U.S. v. Pinkney, 75-2223

Decision Date10 August 1976
Docket NumberNo. 75-2223,75-2223
Citation179 U.S.App.D.C. 282,551 F.2d 1241
PartiesUNITED STATES of America v. Robert L. PINKNEY, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

Ann K. Macrory, Washington, D.C. (appointed by this Court), for appellant.

Douglas J. Behr, Asst. U. S. Atty., Washington, D.C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Carolyn R. Kleiman, Asst. U. S. Attys., Washington, D.C., were on the brief for appellee.

Before BAZELON, Chief Judge, LEVENTHAL, Circuit Judge, and CHRISTENSEN, * United States Senior District Judge for the District of Utah.

Opinion for the Court filed by Chief Judge BAZELON.

Opinion filed by Circuit Judge LEVENTHAL, concurring in part and dissenting in part.

BAZELON, Chief Judge:

Appellant was convicted by a jury of possession of phenmetrazine with intent to distribute, 1 possession of phenmetrazine, 2 and possession of methadone. 3 After submission to the court of a report 4 finding him unsuitable for treatment under the Narcotics Addict Rehabilitation Act (NARA), 5 appellant was sentenced to prison terms of from one to three years (with a special parole term of two years) on the possession with intent to distribute count and one year on each other count, all to run concurrently.

Finding merit to appellant's claim that the court erred in illustrating the meaning of the phrase "reasonable doubt" in its charge to the jury, we reverse the conviction for possession of phenmetrazine with intent to distribute. For the reasons discussed below, we affirm the convictions on the two possession counts and remand for resentencing.


After reading to the jury the standard burden of proof instruction, 6 the trial court illustrated the meaning "reasonable doubt" with the following example:

Take a young couple who are working, they have two or three children and they have a little apartment or home. They don't have too much money in the bank, but they have an automobile that is running pretty well. One day a salesman finds out the wife of this young man might be interested in a new automobile. So he gets her number and calls her up and says I would like to have you drive this new Chevrolet, I hear you might be interested in a new car.

Well, he came around the house and they went out for a ride and she fell in love with this automobile. She is ready to buy it right away, but the husband comes home at night and while having dinner, they start talking and she tells him about this automobile she had driven and would like to go and get it right away. She is just crazy about it.

The husband listens to her and he says: wait a minute, sweetheart, listen. How much money do we have in the bank? We have four or five hundred dollars, something like that; the children have to go to school this fall and they need new clothes and books and all that business.

And we haven't had a vacation for five years, you see, and she starts listening and he says, don't you think we could spend this money for some other purpose or save it for a rainy day?

You see, they are hesitating, talking about it, pausing. The husband says: Look, we have a nice automobile, it's running pretty well. Of course, we would like to have a new car but let's think about this.

You see, they are hesitating, communicating with each other. It is a reasonable doubt they have. You can take that on through a thousand examples, whether you take a trip or not, whether you get a new job or not.

Tr.T. 147-149.

We evaluate the propriety of this illustration mindful that the reasonable doubt instruction "is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence that bedrock 'axiomatic and elementary' principle whose 'enforcement lies at the foundation of the administration of our criminal law.' " 7 The reasonable doubt instruction "is indispensable, for it impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue(,)' " and because it "command(s) the respect and confidence of the community in applications of the criminal law." 8

Judicial attempts to clarify the meaning of the phrase "reasonable doubt" by explanation, elaboration or illustration, as employed here, more often than not tend to confuse or mislead. 9 Thus, the jurors might well believe that for the defendant to prevail he must make out as strong a case against conviction as there was against buying the car. We think that the instruction overstates the degree of uncertainty required for reasonable doubt. 10 And by comparing the level of doubt required in a criminal prosecution to the doubt generated by consideration of the wisdom of buying this clearly unnecessary new car, the illustration tends to denigrate the "graver, more important transactions of life" concept. 11 Moreover, its stereotyped portrayal of the practical husband's patronizing attempt to talk sense into his flighty wife, trivializes the entire matter of conviction. 12

