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. e du/thir dc ir c uit_1998/16Filed January 20, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-7109

UNITED STATES OF AMERICA,

v.

RAYMOND ISAAC, a/k/a ROCKY RAYMOND ISAAC,

Appellant

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF THE VIRGIN ISLANDS (ST. THOMAS) (D.C. Criminal No. 94-00215-1)

Argued on Tuesday, December 10, 1996 Resubmitted on Wednesday, August 27, 1997

BEFORE: SCIRICA, NYGAARD and McKEE, Circuit Judges

(Opinion Filed January 20, 1998)

Stephen A. Brusch, Esq. (Argued)

Office of the Federal Public Defender

P.O. Box 1327 Charlotte Amalie, St. Thomas United States Virgin Islands 00804

Attorney for AppellantJames A. Hurd, Jr., Esq.

United States Attorney Nelson L. Jones, Esq. (Argued) Assistant U.S. Attorney 5500 Veterans Drive, Suite 260 Charlotte Amalie, St. Thomas United States Virgin Islands 00802

Attorneys for Appellee

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Raymond Isaac was charged with: (1) conspiracy to possess marijuana with intent to distribute, in vio lation of 21 U.S.C. S 846; (2) possession of marijuana with i ntent to distribute, in violation of 21 U.S.C. S 841(a)(1); and (3) possession of marijuana on board a vessel arriving in the United States, in violation of 21 U.S.C. S 955. The jury found him guilty on the first two counts, and not g uilty on the third. Isaac appeals his convictions, claiming that the district court inaccurately described the reasonabl e-doubt standard for the jury; failed to caution the jury o n assessing the credibility of witnesses who, accordi ng to Isaac, should be considered accomplices or immunize d witnesses; neglected to take judicial notice of the fact that identical charges against those witnesses were drop ped "in response to the government's motion to dismiss" and allowed the prosecutor to intimate that Isaac's dec ision not to testify was evidence against him. We will affirm

.

I. FACTS

On August 5, 1994, a boat mechanic working near doc ks used by the St. Thomas police marine unit noticed a strange boat tied up beside an abandoned barge and called Corporal Alan Roberts of the marine unit. When Corp oral Roberts arrived, he found two men sitting on the ba rge, dressed in shorts and short-sleeved shirts and bare foot. They looked tired, bruised, sunburnt and dehydrated . Upon questioning by Corporal Roberts and U.S. Customs ag ents,

2the men identified themselves as Conrad Brown and I rvin

Reid and said that they had arrived on the boat fro m Jamaica. They also described a man they knew as "Ro cky," who, they said, had accompanied them from Jamaica a nd had left the boat when they docked.

Later, Roberts and U.S. Customs Agent Willis Smiley saw a man fitting the description of "Rocky" get out of a van that had pulled up near the dock. When Corporal Rob erts and Agent Smiley approached the man, the van and an accompanying car sped off, but the man made no atte mpt to leave. Asked his name, the man replied, "Rocky." Agent Smiley then asked him what his real name was and he replied, "Raymond Isaac." Isaac was shown to Brown and Reid, and they identified him as the "Rocky" who ha d

arrived with them in the boat from Jamaica. When cu stoms agents searched the boat they found 29 bales of mar ijuana weighing approximately 582 pounds.

Isaac, Brown and Reid were charged with conspiracy to possess marijuana with intent to distribute, posses sion of marijuana with intent to distribute, and possession of marijuana on board a vessel arriving in the United States. On the day the trial was to begin, the government m oved to dismiss the charges against Brown and Reid. In a simultaneous motion to designate Brown and Reid as material witnesses and detain them pending Isaac's trial, the government stated that the charges against Brow n and Reid had been dropped "in the interest of justice a nd the witnesses['] cooperation."

