                                 REVISED - April 15, 1998

                       IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE FIFTH CIRCUIT



                                          No. 95-31101



ELMO HUMPHREY, III,
                                                                              Petitioner-Appellant,

                                                 v.

BURL CAIN, Warden,
Louisiana State Penitentiary,
                                                                             Respondent-Appellee.




                           Appeal from the United States District Court
                              For the Eastern District of Louisiana

                                           April 3, 1998

Before POLITZ, Chief Judge, KING, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH,
DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART,
PARKER, and DENNIS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

       We took this case en banc to resolve conflicting panel decisions whether Cage-Victor error

fits within the second Teague exception, making it available in federal habeas to a state prisoner

whose criminal conviction was final when those cases were decided. For the reasons stated in the

panel opinion, we today give an affirmative answer to that question. We overrule all prior decisions
of this court holding to the contrary. For the reasons stated in the panel opinion,1 we hold that the

jury instructions defining reasonable doubt lowered the State’s burden of proof below the

constitutional minimum. We reverse the district court’s judgment denying the writ of habeas corpus

and remand the case to the district court with instructions to order the State of Louisiana to either

try Elmo Humphrey, III, again or release him from custody within 90 days of the date of the district

court’s order on remand.

       REVERSED and REMANDED with instructions.




       1
           Humphrey v. Cain, 120 F.3d 526 (1997). AEDPA is not applicable to this case.
EDITH H. JONES, Circuit Judge, with whom JOLLY, DUHE’ and PARKER, Circuit Judges, join

in dissenting:

                 My colleagues have constitutionally condemned what is surely one of the longest

reasonable doubt instructions in recent reported history based on four catch phrases, even though

three of those phrases have, in proper context, survived Supreme Court scrutiny. What provoked

the majority to ignore the rich forest of the whole instruction for the sake of a few sickly trees is not

clear. But their analytical method ignores that we must scrutinize the instructions taken as a whole,

not in isolated tidbits. And their emphasis on the court’s statement that reasonable doubt “is a serious

doubt for which you could give good reason” is misguided. [I] do not believe Humphrey’s jury

convicted him of repeated sexual molestation of a then-nine-year old victim on a constitutionally

infirm standard. I respectfully dissent.2

                 On habeas review, “our inquiry is whether the instruction is constitutional, not whether

it is exemplary.” Vargas v. Keane, 86 F.3d 1273, 1280 (2d Cir. 1996). The test of constitutionality

is whether taken as a whole, the instruction correctly conveyed the law of reasonable doubt to the

jury. See Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 1243 (1994). Further, a court must

determine not whether the instruction could have been applied unconstitutionally, but “whether there

is a reasonable likelihood




          2
         I concur in the court’s decision that the Cage/Victor
standard must be retroactively applied and in the ex post facto
discussion.
that the jury understood the instructions to allow conviction based on proof insufficient to meet the

Winship standard.” Id. at 6, 114 S.Ct. at 1243. As the Supreme Court itself pointed out, it has found

in only one case that a reasonable doubt definition actually violated the due process clause. Id. at 5,

114 S.Ct. at 1243. (citing Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328 (1990)). We do not

minimize the importance of furnishing a correct jury instruction on reasonable doubt, but neither will

we trivialize the importance of carefully reviewing jury instructions as a whole before declaring that

the jury was reasonably likely to have interpreted them unconstitutionally.

                Two general vices may render a reasonable doubt instruction unconstitutional: that

it urges the jury to convict on a standard of proof lower than “beyond a reasonable doubt,” or that

it permits the jury to go outside the record evidence to convict. See id. at 5-6, 22, 114 S.Ct. at 1243,

1251. Mindful of these pitfalls, we may review the Humphrey reasonable doubt instruction, with each

sentence numbered for the convenience of this discussion. The Humphrey jury was instructed:

