### 1999 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

5-18-1999 

# U S A v . H e r n a nde z

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 98-5266

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_1999

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 1999 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

### R e c omme nde d C it a t ion

" U SA v . H e r n a ndez " (1999). 1999 D e cisio n s

. P a pe r 135.

h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_1999/135Filed May 17, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 98-5266

UNITED STATES OF AMERICA

v.

JULIO HERNANDEZ,

Appellant

On Appeal from the United States District Court for the District of New Jersey (D.C. Criminal No. 97-cr-00362-2) District Judge: Honorable Anne E. Thompson

Argued: January 25, 1999

Before: SLOVITER, McKEE and RENDELL, Circuit Judges

(Filed May 17, 1999)

Lisa Van Hoeck, Esq. (Argued)

Office of Federal Public Defender

22 South Clinton Avenue Station Plaza #4, 4th Floor Trenton, NJ 08609

Attorney for Appellant

George S. Leone, Esq. Allan Tananbaum, Esq. (Argued) Office of United States Attorney

970 Broad Street Room 700 Newark, NJ 07102

Attorneys for AppelleeOPINION OF THE COURT

McKEE, Circuit Judge.

Julio Hernandez appeals his conviction for conspiri ng to obstruct interstate commerce by robbery in violatio n of 18 U.S.C. SS 1951 (a) and 2, and receiving or possessi ng goods

stolen from commerce in violation of 18 U.S.C. S 65 9. He argues that the District Court erred in defining re asonable doubt to the jury, in sustaining objections to cert ain oral statements which defense counsel sought to admit in to evidence, and in allowing jurors to ask questions o f witnesses. Because we agree that the District Court 's definition of reasonable doubt was likely to cause confusion, we will reverse and remand for a new tri al.

I.

This case arises from the highjacking of a tractor trailer truck containing 494 cases of cigarettes valued at $335,125.00. On the morning of Friday, June 13, 199 7, Jose Sanchez was delivering the shipment of cigaret tes when a van cut him off and forced him to stop his t ruck. Washington Alvarez jumped out of the van waiving a gun and ordered Sanchez to roll down the window and get out of the truck. Sanchez complied with the demand, but only after he pressed a panic button inside the truck th at was designed to silently signal an alarm.

As Sanchez was forced from his truck, another individual, later identified as Julio Hernandez, go t in. Alvarez lead Sanchez to a nearby van and forced him to get in. When Sanchez got inside, Alvarez placed duct ta pe over his eyes and taped his hands together. After Alvare z finished binding Sanchez, a third individual named Luis got out of a second van and joined the confederate who had gotten into Sanchez' truck. The conspirators then d rove off with Sanchez' truck and its cargo, and Alvarez drov e off with Sanchez. Sanchez was eventually released, and sought help from a police officer who lived nearby. Alvare z was arrested a short time later.

2Meanwhile, a satellite tracking device inside the s tolen

truck disclosed the truck's location to police. As the truck was backed into a docking space at a gas station, t he police arrived, secured the scene, and questioned onlooker s about the whereabouts of the driver. A garage at the gas station had been converted to a warehouse, and after the po lice conducted their investigation they arrested Hernand ez who had been unloading cases of cigarettes from the tru ck and placing them inside the warehouse. Police searched Hernandez pursuant to that arrest and found Sanchez ' cigarette lighter inside a package of cigarettes th at was inside Hernandez' shirt pocket. Hernandez later gav e a statement in which he explained that he had borrowe d a cigarette from men who had offered him a job unload ing the truck. He explained that he never returned the ciga rettes because the men left when the police arrived.1 Acco rding to Hernandez, the lighter was inside the pack of cigar ettes when he got it.

Hernandez stood trial on charges of conspiring to obstruct commerce in violation of 18 U.S.C. S 1951( a) (count 1), obstructing commerce by robbery in viola tion of 18 U.S.C. SS 1951(a) and 2 (count 2); and receiving and possessing goods that had been stolen from intersta te commerce in violation of 18 U.S.C. SS 659 and 2 (co unt 3).

Alvarez testified against Hernandez pursuant to a p lea bargain. He testified that Hernandez had jumped int o Sanchez' truck after Sanchez was forced out of it, and that Hernandez then drove it away with Luis, and one oth er conspirator. Hernandez' trial lasted only four days , but the jury deliberated for three days without reaching a verdict. Finally, on the third day, after the trial judge ga ve a modified Allen charge, the jury convicted Hernandez on counts 1 and 3, but acquitted him of the charges in count 2 of the indictment. This appeal followed.

II.

We turn first to Hernandez' challenge to the Distri ct

___________________________________________________ ______________

1. Police did briefly detain two men, but allowed t hem to walk away after brief questioning.

3Court's practice of allowing jurors to participate in

questioning witnesses during the course of the tria l. The District Court allowed jurors to pose questions by handing the court written questions for the court's review. It appears from this record (and appellant does not ar gue to the contrary) that the court would then allow the a ttorneys to see the question so that counsel could make what ever objections they deemed appropriate, and the court c ould thus determine the admissibility and propriety of a question outside the hearing of the jury before ask ing the question.

One juror did submit a question in this manner. The juror asked: "[w]hat kind of rear doors are on the rear of the trailer?" App. at 644. However, the court did n ot ask the question of the witness. Rather, the court allo wed the attorneys to decide what, if any, response each wou ld make to the question. The court then gave the following explanation to the jury:

Let me just say with regard to questions tha t are presented by a witness, -- by a juror, it we ll may be a particular witness who is on the stand at th e time may not be the person to whom such a question wo uld be addressed because he may not be a witness wh o may be in a position to answer the question.

We appreciate having your questions because now the attorneys on both sides know what inquir ies you would make and either they may address them through their closing arguments, or they kno w if they wish to bring any additional witnesses to ad dress the question, that would be up to them.

App. at 644-45. Defense counsel immediately objecte d to the question, even though the court never asked it. When court reconvened the following day, defense counsel reiterated her objection, and requested that the co urt conduct voir dire of the juror who had submitted th e question. Defense counsel argued that the substance of the question, as well as its timing, suggested that the juror assumed Hernandez was guilty. The court denied the request stating:

4That . . . is an unreasonable request becaus e there is

nothing to suggest the juror had any notions of guilt. It merely reveals a juror had a question abo ut the

truck and what the truck was like. This was a fact question. There was nothing in the way the q uestion was worded which suggested guilt, innocence, anything other than was the light red or was the ligh t green? It was purely a fact question.

I think it was handled appropriately.

App. at 675-76. Defense counsel now insists that

[b]y permitting the jurors to act as inquisi tors and declining to investigate alleged jury miscon duct following the suspect question, the court de nied Hernandez his Sixth Amendment right to a fai r trial before an impartial jury. Juror questioning of witnesses is a "procedure fraught with perils. In most cases, the game will not be worth the candle." United S tates v. Sutton, 970 F.2d 1001, 1005 (1st Cir. 1992).

Appellant's Br. at 37. However, there is nothing he re to suggest "jury misconduct" other than the unsupporte d inference that the juror who posed the question had reached a decision about the defendant's guilt befo re the end of the trial. Although defense counsel's argume nt urges such an assumption upon us, we refuse to jump to th at conclusion. There is nothing in this record to sugg est that the juror who posed the question was motivated by anything other than a desire to know about the rear doors on the highjacked truck. We will not violate the sa nctity of the jury by requiring a judge to probe into the mot ivation behind such an innocuous question.

Defendant's more general challenge to the propriety of allowing juror questioning is an issue of first imp ression in this circuit, and requires more discussion. Althoug h we have not previously addressed this issue, several o ther courts of appeal have. Although those courts have consistently expressed concern over the dangers of the practice, they have refused to adopt a rule prohibi ting juror questioning of witnesses during the course of a cri minal trial. See United States v. Bush, 47 F.3d 511 (2d C ir. 1995); United States v. Ajmal, 67 F.3d 12, 14 (2d Cir. 199 5);

5United States v. Cassiere, 4 F.3d 1006, 1017-18 (1s t Cir.

