Federal Due Process: “Reasonable Likelihood” Standard Of Review For Instruction Is Lower Than “More Likely Than Not” Standard

Due process "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. at 364. The Due Process Clause of the Fourteenth Amendment thus prohibits the State from using jury instructions that have the effect of relieving the State of that burden. Francis v. Franklin, 471 U.S. 307, 326 (1985); see Patterson v. Gomez, 223 F.3d 959, 962 (9th Cir. 2000) ("A jury instruction cannot relieve the state of the burden of proving beyond a reasonable doubt a crucial element of the criminal offense.").

In considering whether a challenged instruction violated due process the reviewing court must determine "'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution.'" Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Boyde v. California, 494 U.S. 370, 380 (1990).). "A 'reasonable likelihood' is lower than the 'more likely than not' standard but higher than a mere 'possibility.'" Polk v. Sandoval, 503 F.3d 903, 910 (9th Cir. 2007) (citing Boyde, 494 U.S. at 380).

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296.1 Standards Of Review On Appeal

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PG X(A) -Standards of Review

If The Evidence That A Defendant Was Predisposed To Commit A Crime Is Thin, Even Minor Government Inducements Entitle The Defendant To Present An Entrapment Theory To The Jury

Entrapment involves "the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law." Jacobson v. United States, 503 U.S. 540, 553-54, 112 S. Ct. 1535, 118 L. Ed. 2d 174 (1992). The defense has two elements: government inducement of the crime and a lack of predisposition on the part of the defendant. See Mathews v. United States, 485 U.S. 58, 63, 108 S. Ct. 883, 99 L. Ed. 2d 54 (1988).  In order to obtain an entrapment instruction, a defendant must proffer evidence on both elements. See United States v.Santiago-Godinez, 12 F.3d 722, 728 (7th Cir. 1993). Once a defendant meets this threshold, the burden shifts to the government to prove that the defendant was not entrapped, meaning "the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents." Jacobson, 503 U.S. at 549. 

It is true that a defendant must proffer some evidence on both elements of the entrapment defense to warrant the instruction.  However, a person's lack of predisposition to commit a crime distinctively reveals whether the government has ensnared "an unwary innocent" in a criminal enterprise of its own design. See Mathews, 485 U.S. at 63. As explained in United States v. Evans, "the centrality of predisposition can be seen by considering the purpose of the doctrine of entrapment. It is to prevent the police from turning a law-abiding person into a criminal." See 924 F.2d 714, 717 (7th Cir. 1991). Thus, when the entrapment defense is in play, "predisposition . . . must be the key inquiry." Id.; Mathews, 485 U.S. at 63.

If there is sufficient evidence that a defendant was predisposed to commit the crime, a request for an entrapment instruction may be rejected without considering government inducement. See Santiago-Godinez, 12 F.3d at 728. “But the converse is not true: the court may not begin and end the inquiry with government inducement unless it is confident either that the government did nothing at all or that the record demonstrates that the government's actions simply provided an opportunity for a person who was already ready and willing to commit the offense.”  United States v. Pillado, 2011 U.S. App. LEXIS 18601, 23 (7th Cir. Ill. 9/7/2011, Nos. 10-1081, 10-1083, & 10-1202).  Accordingly, “[w]hether a defendant is predisposed to commit the crime charged informs the nature and level of government inducement that must be identified to warrant an entrapment instruction.”  Ibid.

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257.3 Entrapment

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Entrapment

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F 4.60 Entrapment

F 1000 Note 5Sex Crimes: Entrapment (PC 261 & PC 263)

F 3408 Entrapment

Federal Due Process: Reviewing Court Must Pay “Careful Attention” To The Instructional Language

A reviewing court must analyze how a reasonable juror might have interpreted the instruction and pay "careful attention to the words actually spoken to the jury," Sandstrom v. Montana, 442 U.S. 510, 514 (1979) (citation omitted); see also Francis v. Franklin, 471 U.S. 307, 322 (1985) ("Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity.").