                (1) The burden is upon the State to prove the defendant’s guilt beyond a
        reasonable doubt. (2) In considering the evidence, you must give the defendant the
        benefit of every reasonable doubt arising out of the evidence or out of the lack of
        evidence. (3) If you are not convinced of the guilt of the defendant beyond a
        reasonable doubt, you must find him not guilty.
                (4) If you entertain any reasonable doubt as to any fact or element necessary
        to constitute the defendant’s guilt, it is your sworn duty to give him the benefit of that
        doubt and return a verdict of acquittal. (5) Even where the evidence demonstrates a
        probability of guilt, yet if it does not establish it beyond a reasonable doubt, you must
        acquit the accused. (6) This doubt must be a reasonable one, that is, one found[ed]
        upon a real, tangible, substantial basis, and not upon mere caprice, fancy or
        conjecture. (7) It must be such a doubt [as] would give rise to a grave uncertainty,
        raised in your minds by reason of the unsatisfactory character of the evidence; one
        that would make you feel that you had not an abiding conviction to a moral certain[ty]
        of the defendant’s guilt. (8) If, after giving a fair and impartial consideration to all of
        the facts in the case[,] you find the evidence unsatisfactory upon any single point
        indispensably necessary to constitute the defendant’s guilt, this would give rise to
        such a reasonable doubt as would justify you in rendering a verdict of not guilty.

                                                    4
                (9) The prosecution must establish guilt by legal and sufficient evidence
        beyond a reasonable doubt, but the rule does not go further and require a
        preponderance of testimony. (10) It is incumbent upon the State to prove the offense
        charged, or legally included in the indictment, to your satisfaction and beyond a
        reaso nable doubt. (11) A reasonable doubt is not a mere possible doubt. (12) It
        should be an actual or substantial doubt. (13) It is such a doubt as a reasonable man
        would seriously entertain. (14) It is a serious doubt for which you could give good
        reason.

The first six sentences pose no constitutional problems. They properly articulate the reasonable doubt

standard, and they provide context for the rest of the instruction. Sentences (8)-(10) provide further

context and background for every challenged sentence in the instruction. They make clear that the

burden of proof rests with the state for each element of the offense charged and that a reasonable

doubt must be based upon the evidence. Along with sentences (1)-(6), they mitigate any potential

error caused by the challenged language.

                Sentence (7) contains the first phrases to which the appellant objects: “grave

uncertainty” and “mo ral certainty.” The Supreme Court has held that use of the term “grave

uncertainty,” while not condoned, presents no constitutional infirmity if it relates to the existence

rather than the magnitude of the evidence required. See id. at 20, 114 S.Ct. at 1250. Sentence (7),

especially when taken in the context of the preceding two sentences, is rooted in making a

comparison between doubts based on the existence (or nonexistence) of evidence versus doubts based

on conjecture or fancy. In addition, the Court has held that even if the use of “grave uncertainty”

touches upon the magnitude of the evidence, this error can be corrected if the instruction contains

alternative, mitigating definitions of reasonable doubt. See id. In this case, sentences (2)-(5) and (8)-

(10) serve to make clear that the defendant is to be given the benefit of every reasonable doubt arising

from the evidence. Sentence (8) unequivocally requires a not-guilty verdict based upon a reasonable

                                                   5
doubt if the evidence is “unsatisfactory upon any single point indispensably necessary” to convict.

This sentence makes plain, as the Cage instruction did not, that reasonable doubt arises from any

material deficiency in proof by the state.

                The Court has also held that use of the term “moral certainty” is not constitutionally

improper as long the rest of the instruction gives context to its meaning. See id. at 14-16, 21-22, 114

S.Ct. at 1247-48, 1250-51. The Humphrey instruction as a whole confirms that “moral certainty”

is not a vacuous term, but relates to the evidence in the case. As in Victor, other sentences

admonished the jury not to be swayed by passion or prejudice, to rule solely on the evidence, and not

to indulge in speculation or conjecture. See id. at 16, 114 S.Ct. 1248. The jury was also required

to have an “abiding conviction” of guilt to a moral certainty. In Victor, the Court viewed this phrase

as confirming a “subjective state of near certitude” of the defendant’s guilt. Id. at 15, 114 S.Ct. at

1247 (internal citation omitted). Thus, any possible misunderstanding of “moral certainty” was fully

offset by its context. It is highly unlikely that the jury either misunderstood the burden of proof or

strayed beyond the record because of this phrase.

                Sentence (12) co ntains the third phrase condemned by the majority, “actual or

substantial doubt.” As with “grave uncertainty,” the use of the phrase “actual or substantial doubt”

is, in the context of the full instruction, tied to the existence rather than the magnitude of the

evidence. This is particularly evident from the earlier reference to a “substantial basis” for reasonable

doubt in sentence (6), which is juxtaposed to a doubt founded in “caprice, fancy or conjecture.” The

Supreme Court expressly held in Victor that any ambiguity about a “substantial doubt” was cured by

its being distinguished from a mere possibility, caprice, or conjecture. See id. at 20, 114 S.Ct. 1250.


