                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 12-1886
                                     ____________

                           UNITED STATES OF AMERICA

                                            v.

                                    JULIUS GREER,
                                     a/k/a POONY

                                      Julius Greer,

                                              Appellant
                                     ____________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                               (No. 2:10-cr-00711-001)
                        District Judge: Hon. John R. Padova

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   March 19, 2013

            Before: FUENTES, CHAGARES, and BARRY, Circuit Judges.

                                  (Filed: June 12, 2013)
                                      ____________

                                       OPINION
                                      ___________

CHAGARES, Circuit Judge.

      A jury convicted defendant Julius Greer of robbery and three related offenses.

Greer appeals his conviction on two grounds. First, he argues that the District Court
should have dismissed the indictment because of Speedy Trial Act violations. Second, he

argues that the jury charge on reasonable doubt was plainly erroneous and demands

reversal. For the reasons that follow, we will affirm Greer‟s conviction.

                                                I.

         The charges against Greer arose from an October 2009 robbery that occurred in

the offices of UACT, a property management company located near Drexel University in

Philadelphia, Pennsylvania. Two men, Patrick Hancotte and Sean Stock, entered the

office under the guise of looking for an apartment to rent. Once inside, they pointed a

gun1 at one of UACT‟s owners, beat her with a crow bar, bound her hands and feet, and

covered her mouth with duct tape. They then stole jewelry and other items from the

office. Ebony Long, who is Greer‟s first cousin and was Stock‟s fiancée at the time,

assisted the two men. All four individuals were ultimately charged in connection with

the robbery. All except Greer pled guilty — Long entered into a plea agreement with the

Philadelphia District Attorney‟s Office and Stock and Hancotte entered into plea

agreements with the U.S. Attorney‟s Office. The three testified against Greer at trial and

claimed that Greer had orchestrated the robbery.

         On October 28, 2010, a grand jury returned a four-count indictment that charged

Greer with conspiracy to commit robbery, robbery, and two weapons offenses. On

August 12, 2011, Greer moved to dismiss the indictment for violations of the Speedy

Trial Act, 18 U.S.C. § 3161, et seq. The District Court denied the motion, concluding


1
    At trial, the victim testified that both men had guns.

                                                2
that only forty-eight days had elapsed on the speedy trial clock. Greer was ultimately

tried over five days in October 2011. A jury convicted him on all counts and the District

Court sentenced Greer to a total term of 180 months of imprisonment followed by a five-

year term of supervised release and ordered him to pay $1,400 in restitution.

       Greer appeals, arguing that the District Court erred when it denied his motion to

dismiss the indictment and that the jury instruction on reasonable doubt was plainly

erroneous. We will address each claim of error in turn.

                                            II.2

       We ordinarily review a district court‟s compliance with the Speedy Trial Act de

novo and the factual determinations underlying the court‟s findings for clear error.

United States v. Rivera Constr. Co., 863 F.2d 293, 295 n.3 (3d Cir. 1988). If we

conclude that a district court has properly interpreted the Speedy Trial Act, we will

review the court‟s grant or denial of a motion for a continuance for abuse of discretion.

United States v. Lattany, 982 F.2d 866, 870 (3d Cir. 1992); see also United States v.

Adedoyin, 369 F.3d 337, 341 (3d Cir. 2004). When ruling on a defendant‟s motion to

dismiss an indictment for Speedy Trial Act violations, the district court must identify and

tally the days included on the speedy trial clock and count toward the seventy-day limit.

Zedner v. United States, 547 U.S. 489, 507 (2006).




2
  The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction
over Greer‟s appeal pursuant to 28 U.S.C. § 1291.

                                             3
                                              A.

       Greer raises four claims of error with respect to the District Court‟s Speedy Trial

Act calculations. Though Greer moved to dismiss the indictment before the District

Court, the Government argues that by failing to raise these specific claims of error

contemporaneously or in his motion to dismiss, Greer has waived — or at least forfeited

— the right to pursue those arguments on appeal.

