                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-30-1997

United States v. Isaac
Precedential or Non-Precedential:

Docket 96-7109




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997

Recommended Citation
"United States v. Isaac" (1997). 1997 Decisions. Paper 182.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/182


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1997 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
iled July 30, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-7109

THE UNITED STATES OF AMERICA,
Appellee

v.

RAYMOND ISAAC, a/k/a ROCKY

RAYMOND ISAAC,

Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF THE VIRGIN ISLANDS
(ST. THOMAS)
(D.C. Criminal No. 94-00215-1)

Argued on Tuesday, December 10, 1996

BEFORE: SCIRICA, NYGAARD and McKEE, Circuit Judges

(Opinion Filed July 30, 1997)

Stephen A. Brusch, Esq. (Argued)
Office of the Federal Public Defender
P.O. Box 1327
Charlotte Amalie, St. Thomas
United States Virgin Islands 00804

Attorney for Appellant
James A. Hurd, Jr., Esq.
United States Attorney
Nelson L. Jones, Esq. (Argued)
Assistant U.S. Attorney
5500 Veterans Drive, Suite 260
Charlotte Amalie, St. Thomas
United States Virgin Islands 00802

Attorneys for Appellee

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Raymond Isaac was charged with: (1) conspiracy to
possess marijuana with intent to distribute, in violation of
21 U.S.C. § 846; (2) possession of marijuana with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1); and (3)
possession of marijuana on board a vessel arriving in the
United States, in violation of 21 U.S.C. § 955. The jury
found him guilty on the first two counts, and not guilty on
the third. Isaac appeals his convictions, claiming that the
district court inaccurately described the reasonable-doubt
standard for the jury; failed to caution the jury on
assessing the credibility of witnesses who, according to
Isaac, should be considered accomplices or immunized
witnesses; neglected to take judicial notice of the fact that
identical charges against those witnesses were dropped "in
response to the government's motion to dismiss;" and
allowed the prosecutor to intimate that Isaac's decision not
to testify was evidence against him. We will affirm.

I. FACTS

On August 5, 1994, a boat mechanic working near docks
used by the St. Thomas police marine unit noticed a
strange boat tied up beside an abandoned barge and called
Corporal Alan Roberts of the marine unit. When Corporal
Roberts arrived, he found two men sitting on the barge,
dressed in shorts and short-sleeved shirts and barefoot.
They looked tired, bruised, sunburnt and dehydrated. On

                               2
questioning by Corporal Roberts and U.S. Customs agents,
the men identified themselves as Conrad Brown and Irvin
Reid and said that they had arrived on the boat from
Jamaica. They also described a man they knew as "Rocky,"
who, they said, had accompanied them from Jamaica and
had left the boat when they docked.

Later, Roberts and U.S. Customs Agent Willis Smiley saw
a man fitting the description of "Rocky" get out of a van
that had pulled up near the dock. When Corporal Roberts
and Agent Smiley approached the man, the van and an
accompanying car sped off, but the man made no attempt
to leave. Asked his name, the man replied, "Rocky." Agent
Smiley then asked him what his real name was and he
replied, "Raymond Isaac." Isaac was shown to Brown and
Reid, and they identified him as the "Rocky" who had
arrived with them in the boat from Jamaica. When customs
agents searched the boat they found 29 bales of marijuana
weighing approximately 582 pounds.

Isaac, Brown and Reid were charged with conspiracy to
possess marijuana with intent to distribute, possession of
marijuana with intent to distribute, and possession of
marijuana on board a vessel arriving in the United States.
On the day the trial was to begin, the government moved to
dismiss the charges against Brown and Reid. In a
simultaneous motion to designate Brown and Reid as
material witnesses and detain them pending Isaac's trial,
the government stated that the charges against Brown and
Reid had been dropped "in the interest of justice and the
witnesses['] cooperation."