1993); United States v. George, 986 F.2d 1176, 1178 (8th Cir. 1993); DeBenedetto v. Goodyear Tire & Rubber C o., 754 F.2d 512, 516 (4th Cir. 1985); United States v. Cal lahan, 588 F.2d 1078, 1086 (5th Cir. 1979); United States v. Gonzales, 424 F.2d 1055, 1055 (9th Cir. 1970). We t ake this opportunity to approve of the practice so long as it is

done in a manner that insures the fairness of the proceedings, the primacy of the court's stewardship , and the rights of the accused.2

In United States v. Polowichak, 783 F.2d 410 (4th C ir. 1986), the court disapproved the practice of posing juror questions in front of other jurors. The court state d that the trial judge should require questions to be submitte d in writing, without disclosure to other jurors, "where upon the court may pose the question in its original or rest ated form upon ruling the question or the substance of the qu estion proper." Id. at 413.

In United States v. Stierwalt, 16 F.3d 282 (8th Cir . 1994),

the court held that the District Court did not err where questions were submitted in writing and all evident iary issues were resolved before the judge read the ques tions to the witness. See id. at 286. See also George, 986 F .2d at 1178-79 (holding that despite the fact that the jur y submitted 65 written questions to the court, the co urt employed proper formal procedures in that the quest ions were discussed with the attorneys and ruled upon by the judge).

In United States v. Bush, supra, jurors directly questioned witnesses, including the defendant. Defe nse counsel failed to object, and even engaged in a dia logue with the jurors.3 The practice of allowing such que stioning

___________________________________________________ ______________

2. Our discussion is in the context of this crimina l trial. We note, however, that properly structured juror questioning in a civil trial poses

even fewer of the risks than we are concerned with here. Moreover, allowing jurors in both civil and criminal trials t o pose questions for

the

court's consideration is consistent with modern con cepts of trial practice. See Verdict: Assessing the Civil Jury System Robert E. Litan ed. (1993).

3. After the defendant had answered one of the ques tions asked by a juror, defense counsel asked the juror: "does that answer your question

sir?" 47 F.3d at 512.

6was therefore reviewed for plain error. The courtfi rst noted

that "[w]e have already held . . . that direct ques tioning by jurors is a `matter within the judge's discretion, like witness-questioning by the judge himself.' " Id. at 514. The court noted that "[e]very circuit court that has ad dressed this issue agrees. State courts, moreover, have overwhelmingly placed juror questioning of witnesse s within the trial judge's discretion, and indeed its common law roots are deeply entrenched." Id. at 515 (citations omitted). Nevertheless, the court expressed concern over this practice. "Although we reaffirm our earlier holding . . . that juror questioning of witnesses lies within the tria l judge's discretion, we strongly discourage its use." Id. Th e court listed several dangers endemic to the practice incl uding "turning jurors into advocates, compromising their neutrality," the "risk that jurors will ask prejudi cial or otherwise improper questions," and counsel's inabil ity to respond for fear of antagonizing, alienating, or embarrassing a juror. Id. The court noted that

[b]alancing the risk that a juror's question may be prejudicial against the benefit of issue-cla rification will almost always lead trial courts to disallow juror questioning, in the absence of extraordinary or compelling circumstances.

Id. at 516. However, the court affirmed the convict ion because the challenged questioning had been "limite d and

controlled" and because the defendant could not demonstrate prejudice. Id.

In United States v. Sutton, 970 F.2d 1001 (1st Cir. 1992), the court voiced similar concerns about allowing ju rors to question witnesses even though the procedure used involved the court asking questions that the jurors had submitted in writing. Id. at 1005. Once again, the court allowed the practice though it was clearly troubled by it. "Although we think this practice may frequently cou rt unnecessary trouble, we find no error in the circum stances of this case." Id. at 1003. There, at the beginning of the trial, the trial court had informed the jurors that they could ask questions by handing written questions to the j ury foreman who would then give them to the judge. "If your question even possibly could make any legal differe nce . . .

7if it's relevant as the lawyers say, I'll ask it fo r you." Id. On

appeal, the court stated:

Allowing jurors to pose questions during a c riminal trial is a procedure fraught with perils. In most cases, the game will not be worth the candle. Never theless, we are fully committed to the principle that tr ial judges should be given wide latitude to manage tria ls. We are, moreover, supportive of reasoned efforts by the trial bench to improve the truth seeking attribute s of the jury system. Consistent with this overall ap proach, and mindful that the practice . . . may occasion ally be advantageous, especially in complex cases an d under carefully controlled conditions, we hold tha t allowing juror-inspired questions in a criminal case is not prejudicial per se, but is a matter committe d to the

sound discretion of the trial court.

Id. at 1005. Although the court allowed the practic e, it was quick to discourage it. "We hasten to add that the practice, while not forbidden, should be employed sparingly a nd with great circumspection." Id. The court also added to the list of concerns enunciated in Bush, though it acknowled ged that the practice could further the search for trut h by allowing jurors to clear up confusion. The court al so recognized that allowing jurors to participate in q uestioning could enhance the attentiveness of jurors. Neverthe less, the court concluded "in most situations, the risks inhe rent in the practice will outweigh its utility." Id.

In United States v. Ajmal, supra, the court did rev erse a conviction based upon juror questioning of witnesse s, even though the judge had "incorporated prophylactic procedures to lessen the potential prejudice. . . . " 67 F.3d at 15. The Second Circuit noted that the trial judg e's decision to invite such questioning

was not necessitated by the factual intricac ies of this banal drug conspiracy, nor . . . prompted by the urging of jurors themselves. Rather, the District C ourt, as a matter of course, established at the outset of the trial that jurors would be allowed to question wit nesses. Indeed, the District Court encouraged juror questioning throughout the trial by asking the jurors at the end of

8each witness's testimony if they had any que ries to

pose. Not surprisingly, the jurors took exte nsive advantage of this opportunity to question wi tnesses, including Ajmal himself.

Id. at 14 (emphasis added). The trial judge there h ad taken precautions. He had required questions to be in wri ting, and the court, rather than the attorneys, asked the questions. In addition, the court only asked those questions that it believed were proper under the Federal Rule s of Evidence. Nevertheless, the Court of Appeals held t hat the trial judge had abused his discretion.

Although the District Court substantially co mplied with the procedures this Court advocated in Bush, . . . such measures alone cannot purge the harm caused by the extensive juror questioning in the case at h and. Regardless of the procedures adopted by the District Court to vet questions, there must be ample justification for adopting the disfavored pr actice in the

first instance. To hold otherwise would sanc tion juror questioning of witnesses in any circumstance , so long as appropriate prophylactic measures are ado pted. We cannot accept such a proposition.

In light of our discussion above, the Distr ict Court's encouragement of juror questioning of witnes ses . . . was an abuse of discretion.

67 F.3d at 15 (emphasis added). Thus, although the court was once again concerned with the practice of allow ing juror questioning absent circumstances sufficient t o justify the risk inherent in the procedure, the court clear ly based its reversal upon the trial court's encouragement o f such questioning, and the frequency with which jurors ha d accepted the judge's invitation.

Here, the court received only one question from the jury. It was a fact question that was not even asked. We do not think that one fact question which is submitted to a judge in writing, but not even asked, can be labeled an a buse of discretion. See United States v. Lewin, 900 F.2d 14 5 (8th Cir. 1990). In Lewin, jury questioning was deemed p roper where the jury tendered six questions to the court and the court only asked four of them. The questions that t he court

9allowed were "specific and factual in nature," and no

questions were asked of the defendant. Id. at 147-4 8. The court of appeals noted that "this [was] not a case in which juror questioning was allowed to become disruptive or abusive." Id. Moreover, the court suggested appropr iate safeguards. "[I]f [the District Court] decides to p ermit jurors to ask questions in future trials, it should consid er requiring jurors to submit their questions in writi ng, or orally out of the presence of the other jurors, wit hout prior discussion with the other jurors." Id. at 148.