       The Speedy Trial Act requires that a defendant be brought to trial within seventy

days of his indictment, information, or arraignment, whichever is later. 18 U.S.C. §

3161(c)(1).3 After the deadline passes, a defendant may move to dismiss the charges

against him and the indictment “shall be dismissed.” 18 U.S.C. § 3162(a)(2). A

defendant who does not move for dismissal before trial waives his right to appeal on

speedy trial grounds. Id. (“Failure of the defendant to move for dismissal prior to trial . . .

shall constitute a waiver of the right to dismissal under this section.”). As a result, a

defendant who does not move to dismiss below has no recourse on appeal. See United

States v. Belton, 520 F.3d 80, 82 (1st Cir. 2008) (explaining that when a defendant fails

to move for dismissal prior to trial, “even plain error review is unavailable” (quotation

marks omitted)). However, the Speedy Trial Act does not specify whether a defendant

must raise every potential speedy trial violation argument before the district court in

3
  Congress enacted the Speedy Trial Act to effectuate the Sixth Amendment right to a
speedy trial, but the seventy-day limit in the Speedy Trial Act exceeds the protections
required by the Sixth Amendment. United States v. Lattany, 982 F.2d 866, 870 & n.5 (3d
Cir. 1992). As a result, a defendant can assert a Speedy Trial Act violation without
asserting a constitutional violation. See id. Greer does not assert a constitutional
violation.

                                               4
order to preserve the issue for appeal or whether moving for dismissal is enough to

preserve all Speedy Trial Act-related arguments. The Government contends that Greer

has waived the right to assert all arguments not specifically raised below.

       The Government primarily relies on a decision from the Court of Appeals for the

Eighth Circuit, United States v. Gamboa, 439 F.3d 796 (8th Cir. 2006). Gamboa

involved a provision of the Speedy Trial Act that imposes a thirty-day time limit between

arrest and indictment. Id. at 803-04. The Court of Appeals for the Eighth Circuit

rejected the defendant‟s Speedy Trial Act challenge, concluding that Gamboa “waived

his right to appeal this particular speedy trial issue by failing to move for dismissal of

Count Four on this ground prior to his trial in the district court.” Id. at 804. However,

the procedural posture that brought Gamboa before the Court of Appeals is unclear.

Though the opinion refers generally to “motions to dismiss,” id. at 800, it does not

specify whether Gamboa moved for dismissal of Count Four, contained in a superseding

indictment, on any ground below. Id. at 804.

       The Court of Appeals for the First Circuit has also suggested — without deciding

— that a “pretrial motion to dismiss . . . [based on] an entirely separate 104-day period”

from the period contested on appeal would not preserve all Speedy Trial Act arguments

for appeal. United States v. Valdivia, 680 F.3d 33, 41-42 (1st Cir. 2012) (declining to

decide the waiver argument because the defendant could not establish plain error); see

also United States v. O‟Connor, 656 F.3d 630, 638 (7th Cir. 2011) (suggesting that a

defendant waives particular Speedy Trial Act arguments by failing to raise them in a

motion to dismiss before the district court). Other Courts of Appeals to address the

                                              5
question apply plain error review when a defendant does not raise a specific speedy trial

argument before the district court. See, e.g., United States v. Taylor, 497 F.3d 673, 676

(D.C. Cir. 2007) (reviewing for plain error when defendant moved to dismiss below

based on a separate provision of the Speedy Trial Act).

       We hold that Greer has not waived his right to appeal on the grounds he raises

before this Court. Greer moved for dismissal of the entire indictment below and objected

to specific orders and excluded time periods that he again points to on appeal. The

Speedy Trial Act specifies the conditions for waiver: a failure to move for dismissal of

the indictment below. We decline the Government‟s invitation to read an extra

requirement into this plain statutory language: that a defendant must move for dismissal

and raise identical arguments before the district court. Instead, we will adhere to the

approach that we typically follow when a defendant raises new arguments on appeal: we

will review for plain error. See United States v. Vampire Nation, 451 F.3d 189, 203 (3d

Cir. 2006) (reviewing for plain error when party raised new theory on appeal).

