PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 95-5315

RANDALL DWAYNE MUSE,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
John R. Hargrove, Senior District Judge.
(CR-94-311-MJG)

Argued: March 8, 1996

Decided: May 13, 1996

Before MURNAGHAN and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Murnaghan and Senior Judge Butzner joined.

_________________________________________________________________

COUNSEL

ARGUED: Robert Leon Pierson, Baltimore, Maryland, for Appel-
lant. Peter M. Semel, Assistant United States Attorney, Baltimore,
Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia, United
States Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________
OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

After a jury trial, appellant Randall Dwayne Muse was convicted
of violating 18 U.S.C. § 922(g), which criminalizes a convicted
felon's possession of a firearm. Muse appeals, asserting that the dis-
trict court erred in (1) failing to redress adequately a government dis-
covery violation; (2) removing from the jury's consideration a critical
factor in evaluating witness credibility; and (3) improperly instructing
the jurors with regard to the effect that factual stipulations should
have on their deliberations. Finding no reversible error, we affirm.

I.

This case arose from a Baltimore City police investigation into
allegations that Samuel Lee McKay was involved in passing forged
checks. Pursuant to a warrant, on February 22, 1994, police searched
McKay's residence. During this search, police discovered and seized
a .22 caliber semi-automatic handgun that its owner had reported as
stolen.

When questioned about the weapon, McKay responded that he had
bought it from a man he knew only as "Top." McKay stated that he
had met Top through Remus Burnett, an intermediary who purport-
edly assisted Top in locating buyers for weapons. After federal
authorities became aware of McKay's statements, an investigation
commenced with regard to the weapon transactions. A special agent
with the Bureau of Alcohol, Tobacco, and Firearms questioned Bur-
nett, who acknowledged that he had been involved in the weapon sale
to McKay and that Top had been the weapon supplier. Burnett stated
that he had known Top for twenty years, that he had recently seen
numerous guns in Top's possession, and that Top's real name was
Randall Dwayne Muse.

Because Muse had been previously convicted of a crime punish-
able by imprisonment for a term of more than one year, 18 U.S.C.
§ 922(g)(1) prohibited his possession of a firearm. Therefore, on
August 2, 1994, Federal agents obtained a warrant and arrested Muse

                    2
at his home. At the time, Muse gave a statement in which he said that
he had found a number of weapons in an abandoned duffel bag and
that he had given them to Burnett to sell. Armed with this statement
and the testimony of McKay and Burnett, the government charged
Muse with possessing a firearm in violation of § 922(g)(1).

Muse's trial was scheduled for February, 1995. Although the gov-
ernment did not specifically promise McKay or Burnett lenient treat-
ment with respect to potential criminal charges against them, both
agreed to testify against Muse. Prior to their testimony, in late
December, 1994, or early January, 1995, Burnett received an enve-
lope containing a card that stated, "Never rat on friends, boy. Stay
healthy." Fingerprints taken from the envelope were identified as
belonging to Muse. After a four-day trial in February, a jury found
Muse guilty of the charge against him.

II.

Muse's first contention in this appeal involves the government's
conceded violation of Rule 16(a)(1)(C) of the Federal Rules of Crimi-
nal Procedure. Twice prior to trial, defense counsel inquired of the
government whether any witnesses scheduled to testify had identified
Muse in photographic arrays. The prosecutor responded that no such
arrays had taken place. During the prosecutor's direct examination of
McKay and Burnett, both made in-court identifications of Muse as the
man they knew as "Top." Neither made any reference to a photo-
graphic array.

On cross-examination, however, when defense counsel asked
McKay whether agents had presented him with a photographic array,
McKay replied that agents had shown him an array and that he had
identified a picture of Muse as the man whom he knew as "Top." Dur-
ing the ensuing bench conference, defense counsel complained that
the government had violated Rule 16(a)(1)(C) by falsely stating that
McKay had not identified Muse from a photographic array. The pros-
ecutor responded that he had no idea why McKay claimed to have
identified Muse's picture because, to his knowledge, no one had
shown McKay any photographs. After further investigation, however,
the prosecutor found that an agent had indeed shown McKay a photo-
graphic array. The agent had neglected to inform the prosecutor

                    3
because, the agent said, he had shown McKay the array in connection
with a separate investigation and had failed to perceive its importance
to Muse's trial.

