1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-18-1999

USA v. Hernandez

Precedential or Non-Precedential:

Docket 98-5266

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Recommended Citation

"USA v. Hernandez" (1999). 1999 Decisions. Paper 135.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/135
Filed 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 Appellee 
OPINION OF THE COURT 

McKEE, Circuit Judge. 

Julio Hernandez appeals his conviction for conspiring to 

obstruct interstate commerce by robbery in violation of 18 

U.S.C. SS 1951 (a) and 2, and receiving or possessing goods 

stolen from commerce in violation of 18 U.S.C. S 659. He 

argues that the District Court erred in defining reasonable 

doubt to the jury, in sustaining objections to certain oral 

statements which defense counsel sought to admit into 

evidence, and in allowing jurors to ask questions of 

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 trial. 

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, 1997, 

Jose Sanchez was delivering the shipment of cigarettes 

when a van cut him off and forced him to stop his truck. 

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 that was 

designed to silently signal an alarm. 

As Sanchez was forced from his truck, another 

individual, later identified as Julio Hernandez, got in. 

Alvarez lead Sanchez to a nearby van and forced him to get 

in. When Sanchez got inside, Alvarez placed duct tape over 

his eyes and taped his hands together. After Alvarez 

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 drove off 

with Sanchez' truck and its cargo, and Alvarez drove off 

with Sanchez. Sanchez was eventually released, and sought 

help from a police officer who lived nearby. Alvarez was 

arrested a short time later. 

 2 
Meanwhile, a satellite tracking device inside the stolen 

truck disclosed the truck's location to police. As the truck 

was backed into a docking space at a gas station, the police 

arrived, secured the scene, and questioned onlookers about 

the whereabouts of the driver. A garage at the gas station 

had been converted to a warehouse, and after the police 

conducted their investigation they arrested Hernandez who 

had been unloading cases of cigarettes from the truck and 

placing them inside the warehouse. Police searched 

Hernandez pursuant to that arrest and found Sanchez' 

cigarette lighter inside a package of cigarettes that was 

inside Hernandez' shirt pocket. Hernandez later gave a 

statement in which he explained that he had borrowed a 

cigarette from men who had offered him a job unloading the 

truck. He explained that he never returned the cigarettes 

because the men left when the police arrived.1 According to 

Hernandez, the lighter was inside the pack of cigarettes 

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 violation of 

18 U.S.C. SS 1951(a) and 2 (count 2); and receiving and 

possessing goods that had been stolen from interstate 

commerce in violation of 18 U.S.C. SS 659 and 2 (count 3). 

Alvarez testified against Hernandez pursuant to a plea 

bargain. He testified that Hernandez had jumped into 

Sanchez' truck after Sanchez was forced out of it, and that 

Hernandez then drove it away with Luis, and one other 

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 gave 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 District 

_________________________________________________________________ 

1. Police did briefly detain two men, but allowed them to walk away after 

brief questioning. 

 3 
Court's practice of allowing jurors to participate in 

questioning witnesses during the course of the trial. 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 argue to 

the contrary) that the court would then allow the attorneys 

to see the question so that counsel could make whatever 

objections they deemed appropriate, and the court could 

thus determine the admissibility and propriety of a

question outside the hearing of the jury before asking 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 not ask 

the question of the witness. Rather, the court allowed the 

attorneys to decide what, if any, response each would make 

to the question. The court then gave the following 

explanation to the jury: 

 Let me just say with regard to questions that are 

 presented by a witness, -- by a juror, it well may be a 

 particular witness who is on the stand at the time may 

 not be the person to whom such a question would be 

 addressed because he may not be a witness who may 

 be in a position to answer the question. 

 We appreciate having your questions because now 

 the attorneys on both sides know what inquiries you 

 would make and either they may address them 

 through their closing arguments, or they know if they 

 wish to bring any additional witnesses to address the 

 question, that would be up to them. 

App. at 644-45. Defense counsel immediately objected 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 court 

conduct voir dire of the juror who had submitted the 

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: 

 4 
 That . . . is an unreasonable request because there is 

 nothing to suggest the juror had any notions of guilt. 

 It merely reveals a juror had a question about the 

 truck and what the truck was like. This was a fact 

 question. There was nothing in the way the question 

 was worded which suggested guilt, innocence, anything 

 other than was the light red or was the light 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 inquisitors and 

 declining to investigate alleged jury misconduct 

 following the suspect question, the court denied 

 Hernandez his Sixth Amendment right to a fair 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 States v. 

 Sutton, 970 F.2d 1001, 1005 (1st Cir. 1992).

Appellant's Br. at 37. However, there is nothing here to 

suggest "jury misconduct" other than the unsupported 

inference that the juror who posed the question had

reached a decision about the defendant's guilt before the 

end of the trial. Although defense counsel's argument urges 

such an assumption upon us, we refuse to jump to that 

conclusion. There is nothing in this record to suggest 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 sanctity of 

the jury by requiring a judge to probe into the motivation 

behind such an innocuous question. 

Defendant's more general challenge to the propriety of 

allowing juror questioning is an issue of first impression in 

this circuit, and requires more discussion. Although we 

have not previously addressed this issue, several other 

courts of appeal have. Although those courts have 

consistently expressed concern over the dangers of the 

practice, they have refused to adopt a rule prohibiting juror 

questioning of witnesses during the course of a criminal 

trial. See United States v. Bush, 47 F.3d 511 (2d Cir. 1995); 

United States v. Ajmal, 67 F.3d 12, 14 (2d Cir. 1995); 

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

1993); United States v. George, 986 F.2d 1176, 1178 (8th 

Cir. 1993); DeBenedetto v. Goodyear Tire & Rubber Co., 754 

F.2d 512, 516 (4th Cir. 1985); United States v. Callahan, 

588 F.2d 1078, 1086 (5th Cir. 1979); United States v. 

Gonzales, 424 F.2d 1055, 1055 (9th Cir. 1970). We take 

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 Cir. 