                                             B.

       The Speedy Trial Act excludes some days from the seventy-day limit, including

delays that result from pretrial motions and continuances issued by the court. 18 U.S.C. §

3161(h)(1)(D)&(7)(A); United States v. Brenna, 878 F.2d 117, 120 (3d Cir. 1989). Greer

contends that Judge Padova wrongfully excluded certain delays from the speedy trial

clock and that a total of one hundred and eleven non-excludable days elapsed between

Greer‟s indictment and his motion to dismiss.

                                             1.

                                             6
       Greer argues that fifty non-excludable days elapsed between October 28, 2010, the

day of his indictment, and December 20, 2010, his initial trial date and the day he

contends that the first continuance took effect. On December 13, 2010, Greer filed a

motion for a ninety-day continuance, which the Government did not oppose. The court

issued an order on December 15, 2010, granting the continuance and setting the trial date

for March 21, 2011.

       To calculate how many days have elapsed on the speedy trial clock, we will

exclude the day that started the clock and the day that an event that stops the clock

occurs. See United States v. Willaman, 437 F.3d 354, 359 (3d Cir. 2006) (explaining

that, to calculate “includable time” on the speedy trial clock, courts should exclude the

day of filing and the day of disposition); United States v. Arbelaez, 7 F.3d 344, 348 (3d

Cir. 1993) (applying Fed. R. Crim. P. 45(a)). Both parties agree that, as of December 13,

2010, forty-five non-excludable days had elapsed on the speedy trial clock. However,

Greer contends that an additional five days elapsed between December 15, 2010, the date

that the District Court granted the continuance motion and December 20, 2010, Greer‟s

initial trial date. The order, Greer contends, restarted the speedy trial clock, which

continued until the continuance went into effect on December 20, 2010, and again

stopped the clock. We cannot agree. On the contrary, the initial trial date no longer

existed after the court‟s December 15, 2010 order, which provided that “the criminal jury

trial . . . presently set for December 20, 2010, shall be continued beyond the time limits

established by the Speedy Trial Act, and . . . the delay resulting from this continuance

shall be excluded from speedy trial calculations.” Appendix (“App.”) 38. Because the

                                              7
order was effective immediately, no additional days elapsed on the speedy trial clock

between December 15th and December 20th.

                                             2.

       Greer next argues twenty-three non-excludable days elapsed between April 4,

2011, the day the District Court ruled on his lawyer‟s conflict motion, and April 28,

2011, when the Government moved for a continuance. Two motions are relevant to this

time period. First, Greer moved for early disclosure of Jencks Act, 18 U.S.C. § 3500,

material on February 17, 2011. Second, Greer‟s lawyer filed a conflict motion on March

15, 2011, just before the March 21, 2011, trial date set by the December 2010 order.

       Though the Government complied with the Jencks request on March 15, 2011,

neither party notified the District Court. As a result, the court issued an order on March

16, 2011, that stopped the speedy trial clock until resolution of the Jencks motion. After

the parties notified the court that the Government had complied with the Jencks request,

the court promptly dismissed the Jencks motion as moot on May 9, 2011. Greer contends

that only thirty days are properly excludable as a result of the Jencks motion because the

Speedy Trial Act only excludes thirty days when a motion is unopposed and no hearing is

held. As a result, Greer argues, the speedy trial clock restarted on March 16, 2011.

