
USCA1 Opinion

	




          June 13, 1995          NOT FOR PUBLICATION                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1623                                    UNITED STATES,                                      Appellee,                                          v.                                   FRANCIS FUENTES,                                      Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Frank H. Freedman, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                        and Schwarzer,* Senior District Judge.                                        _____________________                                 ____________________            Paul J. Garrity for appellant.            _______________            Andrew Levchuk, Assistant United States Attorney, with whom  Kevin            ______________                                               _____        O'Regan, Assistant United States Attorney, and Donald K. Stern, United        _______                                        _______________        States Attorney, were on brief for appellee.                                 ____________________                                 ____________________        _____________________        * Of the Northern District of California, sitting by designation.                 Per Curiam.  Francis Fuentes was convicted of three drug                 __________            offenses arising from his involvement in a heroin importation            and distribution  scheme.  21  U.S.C.     841, 846, 963.   On            appeal, he argues  that in four  respects the district  court            erred in its instructions to the  jury.  We review for  plain            error only,  since Fuentes did  not object to  the challenged            instructions when they were given.  United States v. Whiting,                                                _____________    _______            28  F.3d 1296, 1308 (1st Cir.), cert.  denied, 115 S. Ct. 532                                            _____  ______            (1994).                 1.   Fuentes first claims  that the instructions  quoted            below, given at different places in the charge, impermissibly            reduced  the  government's  burden   of  proof  by   equating            reasonable doubt with a preponderance of the evidence:                      If  the jury  views the  evidence in  the                      case as reasonably  permitting either  of                      two  conclusions,  one of  innocence, the                      other of guilt, the  jury must of  course                      adopt the conclusion of innocence.                      Consider the  evidence  in the  case  for                      only those purposes for which it has been                      admitted,  and give  it a  reasonable and                      fair construction in light of your common                      knowledge of the  natural tendencies  and                      inclinations of human beings.                      You  should  consider all  the  facts and                      circumstances  in  evidence to  determine                      which  of  the  witnesses  are  worthy of                      greater credence.                 The  first instruction, known  as the  "two conclusions"            instruction, was  upheld in United  States v. Del  Toro Soto,                                        ______________    ______________            676 F.2d 13, 17-18 (1st Cir. 1982).  Read literally, the two-                                         -2-                                         -2-            conclusions  instruction  merely emphasizes  that in  a close            case  the  jury  must  acquit;  it  says  nothing  about  the            government's burden of proof.  In this case the judge advised            the  jury separately,  and reiterated throughout  his charge,            that  the government had the burden of proving guilt beyond a            reasonable  doubt.   However the  two-conclusions instruction            might be read  out of context,  we do not  think that a  jury            repeatedly instructed on the reasonable  doubt standard could            view  the  two-conclusions  charge  as  substituting  for  or            modifying the reasonable doubt standard.                 In  United  States v.  Kahn, 821  F.2d  90, 91  (2d Cir.                     ______________     ____            1987), the  Second Circuit  disapproved of a  two-conclusions            instruction similar to that  in this case; but it  also found            that the  instruction did not constitute  reversible error in            the context  of the  full reasonable doubt  instruction there            given.  In another  case, the Second Circuit refused  to find            plain error when, without objection, the trial  court gave an            arguably  more harmful version of the two-conclusions charge.            United  States v. Marcus, 401  F.2d 563, 567  (2d Cir. 1968),            ______________    ______            cert.  denied,  393 U.S.  1023 (1969).    Since there  was no            _____  ______            objection  to the charge in our case, we see no conflict with            the Second Circuit.                 The  second and third  instructions criticized on appeal            relate  to the  jury's  evaluation of  witness testimony  and            other evidence.   As  with  the two-conclusions  instruction,                                         -3-                                         -3-            these  instructions say  nothing about  the burden  of proof;            they  merely guide the jury in evaluating and considering the            evidence  and are  perfectly appropriate.   United  States v.                                                        ______________            DeMasi, 40 F.3d 1306, 1317-18 (1st Cir. 1994), cert.  denied,            ______                                         _____  ______            115 S.  Ct. 947 (1995);  United States v.  Ocampo-Guarin, 968                                     _____________     _____________            F.2d 1406, 1412 (1st Cir. 1992).                 Fuentes says that though the challenged instructions may            not  be  erroneous  per  se, they  did  cause  confusion here                                _______            because the  jury was  not instructed  on  the definition  of                                                           __________            reasonable doubt.  But  the judge was not required  to define            reasonable doubt, an  effort that often is itself  the source            of  error.  United States  v. Olmstead, 832  F.2d 642, 645-46                        _____________     ________            (1st Cir. 1987), cert.  denied, 486 U.S. 1009 (1988).   