                                                                          FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   February 1, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff–Appellee,
                                                          No. 10-7030
    v.                                          (D.C. No. 6:09-CR-00053-JHP-1)
                                                          (E.D. Okla.)
    TROY ROBERT MEDLIN,

                Defendant–Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, EBEL, and O’BRIEN, Circuit Judges.



         Troy Robert Medlin appeals his convictions for drug and firearms offenses,

arguing that the district court erred in its instructions to the jury with respect to

the presumption of innocence. Exercising jurisdiction under 28 U.S.C. § 1291,

we affirm.




*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
                                          I

      A jury found Medlin guilty on two counts: (1) possession with intent to

distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C);

and (2) possession of a firearm by a prohibited person, in violation of 18 U.S.C.

§ 922(g)(8). Medlin contends that the district court failed to instruct the jury that

the presumption of innocence remains with the accused through the jury’s

deliberations. He maintains that this error was not harmless beyond a reasonable

doubt and therefore warrants reversal and a new trial.

                                         II

      “We review the district court’s decision to give a particular jury instruction

for abuse of discretion and consider the instructions as a whole de novo to

determine whether they accurately informed the jury of the governing law.”

United States v. Platte, 401 F.3d 1176, 1183 (10th Cir. 2005) (quotation and

alteration omitted). “The instructions as a whole need not be flawless, but we

must be satisfied that, upon hearing the instructions, the jury understood the

issues to be resolved and its duty to resolve them.” United States v. Urbano,

563 F.3d 1150, 1154 (10th Cir.), cert. denied, 130 S. Ct. 434 (2009) (quotation

omitted).




                                         -2-
                                         III

      “The principle that there is a presumption of innocence in favor of the

accused is the undoubted law, axiomatic and elementary, and its enforcement lies

at the foundation of the administration of our criminal law.” Taylor v. Kentucky,

436 U.S. 478, 483 (1978) (quotation omitted). The purpose of the presumption is

twofold:

      [it] is a doctrine that allocates the burden of proof in criminal trials;
      it also may serve as an admonishment to the jury to judge an
      accused’s guilt or innocence solely on the evidence adduced at trial
      and not on the basis of suspicions that may arise from the fact of his
      arrest, indictment, or custody, or from other matters not introduced
      as proof at trial.

Bell v. Wolfish, 441 U.S. 520, 533 (1979); see also Taylor, 436 U.S. at 484-86

(describing relationship between presumption of innocence, burden of proof

beyond a reasonable doubt, and requirement that the jury consider only the

evidence when reaching its verdict).

      Medlin argues that the district court’s instructions failed to explain two

important aspects of the presumption of innocence, specifically that it “(1)

remains with the accused throughout every stage of the trial, including, most

importantly, the jury’s deliberations, and (2) is extinguished only upon the jury’s

determination that guilt has been established beyond a reasonable doubt.”

Mahorney v. Wallman, 917 F.2d 469, 471 n.2 (10th Cir. 1990). In support of this

contention he points to instruction number three, which stated:


                                         -3-
            Every defendant in a criminal case is presumed at the outset to
      be innocent. This presumption exists in the defendant’s favor and
      abides with him for his proper protection at every stage of the trial,
      unless the guilt of the defendant is established by the evidence,
      beyond a reasonable doubt.

            The burden of proving guilt rests with the government, and
      must be sustained by evidence which establishes guilt beyond a
      reasonable doubt.

Medlin objected to this instruction on the basis that it could mislead a jury to

regard the presumption of innocence as extinguished at any point during the trial

if a juror believed the evidence established guilt beyond a reasonable doubt. He

emphasizes that the instruction did not explicitly state that the presumption of

innocence exists through the jury-deliberation stage of the trial, and it also failed

to indicate that the presumption is only extinguished when the jury determines

that guilt is proven beyond a reasonable doubt. Medlin maintains that instruction

number five, addressing the definition of a presumption, further invited the jurors

to reach a premature conclusion that the presumption of innocence had been

extinguished:

             A presumption is a conclusion which the law requires the jury
      to make from particular facts, in the absence of convincing evidence
      to the contrary; but, unless so outweighed the jury is bound to find in
      accordance with the presumption.