1986), the court disapproved the practice of posing juror 

questions in front of other jurors. The court stated that the 

trial judge should require questions to be submitted in 

writing, without disclosure to other jurors, "whereupon the 

court may pose the question in its original or restated form 

upon ruling the question or the substance of the question 

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 evidentiary 

issues were resolved before the judge read the questions to 

the witness. See id. at 286. See also George, 986 F.2d at 

1178-79 (holding that despite the fact that the jury 

submitted 65 written questions to the court, the court 

employed proper formal procedures in that the questions 

were discussed with the attorneys and ruled upon by the 

judge). 

In United States v. Bush, supra, jurors directly 

questioned witnesses, including the defendant. Defense 

counsel failed to object, and even engaged in a dialogue 

with the jurors.3 The practice of allowing such questioning 

_________________________________________________________________ 

2. Our discussion is in the context of this criminal 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 to pose questions for 

the 

court's consideration is consistent with modern concepts of trial 

practice. 

See Verdict: Assessing the Civil Jury System Robert E. Litan ed. (1993). 

3. After the defendant had answered one of the questions asked by a 

juror, defense counsel asked the juror: "does that answer your question 

sir?" 47 F.3d at 512. 

 6 
was therefore reviewed for plain error. The courtfirst noted 

that "[w]e have already held . . . that direct questioning 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 addressed 

this issue agrees. State courts, moreover, have 

overwhelmingly placed juror questioning of witnesses 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 trial judge's 

discretion, we strongly discourage its use." Id. The court 

listed several dangers endemic to the practice including 

"turning jurors into advocates, compromising their 

neutrality," the "risk that jurors will ask prejudicial or 

otherwise improper questions," and counsel's inability 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-clarification 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 conviction 

because the challenged questioning had been "limited 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 jurors 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 court 

unnecessary trouble, we find no error in the circumstances 

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 jury 

foreman who would then give them to the judge. "If your 

question even possibly could make any legal difference . . . 

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

appeal, the court stated: 

 Allowing jurors to pose questions during a criminal 

 trial is a procedure fraught with perils. In most cases, 

 the game will not be worth the candle. Nevertheless, we 

 are fully committed to the principle that trial judges 

 should be given wide latitude to manage trials. We are, 

 moreover, supportive of reasoned efforts by the trial 

 bench to improve the truth seeking attributes of the 

 jury system. Consistent with this overall approach, and 

 mindful that the practice . . . may occasionally be 

 advantageous, especially in complex cases and under 

 carefully controlled conditions, we hold that allowing 

 juror-inspired questions in a criminal case is not 

 prejudicial per se, but is a matter committed to the 

 sound discretion of the trial court. 

Id. at 1005. Although the court allowed the practice, it was 

quick to discourage it. "We hasten to add that the practice, 

while not forbidden, should be employed sparingly and with 

great circumspection." Id. The court also added to the list 

of concerns enunciated in Bush, though it acknowledged 

that the practice could further the search for truth by 

allowing jurors to clear up confusion. The court also 

recognized that allowing jurors to participate in questioning 

could enhance the attentiveness of jurors. Nevertheless, the 

court concluded "in most situations, the risks inherent in 

the practice will outweigh its utility." Id. 

In United States v. Ajmal, supra, the court did reverse a 

conviction based upon juror questioning of witnesses, 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 judge's 

decision to invite such questioning 

 was not necessitated by the factual intricacies of this 

 banal drug conspiracy, nor . . . prompted by the urging 

 of jurors themselves. Rather, the District Court, as a 

 matter of course, established at the outset of the trial 

 that jurors would be allowed to question witnesses. 

 Indeed, the District Court encouraged juror questioning 

 throughout the trial by asking the jurors at the end of 

 8 
 each witness's testimony if they had any queries to 

 pose. Not surprisingly, the jurors took extensive 

 advantage of this opportunity to question witnesses, 

 including Ajmal himself. 

Id. at 14 (emphasis added). The trial judge there had taken 

precautions. He had required questions to be in writing, 

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 Rules of 

Evidence. Nevertheless, the Court of Appeals held that the 

trial judge had abused his discretion. 

 Although the District Court substantially complied 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 hand. 

 Regardless of the procedures adopted by the District 

 Court to vet questions, there must be ample 

 justification for adopting the disfavored practice in the 

 first instance. To hold otherwise would sanction juror 

 questioning of witnesses in any circumstance, so long 

 as appropriate prophylactic measures are adopted. We 

 cannot accept such a proposition. 

 In light of our discussion above, the District Court's 

 encouragement of juror questioning of witnesses . . . 

 was an abuse of discretion. 

67 F.3d at 15 (emphasis added). Thus, although the court 

was once again concerned with the practice of allowing 

juror questioning absent circumstances sufficient to justify 

the risk inherent in the procedure, the court clearly based 

its reversal upon the trial court's encouragement of such 

questioning, and the frequency with which jurors had 

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 abuse of 

discretion. See United States v. Lewin, 900 F.2d 145 (8th 

Cir. 1990). In Lewin, jury questioning was deemed proper 

where the jury tendered six questions to the court and the 

court only asked four of them. The questions that the court 

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

questions were asked of the defendant. Id. at 147-48. 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 appropriate 

safeguards. "[I]f [the District Court] decides to permit jurors 

to ask questions in future trials, it should consider 

requiring jurors to submit their questions in writing, or 

orally out of the presence of the other jurors, without prior 

discussion with the other jurors." Id. at 148. 

We agree that a trial judge who allows such questioning 

in a given case should adopt a procedure to first screen the 

questions. However, we conclude that the dangers of

allowing jurors to ask questions orally far outweighs any 

perceived benefit of allowing juror questioning of witnesses. 

