Winston, and John T. Wright Defendants-Appellants.

Nos. 712, 1212, Dockets 94-1320, 94-1461.

United States Court of Appeals, Second Circuit.

Argued Feb. 13, 1995.

Decided Aug. 2, 1995.

Steven M. Statsinger, New York City (Henriette D. Hoffman, The Legal Aid Society, Federal Defender Div., of counsel), for defendant-appellant Birbal.

Kevin P. Candon, Rutland, VT, for defendant-appellant Wright.

Gary G. Shattuck, Asst. U.S. Atty., Rutland, VT (Charles R. Tetzlaff, U.S. Atty., David V. Kirby, Chief, Crim. Div., of counsel), for appellee.

Before: OAKES, MINER and JACOBS, Circuit Judges.

OAKES, Senior Circuit Judge:

This appeal requires us to address one of the most ancient and time-honored aspects of our criminal justice system, although perhaps one of the least susceptible to verbal formulation--the requirement of proof beyond a reasonable doubt. Premnath Birbal and John Wright appeal from judgments of conviction entered on May 23, 1994, and August 15, 1994, respectively, following a jury trial in the United States District Court for the District of Vermont (Franklin S. Billings, Jr., J.). The jury found both defendants guilty of Birbal and Wright contend, inter alia, that their convictions should be overturned because the district court instructed the jury erroneously on the issue of reasonable doubt. We agree, and accordingly we reverse both judgments of conviction. Because we reverse on this ground, we need not address the host of other contentions raised by appellants. We write briefly, however, to address two contentions raised by Birbal which remain relevant on retrial: that the district court erred in denying his in limine motion to exclude prejudicial testimony about the death by heroin overdose of one of his customers, Peter Buckley, and that it erred as well in failing to dismiss portions of the indictment on double jeopardy grounds. As discussed below, we find these contentions without merit.

conspiring to distribute heroin in violation of 21 U.S.C. Sec. 846, of distributing heroin and cocaine in violation of 21 U.S.C. Sec. 841, and of traveling to promote unlawful activity, in violation of 18 U.S.C. Sec. 1952. The district court sentenced Birbal to 12 months' imprisonment and Wright to 92 months' imprisonment, with both prison terms to be followed by a three-year term of supervised release.

BACKGROUND

On July 20, 1991, Peter Buckley, a resident of Pawlet, Vermont, died in his home of a heroin overdose shortly after being visited by Birbal and Wright. An extensive police and grand jury investigation ensued in order to determine whether Birbal and Wright had supplied the heroin that killed Buckley. In June 1992, during the course of the investigation but before any indictment was rendered, Birbal was arrested for possessing cocaine with intent to distribute and for destroying evidence by flushing cocaine down a toilet as police executed a search warrant in his home. Birbal was tried and convicted of these offenses in October 1992 (the "cocaine case").

In December 1992, while Birbal was awaiting sentencing in the cocaine case, the investigation into Buckley's death concluded, and Birbal and Wright were indicted for supplying the heroin that killed Buckley. The indictment charged the defendants with: (1) conspiring between 1989 and July 20, 1991, to distribute and possess with intent to distribute heroin, cocaine, and marijuana; (2) distributing heroin to Buckley on numerous occasions from 1989 through 1991, including July 20, 1991, the date of Buckley's death; (3) traveling in interstate commerce between 1989 and 1991 for the purpose of facilitating an unlawful activity (distribution of heroin and cocaine); and (4) distributing heroin, marijuana, and cocaine between 1989 and 1991 to a man named Lawrence Stoddard.

Before trial, the district court denied Birbal's motion to preclude the government from introducing any evidence relating to Buckley's death. On November 8, 1993, following a five-day jury trial, both Birbal and Wright were convicted on all four counts.