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296.1 Standards Of Review On Appeal

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PG X(A) -Standards of Review

Seventh Circuit Concludes That "Sheer Quantity" Of Drugs Did Not Preclude Instruction On Simple Possession As Lesser Included Offense

In United States v. Pillado, 2011 U.S. App. LEXIS 18601, 12-17 (7th Cir. Ill. 9/7/2011, Nos. 10-1081, 10-1083, & 10-1202) the defendant was charged with possessing for sale approximately one ton of marijuana.  Due to the large amount of marijuana and the defendant’s denial that he personally used marijuana the district court concluded that no instruction on simple possession was warranted.  However, the Seventh Circuit reversed by rejecting the government’s premise that consumption or sale were the only two things the defendant could have done with the marijuana.  The record plainly suggested a third alternative: abandonment.  “The court should have considered whether evidence in the record would have permitted the jury to identify another plausible reason for possessing the drugs and thus to reject the government's allegation that he intended to distribute. We have no trouble concluding that Lara has pointed to such evidence here. Unlike in Hernandez, where the evidence of the larger conspiracy to distribute was undisputed, the jury acquitted Lara on the conspiracy count. Absent an agreement with others to distribute the marijuana, a jury would have to infer that Lara intended to distribute some or all of it to find him guilty of the greater offense. Though a jury could draw that inference, the facts do not require it. And unlike in Chrismon, the authorities did not recover paraphernalia of the drug trade in Lara's possession, nor does the prosecution assert more broadly that it has any other evidence suggestive of Lara's involvement in drug distribution. So while the sheer quantity of drugs could support the distribution inference,  a jury rationally could have concluded that Lara intended to abandon the marijuana after it was unloaded.”  Accordingly, the court's failure to instruct the jury on the charge of simple possession was prejudicial error.

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88.4 Drugs,Controlled Substances: Simple Possession    

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Conspiracy:Small Quantity Drug Sales Not Proof Of Predisposition

Possession OfControlled Substance With Intent To Deliver: Simple Possession As LesserIncluded Offense

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F 12.01n8  Possession For Sale:  Simple Possession As Lesser Included

F 2304 Simple Possession Of Controlled Substance(HS 11350, 11377)

Sample Instruction: Deliberate Ignorance (5th Circuit)

You may find that a defendant had knowledge of a fact if you find that the defendant deliberately closed his eyes to what would otherwise have been obvious to him. While knowledge on the part of a defendant cannot be established merely by demonstrating that a defendant was negligent, careless or foolish, knowledge can be inferred if the defendant deliberately blinded himself or herself to the existence of a fact.

[Source: Given and approved in United States v. Barrera, (5th Cir. Tex. 9/9/2011, No. 10-50693).]

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47.4 Deliberate Ignorance/Willful Blindness

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F 1.20a Willfully Defined: Knowledge Element

It Is Impossible To Know Exactly Why A Jury Found A Defendant Not Guilty

Because jurors do not need to be unanimous on each individual piece of evidence as long as they are unanimous on its verdict regarding each of the elements of the crime. Schad v. Arizona, 501 U.S. 624 at 631- 32, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991) ["In this case as in litigation generally, 'different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line. Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.'"] (quoting McKoy v. North Carolina, 494 U.S. 433, 449, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990) (Blackman, J., concurring)). Accordingly, "it is impossible to know exactly why a jury found a defendant not guilty on a certain charge . . . [T]he jury cannot be said to have 'necessarily rejected' any facts when it returns a general verdict of not guilty." United States v. Dozier, 162 F.3d 120, 125 (D.C. Cir. 1998) (citing United States v. Watts, 519 U.S. 148, 117 S. Ct. 633, 136 L. Ed. 2d 554 (1997)); see also United States v. Coughlin, 2011 U.S. Dist. LEXIS 71900, 32-50 (D.D.C. 7/6/2011, No. 08-334 (RCL)).


For example, in United States v. Watts, 519 U.S. 148, 117 S. Ct. 633, 136 L. Ed. 2d 554 (1997) (per curiam), authorities had videotaped two transactions in which a defendant named Putra and a codefendant sold cocaine to a government informant. Putra was convicted on one of two charged counts and acquitted on the other count. Id. at 634. At sentencing, however, the district court found by a preponderance of the evidence that Putra was involved in the crime for which he was acquitted. Id. at 635. The Court of Appeals vacated and remanded for resentencing. Id. It reasoned that the jury's verdict of acquittal "manifested explicit rejection" of Putra's involvement in the acquitted crime. Id. (citations and internal quotation marks omitted). The Supreme Court reversed this holding because the Court of Appeals misunderstood the preclusive effect of an acquittal, when it asserted that a jury "'rejects'" some facts when it returns a general verdict of not guilty.