We agree that a trial judge who allows such questio ning in a given case should adopt a procedure to first s creen the questions. However, we conclude that the dangers of allowing jurors to ask questions orally far outweig hs any perceived benefit of allowing juror questioning of witnesses. Thus, the judge should ask any juror-generated ques tions, and he or she should do so only after allowing atto rneys to raise any objection out of the hearing of the jury.

The procedure utilized here is consistent with our

admonitions and consistent with the sound exercise of judicial discretion. The court did not surrender it s discretion as to whether to allow a given question to be asked, and the judge, not the attorneys (and certai nly not the jurors), was to have asked any questions posed by a juror. This procedure is consistent with the holdin g of every court of appeals that has addressed this issue. We hold that the trial judge did not abuse her discretion.

III.

At trial, defense counsel attempted to have a witne ss testify that when police approached Hernandez at th e gas station, Hernandez told them that "he was there unl oading a truck and expected to be paid for his labor." App ellant's

Br. at 18. The District Court ruled that the statem ent was inadmissible hearsay. Hernandez argues that this

statement should have been admitted under the state of mind exception contained in Federal Rule of Evidenc e 803(3). We afford the District Court's evidentiary rulings plenary review insofar as the court was interpretin g a rule of evidence. However, we review the court's rulings on

10admissibility for abuse of discretion. See United S tates v.

Donley, 878 F.2d 735, 737 (3d Cir. 1989).

Federal Rule of Evidence 803(3) states:

The following are not excluded by the hearsa y rule, even though the declarant is available as a witness:

. . .

(3) Then existing mental, emotional, or phys ical

condition. A statement of the declarant's th en existing state of mind, emotion, sensation, or physic al condition (such as intent, plan, motive, design, menta l feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact rememb ered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will

.

The state of mind exception is usually traced to th e Supreme Court's holding in Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892). There, the Supreme Court held that letters in which a missing person expressed an inte nt to travel to Crooked Creek could be introduced to help establish the identity of an unidentified body late r found there. The Court reasoned that "[t]he existence of a particular intention in a certain person at a certa in time being a material fact to be proved, evidence that h e expressed that intention at that time is as direct evidence of the fact as his own testimony that he then had t hat intention would be." Id. at 295. Thus, while the le tters were not proof that the deceased actually went to Crooke d Creek, they tended to show that at least prior to his deat h, he

intended to. Id. at 295-96.

The rule is now firmly established that "[t]here ar e times when a state of mind, if relevant, may be proved by contemporaneous declarations of feeling or intent." Shepard v. United States, 290 U.S. 96, 104 (1933). However, the scope of this exception must be limited to prevent it from devouring the rule. Thus "[s]tatements that are con sidered under . . . the `state of mind' exception, cannot b e offered to prove the truth of the underlying facts asserted ." Stelwagon Mfg. Co. v. Tarmac Roofing Sys., Inc. , 6 3 F.3d 1267, 1274 (3d Cir. 1995). See also Blackburn v. Ae tna

11Freight Lines, Inc., 368 F.2d 345, 348 (3d Cir. 196 6),

(holding "[i]t is too well settled to require discu ssion that a

declaration of a state of mind or intention is admi ssible to prove that the declarant actually had such intentio n.").

Thus, in United States v. Palma-Ruedas, 121 F.3d 84 1 (3rd Cir 1996), we affirmed the District Court's ex clusion of testimony that a witness named Hernandez had said," nice to meet" you when introduced to a person named Avenando. The proponent wanted to use the statement as evidence that the two had not previously met. We concluded that use of the statement was improper be cause "statements offered to support an implied assertion are inadmissible hearsay." Id. at 857 (citing United St ates v. Reynolds, 715 F.2d 99, 104 (3rd Cir. 1983)). Here, Hernandez' statement that he had just arrived and e xpected to be paid was only relevant because of the implied assertion that he was not involved in the highjacki ng.

Appellant relies on United States v. DiMaria, 727 F .2d 265 (2d Cir. 1984), to support his argument that th e state of mind exception applies. In DiMaria, the defendan t was prosecuted for his involvement in stealing cigarett es. His defense was that he thought that no tax had been pa id on the cigarettes ("bootleg cigarettes"), but that he did not know they were stolen. In support of that position, defense counsel attempted to introduce evidence that the de fendant told FBI agents arriving on the scene: "I thought y ou guys were just investigating white collar crime; what ar e you doing here? I only came here to get some cigarettes real cheap." Id. at 270. The District Court excluded tha t statement ruling that it was inadmissible hearsay. The Court of Appeals for the Second Circuit reversed. T hat court held that the defendant's comment "stated, or so the jury could find, that his existing state of mind wa s to possess bootleg cigarettes, not stolen cigarettes. It was not offered to prove that the cigarettes were not stole n cigarettes but only to show that DiMaria did not th ink they

were. . . . It was a statement of what he was think ing in the present." Id. at 271. The court also recognized tha t the Federal Rules of Evidence opted for the view that"t he selfserving nature of such a declaration went only to i ts weight." Id. The court reasoned that"[t]here is a p eculiarly

12strong case for admitting statements like DiMaria's

,

however suspect, when the Government is relying on the presumption of guilty knowledge arising from a defe ndant's possession of the fruits of a crime recently after its

commission." Id. at 272.

DiMaria is distinguishable from the instant case. H ere, Hernandez' statement that he was unloading a truck is not evidence of his state of mind. Rather, it is his ou t of court statement of why he was at the gas station, and wha t he was doing there. Accordingly, it does not fall with in Rule 803(3), or any other exception to the general prohi bition against hearsay evidence. Although his statement th at he expected to be paid arguably falls within DiMaria's interpretation of Rule 803(3), we believe it is onl y relevant because of the implicit assertion that Hernandez wa s a laborer, and not involved in a highjacking. Accordi ngly, the District Court properly excluded it as required by PalmaRuedas. To the extent that DiMaria would require a different result, we are clearly bound by our own p recedent,

as was the District Court.

IV.

Hernandez also alleges that the District Court's de finition

of "reasonable doubt" violated his Fifth Amendment right to due process and his Sixth Amendment right to a jury trial. "In reviewing whether a District Court in its charg e to the jury correctly stated the appropriate legal standar d, our review is plenary." United States v. Johnstone, 107 F.3d 200, 204 (3d Cir. 1997). Jury instructions, taken a s a whole, must "clearly articulate the relevant legal standards" and "avoid confusing and misleading the jury." Id. at 204. When an attack upon a jury charge is based upon the trial court's instruction on reasonable doubt, "[t] he constitutional question . . . is whether there is a reasonable likelihood that the jury understood the instruction s to allow conviction based on proof insufficient to meet the [constitutional] standard." Victor v. Nebraska, 511 U.S. 1, 6 (1994). Such a reasonable likelihood exists here.

It is axiomatic that "[t]he Due Process Clause requ ires the government to prove a criminal defendant's guilt be yond a

13reasonable doubt," therefore, "trial courts must av oid

defining reasonable doubt so as to lead the jury to convict on a lesser showing than due process requires." Id. at 22. Nonetheless, District Courts are not required to de fine

"reasonable doubt" as a matter of course. Id. at 5. Moreover, when a trial judge does define the term, no "particular form of words" is required. Id. The law requires only that the concept be correctly conveyed to the jury when it is defined. Id. (citing Holland v. United S tates, 348 U.S. 121, 140 (1954)).

