                                                                     FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  May 22, 2017
                                          PUBLISH             Elisabeth A. Shumaker
                                                                  Clerk of Court
                      UNITED STATES COURT OF APPEALS

                                    TENTH CIRCUIT


 UNITED STATES OF AMERICA,

        Plaintiff-Appellee,
 v.                                                    No. 15-1421
 ISHMAEL PETTY,

        Defendant-Appellant.

 ----------------------------------------------

 NATIONAL ASSOCIATION OF
 CRIMINAL DEFENSE LAWYERS;
 COLORADO CRIMINAL DEFENSE
 BAR,

        Amici Curiae.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLORADO
                    (D.C. No. 1:15-CR-00029-PAB-1)

Gail K. Johnson, Johnson, Brennan & Klein, PLLC, Boulder, Colorado, for
Defendant-Appellant.

J. Bishop Grewell, Assistant United States Attorney (Robert C. Troyer, Acting
United States Attorney, with him on the brief), Denver, Colorado, for Plaintiff-
Appellee.

Norman R. Mueller, Haddon Morgan & Foreman P.C., Denver, Colorado; Kyle
W. Brenton, Davis Graham & Stubbs, LLP, Denver, Colorado, with him on the
brief as Amici Curiae for the Appellant..
Before HARTZ, BALDOCK, and HOLMES, Circuit Judges.

BALDOCK, Circuit Judge.

      The Government charged Defendant Ishmael Petty with assaulting three

employees at the federal correctional facility in Florence, Colorado, in violation of

18 U.S.C. § 111(a)(1) & (b). At Defendant’s trial, the district court tendered the jury

the following reasonable doubt instruction. This instruction tracks verbatim the

Tenth Circuit’s Pattern Jury Instruction on reasonable doubt.

      The government has the burden of proving the defendant guilty beyond
      a reasonable doubt. The law does not require a defendant to prove his
      innocence or produce any evidence at all. The government has the
      burden of proving the defendant guilty beyond a reasonable doubt, and
      if it fails to do so, you must find the defendant not guilty.

      Proof beyond a reasonable doubt is proof that leaves you firmly
      convinced of the defendant’s guilt. There are few things in this world
      that we know with absolute certainty, and in criminal cases the law does
      not require proof that overcomes every possible doubt. It is only
      required that the government’s proof exclude any “reasonable doubt”
      concerning the defendant’s guilt. A reasonable doubt is a doubt based
      on reason and common sense after careful and impartial consideration
      of all the evidence in the case.

      If, based on your consideration of the evidence, you are firmly
      convinced that the defendant is guilty of the crimes charged, you must
      find him guilty. If, on the other hand, you think there is a real
      possibility that he is not guilty, you must give him the benefit of the
      doubt and find him not guilty.

ROA Vol. I, at 88; see 10th Cir. Crim. PJI No. 1.05 (2011 ed.). The district court

overruled Defendant’s objections to the instruction, and a jury found Defendant

guilty. The court sentenced Defendant, who was already serving a life sentence for


                                          2
the murder of a fellow inmate, to three additional, consecutive, 20-year terms of

imprisonment.

      On appeal, Defendant persists in complaining about the district court’s

reasonable doubt instruction. Generally, Defendant contends the court’s instruction

diluted the Government’s burden of proof contrary to his Fifth Amendment right to

due process and his Sixth Amendment right to a fair trial. Specifically, Defendant

complains the instruction is flawed in three respects. First, Defendant asserts the

phrase “firmly convinced” connotes a lesser standard of proof than proof beyond a

reasonable doubt. Second, the instruction, according to Defendant, undermines the

degree of proof required because it fails to communicate that the Government’s

burden is a heavy one, requiring a greater modicum of proof than a civil case. Third,

Defendant says the instruction erroneously fails to inform the jury that reasonable

doubt may arise not only from the evidence but also from the lack of evidence.

Exercising jurisdiction under 28 U.S.C. § 1291, we reject Defendant’s argument that

the reasonable doubt instruction as tendered is unconstitutional, and affirm.

                                         I.

      Whether a reasonable doubt instruction comports with the Constitution is a

legal inquiry subject to de novo review. Tillman v. Cook, 215 F.3d 1116, 1123 (10th

Cir. 2000). Nonetheless, a district court still “retain[s] considerable latitude in

instructing juries on reasonable doubt.” United States v. Conway, 73 F.3d 975, 980

(10th Cir. 1995).    Such latitude arises from the established precept that “the

                                         3
Constitution neither prohibits trial courts from defining reasonable doubt nor

requires them to do so as a matter of course.” Victor v. Nebraska, 511 U.S. 1, 5

(1994).   “[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.” Id.