                                                   6
                If these three phrases were the only ones involved in this case, the instruction would

be upheld under Victor. It would be upheld because the phrases are properly explained by their

surrounding passages to enforce the state’s high burden of proof beyond a reasonable doubt and to

tie conviction only to the evidence o r lack of evidence in the record. According to the majority,

however, these phrases somehow lose the benefit of their mitigating context and are irretrievably

misleading because they are conjoined with the last sentence in the instruction: “It is a serious doubt

for which you could give good reason.”

                The majority’s conclusion embodies three criticisms: of the term “good reason,” of

the “articulation-demanding” quality of the instruction, and of the alleged synergy with the other three

undesirable phrases. On analysis, these criticisms, while aesthetically accurate, are constitutionally

suspect.

                First, the use of the phrase “good reason” in sentence (14) only repeats what the entire

instruction has already conveyed to the jury. A reasonable doubt is not one based upon speculation

or mere possibility. A “good reason” refers to the actuality of doubt arising from the evidence. Like

other courts, see, e.g., Beverly v. Walker, 118 F.3d 900, 903 (2d Cir. 1997); Chalmers v. Mitchell,

73 F.3d 1262, 1268 (2d Cir. 1996), we do not condone t he use of this phrase, but to say that it

renders the instruction unconstitutional is to read the tea leaves more closely than is reasonably

possible. The instruction as a whole emphasizes that a “reasonable doubt” is the type of doubt

required for acquittal, that the benefit of every doubt is to be given to the defendant, and that

probability of guilt is not sufficient to convict.




                                                     7
                The majority is able to cite only one case in which a sister circuit has held that a

reasonable doubt instruction containing the phrase “good reason” is unconstitutional. See Dunn v.

Perrin, 570 F.2d 21 (1st Cir. 1978).3 The specific offending language in Dunn was as follows: “It is

such a doubt as for the existence of which a reasonable person can give or suggest a good and

sufficient reason.” Id. at 23 n.1 (emphasis added). To require “good and sufficient reason” clearly

ratchets the defense’s burden upward. Moreover, the court expressly stated that while this language

may have been improper, it was not by itself reversible error. See id. at 23. Rather, the court found

that only the cumulative effect of this language plus numerous other impermissible phrases rendered

the entire instruction unconstitutional. See id. at 25.4

                Second, the majority condemned the phrase “for which you could give good reason”

as an “articulation-demanding” standard, and it complains:

        A juror favoring guilt would have a powerful tool if he could demand that undecided
        jurors articulate good reasons for considering an acquittal. Such a juror coul d use
        Humphrey's reasonable-doubt instruction to argue that it's not enough to have a
        reason to acquit—that one must have an especially strong, compelling, or persuasive


   3
      Our research has disclosed one other, most unusual reasonable doubt instruction that a court
of appeals held unconstitutional on habeas review. Lanigan v. Maloney, 853 F.2d 40 (1st Cir. 1988).
The language in that charge is inapposite to this discussion.
   4
       Specifically, the court found that it was two other parts of the instruction which were “clearly
wrong.” Id. at 22. These parts (i) equated reasonable doubt with a “strong and abiding conviction
as still remains after careful consideration of all the facts and arguments,” and (ii) permitted the jury
to convict or
acquit on the basis of “information which we do not positively know to be absolutely true and which
we have no means of verifying.” Id. at 24. Thus, “good reason” became unconstitutional
only when combined with other highly damaging phrases. Such is not the case with the Humphrey
instruction wherein “good reason” is combined with other phrases found constitutional by the
Supreme Court when
used in a proper context.

                                                   8
       reason for doubting the defendant's guilt. He could plausibly assert that a paucity of
       government evidence should not count as a "good" reason. Under this sort of
       pressure, inarticulate and undecided jurors are less likely to give defendants the
       benefit of their doubts. Requiring articulation of good reasons, then, skews the
       deliberation process in favor of the state by suggesting that those with doubts must
       perform certain actions in the jury room—actions that many individuals find difficult
       or intimidating—before they may vote to acquit.