       Greer relies on a provision of the Speedy Trial Act that excludes “delay

reasonably attributable to any period, not to exceed thirty days, during which any

proceeding concerning the defendant is actually under advisement by the court,” 18

U.S.C. § 3161(h)(1)(H), to argue that if a motion does not require a hearing, only thirty

days may be excluded from the speedy trial clock. See also United States v. Johnson, 29

                                             8
F.3d 940, 945 (5th Cir. 1994) (relying on same subsection to conclude that only thirty

days are excludable when defendant moved to suppress evidence and neither party filed

additional materials). Yet another, more specific, provision of the Speedy Trial Act

governs pretrial motions and excludes “delay resulting from any pretrial motion, from the

filing of the motion through the conclusion of the hearing on, or other prompt disposition

of, such motion.” 18 U.S.C. § 3161(h)(1)(D). But see United States v. Felton, 811 F.2d

190, 197 (3d Cir. 1987) (observing that some courts have held that when there are

multiple pretrial motions, the thirty day requirement does not apply inflexibly, declining

to reach the issue, but assuming that a thirty-day limit applies). In light of Felton, we will

assume that only thirty days were properly excludable as a result of Greer‟s Jencks

request.

       The Government argues that Greer‟s attorney‟s conflict motion, filed on March

15, 2011, would have again stopped the clock, presumably pursuant to 18 U.S.C. §

3161(h)(1)(D). We agree. See United States v. Lussier, 71 F.3d 456, 460 (2d Cir. 1995)

(characterizing motion to resolve a potential conflict in representation as a “pretrial

motion”). However, the clock began to run again after the conflict motion was resolved.

The court ordered the appointment of new counsel on April 4, 2011, and appointed the

new attorney on April 6, 2011. Twenty-three days elapsed on the speedy trial clock

between April 4 and April 28, 2011, when the Government moved for an ends-of-justice

continuance, which Greer concedes stopped the clock. See 18 U.S.C. § 3161(h)(1)(D).

That motion remained outstanding until May 9, 2011, when Greer filed a motion to

suppress a prior statement.

                                              9
       As of April 28, 2011, sixty-eight days had elapsed on the speedy trial clock.

                                             3.

       Greer also argues that twenty-nine days were wrongfully excluded from the

speedy trial clock between May 24, 2011, when the District Court resolved his

suppression motion, and June 23, 2011, when the Government filed a motion to preclude

introduction of an alibi defense.

       On May 25, 2011, the District Court issued an order granting the Government‟s

April 28, 2011, motion for a continuance,4 concluding — in language that mirrored the

Government‟s proposed order that accompanied its April 28, 2011, motion — that

“failure to grant this continuance would result in a miscarriage of justice, and would

unreasonably deny the government continuity of counsel and the reasonable time

necessary for effective preparation.” App. 221. The Government‟s April 28, 2011,

motion for a continuance revolved around the Assistant United States Attorney‟s conflict

with a May 9, 2011 trial date, an issue presumably moot by May 25, 2011.

       On April 29, 2011, Greer responded that “the defendant does not oppose the

government‟s Motion and same should be granted,” though during a May 2, 2011,

hearing Greer‟s counsel represented that “[Greer] would like to enforce his Speedy Trial

Right.” App. 148, 151. Greer did not object to the May 25 order before the District

Court, either contemporaneously or in his August 2011 motion to dismiss the indictment.

Because Greer did not object, we will review for plain error and “may reverse[] if the


4
  The May 25, 2011, order referenced Docket Entry 80, the Government‟s April 28,
2011, motion.
                                            10
error „seriously affect[ed] the fairness, integrity, or public reputation of judicial

proceedings.‟” United States v. Rivas, 493 F.3d 131, 136 (3d Cir. 2007) (quoting

Johnson v. United States, 520 U.S. 461, 470 (1997)); see also United States v. Sussman,

709 F.3d 155, 163 (3d Cir. 2013) (explaining that it is within the Court‟s discretion to

grant relief on plain error review).

       An ends-of-justice continuance is the “most open-ended type of exclusion

recognized under the Act.” Zedner, 547 U.S. at 508. A district court must clearly set

forth “„either orally or in writing, its reasons‟ for finding that the ends of justice are

served” by a continuance. Id. at 506 (quoting 18 U.S.C. § 3161(h)(8)(A)5). However, the

district court does not alone shoulder responsibility for enforcement: the Speedy Trial