Thus, the judge should ask any juror-generated questions, 

and he or she should do so only after allowing attorneys 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 its 

discretion as to whether to allow a given question to be 

asked, and the judge, not the attorneys (and certainly not 

the jurors), was to have asked any questions posed by a 

juror. This procedure is consistent with the holding 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 witness 

testify that when police approached Hernandez at the gas 

station, Hernandez told them that "he was there unloading 

a truck and expected to be paid for his labor." Appellant's 

Br. at 18. The District Court ruled that the statement was 

inadmissible hearsay. Hernandez argues that this 

statement should have been admitted under the state of 

mind exception contained in Federal Rule of Evidence 

803(3). We afford the District Court's evidentiary rulings 

plenary review insofar as the court was interpreting a rule 

of evidence. However, we review the court's rulings on 

 10 
admissibility for abuse of discretion. See United States v. 

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

Federal Rule of Evidence 803(3) states: 

 The following are not excluded by the hearsay rule, 

 even though the declarant is available as a witness: 

 . . . 

 (3) Then existing mental, emotional, or physical 

 condition. A statement of the declarant's then existing 

 state of mind, emotion, sensation, or physical condition 

 (such as intent, plan, motive, design, mental feeling, 

 pain, and bodily health), but not including a statement 

 of memory or belief to prove the fact remembered 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 the 

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 intent to 

travel to Crooked Creek could be introduced to help

establish the identity of an unidentified body later found 

there. The Court reasoned that "[t]he existence of a 

particular intention in a certain person at a certain time 

being a material fact to be proved, evidence that he 

expressed that intention at that time is as direct evidence 

of the fact as his own testimony that he then had that 

intention would be." Id. at 295. Thus, while the letters were 

not proof that the deceased actually went to Crooked Creek, 

they tended to show that at least prior to his death, he 

intended to. Id. at 295-96. 

The rule is now firmly established that "[t]here are 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 considered 

under . . . the `state of mind' exception, cannot be offered 

to prove the truth of the underlying facts asserted." 

Stelwagon Mfg. Co. v. Tarmac Roofing Sys., Inc. , 63 F.3d 

1267, 1274 (3d Cir. 1995). See also Blackburn v. Aetna 

 11 
Freight Lines, Inc., 368 F.2d 345, 348 (3d Cir. 1966), 

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

declaration of a state of mind or intention is admissible to 

prove that the declarant actually had such intention."). 

Thus, in United States v. Palma-Ruedas, 121 F.3d 841 

(3rd Cir 1996), we affirmed the District Court's exclusion 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 because 

"statements offered to support an implied assertion are 

inadmissible hearsay." Id. at 857 (citing United States v. 

Reynolds, 715 F.2d 99, 104 (3rd Cir. 1983)). Here, 

Hernandez' statement that he had just arrived and expected 

to be paid was only relevant because of the implied

assertion that he was not involved in the highjacking. 

Appellant relies on United States v. DiMaria, 727 F.2d 

265 (2d Cir. 1984), to support his argument that the state 

of mind exception applies. In DiMaria, the defendant was 

prosecuted for his involvement in stealing cigarettes. His 

defense was that he thought that no tax had been paid 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 defendant 

told FBI agents arriving on the scene: "I thought you guys 

were just investigating white collar crime; what are you 

doing here? I only came here to get some cigarettes real 

cheap." Id. at 270. The District Court excluded that 

statement ruling that it was inadmissible hearsay. The 

Court of Appeals for the Second Circuit reversed. That 

court held that the defendant's comment "stated, or so the 

jury could find, that his existing state of mind was to 

possess bootleg cigarettes, not stolen cigarettes. It was not 

offered to prove that the cigarettes were not stolen 

cigarettes but only to show that DiMaria did not think they 

were. . . . It was a statement of what he was thinking in the 

present." Id. at 271. The court also recognized that the 

Federal Rules of Evidence opted for the view that"the selfserving nature of such a declaration went only to its 

weight." Id. The court reasoned that"[t]here is a peculiarly 

 12 
strong case for admitting statements like DiMaria's, 

however suspect, when the Government is relying on the 

presumption of guilty knowledge arising from a defendant's 

possession of the fruits of a crime recently after its 

commission." Id. at 272. 

DiMaria is distinguishable from the instant case. Here, 

Hernandez' statement that he was unloading a truck is not 

evidence of his state of mind. Rather, it is his out of court 

statement of why he was at the gas station, and what he 

was doing there. Accordingly, it does not fall within Rule 

803(3), or any other exception to the general prohibition 

against hearsay evidence. Although his statement that he 

expected to be paid arguably falls within DiMaria's

interpretation of Rule 803(3), we believe it is only relevant 

because of the implicit assertion that Hernandez was a 

laborer, and not involved in a highjacking. Accordingly, 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 precedent, 

as was the District Court. 

IV. 

Hernandez also alleges that the District Court's definition 

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 charge to the 

jury correctly stated the appropriate legal standard, our 

review is plenary." United States v. Johnstone, 107 F.3d 

200, 204 (3d Cir. 1997). Jury instructions, taken as 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 instructions 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 requires the 

government to prove a criminal defendant's guilt beyond a 

 13 
reasonable doubt," therefore, "trial courts must avoid 

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 define 

"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 States, 348 

U.S. 121, 140 (1954)). 