Reasonable doubt is not an easy concept to understa nd, and it is all the more difficult to explain. Moreov er, given the concerns about crime that are so prevalent in t oday's society, common sense suggests that it is particula rly difficult for lay jurors to understand that they mu st acquit a criminal defendant if the prosecution does not es tablish guilt beyond a reasonable doubt, even if they feel that the defendant is probably guilty. Jurors may well be re luctant

to free someone accused of a serious and violent cr ime "merely" because the government didn't prove beyond a reasonable doubt what they feel "in their hearts" i s probably true. Yet, due process is satisfied by not hing less than a juror's understanding that he or she may not vote to convict a defendant based upon a belief "that th e defendant is probably guilty. . . ." Sullivan v. Lo uisiana, 508 U.S. 275, 278 (1993) (emphasis added). Rather, an impartial evaluation of evidence is required. "A ju ror is impartial if he or she can lay aside any previously formed `impression or opinion as to the merits of the case ' and can `render a verdict based on the evidence presented i n court.' " United States v. Polan, 970 F.2d 1280, 12 84 (3d Cir. 1992). Reasonable doubt is, therefore, a doubt based upon reason rather than whim, possibilities or supp osition.

Id. at 1286.

Here, the District Court commented upon proof at different points during the trial. The court first commented upon reasonable doubt during the course of jury sel ection. The court informed potential jurors:

[THE COURT]: Now, ladies and gentlemen, a cr iminal case comes before you by way of indictment a nd the Government has to prove the elements of the offense,

14each offense in the indictment beyond a reas onable

doubt, each count has to be proven beyond a

reasonable doubt.

And if the Government fails to prove to you r satisfaction each and every element of each count, then you would return a verdict of not guilty. If the Government does prove a count beyond a reaso nable doubt, including each and every element, the n you would return a verdict of guilty.

You are to be thoughtful, systematic, analyt ical, impartial, unbiased. . . .

Under our system of justice, the Government carries the burden of proof in a criminal case. The Government brings the charge. The Government has to pro ve the charge. . . .

How do you decide if they have been proven? There is no scale we can say all right, this is ho w you can weigh the evidence. It's really an internal process that you must engage in. You have to use your jud gment, your maturity, your powers of analysis, your sense of what makes -- what sounds reasonable, what s ound [sic] likely. Does this sound like what happ ened or does

that sound like I can't believe that's what happened?

You have to decide that.

App. at 121-22 (the "voir dire instructions"). 4

After the jury was empaneled, but before the jury b egan hearing evidence, the court told the jury:

The burden of proof is on the Government. Th e Government brings the charges. The Governmen t has to prove the charges. The grand jury has bee n impaneled by the Government. The defendant d oesn't appear before the grand jury. The grand jury hears the

evidence and decides whether an indictment s hall issue, and you are the body to decide whethe r the charges are to be sustained.

___________________________________________________ ______________

4. For clarity, we will separately characterize eac h of the portions of

the District Court's comments to the jury that are rele vant to this appeal.

15How do you decide that? By whether the Gover nment

can prove the guilt of the charges of this d efendant beyond a reasonable doubt. That's the standa rd.

How do you decide what is proof beyond a rea sonable doubt? There is no specific definition. I'm sorry to tell you, but there are none. It's what you in yo ur own heart and your own soul and your own spirit and your own judgment determine is proof beyond a rea sonable

doubt.

I'll give you some definitions at the end of the trial when I give the Judge's charge to the jury, but don't expect it to be the kind of ruler or measuri ng rod that you are going to be able to say: Uh-huh, now , I know what proof beyond a reasonable doubt means. It's what you feel inside as you listen to the evidenc e, and so that's why you really have to pay attention from the very beginning.

I'm going to have each witness put his or he r name up on the easel there so you can just see that. That kind of helps you to focus. The government will c all its witnesses first because that's the way a cas e proceeds. Each witness is called by the Government, qu estioned by counsel for the Government, cross-examine d by the defense lawyer, counsel for the defense, and then, one by one, they come in and go out.

Then the Government rests at the end of its presentation of witnesses.

Then the defendant has an opportunity to pre sent any witnesses he wants to present. He doesn't ha ve to. He is free to present anybody he wants.

Then both sides rest.

Then the lawyers on each side give what we c all a closing argument. They summarize what has be en presented in the trial and the Judge gives t he Judge's charge to the jury. When I do that, I'll giv e you something written so you can read along with me. That's when I'll define proof beyond a reaso nable doubt. I'll define the presumption of innoce nce, what

16does that mean. I'll define robbery. I'll de fine the

various terms that you will hear throughout the trial.

App. at 175-76 (emphasis added) (the "initial instr uction"). Defense counsel objected, and the court responded i n an effort to impress upon the jurors the importance of the reasonable doubt concept. The court stated:

I don't want you to think that it is so ephe meral that it's meaningless or so subjective that it's an unworthy concept. It is a very important concept. It' s indeed the backbone of the criminal law that proof must be convincing to a jury as to the guilt of a de fendant beyond a reasonable doubt. And you will have to analyze the proofs so as to decide in your o wn mind: Was this proven beyond a reasonable doubt?

App. at 13 (the "clarification").

At the end of the trial the District Court gave wha t defendant refers to as a "traditional charge" on re asonable doubt. There, the court explained:

Under our system, the judge is the final ar biter of all questions of law and the jury in its deliber ations must follow the law as given to it by the judge. It is the judge's function to instruct you in the law.

You are not to be concerned with the wisdom of any

rule of law. . . .

***

Each phase of the instructions is to be con sidered and applied together with all other parts an d phases of the instructions. You must not pick out some particular instruction alone or some particu lar portion of an instruction and overemphasize it and a pply it without considering and keeping in mind all the other instructions given you with regard to this c ase.

You should construe each of the instruction s in light of and in harmony with the other instruction s. You should apply the instructions as a whole to the

evidence. The order in which the instruction s are given has no significance and is no indication of their relative importance. . . .

17***

A defendant is never to be convicted on mer e suspicion or conjecture. The burden is alway s upon the prosecution to prove guilt beyond a reasonab le doubt.

This burden never shifts to a defendant for the law never imposes upon a defendant in a criminal case the burden or duty of calling any witness or tes tifying himself or producing any evidence.

If after a fair, impartial and careful cons ideration of all the evidence, you have a reasonable doub t as to a defendant's guilt, it is your duty to acquit him. . . .

Now, what is reasonable doubt? Now, I'll tr y to define

that. Reasonable doubt. A reasonable doubt i s doubt

based on reason and common sense. A reasonab le doubt is such a doubt as would cause you to hesitate to act in matters of importance in your own lives. A reasonable doubt may arise from a lack of ev idence. It is doubt based on reason, logic, common sens e and experience. Reasonable doubt is not vague or hypothetical doubt. It is not speculative, i maginary qualms or misgivings. It is not just an excu se by a juror to avoid the performance of an unpleas ant duty. It is not the normal sympathy which one huma n being may hold for another.

App. at 800-1 (the "traditional charge").

We first address Hernandez' assertion that portions of the voir dire instructions require a new trial. He argu es that "[b]ased on the court's remarks, the jury may have believed incorrectly that a conviction could be based on wha t they felt in their hearts or what sounded likely." Appel lant's Br. at 18. He asserts that "the court's sounds likely t est reduced the constitutionally required standard of p roof to a mere preponderance of the evidence."

However, the portion of the voir dire instructions that Hernandez challenges has nothing to do with reasona ble doubt, nor do we think the jurors could have interp reted the comments to suggest a definition of that concep t. Rather, the court was simply explaining how jurors go about determining if a witness is telling the truth . Its

18comments amounted to nothing more than a suggestion

that jurors ask themselves whether testimony has th e proverbial "ring of truth," and we find no error in the court having done so. See Altmose Construction Co. v. NLR B, 514 F.2d 8, 15 n.8 (3d Cir. 1975) (noting the proverbia l ring of truth in the noncriminal context); NLRB v. Nichols- Dover, Inc., 414 F.2d 561, 564 (3d Cir. 1969) (same). We r each a different result, however, with regard to the court 's explanation of reasonable doubt.

