                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                  January 25, 2011
                            FOR THE TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                        No. 10-1039
    v.                                      (D.C. No. 1:07-CR-00188-WDM-11)
                                                         (D. Colo.)
    ROBERTO LOPEZ, a/k/a Uncle,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before KELLY and BALDOCK, Circuit Judges, BRORBY, Senior
Circuit Judge.


         Defendant Roberto Lopez appeals his convictions for multiple drug

offenses. He argues that the following errors entitle him to a new trial: (1) one

of the pretrial jury instructions regarding the burden of proof contained a

typographical error stating “the government must prove the defendant’s guilty

[sic] beyond a reasonable double [sic],” R. Vol. 1 at 1236; and (2) in addition to



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
his name, the caption of the indictment identified him by the alias “Uncle.” We

have jurisdiction under 28 U.S.C. § 1291 and we affirm.

      The indictment against Mr. Lopez was in four counts. He was tried with

co-defendant Oscar Garcia-Ruiz. Following a five-day trial, the jury returned

guilty verdicts against Mr. Lopez on three counts and acquitted him of the

remaining charge. After he was sentenced, he filed a notice of appeal.

      Prior to trial, the district court held a conference during which it reviewed

the instructions it planned to read and give to the jury at the beginning of the

trial. Instruction No. 1 explained that Mr. Lopez and his co-defendant had been

charged by an indictment, and outlined the charges against them. Instruction

No. 2 stated that “[a]n indictment . . . is not evidence of any kind against the

defendant. . . . Even though this indictment has been returned against the

defendants, the defendants begin this trial with absolutely no evidence against

them.” R. Vol. 1 at 1229. Also included in the proposed pretrial instructions was

Instruction No. 7, which informed the jury, among other things, that “the

government must prove the defendant’s guilty [sic] beyond a reasonable double

[sic].” Id. at 1236. Several other instructions describing the burden of proof did

not contain the typographical error. Id. at 1230, 1231. When asked whether there

were any objections, Mr. Lopez’s lawyer answered: “Not for Mr. Lopez, Your

Honor.” Id. Vol. 3 at 714.




                                          -2-
       At the commencement of the trial, the district court told the jury “I’m going

to go through some instructions with you.” Id. at 64. “These are printed copies

of what I’ll be reading, by and large, and you’re welcome to keep these and refer

to them as you may see fit during the proceeding.” Id. The court read out loud

the pretrial instructions agreed to by the parties. When reading Instruction No. 7,

which contained the typographical error, the court read “guilty” as “guilt,” and

“double” as “doubt.” Id. at 75. At the conclusion of the trial before the jury

retired to begin its deliberations, the court again instructed the jury. On nine

occasions, the court read to the jury that the government’s burden was to prove

Mr. Lopez’s guilt beyond a reasonable doubt. Id. at 679-683, 687.

      Mr. Lopez contends that the typographical error in pretrial Instruction No. 7,

is a structural error that requires us to reverse his convictions. 1 We disagree.

      Structural errors “affect the entire conduct of the trial from beginning to end

and deprive the defendant of basic protections, without which a criminal trial

cannot reliably serve its function as a vehicle for determination of guilt or

innocence.” United States v. Pearson, 203 F.3d 1243, 1260 (10th Cir. 2000)

(internal quotation marks and alterations omitted). “Supreme Court decisions have

found structural error only in a very limited class of cases, including, those

1
       In light of the fact that Mr. Lopez did not object to the instruction, we
would normally review his allegation for plain error. See United States v. Cotton,
535 U.S. 625, 631 (2002) (holding where there is no objection in the district
court, an appellate court will review only for plain error). However, Mr. Lopez
hinges his argument solely on structural error.

                                          -3-
involving . . . a [constitutionally] defective reasonable doubt instruction[.]” Id. at

1260-61 (citations and internal quotation marks omitted).

      In Sullivan v. Louisiana, 508 U.S. 275, 277 (1993), the Court reversed the

defendant’s conviction because the reasonable doubt instruction given to the jury

equated reasonable doubt with “grave uncertainty” and “actual substantial doubt,”

nearly identical to the instruction found unconstitutional in Cage v. Louisiana,

498 U.S. 39, 41 (1990) (per curiam), overruled in part on other grounds by Estelle

v. McGuire, 502 U.S. 62, 72 n.4 (1991). In Cage, the Court explained that “the

words ‘substantial’ and ‘grave,’ as they are commonly understood, suggest a

higher degree of doubt than is required for acquittal under the reasonable-doubt

standard. 498 U.S. at 41. In Sullivan, the Court cited the instructions as examples

of where the jury was inadequately informed of the meaning of reasonable doubt

(a higher degree of doubt), which perforce resulted in verdicts that fell short of the

constitutional requirement of findings of guilt beyond a reasonable doubt. But the

reasonable doubt instruction given to the jury in Mr. Lopez’s case does not suffer

from any defects, constitutional or otherwise. Instead, it states:

      Reasonable doubt is doubt based upon reason and common sense, the
      kind of doubt that would make a reasonable person hesitate to act.
      Proof beyond a reasonable doubt, must, therefore, be proof of such a
      convincing character that a reasonable person would not hesitate to
      act upon it in the most important of his or her own affairs.

R. Vol. 3 at 680-81. As such, there was no structural error.




                                          -4-
      Mr. Lopez also argues for a new trial because the caption of the indictment

referred to him as “ROBERTO LOPEZ, a/k/a ‘Uncle.’” R. Vol. 1 at 508.

According to Mr. Lopez, the use of the alias “Uncle” was “highly prejudicial, . . .

completely unsupported by the facts, [and constituted] plain [error]. Aplt.

Opening Br. at 10. Again, we disagree.

      First, there is no evidence that the jury saw the indictment. Instead,

Mr. Lopez hangs his argument on the slender thread of pretrial Instruction No. 2,

which states:

             An indictment is but a formal method used by the government
      to accuse a defendant of a crime. It is not evidence of any kind
      against the defendant. The defendant is presumed to be innocent of
      the crime charged. Even though this indictment has been returned
      against the defendants, the defendants begin this trial with absolutely
      no evidence against them.

R. Vol. 1 at 1229 (emphasis added). However, Mr. Lopez cannot point to any

place in the record demonstrating that the jury was in fact provided with a copy of

the indictment, and none of the verdict forms or other materials that were provided

to the jury contain anything other than the name “Roberto Lopez.” Assuming for

argument that the jury was given a copy of the indictment, there was no objection

from Mr. Lopez’s lawyer to giving them a copy, much less any objection to the use

of the alias, “Uncle.” Because Mr. Lopez did not object in the district court, we

review the alleged mistake for plain error. United States v. Cotton, 535 U.S. 625,

631 (2002).


                                         -5-
      Under plain-error review, there must be an “(1) error, (2) that is plain, and

(3) that affects substantial rights. If all three conditions are met, an appellate

court may then exercise its discretion to notice a forfeited error, but only if (4) the

error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (internal quotation marks, citations, and alterations omitted).

We assume for the sake of argument, the existence of a plain error that affected

Mr. Lopez’s substantial rights. But reviewing the mistake in the context of the

trial and the other jury instructions, which informed the jury that the indictment

“is not evidence of any kind against the defendant,” R. Vol. 1 at 1299, we

conclude that the alleged error did not “seriously affect[] the fairness, integrity, or

public reputation of judicial proceedings,” Cotton, 535 U.S. at 631.

      Mr. Lopez’s convictions are AFFIRMED.


                                                      Entered for the Court


                                                      Wade Brorby
                                                      Senior Circuit Judge




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