                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 10-3239
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                             RONALD J. GARDNER, JR.,

                                         Appellant
                                     _____________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                      (No. 05-86)
                           District Judge: Hon. Joy F. Conti

                                Submitted May 11, 2011

            Before: SMITH, CHAGARES, and VANASKIE, Circuit Judges.

                                  (Filed: May 31, 2011)

                                     ____________

                                       OPINION
                                     ____________

CHAGARES, Circuit Judge.

      Ronald Gardner appeals his conviction on the ground that the District Court erred

by providing a misleading jury instruction regarding the explanation of reasonable doubt.

Gardner contends that the instruction, mirroring this Court‟s Model Jury Instructions,
allowed the jury to convict him based upon a standard below reasonable doubt. For the

reasons that follow, we will affirm the judgment of conviction.

                                               I.

        We write for the parties‟ benefit and recite only the facts essential to our

disposition. Gardner owned and operated the sole proprietorship, Gardner Detective

Agency. Beginning in 1992, Gardner stopped paying federal, state, and local taxes. At

this same time, Gardner took steps to conceal his income by ceasing to use his Employer

Identification Number (“EIN”) and by providing false EINs to his customers. Gardner

also created “pure trusts,” considered to be sham instruments, and transferred his business

and other assets into these trusts. Additionally, he closed his bank account, cashed his

checks at a local grocery store, paid employees in cash and requested his clients pay him

in cash. After studying tax laws, Gardner concluded that the tax laws did not apply to

him.

        On July 12, 2010, Gardner was tried before a jury for one count of corruptly

endeavoring to impede or obstruct due administration of the Internal Revenue law

pursuant to 26 U.S.C. § 7212(a) and three counts of willfully failing to file tax returns

pursuant to 26 U.S.C. § 7203. During trial, the Government submitted to the District

Court its proposed jury instruction explaining the concept of reasonable doubt. The

proposed jury instruction followed this Court‟s Model Jury Instructions, and stated in

part:

        In order for you to find RONALD J. GARDNER, JR., guilty of the offense
        charged, the government must convince you that RONALD J. GARDNER,
        JR., is guilty beyond a reasonable doubt. That means, as I have instructed

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      you, that the government must prove each and every element of the offense
      beyond a reasonable doubt. A defendant may not be convicted based upon
      suspicion or conjecture, but only on evidence proving guilt beyond a
      reasonable doubt.

      Proof beyond a reasonable doubt does not mean proof beyond all possible
      doubt or to a mathematical certainty. Possible doubts or doubts based on
      conjecture, speculation or hunch are not reasonable doubts. A reasonable
      doubt is a fair doubt based on reason, logic, common sense or experience.
      It is doubt that an ordinary person has after carefully weighing all of the
      evidence, and is a doubt of the sort that would cause him or her to hesitate
      to act in matters of importance in his or her own life. It may arise from the
      evidence, or from the lack of evidence, or the nature of the evidence.

      If, having now heard all the evidence, you are convinced that the
      government proved each and every element of the offense charged beyond
      a reasonable doubt, you should return a verdict of guilty for that offense.
      However, if you have a reasonable doubt about one or more of the elements
      of the offense charged, then you must return a verdict of not guilty for that
      offense.

Appendix 58-59 (emphasis added). Gardner objected to the proposed instruction,

concerned that it instructed the jury to employ the same analysis towards the

Government‟s evidence as the jurors would towards important life decisions, and

proposed his own reasonable doubt jury instructions. Despite Gardner‟s objections, the

District Court chose to use the Government‟s proposed instructions. Gardner was found

guilty on all four counts. On July 12, 2010, Gardner was sentenced to twenty-one months

of imprisonment. Gardner filed a timely appeal.1

                                            II.

      “We exercise plenary review to determine whether jury instructions misstated the

applicable law, but in the absence of a misstatement we review for abuse of discretion.”

1
 The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction
under 28 U.S.C. § 1291.
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Cooper Distrib. Co. v. Amana Refrigeration, Inc., 180 F.3d 542, 549 (3d Cir. 1999).

“When an attack upon a jury charge is based upon the trial court‟s instruction on

reasonable doubt, „the constitutional question . . . is whether there is a reasonable

likelihood that the jury understood the instructions to allow conviction based on proof

insufficient to meet the [constitutional] standard.‟” United States v. Hernandez, 176 F.3d

719, 728 (3d Cir. 1999) (quoting Victor v. Nebraska, 511 U.S. 1, 6 (1994)).

       The Due Process Clause mandates that the Government must prove a defendant‟s

guilt beyond a reasonable doubt. Victor, 511 U.S. at 22. We have recognized that

“[r]easonable doubt is not an easy concept to understand, and it is all the more difficult to

explain.” Hernandez, 176 F.3d at 728. In fact, a district court is not required to define

reasonable doubt provided that the court instructs the jury on the necessity that the

defendant‟s guilt be proved beyond a reasonable doubt. Victor, 511 U.S. at 5. However,

when a trial court does define the term, it is not bound by any “particular form of words,”

but must ensure that “„taken as a whole, the instruction correctly [] convey[s] the concept

of reasonable doubt to the jury.‟” Id. (quoting Holland v. United States, 348 U.S. 121,

140 (1954)).

       Gardner contends that the District Court‟s reasonable doubt instruction‟s analogy

to important decisions in everyday life did not properly convey the requirement that the

jurors‟ reach a subjective state of near certitude. Gardner argues that likening a

determination of reasonable doubt to important life decisions dilutes the standard because

decisions in daily affairs involve higher degrees of uncertainty and risk-taking. In

support of this argument, Gardner primarily relies on Justice Ginsburg‟s concurrence in

                                              4
Victor which notes that “hesitant to act” language in defining reasonable doubt is

“unhelpful.” 511 U.S. at 24.

       Considering this language in the context of the full charge, we find no reasonable

likelihood that the jury understood the instruction to permit conviction upon less than

proof beyond a reasonable doubt. See United States v. Jacobs, 44 F.3d 1219, 1225-26

(3d Cir. 1995) (approving reasonable doubt jury instructions that included hesitation to

act in the most important life affairs language). There is no indication that the

instructions were misleading or confusing. Hence, the District Court did not abuse its

discretion in refusing Gardner‟s proposed jury instructions.

                                            III.

       For the foregoing reasons, we will affirm the judgment of the District Court.




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