PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5315

RANDALL DWAYNE MUSE,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

John R. Hargrove, Senior District Judge.

(CR-94-311-MJG)

Argued: March 8, 1996

Decided: May 13, 1996

Before MURNAGHAN and MOTZ, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by published opinion. Judge Motz wrote the opinion, in

which Judge Murnaghan and Senior Judge Butzner joined.

_________________________________________________________________

COUNSEL

ARGUED: Robert Leon Pierson, Baltimore, Maryland, for Appellant. Peter M. Semel, Assistant United States Attorney, Baltimore,

Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia, United

States Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________
OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

After a jury trial, appellant Randall Dwayne Muse was convicted

of violating 18 U.S.C. § 922(g), which criminalizes a convicted

felon's possession of a firearm. Muse appeals, asserting that the district court erred in (1) failing to redress adequately a government discovery violation; (2) removing from the jury's consideration a critical

factor in evaluating witness credibility; and (3) improperly instructing

the jurors with regard to the effect that factual stipulations should

have on their deliberations. Finding no reversible error, we affirm.

I.

This case arose from a Baltimore City police investigation into

allegations that Samuel Lee McKay was involved in passing forged

checks. Pursuant to a warrant, on February 22, 1994, police searched

McKay's residence. During this search, police discovered and seized

a .22 caliber semi-automatic handgun that its owner had reported as

stolen.

When questioned about the weapon, McKay responded that he had

bought it from a man he knew only as "Top." McKay stated that he

had met Top through Remus Burnett, an intermediary who purportedly assisted Top in locating buyers for weapons. After federal

authorities became aware of McKay's statements, an investigation

commenced with regard to the weapon transactions. A special agent

with the Bureau of Alcohol, Tobacco, and Firearms questioned Burnett, who acknowledged that he had been involved in the weapon sale

to McKay and that Top had been the weapon supplier. Burnett stated

that he had known Top for twenty years, that he had recently seen

numerous guns in Top's possession, and that Top's real name was

Randall Dwayne Muse.

Because Muse had been previously convicted of a crime punishable by imprisonment for a term of more than one year, 18 U.S.C.

§ 922(g)(1) prohibited his possession of a firearm. Therefore, on

August 2, 1994, Federal agents obtained a warrant and arrested Muse

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at his home. At the time, Muse gave a statement in which he said that

he had found a number of weapons in an abandoned duffel bag and

that he had given them to Burnett to sell. Armed with this statement

and the testimony of McKay and Burnett, the government charged

Muse with possessing a firearm in violation of § 922(g)(1).

Muse's trial was scheduled for February, 1995. Although the government did not specifically promise McKay or Burnett lenient treatment with respect to potential criminal charges against them, both

agreed to testify against Muse. Prior to their testimony, in late

December, 1994, or early January, 1995, Burnett received an envelope containing a card that stated, "Never rat on friends, boy. Stay

healthy." Fingerprints taken from the envelope were identified as

belonging to Muse. After a four-day trial in February, a jury found

Muse guilty of the charge against him.

II.

Muse's first contention in this appeal involves the government's

conceded violation of Rule 16(a)(1)(C) of the Federal Rules of Criminal Procedure. Twice prior to trial, defense counsel inquired of the

government whether any witnesses scheduled to testify had identified

Muse in photographic arrays. The prosecutor responded that no such

arrays had taken place. During the prosecutor's direct examination of

McKay and Burnett, both made in-court identifications of Muse as the

man they knew as "Top." Neither made any reference to a photographic array.

On cross-examination, however, when defense counsel asked

McKay whether agents had presented him with a photographic array,

McKay replied that agents had shown him an array and that he had

identified a picture of Muse as the man whom he knew as "Top." During the ensuing bench conference, defense counsel complained that

the government had violated Rule 16(a)(1)(C) by falsely stating that

McKay had not identified Muse from a photographic array. The prosecutor responded that he had no idea why McKay claimed to have

identified Muse's picture because, to his knowledge, no one had

shown McKay any photographs. After further investigation, however,

the prosecutor found that an agent had indeed shown McKay a photographic array. The agent had neglected to inform the prosecutor

 3
because, the agent said, he had shown McKay the array in connection

with a separate investigation and had failed to perceive its importance

to Muse's trial.