Reasonable doubt is not an easy concept to understand, 

and it is all the more difficult to explain. Moreover, given 

the concerns about crime that are so prevalent in today's 

society, common sense suggests that it is particularly 

difficult for lay jurors to understand that they must acquit 

a criminal defendant if the prosecution does not establish 

guilt beyond a reasonable doubt, even if they feel that the 

defendant is probably guilty. Jurors may well be reluctant 

to free someone accused of a serious and violent crime 

"merely" because the government didn't prove beyond a 

reasonable doubt what they feel "in their hearts" is 

probably true. Yet, due process is satisfied by nothing less 

than a juror's understanding that he or she may not vote 

to convict a defendant based upon a belief "that the 

defendant is probably guilty. . . ." Sullivan v. Louisiana, 508 

U.S. 275, 278 (1993) (emphasis added). Rather, an 

impartial evaluation of evidence is required. "A juror 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 in 

court.' " United States v. Polan, 970 F.2d 1280, 1284 (3d 

Cir. 1992). Reasonable doubt is, therefore, a doubt based 

upon reason rather than whim, possibilities or supposition. 

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 selection. 

The court informed potential jurors: 

 [THE COURT]: Now, ladies and gentlemen, a criminal 

 case comes before you by way of indictment and the 

 Government has to prove the elements of the offense, 

 14 
 each offense in the indictment beyond a reasonable 

 doubt, each count has to be proven beyond a 

 reasonable doubt. 

 And if the Government fails to prove to your 

 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 reasonable 

 doubt, including each and every element, then you 

 would return a verdict of guilty. 

 You are to be thoughtful, systematic, analytical, 

 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 prove the 

 charge. . . . 

 How do you decide if they have been proven? There 

 is no scale we can say all right, this is how you can 

 weigh the evidence. It's really an internal process that 

 you must engage in. You have to use your judgment, 

 your maturity, your powers of analysis, your sense of 

 what makes -- what sounds reasonable, what sound 

 [sic] likely. Does this sound like what happened 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 began 

hearing evidence, the court told the jury: 

 The burden of proof is on the Government. The 

 Government brings the charges. The Government has 

 to prove the charges. The grand jury has been 

 impaneled by the Government. The defendant doesn't 

 appear before the grand jury. The grand jury hears the 

 evidence and decides whether an indictment shall 

 issue, and you are the body to decide whether the 

 charges are to be sustained. 

_________________________________________________________________ 

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

the 

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

 15 
 How do you decide that? By whether the Government 

 can prove the guilt of the charges of this defendant 

 beyond a reasonable doubt. That's the standard. 

 How do you decide what is proof beyond a reasonable 

 doubt? There is no specific definition. I'm sorry to tell 

 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 beyond a reasonable 

 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 measuring 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 evidence, 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 her name up 

 on the easel there so you can just see that. That kind 

 of helps you to focus. The government will call its 

 witnesses first because that's the way a case proceeds. 

 Each witness is called by the Government, questioned 

 by counsel for the Government, cross-examined 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 present any 

 witnesses he wants to present. He doesn't have to. He 

 is free to present anybody he wants. 

 Then both sides rest. 

 Then the lawyers on each side give what we call a 

 closing argument. They summarize what has been 

 presented in the trial and the Judge gives the Judge's 

 charge to the 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 beyond a reasonable 

 doubt. I'll define the presumption of innocence, what 

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

 various terms that you will hear throughout the trial. 

App. at 175-76 (emphasis added) (the "initial instruction"). 

Defense counsel objected, and the court responded in 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 ephemeral 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 defendant 

 beyond a reasonable doubt. And you will have to 

 analyze the proofs so as to decide in your own mind: 

 Was this proven beyond a reasonable doubt? 

App. at 13 (the "clarification"). 

At the end of the trial the District Court gave what 

defendant refers to as a "traditional charge" on reasonable 

doubt. There, the court explained: 

 Under our system, the judge is the final arbiter of all 

 questions of law and the jury in its deliberations 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 considered 

 and applied together with all other parts and phases of 

 the instructions. You must not pick out some

 particular instruction alone or some particular portion 

 of an instruction and overemphasize it and apply it 

 without considering and keeping in mind all the other 

 instructions given you with regard to this case. 

 You should construe each of the instructions in light 

 of and in harmony with the other instructions. You 

 should apply the instructions as a whole to the 

 evidence. The order in which the instructions are given 

 has no significance and is no indication of their relative 

 importance. . . . 

 17 
 *** 

 A defendant is never to be convicted on mere 

 suspicion or conjecture. The burden is always upon the 

 prosecution to prove guilt beyond a reasonable 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 testifying 

 himself or producing any evidence. 

 If after a fair, impartial and careful consideration of 

 all the evidence, you have a reasonable doubt as to a 

 defendant's guilt, it is your duty to acquit him. . . . 

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

 that. Reasonable doubt. A reasonable doubt is doubt 

 based on reason and common sense. A reasonable 

 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 evidence. It 

 is doubt based on reason, logic, common sense and 

 experience. Reasonable doubt is not vague or

 hypothetical doubt. It is not speculative, imaginary 

 qualms or misgivings. It is not just an excuse by a 

 juror to avoid the performance of an unpleasant duty. 

 It is not the normal sympathy which one human 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 argues that 

"[b]ased on the court's remarks, the jury may have believed 

incorrectly that a conviction could be based on what they 

felt in their hearts or what sounded likely." Appellant's Br. 

at 18. He asserts that "the court's sounds likely test 

reduced the constitutionally required standard of proof to a 

mere preponderance of the evidence." 

However, the portion of the voir dire instructions that 

Hernandez challenges has nothing to do with reasonable 

doubt, nor do we think the jurors could have interpreted 

the comments to suggest a definition of that concept. 