At Isaac's subsequent trial, Brown and Reid testifi ed that they had set out on July 31, 1994 to go fishing wit h "Rocky." Because it was a windy day, they had taken a larger, community-owned vessel called the "Communit y Aid." Brown and Reid were dressed for a day offishi ng, barefoot, in shorts and short-sleeved shirts. The t hree of them first stopped in Port Royal, where Isaac disem barked to get beer. He returned with a friend, and asked t hat the friend be allowed to accompany them. Brown agreed, and they fished for several hours. Isaac and his friend then had Brown and Reid take them to a nearby deserted islan d named Lime Cay. While Isaac and his friend drank be er under a tree, Brown and Reid took a walk. When they

3returned, Isaac asked Brown if he would like to do "a drug

move" for $20,000 in Jamaican dollars. Brown initia lly agreed, but then changed his mind when he grasped t hat a lengthy trip was involved. At that point, Brown a nd Reid

claimed that Isaac's friend threatened them with a gun and forced them to remain on Lime Cay while he and Isaa c departed in the boat. Brown was ready to swim to th e mainland, but Reid did not think he could swim the nine or ten mile distance, so the two of them remained on t he

island.

Several hours later, Isaac and his friend returned. The two five-gallon canisters of gasoline with which th e boat had been equipped were gone, replaced by seven fift y-fivegallon drums of gasoline. The bow, which had been o pen, was now covered with a piece of plywood. Isaac's fr iend forced Brown and Reid to board at gunpoint, and Isa ac, Brown and Reid departed, leaving the friend behind on the

deserted island.

Brown and Reid testified that they sailed for days, while Isaac navigated with the aid of charts and a global positioning system. Although Brown was at the helm most of the time, Isaac took over when they neared St. T homas, and piloted the boat to the dock where it was disco vered. Upon docking, Isaac left, telling Brown and Reid he would return. Shortly thereafter Brown and Reid were foun d and

arrested.

Brown testified that early in the trip he had plann ed to jump overboard and swim to safety, but he was dissu aded by Reid, who could not swim well. Neither made any further attempt to escape: they had never been far from Jam aica

and did not know how to read the charts or use the global positioning system; moreover, until arrested, they did not encounter anyone whom they could ask for help.

II. JURY INSTRUCTION ON REASONABLE DOUBT

The district court instructed the jury that it coul d convict Isaac only if the government had proven him guilty beyond a reasonable doubt, explaining the evidentiary stan dard as

follows:

4Reasonable doubt is a term often used, proba bly well

understood, but not easily defined. Reasonab le doubt is what the term implies. The doubt must be reasonable. It is not a mere possible or ima ginary doubt, because as you well know, everything relating to human affairs, and depending on oral testimo ny, is open to some possible or imaginary doubt. Th e government is not required to produce eviden ce that will exclude every possibility of a defendan t's innocence. It is only required to prove his guilt beyond a reasonable doubt, not beyond all possible doubt. The

test is one of reasonable doubt. A reasonabl e doubt is a fair doubt, based upon reason and common s ense -- the kind of doubt that would make a reasonab le person hesitate to act. Proof beyond a reasonable d oubt must, therefore, be proof of such a convincing cha racter that you would be willing to rely and act upon it

, unhesitatingly, in the most important of you r own affairs.

While bearing in mind that it is rarely poss ible to prove anything to an absolute certainty, you must remember, as well, that a defendant must never be conv icted on mere assumption, conjecture or speculation. So if the jury views the evidence in the case as reaso nably permitting either of two conclusions, one of innocence, the other of guilt, the jury should, of cour se, adopt the

conclusion of innocence.

Reasonable doubt may arise also from a lack of evidence or proof. If you find that the gove rnment has failed to produce evidence sufficient to sat isfy you of the guilt of the defendant beyond a reasonab le doubt, then he is entitled to an acquittal, or a ve rdict of"not guilty." But if, after considering all of th e evidence and giving the accused the benefit of a reasonab le doubt, both as to the evidence presented or the lac k of evidence, you are led to the conclusion that he is guilty, you should so declare by your verdic t.

Isaac points to several aspects of this charge whic h, he contends, misled the jury by suggesting that an imp roperly low level of certainty was required for conviction, in

violation of the Fifth and Sixth Amendments.