The next day, Muse moved for a mistrial or, in the alternative, to

suppress McKay's in-court identification. Muse also asked the district

court for a hearing outside the jury's presence to investigate the circumstances of the photographic identification. The district court

denied the motion for a mistrial and refused to conduct a hearing outside the jury's presence. Instead, the court offered to permit Muse to

recall McKay to the stand to inquire into the circumstances of the outof-court identification. Citing the potential prejudice involved in

questioning McKay in front of the jury, Muse's counsel declined the

court's offer. Defense counsel did question the federal agents as to

why they had failed to inform the prosecutor about the out-of-court

identification. Additionally, defense counsel was permitted, during

closing argument, to ask the jury to draw "inferences" from the government's failure to disclose that agents had presented McKay with

the photographic array.

On appeal, Muse contends that the district court's offer to allow

him to question McKay in front of the jury was insufficient to redress

the prejudice caused by the government's discovery violation. The

government concedes that its failure to disclose McKay's identification violated Rule 16(a)(1)(C), but asserts that the district court did

not err in refusing Muse's request for a hearing outside of the jury's

presence.

The Federal Rules of Criminal Procedure provide a district court

with discretion in determining the proper remedy for a discovery violation. Fed. R. Crim. P. 16(d)(2). Accordingly, a trial court's decision

as to the appropriate remedy may only be reversed for abuse of discretion. See United States v. Ford, 986 F.2d 57, 59 (4th Cir. 1993).

Conducting a hearing outside the presence of the jury to "determine

the admissibility of identification evidence" has long been recognized

as the "prudent" course. See Watkins v. Sowders, 449 U.S. 341, 345

(1981) (collecting cases). But the Supreme Court has expressly held

that, because cross-examination before the jury is generally sufficient

to determine the trustworthiness of identification evidence, the due

 4
process clause of the Fourteenth Amendment does not invariably

require a judicial determination of this issue outside the presence of

the jury. Id. at 349. The Watkins holding applies equally to a Fifth

Amendment due process claim. See United States v. Mills, 704 F.2d

1553, 1563 (11th Cir. 1983), cert. denied, 467 U.S. 1243 (1984).

Muse does not argue to the contrary. Nor does he assert another constitutional basis for his claim. Rather, relying on language in Watkins,

Muse maintains that refusal to grant a hearing outside of the presence

of the jury violated his due process rights.

In Watkins, the Supreme Court did leave open the possibility that,

"[i]n some circumstances . . . such a determination [outside the jury's

presence] may be constitutionally necessary." 449 U.S. at 349. But

Muse has failed to demonstrate any "circumstances" that would constitutionally require such a hearing in this case, or that would even

establish that the trial court's refusal to grant such a hearing was an

abuse of discretion. It is true that here, in contrast to the two cases

consolidated in Watkins, because of the government's violation of

Rule 16(a)(1)(C), the defense did not learn of the out-of-court identification until it was revealed during McKay's cross-examination. Significantly, however, Muse conceded that the prosecutor did not

knowingly withhold McKay's out-of-court photographic identification; thus, there is no claim of prosecutorial misconduct that might

require a special hearing by the court. See United States v. JoyaMartinez, 947 F.2d 1141, 1145 (4th Cir. 1991). Moreover, in view of

the fact that McKay and Burnett had already identified Muse in-court,

any prejudice that may have arisen from the defense counsel's

unknowing introduction of the out-of-court identification was insignificant and does not qualify as a circumstance that constitutionally

required a hearing outside the jury's presence. Cf. United States v.

Mills, 704 F.2d 1553, 1565 (11th Cir. 1983) (to require a hearing outside the jury's presence, circumstances must be"unusual" or "particularly prejudicial").