             Unless and until outweighed by evidence to the contrary, the
      law presumes that a person is innocent of crime or wrong; and, that
      the law has been obeyed.




                                          -4-
      We find no merit in Medlin’s contentions. Considered as a whole, the

district court’s instructions accurately informed the jury of the governing law

with respect to the presumption of innocence. Initially, in its preliminary

instructions, the district court directed the jury to accept and follow all of the

instructions as a whole. The court then instructed the jury on the related

principles of the presumption of innocence and the government’s burden of proof:

      You must presume that the defendant is innocent of the crime with
      which he is charged. Thus, the defendant, although accused of a
      crime in the indictment, begins this trial with a clean slate, with no
      evidence against him. The burden is always upon the government to
      prove guilt beyond a reasonable doubt. This burden never shifts to
      the defendant for the law never imposes upon a defendant in a
      criminal case the burden or duty of calling any witness or producing
      any evidence. The defendant is not even obligated to produce any
      evidence by cross-examining the witnesses for the government.

The district court also explicitly instructed the jury to consider and decide the

case based only on the evidence presented in the courtroom. And the court

repeatedly cautioned the jurors that they were to refrain from reaching any

conclusions, or even discussing the case, before it was submitted to them

following presentation of all the evidence.

      The district court’s instructions to the jury after the close of evidence

included instruction numbers three and five, as well as another direction to

“consider all the instructions as a whole” and “regard each instruction in the light

of all the others.” Even after the jury began its deliberations, the court once again

instructed the jury regarding the presumption of innocence. In response to a

                                          -5-
message that the jury was unable to reach a verdict on one of the counts, the court

gave an Allen charge, 1 reminding the jury once again “that the defendant is

presumed innocent and that the government, not the defendant, has the burden of

proof, and it must prove the defendant guilty beyond a reasonable doubt.”

      Contrary to Medlin’s contention, this case is not similar to Mahorney, the

controlling case in this circuit with respect to instruction on the presumption of

innocence. In Mahorney, the prosecutor argued to the jury in closing that the

presumption of innocence had been abrogated by the evidence. See 917 F.2d at

471. The essence of the error was that the prosecutor’s comments “conveyed to

the jury the idea that the presumption had been eliminated from the case prior to

deliberations.” Id. at 473. No such remarks were made in this case, nor did the

district court’s instructions, considered as a whole, convey an improper message

to the jury. The allegedly offending instructions emphasized that the government

had to meet its burden before the presumption could be overcome. Any

misleading effect this instruction may have had was negated by the court’s

emphasis that the jury alone, upon its deliberation, could weigh the evidence and

determine if the government’s burden was met. 2

1
       See Allen v. United States, 164 U.S. 492, 501 (1896); see also United
States v. LaVallee, 439 F.3d 670, 689 (10th Cir. 2006) (“An Allen charge is a
supplemental instruction given to the jury and designed to encourage a divided
jury to agree on a verdict.” (quotation omitted)).
2
      Although we conclude that the instructions as a whole in this case
                                                                     (continued...)

                                         -6-
                                        IV

      Considering the instructions as a whole, we hold that the district court

accurately, if imperfectly, informed the jury of the governing law. See Platte,

401 F.3d at 1183. The district court did not, as Medlin contends, invite the jurors

to conclude that the presumption of innocence was extinguished prior to

deliberations.

      The judgment of the district court is AFFIRMED.


                                                   Entered for the Court



                                                   Carlos F. Lucero
                                                   Circuit Judge




2
 (...continued)
accurately informed the jury regarding the presumption of innocense, we
emphasize that a jury should be instructed, consistent with our holding in
Mahorney, that the presumption remains with the accused during the jury’s
deliberations and is extinguished only upon the jury’s determination that the
government has met its burden to establish guilt beyond a reasonable doubt. See
917 F.2d at 471 n.2.

                                        -7-