Since trial counsel failed to object to this faulty instruction, 13 we must decide whether the matter constitutes plain error within the meaning of Rule 52(b) 14 of the Federal Rules of Criminal Procedure. 15 This determination requires (1) consideration of the instructions as a whole, 16 and (2) a review of the entire record, since "strong evidence supports a finding of no prejudice." 17 And because the burden of proof beyond a reasonable doubt is "one of the fundamental components of due process," 18 we must be able to declare a belief that any error was harmless beyond a reasonable doubt. 19

(1) Viewing the instruction in context offers little assurance that appellant was not seriously prejudiced by the illustration. Although the court prefaced the story with a correct statement concerning the government's burden of proof, 20 the example comprises the major portion of the reasonable doubt instruction. 21 Nor was the error " 'cured by a subsequent charge' "; 22 the illustration was the final mention made of the standard of proof before the jury retired. 23 Moreover, it is likely that the jurors might have given undue weight to such a graphic example, 24 which because of its length and nonlegal character might have been more easily comprehended and remembered than the standard instruction, "resonat(ing) in the jury room as a standard of their function and responsibility." 25

Our review of the evidence convinces us that the error was prejudicial only with respect to the possession with intent to sell count, since appellant freely admitted possession of both the phenmetrazine tablets 26 and the methadone. 27 With respect to the possession with intent to sell count, however, the facts were largely disputed, and the evidence equivocal. 28 The government's case revolved around the testimony of three plainclothes police officers who had been riding through appellant's neighborhood in an unmarked car. Officer Pope testified that the aborted sale 29 took place after he stopped the car and negotiated with appellant, having heard appellant call out "pink." 30 In his police crime report, however, the officer wrote that he "observed subject later identified as defendant who waved and stated something inaudible to me." 31 Officers McCluney and Scott also testified that they heard someone yell "pink," but neither heard the subsequent conversation between appellant and Officer Pope. 32 Appellant denied making any offer of sale. 33

Thus, the evidence on the sale count was, at best, closely balanced, credibility being the primary issue. 34 Under these circumstances, we cannot say, beyond a reasonable doubt, 35 that the jury's decision was not swayed by the erroneous instruction. 36 Accordingly, the conviction for possession of phenmetrazine with intent to sell is reversed. We affirm the convictions on counts two and three, for which there was conclusive evidence of guilt, and on these counts remand for resentencing. 37


The transcript of appellant's sentencing hearing raises substantial questions which we believe merit discussion, especially in view of the remand for resentencing. As indicated above, 38 appellant was referred to the Federal Correctional Institution at Danbury, Connecticut for examination to determine whether he was eligible for NARA treatment. In a letter addressed to the trial court, the Danbury staff recommended against such treatment. The letter reads, in pertinent part:

(Mr. Pinkney) was introduced to heroin through peer group association and has used other drugs including cocaine and bam. Investigative reports indicate recent use of amphetamines during the month of February and March of 1975.

Mr. Pinkney has been motivated to observe our therapeutic drug program. He indicates no desire to participate in such a drug program and indicates that the group counseling sessions are too intense for him. Our staff has observed his limited participation in our program and it is our finding that Mr. Pinkney is a drug addict as defined by law. It is also found that Mr. Pinkney is not likely to be rehabilitated through treatment because of his limited motivation to participate in a drug program at this time. He admits that he is a drug addict having used drugs for several years. We recommend that you consider sentencing him as a regular adult offender with the recommendation that he participate in a drug abuse program.

At sentencing, trial counsel reported that he had gone over the presentence report and discussed the matter with the Probation Office representative. 39 He devoted the remainder of his statement to an acknowledgment of what to all parties seemed apparent that appellant's addiction caused him to be before the court 40 and to a plea that the court place his client on probation. 41

When asked whether he had read the NARA report, counsel replied, "I have not read it, Your Honor." 42 The court proceeded to...

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