FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLORADO (D.C. No. 1:15-CR-00029-PAB-1)
K. Johnson, Johnson, Brennan & Klein, PLLC, Boulder,
Colorado, for Defendant-Appellant.
Bishop Grewell, Assistant United States Attorney (Robert C.
Troyer, Acting United States Attorney, with him on the
brief), Denver, Colorado, for Plaintiff-Appellee.
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
HARTZ, BALDOCK, and HOLMES, Circuit Judges.
BALDOCK, Circuit Judge.
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
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.
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
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 ...