                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 24 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 99-7120
                                                     (D.C. No. 99-CR-9-S)
    RICKY LEON DORITY,                                   (E.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before TACHA , PORFILIO , and ANDERSON , Circuit Judges.



         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.

         Ricky Leon Dority appeals from his jury conviction for being a felon in

possession of a firearm which had been shipped and transported in interstate



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
commerce in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He was

sentenced to 235 months of imprisonment to be followed by five years of

supervised release. Mr. Dority’s single issue on appeal alleges that the trial court

erred in its jury instruction regarding the definition of reasonable doubt. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      We review challenges to a specific jury instruction objected to at trial

de novo. See United States v. Smith , 13 F.3d 1421, 1424 (10th Cir. 1994).

We must determine whether the jury, considering the instructions as a whole,

was misled, and we will disturb the judgment only where we have substantial

doubt as to whether the jury was fairly and properly guided.     See id. Here, we

must determine whether the instructions, taken as a whole, adequately conveyed

the concept of reasonable doubt to the jury, and whether “‘there is a reasonable

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

proof insufficient to meet’ the beyond a reasonable doubt standard.”      United

States v. Miller , 84 F.3d 1244, 1252 (10th Cir. 1996) (   quoting Victor v. Nebraska ,

511 U.S. 1, 6 (1994)).

      The trial court’s instruction stated:

             The Government has the burden of proving the defendant
      guilty beyond a reasonable doubt. The Government must proof (sic)
      each essential element of the offense beyond a reasonable doubt. In
      civil cases, it is only necessary to prove that a fact is more likely true
      than not true. However, in criminal cases, the Government’s proof


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       must be more substantial or powerful than that; it must be . . . beyond
       a reasonable doubt.

              Proof beyond a reasonable doubt is proof that leaves you
       firmly convinced of the defendant’s guilt. There are very few things
       in this world that we know with absolute certainty. And in criminal
       cases the law does not require proof that overcomes every possible
       doubt. If, based on your consideration of all the evidence you are
       firmly convinced of his guilt of the crime charged, you must find him
       guilty. If, on the other hand, you think there is a real possibility that
       he is not guilty, then you must give the defendant the benefit of that
       doubt and find him not guilty.

R. Vol. II, Trans. at 208-09.

       In In re Winship , 397 U.S. 358, 364 (1970), the Supreme Court explicitly

held that the Due Process Clause requires the government to prove every element

of a charged offense beyond a reasonable doubt. “[S]o long as the court instructs

the jury on the necessity that the defendant’s guilt be proved beyond a reasonable

doubt, the Constitution does not require that any particular form of words be used

in advising the jury of the government’s burden of proof.”        Victor , 511 U.S. at 5.

       Here, the trial court’s reasonable doubt instruction was taken almost

verbatim from the pattern instruction of the Federal Judicial Center.        See id. at 27

(Ginsburg, J., concurring) ( quoting Federal Judicial Center, Pattern Criminal Jury

Instructions at 17-18 (1987) (instruction 21)). Moreover, Justice Ginsburg’s

concurring opinion in Victor acknowledged this pattern instruction as a “clear,

straightforward, and accurate,” definition of reasonable doubt.         Id. at 26; accord

United States v. Conway , 73 F.3d 975, 980 (10th Cir. 1995) (holding that

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reasonable doubt instruction taken from Federal Judicial Center’s pattern

instructions correctly advised the jury regarding the government’s burden of

proof).

       In sum, we conclude that the jury, upon hearing this instruction, had a clear

understanding of whether there was reasonable doubt as to Mr. Dority’s guilt.      See

Victor , 511 U.S. at 6 (“The constitutional question . . . is whether there is a

reasonable likelihood that the jury understood the instructions to allow conviction

based on proof sufficient to the meet the   Winship standard.”). Therefore, we

reject Mr. Dority’s argument that this instruction erroneously allowed the jury to

disregard defense evidence or contradictions in the government’s case, or that the

instruction improperly lessened the burden of proof. The judgment of the United

States District Court for the Eastern District of Oklahoma is AFFIRMED.



                                                       Entered for the Court



                                                       Deanell Reece Tacha
                                                       Circuit Judge




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