For similar reasons, the court below did not abuse its discretion in

refusing to grant such a hearing. McKay's out-of-court identification

of Muse was simply not significant in this case. When McKay identified Muse in court, McKay explained that, in addition to observing

Muse during the sale of the gun, he had met Muse"three to four

months before any of this stuff [the weapons transactions] took

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place." McKay also testified that he had met Muse through Burnett,

who, when he identified Muse in-court, stated that he had known

Muse well for twenty years. As a result, the main thrust of Muse's

defense at trial was not that McKay and Burnett had identified the

wrong man, but that their entire testimony was fabricated. Accordingly, McKay's identification of Muse was not a central issue in the

case and the district court's refusal to convene a hearing outside the

jury's presence does not require reversal. Cf. United States v.

Davenport, 753 F.2d 1460, 1462 (9th Cir. 1985) (finding no abuse of

discretion under similar circumstances in which a prosecutor had mistakenly informed defense counsel that no out-of-court identification

had taken place).

In sum, the district court's refusal to permit an inquiry as to

McKay's out-of-court identification of Muse outside the jury's presence neither violated the constitution nor constituted an abuse of discretion.

III.

Muse next maintains that the district court committed reversible

error when it instructed the jurors that "punishment of others" was not

their concern. He claims that the instruction removed from the jury's

consideration his main defense argument -- that McKay and Burnett

were lying in the hope of receiving lenient treatment from the government.

Muse concedes that the trial court afforded him broad latitude in

cross-examining McKay and Burnett as to their motives for testifying.

In addition, defense counsel was permitted, during closing argument,

to remark repeatedly on the witnesses' motive and bias against his client and in favor of the government. Muse's attorney urged the jury

to take the witnesses' desire to avoid prosecution into account in

assessing their credibility. Defense counsel then went further -- suggesting that it was unfair that only his client, Muse, was put on trial,

while McKay and Burnett were given a "free ride."

When instructing the jury, the district court gave a lengthy and typical instruction on the factors the jury should consider in assessing

witness credibility. The court instructed the jury to consider the wit-

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nesses' "motives," "bias[ ] or prejudice[ ] for or against either side"

and whether "bias or prejudice has colored the testimony of the witness so as to affect the desire and capability of that witness to tell the

truth." This instruction was given in the context of the weight the jury

should place on witness testimony in determining whether the government had carried its burden of proving Muse's guilt beyond a reasonable doubt.

Later in the instructions, the district court noted several matters that

the jury was not to consider in making its decision. For example, the

court instructed the jury not to consider evidence that the defendant

may have committed crimes other than the crime charged. Additionally, the court instructed the jury not to consider the defendant's possible punishment, but only to consider whether the evidence proved

his guilt beyond a reasonable doubt. In this context, the district court

also noted that the jury should not consider the"lack of punishment

as to others."

Defense counsel objected to the instruction, arguing that "lack of

punishment is an issue [because] the witnesses think that they are getting away with something." The district court overruled the objection,

and the following colloquy ensued:

THE COURT: There is nothing that permits an attorney

to argue a lack of punishment on a person not charged. . . .

You know what the problem with your argument was? It is

unfair. . . . You were saying its not fair to punish him and

not them. So, I have to tell the jury that that is not the law.

The law says you deal with him and not with somebody

else. That was your argument, if you recall, and that was not

fair. If you had stuck with your argument that they had a

sweetheart deal, which is a standard argument --

[DEFENSE COUNSEL]: I understand, judge.

THE COURT: But you went on further to say it wasn't

fair, which dealt strictly with punishment, and I thought I

should state to the jury that punishment is strictly-- you

can't deal with the lack of punishment on somebody else.

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On appeal, Muse renews his objection to the district court's instruction on the theory that it foreclosed the jury from considering whether

McKay and Burnett were lying to avoid punishment.