Here,                             _____  ______            the judge explained that  the defendant was presumed innocent            and  that the  government  must prove  every  element of  the            crimes charged  beyond a  reasonable doubt.   The judge  then            repeated the government's burden over 20 times throughout its            charge.   The  jury  did not  misunderstand the  government's            burden  of proof.  Victor v. Nebraska,  114 S. Ct. 1239, 1243                               ______    ________            (1994).                 2.   Fuentes next  claims that the judge  erred by using            charge language inconsistent  with jury  nullification.   The            judge instructed the jury, in essence, that it "must" convict            the defendant  if the government  proved all the  elements of            the  crimes charged; Fuentes says  that the proper wording is                                         -4-                                         -4-            "should," so  that the  possibility of jury  nullification is            left open.   Although  the government has  conceded that  the            defendant raised and preserved  his objection in the district            court, the government  is mistaken, and  we review for  plain            error.1                 We  have squarely held that a  defendant is not entitled            to have  the jury  told that  nullification is a  permissible            course for the jury  to take, United States v.  Sepulveda, 15                                          _____________     _________            F.3d 1161, 1190  (1st Cir.  1993), cert. denied,  114 S.  Ct.                                               _____ ______            2714 (1994), a holding arguably at odds with Fuentes' attempt            to encourage the same  result soto voce.  Even  assuming that                                          _________            "should" rather  than "must"  were a preferable  instruction,            but see F.J.C. Pattern  Instruction 21 (1987) (using "must"),            ___ ___            the  difference between  "should" and  "must" in  the present            context  is far too subtle an  adjustment to constitute plain            error.                 3.   Fuentes now claims that the judge erroneously  left            out the  "intent to  distribute" element when  instructing on            the  charge  of  possession  of  heroin  with  an  intent  to            distribute.   21 U.S.C.    841(a)(1).  It  is quite true that            the  district court did say,  in what was  almost certainly a            slip of the tongue,  that "if [the defendant] did  know [that                                            ____________________                 1Fuentes'   co-defendant   asked   for  an   instruction            affirmatively  advising  the jury  that  it  could engage  in            nullification and Fuentes adopted his co-defendant's request.            Neither  Fuentes  nor his  co-defendant  asked  the court  to            substitute "must" for "should."                                         -5-                                         -5-            he  possessed  a  controlled   substance]  and  he  did  have            possession,  then  you  must  find the  defendant  guilty  as            charged."  In this passage,  the intent to distribute element            is  omitted and, taken literally, the jury is told to convict            based on mere knowing possession.                 But  in fact this slip  occurred in a  discussion of the            possession  element of  the  offense that  occurred when  the            court  had  already  painstakingly  told the  jury  that  the            offense  required two  elements:   knowing possession  and an            intent to distribute.   Further, after finishing the separate            discussion of possession, the district court then returned to            the "second  element," repeated  that "the Government  [must]            prove beyond  a reasonable doubt that  the defendant intended            to distribute  the controlled substance," and  the court then            enlarged at some length on the intent element.                 The district court would undoubtedly have  corrected the            slip if it had been asked to do so, and the case is a perfect            example of why counsel is obligated to make timely objections            to instructions.  In all events,  reading the instructions as            a  whole there is virtually  no chance that  the jury thought            that it could convict on this count without finding an intent            to  distribute.  The risk that the conviction was affected by            this slip is not only far from what is needed for plain error            review,  see United States v. Olano, 113 S. Ct. 1770, 1777-79                     ___ _____________    _____            (1993), but is virtually nonexistent.                                         -6-                                         -6-                 4.   As his final argument,  Fuentes says that the judge            erred when,  in connection  with the conspiracy  charges, the            judge instructed the jury  that "it is reasonable for  you to            draw the  inference that  a  person intends  the natural  and            probable consequences of his acts knowingly done or knowingly            committed."  This, says Fuentes, amounts to the creation of a            presumption that at the very least shifts the burden of proof            onto the defendant to disprove intent; and he reminds us that            presumptions  to this  effect were  condemned by  the Supreme            Court  in  Sandstrom v.  Montana,  442 U.S.  510  (1979), and                       _________     _______            Francis  v. Franklin, 471 U.S. 307 (1985).  No such objection            _______     ________            was made at trial.                 The disputed instruction does  not create a presumption,            nor does it direct the jury to draw any kind of inference; it            merely poses  a permissive  inference based on  common sense.            Hardy  v. United  States, 691  F.2d 39,  42 (1st  Cir. 1982).            _____     ______________            Although  we   have  expressed  doubt  about   this  type  of            instruction, United  States v. DeWolf,  696 F.2d 1,  3-4 (1st                         ______________    ______            Cir. 1982), it is not governed by Sandstrom or Francis and is                                              _________    _______            certainly not plain  error.   See Lannon v.  Hogan, 719  F.2d                                          ___ ______     _____            518,  521-22 (1st  Cir. 1983),  cert. denied,  465 U.S.  1105                                            _____ ______            (1984).                 Affirmed.                 ________                                         -7-                                         -7-
