                              District of Columbia
                               Court of Appeals
No. 15-CF-263
                                                              AUG - 4 2016
DANIEL GRIFFIN,
                                         Appellant,

         v.                                           CF2-20479-13


UNITED STATES,
                                         Appellee.


              On Appeal from the Superior Court of the District of Columbia
                                   Criminal Division

         BEFORE: FISHER and MCLEESE, Associate Judges; and STEADMAN, Senior
Judge.

                                   JUDGMENT

               This case was submitted to the court on the transcript of record and the
briefs filed, and without presentation of oral argument. On consideration whereof, and
for the reasons set forth in the opinion filed this date, it is now hereby

              ORDERED and ADJUDGED that the judgment on appeal is affirmed.


                                             For the Court:




Dated: August 4, 2016.

Opinion by Associate Judge John R. Fisher.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
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volumes go to press.

             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 15-CF-263
                                                                       8/4/16
                            DANIEL GRIFFIN, APPELLANT,

                                         V.

                             UNITED STATES, APPELLEE.

                           Appeal from the Superior Court
                            of the District of Columbia
                                  (CF2-20479-13)

                         (Hon. John McCabe, Trial Judge)

(Submitted June 17, 2016                                    Decided August 4, 2016)

      Enid Hinkes was on the brief for appellant.

      Channing D. Phillips, United States Attorney, and Elizabeth Trosman,
Lindsey Merikas, Alicia Long, and Danielle M. Kudla, Assistant United States
Attorneys, were on the brief for appellee.

      Before FISHER and MCLEESE, Associate Judges, and STEADMAN, Senior
Judge.

      FISHER, Associate Judge:         Appellant Daniel Griffin challenges his

convictions, arguing that the trial court committed reversible error by omitting part

of the first paragraph of this jurisdiction‟s standard jury instruction defining

reasonable doubt. Finding no plain error, we affirm.
                                          2



                                I.     Background



      Appellant was charged with unlawful possession of a firearm, possession of

an unregistered firearm, and unlawful possession of ammunition. On the afternoon

before the jury was to be instructed, the court sent its proposed jury instructions to

counsel by email. Later that evening, defense counsel replied: “I believe the

instructions are fine[.]” The next day, the judge read the following instruction to

the jury:



             Reasonable doubt, as the name implies, is a doubt based
             on reason, a doubt for which you have a reason based
             upon the evidence or lack of evidence in the case. If after
             careful, honest and impartial consideration of all the
             evidence you cannot say that you are firmly convinced of
             a defendant‟s guilt, then you have a reasonable doubt.

             Reasonable doubt is the kind of doubt that would cause a
             reasonable person after careful and thoughtful reflection
             to hesitate to act in the graver or more important matters
             in life. However, it is not an imaginary doubt, nor a
             doubt based on speculation or guesswork. It is a doubt
             based on reason. The government is not required to
             prove guilt beyond all doubt or to a mathematical or
             scientific certainty. Its burden is to prove guilt beyond a
             reasonable doubt.
                                           3

      When reading this instruction, the judge omitted the entire first paragraph of

the reasonable doubt instruction we adopted in Smith v. United States, 709 A.2d

78, 82 (D.C. 1998) (en banc):1



             The government has the burden of proving the defendant
             guilty beyond a reasonable doubt.[2] In civil cases, it is
             only necessary to prove that a fact is more likely true
             than not, or, in some cases, that its truth is highly
             probable. In criminal cases such as this one, the
             government‟s proof must be more powerful than that. It
             must be beyond a reasonable doubt.



      Appellant‟s counsel did not object to the instruction as given. The jury

convicted appellant on all three counts.




      1
         See also Criminal Jury Instructions for the District of Columbia, No. 2.108
(5th ed. rev. 2015) (the “Red Book”). The Smith instruction is divided into three
paragraphs. The Red Book version of the instruction contains only two—it
combines the first two Smith paragraphs into one. We refer to both formulations in
this opinion.
      2
          The first sentence of the omitted paragraph was included in the written
version of the jury instructions that the judge emailed to counsel, but omitted from
the oral instruction given. Before deliberations began, the jury was given a copy of
the written instructions containing the first sentence, but not the comparison
between the civil and criminal burdens of proof. The record does not indicate
whether the first sentence was intentionally omitted from the oral instruction.
                                         4



                                  II.    Analysis



      It is well settled that “[t]he prosecution bears the burden of proving all

elements of the offense charged, and must persuade the factfinder „beyond a

reasonable doubt‟ of the facts necessary to establish each of those elements.”