Michigan’s “Minimalist” Definition Of Proof Beyond A Reasonable Doubt Does Not Violate The Federal Constitution

In Corrion v. Berghuis, (E.D. Mich. No. 09-10696, 7/7/2011)  the defense objected to an instruction which attempted to illustrate the nature of circumstantial evidence, which states: "[I]f you see a person come in from outside wearing a raincoat covered with small drops of water that would be circumstantial evidence that it is raining. You may consider circumstantial evidence. Circumstantial evidence by itself, or a combination of circumstantial evidence and direct evidence, can be used to prove the elements of a crime. In other words, you should consider all the evidence that you believe."  

The Michigan Court of Appeals rejected a challenge to this instruction because the trial court also defined the concepts of reasonable doubt and the burden of proof in constitutionally acceptable terms. Corrion, (Mich. Ct. App. 9/23/2008). The instructions defined reasonable doubt as “a fair honest doubt growing out of the evidence or the lack of evidence. It is not merely an imaginary doubt or a possible doubt, but a doubt based on reasonable and common sense. A reasonable doubt is just that. A doubt that is reasonable after a careful and considerate examination of the facts and circumstances of this case.”

The defendant renewed his claim in federal court which the district court rejected as follows:

“Michigan's pattern jury instruction given by the trial court in this case adopts a minimalist approach and does little to convey any meaning of the concept. However, since no definition is required by the Constitution, the instruction by itself does not lessen the State's burden, and the Sixth Circuit has found that it does not violate the Due Process Clause. See Binder v. Stegall, 198 F.3d 177, 179 (6th Cir. 1999). Moreover, there is no Supreme Court holding that a jury cannot convict solely on the basis of circumstantial evidence. The instruction explaining circumstantial evidence, when read together with the instruction on burden of proof and reasonable doubt, did not diminish the prosecutor's burden of proof.”

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Chapter 270: Burdens And Standards Of Proof

270.4.13 Whether Reasonable Doubt Should Be Defined

270.5.1 Defining Reasonable Doubt: Words And Phrases To Be Avoided

270.5.13 Chart: Survey Of 50 State’s Reasonable Doubt Definitions

270.7.1.3 Should A Definition Of "Beyond A Reasonable Doubt" Be Given?

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Reasonable Doubt

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PG X(C)(19) Erroneous Reasonable Doubt Instruction As Reversible Per Se

F 2.90 n1  Whether “Beyond Reasonable Doubt” Should Be Defined

F 2.90 n4  Alternative Definition Of Reasonable Doubt

F 2.90 n7  Error To Characterize Reasonable Doubt As “Doubt For Which Some Good Reason Can Be Given”

F 2.90 n8  Improper To Describe Proof Beyond A Reasonable Doubt In Terms Of “Every Day” Decisions

F 2.90 n12  Reversible Error For Failure To Define Proof Beyond A Reasonable Doubt

No Particular Definition Of Proof Beyond A Reasonable Doubt Is Constitutionally Mandated

It is beyond debate that the State must prove each element of a charged offense beyond a reasonable doubt in order to sustain a conviction. See In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed.This burden of proof has been referred to as "an ancient and honored aspect of our criminal justice system," Victor v. Nebraska, 511 U.S. 1, 5, 114 S. Ct. 1239, 127 L. Ed. 2d 583 (1994), and, notably, it "plays a vital role in the American scheme of criminal procedure. Among other things, it is a prime instrument for reducing the risk of convictions resting on factual error." Cage v. Louisiana, 498 U.S. 39, 40-41, 111 S. Ct. 328, 112 L. Ed. 2d 339 (1990) (per curiam) (internal quotations and citation omitted), overruled  on another ground by Estelle v. McGuire, 502 U.S. 72 n.4.  However, the Supreme Court has never prescribed specific language that is required to convey the notion of reasonable doubt, and some courts even have found that the term "reasonable doubt" is self-defining and urge trial courts to give no explanatory instruction. See, e.g., United States v. Walton, 207 F.3d 694, 696 (4th Cir. 2000) ["There is no constitutional requirement to define reasonable doubt to a jury."]; United States v. Thomas, 774 F.2d 807, 811-12 (7th Cir. 1985) ["We have repeatedly admonished district courts not to define 'reasonable doubt' . . . because often the definition engenders more confusion than does the term itself."] (quoting United States v. Martin-Trigona, 684 F.2d 485, 493 (7th Cir. 1982)).