Act “assigns the role of spotting violations . . . to defendants — for the obvious reason

that they have the greatest incentive to perform this task.” Id. at 502-03. Though a

district court may not “provide an after-the-fact justification for unauthorized delays by

granting an ends-of-justice continuance nunc pro tunc,” the court may “delay articulating

on the record its reasons for granting the continuance” if it has entered the continuance

order before seventy days have elapsed on the speedy trial clock. Lattany, 982 F.2d at

877. The requirement that a district court explain its reasons for entering an ends-of-

justice continuance “serves two core purposes”: “[i]t both ensures the district court

considers the relevant factors and provides [the reviewing] court with an adequate record




5
  The 2008 amendments to the Speedy Trial Act moved this provision to subsection
(h)(7).
                                               11
to review.” United States v. Wasson, 679 F.3d 938, 946 (7th Cir. 2012) (quotation marks

omitted).

       When a defendant fails to identify an error below, courts of appeals have hesitated

to find plain error in a “district court‟s failure to identify, sua sponte” an alleged Speedy

Trial Act violation. Valdivia, 680 F.3d at 42 (declining to find plain error when law on

issue was unsettled). Here, Greer‟s failure to raise the issue deprived the District Court

of the opportunity to explain and clarify its reasons for granting the continuance. In light

of Greer‟s silence below — and his agreement to the proposed continuance — we cannot,

on the record before us, conclude that the May 25, 2011, order was plain error. See

Zedner, 547 U.S. at 499 (explaining that the Speedy Trial Act‟s statutory scheme “is

designed to promote compliance with the Act without needlessly subverting important

criminal prosecutions”). The May 25, 2011, order properly excluded the days that

elapsed until the Government filed its next motion on June 23, 2011.

                                              4.

       Finally, Greer contends that nine non-excludable days elapsed between July 18th

and July 28th. Greer objected to the disputed June 27th order below, but on different

grounds.6 As a result, we will review for plain error.

        Again, two motions are relevant. First, the Government filed a motion on June

23, 2011, to preclude introduction of Greer‟s alibi defense. That motion stopped the

speedy trial clock. 18 U.S.C. § 3161(h)(1)(D). At a status conference on June 23, 2011,

6
  Before the District Court, Greer contended that the Government already had sufficient
time to interview a potential alibi witness.

                                              12
the Government suggested that another ends-of-justice continuance might be appropriate.

App. 268 (“I don‟t want a delay of this trial, but it may be appropriate. . . in the interest of

justice, for all parties concerned . . . .”). During that status conference, the parties and the

District Court also set August 8, 2011, as the new trial date. On June 27, 2011, the court

entered another continuance: “it is hereby ordered that trial in this matter is continued

and that the period from the date of this order to the next trial date shall be excluded from

all computations of time under the Speedy Trial Act.” App. 288 (emphasis added). After

defense counsel notified the District Court and the Government that Greer had decided

against calling alibi witnesses, the court issued an order on July 18, 2011, that resolved

the June 23rd motion. Greer argues that the District Court‟s June 27th order could not

properly exclude all time until his August 8, 2011 trial date because the June 27th order

responded only to the proposed alibi defense, which was resolved on July 18th.7

       During the June 23, 2011, status conference, the parties discussed a possible delay

for the Government to explore Greer‟s proposed alibi defense and the District Court

explained that it had no availability to schedule a new trial until August. The District

Court set a new trial date of August 8, 2011, before resolution of the alibi motion.

Nothing in the Speedy Trial Act requires, as Greer suggests, that the parties immediately


7
  Greer also observes that on June 24, 2011, the District Court entered another order in
which it was “ordered that excludable time in the above-captioned case be computed and
entered in the record from the date of filing of the Government‟s Motion to Preclude the
Defendant‟s Introduction of an Alibi Defense . . . until such time that a hearing on said
motion is concluded or other prompt disposition is made.” App. 287. This order
excluded a delay resulting from a pretrial motion pursuant to 18 U.S.C. § 3161(h)(1)(D).
A separate provision of the Speedy Trial Act, 18 U.S.C. § 3161(h)(7), governs ends-of-
justice continuances, which provided the basis for the June 27, 2011, order.
                                              13
proceed to trial if the original basis for the continuance is resolved prior to the new trial

date or that the court issue a new continuance. Instead, the Act allows exclusion of

       [a]ny period of delay resulting from a continuance granted by any judge on
       his own motion or at the request of the defendant or his counsel or at the
       request of the attorney for the Government, if the judge granted such
       continuance on the basis of his findings that the ends of justice served by
       taking such action outweigh the best interest of the public and the defendant
       in a speedy trial.