The next day, Muse moved for a mistrial or, in the alternative, to
suppress McKay's in-court identification. Muse also asked the district
court for a hearing outside the jury's presence to investigate the cir-
cumstances of the photographic identification. The district court
denied the motion for a mistrial and refused to conduct a hearing out-
side the jury's presence. Instead, the court offered to permit Muse to
recall McKay to the stand to inquire into the circumstances of the out-
of-court identification. Citing the potential prejudice involved in
questioning McKay in front of the jury, Muse's counsel declined the
court's offer. Defense counsel did question the federal agents as to
why they had failed to inform the prosecutor about the out-of-court
identification. Additionally, defense counsel was permitted, during
closing argument, to ask the jury to draw "inferences" from the gov-
ernment's failure to disclose that agents had presented McKay with
the photographic array.

On appeal, Muse contends that the district court's offer to allow
him to question McKay in front of the jury was insufficient to redress
the prejudice caused by the government's discovery violation. The
government concedes that its failure to disclose McKay's identifica-
tion violated Rule 16(a)(1)(C), but asserts that the district court did
not err in refusing Muse's request for a hearing outside of the jury's
presence.

The Federal Rules of Criminal Procedure provide a district court
with discretion in determining the proper remedy for a discovery vio-
lation. Fed. R. Crim. P. 16(d)(2). Accordingly, a trial court's decision
as to the appropriate remedy may only be reversed for abuse of dis-
cretion. See United States v. Ford, 986 F.2d 57, 59 (4th Cir. 1993).

Conducting a hearing outside the presence of the jury to "determine
the admissibility of identification evidence" has long been recognized
as the "prudent" course. See Watkins v. Sowders, 449 U.S. 341, 345
(1981) (collecting cases). But the Supreme Court has expressly held
that, because cross-examination before the jury is generally sufficient
to determine the trustworthiness of identification evidence, the due

                     4
process clause of the Fourteenth Amendment does not invariably
require a judicial determination of this issue outside the presence of
the jury. Id. at 349. The Watkins holding applies equally to a Fifth
Amendment due process claim. See United States v. Mills, 704 F.2d
1553, 1563 (11th Cir. 1983), cert. denied, 467 U.S. 1243 (1984).
Muse does not argue to the contrary. Nor does he assert another con-
stitutional basis for his claim. Rather, relying on language in Watkins,
Muse maintains that refusal to grant a hearing outside of the presence
of the jury violated his due process rights.

In Watkins, the Supreme Court did leave open the possibility that,
"[i]n some circumstances . . . such a determination [outside the jury's
presence] may be constitutionally necessary." 449 U.S. at 349. But
Muse has failed to demonstrate any "circumstances" that would con-
stitutionally require such a hearing in this case, or that would even
establish that the trial court's refusal to grant such a hearing was an
abuse of discretion. It is true that here, in contrast to the two cases
consolidated in Watkins, because of the government's violation of
Rule 16(a)(1)(C), the defense did not learn of the out-of-court identi-
fication until it was revealed during McKay's cross-examination. Sig-
nificantly, however, Muse conceded that the prosecutor did not
knowingly withhold McKay's out-of-court photographic identifica-
tion; thus, there is no claim of prosecutorial misconduct that might
require a special hearing by the court. See United States v. Joya-
Martinez, 947 F.2d 1141, 1145 (4th Cir. 1991). Moreover, in view of
the fact that McKay and Burnett had already identified Muse in-court,
any prejudice that may have arisen from the defense counsel's
unknowing introduction of the out-of-court identification was insig-
nificant and does not qualify as a circumstance that constitutionally
required a hearing outside the jury's presence. Cf. United States v.
Mills, 704 F.2d 1553, 1565 (11th Cir. 1983) (to require a hearing out-
side the jury's presence, circumstances must be"unusual" or "particu-
larly prejudicial").