Rather, the court was simply explaining how jurors go 

about determining if a witness is telling the truth. Its 

 18 
comments amounted to nothing more than a suggestion

that jurors ask themselves whether testimony has the 

proverbial "ring of truth," and we find no error in the court 

having done so. See Altmose Construction Co. v. NLRB, 514 

F.2d 8, 15 n.8 (3d Cir. 1975) (noting the proverbial ring of 

truth in the noncriminal context); NLRB v. Nichols-Dover, 

Inc., 414 F.2d 561, 564 (3d Cir. 1969) (same). We reach 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 stated an 

incorrect definition of reasonable doubt, and also suggested 

that the jury could ignore the correct definition in the 

traditional charge by warning jurors that the traditional 

definition would not be helpful.5 Appellant's Br. at 18. The 

government responds in part by arguing that the judge's 

initial instruction was meant merely to give an overview of 

the trial procedure. The government cites Guam v. Ignacio, 

852 F.2d 459 (9th Cir. 1987), to argue that "[i]nstructions 

given at the start of a case simply do not have the same 

impact and therefore importance as instructions given to 

the jury at the close of a case, just before the case is 

submitted for the jury's deliberation." Appellee's Br. at 14. 

However, we believe that Ignacio, and the other cases relied 

upon by the government actually support Hernandez' 

argument. 

In Ignacio, the trial court gave some general preliminary 

instructions that included instructions on reasonable 

doubt. The instruction that the court gave was, however, 

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 initial instruction 

suggested that jurors could convict the defendant based 

upon what they believed in their own heart, soul and spirit 

_________________________________________________________________ 

5. "There is no specific definition. I'm sorry to tell 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 beyond a reasonable 

doubt." App. at 175. 

 19 
whether or not that belief was based upon a reasoned 

conclusion that the evidence established Hernandez' guilt 

beyond a reasonable doubt. Therefore, it was erroneous, 

not merely incomplete. The distinction is substantial. 

Subsequent amplification can fill the interstices in an 

incomplete explanation. However, when an erroneous 

instruction is given, a subsequent clarification must be 

sufficiently clear and compelling to allow a reviewing court 

to conclude that there was no reasonable likelihood that 

the initial inaccuracy affected the jury's deliberations. 

Victor, supra. Here, the government does not even maintain 

that the court's explanation that reasonable doubt is "what 

you feel inside" was correct. Rather, the government urges 

us either to ignore this language or to minimize its 

significance because of the subsequent clarification. In 

Ignacio, the court stated: 

 [g]eneral orientation at the beginning of a trial should 

 be cautiously worded, but it will not require 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 juror rather 

than an objective heightened standard of proof applicable to 

each juror. It allows jurors to convict based upon their 

individual "gut feeling." 

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

stated 

 The standard of proof beyond a reasonable doubt . . . 

 plays a vital role in the American scheme of criminal 

 procedure, because it operates to give concrete 

 substance to the presumption of innocence to ensure 

 against unjust convictions and to reduce the risk of 

 factual error in a criminal proceeding. At the same time 

 by impressing upon the factfinder the need to reach a 

 subjective state of near certitude of the guilt of the 

 20 
 accused, the standard symbolizes the significance that 

 our society attaches to the criminal sanction and thus 

 to liberty itself. 

443 U.S. at 315 (emphasis added) (internal quotation 

marks omitted).6 Thus, although a juror must subjectively 

believe that a defendant has been proven guilty, that 

subjective belief must be based upon a reasoned, objective 

evaluation of the evidence, and a proper understanding of 

the quantum of proof necessary to establish guilt to 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 inadequate. Here, 

as Judge Sloviter quite correctly notes in her thoughtful 

and forceful dissent, the District Court did tell the jury that 

their verdict had to be based upon the evidence, and that 

the government had the burden of proof. See dissent at 31. 

However, a likelihood of confusion remained as to the 

quantum of evidence necessary to sustain a conviction, 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 juror's 

minds. Thus, a juror may well have concluded that a"gut 

feeling" as to the defendant's guilt was adequate to convict 

so long as that feeling was supported by a preponderance 

of the evidence (or even less). The reasonable likelihood that 

this may have happened is not mitigated merely because 

jurors understood that the government had the burden of 

proof. Francis v. Franklin, 471 U.S. 307, 322 (1985). 

Moreover, the remaining cases that the government relies 

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 court's initial 

definition of the crime of conspiracy. Id. at 495. The 

definition that the court gave did not inform the jurors that 

an intent to commit the substantive crime was an element 

of the conspiracy. However, the court's final instructions 

_________________________________________________________________ 

6. In Jackson, the defendant was convicted in a bench trial. Thus, the 

Court was not considering the effect of an erroneous reasonable doubt 

standard on a lay jury. Nevertheless, as the dissent quite correctly 

notes, 

the language of Jackson is relevant to our discussion. 

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

erroneous initial instruction was reviewed for plain error. 

The court relied upon Ignacio to hold that, absent 

exceptional circumstances, "[w]here the instruction

challenged is given at the beginning of trial, reversal is 

unwarranted unless the defendant can prove prejudice or 

that the jury was materially misled." Id. The court then 

stated that no exceptional circumstances existed and it 

therefore would not assume that the jurors failed to follow 

the correct instruction. It was the only instruction they had 

on whether the government had to prove intent to commit 

the substantive offense. The court reasoned that 

 [i]t stretches credulity to think that the jury 

 disregarded the instruction they had just been given 

 because it included an element that had not been 

 mentioned earlier. 

Id. (citing Franklin, 471 U.S. at 322)). The situation here is 

far more problematic than an inquiry into whether 

providing a missing element cured its earlier omission. 

Indeed, our situation is more akin to the problem in 

Franklin, supra. There, a defendant was charged with 

murder in connection with a fatal shooting that occurred 

after he had escaped from state custody. The defendant's 

sole defense was that the gun had accidentally discharged. 

The trial judge instructed the jury that one is presumed to 

intend the natural consequences of his or her actions, but 

that the presumption may be rebutted. The court also 

informed the jury that the defendant was presumed 

innocent, and that the prosecution had the burden of 

proving each element of the crime charged beyond a 

reasonable doubt. 