      Decisions adjudicating challenges to reasonable doubt instructions—the

overwhelming majority of which are unfavorable to the defense—are legion.

Undoubtedly, such challenges are a consequence of “the difficulties inherent in any

attempt to define the [standard] in great detail or to characterize precisely what sort

of doubt might be reasonable.” United States v. Pepe, 501 F.2d 1142, 1143 (10th

Cir. 1974); see also Victor, 511 U.S. at 5 (recognizing the reasonable doubt standard

“defies easy explication”).

      As an abstraction the concept of reasonable doubt is not susceptible to
      description by terms with sharply defined, concrete meanings. Resort
      must be to wording or language, the meaning of which will necessarily
      be colored by the experience of each individual. Thus, while the term
      itself is common and readily associated by most individuals with our
      criminal justice system, it is unlikely that two persons would supply the
      same characterization of its meaning. These difficulties have been
      acknowledged by the Supreme Court, and the Court has expressed its
      doubts about the benefit of attempting a definition more elaborate than
      the term “reasonable doubt” itself.

Pepe, 501 F.2d at 1143–44 (citing Dunbar v. United States, 156 U.S. 185, 199




                                          4
(1894)). 1 Thus, at the end of the day, “the test we properly apply in evaluating the

constitutionality of a reasonable doubt instruction is not whether we find it

exemplary.” Victor, 511 U.S. at 27 (Ginsburg, J., concurring). Perhaps no such

instruction is. Rather, the proper inquiry requires us to consider the instructions in

their entirety and ask whether a “reasonable likelihood” exists that the jury

“understood the instructions to allow conviction based on proof insufficient to meet

the [reasonable doubt] standard.” Id. at 6 (majority opinion).

                                          II.

      Defendant first takes issue with the instruction’s statement that “[p]roof

beyond a reasonable doubt is proof that leaves you firmly convinced of the

defendant’s guilt.”    Defendant claims the district court’s formulation of the

applicable standard understates the degree of certainty a jury must reach before

returning a guilty verdict.    Defendant says proof that leaves a juror “firmly

convinced” of a defendant’s guilt does not require proof of guilt beyond a reasonable

doubt, but instead requires something akin to clear and convincing proof.

Unfortunately for Defendant, Tenth Circuit precedent says otherwise.

      In Conway, we held the district court did not err in equating proof beyond a



      1
         In Dunbar, the Supreme Court observed: “Repeated attempts have been
made by judges to make clear to the minds of the jury what is meant by the words
‘reasonable doubt’; but . . . ‘[a]ttempts to explain the term “reasonable doubt” do not
usually result in making it any clearer to the minds of the jury.’” Dunbar, 156 U.S.
at 199 (quoting Miles v. United States, 103 U.S. 304, 312 (1880)).

                                          5
reasonable doubt with proof that leaves one firmly convinced of a defendant’s guilt.



In other words, the court’s “firmly convinced” formulation of the reasonable doubt

standard did not understate the degree of certainty a jury must reach to find a

criminal defendant guilty. To be sure, the district court’s instruction in the present

case contains language not appearing in the instruction at issue in Conway (language

we shall discuss subsequently). The wording of the instruction challenged here,

however, encompasses entirely the wording of the instruction challenged in Conway.

That instruction read:

      Proof beyond a reasonable doubt is proof that leaves you firmly
      convinced of the defendant’s guilt. There are very few things in this
      world that we know with absolute certainty, and in criminal cases the
      law does not require proof that overcomes every possible doubt. If
      based on your consideration of the evidence, you are firmly convinced
      that the defendant is guilty of the crime charged, you must find him
      guilty. If on the other hand, you think there is a real possibility that he
      is not guilty, you must give him the benefit of the doubt, and find him
      not guilty.

Conway, 73 F.3d at 980.