For similar reasons, the court below did not abuse its discretion in
refusing to grant such a hearing. McKay's out-of-court identification
of Muse was simply not significant in this case. When McKay identi-
fied Muse in court, McKay explained that, in addition to observing
Muse during the sale of the gun, he had met Muse"three to four
months before any of this stuff [the weapons transactions] took

                    5
place." McKay also testified that he had met Muse through Burnett,
who, when he identified Muse in-court, stated that he had known
Muse well for twenty years. As a result, the main thrust of Muse's
defense at trial was not that McKay and Burnett had identified the
wrong man, but that their entire testimony was fabricated. Accord-
ingly, McKay's identification of Muse was not a central issue in the
case and the district court's refusal to convene a hearing outside the
jury's presence does not require reversal. Cf. United States v.
Davenport, 753 F.2d 1460, 1462 (9th Cir. 1985) (finding no abuse of
discretion under similar circumstances in which a prosecutor had mis-
takenly informed defense counsel that no out-of-court identification
had taken place).

In sum, the district court's refusal to permit an inquiry as to
McKay's out-of-court identification of Muse outside the jury's pres-
ence neither violated the constitution nor constituted an abuse of dis-
cretion.

III.

Muse next maintains that the district court committed reversible
error when it instructed the jurors that "punishment of others" was not
their concern. He claims that the instruction removed from the jury's
consideration his main defense argument -- that McKay and Burnett
were lying in the hope of receiving lenient treatment from the govern-
ment.

Muse concedes that the trial court afforded him broad latitude in
cross-examining McKay and Burnett as to their motives for testifying.
In addition, defense counsel was permitted, during closing argument,
to remark repeatedly on the witnesses' motive and bias against his cli-
ent and in favor of the government. Muse's attorney urged the jury
to take the witnesses' desire to avoid prosecution into account in
assessing their credibility. Defense counsel then went further -- sug-
gesting that it was unfair that only his client, Muse, was put on trial,
while McKay and Burnett were given a "free ride."

When instructing the jury, the district court gave a lengthy and typ-
ical instruction on the factors the jury should consider in assessing
witness credibility. The court instructed the jury to consider the wit-

                     6
nesses' "motives," "bias[ ] or prejudice[ ] for or against either side"
and whether "bias or prejudice has colored the testimony of the wit-
ness so as to affect the desire and capability of that witness to tell the
truth." This instruction was given in the context of the weight the jury
should place on witness testimony in determining whether the govern-
ment had carried its burden of proving Muse's guilt beyond a reason-
able doubt.

Later in the instructions, the district court noted several matters that
the jury was not to consider in making its decision. For example, the
court instructed the jury not to consider evidence that the defendant
may have committed crimes other than the crime charged. Addition-
ally, the court instructed the jury not to consider the defendant's pos-
sible punishment, but only to consider whether the evidence proved
his guilt beyond a reasonable doubt. In this context, the district court
also noted that the jury should not consider the"lack of punishment
as to others."

Defense counsel objected to the instruction, arguing that "lack of
punishment is an issue [because] the witnesses think that they are get-
ting away with something." The district court overruled the objection,
and the following colloquy ensued:

          THE COURT: There is nothing that permits an attorney
          to argue a lack of punishment on a person not charged. . . .
          You know what the problem with your argument was? It is
          unfair. . . . You were saying its not fair to punish him and
          not them. So, I have to tell the jury that that is not the law.
          The law says you deal with him and not with somebody
          else. That was your argument, if you recall, and that was not
          fair. If you had stuck with your argument that they had a
          sweetheart deal, which is a standard argument --

          [DEFENSE COUNSEL]: I understand, judge.

          THE COURT: But you went on further to say it wasn't
          fair, which dealt strictly with punishment, and I thought I
          should state to the jury that punishment is strictly-- you
          can't deal with the lack of punishment on somebody else.

                     7
On appeal, Muse renews his objection to the district court's instruc-
tion on the theory that it foreclosed the jury from considering whether
McKay and Burnett were lying to avoid punishment.