5The Constitution requires that the government prove

every element of criminal charge beyond a reasonabl e doubt to obtain a conviction. In re Winship, 397 U.S. 358 , 364, 90 S. Ct. 1068, 1073 (1970). While a trial court must advise the jury of the government's burden of proof, no pa rticular set of words is mandated. Victor v. Nebraska, 511 U .S. 1, 5, 114 S. Ct. 1239, 1243 (1994). Due process is satisf ied if the instructions, taken as a whole, accurately convey t he concept of reasonable doubt to the jury. Id. (citin g Holland v. United States, 348 U.S. 121, 140, 75 S. Ct. 127, 137 (1954)). Thus, although we have considered each of Isaac's criticisms, ultimately we must determine whether th e entire instruction the jury received led it to apply the c orrect standard of proof. If not, Isaac's conviction will be reversed. Sullivan v. Louisiana, 508 U.S. 275, 279-80, 113 S. Ct. 2078, 2081-82 (1993).

Isaac levels his most cogent criticism at the porti on of the district court's instruction that directed the jury to find him not guilty if the evidence supported two inferences , one of guilt, the other of innocence. The Second Circuit C ourt of Appeals has held that the "two-inference" instructi on is improper because it "may mislead a jury into thinki ng that the government's burden is somehow less than proof beyond a reasonable doubt." United States v. Inserr a, 34 F.3d 83, 91 (2d Cir. 1994) (quoting United States v . Khan, 821 F.2d 90, 93 (2d Cir. 1987)). In a decision issu ed three weeks after Isaac's trial, we urged trial courts to heed the

Second Circuit's criticism of the "two-inference" i nstruction when it is specifically brought to their attention. United States v. Jacobs, 44 F.3d 1219, 1226 & n.9 (3d Cir. ), cert. denied, 115 S. Ct. 1835 (1995). Isaac's counsel did make a timely objection to this instruction, citing Khan.

Although we disapproved of the "two-inference" instruction in Jacobs, we did not hold that the ins truction was so constitutionally deficient per se that it in fected the

entire instruction on reasonable doubt. 44 F.3d at 1226. Accordingly, we will consider whether this deficien cy was rectified by the remainder of the reasonable doubt

instruction.

Isaac argues that so much of the charge was phrased in terms of what reasonable doubt is not, that it only served

6to confuse and mislead the jury. We disagree. The p ractice

of defining reasonable doubt by what it is not is w ell established. For instance, the definition formulate d by Justice Shaw of the Massachusetts Supreme Judicial Court more than a century ago, which has served as a mode l instruction, begins by explaining that reasonable d oubt "is not mere possible doubt . . . ." Victor, 511 U.S. a t 8, 114 S. Ct. at 1244 (quoting Commonwealth v. Webster, 59 Mass. 295, 320 (1850)). More recently, the U.S. Supreme C ourt has affirmed judgments in two cases where the trial court explained reasonable doubt by contrasting what it i s with what it is not. 511 U.S. at 7, 18, 114 S. Ct. at 12 44, 1249.

Here, the court contrasted reasonable doubt with "a ll possible doubt" and "imaginary doubt," and explaine d that, while it was not "absolute certainty," neither was it "mere conjecture or speculation." The court also stated t he

reasonable doubt was "a fair doubt" of the sort tha t would make a person hesitate to act. We are satisfied tha t the court made appropriate use of the negative examples

, which were contrasted with positive examples to cre ate a framework for the jury's understanding.

Finally, Isaac objects to the court's explanation t hat proof beyond a reasonable doubt is "proof of such a convi ncing character that you would be willing to rely and act upon it, unhesitatingly, in the most important of your affai rs." Isaac argues that this language was disapproved by the Su preme Court in Holland. We read the case differently. In Holland,

the Court recommended that the reasonable doubt sec tion of the jury charge be phrased "in terms of the kind of doubt that would make a person hesitate to act" rather th an "the kind of doubt . . . which you folks in the more ser ious and important affairs of your own lives might be willin g to act upon." 348 U.S. at 140, 75 S. Ct. at 138. Wefind th at the instructions the court gave in this case properly h eeded the Supreme Court's recommendation by stressing the nee d for convincing proof, and using the word "unhesitatingl y." Moreover, in the preceding sentence of the charge, the court quoted the Holland formulation almost verbati m, stating that reasonable doubt is "the kind of doubt that would make a reasonable person hesitate to act."