At Isaac's subsequent trial, Brown and Reid testified that
they had set out on July 31, 1994 to go fishing with
"Rocky." Because it was a windy day, they had taken a
larger, community-owned vessel called the "Community
Aid." Brown and Reid were dressed for a day offishing,
barefoot, in shorts and short-sleeved shirts. The three of
them first stopped in Port Royal, where Isaac disembarked
to get beer. He returned with a friend, and asked that the
friend be allowed to accompany them. Brown agreed, and
they fished for several hours. Isaac and his friend then had
Brown and Reid take them to a nearby deserted island
named Lime Cay. While Isaac and his friend drank beer

                               3
under a tree, Brown and Reid took a walk. When they
returned, Isaac asked Brown if he would like to do "a drug
move" for $20,000 in Jamaican dollars. Brown initially
agreed, but then changed his mind when he grasped that
a lengthy trip was involved. At that point, Brown and Reid
say that Isaac's friend threatened them with a gun and
forced them to remain on Lime Cay while he and Isaac
departed in the boat. Brown was ready to swim to the
mainland, but Reid did not think he could swim the nine or
ten mile distance, so the two of them remained on the
island.

Several hours later, Isaac and his friend returned. The
two five-gallon canisters of gasoline with which the boat
had been equipped were gone, replaced by seven fifty-five-
gallon drums of gasoline. The bow, which had been open,
was now covered with a piece of plywood. Isaac's friend
forced Brown and Reid to board at gunpoint, and Isaac,
Brown and Reid departed, leaving the friend behind on the
deserted island.

Brown and Reid testified that they sailed for days, while
Isaac navigated with the aid of charts and a global
positioning system. Although Brown was at the helm most
of the time, Isaac took over when they neared St. Thomas,
and piloted the boat to the dock where it was discovered.
Upon docking, Isaac left, telling Brown and Reid he would
return. Shortly thereafter Brown and Reid were found and
arrested.

Brown testified that early in the trip he had planned to
jump overboard and swim to safety, but he was dissuaded
by Reid, who could not swim well. Neither made any further
attempt to escape: they had never been far from Jamaica
and did not know how to read the charts or use the global
positioning system; moreover, until arrested, they did not
encounter anyone whom they could ask for help.

II. JURY INSTRUCTION ON REASONABLE DOUBT

The district court instructed the jury that it might only
convict Isaac if the government had proven him guilty
beyond a reasonable doubt, explaining the evidentiary
standard as follows:

                               4
 Reasonable doubt is a term often used, probably well
understood, but not easily defined. Reasonable doubt
is what the term implies. The doubt must be
reasonable. It is not a mere possible or imaginary
doubt, because as you well know, everything relating to
human affairs, and depending on oral testimony, is
open to some possible or imaginary doubt. The
government is not required to produce evidence that
will exclude every possibility of a defendant's
innocence. It is only required to prove his guilt beyond
a reasonable doubt, not beyond all possible doubt. The
test is one of reasonable doubt. A reasonable doubt is
a fair 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
you would be willing to rely and act upon it,
unhesitatingly, in the most important of your own
affairs.

 While bearing in mind that it is rarely possible to
prove anything to an absolute certainty, you must
remember, as well, that a defendant must never be
convicted on mere assumption, conjecture or
speculation. So 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.

 Reasonable doubt may arise also from a lack of
evidence or proof. If you find that the government has
failed to produce evidence sufficient to satisfy you of
the guilt of the defendant beyond a reasonable doubt,
then he is entitled to an acquittal, or a verdict of"not
guilty." But if, after considering all of the evidence and
giving the accused the benefit of a reasonable doubt,
both as to the evidence presented or the lack of
evidence, you are led to the conclusion that he is
guilty, you should so declare by your verdict.

Isaac points to several aspects of this charge which, he
contends, misled the jury by suggesting that an improperly

                               5
low level of certainty was required for conviction, in
violation of the Fifth and Sixth Amendments.