The fundamental problem with this argument is that it ignores the
context in which the district court used the language to which Muse
objects. Jury instructions must be viewed in their entirety and in con-
text. See Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). Here the
district court initially gave a full and proper instruction with regard
to the factors involved in assessing witness credibility. It was only in
response to defense counsel's closing argument that it was unfair for
Muse to stand trial while the others were given a free ride, that the
court instructed the jurors that such an extraneous consideration was
not their concern. Cf. United States v. Pena, 930 F.2d 1486, 1491
(10th Cir. 1991) (unless statutorily mandated, the jury's role is to
determine guilt or innocence, not punishment). This was within the
court's discretion. Although a jury is entitled to acquit on any ground,
a defendant is not entitled to inform the jury that it can acquit him on
grounds other than the facts in evidence, i.e. a jury has the power of
nullification1 but defense counsel is not entitled to urge the jury to
exercise this power. See United States v. Moylan , 417 F.2d 1002,
1006 (4th Cir. 1969). If defense counsel attempts to do so, the trial
court may make an appropriate corrective instruction, such as the
instruction at issue here. See United States v. Sepulveda, 15 F.3d
1161, 1190 (1st Cir. 1993) (a trial judge "may block defense attor-
neys' attempts to serenade the jury with a siren song of nullifica-
tion"), cert. denied, 114 S. Ct. 2714 (1994).

We agree that had the district court used the language to which
Muse objected without any similar provocation from defense counsel,
the instruction might have been error. Viewed in isolation, the instruc-
tion could be construed as improperly removing the witnesses'
motives from the jury's consideration in assessing their credibility.
However, language in jury instructions may not be viewed in isola-
tion. Cupp, 414 U.S. at 146-47. When all of the instructions here are
examined in their entirety and in context, as they must be, it is clear
_________________________________________________________________
1 See United States v. Kerley, 838 F.2d 932, 939 (7th Cir. 1988)
(although the jury does not have the right to refuse to return a verdict on
unreasonable grounds, "[i]t has the power to acquit on bad grounds").

                    8
that the court appropriately instructed the jury to take into account the
witnesses' motives in evaluating their testimony, and also appropri-
ately instructed the jury that it should not acquit the defendant if the
evidence (including the witnesses' testimony, whether credible or not)
proved Muse's guilt beyond a reasonable doubt, simply because the
government was not similarly punishing other people. Accordingly,
there was no error.

IV.

Finally, Muse argues that the court below erroneously instructed
the jury on the effect of certain stipulations of fact that he had entered
into with the government. Muse contends that the district court over-
stated the effect of these stipulations and essentially directed a verdict
for the prosecution on two elements of the § 922(g)(1) offense. Alter-
natively, he contends that if the stipulations had the effect the court
ascribed to them, the court erred in not ensuring that he knowingly
and voluntarily waived his right to have the jury find that the elements
existed.

A.

Prior to trial, Muse, his attorney, and the government agreed to the
following stipulations of fact:

          It is hereby stipulated and agreed between the United
          States of America and Randall Dwayne Muse, defendant,
          that:

          1. Prior to September, 1993, Randall Dwayne
          Muse, the defendant, had been convicted of a
          crime punishable by imprisonment for a term
          exceeding one year within the meaning of Title 18,
          United States Code, Sections 922(g)(1) and
          921(a)(20).

          2. Government's Exhibit 1 a High Standard
 6170     38 7 Model [106] .22 caliber semi-automatic handgun,

                     9
          serial no. 1761198 was manufactured outside the State of
          Maryland, thereby affecting commerce . . . .

During trial, the government read the stipulations to the jury.

At the conclusion of the trial, the court instructed the jury as fol-
lows:

          Now, the Government must prove each of the following
          elements beyond a reasonable doubt before you may find
          the defendant guilty of the offense charged . . . . First, that
          the defendant was previously convicted of a felony .. . .
          This has been stipulated to; and, as I told you earlier on, a
          stipulation is an agreement among the parties that this ele-
          ment has been proved or is proved, and the Government
          does not have to go any further to prove that. So, you should
          not have to concern yourself with that, because the stipula-
          tion establishes that element, the first element that the Gov-
          ernment is required to prove. The stipulation says everybody
          agrees to that. You should go right past that. You have to
          consider it, certainly, as one of the elements, but the stipula-
          tion makes it very clear that you don't have to look into the
          evidence to see if it has been proven by the government. The
          stipulation does that.

          ...

          Third, that the possession charged was in or affecting
          interstate commerce. The third element is again stipulated to
          between the parties. So, you don't have to worry yourself
          about whether or not the gun was in or affecting interstate
          commerce.