7As a whole, the court's instructions adequately con veyed

the government's burden of proof to the jury. The c ourt repeatedly stated that the government was required to prove its case beyond a reasonable doubt, and that the

burden never shifted to the defendant. The court ac curately explained that the standard was high, but not to th e point of absolute certainty or to the exclusion of possib ilities which defy common sense. By analogizing the standar d of proof to the level of certainty an individual would require before unhesitatingly acting in important personal affairs, the court provided jurors with a comprehensible benchmark. Although the use of the "two-inference" example suggested that the standard is lower than i t is, this defect was counterbalanced by the explanation that preceded and succeeded it. Accordingly, we conclude that the jury instruction, taken as a whole, was not constitutionally deficient.

III. JURY INSTRUCTION ON WITNESS CREDIBILITY

Isaac contends the district court violated his Fift h Amendment right to due process and a fair trial, an d his Sixth Amendment right to confrontation, by denying his request that the jury be instructed to weigh the te stimony of Brown and Reid with greater care because they we re immunized witnesses and accomplices.1 Although it w ould have been better had the district court given the instruction, we conclude that this jury was suffici ently apprized of the credibility concerns posed by the t estimony

of immunized witnesses Brown and Reid.

We recognize that a witness who has been given a re ward for cooperation has also been given an incentive to shade the truth or to lie. It may well be the better prac tice to give an instruction if requested. However, such an instr uction is not required, especially when, as here, it has been made clear to the jury that it is permitted to disbeliev e testimony to the extent it finds that the testimony was drive n more by

___________________________________________________ ______________

1. Specifically, Isaac moved to include in the jury charge sections 15.03 (immunized witness testimony) and 15.04 (accomplice testimony) from Devitt, Blackmar, Wolff & O'Malley, Federal Jury Pr actice and Instructions (4th ed. 1992).

8a self-serving desire for leniency than a sense of duty to tell

the truth. We have repeatedly approved the practice of counseling jurors to view the testimony of accompli ces and immunized witnesses with skepticism and caution, particularly when it is uncorroborated and material to establishing the defendant's guilt. See, e.g., Unit ed States v. Rosa, 560 F.2d 149, 156 (3d Cir. 1977); United Stat es v. Bromwell, 467 F.2d 895, 896 (3d Cir. 1972); United States v. Schanerman, 150 F.2d 941, 943 (3d Cir. 1945); Ma rsh v. United States, 82 F.2d 703, 704 (3d Cir. 1936). Nevertheless, to date we have not determined whethe r it is error per se for a trial court to refuse to give su ch an instruction even when, as here, it was requested. C f. United States v. Wright, 921 F.2d 42 (3d Cir. 1990) (consi dering whether it was plain error for court not to give an informant charge when defense counsel failed to make a timely request). We decline to do so now.

It has long been recognized that testimony of accom plices and informers raises particular credibility problem s since these witnesses have strong incentives to fabricate or mold their testimony as the government desires in order to escape prosecution, lighten their sentences, obtain remuneration or receive protection. See Cool v. Uni ted States, 409 U.S. 100, 103, 93 S. Ct. 354, 357 (1972 ); On Lee v. United States, 343 U.S. 747, 757, 72 S. Ct. 967, 973- 74 (1952). Consequently, the defendant is entitled to broad latitude in probing the credibility of such witness es by cross-examination, and to have the jury properly instructed. See Hoffa v. United States, 385 U.S. 29 3, 311- 12, 87 S. Ct. 408, 418-19 (1966). Although no parti cular instruction is mandated, warning the jury to consid er the testimony of an accomplice with great care and caut ion before relying on it is appropriate. Marsh, 82 F.2d at 704 (citing Caminetti v. United States, 242 U.S. 470, 4 95, 37 S. Ct. 192, 198 (1916); Crawford v. United States, 212 U.S. 183, 203-04, 29 S. Ct. 260, 268 (1908).