The Constitution requires that the government prove
every element of criminal charge beyond a reasonable doubt
to obtain a conviction. In re Winship, 397 U.S. 358, 364, 90
S. Ct. 1068, 1073 (1970). While a trial court must advise
the jury of the government's burden of proof, no particular
set of words is mandated. Victor v. Nebraska, 511 U.S. 1, 5,
114 S. Ct. 1239, 1243 (1994). Due process is satisfied if the
instructions, taken as a whole, accurately convey the
concept of reasonable doubt to the jury. Id. (citing Holland
v. United States, 348 U.S. 121, 140, 75 S. Ct. 127, 137
(1954)). Thus, although we have considered each of Isaac's
criticisms, ultimately we must determine whether the entire
instruction the jury received led it to apply the correct
standard of proof. If not, Isaac's conviction will be reversed.
Sullivan v. Louisiana, 508 U.S. 275, 279-80, 113 S. Ct.
2078, 2081-82 (1993).

Isaac levels his most cogent criticism at the portion of the
district court's instruction that directed the jury to find him
not guilty if the evidence supported two inferences, one of
guilt, the other of innocence. The Second Circuit Court of
Appeals has held that the "two-inference" instruction is
improper because it "may mislead a jury into thinking that
the government's burden is somehow less than proof
beyond a reasonable doubt." United States v. Inserra, 34
F.3d 83, 91 (2d Cir. 1994) (quoting United States v. Khan,
821 F.2d 90, 93 (2d Cir. 1987)). In a decision issued three
weeks after Isaac's trial, we urged trial courts to heed the
Second Circuit's criticism of the "two-inference" instruction
when it is specifically brought to their attention. United
States v. Jacobs, 44 F.3d 1219, 1226 & n.9 (3d Cir.), cert.
denied, 115 S. Ct. 1835 (1995). Isaac's counsel did make a
timely objection to this instruction, citing Khan.

Although we disapproved of the "two-inference"
instruction in Jacobs, we did not hold that the instruction
was so constitutionally deficient per se that it infected the
entire instruction on reasonable doubt. 44 F.3d at 1226.
Accordingly, we will consider whether this deficiency was
rectified by the remainder of the reasonable doubt
instruction.

                               6
Isaac argues that so much of the charge was phrased in
terms of what reasonable doubt is not, that it only served
to confuse and mislead the jury. We disagree. The practice
of defining reasonable doubt by what it is not is well
established. For instance, the definition formulated by
Justice Shaw of the Massachusetts Supreme Judicial Court
more than a century ago, which has served as a model
instruction, begins by explaining that reasonable doubt "is
not mere possible doubt . . . ." Victor, 511 U.S. at 8, 114 S.
Ct. at 1244 (quoting Commonwealth v. Webster, 59 Mass.
295, 320 (1850)). More recently, the U.S. Supreme Court
has affirmed judgments in two cases where the trial court
explained reasonable doubt by contrasting what it is with
what it is not. Id. at 7, 18, 114 S. Ct. at 1244, 1249.

Here, the 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,
which were contrasted with positive examples to create a
framework for the jury's understanding.

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." Isaac
argues that this language was disapproved by the Supreme
Court in Holland. We read the case differently. In Holland,
the Court recommended that the reasonable doubt section
of the jury charge be phrased "in terms of the kind of doubt
that would make a person hesitate to act" rather than "the
kind of doubt . . . which you folks in the more serious and
important affairs of your own lives might be willing to act
upon." 348 U.S. at 140, 75 S. Ct. at 138. We find that the
instructions the court gave in this case properly heeded the
Supreme Court's recommendation by stressing the need for
convincing proof, and using the word "unhesitatingly."
Moreover, in the preceding sentence of the charge, the
court quoted the Holland formulation almost verbatim,
stating that reasonable doubt is "the kind of doubt that
would make a reasonable person hesitate to act."

                               7
As a whole, the court's instructions adequately conveyed
the government's burden of proof to the jury. The court
repeatedly stated that the government was required to
prove its case beyond a reasonable doubt, and that the
burden never shifted to the defendant. The court accurately
explained that the standard was high, but not to the point
of absolute certainty or to the exclusion of possibilities
which defy common sense. By analogizing the standard of
proof to the level of certainty an individual would require
before unhesitatingly acting in important personal affairs,
the court provided jurors with a comprehensible
benchmark. Although the use of the "two-inference"
example suggested that the standard is lower than it is,
this defect was counterbalanced by the explanation that
preceded and succeeded it. Accordingly, we conclude that
the jury instruction, taken as a whole, was not
constitutionally deficient.

