                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 07-4688



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


RICCO LAMONT MCKOY,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (5:06-cr-00168-H)


Submitted:   April 17, 2008                   Decided:   May 8, 2008


Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


John Keating Wiles, CHESHIRE, PARKER, SCHNEIDER, BRYAN & VITALE,
Raleigh, North Carolina, for Appellant.   George E. B. Holding,
United States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Ricco Lamont McKoy appeals his jury convictions for

possession with intent to distribute marijuana, in violation of 21

U.S.C. § 841(a)(1) (2000), possession of a firearm and ammunition

by a convicted felon, in violation of 18 U.S.C.A. §§ 922(g)(1), 924

(West   2000   &    Supp.   2007),   and     possession     of   a   firearm   in

furtherance    of   a   drug   trafficking    crime,   in    violation    of   18

U.S.C.A. § 924(c)(1)(A)(iii).         McKoy contends the district court

plainly erred in its preliminary instructions to the jury regarding

the Government’s burden of proof in a criminal trial.                     While

conceding the district court gave an accurate description of the

reasonable doubt standard during its closing instructions to the

jury, McKoy claims this failed to negate the prejudicial effect of

the original instructions, which “obliged the jury to discount the

weight of the Government’s burden.” Because there is no reasonable

likelihood the jury understood the district court’s instructions to

allow for conviction based on a lesser standard of proof, we

affirm.

           McKoy     raised    no   objection    to   the   district     court’s

instructions regarding reasonable doubt; accordingly, his claim is

reviewed for plain error.       Fed. R. Crim. P. 52(b); United States v.

Olano, 507 U.S. 725, 731-32 (1993).             Four conditions must be met

before this court will notice plain error: (1) there must be error;

(2) it must be plain under current law; (3) it must affect


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substantial rights, typically meaning the defendant is prejudiced

by the error in that it affected the outcome of the proceedings;

and (4) the error seriously affected the fairness, integrity, or

public reputation of judicial proceedings.     Id. at 732-37.

           Due process requires that every element of a crime be

proven by the prosecution beyond a reasonable doubt.       See In re

Winship, 397 U.S. 358, 364 (1970).     A reasonable doubt instruction

that decreases the Government’s burden of proof is constitutionally

deficient and qualifies as structural error that requires reversal

of the conviction. See Sullivan v. Louisiana, 508 U.S. 275, 280-82

(1993).   While the district court must instruct the jury as to the

application of the reasonable doubt standard in a criminal case,

Jackson v. Virginia, 443 U.S. 307, 320 n.14 (1979), this court has

joined “in the general condemnation of trial court attempts to

define reasonable doubt in their jury instructions.” United States

v. Moss, 756 F.2d 329, 333 (4th Cir. 1985); see also United States

v. Reives, 15 F.3d 42, 46 (4th Cir. 1994).

           An attempt by the trial court to define reasonable doubt

will not require automatic reversal of a conviction; however, “at

some point a reasonable doubt definition may be so incomprehensible

or potentially prejudicial to require reversal.” Moss, 756 F.2d at

333.   Accordingly, the reviewing court must determine “whether

there is a reasonable likelihood that the jury understood the

instructions to allow conviction based on proof insufficient to


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meet the [constitutional] standard.”    Victor v. Nebraska, 511 U.S.

1, 6 (1994); see also United States v. Williams, 152 F.3d 294, 298

(4th Cir. 1998).   A conviction will not be reversed as long as “the

instructions, taken as a whole, adequately state the controlling

law.”   United States v. Wills, 346 F.3d 476, 492 (4th Cir. 2003)

(internal quotation and citation omitted).

           During its preliminary instructions to the jury, the

district court stated:

     [T]he Government must prove the defendant’s guilt beyond
     a reasonable doubt. I’ll give you further instructions
     on this point later, but bear in mind that in this
     respect in a criminal case the burden of proof of beyond
     a reasonable doubt is a slightly higher standard of proof
     than that required in a civil lawsuit, where the burden
     of proof is the preponderance of the evidence or the
     greater weight of the evidence.

At the close of evidence, the district court provided its final

instructions to the jury, stating:

     [W]hile the Government’s burden is a strict or heavy
     burden, it is not necessary that the defendant’s guilt be
     proved beyond all possible doubt. It is only required
     that the Government’s proof exclude any reasonable doubt
     concerning a defendant’s guilt. A reasonable doubt is a
     real doubt, based upon reason and common sense after
     careful and impartial consideration of all the evidence
     in a case.

           We agree McKoy is correct that the district court’s

preliminary instruction describing the reasonable doubt standard

was inaccurate.    By describing the level of proof required for a

criminal   conviction    as   only   “slightly   higher”   than   the

preponderance of the evidence standard used in civil cases, the


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district court failed to properly distinguish between these two

standards.    While the civil standard of proof shares risk equally

between parties, the “unique” reasonable doubt standard reflects

our society’s concern that the risk of error to the defendant must

be minimized even if some who are guilty may go free as a result.

See Addington v. Texas, 441 U.S. 418, 427-28 (1979).              However, the

district     court’s   instructions,      which    seemingly      equated   the

reasonable    doubt    standard    with   the     intermediate     “clear   and

convincing” standard used in some civil settings, see California ex

rel. Cooper v. Mitchell Bros.’ Santa Ana Theater, 454 U.S. 90, 93

n.6 (1981), failed to accurately convey to the jury the heavy

standard of proof required for conviction in a criminal case.

           Nevertheless,    this    error    did    not   occur    during   the

district court’s final instructions to the jury; rather, the

misstatement was part of the court’s opening instructions in the

case. In its preliminary statements, the district court noted that

the jurors would be provided with “further instructions” on the

meaning of reasonable doubt at the close of the case.             In its final

charge to the jury, the court instructed the jury on “the rules of

law that you must follow and apply in deciding this case,” adding

that the jurors must “follow the law as I explain it you . . . and

you must follow all of my instructions as a whole.”            The court also

provided the jury with a written copy of its instructions, which

included an accurate description of the reasonable doubt standard,


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and noted that the written instructions should be used “for any

reference you may later need to make.”               Accordingly, we find the

jury was aware of the fact that the final written instructions

would control their deliberations.

              As    McKoy    concedes,      the     district     court’s     final

instructions to the jury on the reasonable doubt standard were

“unobjectionable.”          Final instructions to the jury may serve to

cure errors in previous directives provided by the trial court.

See United States v. McIver, 470 F.3d 550, 561 (4th Cir. 2006)

(citing United States v. Tran Trong Cuong, 18 F.3d 1132, 1138 (4th

Cir. 1994)), cert. denied, 127 S. Ct. 2276 (2007).                    Furthermore,

the absence of error in the final charge to the jury is highly

relevant in determining whether a jury was misled by an earlier

misstatement.       See United States v. Ruiz, 462 F.3d 1082, 1087 (9th

Cir. 2006); United States v. Ciak, 102 F.3d 38, 46 (2d Cir. 1996);

United   States     v.   Romero,    32    F.3d    641,   652   (1st   Cir.   1994).

Accordingly, the district court’s instructions, taken as a whole,

served to adequately define the concept of reasonable doubt.                   See

Wills, 346 F.3d at 492.            While the district court erred in its

earlier directives, McKoy’s substantial rights were unaffected, as

there    is    no   reasonable     likelihood      the    jury   understood    the

instructions to allow for a conviction based on a lesser standard

of proof.      See Olano, 507 U.S. at 734-35.            Therefore, we conclude




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the district court’s preliminary instructions to the jury did not

constitute plain error.

          Accordingly, we affirm McKoy’s convictions.   We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

                                                          AFFIRMED




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