                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-17-2002

USA v. Bullard
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-1952




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Recommended Citation
"USA v. Bullard" (2002). 2002 Decisions. Paper 283.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/283


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                                                 NOT PRECEDENTIAL

                THE UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                           ___________

                           No. 01-1952
                           ___________


                    UNITED STATES OF AMERICA

                              vs.

                        MICHAEL BULLARD

                               Appellant.

                           ___________


         ON APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE EASTERN DISTRICT OF PENNSYLVANIA

                 (D.C. Criminal No. 00-cr-00085)
       District Judge: The Honorable William H. Yohn, Jr.

                           ___________

                              ARGUED
                           May 6, 2002



       BEFORE: NYGAARD, ALITO, and ROSENN, Circuit Judges.



Elizabeth T. Hey, Esq. (Argued)
Defender Association of Philadelphia
Federal Court Division
Curtis Center
Independence Square West
Suite 540 West
Philadelphia, PA 19105
         Counsel for Appellant

Eric B. Henson, Esq. (Argued)
Office of the United States Attorney
Suite 1250
615 Chestnut Street
Philadelphia, PA 19106
         Counsel for Appellee


                      (Filed: May 17, 2002)

                           ___________
                      OPINION OF THE COURT
                          ___________


NYGAARD, Circuit Judge.
         Appellant, Michael Bullard, challenges the District Court’s refusal to issue
his requested jury instruction during his criminal trial. We will affirm the District
Court’s order because we hold that the court did not abuse its discretion.
         Bullard was indicted on a single count of possession of a firearm by a
convicted felon in violation of 18 U.S.C. 922(g). A superseding indictment was
obtained subsequently which added a Notice of Prior Convictions which exposed Bullard
to the enhanced penalty provision of the Armed Career Criminal Act, 18 U.S.C. 924(e).
The jury could not achieve unanimity in Bullard’s first trial, so the District Court
declared a mistrial. During his second trial, the jury convicted Bullard of possession of a
firearm by a convicted felon, and, in a separate proceeding, also found that he had been
convicted of the predicate offenses necessary for enhanced sentencing.
         During the trial, Bullard asserted the affirmative defense that he had a legal
justification for being in possession of a firearm. While the Government bears the
burden of proving the elements of the crime charged beyond a reasonable doubt, the
defendant bears the burden of proving the elements of his defense by a preponderance of
the evidence. See United States v. Dodd, 225 F.3d 340, 342 (3d Cir. 2000), cert. denied,
532 U.S. 959 (2001). At the conclusion of the court’s jury instructions, Bullard
requested a specific instruction comparing the weight of the "beyond a reasonable doubt"
standard to the "preponderance of the evidence" standard. The District Court refused to
issue Bullard’s requested instruction, and Bullard assigns this as error on appeal.
         We review jury instructions for an abuse of discretion. See United States v.
Zehrbach, 47 F.3d 1252, 1264 (3d Cir. 1995) (en banc). We consider "whether, viewed
in light of the evidence, the charge as a whole fairly and adequately submits the issues in
the case to the jury." Id. (quoting Bennis v. Gable, 823 F.2d 723, 727 (3d Cir. 1987)).
We will reverse if "the instruction was capable of confusing and thereby misleading the
jury." Id. (quoting Bennis, 823 F.2d at 727).
         We find that the District Court did not abuse its discretion in refusing to
issue Bullard’s requested comparative instruction. Taken as a whole, the jury
instructions are not confusing or misleading. The Court properly instructed the jury of
the Government’s burden. For example, it stated:
          Remember, as well, the law never imposes upon a defendant
          in a criminal case the burden or duty of calling any witnesses
          or producing any evidence because the burden of proving
          guilt beyond a reasonable doubt is always assumed by the
          Government. (App. 448a).

         As I have mentioned to you, the Government’s burden of
         proof in a criminal case is guilt beyond a reason[able] doubt,
         with the exception of this justification defense which I will
         explain later. What this means is that unless the Government
         proves beyond a reasonable doubt that a defendant has
         committed every essential element of an offense which he has
         been charged, you must find him not guilty as to that offense.
         (App. 458a-459a).

         It is not required that the Government prove guilt beyond all
         possible doubt. The test is one of reasonable doubt. A
         reasonable doubt is a 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
         a reasonable person would not hesitate to rely and act upon it
         in the most important of his or her own affairs. Unless the
         Government proves beyond a reasonable doubt that the
         defendant has committed each and every element of the
          offense charged in the indictment, you must find the
          defendant not guilty of the offense. (App. 460a).

The court also properly instructed the jury of Bullard’s burden in establishing the
affirmative defense of legal justification. Among its instructions, it said:
          Now, there are two difference[s] with reference to this
          defense from the crime that is charged [ ] possession of a
          firearm by a convicted felon. As to the defense of legal
          justification, the burden [of] proof is upon not the
          Government, but upon the defendant and it is the burden of
          the defendant to prove each of the elements of the defense by
          a preponderance of the evidence rather than proof beyond a
          reasonable doubt.

          Now, what is proof by a preponderance of the evidence? To
          establish by a preponderance of the evidence means to prove
          that something is more likely so than not so. In other words,
          [a] preponderance of the evidence in the case means such
          evidence as when considered and compared with that
          opposed to it, has more convincing force and produces in
          your minds the belief that what is sought to be true is more
          likely true than not true. (App. 468a).

Taking the jury instructions as a whole, we find they are neither misleading nor
confusing. The District Court did not abuse its discretion in refusing to issue Bullard’s
requested comparative instruction.
          In sum, and for the reasons above, we will affirm the District Court’s
judgment.
_________________________


TO THE CLERK:

         Please file the foregoing opinion.



                                                                        /s/ Richard L. Nygaard
                                Circuit Judge