Courts were initially admonished to give cautionary instructions at a time when juries were counseled t hat witnesses are presumed to speak the truth. See Craw ford, 212 U.S. at 204, 29 S. Ct. at 268. We have held, ho wever, that a defendant's right to the presumption of inno cence is

9violated if a jury is instructed that witnesses are presumed

to speak the truth. United States v. Johnson, 371 F .2d 800, 804-05 (3d Cir. 1967); accord United States v. Evan s, 398 F.2d 159, 162 (3d Cir. 1968). Juries are now advise d that they are the judges of all witnesses' credibility. For instance, here the trial court said:

You can determine the truth by resolving the degree of credibility or reliability of the witnesses who have been produced before you. You are to decide the f actual situation by carefully scrutinizing and anal yzing the testimony of each and every witness, with a view toward determining whether a witness is neut ral or friendly, or whether the witness has told th e truth or exaggerated his testimony.

In this situation, the necessity for an immunized w itness or accomplice instruction is reduced. Therefore, we prefer

to allow the trial court the discretion to decide w hether to include an immunized witness or accomplice instruct ion in the charge to the jury. See United States v. Smith, 789 F.2d 196, 204 (3d Cir. 1986) (noting the trial court has wide discretion in charging the jury); see also United S tates v. Cook, 102 F.3d 249, 252 (7th Cir. 1996) (committing the decision to give an instruction on the credibility of informer testimony to the discretion of the trial court). Th e trial court will generally be acting within its discretion if i t allows defense counsel broad latitude to probe the credibi lity of accomplices and immunized witnesses, and instructs the jury to consider whether the witnesses' self-servin g motives in testifying have destroyed or diminished their cr edibility. An immunized witness or accomplice charge is advisa ble when the jury has not otherwise been sufficiently a lerted to the credibility concerns posed by the testimony of witnesses over whom the government wields particular power to reward or punish. See Cook, 102 F.3d at 252.

We conclude that the trial court did not abuse its discretion by refusing to give a specific accomplic e or immunized witness charge. First, Isaac's attorney w as permitted to conduct a vigorous defense. He repeate dly pointed out in cross-examination and argument to th e jury that the government had no direct evidence, beyond the testimony of Reid and Brown, that Isaac had ever be en on

10board the Community Aid or had forced Reid and Brow n to

accompany him from Jamaica. Isaac's attorney also brought out the facts that Reid and Brown had initi ally been indicted on the same charges as Isaac, and tha t they were represented by private counsel whose fees were beingpaid by an unknown source. Moreover, the crossexamination of Reid and Brown revealed that, althou gh the charges against them had been dropped, they were st ill being kept in prison as material witnesses and real ized they would not be freed until they had testified against Isaac. Thus, Isaac's counsel brought to the jury's attenti on factors which suggested that Reid and Brown might be motiva ted to give false evidence and that, without this suspe ct testimony, evidence of Isaac's involvement in the s muggling operation was slim.

Second, the trial court instructed the jury that th ey were the judges of credibility and should consider the w itnesses' motives, the circumstances under which they had tes tified and the relationship each might have to the prosecu tion or the defense. The court's instructions, taken togeth er with defense counsel's vigorous attack on the credibilit y of Reid and Brown, certainly put the jury on notice that it had to weigh carefully the possible accomplices' testimony . See Hoffa, 385 U.S. at 311-12 & nn.12-14, 87 S. Ct. at 418-19 & nn.12-14 (holding that no violation of the Due Pr ocess Clause occurred where the informer was rigorously c rossexamined and the trial court both recapped the defe ndant's version of events for the jury and gave it a genera l instruction on assessing witness credibility). The fact that the jury acquitted Isaac of possessing marijuana on board a vessel arriving in the United States indicates th at the jury took these instructions seriously, since Reid's and Brown's testimony, if credited, would have been sufficient to convict

Isaac on this count as well.

IV. JUDICIAL NOTICE OF DISMISSAL

OF CHARGES AGAINST REID AND BROWN

Isaac argues that his Fifth Amendment right to due process was violated when the court took judicial n otice that all charges against Reid and Brown were dismis sed, but did not add that this was done "in response to the

11government's motion." Isaac contends that the omiss ion

"placed a judicial imprimatur and enhancement on th e credibility of Brown and Reid" by implying that the court had independently dismissed the charges, presumably for

lack of evidence.