III. JURY INSTRUCTION ON WITNESS CREDIBILITY

Isaac contends the district court violated his Fifth
Amendment right to due process and a fair trial, and his
Sixth Amendment right to confrontation, by denying his
request that the jury be instructed to weigh the testimony
of Brown and Reid with greater care because they were
immunized witnesses and accomplices.1 Although it would
have been better had the district court given the
instruction, we conclude that the jury was sufficiently
apprised of the credibility concerns posed by the testimony
of Brown and Reid.

When a witness has been given a reward for cooperation,
a jury is permitted to disbelieve the testimony to the extent
it finds that the testimony was driven more by a self-serving
desire for leniency than a sense of duty to tell the truth. We
have repeatedly approved the practice of counseling jurors
to view the testimony of accomplices and immunized
witnesses with skepticism and caution, particularly when it
_________________________________________________________________

1. Specifically, Isaac moved to include in the jury charge sections 15.03
(immunized witness testimony) and 15.04 (accomplice testimony) from
Devitt, Blackmar, Wolff & O'Malley, Federal Jury Practice and
Instructions (4th ed. 1992).

                               8
is uncorroborated and material to establishing the
defendant's guilt. See United States v. Rosa, 560 F.2d 149,
156 (3d Cir. 1977); United States v. Bromwell , 467 F.2d
895, 896 (3d Cir. 1972); United States v. Schanerman, 150
F.2d 941, 943 (3d Cir. 1945); Marsh v. United States, 82
F.2d 703, 704 (3d Cir. 1936). Nevertheless, to date we have
not determined whether it is error per se for a trial court to
refuse to give such an instruction even when, as here, it
was requested. Cf. United States v. Wright, 921 F.2d 42 (3d
Cir. 1990) (considering whether it was plain error for court
not to give an informant charge when defense counsel failed
to make a timely request).

It has long been recognized that testimony of accomplices
and informers raises particular credibility problems since
these witnesses have strong incentives to fabricate or mold
their testimony as the government desires in order to
escape prosecution, lighten their sentences, obtain
remuneration or receive protection. See Cool v. United
States, 409 U.S. 100, 103, 93 S. Ct. 354, 357 (1972); On
Lee v. United States, 343 U.S. 747, 757, 72 S. Ct. 967, 973-
74 (1952). Consequently, the defendant is entitled to broad
latitude in probing the credibility of such witnesses by
cross-examination, and to have the jury properly
instructed. Id.; see also Hoffa v. United States, 385 U.S.
293, 311-12, 87 S. Ct. 408, 418-19 (1966). Although no
particular instruction is mandated, warning the jury to
consider the testimony of an accomplice with great care and
caution before relying on it is appropriate. Crawford v.
United States, 212 U.S. 183, 203-04, 29 S. Ct. 260, 268
(1908); Marsh, 82 F.2d at 704 (citing Caminetti v. United
States, 242 U.S. 470, 495, 37 S. Ct. 192, 198 (1916)).

Courts were initially admonished to give cautionary
instructions at a time when juries were counseled that
witnesses are presumed to speak the truth. See Crawford,
212 U.S. at 204, 29 S. Ct. at 268. We have held, however,
that a defendant's right to the presumption of innocence is
violated if a jury is instructed that witnesses are presumed
to speak the truth. United States v. Johnson, 371 F.2d 800,
804-05 (3d Cir. 1967); accord United States v. Evans, 398
F.2d 159, 162 (3d Cir. 1968). Juries are now advised that
they are the judges of all witnesses' credibility. For
instance, here the trial court said:

                               9
You can determine the truth by resolving the degree of
credibility or reliability of the witnesses who have been
produced before you. You are to decide the factual
situation by carefully scrutinizing and analyzing the
testimony of each and every witness, with a view
toward determining whether a witness is neutral or
friendly, or whether the witness has told the truth or
exaggerated his testimony.