Sullivan v. Louisiana, 508 U.S. 275, 277-78 (1993) (internal citations omitted).

“[T]aken as a whole, the instructions must correctly convey the concept of

reasonable doubt to the jury.” Victor v. Nebraska, 511 U.S. 1, 5 (1994) (brackets

and citation omitted).



      Under the harmless-error standard applicable to claims of error that were

preserved by proper objection at trial, a constitutionally deficient reasonable-doubt

instruction automatically requires reversal. See Sullivan, 508 U.S. at 278-82; see

also Super. Ct. Crim. R. 52.       For if “the instructional error consists of a

misdescription of the burden of proof,” Sullivan, 508 U.S. at 281, the jury‟s verdict

is not based on a finding of guilt beyond a reasonable doubt, and thus, “there has

been no jury verdict within the meaning of the Sixth Amendment,” id. at 280.

Such an error is structural, meaning that it is a “defect[] [that] affect[s] the
                                            5

framework within which the trial proceeds.” Kidd v. United States, 940 A.2d 118,

125 (D.C. 2007) (internal quotation marks omitted).



      However, if the issue has not been preserved for review because there was

no timely objection below, plain error review applies. Johnson v. United States,

520 U.S. 461, 465-66 (1997). This is true even for structural errors because “the

seriousness of the error claimed does not remove consideration of it from the ambit

of the” rules of criminal procedure that require contemporaneous objection to

preserve an error for review. Id. at 466; see also In re Taylor, 73 A.3d 85, 95-106

(D.C. 2013) (plain error review of structural error); Williams v. United States,

51 A.3d 1273, 1282-85 (D.C. 2012) (plain error review of structural error); State v.

Cruz, 122 P.3d 543, 549-51 (Utah 2005) (“Cruz never objected to the substance of

the [reasonable doubt] jury instructions . . . . In Johnson[], the United States

Supreme Court held that, where the defendant failed to properly object at trial, rule

52(b) of the Federal Rules of Criminal Procedure mandated plain error review, . . .

even if the trial court‟s error was structural in nature.”).3




      3
          Not every error in a reasonable doubt instruction is a structural error.
There may be instructional errors that, when preserved, are subject to harmless
error review because they do not misdescribe the burden of proof. See, e.g., Blaine
v. United States, 18 A.3d 766, 774-76, 781-83 (D.C. 2011).
                                          6

      In this case, appellant‟s counsel did not object to the altered instruction,

despite multiple opportunities to do so—when the judge emailed his proposed

instructions to counsel, when counsel and the court discussed the instructions the

next day, and after the instruction was read to the jury at trial. “As a result, our

review is for plain error.” Payne v. United States, 932 A.2d 1095, 1101 n.3 (D.C.

2007) (rejecting challenge to reasonable doubt instruction on plain error review).

“[A]ppellant bears the burden of persuasion on each of the four prongs of the plain

error standard[,]” Lowery v. United States, 3 A.3d 1169, 1173 (D.C. 2010), and

that burden “is, and should be, a formidable one,” Comford v. United States, 947

A.2d 1181, 1189 (D.C. 2008).



      Under the four-pronged plain error standard, appellant must establish first

that the court erred and, second, that the error was “obvious or readily apparent,

and clear under current law.” Payne, 932 A.2d at 1101 n.3 (citation omitted).

Third, appellant must show that the error “affected [his] substantial rights.” Brown

v. United States, 881 A.2d 586, 596 (D.C. 2005). Finally, if appellant satisfies the

first three prongs of this test, he “must then show either a „miscarriage of justice,‟

that is, actual innocence; or that the trial court‟s error „seriously affect[ed] the

fairness, integrity or public reputation of judicial proceedings.‟” Beaner v. United

States, 845 A.2d 525, 539 (D.C. 2004) (alteration in original) (internal quotation
                                         7

marks omitted).    Only if all four prongs are met will we reverse appellant‟s

conviction. See Payne, 932 A.2d at 1101-02 & n.3.