18 U.S.C. § 3161(h)(7)(A) (emphasis added). This subsection does not provide a “fixed

limit to the amount of time that may be excluded under the ends of justice provision” and

instead excludes “„any period of limitation resulting from a continuance.‟” United States

v. Vasser, 916 F.2d 624, 627 (11th Cir. 1990) (quoting 18 U.S.C. § 3161(h)(7)(A). Here,

the District Court excluded a reasonable amount of time for the parties to litigate the alibi

defense. The order that granted the continuance remained in effect even after the specific

issue that triggered the motion was resolved. The exclusion of the days between the June

27, 2011, order and the filing of the next pretrial motion was not plain error.

                                           * * * *

       No non-excludable days elapsed after April 28, 2011. In total, sixty-eight non-

excludable days elapsed on the speedy trial clock between Greer‟s indictment and trial.

We therefore hold that the Speedy Trial Act was not violated and we decline to reverse

Greer‟s conviction on this basis.

                                              III.

       We now turn to Greer‟s second claim, that the District Court‟s reasonable doubt

instruction was plain error. Greer concedes that he did not object to the jury charge


                                              14
below. We may exercise our discretion to grant relief for plain error if we conclude “that

(1) there was error; (2) the error was clear or obvious; (3) the error affected the

defendant‟s substantial rights; and (4) the error seriously affected the fairness, integrity,

or public reputation of the legal proceeding.” United States v. Tyson, 653 F.3d 192, 211

(3d Cir. 2011).

       When instructing the jury, the District Court first explained that Greer was

presumed innocent and that “[t]he presumption of innocence requires that you find the

defendant not guilty unless you‟re satisfied . . . that the Government has proved guilt

beyond a reasonable doubt.” App. 1180-81. The court then specified that “[t]he

presumption of innocence means that the defendant has no burden or obligation to

present any evidence at all, or to prove that he is not guilty.” App. 1181. Instead, “[t]he

burden or obligation of proof is on the Government to prove that a defendant is guilty,

and this burden stays with the Government throughout the trial. In order for you to find

the defendant guilty of the offenses charged, the Government must convince you that the

defendant is guilty beyond a reasonable doubt.” App. 1181. The court then instructed

the jury on reasonable doubt:

        Proof beyond a reasonable doubt does not mean proof beyond all
        possible doubt, or to a mathematical certainty. It‟s not what it means. A
        reasonable doubt is simply a fair doubt based on reason and logic and
        common sense or experience. It is a doubt that an ordinary reasonable
        person has, after carefully weighing all the evidence, and it 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. That‟s what a reasonable doubt is.

        Note, not beyond all possible doubt, not to a mathematical certainty, no,
        okay?


                                              15
        Now, how can a reasonable doubt come into existence? Well, it may
        arise from the evidence, or from the lack of evidence, or from the nature
        of the evidence. All of those things could give rise to reasonable doubt.

        Now, ladies and gentlemen of the jury, if after careful and impartial
        consideration of all the evidence in this case, you have a reasonable
        doubt that this defendant is guilty of the charge, then you must find the
        defendant not guilty of that charge.

        Also, if you view the evidence on a charge as permitting either a finding
        of guilty, or a finding of not guilty either way, equipoise, you should
        adopt the conclusion of not guilty as the verdict on that charge, because
        if it could go either way, then the Government hasn‟t proved it beyond a
        reasonable doubt.

App. 1182-83 (emphasis added).