Rule 201 of the Federal Rules of Evidence requires the court to take judicial notice of facts "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned" when a pa rty requests that it do so and supplies the necessary information. Fed. R. Evid. 201(b), (d). In this ins tance, the fact that the charges against Reid and Brown had be en dropped on the motion of the United States was read ily ascertainable from the court order, entered into ev idence at Isaac's trial as Exhibit F. Indeed, when the court ruled on the defendant's motion to take judicial notice of c ertain facts, the court agreed to include the words "in re sponse to the government's motion"; their omission from the j udicially noticed facts read to the jury seems to have been inadvertent, not deliberate.

Nonetheless, the judicial order dismissing the char ges against Brown and Reid was entered into evidence, a nd it clearly stated that the charges were dismissed on t he motion of the government. In addition, the governme nt's motion to designate Reid and Brown as material witn esses was also entered into evidence; the supporting affi davit stated that the drug charges had been dismissed "in the interest of justice and the witnesses['] cooperatio n," a point defense counsel drove home in his closing argument. Consequently, the jury was not misled into believin g that the court had independently dismissed the charges a gainst

Brown and Reid.

V. PROSECUTOR'S CLOSING ARGUMENT

Finally, Isaac argues that his Fifth Amendment righ t not to testify was violated when the prosecutor stated, over defense counsel's objection, "Raymond Isaac captain ed that boat from Jamaica, and the only people who would kn ow that Raymond Isaac captained that boat from Jamaica are Raymond Isaac, Conrad Brown, Irvin Reid, and that f ourth

12individual in Jamaica. Those are the only people."

According to Isaac, the prosecutor was implying tha t Isaac's decision not to testify and give his version of wha t did or did not happen on the boat was evidence of his guil t.

In Griffin v. State of California, the Supreme Cour t held that the Fifth Amendment prohibits the judge and prosecutor from suggesting to the jury that it may treat the accused's silence as substantive evidence of guilt. 350 U.S. 609, 615, 85 S. Ct. 1229, 1233 (1965); see also Bax ter v. Palmigiano, 425 U.S. 308, 319, 96 S. Ct. 1551, 1558 (1976). Otherwise, the defendant is penalized by th e court for exercising his constitutional right not to incr iminate himself. Griffin, 350 U.S. at 614, 85 S. Ct. at 123 2-33. However, when the defendant uses his Griffin protec tion as a sword, rather than a shield, the prosecution may respond appropriately. See United States v. Robinson, 485 U .S. 25, 32, 108 S. Ct. 864, 869 (1988). For instance, in Ro binson, the Supreme Court held that once defense counsel ha d asserted in closing argument that the government di d not allow the defendant to tell his side of the story, it was not a violation of the Fifth Amendment for the prosecut or to respond by telling the jury that the defendant coul d have testified if he so chose. Id. at 26-28 & n.2, 108 S . Ct. at 866 & n.2. Thus, we must consider the prosecutor's rema rks in context to determine whether they are a fair respon se to an assertion by the defendant. Id. at 32-33, 108 S. Ct . at 869.

When the prosecutor's statement here is considered in context, we find that, although it comes close to v iolating Griffin, it was a fair response to defense counsel' s closing argument. Much of that argument was an attack on th e credibility of Brown and Reid, whose testimony was key to proving numerous elements of the government's case. The prosecutor began his rebuttal by conceding that Bro wn and Reid were probably not the most upstanding individu als; however, there were no paragons of virtue present d uring the smuggling operation who could testify about it. In this context, the prosecutor's declaration that "the onl y people who would know that Raymond Isaac captained the boa t are Raymond Isaac, Conrad Brown, Irvin Reid, and th at

fourth individual in Jamaica" comes across as an as sertion that the government obtained its evidence from the only

13available sources. Although the prosecutor would pr obably

have been better advised, given Griffin, to omit th e reference to Isaac, the comment was not "of such character th at the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." United States v. Chaney, 446 F.2d 571, 576 (3d Cir. 1971).