Humphrey v. Cain, 120 F.3d 526, 531 (5th Cir. 1997).5 This novel exercise in amateur psychology

is not only highly speculative, it results in a reductio ad absurdum -- any phrase plucked from a

reasonable doubt instruction could be used to put a juror in the “uncomfortable” position of having

to defend his vote of not guilty.

               The flaw in the majority’s analysis is illustrated by another—apparently

unobjectionable—sentence from the Humphrey instruction: “This doubt must be a reasonable one,

that is, one founded upon a real, tangible, substantial basis, and not upon mere caprice, fancy or

conjecture.” Why do these words not present the same danger as the words “good reason?” Does

not a juror favoring guilt have a powerful tool if he can demand that undecided jurors articulate why

their doubt is real, tangible, or substantial? Does not this phrase skew the deliberation process in

favor of the state by suggesting that those with doubts must—or at least should—be able to explain

why their doubts are not based upon mere caprice, fancy, or conjecture? Yet no one questions the

propriety of including the sentence from which these questions arise in a constitutional reasonable

doubt instruction.




  5
     I note that the jury did not have the written jury instruction with them in the jury room. Rather,
the instruction was read to them once by the judge before their deliberations began.

                                                  9
               Indeed, the Humphrey instruction does not require, as the majority suggests, that a

juror give—or even be able to give—a “good reason.” Rather, it merely equates reasonable doubt

with “a serious doubt for which you could [not should or must] give good reason.”

               It should be significant that no other court has so strongly condemned the “doubt for

which you could give a reason” instruction.6 Judge Friendly seemed sympathetic to the observation

that challenges to such an instruction are “hypercritical,” but he went on to agree that such an

instruction is “not approved” and “perhaps unwise,” yet it is “not erroneous.” United States v. Davis,

328 F.2d 864, 867-68 (2d Cir. 1964). More recently, the Second Circuit upheld a reasonable doubt

instruction that contained the sentence, “It is a doubt for which you can give a reason if called upon

to do so by a fellow juror in the jury room.” Vargas, 86 F.3d at 1275. The court explained its

holding as follows:

       The premise o f the petitioner's challenge . . . is that a juror may hold a reasonable
       doubt of a defendant's guilt, based on the evidence or lack of evidence offered by the
       prosecution, and yet be unable to articulate that doubt. Even if we assume that there
       exists a category of "reasonable" yet not "articulable" doubt, we do not see how the
       addition of the phrase "if called upon to do so by a fellow juror" alters the substance
       of the instruction sustained in cases such as Davis and Leecan in any constitutionally
       significant way. The challenged language does not suggest -- any more than the "for
       which a reason can be given" formulation standing alone -- that a juror will be called
       upon to articulate his doubts, or that he must articulate them if so called upon.
       Moreover, language surrounding the challenged language renders it unlikely that


   6
      See, e.g., Gilday v. Callahan, 59 F.3d 257, 264-65 (1st Cir. 1995) (holding constitutional a
reasonable doubt instruction containing the sentence, “When you get all through analyzing this
evidence, it has to be a doubt nagging your mind, leaving you with an uncertainty of conviction to
that moral certainty which you can stand up and argue in the jury room with principle and integrity
and honesty to your fellow jurors.”); United States v. Dale, 991 F.2d 819, 852-53 (D.C. Cir. 1993)
(panel including Wald, Ruth Bader Ginsburg, JJ.) (holding constitutional a reasonable doubt
instruction containing the sentence, “Reasonable doubt, as that name implies, is a doubt based on
reason, it is a doubt for which you can give a reason.”).

                                                 10
        jurors would interpret the passage to require a higher degree of doubt than
        "reasonable" doubt for acquittal. The challenged language was immediately preceded
        and followed by language giving additional content to the phrase "reasonable doubt,"
        emphasizing that the jurors' task was to engage in a careful, reasoned analysis of the
        evidence -- or lack of evidence -- presented. Accordingly, the jury was unlikely to
        have understood the challenged language to bear upon the degree or quantum of
        doubt necessary for acquit tal, but rather, upon the appropriate basis for the
        formulation of a doubt sufficient for acquittal: as the charge properly stated, a
        "reasonable" doubt is not "just any kind of doubt, a mere whim or a guess or a feeling,
        or a surmise that the accused may not be guilty," but a doubt that "arises out of the
        credible evidence or the lack of credible evidence." Viewed in context, the challenged
        language simply does not suggest that a doubt formulated within one's own mind --
        reasonable, but not articulable -- is insufficient for acquittal. Rather, it serves to
        emphasize, in conjunction with surrounding language, that any doubt sufficient for
        acquittal must be based on a reasoned evaluation of the evidence or lack of evidence,
        rather than on speculation, emotion, or whim.