In this situation, the necessity for an immunized witness
or accomplice instruction is reduced. Therefore, we prefer
to allow the trial court the discretion to decide whether to
include an immunized witness or accomplice instruction in
the charge to the jury. See United States v. Smith, 789 F.2d
196, 204 (3d Cir. 1986) (noting the trial court has wide
discretion in charging the jury); see also United States v.
Cook, 102 F.3d 249, 252 (7th Cir. 1996) (committing the
decision to give an instruction on the credibility of informer
testimony to the discretion of the trial court). The trial court
will generally be acting within its discretion if it allows
defense counsel broad latitude to probe the credibility of
accomplices and immunized witnesses, and instructs the
jury to consider whether the witnesses' self-serving motives
in testifying have destroyed or diminished their credibility.
An immunized witness or accomplice charge is advisable
when the jury has not otherwise been sufficiently alerted to
the credibility concerns posed by the testimony of witnesses
over whom the government wields particular power to
reward or punish. See Cook, 102 F.3d at 252.

We conclude that the trial court did not abuse its
discretion by refusing to give a specific accomplice or
immunized witness charge. First, Isaac's attorney was
permitted to conduct a vigorous defense. He repeatedly
pointed out in cross-examination and argument to the jury
that the government had no direct evidence, beyond the
testimony of Reid and Brown, that Isaac had ever been on
board the Community Aid or had forced Reid and Brown to
accompany him from Jamaica. Isaac's attorney also
brought out the facts that Reid and Brown had initially
been indicted on the same charges as Isaac, and that they
were represented by private counsel whose fees were being
paid by an unknown source. Moreover, the cross-

                               10
examination of Reid and Brown revealed that, although the
charges against them had been dropped, they were still
being kept in prison as material witnesses and realized they
would not be freed until they had testified against Isaac.
Thus, Isaac's counsel brought to the jury's attention factors
which suggested that Reid and Brown might be motivated
to give false evidence and that, without this suspect
testimony, evidence of Isaac's involvement in the smuggling
operation was slim.

Second, the trial court instructed the jury that they were
the judges of credibility and should consider the witnesses'
motives, the circumstances under which they had testified
and the relationship each might have to the prosecution or
the defense. The court's instructions, taken together with
defense counsel's vigorous attack on the credibility of Reid
and Brown, certainly put the jury on notice that it had to
weigh carefully the possible accomplices' testimony. See
Hoffa, 385 U.S. at 311-12 & nn.12-14, 87 S. Ct. at 418-19
& nn.12-14 (holding that no violation of the Due Process
clause occurred where the informer was rigorously cross-
examined and the trial court both recapped the defendant's
version of events for the jury and gave it a general
instruction on assessing witness credibility). The fact that
the jury acquitted Isaac of possessing marijuana on board
a vessel arriving in the United States indicates that the jury
took these instructions seriously, since Reid's and Brown's
testimony, if credited, would have been sufficient to convict
Isaac on this count as well.

IV. JUDICIAL NOTICE OF DISMISSAL OF CHARGES
AGAINST REID AND BROWN

Isaac argues that his Fifth Amendment right to due
process was violated when the court took judicial notice
that all charges against Reid and Brown were dismissed,
but did not add that this was done "in response to the
government's motion." Isaac contends that the omission
"placed a judicial imprimatur and enhancement on the
credibility of Brown and Reid" by implying that the court
had independently dismissed the charges, presumably for
lack of evidence.

                               11
Rule 201 of the Federal Rules of Evidence requires the
court to take judicial notice of facts "capable of accurate
and ready determination by resort to sources whose
accuracy cannot reasonably be questioned" when a party
requests that it do so and supplies the necessary
information. Fed. R. Evid. 201(b) & (d). In this instance, the
fact that the charges against Reid and Brown had been
dropped on the motion of the United States was readily
ascertainable from the court order, entered into evidence at
Isaac's trial as Exhibit F. Indeed, when the court ruled on
the defendant's motion to take judicial notice of certain
facts, the court agreed to include the words "in response to
the government's motion;" their omission from the judicially
noticed facts read to the jury seems to have been
inadvertent, not deliberate.