      Like the challenged instruction in Conway, the instruction here (1) informed

the jury that it should not find Defendant guilty unless it was firmly convinced of his

guilt and (2) cautioned the jury that it must acquit Defendant in the presence of “a

real possibility that he is not guilty.” As we held in Conway, “the ‘firmly convinced’

language, juxtaposed with the insistence that a jury must acquit in the presence of

‘a real possibility’ that the defendant is not guilty, is a correct and comprehensible

                                          6
statement of the reasonable doubt standard.” Id.; see also United States v. Barrera-

Gonzales, 952 F.2d 1269, 1271 (10th Cir. 1992). 2

      This brings us to Defendant’s second complaint about the district court’s

reasonable doubt instruction. Defendant emphasizes the word “only” in the sentence

that reads: “It is only required that the government’s proof exclude any ‘reasonable

doubt’ concerning the defendant’s guilt.” (emphasis added). Notably, this sentence

did not appear in the instruction at issue in Conway. According to Defendant, to cast

the reasonable doubt standard in terms of something that is “only required”

undermines the Government’s burden by suggesting its burden is not heavy or

difficult to meet. Defendant’s argument is not without superficial force. But the

wording Defendant emphasizes “cannot be sequestered from its surroundings.”

Victor, 511 U.S. at 16. We do not read selected portions of a jury instruction in

isolation, removed from their context. See Cupp v. Naughten, 414 U.S. 141, 146–47

(1973) (accepting the “well-established proposition that a single instruction to a jury

may not be judged in artificial isolation, but must be viewed in the context of the

overall charge.”).


      2
         Worth noting here is that the Supreme Court opined in Victor that “[a]n
instruction cast in terms of an abiding conviction as to guilt . . . correctly states the
government’s burden of proof.” Victor, 511 U.S. 14–15. Two years prior, we opined
in Barrera-Gonzales that “the term[] ‘firmly convinced’ requires more persuasion
than terms such as ‘reasonable certainty’ or ‘abiding conviction as to guilt.’”
Barrera-Gonzales, 952 F.2d at 1273. In fact, we observed that “arguably a person
who is ‘firmly convinced’ [of a defendant’s guilt] has no reasonable doubt.” Id. at
1271.

                                           7
8
         The sentence immediately preceding the statement about which Defendant

complains explains that “in criminal cases the law does not require proof that

overcomes every possible doubt.” The statement to which Defendant objects next

contrasts the reasonable doubt standard with the notion of absolute certainty. The

word “only” points out that proof beyond a reasonable doubt is not proof that

overcomes all doubt. See United States v. Kieffer, 681 F.3d 1143, 1152 (10th Cir.

2012).     The following sentence, which also does not appear in the Conway

instruction, then properly describes reasonable doubt as a “doubt based on reason and

common sense after careful consideration of all the evidence in the case.” See id. at

1159. In other words, the instruction first tells the jury what the reasonable doubt

standard does not require, i.e., “absolute certainty” of guilt, and second tells the jury

what reasonable doubt is, i.e., a doubt “based on reason and common sense.” We

discern no constitutional error in the instruction’s approach.

         Defendant’s final challenge to the district court’s reasonable doubt instruction

is based on its failure to inform the jury that reasonable doubt may arise from a lack

of evidence. But the realization that the Government will fail to meet its burden of

proof if it fails to present the necessary evidence of guilt is quite apparent from the

instruction considered as a whole, in particular the statements that (1) “[t]he

government has the burden of proving the defendant guilty beyond a reasonable

doubt,” (2) “the government’s proof [must] exclude any ‘reasonable doubt’

concerning the defendant’s guilt, (3) “[t]he law does not require a defendant to prove

                                             9
his innocence or produce any evidence at all,” and (4) the jury must base its verdict

on “consideration of the evidence.” Any reasonable juror would understand from the

instruction’s wording that the Government must present evidence sufficient to

establish Defendant’s guilt beyond a reasonable doubt and that a failure to present

evidence sufficient to meet its burden must result in Defendant’s acquittal.

                                          III.

      The reasonable doubt instruction Defendant advocates—one that contrasts the

Government’s burden of proof in a criminal case with that in a civil case, informs the

jury of the strict or heavy nature of the Government’s burden in a criminal case, and

tells the jury reasonable doubt may arise from the Government’s failure to present

sufficient evidence—may well pass constitutional muster. But such recognition does

not inevitably lead to the conclusion that the reasonable doubt instruction the district

court tendered to the jury in this case, i.e., an instruction identical to the Tenth

Circuit’s Pattern Jury Instruction on reasonable doubt, denied Defendant due process

or deprived him of a fair trial. For the reasons we have stated, we conclude the

reasonable doubt instruction at issue, taken as a whole, adequately conveyed the

concept of reasonable doubt to the jury. This is to say no reasonable likelihood

exists that the jury selected to determine Defendant’s guilt applied the instruction in

a manner violative of the Constitution.

      AFFIRMED.




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