Defendant acknowledges that the traditional charge was proper, but argues that the initial instruction sta ted an incorrect definition of reasonable doubt, and also suggested that the jury could ignore the correct definition i n the traditional charge by warning jurors that the tradi tional definition would not be helpful.5 Appellant's Br. a t 18. The government responds in part by arguing that the jud ge's initial instruction was meant merely to give an ove rview of the trial procedure. The government cites Guam v. I gnacio, 852 F.2d 459 (9th Cir. 1987), to argue that "[i]nst ructions given at the start of a case simply do not have the same impact and therefore importance as instructions giv en to the jury at the close of a case, just before the ca se is submitted for the jury's deliberation." Appellee's Br. at 14. However, we believe that Ignacio, and the other cas es relied upon by the government actually support Hernandez' argument.

In Ignacio, the trial court gave some general preli minary

instructions that included instructions on reasonab le doubt. The instruction that the court gave was, how ever, incomplete, and the Court of Appeals for the Ninth Circuit had previously ruled that the instruction "standing alone," was erroneous under Guam law. Ignacio, 852 F.2d at 461. However, the court's final charge "adequately cured the incomplete instruction. . . ." Id. Here, the initia l instruction suggested that jurors could convict the defendant b ased upon what they believed in their own heart, soul an d spirit

___________________________________________________ ______________

5. "There is no specific definition. I'm sorry to t ell you, but there are none. It's what you in your own heart and your own soul and your own spirit and your own judgment determine is proof bey ond a reasonable doubt." App. at 175.

19whether or not that belief was based upon a reasone d

conclusion that the evidence established Hernandez' guilt beyond a reasonable doubt. Therefore, it was errone ous, not merely incomplete. The distinction is substanti al. Subsequent amplification can fill the interstices i n an incomplete explanation. However, when an erroneous instruction is given, a subsequent clarification mu st be sufficiently clear and compelling to allow a review ing court

to conclude that there was no reasonable likelihood that the initial inaccuracy affected the jury's delibera tions. Victor, supra. Here, the government does not even m aintain that the court's explanation that reasonable doubt is "what you feel inside" was correct. Rather, the governmen t urges us either to ignore this language or to minimize it s significance because of the subsequent clarificatio n. In Ignacio, the court stated:

[g]eneral orientation at the beginning of a trial should be cautiously worded, but it will not requir e reversal unless it produces prejudice or misleads the jury in a material way.

Id. at 461. Allowing a jury to determine reasonable doubt as to each element of a crime based upon what "you in your own heart and your own soul and your own spirit and your own judgment determine is proof beyond a reasonable doubt" clearly misleads the jury in a material way, to the prejudice of the defendant. It allows each juror to judge the evidence by a visceral standard unique to that juro r rather than an objective heightened standard of proof appl icable to each juror. It allows jurors to convict based upon their individual "gut feeling."

In Jackson v. Virginia, 443 U.S. 307 (1979), the Co urt

stated

The standard of proof beyond a reasonable do ubt . . . plays a vital role in the American scheme of criminal procedure, because it operates to give concr ete substance to the presumption of innocence to ensure against unjust convictions and to reduce the risk of factual error in a criminal proceeding. At t he same time by impressing upon the factfinder the need t o reach a subjective state of near certitude of the gu ilt of the

20accused, the standard symbolizes the signifi cance that

our society attaches to the criminal sanctio n and thus to liberty itself.

443 U.S. at 315 (emphasis added) (internal quotatio n marks omitted).6 Thus, although a juror must subjec tively believe that a defendant has been proven guilty, th at subjective belief must be based upon a reasoned, ob jective evaluation of the evidence, and a proper understand ing of the quantum of proof necessary to establish guilt t o a "near certitude." An instruction which allows a juror to convict because of his or her subjective feelings about the defendant's guilt, without more, is clearly inadequ ate. Here, as Judge Sloviter quite correctly notes in her thou ghtful and forceful dissent, the District Court did tell t he jury that their verdict had to be based upon the evidence, an d that the government had the burden of proof. See dissent at 31. However, a likelihood of confusion remained as to t he quantum of evidence necessary to sustain a convicti on, and the level of certainty that a juror had to have as to the defendant's guilt, because the original explanation of reasonable doubt may well have remained in the juro r's minds. Thus, a juror may well have concluded that a "gut feeling" as to the defendant's guilt was adequate t o convict so long as that feeling was supported by a preponde rance of the evidence (or even less). The reasonable like lihood that this may have happened is not mitigated merely beca use jurors understood that the government had the burde n of proof. Francis v. Franklin, 471 U.S. 307, 322 (1985 ). Moreover, the remaining cases that the government r elies upon are not to the contrary. See Appellee's Br. at 14.

In United States v. Hegwood, 977 F.2d 492 (9th Cir. 1992), defense counsel failed to object to the cour t's initial definition of the crime of conspiracy. Id. at 495. The definition that the court gave did not inform the j urors that

an intent to commit the substantive crime was an el ement of the conspiracy. However, the court's final instr uctions

___________________________________________________ ______________

6. In Jackson, the defendant was convicted in a ben ch trial. Thus, the Court was not considering the effect of an erroneou s reasonable doubt standard on a lay jury. Nevertheless, as the dissen t quite correctly

notes, the language of Jackson is relevant to our discussi on.

21did inform the jury of that element. On appeal, the

erroneous initial instruction was reviewed for plai n error. The court relied upon Ignacio to hold that, absent exceptional circumstances, "[w]here the instruction challenged is given at the beginning of trial, reve rsal is unwarranted unless the defendant can prove prejudic e or that the jury was materially misled." Id. The court then stated that no exceptional circumstances existed an d it therefore would not assume that the jurors failed t o follow the correct instruction. It was the only instructio n they had on whether the government had to prove intent to co mmit

the substantive offense. The court reasoned that

[i]t stretches credulity to think that the j ury disregarded the instruction they had just be en given

because it included an element that had not been

mentioned earlier.

Id. (citing Franklin, 471 U.S. at 322)). The situat ion here is far more problematic than an inquiry into whether providing a missing element cured its earlier omiss ion. Indeed, our situation is more akin to the problem i n Franklin, supra. There, a defendant was charged wit h murder in connection with a fatal shooting that occ urred after he had escaped from state custody. The defend ant's sole defense was that the gun had accidentally disc harged. The trial judge instructed the jury that one is pre sumed to intend the natural consequences of his or her actio ns, but that the presumption may be rebutted. The court als o informed the jury that the defendant was presumed innocent, and that the prosecution had the burden o f proving each element of the crime charged beyond a

reasonable doubt.

Following his conviction, the defendant appealed al leging that the court's charge had improperly shifted the burden of proof to him, and that the language in the charg e clarifying the burden of proof did not cure the inf irmity. The Supreme Court agreed.

A reasonable juror could easily have resolve d the contradiction in the instruction by choosing to abide by the mandatory presumption and ignore the pro hibition of presumption. Nothing in these specific se ntences or

22in the charges as a whole makes clear to the jury that

one of these contradictory instructions carr ies more weight than the other. Language that merely contradicts and does not explain a constitut ionally

infirm instruction will not suffice to absol ve the infirmity. A reviewing court has no way of knowing whic h of the two irreconcilable instructions the jurors a pplied in reaching their verdict.

Franklin, 471 U.S. at 322 (emphasis added). That is precisely our situation. Indeed, our situation is w orse because in the initial instruction the District Cou rt suggested that jurors would derive little guidance from the definition that would be given at the end of the tr ial. Jurors who may have been confused by the more abstract traditional charge may well have relied upon the co urt's earlier assessment of the definition, and adopted t he more easily understood standard of what you feel "in you r heart and soul" to determine if the defendant's guilt had been proven beyond a reasonable doubt.