The fundamental problem with this argument is that it ignores the

context in which the district court used the language to which Muse

objects. Jury instructions must be viewed in their entirety and in context. See Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). Here the

district court initially gave a full and proper instruction with regard

to the factors involved in assessing witness credibility. It was only in

response to defense counsel's closing argument that it was unfair for

Muse to stand trial while the others were given a free ride, that the

court instructed the jurors that such an extraneous consideration was

not their concern. Cf. United States v. Pena, 930 F.2d 1486, 1491

(10th Cir. 1991) (unless statutorily mandated, the jury's role is to

determine guilt or innocence, not punishment). This was within the

court's discretion. Although a jury is entitled to acquit on any ground,

a defendant is not entitled to inform the jury that it can acquit him on

grounds other than the facts in evidence, i.e. a jury has the power of

nullification1 but defense counsel is not entitled to urge the jury to

exercise this power. See United States v. Moylan , 417 F.2d 1002,

1006 (4th Cir. 1969). If defense counsel attempts to do so, the trial

court may make an appropriate corrective instruction, such as the

instruction at issue here. See United States v. Sepulveda, 15 F.3d

1161, 1190 (1st Cir. 1993) (a trial judge "may block defense attorneys' attempts to serenade the jury with a siren song of nullification"), cert. denied, 114 S. Ct. 2714 (1994).

We agree that had the district court used the language to which

Muse objected without any similar provocation from defense counsel,

the instruction might have been error. Viewed in isolation, the instruction could be construed as improperly removing the witnesses'

motives from the jury's consideration in assessing their credibility.

However, language in jury instructions may not be viewed in isolation. Cupp, 414 U.S. at 146-47. When all of the instructions here are

examined in their entirety and in context, as they must be, it is clear

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1 See United States v. Kerley, 838 F.2d 932, 939 (7th Cir. 1988)

(although the jury does not have the right to refuse to return a verdict on

unreasonable grounds, "[i]t has the power to acquit on bad grounds").

 8
that the court appropriately instructed the jury to take into account the

witnesses' motives in evaluating their testimony, and also appropriately instructed the jury that it should not acquit the defendant if the

evidence (including the witnesses' testimony, whether credible or not)

proved Muse's guilt beyond a reasonable doubt, simply because the

government was not similarly punishing other people. Accordingly,

there was no error.

IV.

Finally, Muse argues that the court below erroneously instructed

the jury on the effect of certain stipulations of fact that he had entered

into with the government. Muse contends that the district court overstated the effect of these stipulations and essentially directed a verdict

for the prosecution on two elements of the § 922(g)(1) offense. Alternatively, he contends that if the stipulations had the effect the court

ascribed to them, the court erred in not ensuring that he knowingly

and voluntarily waived his right to have the jury find that the elements

existed.

A.

Prior to trial, Muse, his attorney, and the government agreed to the

following stipulations of fact:

It is hereby stipulated and agreed between the United

States of America and Randall Dwayne Muse, defendant,

that:

1. Prior to September, 1993, Randall Dwayne

Muse, the defendant, had been convicted of a

crime punishable by imprisonment for a term

exceeding one year within the meaning of Title 18,

United States Code, Sections 922(g)(1) and

921(a)(20).

2. Government's Exhibit 1 a High Standard

 6170 38 7 Model [106] .22 caliber semi-automatic handgun,

 9
serial no. 1761198 was manufactured outside the State of

Maryland, thereby affecting commerce . . . .

During trial, the government read the stipulations to the jury.

At the conclusion of the trial, the court instructed the jury as follows:

Now, the Government must prove each of the following

elements beyond a reasonable doubt before you may find

the defendant guilty of the offense charged . . . . First, that

the defendant was previously convicted of a felony .. . .

This has been stipulated to; and, as I told you earlier on, a

stipulation is an agreement among the parties that this element has been proved or is proved, and the Government

does not have to go any further to prove that. So, you should

not have to concern yourself with that, because the stipulation establishes that element, the first element that the Government is required to prove. The stipulation says everybody

agrees to that. You should go right past that. You have to

consider it, certainly, as one of the elements, but the stipulation makes it very clear that you don't have to look into the

evidence to see if it has been proven by the government. The

stipulation does that.

. . .

Third, that the possession charged was in or affecting

interstate commerce. The third element is again stipulated to

between the parties. So, you don't have to worry yourself

about whether or not the gun was in or affecting interstate

commerce.

Muse did not object to this instruction. Nevertheless, on appeal, he

contends that the instruction amounted to an improper directed verdict

on the prior felony and interstate commerce elements of the offense.