Vargas, 86 F.3d at 1278 (emphasis added).

                The Humphrey majority attempts to distinguish Vargas, in part, on the ground that

it did not require jurors to articulate a “good” reason, as did the Humphrey instruction. See

Humphrey, 120 F.3d at 532. Anyone reading the Vargas instruction cannot entertain the notion that

because it calls for only “a reason” rather than a “good reason,” it is constitutionally less suspect. The

entire Vargas instruction reads as follows:

                A reasonable doubt is a doubt which you consciously have after the use of
        your powers of reasoning which arises out of the credible evidence or the lack of
        credible evidence.

                It is a doubt for which you can give a reason if called upon to do so by a
        fellow juror in the jury room. The standard of reason must be prevailing. When you
        are convinced that you have no doubt in reason of the defendant[']s guilt, that is when
        you will be justified in rendering a verdict accordingly. Consequently, after fairly and
        fully considering all of the evidence and the lack of evidence and using the same
        power of reasoning and power of thinking that would apply and do apply to weigh the
        importance of matters related to the [sic] important business affairs, if you then
        believe that each element of the crime submitted to you[ ] has been established beyond


                                                   11
       a reaso nable doubt, you would be justified in finding the defendant guilty of t at
                                                                                      h
       crime.

Vargas, 86 F.3d at 1275. A recent Second Circuit case upheld an even stronger articulation standard:

       A juror who has a reasonable doubt and asserts it ought to first be able to give that
       reasonable doubt a reason for it to himself, and he should be able to communicate that
       to his fellow jurors that reasonable doubt in the event they ask him to do so.

Beverly, 118 F.3d at 901. The court rejected the contention that this instruction shifted the burden

of proof to the defendant, because the trial court repeatedly instructed the jury that the defendant was

presumed innocent and that the prosecution bore the burden of proof for conviction. See id. at 903;

see also Vargas, 86 F.3d at 1278-79; Chalmers, 73 F.3d at 1267-68 (criticizing a charge that defined

reasonable doubt as “a doubt for which some good reason can be given,” but concluding that it was

not reasonably likely that the jury misunderstood which party bore the burden of proof, since the

court made it clear that the defendant remained innocent until the prosecution proved his guilt beyond

a reasonable doubt).

               The majority’s fear that inarticulate jurors will be prejudiced or intimidated by this

sentence is fanciful. The sentence states no requirement of articulation, and it never mentions that

word. If there were little more to this instruction than the challenged sentence, its potential for

misleading the jury would have been highlighted. But the saving grace of this trial court’s instructions

is that they said too much, not too little, and much of what they said -- eleven out of fourteen

sentences on reasonable doubt alone -- was entirely correct and unobjectionable.

               The majority’s final worry is that the “give a good reason” standard somehow

magnified the potential errors in the “grave uncertainty,” “moral certainty,” and “substantial doubt”

phrases so that together, they effectively lowered the state’s burden of proof. This conclusion is an

                                                  12
unreasoned ipse dixit and deserves no rebuttal.7 Yet it is only when all four phrases are taken in

combination that the majority are willing to say this instruction is unconstitutional. The majority’s

conclusion, however, rests only on phrases and flatly ignores the Supreme Court’s insistence that we

look to the jury instructions as a whole.

               Let me reiterate that I do not condone the Humphrey instruction insofar as it contains

dubious and potentially misleading phrases. But paraphrasing Judge Friendly, I believe the instruction

is “not approved” and “perhaps unwise,” but it is not unconstitutional. I respectfully dissent.




   7
     Three previous cases from this court have considered instructions substantially similar to the
Humphrey instruction, and all three instructions were found to be constitutional. See Schneider v.
Day, 73 F.3d 610 (5th Cir. 1996); Weston v. Ieyoub, 69 F.3d 73 (5th Cir. 1995); Gaston v. Whitley,
67 F.3d 121 (5th Cir. 1995).

                                                 13