Nonetheless, the judicial order dismissing the charges
against Brown and Reid was entered into evidence, and it
clearly stated that the charges were dismissed on the
motion of the government. In addition, the government's
motion to designate Reid and Brown as material witnesses
was also entered into evidence; the supporting affidavit
stated that the drug charges had been dismissed "in the
interest of justice and the witnesses['] cooperation," a point
defense counsel drove home in his closing argument.
Consequently, the jury was not misled into believing that
the court had independently dismissed the charges against
Brown and Reid.

V. PROSECUTOR'S CLOSING ARGUMENT

Finally, Isaac argues that his Fifth Amendment right not
to testify was violated when the prosecutor stated, over
defense counsel's objection, "Raymond Isaac captained that
boat from Jamaica, and the only people who would know
that Raymond Isaac captained that boat from Jamaica are
Raymond Isaac, Conrad Brown, Irvin Reid, and that fourth
individual in Jamaica. Those are the only people."
According to Isaac, the prosecutor was implying that Isaac's
decision not to testify and give his version of what did or
did not happen on the boat was evidence of his guilt.

In Griffin v. State of California, the Supreme Court held
that the Fifth Amendment prohibits the judge and

                               12
prosecutor from suggesting to the jury that it may treat the
accused's silence as substantive evidence of guilt. 350 U.S.
609, 615, 85 S. Ct. 1229, 1233 (1965); see also Baxter v.
Palmigiano, 425 U.S. 308, 319, 96 S. Ct. 1551, 1558
(1976). Otherwise, the defendant is penalized by the court
for exercising his constitutional right not to incriminate
himself. Griffin, 350 U.S. at 614, 85 S. Ct. at 1232-33.
However, when the defendant uses his Griffin protection as
a sword, rather than a shield, the prosecution may respond
appropriately. See United States v. Robinson, 485 U.S. 25,
32, 108 S. Ct. 864, 869 (1988). For instance, in the
Robinson case, the Supreme Court held that once defense
counsel had asserted in closing argument that the
government did not allow the defendant to tell his side of
the story, it was not a violation of the Fifth Amendment for
the prosecutor to respond by telling the jury that the
defendant could have testified if he so chose. Id. at 26-28
& n.2, 108 S. Ct. at 866 & n.2. Thus, we must consider the
prosecutor's remarks in context to determine whether they
are a fair response to an assertion by the defendant. Id. at
32-33, 108 S. Ct. at 869.

When the prosecutor's statement here is considered in
context, we find that, although it comes close to violating
Griffin, it was a fair response to defense counsel's closing
argument. Much of that argument was an attack on the
credibility of Brown and Reid, whose testimony was key to
proving numerous elements of the government's case. The
prosecutor began his rebuttal by conceding that Brown and
Reid were probably not the most upstanding individuals;
however, there were no paragons of virtue present during
the smuggling operation who could testify about it. In this
context, the prosecutor's declaration that "the only people
who would know that Raymond Isaac captained the boat
are Raymond Isaac, Conrad Brown, Irvin Reid, and that
fourth individual in Jamaica" comes across as an assertion
that the government obtained its evidence from the only
available sources. Although the prosecutor would probably
have been better advised, given Griffin, to omit the reference
to Isaac, the comment was not "of such character that the
jury would naturally and necessarily take it to be a
comment on the failure of the accused to testify." United
States v. Chaney, 446 F.2d 571, 576 (3d Cir. 1971).

                               13
VI. CONCLUSION

Because we conclude that Isaac's rights under the Fifth
and Sixth Amendments were not violated, his convictions
on the counts of conspiracy to possess a controlled
substance with intent to distribute in violation of 21 U.S.C.
§ 846 and possession of a controlled substance with intent
to distribute in violation of 21 U.S.C. § 841(a)(1) will be
affirmed.
14
MCKEE, Circuit Judge, concurring.

I concur in the judgment and the opinion of the majority.
I write separately, however, to express my concern over the
district court's "two-inference" jury instruction on
reasonable doubt.