Because Muse failed to object to the instruction, our review is limited

to "plain error." See United States v. Hanley, 974 F.2d 14, 18 (4th Cir.

1992); Fed. R. Crim. P. 52(b). The Supreme Court has directed that,

 10
even if we find the trial court erroneously instructed the jury, "[i]t is

the rare case in which an improper instruction will justify reversal of

a criminal conviction when no objection has been made in the trial

court." Henderson v. Kibbe, 431 U.S. 145, 154 (1977), quoted in

United States v. Silva, 745 F.2d 840, 851 (4th Cir. 1984), cert. denied,

470 U.S. 1031 (1985). With this standard of review in mind, we turn

to the particular kind of instruction at issue here, one in which the

court directed the jury on the effect it should give to stipulations

involving elements of a criminal offense.

We note at the outset the special nature of a factual stipulation,

agreed to and signed by a defendant, his attorney, and the prosecutor.

Such a stipulation is more potent than simply an admission. By so

stipulating, a defendant waives the requirement that the government

produce evidence (other than the stipulation itself) to establish the

facts stipulated to beyond a reasonable doubt. See United States v.

Clark, 993 F.2d 402, 406 (4th Cir. 1993). This works to a defendant's

benefit when he or she fears that introduction of facts concerning an

element of the crime would prejudice his or her case. Indeed, for this

reason, defendants often stipulate to a prior felony conviction when

charged, as was Muse, with violating § 922(g)(1), because the government is then prohibited from introducing potentially prejudicial

evidence concerning the prior felony. See United States v. Rhodes, 32

F.3d 867, 871 (4th Cir. 1994) ("when a defendant offers to stipulate

to the fact of his prior felony conviction, evidence of the nature of the

conviction is irrelevant and should be stricken") (citing United States

v. Poore, 594 F.2d 39 (4th Cir. 1979)), cert. denied, 115 S. Ct. 1130

(1995).

However, such stipulations also exact a price from the defendant.

Because a stipulation induces the government not to offer evidence to

prove the facts involved in the stipulation, a defendant may not argue

at trial or on appeal that the stipulation is insufficient to prove beyond

a reasonable doubt the facts or elements to which he has stipulated.

See United States v. Reedy, 990 F.2d 167, 169 (4th Cir. 1990). A

defendant is not allowed to produce evidence to contradict or challenge the existence of facts to which he has validly stipulated. This

restriction on the defendant's ability to contest the existence of certain

facts or elements (in exchange for the government's promise not to

introduce evidence on the subject) is what distinguishes fact stipula-

 11
tions from more general evidentiary admissions such as confessions

or other statements, which the defendant may freely contradict at trial.

Thus, in return for the benefit a defendant may receive from a stipulation, it provides powerful evidence for the prosecutor. A stipulation does not, however, entitle the prosecution to a directed verdict or

exact the ultimate price from a defendant: a "guilty plea" with respect

to an element of the crime. While a valid stipulation relieves the prosecution of the burden of producing any other evidence in order to

establish the fact stipulated, it does not relieve the prosecution from

the burden of "proving every element of the crime" beyond a reasonable doubt. Cf. Estelle v. McGuire, 502 U.S. 62, 69 (1991) (this burden "is not relieved by a defendant's tactical decision not to contest

an essential element of the offense"). As this court recently held in a

case similarly involving a felon-in-possession charge, when a defendant pleads not guilty to the offense, "the district court must instruct

the jury that the government must prove beyond a reasonable doubt

that at the time the defendant possessed the firearm he had a qualifying previous felony conviction . . . ." United States v. Milton, 52 F.3d

78, 81 (4th Cir.), cert. denied, 116 S. Ct. 222 (1995). In other words,

the district court may not remove the element from the jury's consideration, even though the defendant has stipulated to that element. Id.

To "remove from the jury's consideration an element of the crime"

would, as the Second Circuit remarked in a case virtually identical to

Milton, violate the "very foundation of the jury system." United States

v. Gilliam, 994 F.2d 97, 100 (2d Cir.), cert. denied, 114 S. Ct. 335

(1993).