DISCUSSION

I. The Jury Instruction on "Reasonable Doubt"

Birbal and Wright contend that their convictions should be reversed because the district court's jury instructions on reasonable doubt, the presumption of innocence, and the government's burden of proof were so deficient as to violate due process. See Sullivan v. Louisiana, --- U.S. ----, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993); Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) (per curiam); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

In his written request to charge, Birbal asked that the district court deliver the instruction on reasonable doubt provided in 1 Leonard B. Sand, et al., Modern Federal Jury Instructions No. 4-2 (1993). That instruction states:

I have said that the government must prove the defendant guilty beyond a reasonable doubt. The question naturally is what is a reasonable doubt? The words almost define themselves. It is a doubt based upon reason and common sense. It is a doubt that a reasonable person has after carefully weighing all of the evidence. It is a doubt which would cause a reasonable person to hesitate to act in a matter of importance in his or her personal life. Proof beyond a reasonable doubt must In addition, Birbal requested the charge on the presumption of innocence and burden of proof provided in Instruction No. 4-1 of Modern Federal Jury Instructions, which states, in part, "If the government fails to sustain its burden you must find the defendant not guilty."

therefore, be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs. A reasonable doubt is not a caprice or whim; it is not a speculation or suspicion. It is not an excuse to avoid the performance of an unpleasant duty. And it is not sympathy.

Instead, the court gave the following instructions:

In a criminal case, the government has the burden of proving each element of the charges against the defendants beyond a reasonable doubt. You cannot find the defendants guilty unless the government has met this burden of proof.

To support a verdict of guilty, you need not find every fact beyond a reasonable doubt. You need only find that the government has established by the evidence and beyond a reasonable doubt each and every essential element of the crimes charged. A reasonable doubt is a fair doubt, based upon the application of reason and common sense to the evidence presented.

The law does not require proof that overcomes all possible doubt, so a reasonable doubt means only a substantial doubt. Similarly, beyond a reasonable doubt does not mean no doubt. A reasonable doubt may arise either from the evidence presented or from the lack of evidence presented.

....

The law presumes that a defendant is innocent of the charges against him. The presumption of innocence lasts throughout the trial and ends only if you, the jury, find beyond a reasonable doubt that the defendant is guilty. Should the prosecution fail to prove the guilt of a defendant beyond a reasonable doubt, you may acquit the defendant on the basis of the presumption of innocence.

Transcript of proceedings, IV-86-88 (emphasis added).

Although appellants requested the standard jury instructions on reasonable doubt, the presumption of innocence, and the burden of proof, they did not specifically object to the district court's alternative instruction at the time it was given, as Fed.R.Crim.P. 30 requires. Accordingly, we review the court's instructions for plain error, under Rule 52(b). United States v. Locascio, 6 F.3d 924, 942 (2d Cir.1993), cert. denied, --- U.S. ----, ----, 114 S.Ct. 1645, 1646, 128 L.Ed.2d 365 (1994); see also United States v. Olano, --- U.S. ----, ----, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993). ¹

As appellants note, this is not the first occasion we have had to examine this particular jury instruction. The reasonable-doubt instruction in this case is the same charge, word for word, which the very same judge employed and which this court examined and found wanting in United States v. Delibac, 925 F.2d 610, 614 (2d Cir.1991) (per curiam)--with the addition that in this case we review as well the final paragraph above concerning the presumption of innocence and the burden of proof.

In Delibac, we commented that "[o]nce again, a district court has failed to heed our repeated warnings against embellishing upon the standard instruction recommended in 1 First, the charge failed to instruct the jurors that proof beyond a reasonable doubt is "proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs." Second, the charge equated "reasonable" doubt with "substantial" doubt--an unenlightening instruction that we have only "tolerated." Finally, the charge advised the jury that "to support a verdict of guilty, you need not find every fact beyond a reasonable doubt." While we have noted that, as an abstract proposition, this instruction is a correct statement of the law, we have also advised that in an instruction to a jury it is probably confusing and certainly unnecessary.

Devitt & Blackmar, Federal Jury Practice and Instructions." Id. (citing United States v. Gatzonis, 805 F.2d 72, 74 (2d Cir.1986) (per curiam), cert. denied, 484 U.S. 932, 108 S.Ct. 303, 98 L.Ed.2d 262 (1987); United States v. Viafara-Rodriguez, 729 F.2d 912, 913-14 (2d Cir.1984); United States v. Ivic, 700 F.2d 51, 69 (2d Cir.1983)). We concluded that the court's instruction "creates three problems":

Id. (citations omitted).

Having found the charge deficient, however, we upheld it, stating:

Although we find it necessary to "state our views on this issue" again, we are nevertheless...