Following his conviction, the defendant appealed alleging 

that the court's charge had improperly shifted the burden 

of proof to him, and that the language in the charge 

clarifying the burden of proof did not cure the infirmity. The 

Supreme Court agreed. 

 A reasonable juror could easily have resolved the 

 contradiction in the instruction by choosing to abide by 

 the mandatory presumption and ignore the prohibition 

 of presumption. Nothing in these specific sentences or 

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

 one of these contradictory instructions carries more 

 weight than the other. Language that merely 

 contradicts and does not explain a constitutionally 

 infirm instruction will not suffice to absolve the infirmity. 

 A reviewing court has no way of knowing which of the 

 two irreconcilable instructions the jurors applied in 

 reaching their verdict. 

Franklin, 471 U.S. at 322 (emphasis added). That is

precisely our situation. Indeed, our situation is worse 

because in the initial instruction the District Court 

suggested that jurors would derive little guidance from the 

definition that would be given at the end of the trial. Jurors 

who may have been confused by the more abstract 

traditional charge may well have relied upon the court's 

earlier assessment of the definition, and adopted the more 

easily understood standard of what you feel "in your 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 . . . ," and 

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, nothing in 

this record suggests that lay jurors drew this fine

distinction, or that they were even aware of it. Moreover, 

the jury was never instructed to ignore the substantive 

portion of the court's initial instructions in determining the 

meaning of reasonable doubt. We do not suggest that the 

problems created by the initial instruction could not have 

been cured. Rather, we hold that the instructions taken as 

a whole (including the clarification) were not adequate to 

"unring" the bell. The clarification stressed the importance 

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 instruct 

jurors to rely exclusively upon the written definition they 

would receive at the end of the trial. When the jurors finally 

heard the correct definition they had been forewarned that 

the definition they were hearing was less helpful than the 

prior erroneous explanation of what the term meant.

 23 
We are also unconvinced by the government's reliance 

upon United States v. Dilg, 700 F.2d 620 (9th Cir. 1981). 

See Appellee's Br. at 15-6. In Dilg, two juries were selected 

simultaneously. One was to hear Dilg's case, and the other 

was to be "on deck" to hear a trial that would start after 

Dilg's was finished. After both juries were selected, the 

judge gave general instructions that included instructions 

as to the presumption of innocence. Dilg's jury was then 

sworn, and the other jury was excused until later in the 

week.7 

At the conclusion of Dilg's trial the court gave a formal 

charge that informed the jury of the government's burden of 

proving every element beyond a reasonable doubt, but 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 court's 

general comments before trial and this cured the omission. 

The court of appeals disagreed. 

 There was no indication that the preliminary

 instructions were intended as the sole source of any 

 aspect of the law by which the case was to be 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 given on the 

 presumption of innocence. 

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

instructions were not intended to be the "sole source" of the 

law the jury was to apply. Although the final charge did not 

"refer back to the court's preliminary comments," Appellee'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 thefinal 

charge more weight than instructions given during the 

course of the trial because it was given immediately before 

_________________________________________________________________ 

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

erroneous we need not decide the effect of an erroneous instruction that 

is given before jurors are sworn. 

 24 
deliberations, and the initial instructions were muted by 

the passage of time having been given earlier in the 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 instructions 

from the trial court that would cause jurors to place more 

weight on the final charge than instructions given during 

the course of the trial. We will not assume that jurors, 

contrary to their oath, ignored part of the judge's initial 

instruction simply because it came early in the trial.8 "The 

[law] presumes that jurors, conscious of the gravity 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 instructions 

given them." Franklin, 471 U.S. at 324. We will not now 

hold that the importance of a jury instruction is determined 

by its proximity to the end of the trial. 

Similarly, we disagree with the dissent's assessment 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 judge's 

instructions. Neither can that one sentence be ignored 

when viewing the eight pages of which it is a part. Thus, we 

can not agree that our holding is based upon "unfounded 

speculation that the jurors disregarded clear instructions." 

Dissent at 33 (citing United States v. Newby, F.3d 1143, 

1147 (3d Cir. 1993).9 Rather, this conviction can stand only 

if we engage in unfounded speculation that jurors followed 

the proper written instruction despite the court's statement 

that it was not going to help them. See Franklin, 471 U.S. 

at 322 ("[a] reviewing court has no way of knowing which of 

the two irreconcilable instructions the jurors applied 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 four days. 

9. In Newby, the curative instruction as to improperly admitted evidence 

"was clear and effective," and the evidence in question was, "at most 

cumulative." Id. at 1146. Here, the curative instruction was neither clear 

nor effective, and the error requiring a curative instruction was far more 

serious. 

 25 
definition the jurors adopted so long as there is a

reasonable likelihood it chose the wrong one. Victor, 511 

U.S. at 6. We hold only that, given the totality of the unique 

circumstances here, that reasonable likelihood exists. 

The government's position to the contrary is rooted in the 

axiom that jury instructions must be viewed in their 

entirety, and a series of cases that have reaffirmed 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 preliminary 

instructions were faulty, they were outweighed and indeed 

cured by the court's correct final charge." Appellee's Br. at 

14. The government contends that the instructions, taken 

as a whole, adequately conveyed the concept of reasonable 

doubt and that there was, therefore, no reasonable 

likelihood that the jury understood the standard of

conviction to be less than beyond a reasonable doubt. 

However, as noted above, "[l]anguage that merely 

contradicts and does not explain a constitutionally infirm 

instruction will not suffice to absolve the infirmity." 