Muse did not object to this instruction. Nevertheless, on appeal, he
contends that the instruction amounted to an improper directed verdict
on the prior felony and interstate commerce elements of the offense.
Because Muse failed to object to the instruction, our review is limited
to "plain error." See United States v. Hanley, 974 F.2d 14, 18 (4th Cir.
1992); Fed. R. Crim. P. 52(b). The Supreme Court has directed that,

                     10
even if we find the trial court erroneously instructed the jury, "[i]t is
the rare case in which an improper instruction will justify reversal of
a criminal conviction when no objection has been made in the trial
court." Henderson v. Kibbe, 431 U.S. 145, 154 (1977), quoted in
United States v. Silva, 745 F.2d 840, 851 (4th Cir. 1984), cert. denied,
470 U.S. 1031 (1985). With this standard of review in mind, we turn
to the particular kind of instruction at issue here, one in which the
court directed the jury on the effect it should give to stipulations
involving elements of a criminal offense.

We note at the outset the special nature of a factual stipulation,
agreed to and signed by a defendant, his attorney, and the prosecutor.
Such a stipulation is more potent than simply an admission. By so
stipulating, a defendant waives the requirement that the government
produce evidence (other than the stipulation itself) to establish the
facts stipulated to beyond a reasonable doubt. See United States v.
Clark, 993 F.2d 402, 406 (4th Cir. 1993). This works to a defendant's
benefit when he or she fears that introduction of facts concerning an
element of the crime would prejudice his or her case. Indeed, for this
reason, defendants often stipulate to a prior felony conviction when
charged, as was Muse, with violating § 922(g)(1), because the gov-
ernment is then prohibited from introducing potentially prejudicial
evidence concerning the prior felony. See United States v. Rhodes, 32
F.3d 867, 871 (4th Cir. 1994) ("when a defendant offers to stipulate
to the fact of his prior felony conviction, evidence of the nature of the
conviction is irrelevant and should be stricken") (citing United States
v. Poore, 594 F.2d 39 (4th Cir. 1979)), cert. denied, 115 S. Ct. 1130
(1995).

However, such stipulations also exact a price from the defendant.
Because a stipulation induces the government not to offer evidence to
prove the facts involved in the stipulation, a defendant may not argue
at trial or on appeal that the stipulation is insufficient to prove beyond
a reasonable doubt the facts or elements to which he has stipulated.
See United States v. Reedy, 990 F.2d 167, 169 (4th Cir. 1990). A
defendant is not allowed to produce evidence to contradict or chal-
lenge the existence of facts to which he has validly stipulated. This
restriction on the defendant's ability to contest the existence of certain
facts or elements (in exchange for the government's promise not to
introduce evidence on the subject) is what distinguishes fact stipula-

                     11
tions from more general evidentiary admissions such as confessions
or other statements, which the defendant may freely contradict at trial.

Thus, in return for the benefit a defendant may receive from a stip-
ulation, it provides powerful evidence for the prosecutor. A stipula-
tion does not, however, entitle the prosecution to a directed verdict or
exact the ultimate price from a defendant: a "guilty plea" with respect
to an element of the crime. While a valid stipulation relieves the pros-
ecution of the burden of producing any other evidence in order to
establish the fact stipulated, it does not relieve the prosecution from
the burden of "proving every element of the crime" beyond a reason-
able doubt. Cf. Estelle v. McGuire, 502 U.S. 62, 69 (1991) (this bur-
den "is not relieved by a defendant's tactical decision not to contest
an essential element of the offense"). As this court recently held in a
case similarly involving a felon-in-possession charge, when a defen-
dant pleads not guilty to the offense, "the district court must instruct
the jury that the government must prove beyond a reasonable doubt
that at the time the defendant possessed the firearm he had a qualify-
ing previous felony conviction . . . ." United States v. Milton, 52 F.3d
78, 81 (4th Cir.), cert. denied, 116 S. Ct. 222 (1995). In other words,
the district court may not remove the element from the jury's consid-
eration, even though the defendant has stipulated to that element. Id.
To "remove from the jury's consideration an element of the crime"
would, as the Second Circuit remarked in a case virtually identical to
Milton, violate the "very foundation of the jury system." United States
v. Gilliam, 994 F.2d 97, 100 (2d Cir.), cert. denied, 114 S. Ct. 335
(1993).

