
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2314                                    UNITED STATES,                                      Appellee,                                          v.                                 ROBERTO COLON-PAGAN,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                 ____________________            James Kousouros  with whom  Debra K.  Kousouros was  on brief  for            _______________             ___________________        appellant.            Jose  A.  Quiles, Senior  Litigation  Counsel,  Criminal Division,            ________________        with  whom Daniel F. Lopez-Romo, United States Attorney, and Miguel A.                   ____________________                              _________        Pereira, Assistant United States Attorney, were on brief for appellee.        _______                                 ____________________                                   August 20, 1993                                 ____________________                       BREYER,  Chief Judge.  Roberto Colon Pagan appeals                                ___________             his conviction  for possessing,  with intent to  distribute,             about six kilograms of cocaine.  21 U.S.C.   841(a)(1).  The             evidence  against  him was  strong.   A  drug  sniffing dog,             working  at  San Juan's  airport,  reacted  positively to  a             suitcase marked  for a New  York flight; drug  agents traced             the  luggage (through  its tag)  to the  appellant,  who was             sitting   in  the  plane;  the  agents  arrested  appellant,             questioned him,  obtained a  search warrant, opened  the bag             and  found the cocaine.   Neither the agents,  nor the jury,             believed  appellant's claim that  a short fat  man had given             him  $1,000 to  take  the  bag to  New  York.   Despite  the             strength of  this evidence,  however,  we must  order a  new             trial, for  the court's  instruction to  the jury  about the             meaning of "reasonable doubt" was seriously erroneous.                       The court  told the jury that  the government must             prove guilt beyond a "reasonable doubt," which, it said, did             not mean  guilt "beyond all  possible doubt."   Rather, that             proof meant "proof  of such  a convincing  character that  a                                                                        _             person . . .  would be willing to rely and act upon it . . .             ______________________________________________________             . "   (emphasis added.)  Earlier, it had  said that in order             to convict, "the [evidentiary] scales would have to tip more             to the government's side"  than in a civil case,  where "the                                         -2-                                          2             plaintiff  will prevail  if he  makes the  scale tip  just a             little  bit to the side."   It mentioned  the presumption of             innocence.  And, it also said that a "reasonable doubt" is a             "doubt  based  upon  reason  and  common  sense."    Because             appellant's counsel did not  object to these instructions at             trial,  the issue on appeal is whether they contain an error             that is "plain" or  a "defect[]" that "affect[s] substantial             rights." Fed. R. Crim. P. 52(b).   The underscored language,             in our view, amounts to such an error.                       The Supreme  Court has said that,  in applying the             "plain error" rule, Rule 52(b), we must ask 1) whether there             is an "error," 2) whether the error is "clear" or "obvious,"             and 3)  whether  the error  "affect[s] substantial  rights,"             which in most  cases means that the error was, at a minimum,             "prejudicial."   United  States  v. Olano,  113 S.Ct.  1770,                              ______________     _____             1777-78 (1993).   If  a defect  meets these three  criteria,             then a court of appeals "has authority  to order correction,             but is not required to do so."   Id. at 1778.  The Court has                                              ___             added that the  "Court of  Appeals should  correct" such  an             error if it "'seriously affect[s] the fairness, integrity or             public reputation  of judicial  proceedings.'"  Id.  at 1779                                                             ___             (quoting  United  States  v.  Atkinson, 297  U.S.  157,  160                       ______________      ________                                         -3-                                          3             (1936)).    And,  it  has  said that  an  error  may  do  so             "independent of defendant's innocence."  Id.                                                      ___                       To  define "proof  beyond a  reasonable doubt"  as             proof simply that a person "would be willing to rely and act             upon"  is erroneous.  The instruction may give the jury  the             incorrect impression  that it can  convict a defendant  in a             criminal case upon  the basis of  evidence no stronger  than             might reasonably support a  decision to go shopping or  to a             movie or  to take a vacation.   See, e.g., United  States v.                                             ___  ____  ______________             Baptiste, 608 F.2d 666, 668 (5th  Cir. 1979) (warning courts             ________             not to define "proof beyond a reasonable doubt" as the "kind             of proof that  you would be willing to rely  and act upon in             the management of your own personal affairs"), cert. denied,                                                            ____________             450   U.S.  1000   (1981).     Indeed,  courts   have  found             unconstitutional  reasonable  doubt  instructions that  seem             significantly less  permissive.  See Cage  v. Louisiana, 498                                              ___ ____     _________             U.S. 39, 40-41 (1990)  (holding as unlawful instruction that             reasonable doubt was  "such doubt  as would give  rise to  a             grave uncertainty" and  "an actual  substantial doubt,"  and             that  what   was  required  for  conviction   was  a  "moral             certainty" that the defendant was guilty).      