       A trial court must explain the Government‟s burden to the jury, but “no particular

set of words is mandated.” United States v. Isaac, 134 F.3d 199, 202 (3d Cir. 1998); see

also Thomas v . Horn, 570 F.3d 105, 117 (3d Cir. 2009) (“[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.” (quotation marks omitted)). However, a

“two-inference” jury charge suggests that the Government‟s burden is less than proof

beyond a reasonable doubt by instructing that, when “the evidence reasonably permit[s] a

finding of both innocence and guilt, the jury should adopt the conclusion of innocence.”

United States v. Inserra, 34 F.3d 83, 91 (2d Cir. 1994). Though this type of charge is not

technically incorrect, it “by implication suggests that a preponderance of the evidence

standard is relevant, when it is not.” United States v. Khan, 821 F.2d 90, 93 (2d Cir.

1987). This Court has expressed disapproval of the two-inference instruction but has not


                                            16
found it “so constitutionally deficient per se that is infect[s] the entire instruction on

reasonable doubt.” Isaac, 134 F.3d at 203; see also United States v. Jacobs, 44 F.3d

1219, 1226 (3d Cir. 1995) (holding that the two-inference instruction, standing alone,

could not constitute plain error and observing that, to the extent the disputed language

carried an unfavorable inference, “we do not think the implication is a strong one” that

would render the instructions as a whole unconstitutional). Though we have not held that

the two-inference instruction deprives a defendant of his due process rights, we have also

concluded that it “should no longer be given without modification.” Jacobs, 44 F.3d at

1226.

        In Isaac, the defendant objected to an instruction similar to the one in this case.

There, the disputed instruction noted that “if the jury views the evidence in the case as

reasonably permitting either of two conclusions, one of innocence, the other of guilt, the

jury should, of course, adopt the conclusion of innocence.” Isaac, 134 F.3d at 202. The

district court in Isaac also included language similar to the indisputably correct portion in

this case: “[a] reasonable doubt is . . . the kind of doubt that would make a reasonable

person hesitate to act.” Id. However, the Isaac charge provided additional explanation:

that “[p]roof beyond a reasonable doubt must, therefore, be proof of such a convincing

character that you would be willing to rely and act upon it, unhesitatingly, in the most

important of your own affairs.” Id. Greer asks us to conclude that the addition of this

second sentence to explain proof beyond a reasonable doubt cured Issac‟s defective two-

inference language and that the absence of such language demands reversal in this case.

Both parties observe that the jury charge in Greer‟s case tracked the Third Circuit‟s

                                              17
model reasonable doubt instruction except for the final paragraph that referred to

“equipoise.” However, Greer argues that adherence to the model jury charge is

insufficient in the face of the additional, erroneous language. In those circumstances,

Greer argues, the model language “cannot alone remediate the erroneous two-inference

charge” and further, correct explanation is required. Greer Br. 58 n.17.

         The holding in Isaac, however, did not rest on the inclusion of the additional

sentence. In fact, the defendant in Isaac objected to the language that Greer now

characterizes as unconstitutionally absent. See id. at 203 (“Finally, Isaac objects to the

court‟s explanation that proof beyond a reasonable doubt is „proof of such a convincing

character that you would be willing to rely and act upon it, unhesitatingly, in the most

important of your affairs.‟”). Here, when instructing the jury on reasonable doubt, the

District Court properly “contrasted reasonable doubt with „all possible doubt‟” and

emphasized it did not require proof to an absolute certainty. See id. (“[T]he court

contrasted reasonable doubt with „all possible doubt‟ and „imaginary doubt,‟ and

explained that, while it was not „absolute certainty,‟ neither was it „mere conjecture or

speculation.‟ The court also stated the reasonable doubt was „a fair doubt‟ of the sort that

would make a person hesitate to act. We are satisfied that the court made appropriate use

of the negative examples.”).

         The instruction in this case, though disfavored, satisfied the standards set forth in

Isaac and was not plainly erroneous. We will not reverse Greer‟s conviction on this

basis.



                                               18
                                   IV.

For the reasons discussed above, we will affirm Greer‟s judgment of conviction.




                                    19
