UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

v.

FRANCISCO ARMANDO MARTINEZ, 

 Defendant - Appellant.

No. 21-2100

(D.C. No. 2:18-CR-02315-KG-1)

(D. N.M.)

_________________________________

ORDER AND JUDGMENT*

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Before HARTZ, KELLY, and HOLMES, Circuit Judges.

_________________________________

Francisco Armando Martinez appeals from his conviction for transporting 

illegal aliens, arguing that the district court incorrectly instructed the jury. 

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

BACKGROUND

According to the testimony at trial, in April 2018, a group of noncitizens, with 

a guide, crossed the border illegally and walked miles into the United States. When 

* After examining the briefs and appellate record, this panel has determined 

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

submitted without oral argument. This order and judgment is not binding precedent, 

except under the doctrines of law of the case, res judicata, and collateral estoppel. It 

may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1

and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

August 15, 2022

Christopher M. Wolpert

Clerk of Court

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they reached New Mexico Highway 9, the guide told them that cars would come to 

pick them up. The group waited, hiding behind the berm beside the road, for more 

than two days. Then Mr. Martinez pulled up in a Chevrolet Monte Carlo, a two-door 

sedan. The guide said that the noncitizens should get ready to leave, stating, “[l]ook, 

your ride’s here.” R. at 125 (internal quotation marks omitted). The noncitizens

emerged from hiding and crossed over a barbed-wire fence. While they were 

approaching, Mr. Martinez opened the door and told them in Spanish something to 

the effect of, “[g]et in, be quiet, . . . and we’ll go.” Id. at 128 (internal quotation 

marks omitted). The car held five noncitizens, one in the front passenger seat and 

four in the rear seat. 

Rather than asking his passengers where they wanted to go, Mr. Martinez told 

them they were going to meet another car in Phoenix. He turned north on 

New Mexico Highway 113, a twenty-mile, two-lane road connecting Highway 9 and 

Interstate 10. About halfway along Highway 113, the car crossed paths with a 

marked Border Patrol truck driving south. Mr. Martinez told his passengers, again in 

Spanish, “[d]on’t worry, don’t be afraid, nothing’s going to happen.” Id. at 130 

(internal quotation marks omitted).

Seeing that Mr. Martinez’s car was unusually crowded, the Border Patrol 

agents made a U-turn and started following it north. They kept the car in sight while 

Mr. Martinez was on Highway 113 and then while he drove west on Interstate 10 for 

about ten miles until he stopped at a gas station with a convenience store. 

Mr. Martinez parked at a gas pump, told his passengers to wait in the car while he got 

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some gas, and walked a few steps toward the store. He turned back when the Border 

Patrol agents pulled in behind his car. 

One agent asked Mr. Martinez if he was a United States citizen, and he 

responded affirmatively. The agent then asked if the passengers were Mr. Martinez’s 

family. He said, “no, that he didn’t know them,” id. at 233, that “he was just giving 

them a ride, “ id. at 235, and “that they flagged him down,” id. at 242. The other 

agent asked Mr. Martinez if he could speak to the passengers, so Mr. Martinez 

opened his door and rolled down the passenger-side window. After the agent 

ascertained that the passengers were noncitizens, without papers to be in the United 

States legally, the agents arrested Mr. Martinez and the passengers.

The government charged Mr. Martinez with one count of conspiracy to 

transport illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I), and one count 

of transporting illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), 

(a)(1)(B)(ii), and (a)(1)(A)(v)(II). Mr. Martinez went to trial before a jury. As 

relevant to this appeal, he requested that the district court give certain jury 

instructions regarding the burden of proof and inferences from circumstantial 

evidence. But the court refused the requested instructions. 

The jury found Mr. Martinez guilty of transporting illegal aliens but not guilty 

of conspiracy. The district court sentenced him to the lesser of 24 days of 

imprisonment or time served and one year of supervised release. Mr. Martinez now 

appeals.

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DISCUSSION

Mr. Martinez challenges the district court’s refusal to give his requested 

instructions regarding the burden of proof and inferences to be drawn from 

circumstantial evidence. “We review the District Court’s refusal to give requested 

instructions for abuse of discretion.” United States v. Moran, 503 F.3d 1135, 1146 

(10th Cir. 2007). “To assess whether the court properly exercised its discretion, we 

review the jury instructions de novo to determine whether, as a whole, they 

accurately state the governing law and provide the jury with an accurate 

understanding of the relevant legal standards and factual issues in the case.” Id.

(internal quotation marks omitted). “We reverse only if prejudice results from a 

court’s refusal to give a requested instruction.” United States v. Faust, 795 F.3d 

1243, 1251 (10th Cir. 2015) (internal quotation marks omitted).

I. Burden of Proof

First, Mr. Martinez challenges Instruction 2, regarding the burden of proof. 

He argues that the district court erred in declining to define “reasonable doubt” as 

“the ‘kind of doubt that would make a person hesitate to act.’” Aplt. Opening Br. 

at 8 (quoting Holland v. United States, 348 U.S. 121, 140 (1954)).

“[T]he 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 reasonable doubt, the Constitution does not 

require that any particular form of words be used in advising the jury of the 

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government’s burden of proof.” Id. (citation omitted); see also United States v. 

Clifton, 406 F.3d 1173, 1177 (10th Cir. 2005) (“A district court . . . retains 

considerable latitude in instructing juries on reasonable doubt, and fulfills its 

constitutional duty if the charge as a whole correctly conveys the concept of 

reasonable doubt.” (brackets, citation, and internal quotation marks omitted)). 