Franklin, 471 U.S. at 322. Thus, although the soundness of 

the principle underlying the government's argument is 

beyond dispute, we do not think it cures the infirmity in the 

initial instruction. Accordingly, we conclude that there is a 

reasonable likelihood that jurors utilized an improper 

definition of reasonable doubt and convicted the defendant 

not because the government proved its case beyond a

reasonable doubt as that term is properly understood, 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 remarks to assist them 

during the course of the trial. We only hold that when such preliminary 

instructions are given, jurors must not be allowed to guess at which of 

two conflicting instructions control their deliberations. This can be 

avoided by simply informing jurors which instructions control in the 

event they perceive a conflict between something they are told during the 

course of the trial, and something contained in the formal instructions 

that will follow the close of the evidence. 

 26 
V. 

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 proceedings 

consistent with this opinion. 

 27 
RENDELL, Circuit Judge, Concurring: 

I join in the thorough analysis, and result reached, by my 

colleague, but write briefly only to offer an additional 

practical reason as to why the purported cure by the 

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 instruction 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 exceedingly 

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 they should 

trust their heart and soul, then later, after viewing it, they 

are told to comment on it using a "reasoned" approach, will 

they not cling nonetheless to the impressions formed 

throughout the viewing based on their emotional reaction? 

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 determines in 

her heart and soul that the defendant is probably guilty will 

be able to perform the mental gymnastics to replace all she 

has observed and felt with a reasoned weighing of the 

government's case (assuming she has made the effort to do 

so in the face of initial instructions that the later definition 

will be of little help)? I am dubious. 

While it is true that a trial court's guidance as provided 

in most preliminary instructions will pale in significance as 

compared to the final dictates given, that is not the case if 

the particular instruction guides the jury's perceptions and 

observations as much as, or even more than, their ultimate 

decision making. 

Further, I do not agree with our dissenting colleague that 

our holding that this particular miscue was not cured poses 

any threat to the concept of cure beyond the limits of this 

unique fact pattern. 

 28 
SLOVITER, Circuit Judge, Dissenting: 

I approve and join in Parts I, II and III of the majority's 

opinion. I dissent from Part IV because I do not agree that 

we should reverse a conviction when, as we all agree, the 

trial court gave the jury complete and accurate instructions 

on reasonable doubt before the jury deliberated. The 

majority overturns the conviction on the basis of language 

with which the District Court described reasonable doubt in 

preliminary comments made to the jury before they heard 

opening statements or evidence. However, in light of the 

majority's concession that there was no error in the 

instruction on reasonable doubt when it was included in 

the charge that was given to the jury four days later, 

immediately before the jury proceeded to deliberate, the 

effect of the majority's decision is to elevate those 

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 any, were 

cured and because, as a general principle, incurable error 

is limited to grievous faults. 

I. 

The trial of Julio Hernandez began on February 4, 1998, 

on a three-count superseding indictment charging (count 1) 

conspiracy to obstruct, delay and affect commerce and the 

movement of commodities in commerce by robbery of a

tractor-trailer and the contents thereof, in violation of 18 

U.S.C. S 1951(a); (count 2) obstructing, delaying and 

affecting commerce and the movement of articles and

commodities in commerce by robbery, and threatening

physical violence to a person in furtherance of a plan 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 possessing 

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 motortruck and 

were moving as part of an interstate shipment, in violation 

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 

 29 
occasions. The first occasion was on February 4 during 

what the majority characterizes as the "voir dire 

instruction." Hernandez contends that because the court 

stated in the course of those comments that the jurors 

would have to use their sense of "what sounds likely" in 

evaluating the evidence, he was entitled to a new trial. The 

majority rejects Hernandez's contention and concludes that 

there was no error in the remarks made by the District 

Court at that time. 

The third occasion was the formal jury charge, given to 

the jury orally and in writing on February 13, before it 

proceeded to deliberate. The defendant does not challenge 

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, which the 

majority refers to as the "traditional charge" on reasonable 

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 is doubt 

 based on reason and common sense. A reasonable 

 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 evidence. It 

 is doubt based on reason, logic, common sense and 

 experience. Reasonable doubt is not vague or

 hypothetical doubt. It is not speculative, imaginary 

 qualms or misgivings. It is not just an excuse by a 

 juror to avoid the performance of an unpleasant duty. 

 It is not the normal sympathy which one human being 

 may hold for another. 

 It is not necessary for the United States or the 

 Government to prove the guilt of a defendant to a 

 mathematical certainty or beyond all possible doubt. 

 The reason is in this world of ours, it is practically 

 impossible for a person to be absolutely and completely 

 convinced regarding any disputed fact which by its 

 nature is not susceptible of mathematical certainty. 

 Consequently, the law is such that in a criminal case 

 it is sufficient if the proofs establish that a defendant 

 is guilty beyond a reasonable doubt, not beyond all 

 possible doubt. 

 30 
 Reasonable doubt is an honest and reasonable 

 uncertainty existing in your mind as to the guilt of the 

 defendant after carefully considering all the 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 that evidence 

 unhesitatingly in a matter of importance in its own 

 affairs. 

App. at 800-02. 

The majority's decision to reverse Hernandez's conviction 

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 characterizes as 

"the initial instructions," were such flagrant error 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 there is no 

specific definition of reasonable doubt (a patently accurate 

comment), that "[i]t's 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." App. at 

175. The majority has two objections: this statement 

"allows each juror to judge the evidence by a visceral 

standard unique to that juror, rather than an objective 

heightened standard of proof applicable to each juror," 

Majority Opinion at 20, and it "allows jurors to convict 

based upon their individual gut feeling.' " Id. The majority 

fails to acknowledge that in those remarks, which were 

really comments rather than instructions, the District 

Court emphasized, at the outset of even that initial stage, 

that "[t]he burden of proof is on the Government. The 

Government brings the charges. The Government has to 

prove the charges." App. at 175 (emphasis added). Nor does 

the majority specify what the jurors were told that might 

lead them to look to their "gut feelings" rather than the 

evidence to which the District Court repeatedly referred. 

