**The Standard of Appellate Review for Jury Instructions Generally**

(current through December 31, 2007)

Generally, jury instructions are reviewed as a whole to determine
whether they fairly and adequately submit the issues and applicable law
to the jury. United States v. Williams, 952 F.2d 1504, 1512 (6th Cir.
1991). The district court's choice of jury instructions is reviewed
according to an abuse of discretion standard. United States v. Beaty,
245 F.3d 617, 621-22 (6th Cir. 2001), *citing* United States v. Prince,
214 F.3d 740, 761 (6th Cir. 2000). If the parties request particular
language, "it is not error to fail to use the language requested by the
parties if the instruction as given is accurate and sufficient."
*Williams*, 952 F.2d at 1512, *quoting* United States v. Horton, 847
F.2d 313, 322 (6th Cir. 1988).

When a district court refuses to give a requested instruction, the Sixth
Circuit holds that it is "reversible only if that instruction is (1) a
correct statement of the law, (2) not substantially covered by the
charge actually delivered to the jury, and (3) concerns a point so
important in the trial that the failure to give it substantially impairs
the defendant's defense." *Williams*, 952 F.2d at 1512, *citing* United
States v. Parrish, 736 F.2d 152, 156 (5th Cir. 1984). *See also* United
States v. Sassak, 881 F.2d 276, 279 (6th Cir. 1989), *citing Parrish*,
736 F.2d at 156.

When a defendant fails to object to a jury instruction at trial, the
appellate court reviews only for plain error. Federal Rule of Criminal
Procedure 52(b); United States v. Olano, 507 U.S. 725, 732 (1993).
"\[B\]efore an appellate court can correct an error not raised at trial,
there must be (1) 'error,' (2) that is 'plain,' and (3) that
'affect\[s\] substantial rights.'" Johnson v. United States, 520 U.S.
461, 466-67 (1997), *quoting Olano*, 507 U.S. at 732. "If all three
conditions are met, an appellate court may then exercise its discretion
to notice a forfeited error, but only if (4) the error 'seriously
affect\[s\] the fairness, integrity or public reputation of judicial
proceedings.'" *Johnson,* 520 U.S. at 467, *quoting Olano*, 507 U.S. at
732. In *Olano*, the Supreme Court discussed but did not adopt the
miscarriage of justice standard, noting that the miscarriage of justice
standard in the collateral review jurisprudence of the Supreme Court
meant actual innocence and that it had never held that the Rule 52(b)
remedy was limited to cases of actual innocence. *Olano,* 507 U.S. at
736; *see also* United States v. Thomas, 11 F.3d 620, 630 (6th Cir.
1993)("While the Court \[in *Olano*\] referred to the 'miscarriage of
justice standard,' it remarked that it had never held a Rule 52(b)
remedy was warranted only in cases of actual innocence."). Although the
Court did not adopt the miscarriage of justice standard, the Sixth
Circuit has occasionally cited this standard. *See, e.g.*, United States
v. King, 169 F.3d 1035, 1040 (6th Cir. 1999)("An instruction is not
plainly erroneous unless there was an egregious error, one that directly
leads to a miscarriage of justice."); United States v. Wilkinson, 26
F.3d 623, 625 (6th Cir. 1994).

In reviewing the substance of given instructions for plain error, the
Sixth Circuit held that, "In determining the adequacy of a jury
instruction, 'the instruction must be viewed in its entirety, and a
misstatement in one part of the charge does not require reversal if
elsewhere in the instruction the correct information is conveyed to the
jury in a clear and concise manner\....'" United States v. Nelson, 27
F.3d 199, 202 (6th Cir. 1994), *quoting* United States v. Pope, 561 F.2d
663, 670 (6th Cir. 1977).

In reviewing the omission of an instruction for plain error, the court
has stated that "'\[A\]n omitted or incomplete instruction is even less
likely to justify reversal, since such an instruction is not as
prejudicial as a misstatement of the law.'" United States v. Sanderson,
966 F.3d 184, 187 (6th Cir.1992), *quoting* United States v. Hook, 781
F.2d 1166, 1172-73 (6th Cir. 1986).

The standard for review of jury instructions may be affected if the
defendant jointly submitted the instruction or stipulated to it. In
United States v. Sharpe, 996 F.2d 125 (6th Cir. 1993), the defendant and
the government jointly submitted an instruction that the defendant
sought to challenge on appeal. The court declined to review the
instruction, citing the fact that the defendant did not object to the
instructions and in fact jointly submitted them. *Id.* at 128-29,
*citing* United States v. Young, 745 F.2d 733, 752 (2d Cir. 1984) and
United States v. Thurman, 417 F.2d 752, 753 (D.C. Cir. 1959). In United
States v. Barrow, 118 F.3d 482 (6th Cir. 1997), the defendant stipulated
to an instruction that he sought to challenge on appeal. The court
recounted the *Sharpe* holding but concluded that the invited error
doctrine did not foreclose relief when the interests of justice demand
otherwise. *Id.* at 491. The analysis of the interests of justice is
left to the appellate court's discretion. Here, the court decided that
the interests of justice supported review of the defendant's challenge
to the instructions for two reasons: the government was as much at fault
as the defendant for the stipulated instruction, and the defendant was
claiming not just that the instruction was wrong but that it deprived
him of his constitutional rights. *Id.* The court cited this latter
factor as the distinction between this case and the *Sharpe* case. After
concluding that review was warranted, the court stated that, "This does
not mean however, that the fact that the parties stipulated to the
instruction will not play a role in our analysis of some of defendant's
claims." *Id.* The court decided to treat the stipulated instructions
the same as it would treat instructions that were not objected to, by
applying the plain-error standard. *Id.*

Finally, in reviewing denial of a collateral attack under 28 U.S.C. §
2255, the Sixth Circuit held that "to obtain post-conviction relief for
an erroneous jury instruction to which no objection was made at trial, a
defendant must show both cause excusing his procedural default and
actual prejudice from the alleged error." United States v. Rattigan, 151
F.3d 551, 554 (6th Cir. 1998).