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Chapter 270: Burdens And Standards Of Proof

270.4.13 Whether Reasonable Doubt Should Be Defined

270.5.1 Defining Reasonable Doubt: Words And Phrases To Be Avoided

270.5.13 Chart: Survey Of 50 State’s Reasonable Doubt Definitions

270.7.1.3 Should A Definition Of "Beyond A Reasonable Doubt" Be Given?

The Shellow Instructions

Reasonable Doubt

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PG X(C)(19) Erroneous Reasonable Doubt Instruction As Reversible Per Se

F 2.90 n1  Whether “Beyond Reasonable Doubt” Should Be Defined

F 2.90 n4  Alternative Definition Of Reasonable Doubt

F 2.90 n7  Error To Characterize Reasonable Doubt As “Doubt For Which Some Good Reason Can Be Given”

F 2.90 n8  Improper To Describe Proof Beyond A Reasonable Doubt In Terms Of “Every Day” Decisions

F 2.90 n12  Reversible Error For Failure To Define Proof Beyond A Reasonable Doubt

Nevada’s Depravity of Mind Aggravating Circumstance Held Unconstitutionally Vague (9th Circuit)

In Rogers v. McDaniel, 2011 U.S. Dist. LEXIS 74029, 94-123 (D. Nev. 7/8/2011, No. 3:02-cv-0342-ECR-RAM) The defense contended that "the trial court's instruction on . . . the aggravating circumstance that the murder involved torture, depravity of mind, and mutilation, was unconstitutionally vague. . . ."

In the penalty phase of the trial, the jury instruction regarding depravity of mind provided as follows:

The condition of mind described as depravity of mind is characterized by an inherent deficiency of moral sense and rectitude. It consists of evil, corrupt and perverted intent which is devoid of regard for human dignity and which is indifferent to human life. It is a state of mind outrageously, wantonly vile, horrible or inhuman.

The defense requested the following jury instruction, but it was not given: "The words depravity of mind as used here mean a degree of moral turpitude and psychical debasement surpassing that inherent in the definition of ordinary legal malice and premeditation."

In Rogers the 9th Circuit held that the instruction was unconstitutional under Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980).  In Godfrey, the Supreme Court held unconstitutional an aggravating-circumstances jury instruction that permitted the jury to impose the death penalty if it found the murder "'was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.'" Godfrey, 446 U.S. 420, 428-29, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (quoting state statute). The Supreme Court explained that the instruction resulted in "standardless and unchanneled imposition of death sentences in the uncontrolled discretion of a basically uninstructed jury." Id. at 429; see also Maynard v. Cartwright, 486 U.S. 356, 363-64, 108 S. Ct. 1853, 100 L. Ed. 2d 372 (1988) [holding unconstitutionally vague, under the reasoning of Godfrey, an aggravating-circumstances instruction directing jurors to determine whether the murder was "especially heinous, atrocious, and cruel"].

Accordingly, under Godfrey, the instruction given in Rogers was unconstitutionally vague. See Valerio v. Crawford, 306 F.3d 742, 747 (9th Cir.2002) (en banc), cert. denied, 538 U.S. 994, 123 S. Ct. 1788, 155 L. Ed. 2d 695 (2003) [holding the same Nevada aggravating circumstance unconstitutionally vague, under Godfrey]; Deutscher v. Whitley, 884 F.2d 1152, 1162 (9th Cir.1989), vacated on other grounds sub nom. Angelone v. Deutscher, 500 U.S. 901, 111 S. Ct. 1678, 114 L. Ed. 2d 73 (1991) [same]; see also McKenna v. McDaniel, 65 F.3d 1483, 1487-90 (9th Cir.1985) [holding a similar Nevada aggravating circumstance unconstitutionally vague, under Godfrey].

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302.5.1 "Depravity Of Mind" As Unconstitutional Death Qualification

“Mere Presence” Defense Opens Door To Other Act Evidence (2nd Circuit)

The assertion of a "mere presence" defense opens the door to uncharged act evidence because such a defense makes the defendant's knowledge and intent central issues in the case. See, e.g., United States v. Gadsden, 300 F. App'x 108, 110 (2d Cir. 2008) ["Testimony about prior drug sales may be used to establish 'knowledge' and 'intent' where the defendant repeatedly raises a 'mere presence' defense, as that defense fails to make a "statement to the court of sufficient clarity to indicate that the issue[s] [of knowledge or intent] will not be disputed."] (quoting United States v. Colon, 880 F.2d 650, 659 (2d Cir. 1989)); United States v. Aminy, 15 F.3d 258, 260 (2d Cir. 1994) ["Where, for example, the defendant does not deny that he was present during a narcotics transaction but simply denies wrongdoing, evidence of other arguably similar narcotics involvement may, in appropriate circumstances, be admitted to show knowledge or intent."]; United States v. Bruno, 873 F.2d 555, 561-62 (2d Cir. 1989) ["The government was entitled to prove Bruno's intent pursuant to FRE 404(b) because he had placed his intent in issue by claiming that he was 'merely present' during the drug transaction."].