Milton and Gilliam involved defendants who stipulated to the exis-
tence of prior felony convictions and then asked the court to withdraw
the element from the jury's consideration, and to preclude the govern-
ment from mentioning the prior felony convictions in any manner.
Milton, 52 F.3d at 80; Gilliam, 994 F.2d at 99. The defendants thus
sought to have their trials focused solely on the issue of whether they
had possessed weapons. In both cases the courts rejected this pro-
posal, noting, "[w]hatever the basis of the reasoning, be it Congressio-
nal mandate or the duty of the jury to make a totally informed
judgment, there is virtual judicial unanimity in the belief that the jury
must be informed of all the elements of the crime charged." Milton,
52 F.3d at 81 (quoting Gilliam, 994 F.2d at 102). Milton and Gilliam

                    12
therefore teach that once a defendant pleads not guilty to a crime and
elects to proceed before a jury, the district court must instruct, and the
jury must consider, whether the government has proved beyond a rea-
sonable doubt all the elements involved in the crime charged -- even
if the defendant and the government have entered a stipulation as to
certain of those elements.

Milton and Gilliam are, of course, entirely consistent with the fun-
damental principle that if a defendant avails himself of his Sixth
Amendment right to trial by jury, only the jury can reach the "requi-
site finding of `guilty.'" Sullivan v. Louisiana, 508 U.S. 275, ___, 113
S. Ct. 2078, 2080 (1993) (citation omitted). Thus, no matter "how
overwhelming the evidence," a judge "may not direct a verdict for the
[government]." Id. Although a fact stipulation may have the effect of
providing proof beyond a reasonable doubt of the existence of the
facts that make up an element, a conviction is not valid unless a jury
considers the stipulation and returns a guilty verdict based on its find-
ing that the government proved the elements of the crime beyond a
reasonable doubt. A court may not by-pass the jury and enter its own
finding that the element has been established. As the Supreme Court
recently explained, the "Constitution gives a criminal defendant the
right to have a jury determine, beyond a reasonable doubt, his guilt
of every element of the crime with which he is charged." United
States v. Gaudin, 115 S. Ct. 2310, 2320 (1995); see also United States
v. Piche, 981 F.2d 706, 716 (4th Cir. 1992) (a district court may not
"direct a verdict, even a partial verdict, for the government even
though the evidence is overwhelming or even undisputed on the
point"), cert. denied, 508 U.S. 916 (1993).

This limitation on the extent to which the jury's province can be
invaded is based, at least to some extent, on the earlier referred to
"undisputed power," of juries to nullify guilty verdicts. See Moylan,
417 F.2d at 1006 ("We recognize the undisputed power of the jury to
acquit, even if its verdict is contrary to the law as given by the judge
and contrary to the evidence.") Stated differently, the jury has "the
power to bring in a verdict in the teeth of both law and facts."
Horning v. District of Columbia, 254 U.S. 135, 138 (1920). Thus, trial
courts are foreclosed from instructing juries not to consider certain
elements of a crime, even if the case involves a stipulation encom-
passing those elements.

                     13
In view of the special evidentiary character of a stipulation -- more
potent than an admission but less draconian than a"guilty plea" --
and the power of the jury to "acquit for any reason," Moylan, 417
F.2d at 1006, developing the proper language for a jury instruction
regarding the effect of stipulations as to an element of a criminal
offense requires a trial court to walk a careful line. The government
is entitled to have the court inform the jury of the powerful effect of
a stipulation but a court cannot direct a verdict, even a partial verdict,
against the defendant.