The dissent believes that the initial instructions" were really comments rather than instructions . . . ," a nd concludes that they were not sufficient to create a reasonable likelihood of prejudice under Victor v. Nebraska, especially since they were immediately followed by a curative instruction. Dissent at 31. However, nothi ng in this record suggests that lay jurors drew this fine distinction, or that they were even aware of it. Mo reover, the jury was never instructed to ignore the substan tive portion of the court's initial instructions in dete rmining the meaning of reasonable doubt. We do not suggest that the problems created by the initial instruction could n ot have been cured. Rather, we hold that the instructions t aken as a whole (including the clarification) were not adeq uate to "unring" the bell. The clarification stressed the i mportance of the concept of reasonable doubt, and emphasized that it was not an "ephemeral" concept. However, it did not provide an accurate definition of the term, or inst ruct jurors to rely exclusively upon the written definit ion they would receive at the end of the trial. When the jur ors finally heard the correct definition they had been forewarn ed that the definition they were hearing was less helpful t han the prior erroneous explanation of what the term meant.

23We are also unconvinced by the government's relianc e

upon United States v. Dilg, 700 F.2d 620 (9th Cir. 1981). See Appellee's Br. at 15-6. In Dilg, two juries wer e selected simultaneously. One was to hear Dilg's case, and th e other

was to be "on deck" to hear a trial that would star t after Dilg's was finished. After both juries were selecte d, the judge gave general instructions that included instr uctions as to the presumption of innocence. Dilg's jury was then sworn, and the other jury was excused until later i n the

week.7

At the conclusion of Dilg's trial the court gave a formal charge that informed the jury of the government's b urden of proving every element beyond a reasonable doubt, bu t did not mention the presumption of innocence. On appeal the defendant argued that this omission required a new trial. The prosecution countered that the jurors had been informed of the presumption of innocence in the cou rt's general comments before trial and this cured the om ission. The court of appeals disagreed.

There was no indication that the preliminary

instructions were intended as the sole sourc e of any aspect of the law by which the case was to b e decided. To make matters worse, at no time during the instructions given at the close of the trial did the judge refer back to the pre-trial instruction give n on the presumption of innocence.

Dilg, 700 F.2d at 625. Here, it is clear that the i nitial

instructions were not intended to be the "sole sour ce" of the law the jury was to apply. Although the final charg e did not "refer back to the court's preliminary comments," A ppellee's Br. at 15, it did not have to. The seed had already been planted, and nothing in the final charge diminished the fertility of that seed.

The government urges us to adopt a rule giving thef inal charge more weight than instructions given during t he course of the trial because it was given immediatel y before

___________________________________________________ ______________

7. Because we find that the instructions given duri ng voir dire were not

erroneous we need not decide the effect of an erron eous instruction that is given before jurors are sworn.

24deliberations, and the initial instructions were mu ted by

the passage of time having been given earlier in th e trial. See Appellee's Br. at 15. We refuse to adopt a rule that would judge the significance of a preliminary jury instruction by the length of the trial absent instr uctions from the trial court that would cause jurors to pla ce more weight on the final charge than instructions given during the course of the trial. We will not assume that ju rors, contrary to their oath, ignored part of the judge's initial instruction simply because it came early in the tri al.8 "The [law] presumes that jurors, conscious of the gravit y of their task, attend closely the particular language of the trial

court's instructions in a criminal case and strive to understand, make sense of, and follow the instructi ons given them." Franklin, 471 U.S. at 324. We will not now hold that the importance of a jury instruction is d etermined by its proximity to the end of the trial.

Similarly, we disagree with the dissent's assessmen t of the importance of "one sentence in an overview that covers eight pages." Dissent at 32. Clearly, one sentence can not be viewed out of context with the totality of the j udge's instructions. Neither can that one sentence be igno red when viewing the eight pages of which it is a part. Thus, we can not agree that our holding is based upon "unfou nded speculation that the jurors disregarded clear instr uctions." Dissent at 33 (citing United States v. Newby, F.3d 1143, 1147 (3d Cir. 1993).9 Rather, this conviction can s tand only if we engage in unfounded speculation that jurors f ollowed the proper written instruction despite the court's statement that it was not going to help them. See Franklin, 4 71 U.S. at 322 ("[a] reviewing court has no way of knowing which of the two irreconcilable instructions the jurors appl ied in reaching their verdict."). Here, the jury was given two explanations of reasonable doubt. One was incorrect , and one was not. Due Process does not allow us to guess which

___________________________________________________ ______________

8. Moreover, we note that this trial only lasted fo ur days.

9. In Newby, the curative instruction as to imprope rly admitted evidence "was clear and effective," and the evidence in ques tion was, "at most cumulative." Id. at 1146. Here, the curative instru ction was neither clear nor effective, and the error requiring a curative i nstruction was far more

serious.

25definition the jurors adopted so long as there is a

reasonable likelihood it chose the wrong one. Victo r, 511 U.S. at 6. We hold only that, given the totality of the unique circumstances here, that reasonable likelihood exis ts.

The government's position to the contrary is rooted in the axiom that jury instructions must be viewed in thei r entirety, and a series of cases that have reaffirme d that principle. See United States v. Isaac, 134 F.3d 199 (3d Cir. 1998); United States v. Pine, 609 F.2d 106 (3d Cir. 1979); United States v. Smith, 468 F.2d 381 (3d Cir. 1972)

. Accordingly, the government relies upon Hegwood, to argue that "even assuming arguendo that the court's preli minary instructions were faulty, they were outweighed and indeed cured by the court's correct final charge." Appelle e's Br. at 14. The government contends that the instructions, taken as a whole, adequately conveyed the concept of reas onable doubt and that there was, therefore, no reasonable likelihood that the jury understood the standard of conviction to be less than beyond a reasonable doub t.

However, as noted above, "[l]anguage that merely contradicts and does not explain a constitutionally infirm

instruction will not suffice to absolve the infirmi ty." Franklin, 471 U.S. at 322. Thus, although the sound ness of the principle underlying the government's argument is beyond dispute, we do not think it cures the infirm ity in the initial instruction. Accordingly, we conclude that there is a reasonable likelihood that jurors utilized an impro per definition of reasonable doubt and convicted the de fendant not because the government proved its case beyond a reasonable doubt as that term is properly understoo d, but because the jurors "felt" the defendant was guilty. 10

___________________________________________________ ______________

10. Our holding today is not intended to discourage the very common practice of providing jurors with preliminary remar ks to assist them during the course of the trial. We only hold that w hen such preliminary instructions are given, jurors must not be allowed to guess at which of two conflicting instructions control their delibera tions. This can be avoided by simply informing jurors which instructio ns control in the event they perceive a conflict between something th ey are told during the course of the trial, and something contained in the formal instructions

that will follow the close of the evidence.

26V.

For the reasons set forth above, the judgment of conviction will be reversed, and the matter will be remanded to the District Court for further proceedi ngs consistent with this opinion.

27RENDELL, Circuit Judge, Concurring:

I join in the thorough analysis, and result reached , by my colleague, but write briefly only to offer an addit ional practical reason as to why the purported cure by th e District Court judge was not an adequate fix.

I have great faith in jurors, but think it asks too much to expect them to cast aside the court's initial instr uction that reasonable doubt is incapable of definition and is based on what you feel inside, when later they are told its more analytic underpinnings. It strikes me as an exceedi ngly difficult if not impossible task.

If students of film were told before viewing afilm that there are no set rules for assessing a film and the y should trust their heart and soul, then later, after viewi ng it, they are told to comment on it using a "reasoned" approa ch, will they not cling nonetheless to the impressions forme d throughout the viewing based on their emotional rea ction?

