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United States v. Petty

United States Court of Appeals, Tenth Circuit

May 22, 2017

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
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 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 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 ...


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