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

District Court is that it improperly suggests a subjective 

approach, then the majority is inconsistent with the 

Supreme Court's articulation of the concept of reasonable 

doubt as a "subjective state of near certitude," Jackson 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"initial 

instructions" takes those comments out of context. It gives 

short shrift to the government's argument that these 

comments were merely meant to give an overview of the 

trial procedure. An examination of the court's entire 

presentation at that time reveals that the court was 

providing precisely that overview. See generally Federal 

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 language, 

information to make the trial more meaningful."). The 

District Court began by explaining the jury's function and 

role, that witnesses will be called, that there will be 

interpreters, who the lawyers will be, that the burden of 

proof is on the Government, the sequence of events, where 

the jurors could lunch, and the courtroom procedures to be 

followed. The comment to which the majority objects is one 

sentence in an overview that covers eight pages. App. at 

172-79. 

The District Court emphasized the preliminary nature of 

those comments, stating on several occasions that the 

charge and the instructions would be given to the jury 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 its 

explanation of the sequence of events that would follow, 

stated that after the lawyer on each side makes a closing 

argument, "the Judge gives the Judge's charge to the 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 beyond a 

reasonable doubt. I'll define the presumption of innocence, 

what does that mean. I'll define robbery. I'll define the 

 32 
various terms that you are hearing throughout the trial." 

App. at 176 (emphasis added). The court's procedure was 

consistent with common practice, under which the formal 

instructions containing precise definitions are left 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 definitions, 

including that for reasonable doubt, would be given later in 

light of the District Court's clear statements to that effect. 

Just as we assume that jurors follow the accurate, formal 

instructions of the court, see Opper v. United States, 348 

U.S. 84, 94 (1954) ("To say that the jury might have been 

confused amounts to nothing more than an unfounded 

speculation that the jurors disregarded clear instructions of 

the court in arriving at their verdict. Our theory of trial 

relies upon the ability of a jury to follow instructions."); 

United States v. Newby, 11 F.3d 1143, 1147 (3d Cir. 1993) 

(jury presumed to follow curative instructions regarding 

stricken evidence absent "overwhelming probability" jury 

was unable to follow it), we should assume that the jurors 

here listened to the judge's preliminary instructions 

regarding when and how they would receive their formal 

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 counsel 

stated: 

 I'm also objecting to the Court's lack of definition of 

 burden of proof as far as reasonable doubt is 

 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 have 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 merely 

contradicted by the final charge, the District Court took 

 33 
steps 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 reasonable 

 doubt will be defined in my charge, just as I will 

 explain at greater length presumption of innocence. 

 Because I refer to the fact that proof beyond a 

 reasonable doubt has no accurate measuring rod, I 

 don't want you to think that it is so ephemeral 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 defendant 

 beyond a reasonable doubt. And you will have to 

 analyze the proofs so as to decide in your own mind: 

 Was this proven beyond a reasonable doubt? 

App. at 191. 

In light of the prompt correction to the remarks that 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 reasonable 

doubt were not objectionable, I believe that there is no 

reasonable likelihood that the jurors were misled to use an 

improper definition of reasonable doubt in finding 

Hernandez guilty. 

I believe the majority's reversal of a conviction based 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 occasionally be 

made, even error of constitutional magnitude, but that 

most error either can be cured through an instruction or 

has not prejudiced a defendant's right so substantially that 

the conviction must be reversed. See generally Donnelly 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 character."); 

United States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 

 34 
1995) (en banc) ("In determining prejudice, we consider the 

scope of the objectionable [prosecutorial] comments and 

their relationship to the entire proceeding, the ameliorative 

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 evidence] 

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 the 

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 error in a 

jury instruction, as in this case, an appellate court must 

look to the charge as a whole. See Victor v. Nebraska, 511 

U.S. 1, 5 (1994). 

There was extensive analysis of two reasonable doubt 

instructions by the Supreme Court in Victor, where the 

petitioners challenged their reasonable doubt instructions. 

In one case, the petitioner challenged the charge that 

defined reasonable doubt in terms of "moral evidence" and 

"moral certainty," but the Court, although not condoning 

use of those terms, nevertheless concluded that they 

neither suggested a standard of proof lower than required 

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 reasonable 

doubt is "not a mere possible doubt" also did not require 

reversal because other language in the instruction made 

clear the meaning of that instruction. Similarly, the 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 for 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 

 35 
Court held that an instruction defining a reasonable doubt 

to be "an actual substantial doubt" was fatally defective 

because it suggested a higher degree of doubt than is 

required for acquittal under the reasonable doubt standard. 

Id. at 41. Certainly, the alleged error here in the court's 

preliminary, overview remarks is in no way equivalent with 

that in Cage, particularly as the error, if any, was followed 

by a prompt cure and, ultimately, a fully correct charge. 

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 charge but 

because the instruction on intent effected a mandatory 

presumption in violation of the Fourteenth Amendment'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 challenge to a 

reasonable doubt charge in a federal criminal trial, agreed 

that there were problems with the charge, which"should 

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 not of the 

type that could mislead the jury into finding no reasonable 

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 most 

felicitous expression in its overview, both the curative 

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 suspicion or 

conjecture"; "[r]easonable doubt is not vague or 

hypothetical doubt"; "[i]t is not speculative, imaginary 

qualms or misgivings." App. at 801. Those final instructions 

correctly conveyed the meaning of reasonable doubt and 

adequately neutralized whatever misleading effect may have 

been caused by the "what you feel inside" language in the 

remarks some four days earlier. 

 36 
Our 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 reversal. In 

this case, I disagree with my colleagues that a small portion 

of the trial court's initial comments, which were promptly 

corrected and later neutralized by the final charge, requires 

reversal of Hernandez's conviction. I therefore respectfully 

dissent. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 37