I think we are naive if we think not.

Reasonable doubt is difficult enough without the

confusion evident on this record. Can we trust that a juror who adheres to the judge's instruction and determin es in her heart and soul that the defendant is probably g uilty will be able to perform the mental gymnastics to replace all she has observed and felt with a reasoned weighing of t he government's case (assuming she has made the effort to do

so in the face of initial instructions that the lat er definition will be of little help)? I am dubious.

While it is true that a trial court's guidance as p rovided in most preliminary instructions will pale in signi ficance as compared to the final dictates given, that is not t he case if the particular instruction guides the jury's percep tions and observations as much as, or even more than, their u ltimate decision making.

Further, I do not agree with our dissenting colleag ue that our holding that this particular miscue was not cur ed poses any threat to the concept of cure beyond the limits of this unique fact pattern.

28SLOVITER, Circuit Judge, Dissenting:

I approve and join in Parts I, II and III of the ma jority's opinion. I dissent from Part IV because I do not ag ree that we should reverse a conviction when, as we all agre e, the trial court gave the jury complete and accurate ins tructions on reasonable doubt before the jury deliberated. Th e majority overturns the conviction on the basis of l anguage with which the District Court described reasonable doubt in preliminary comments made to the jury before they h eard opening statements or evidence. However, in light o f the majority's concession that there was no error in th e instruction on reasonable doubt when it was include d in the charge that was given to the jury four days lat er, immediately before the jury proceeded to deliberate , the effect of the majority's decision is to elevate tho se preliminary comments to incurable error. In my view , the majority's result is serious error, both because in the circumstances here the erroneous instructions, if a ny, were cured and because, as a general principle, incurabl e error is limited to grievous faults.

I.

The trial of Julio Hernandez began on February 4, 1 998, on a three-count superseding indictment charging (c ount 1) conspiracy to obstruct, delay and affect commerce a nd the movement of commodities in commerce by robbery of a tractor-trailer and the contents thereof, in violat ion of 18 U.S.C. S 1951(a); (count 2) obstructing, delaying a nd affecting commerce and the movement of articles and commodities in commerce by robbery, and threatening physical violence to a person in furtherance of a p lan to rob a tractor-trailer and its contents, in violation of 18 U.S.C. SS 1951(a) and 2; and (count 3) receiving and posse ssing with the intent to convert to his own use goods and chattel, namely 494 cases of cigarettes valued at over $250, 000

that had been embezzled and stolen from a motortruc k and were moving as part of an interstate shipment, in v iolation

of 18 U.S.C. SS 659 and 2.

The jury received comments and/or instructions from the trial judge on reasonable doubt on three separate

29occasions. The first occasion was on February 4 dur ing

what the majority characterizes as the "voir dire

instruction." Hernandez contends that because the c ourt stated in the course of those comments that the jur ors would have to use their sense of "what sounds likel y" in evaluating the evidence, he was entitled to a new t rial. The majority rejects Hernandez's contention and conclud es that there was no error in the remarks made by the Distr ict

Court at that time.

The third occasion was the formal jury charge, give n to the jury orally and in writing on February 13, befo re it proceeded to deliberate. The defendant does not cha llenge the instruction and the majority finds that charge to be without error. That instruction fully incorporates all of the relevant elements of a reasonable doubt charge, whi ch the majority refers to as the "traditional charge" on r easonable doubt. In it, the District Court stated as follows:

Now, what is reasonable doubt? Now, I'll try to define

that. Reasonable doubt. A reasonable doubt i s doubt

based on reason and common sense. A reasonab le doubt is such a doubt as would cause you to hesitate to act in matters of importance in your own lives. A reasonable doubt may arise from a lack of ev idence. It is doubt based on reason, logic, common sens e and experience. Reasonable doubt is not vague or hypothetical doubt. It is not speculative, i maginary qualms or misgivings. It is not just an excu se by a juror to avoid the performance of an unpleas ant duty. It is not the normal sympathy which one huma n being may hold for another.

It is not necessary for the United States o r the Government to prove the guilt of a defendant to a mathematical certainty or beyond all possibl e doubt. The reason is in this world of ours, it is p ractically impossible for a person to be absolutely and completely convinced regarding any disputed fact which by its nature is not susceptible of mathematical ce rtainty. Consequently, the law is such that in a crim inal case it is sufficient if the proofs establish tha t a defendant is guilty beyond a reasonable doubt, not bey ond all possible doubt.

30Reasonable doubt is an honest and reasonabl e

uncertainty existing in your mind as to the guilt of the defendant after carefully considering all th e evidence. A reasonable doubt may be said to exist in any case when after a careful consideration of all of the evidence the jury would be unwilling to rely upon tha t evidence unhesitatingly in a matter of importance in its own

affairs.

App. at 800-02.

The majority's decision to reverse Hernandez's conv iction

thus rests on its conclusion that the remarks made by the District Court on the second occasion, February 9, immediately after the jury was sworn and before the opening statements, which the majority characterize s as "the initial instructions," were such flagrant erro r as to mislead the jury and be incurable.

These remarks are quoted in full in the majority's opinion. What are the majority's objections?

The majority focuses on the statement made by the District Court, after it advised the jury that ther e is no specific definition of reasonable doubt (a patently accurate comment), that "[i]t's what you in your own heart a nd your own soul and your own spirit and your own judgment determine is proof beyond a reasonable doubt." App. at 175. The majority has two objections: this statemen t "allows each juror to judge the evidence by a visce ral standard unique to that juror, rather than an objec tive heightened standard of proof applicable to each jur or," Majority Opinion at 20, and it "allows jurors to co nvict based upon their individual gut feeling.' " Id. The majority fails to acknowledge that in those remarks, which w ere really comments rather than instructions, the Distr ict Court emphasized, at the outset of even that initia l stage, that "[t]he burden of proof is on the Government. T he Government brings the charges. The Government has t o prove the charges." App. at 175 (emphasis added). N or does the majority specify what the jurors were told that might lead them to look to their "gut feelings" rather th an the evidence to which the District Court repeatedly ref erred.

31If the majority's objection to the language used by the

District Court is that it improperly suggests a sub jective approach, then the majority is inconsistent with th e Supreme Court's articulation of the concept of reas onable doubt as a "subjective state of near certitude," Ja ckson v. Virginia, 443 U.S. 307, 315 (1979) (emphasis added) ; see In re Winship, 397 U.S. 358, 364 (1970).

The majority's objection to the District Court's"in itial

instructions" takes those comments out of context. It gives short shrift to the government's argument that thes e comments were merely meant to give an overview of t he trial procedure. An examination of the court's enti re presentation at that time reveals that the court wa s providing precisely that overview. See generally F ederal Judicial Center, Benchbook for U.S. District Court Judges 95 (4th ed. 1996) (Preliminary jury instructions "are intended to give the jury, briefly and in understandable lan guage, information to make the trial more meaningful."). T he District Court began by explaining the jury's funct ion and role, that witnesses will be called, that there wil l be interpreters, who the lawyers will be, that the bur den of proof is on the Government, the sequence of events, where the jurors could lunch, and the courtroom procedure s to be followed. The comment to which the majority objects is one sentence in an overview that covers eight pages. Ap p. at

172-79.

The District Court emphasized the preliminary natur e of those comments, stating on several occasions that t he charge and the instructions would be given to the j ury at a later time. Immediately after the language on which the majority focuses, the District Court expressly told the jurors that it would give them "some definitions at the end of the trial when I give the Judge's charge to the jury." App. at 175. Shortly thereafter, the court, continuing i ts explanation of the sequence of events that would fo llow, stated that after the lawyer on each side makes a c losing argument, "the Judge gives the Judge's charge to th e jury. When I do that, I'll give you something written so you can read along with me. That's when I'll define proof b eyond a reasonable doubt. I'll define the presumption of in nocence, what does that mean. I'll define robbery. I'll defi ne the

32various terms that you are hearing throughout the t rial."