Milton and Gilliam involved defendants who stipulated to the existence of prior felony convictions and then asked the court to withdraw

the element from the jury's consideration, and to preclude the government from mentioning the prior felony convictions in any manner.

Milton, 52 F.3d at 80; Gilliam, 994 F.2d at 99. The defendants thus

sought to have their trials focused solely on the issue of whether they

had possessed weapons. In both cases the courts rejected this proposal, noting, "[w]hatever the basis of the reasoning, be it Congressional mandate or the duty of the jury to make a totally informed

judgment, there is virtual judicial unanimity in the belief that the jury

must be informed of all the elements of the crime charged." Milton,

52 F.3d at 81 (quoting Gilliam, 994 F.2d at 102). Milton and Gilliam

 12
therefore teach that once a defendant pleads not guilty to a crime and

elects to proceed before a jury, the district court must instruct, and the

jury must consider, whether the government has proved beyond a reasonable doubt all the elements involved in the crime charged -- even

if the defendant and the government have entered a stipulation as to

certain of those elements.

Milton and Gilliam are, of course, entirely consistent with the fundamental principle that if a defendant avails himself of his Sixth

Amendment right to trial by jury, only the jury can reach the "requisite finding of `guilty.'" Sullivan v. Louisiana, 508 U.S. 275, ___, 113

S. Ct. 2078, 2080 (1993) (citation omitted). Thus, no matter "how

overwhelming the evidence," a judge "may not direct a verdict for the

[government]." Id. Although a fact stipulation may have the effect of

providing proof beyond a reasonable doubt of the existence of the

facts that make up an element, a conviction is not valid unless a jury

considers the stipulation and returns a guilty verdict based on its finding that the government proved the elements of the crime beyond a

reasonable doubt. A court may not by-pass the jury and enter its own

finding that the element has been established. As the Supreme Court

recently explained, the "Constitution gives a criminal defendant the

right to have a jury determine, beyond a reasonable doubt, his guilt

of every element of the crime with which he is charged." United

States v. Gaudin, 115 S. Ct. 2310, 2320 (1995); see also United States

v. Piche, 981 F.2d 706, 716 (4th Cir. 1992) (a district court may not

"direct a verdict, even a partial verdict, for the government even

though the evidence is overwhelming or even undisputed on the

point"), cert. denied, 508 U.S. 916 (1993).

This limitation on the extent to which the jury's province can be

invaded is based, at least to some extent, on the earlier referred to

"undisputed power," of juries to nullify guilty verdicts. See Moylan,

417 F.2d at 1006 ("We recognize the undisputed power of the jury to

acquit, even if its verdict is contrary to the law as given by the judge

and contrary to the evidence.") Stated differently, the jury has "the

power to bring in a verdict in the teeth of both law and facts."

Horning v. District of Columbia, 254 U.S. 135, 138 (1920). Thus, trial

courts are foreclosed from instructing juries not to consider certain

elements of a crime, even if the case involves a stipulation encompassing those elements.

 13
In view of the special evidentiary character of a stipulation -- more

potent than an admission but less draconian than a"guilty plea" --

and the power of the jury to "acquit for any reason," Moylan, 417

F.2d at 1006, developing the proper language for a jury instruction

regarding the effect of stipulations as to an element of a criminal

offense requires a trial court to walk a careful line. The government

is entitled to have the court inform the jury of the powerful effect of

a stipulation but a court cannot direct a verdict, even a partial verdict,

against the defendant.

We have been unable to find much guidance in the case law;

indeed, no appellate case seems to have set forth proper language for

a jury instruction in the situation at hand.2 Other circuits have, however, developed short and simple model instructions. For example, the

following jury instruction is utilized in the Eighth Circuit: "The Government and the defendant have stipulated -- that is, they have agreed

-- that certain facts are as counsel have just stated. You should therefore treat these facts as having been proved." Model Criminal Jury

Instructions for the Eighth Circuit 24 (West 1994) (emphasis added).