We have been unable to find much guidance in the case law;
indeed, no appellate case seems to have set forth proper language for
a jury instruction in the situation at hand.2 Other circuits have, how-
ever, developed short and simple model instructions. For example, the
following jury instruction is utilized in the Eighth Circuit: "The Gov-
ernment and the defendant have stipulated -- that is, they have agreed
-- that certain facts are as counsel have just stated. You should there-
fore treat these facts as having been proved." Model Criminal Jury
Instructions for the Eighth Circuit 24 (West 1994) (emphasis added).
See also Ninth Circuit Manual of Modern Jury Instructions -- Crimi-
nal 17 (West 1995) ("The parties have agreed to certain facts that
have been stated to you. You should therefore treat these facts as hav-
ing been proved.") (emphasis added). In light of the special evidenti-
ary force of a stipulation, yet the inability of the trial court to remove
even a stipulated fact from the jury's consideration or to mandate that
the jury return findings as the court directs, these model instructions
appear to strike the appropriate balance.
_________________________________________________________________
2 For example, although in Clark we quoted language from an instruc-
tion to the jury that, due to the defendant's stipulation to an element of
the offense, "that element has already been established and is not for
your consideration," 993 F.2d at 406 (emphasis added), we had no occa-
sion or reason to determine the validity of the underscored language. We
cited the language only to support our holding that the defendant, in stip-
ulating and in consenting to this instruction, had intended the stipulation
to provide sufficient evidence to establish the element. See also United
States v. Houston, 547 F.2d 104, 107 (9th Cir. 1976) (without quoting or
paraphrasing any portion of the jury instruction, the court approved the
submittal of a stipulation to the jury as conclusive proof of the fact stipu-
lated to).

                     14
The district court's instruction in this case, although not as concise
as the model instructions, struck a similar balance. On the one hand,
the court emphasized the force of the stipulation-- "the government
does not have to go any further [than the stipulation] to prove [an ele-
ment of the offense]." On the other, the instruction at issue here, like
the model instructions, was couched in precatory language. The court
below repeatedly instructed the jury that, due to the stipulations, it
"should" find the facts that formed the basis for two of the elements
existed, and that it "should" therefore find that the government had
proved those elements. Additionally, the court specifically instructed
the jury that it had to consider all the elements, even those encom-
passed in the stipulations: "You have to consider[the felony element],
certainly, as one of the elements, but the stipulation makes it very
clear that you don't have to look into the evidence to see if it has been
proven by the government."

For these reasons, the lower court's instruction to the jury that it
must "consider" the elements, and that it"should" find that the gov-
ernment established those elements through the stipulations, was not
erroneous. To the extent that certain language in the instructions
could be construed as going beyond the directive that the jury
"should" find the government had established the elements by the
stipulations, such error (if any) is certainly not"plain." See United
States v. Matzkin, 14 F.3d 1014, 1018 (4th Cir. 1994) (errors in
instructions are not grounds for reversal unless they are "obvious" and
clear).

B.

Alternatively, Muse argues that if the district court's instruction
with regard to the fact stipulations was proper, the district court erred
in not following the procedures outlined in Rule 11 of the Federal
Rules of Criminal Procedure to determine if he knowingly and volun-
tarily entered into the stipulations. He maintains that Rule 11 proce-
dures were required before the court could validly remove the
stipulated elements from the jury's consideration. This argument is
meritless.

This theory can be disposed of summarily because, as noted above,
the district court's instruction did not result in the removal of the stip-

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ulated elements from the jury's consideration, nor did it result in an
improperly directed partial verdict in the government's favor.
Because the jury was still required to consider and return a verdict
finding Muse guilty of all of the elements of the offense, his theory
is without support.

Of course, the issue would be different if Muse had stipulated to
all the elements of the offense. In such a case, the knowing and volun-
tary nature of Muse's entry into the stipulations (amounting effec-
tively to a de facto guilty plea) would raise more significant concerns.
Cf. United States v. Struther, 578 F.2d 397, 403 (D.C.Cir. 1978)
(when stipulations are tantamount to a guilty plea, Rule 11-type pro-
cedures required); United States v. Brown, 428 F.2d 1100, 1102
(D.C.Cir. 1970) (same). But see United States v. Schuster, 734 F.2d
424, 425 (9th Cir. 1984) (Rule 11 limited to pleas of guilty or nolo
contendere); United States v. Robertson, 698 F.2d 703 (5th Cir. 1983)
(Rule 11 limited by its terms to guilty pleas and therefore does not
apply even if the defendant stipulates to all the elements of an
offense). However, here, although Muse stipulated to two of the ele-
ments, he vigorously contested the existence of the third, and most
critical, element at trial. We, therefore, need not address the question
of whether Rule 11-type procedures would be required if the stipula-
tions on the elements amounted to a de facto guilty plea on the charge
as a whole.

For the foregoing reasons, Muse's conviction is

AFFIRMED.

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