We recognize             that the district court  may simply have misspoken.   It may             have meant  to refer to  a somewhat different  standard that                                         -4-                                          4             appellate courts  have not held unlawful,  namely a standard             that  refers to proof the  jurors "would be  willing to rely             and act upon in the most  important of their own affairs."                            ___________________________________________             See, e.g., United States  v. Gordon, 634 F.2d 639,  644 (1st             ___  ____  _____________     ______             Cir.  1980) (criticizing,  but  finding no  plain error,  in             instruction that  proof beyond  a reasonable doubt  is proof             "that  you  would  be  willing to  act  on  it  in  the most             important  decisions that you have to make in your own lives             and for  yourselves").   Nonetheless, we must  consider what             the court  did say, not  what it may  have intended  to say.             And what it did say was clearly wrong.  We can find no other             relevant instruction that somehow undid that wrong.  And, we             therefore  conclude that, in  context, the instruction meets             the criteria  for "error" and "obviousness."   Cf. Baptiste,                                                            ___ ________             608  F.2d at  668  (finding no  "plain" error  where similar             instruction  limited  by  context,  but  warning  that  such             finding would be likely in the future).                         We   also   find   that  the   error   "affect[ed]             substantial rights."   Fed. R.  Civ. P. 52(b).   While  this             limitation  ordinarily means  that the  error must  at least             have  been prejudicial,  the Supreme  Court has  "never held             that  a  Rule 52(b)  remedy is  only  warranted in  cases of                                             ____             actual innocence."  Olano,  113 S. Ct. at 1779  (emphasis in                                 _____                                         -5-                                          5             original).  Rather, the  Court has stated that  "[t]here may             be  a  special category  of  forfeited  errors  that can  be             corrected  regardless of  their effect  on the  outcome," or             whose prejudice may be presumed. Id. at 1778.  The Court has                                              ___             also  indicated that an  unconstitutional "reasonable doubt"             instruction belongs in this category.  The Sixth Amendment's             right to trial by jury, the Court has explained, requires "a             jury verdict of guilty beyond a reasonable doubt."  Sullivan                                                                 ________             v. Louisiana, No. 92-5129,  1993 WL 179275 at *2  (U.S. June                _________             1, 1993).   Where a trial  court has seriously  misdescribed             the government's  burden of proof, however,  "there has been             no jury verdict within the  meaning of the Sixth Amendment."             Id.  at *3-*4.   We need  not consider  the strength  of the             ___             evidence,  therefore, in  order to  hold that  the erroneous             instruction "affect[ed] substantial rights."                         Finally,   we   believe    that   the    erroneous             instruction,  in  the  context  of  this  case,  "seriously"             affected the  "fairness, integrity  or public  reputation of             judicial  proceedings."  Olano, 113  S.Ct. at 1779.   We can                                      _____             reach  this conclusion  on  the  basis  of  case  law.    In             Sullivan,  the Supreme  Court  held that  a constitutionally             ________             defective  "reasonable  doubt"  instruction   constitutes  a             "structural  defect[]  in  the  constitution  of  the  trial                                         -6-                                          6             mechanism."  Sullivan, 1993 WL 179275  at *4.  In Arizona v.                          ________                             _______             Fulminante, 111 S.Ct.  1246 (1991), it held that  a criminal             __________             trial  marred by a "structural defect . . . 'cannot reliably             serve its  function as a vehicle for  determination of guilt             or  innocence,  and no  criminal punishment  [resulting from             such  a trial] may be regarded  as fundamentally fair.'" Id.                                                __________________    ___             at 1265 (quoting Rose v. Clark, 478 U.S. 570, 577-78 (1986))                              ____    _____             (emphasis added).                       We can  also reach this conclusion on the basis of             common sense.  The  erroneous instruction permitted the jury             to  convict  on  the basis  of  evidence  that  it may  have             believed  sufficient  to  justify  no  more  than  the  most             ordinary  of decisions  --  not evidence  that proved  guilt             beyond  a   "reasonable  doubt."     The  instruction   thus             significantly weakened what  is perhaps the  law's greatest,             and  certainly  its  best known,  safeguard  against wrongly             convicting  an innocent  person.    In  this way,  the error             "seriously affect[ed]"  the "integrity" and  "fairness" and,             perhaps,  the "public  reputation of  judicial proceedings."             Olano, 113  S.Ct. at  1779.  Thus,  despite the  importance,             _____             ordinarily,  of insisting  that counsel  object to  an error             before the trial ends (so that the judge can correct it), we             ______             have here a  case of "plain error," Fed. R.  Crim. P. 52(b),                                         -7-                                          7             which  requires   a  new  trial,  despite   the  absence  of             objection.                       So ordered.                       ___________                                         -8-                                          8