See also Ninth Circuit Manual of Modern Jury Instructions -- Criminal 17 (West 1995) ("The parties have agreed to certain facts that

have been stated to you. You should therefore treat these facts as having been proved.") (emphasis added). In light of the special evidentiary force of a stipulation, yet the inability of the trial court to remove

even a stipulated fact from the jury's consideration or to mandate that

the jury return findings as the court directs, these model instructions

appear to strike the appropriate balance.

_________________________________________________________________

2 For example, although in Clark we quoted language from an instruction to the jury that, due to the defendant's stipulation to an element of

the offense, "that element has already been established and is not for

your consideration," 993 F.2d at 406 (emphasis added), we had no occasion or reason to determine the validity of the underscored language. We

cited the language only to support our holding that the defendant, in stipulating and in consenting to this instruction, had intended the stipulation

to provide sufficient evidence to establish the element. See also United

States v. Houston, 547 F.2d 104, 107 (9th Cir. 1976) (without quoting or

paraphrasing any portion of the jury instruction, the court approved the

submittal of a stipulation to the jury as conclusive proof of the fact stipulated to).

 14
The district court's instruction in this case, although not as concise

as the model instructions, struck a similar balance. On the one hand,

the court emphasized the force of the stipulation-- "the government

does not have to go any further [than the stipulation] to prove [an element of the offense]." On the other, the instruction at issue here, like

the model instructions, was couched in precatory language. The court

below repeatedly instructed the jury that, due to the stipulations, it

"should" find the facts that formed the basis for two of the elements

existed, and that it "should" therefore find that the government had

proved those elements. Additionally, the court specifically instructed

the jury that it had to consider all the elements, even those encompassed in the stipulations: "You have to consider[the felony element],

certainly, as one of the elements, but the stipulation makes it very

clear that you don't have to look into the evidence to see if it has been

proven by the government."

For these reasons, the lower court's instruction to the jury that it

must "consider" the elements, and that it"should" find that the government established those elements through the stipulations, was not

erroneous. To the extent that certain language in the instructions

could be construed as going beyond the directive that the jury

"should" find the government had established the elements by the

stipulations, such error (if any) is certainly not"plain." See United

States v. Matzkin, 14 F.3d 1014, 1018 (4th Cir. 1994) (errors in

instructions are not grounds for reversal unless they are "obvious" and

clear).

B.

Alternatively, Muse argues that if the district court's instruction

with regard to the fact stipulations was proper, the district court erred

in not following the procedures outlined in Rule 11 of the Federal

Rules of Criminal Procedure to determine if he knowingly and voluntarily entered into the stipulations. He maintains that Rule 11 procedures were required before the court could validly remove the

stipulated elements from the jury's consideration. This argument is

meritless.

This theory can be disposed of summarily because, as noted above,

the district court's instruction did not result in the removal of the stip-

 15
ulated elements from the jury's consideration, nor did it result in an

improperly directed partial verdict in the government's favor.

Because the jury was still required to consider and return a verdict

finding Muse guilty of all of the elements of the offense, his theory

is without support.

Of course, the issue would be different if Muse had stipulated to

all the elements of the offense. In such a case, the knowing and voluntary nature of Muse's entry into the stipulations (amounting effectively to a de facto guilty plea) would raise more significant concerns.

Cf. United States v. Struther, 578 F.2d 397, 403 (D.C.Cir. 1978)

(when stipulations are tantamount to a guilty plea, Rule 11-type procedures required); United States v. Brown, 428 F.2d 1100, 1102

(D.C.Cir. 1970) (same). But see United States v. Schuster, 734 F.2d

424, 425 (9th Cir. 1984) (Rule 11 limited to pleas of guilty or nolo

contendere); United States v. Robertson, 698 F.2d 703 (5th Cir. 1983)

(Rule 11 limited by its terms to guilty pleas and therefore does not

apply even if the defendant stipulates to all the elements of an

offense). However, here, although Muse stipulated to two of the elements, he vigorously contested the existence of the third, and most

critical, element at trial. We, therefore, need not address the question

of whether Rule 11-type procedures would be required if the stipulations on the elements amounted to a de facto guilty plea on the charge

as a whole.

For the foregoing reasons, Muse's conviction is

AFFIRMED.

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