App. at 176 (emphasis added). The court's procedure was consistent with common practice, under which the fo rmal instructions containing precise definitions are lef t for the end of trial, following a formal charge conference.

There is no reason to assume that the jurors were

unaware that the formal instructions and definition s, including that for reasonable doubt, would be given later in light of the District Court's clear statements to t hat effect. Just as we assume that jurors follow the accurate, formal instructions of the court, see Opper v. United Stat es, 348 U.S. 84, 94 (1954) ("To say that the jury might hav e been confused amounts to nothing more than an unfounded speculation that the jurors disregarded clear instr uctions of the court in arriving at their verdict. Our theory of trial relies upon the ability of a jury to follow instruc tions."); United States v. Newby, 11 F.3d 1143, 1147 (3d Cir. 1993) (jury presumed to follow curative instructions rega rding stricken evidence absent "overwhelming probability" jury was unable to follow it), we should assume that the jurors here listened to the judge's preliminary instructio ns regarding when and how they would receive their for mal

ones.

Even were this not enough to show that there was no prejudicial error from the court's overview at the beginning of the trial, this conclusion is reinforced by the District Court's clarification of the import of the earlier language as soon as counsel objected. At sidebar, defense couns el

stated:

I'm also objecting to the Court's lack of d efinition of burden of proof as far as reasonable doubt i s concerned as something you feel inside which suggests they can go with some sort of a gut or bias or prejudice or some feeling about the case, while beyond a reasonable doubt is the highest burden we ha ve in our system of justice.

App. at 182.

Contrary to the majority's suggestion that what it regards as the infirm instruction was not corrected, but me rely contradicted by the final charge, the District Cour t took

33steps almost immediately in response to counsel's

objection. After reviewing the indictment with the jury, the

court stated as follows

Now, I have told you proof beyond a reasona ble doubt will be defined in my charge, just as I will explain at greater length presumption of inn ocence. Because I refer to the fact that proof beyon d a reasonable doubt has no accurate measuring r od, I don't want you to think that it is so epheme ral that it's meaningless or so subjective that it's an un worthy concept. It is a very important concept. It' s indeed the backbone of the criminal law that proof must be convincing to a jury as to the guilt of a de fendant beyond a reasonable doubt. And you will have to analyze the proofs so as to decide in your o wn mind: Was this proven beyond a reasonable doubt?

App. at 191.

In light of the prompt correction to the remarks th at the majority finds objectionable, the court's emphasis to the jury that the instruction on reasonable doubt would be given later (and in writing), and the majority's acknowledgment that the final instructions on reaso nable doubt were not objectionable, I believe that there is no reasonable likelihood that the jurors were misled t o use an improper definition of reasonable doubt in finding Hernandez guilty.

I believe the majority's reversal of a conviction b ased on its view that the court's preliminary remarks were incurable is out of step with the precedent. Underlying our jurisprudence is recognition that error will occasi onally be made, even error of constitutional magnitude, but t hat most error either can be cured through an instructi on or has not prejudiced a defendant's right so substanti ally that the conviction must be reversed. See generally Donn elly v. DeChristoforo, 416 U.S. 637, 644 (1974) ("Although some occurrences at trial may be too clearly prejudicial for . . . a curative instruction to mitigate their effect, the [prosecutor's comment that defendant hoped to be convicted of a lesser charge] is hardly of such cha racter."); United States v. Zehrbach, 47 F.3d 1252, 1265 (3d C ir.

341995) (en banc) ("In determining prejudice, we cons ider the

scope of the objectionable [prosecutorial] comments and their relationship to the entire proceeding, the am eliorative effect of any curative instructions given, and the strength of the evidence supporting the defendant's conviction. "); Newby, 11 F.3d at 1146 ("[W]e presume that the jury will follow a curative instruction [regarding stricken e vidence] unless there is an `overwhelming probability' that the jury will be unable to follow it and a strong likelihood that the affect of the evidence would be `devastating' to th e defendant." [citations omitted]); United States v. Menichino, 497 F.2d 935, 945 (5th Cir. 1974) ("[A]ny harm done by the [mid-trial] charge was vitiated by the later proper and curative instructions."). To evaluate a claimed err or in a jury instruction, as in this case, an appellate cou rt must look to the charge as a whole. See Victor v. Nebras ka, 511 U.S. 1, 5 (1994).

There was extensive analysis of two reasonable doub t instructions by the Supreme Court in Victor, where the petitioners challenged their reasonable doubt instr uctions. In one case, the petitioner challenged the charge t hat

defined reasonable doubt in terms of "moral evidenc e" and "moral certainty," but the Court, although not cond oning use of those terms, nevertheless concluded that the y neither suggested a standard of proof lower than re quired by due process nor allowed conviction on factors extraneous to the government's proof. Id. at 16. In the other case, the Court held that the instruction that a re asonable doubt is "not a mere possible doubt" also did not r equire reversal because other language in the instruction made clear the meaning of that instruction. Similarly, t he Court, while agreeing that the trial court's equating of a

reasonable doubt with a "substantial doubt" was problematic, nonetheless concluded that "taken as a whole, the instructions correctly conveyed the concept of reasonable doubt to the jury." Id. at 22.

It is significant that Justice O'Connor, speaking f or the Court in Victor, pointed out that "in only one case have we

held that a definition of reasonable doubt violated the Due

Process Clause." Id. at 5. In the case to which she referred, Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam), the

35Court held that an instruction defining a reasonabl e doubt

to be "an actual substantial doubt" was fatally def ective because it suggested a higher degree of doubt than is required for acquittal under the reasonable doubt s tandard. Id. at 41. Certainly, the alleged error here in the court's preliminary, overview remarks is in no way equivale nt with that in Cage, particularly as the error, if any, wa s followed by a prompt cure and, ultimately, a fully correct c harge.

The majority suggests that the decision in Francis v. Franklin, 471 U.S. 307 (1985), may be analogous to this

case. Not so. The instructions in Franklin were not defective because of the reasonable doubt portion of the char ge but

because the instruction on intent effected a mandat ory presumption in violation of the Fourteenth Amendmen t's requirement that the state prove every element of a criminal

offense.

In fact, in Holland v. United States, 348 U.S. 121 (1954), the Court, in considering the petitioner's challeng e to a reasonable doubt charge in a federal criminal trial , agreed that there were problems with the charge, which"sho uld

have been in terms of the kind of doubt that would make a person hesitate to act . . . rather than the kind on which he would be willing to act. . . ," but nevertheless declined to reverse, noting "the instruction as given was no t of the type that could mislead the jury into finding no re asonable

doubt when in fact there was some." Id. at 140.

Similarly, in this case, I see no basis to conclude that the court's initial comments to the jury in an overview of the procedure that was to take place could have misled the jury. Although the court may not have adopted the m ost felicitous expression in its overview, both the cur ative instruction and the final charge were correct. The District Court's final jury instructions emphasized that"[a] defendant is never to be convicted on mere suspicio n or conjecture"; "[r]easonable doubt is not vague or hypothetical doubt"; "[i]t is not speculative, imag inary qualms or misgivings." App. at 801. Those final ins tructions correctly conveyed the meaning of reasonable doubt and adequately neutralized whatever misleading effect m ay have been caused by the "what you feel inside" language in the remarks some four days earlier.

36Our zealousness to insure that a defendant has had a

fair trial and that justice has been done does not mean that every error, although corrected, must lead to rever sal. In this case, I disagree with my colleagues that a sma ll portion of the trial court's initial comments, which were p romptly corrected and later neutralized by the final charge , requires

reversal of Hernandez's conviction. I therefore res pectfully

dissent.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

37