Here, the district court did not abuse its discretion in rejecting Mr. Martinez’s 

requested instruction. Instruction 2 stated: 

The United States 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. A defendant has an absolute 

right not to testify and may not be compelled to testify. No inference of 

any kind should be drawn from the election of a defendant not to testify, 

and that fact should not be considered by you in any way or even discussed 

in your deliberation. The United States 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 United States’ 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 crime 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.

R. at 43. The instruction both adequately directed the jury that it was required to 

apply the reasonable-doubt standard and adequately defined the concept of 

reasonable doubt. 

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In reviewing an instruction containing similar language, we stated, “[t]he 

court’s instruction correctly described the persuasion by which the prosecution must 

convince the trier of all the essential elements of guilt.” Clifton, 406 F.3d at 1178

(internal quotation marks omitted). We further stated, “the instruction correctly 

explained that the Government need not prove Defendant’s guilt beyond all possible 

doubt,” and that it “then, again correctly, defined reasonable doubt as a doubt based 

upon reason and common sense after careful and impartial consideration of all the 

evidence in the case.” Id. (internal quotation marks omitted). “The district court’s 

instruction, therefore, correctly conveyed the concept of reasonable doubt to the 

jury.” Id. (internal quotation marks omitted). The same is true here. 

Further, in United States v. Petty, we held that “the ‘firmly convinced’

language, juxtaposed with the insistence that a jury must acquit in the presence of ‘a 

real possibility’ that the defendant is not guilty, is a correct and comprehensible 

statement of the reasonable doubt standard.” 856 F.3d 1306, 1310 (10th Cir. 2017)

(internal quotation marks omitted). And in United States v. Barrera-Gonzales, we 

upheld a reasonable-doubt instruction that did not include the “hesitate to act”

formulation. 952 F.2d 1269, 1270-73 (10th Cir. 1992). 

Because Instruction 2 adequately instructed the jury regarding reasonable 

doubt, the district court did not abuse its discretion in declining to give 

Mr. Martinez’s requested burden of proof instruction.

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II. Inferences from Circumstantial Evidence

Mr. Martinez also challenges Instruction 9, which discussed direct and 

circumstantial evidence and the inferences to be drawn from the evidence.

In his opening brief, Mr. Martinez argues that the Supreme Court has 

“endorsed the view that when the government’s case rests on circumstantial evidence, 

that evidence ‘must be such as to exclude every reasonable hypothesis other than that 

of guilt.’” Aplt. Opening Br. at 8 (quoting Holland, 348 U.S. at 139). He therefore 

asserts that “the district court was required to instruct the jury sufficiently to instill in 

their minds that a guilty verdict can be rendered only if there are no reasonable 

alternative explanations for the conduct.” Id. at 9. In his reply brief, however, he 

disclaims any intent to argue “that the district court was required to give an 

instruction that circumstantial evidence must be such as to exclude every reasonable 

hypothesis other than guilt.” Aplt. Reply Br. at 4. And understandably so, as 

Holland rejected that proposition. See Holland, 348 U.S. at 139-40 (“[T]he better 

rule is that where the jury is properly instructed on the standards for reasonable 

doubt, such an additional instruction on circumstantial evidence is confusing and 

incorrect.”). Instead, he clarifies that “he contends that in light of the Court’s refusal 

to give the preferred reasonable-doubt language, the Supreme Court’s precedent 

suggests that additional instruction on circumstantial evidence is warranted and 

indeed necessary.” Aplt. Reply Br. at 4-5. He faults the district court for not 

including in Instruction 9 a directive to avoid speculation and a reference to the 

reasonable-doubt standard.

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Mr. Martinez asserts that “[t]he jury should have been instructed, as [he] 

requested, that the jury’s inferences must be more than speculation and conjecture—

that they instead must flow from logical and probabilistic reasoning.” Aplt. Opening 

Br. at 9. But Instruction 9 adequately conveyed these concepts to the jury. It 

instructed that “you are permitted to draw reasonable inferences from the testimony 

and exhibits, inferences you feel are justified in the light of common experience.” 

R. at 52. It continued, “[a]n inference is a conclusion that reason and common sense 

may lead you to draw from facts which have been proved.” Id. And then it reiterated 

that inferences must be reasonable and the jury must reach conclusions based on 

“reason and common sense.” Id. These instructions sufficiently indicated to the jury 

that it should not employ speculation. See United States v. Flonnory, 630 F.3d 1280, 

1285 (10th Cir. 2011) (holding that a speculation instruction was unnecessary where 

the jury was instructed it must view the evidence reasonably). 

Further, Mr. Martinez asserts that Instruction 9 should have referred to the 

reasonable-doubt standard. But in more than one-third of the instructions (eight out 

of a total of twenty-one instructions), the district court referred to the 

reasonable-doubt standard. One of those references came at the beginning of 

Instruction 10, immediately following Instruction 9. Because the instructions as a 

whole adequately conveyed the requirement that the government satisfy the 

reasonable-doubt standard, Mr. Martinez has not demonstrated the district court erred 

in declining to include another reference to reasonable doubt in Instruction 9. See id.

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(“It is not error to refuse to give a requested instruction if the same subject matter is 

adequately covered in the general instructions.” (internal quotation marks omitted)). 

For these reasons, the district court did not abuse its discretion in declining to 

give Mr. Martinez’s requested inferences instruction.

CONCLUSION

We affirm the district court’s judgment.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

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