      In Smith, this court sitting en banc formulated a new reasonable doubt

instruction and, “in the strongest terms,” advised trial courts against altering the

instruction in any way:



            Given the great risks to the integrity of the trial which
            attend a deficient reasonable doubt instruction, the
            uncertainties and controversies generated by varying
            definitions, and the importance of fairness and the
            appearance of fairness in our justice system, the greater
            part of wisdom would dictate that the trial court give the
            standard instruction approved here, which has been
            determined to be faithful to the constitutional meaning of
            reasonable doubt. Therefore, we state, in the strongest
            terms, that the trial court should resist the temptation to
            stray from, or embellish upon, that instruction.



709 A.2d at 82-83 (internal quotation marks omitted).



      As the government concedes, by excising the first paragraph of the

instruction, in clear disregard of our admonition in Smith, the judge committed an

error that was “obvious [and] readily apparent, and clear under current law.”
                                          8

Payne, 932 A.2d at 1101 n.3 (citation omitted). Thus, appellant has satisfied the

first and second prongs of plain error review.



      Nevertheless, “we have never said . . . that a failure to use Smith‟s language

automatically violates due process.” Blaine v. United States, 18 A.3d 766, 781

n.65 (D.C. 2011).     Rather, “our en banc rule making the Smith instruction

mandatory reflects an effort to avoid constitutional error, not to create such error

per se upon violation.”    Id.   We therefore must determine whether the error

affected appellant‟s substantial rights. Brown, 881 A.2d at 596.



      In two previous cases, we reviewed for plain error after a trial court deviated

from the Smith instruction; in each case we affirmed the conviction. In Brown, the

trial court used the standard instruction that predated Smith. 4 881 A.2d at 592

nn.9 & 10. Nevertheless, we affirmed Brown‟s conviction. Id. at 598. “Although

the trial court‟s failure to read the Smith reasonable doubt instruction was

erroneous, we d[id] not conclude that the reasonable doubt instruction given by the

trial court was constitutionally deficient[,]” and we were “unconvinced” that it,



      4
       That instruction did not contrast the burdens of proof in civil and criminal
cases. Compare Brown, 881 A.2d at 592 n.9, with id. at 592 n.10. However,
Brown did not claim that this omission was error. See id. at 595-97.
                                          9

combined with the other instruction he challenged, “prejudiced Brown in any

way.” Id. at 596-97.



      In Payne, the appellant argued his conviction should be reversed because the

trial court changed the last two sentences of the Red Book instruction to, among

other alterations, break up the second-to-last sentence and insert three new

sentences:



             The government never has to prove guilt beyond all
             doubt. That’s impossible. They [the government] do not
             have to prove guilty beyond a shadow of a doubt.
             There’s no such thing. They do not have to prove guilt to
             a mathematical certainty and they do not have to prove
             guilt to a scientific certainty. Its burden is to prove guilt
             beyond a reasonable doubt.



932 A.2d at 1102 & n.6. We affirmed because we saw “no way in which this

language conveyed a faulty legal principle, prejudiced Payne, or improperly

bolstered the government‟s case.” Id. at 1102. But see Blaine, 18 A.3d at 769-71,

778-79 (reversing because use of modified Payne paragraph to reinstruct jury

“appeared to lighten the government‟s burden of persuasion”).
                                        10

      Mr. Griffin contends that the instruction given in this case, omitting the

comparison between the civil and criminal burdens of proof, is constitutionally

deficient, mandating reversal.    We disagree and hold that it did not affect

appellant‟s substantial rights.



      When reviewing a challenge to an instruction on reasonable doubt, we have

recognized that “an omission or an incomplete instruction is less likely to be

prejudicial than a misstatement of the law.” Butler v. United States, 646 A.2d 331,

337-38 (D.C. 1994) (alteration and citation omitted). When read together, the

instructions given in this case correctly convey the concept of reasonable doubt;

they do not inaccurately describe that concept or lessen the government‟s burden.