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56.2.12 Possession: Mere Presence Or Knowledge Not Sufficient

64.2 Accomplice Liability: Mere Presence Insufficient

83.3.6.12 Conspiracy: Mere Presence Insufficient To Prove Membership

251.6 Mere Presence, Knowledge, Association, Etc.

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Knowledge And Presence Insufficient

Mere Ownership Of Property Does Not Establish Possession

Mere Proximity Or Accessibility To Controlled Substance Is Not Possession

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F 3.01i Mere Presence Which Assists Commission Of The Crime Is Not Aiding And Abetting

F 3.01l Jury Required To Find More Than Mere Presence

F 3306 Possession Based Offenses—Defense Theories

Danger Of Supplemental Instruction When Jurors Disagree About A Factual Issue (D.C. Circuit)

In United States v. Ayeni, 374 F.3d 1313 (D.C. Cir. 2004) the defendant was charged with conspiracy to defraud through the taking of vouchers meant to compensate trial witnesses. 374 F.3d at 1313-14. Ayeni's first trial ended in a hung jury mistrial. After a few hours of deliberation in his second trial, the jury announced it was "hopelessly deadlocked." Id. at 1314. After refusing to enter a mistrial, the district court invited the jury to identify its areas of disagreement. The jury responded, naming three areas of concern. The district court answered the first by informing the jury that there was no lesser included offense to the one charged. With respect to other areas identified by the jury – why a handwriting expert was not called and whether both sides agreed Ayeni's signatures on the vouchers were authentic – counsel were given ten minutes of supplemental argument to the jury. After a few additional hours of deliberation, the jury returned a guilty verdict on all counts. Id. at 1315.

The D.C. Circuit reversed holding that the district courterroneously allowed the lawyers to hear the jury's concerns and then, as if they were sitting in the jury room themselves, fashion responses targeted precisely to those concerns. Id. at 1316.

Noting that supplemental arguement was "almost unheard of" in the judiciary, the D.C. Circuit strongly discouraged its use where the reason for the jury's inability to agree is based on a factual matter, rather than confusion about a legal standard. Id. at 1317 [noting the parties had cited only a single case in which supplemental arguments were used].

Similarly, in  United States v. Evanston, (7/5/2011, 9th Cir. Ariz., No. 10-10159) the 9th Circuit noted that no reported federal court decision has sanctioned the use of supplemental argument on factual questions in a criminal  trial.Thus, the judge's responsibility to clarify motions for the jury is limited to answering legal, not factual questions. See Ibid; see also Arizona v. Johnson, 351 F.3d 988, 994 (9th Cir. 2003) ["[W]hile a trial court 'must respond to questions concerning important legal issues,' it 'must be careful not to invade the jury's province as fact-finder[.]'" (quoting United States v. Nunez, 889 F.2d 1564, 1569 (6th Cir. 1989))); see also Quercia v. United States, 289 U.S. 466, 469-72 (1933) [concluding that, where trial court made a "definite and concrete assertion of fact . . . likely to remain lodged in the memory of the jury," assessing evidence in a manner resembling fact-finding, it overstepped the bounds of its duty as "governor of the trial for the purpose of assuring its proper conduct and of determining questions of law"]. Cf. Williams v. Cavazos, 2011 U.S. App. LEXIS 10345, at *45 (9th Cir. 5/23/ 2011) ["The jury is the only actor permitted to determine guilt—not the judge."].

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Chapter 285: Supplemental Instructions

Chapter 286: Deadlock

286.1 General Rules And Miscellaneous Issues

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PG IX(A) - Supplemental Jury Instructions: Right to Counsel

PG IX(B) - Record of Supplemental Instructions

PG IX(C) - General Rules for Framing Supplemental Instructions

PG IX(D) - Response to Jury Inquiry

PG IX(E) - Appellate Review of Supplemental Instructions