In defining "reasonable doubt," the district court
instructed the jury:

 Reasonable doubt is a term often used, probably well
understood, but not easily defined. Reasonable doubt
is what the term implies. The doubt must be
reasonable. . . . The government is not required to
produce evidence that will exclude every possibility of
a defendant's innocence. It is only required to prove his
guilt beyond a reasonable doubt, not beyond all
possible doubt. The test is one of reasonable doubt. A
reasonable doubt is a fair doubt, based upon reason
and common sense -- the kind of doubt that would
make a reasonable person hesitate to act. . . .

 While bearing in mind that it is rarely possible to
prove anything to an absolute certainty, you must
remember, as well, that a defendant must never be
convicted on mere assumption, conjecture or
speculation. So 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.

 . . . But if, after considering all of the evidence and
giving the accused the benefit of a reasonable doubt,
both as to the evidence presented or the lack of
evidence, you are led to the conclusion that he is
guilty, you should so declare by your verdict.

I agree with the majority that these instructions, taken as
a whole, accurately conveyed the concept of reasonable
doubt to the jury. In fact, the Supreme Court has expressly
approved some of the language in the district court's
charge. See, e.g., Holland v. United States, 348 U.S. 121,
140 (1954)("We think [the reasonable doubt] charge should
have been in terms of the kind of doubt that would make
a person hesitate to act."). Therefore, I am satisfied that

                               15
this approved language and other portions of the charge
mitigated any harm that flowed from the language
suggesting that conviction was appropriate if the jurors
concluded that one inference was merely more likely than
the other.

Isaac's trial preceded this Court's decision in United
States v. Jacobs, 44 F.3d 1219 (3d Cir.), cert. denied, 115
S. Ct. 1835 (1995), where we joined the Second Circuit in
criticizing the two-inference language, see United States v.
Inserra, 34 F.3d 83, 91 (2d Cir. 1994); United States v.
Attanasio, 870 F.2d 809, 818 (2d Cir. 1989); United States
v. Khan, 821 F.2d 90, 93 (2d Cir. 1987), and stated that
district courts should not use that language "when it is
specifically brought to the attention of trial judges in future
cases," Jacobs, 44 F.3d at 1226. This trial court did not
have the advantage of that guidance. Here, I write
separately to reiterate that district courts should refrain
from using the two-inference language, especially when, as
here, the defendant objects to the language.

The two-inference language standing alone "may mislead
a jury into thinking that the government's burden is
somehow less than proof beyond a reasonable doubt."
Khan, 821 F.3d at 93; see also Inserra, 34 F.3d at 91
(same); Attanasio, 870 F.2d at 818 (same).

The language suggests that the government merely has to
prove guilt by a preponderance of the evidence, the"least
demanding standard." Livingstone v. North Belle Vernon
Borough, 91 F.3d 515, 534 (3d Cir. 1996), cert. denied, 117
S. Ct. 1311 (1997). That standard is usually "appropriate to
a typical civil case involving a monetary dispute between
private parties." Id. (internal quotations omitted). Because
society's stake in the outcome of this type of case is
"minimal," "it is appropriate to [apply] a standard that
allocates the risk of error between the litigants`in roughly
equal fashion.' " Id. at 534-35. The same is not true of
criminal cases for which the standard proof beyond a
reasonable doubt is reserved; "society wishes to `exclude as
nearly as possible the likelihood of an erroneous
judgment.' " Id. at 535.

Another problem with the two-inference language is that
it "does not go far enough." Khan, 821 F.2d at 93. "It

                               16
instructs the jury on how to decide when the evidence of
guilt or innocence is evenly balanced, but says nothing on
how to decide when the inference of guilt is stronger than
the inference of innocence but no[t] strong enough to be
beyond a reasonable doubt." Id.

Hopefully, courts will refrain from including the two-
inference language in their charges to the jury in the
future. The language does not aid in clarifying the elusive
concept of reasonable doubt which, as the district court
below recognized, "is a term often used, probably well
understood, but not easily defined." Indeed, rather than
clarifying the concept, the language will often create a
substantial risk of a criminal conviction based only upon a
preponderance of proof.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

                               17