See Victor, 511 U.S at 5; see also Sullivan, 508 U.S. at 278-82. Therefore, the

erroneous instruction in this case did not amount to a structural error that would

automatically satisfy the third prong of plain error review. Cf. Taylor, 73 A.3d at

99-100 (deeming appellant‟s substantial rights affected “[b]ecause structural errors

are . . . intrinsically harmful” (internal quotation marks omitted)). However, our

analysis does not stop there; we must still analyze the error under the third prong.

See Brown, 881 A.2d at 596-97.
                                        11

      The court here instructed the jury that the government had the burden to

prove that appellant was “guilty beyond a reasonable doubt” of each element of

every charged offense, and that “if you [the jury] find the government has failed to

prove any element of a particular offense beyond a reasonable doubt, it is your

duty to find the defendant not guilty of that offense.” The court then read the

remainder of the Red Book instruction.         Nothing in the reasonable doubt

instruction was erroneous or misleading.



      Focusing on the missing first paragraph from Smith, we begin by addressing

the first sentence, which was included in the written jury instructions but

seemingly passed over when delivered orally: “The government has the burden of

proving the defendant guilty beyond a reasonable doubt.” Smith, 709 A.2d at 82.

This sentence undoubtedly explains a bedrock principle. However, “examin[ing]

the trial as a whole,” Brown, 881 A.2d at 596, appellant‟s substantial rights were

not affected by the omission. In its opening instructions, the court told the jury,

“The burden is on the government to prove guilt beyond a reasonable doubt . . . .”

The court reiterated the government‟s burden numerous times throughout the

closing instructions, and both parties acknowledged the government‟s burden in

their closing arguments. Moreover, the jury was given a copy of the written

instructions before beginning deliberations. In light of the many repetitions of the
                                           12

government‟s burden, we hold that omitting the first sentence from the oral

instruction did not affect appellant‟s substantial rights.



      We next weigh appellant‟s contention that excising the three sentences

which describe the civil and criminal burdens of proof was a constitutional

violation. We have explicitly held that the pre-Smith instruction, which did not

contain the burden-of-proof comparison, “is not[,] by itself[,] constitutionally

deficient.” Brown, 881 A.2d at 596. In addition, the parties‟ briefs and our own

research show that the vast majority of state and federal jurisdictions either do not

define “reasonable doubt” at all or do not do so by comparing the civil and

criminal burdens of proof in their pattern instruction on reasonable doubt. Thus,

we cannot say that omitting the comparison affected appellant‟s substantial rights.

Therefore, appellant has not carried his burden to establish that plain error

requiring reversal occurred.5


      5
         Appellant also asserts that the trial court erred by “fail[ing] to give the
proper cautionary instruction when [Officer] Khan was impeached [by the defense]
with his prior testimony under oath.” Assuming, without deciding, that appellant
sufficiently briefed this argument, but see Stone v. Alexander, 6 A.3d 847, 849 n.4
(D.C. 2010), there was no request for, or objection to the lack of, a cautionary
instruction, so we again review for plain error. Cf. Gilliam v. United States, 707
A.2d 784, 785 (D.C. 1998) (en banc) (“[I]n any case—without exception—in
which evidence has been properly admitted for a specific purpose and the defense
has not requested an instruction limiting jury consideration of it to that use, the trial
court‟s failure to instruct in that manner on its own initiative is reviewable only for
                                                                          (continued…)
                                         13



                                III.   Conclusion



      We continue to discourage, “in the strongest terms,” any deviation from the

instruction prescribed in Smith. 709 A.2d at 83. Nevertheless, appellant did not

object to the instruction given.       Under review for plain error, appellant‟s

convictions are



                                              Affirmed.




(…continued)
plain error.”). Appellant has failed to establish that he was prejudiced by the lack
of a cautionary instruction, especially considering that he acknowledged that the
prior testimony was given under oath and was admissible not only to impeach but
also as substantive evidence. See D.C. Code § 14-102 (b) (2016 Supp.); Bell v.
United States, 790 A.2d 523, 528-29 & n.3 (D.C. 2002).