VI. CONCLUSION

Because we conclude that Isaac's rights under the F ifth and Sixth Amendments were not violated, his convict ions on the counts of conspiracy to possess a controlled

substance with intent to distribute in violation of 21 U.S.C. S 846 and possession of a controlled substance with intent to distribute in violation of 21 U.S.C. S 841(a)(1) will be

affirmed.

14McKEE, Circuit Judge, concurring.

I concur in the judgment and the opinion of the maj ority. I write separately, however, to express my concern over the district court's "two-inference" jury instruction o n reasonable doubt.

In defining "reasonable doubt," the district court instructed the jury:

Reasonable doubt is a term often used, prob ably well understood, but not easily defined. Reasonab le doubt is what the term implies. The doubt must be reasonable. . . . The government is not requ ired to produce evidence that will exclude every pos sibility of a defendant's innocence. It is only required to prove his guilt beyond a reasonable doubt, not beyond all possible doubt. The test is one of reasonabl e doubt. A reasonable doubt is a fair doubt, based upon reason and common sense -- the kind of doubt that w ould make a reasonable person hesitate to act. .

. .

While bearing in mind that it is rarely pos sible to prove anything to an absolute certainty, you must remember, as well, that a defendant must nev er be convicted on mere assumption, conjecture or speculation. So if the jury views the eviden ce in the case as reasonably permitting either of two conclusions, one of innocence, the other of guilt, the ju ry should, of course, adopt the conclusion of innocence.

. . . But if, after considering all of the evidence and giving the accused the benefit of a reasonab le doubt, both as to the evidence presented or the lac k of evidence, you are led to the conclusion that he is guilty, you should so declare by your verdic t.

I agree with the majority that these instructions, taken as a whole, accurately conveyed the concept of reasona ble doubt to the jury. In fact, the Supreme Court has e xpressly approved some of the language in the district court 's charge. See, e.g., Holland v. United States, 348 U. S. 121, 140 (1954) ("We think [the reasonable doubt] charge should

have been in terms of the kind of doubt that would make a person hesitate to act."). Therefore, I am satisf ied that

15this approved language and other portions of the ch arge

mitigated any harm that flowed from the language suggesting that conviction was appropriate if the j urors concluded that one inference was merely more likely than

the other.

Isaac's trial preceded this Court's decision in Uni ted States v. Jacobs, 44 F.3d 1219 (3d Cir.), cert. den ied, 115 S. Ct. 1835 (1995), where we joined the Second Circ uit in criticizing the two-inference language, see United States v. Inserra, 34 F.3d 83, 91 (2d Cir. 1994); United Stat es v. Attanasio, 870 F.2d 809, 818 (2d Cir. 1989); United States v. Khan, 821 F.2d 90, 93 (2d Cir. 1987), and stated that district courts should not use that language "when it is specifically brought to the attention of trial judg es in future cases," Jacobs, 44 F.3d at 1226. This trial court d id not have the advantage of that guidance. Here, I write separately to reiterate that district courts should refrain from using the two-inference language, especially w hen, as here, the defendant objects to the language.

The two-inference language standing alone "may misl ead a jury into thinking that the government's burden i s somehow less than proof beyond a reasonable doubt." Khan, 821 F.3d at 93; see also Inserra, 34 F.3d at 91 (same); Attanasio, 870 F.2d at 818 (same). The lang uage suggests that the government merely has to prove gu ilt by a preponderance of the evidence, the "least demandi ng standard." Livingstone v. North Belle Vernon Boroug h, 91 F.3d 515, 534 (3d Cir. 1996), cert. denied, 117 S. Ct. 1311 (1997). That standard is usually "appropriate to a typical civil case involving a monetary dispute between pri vate parties." Id. (internal quotations omitted). Becaus e society's stake in the outcome of this type of case is "minim al," "it is appropriate to [apply] a standard that allocates th e risk of error between the litigants `in roughly equal fashi on.' " Id. at

534-35. The same is not true of criminal cases for which the standard proof beyond a reasonable doubt is res erved; "society wishes to `exclude as nearly as possible t he likelihood of an erroneous judgment.' " Id. at 535.

Another problem with the two-inference language is that it "does not go far enough." Khan, 821 F.2d at 93. "It instructs the jury on how to decide when the eviden ce of

16guilt or innocence is evenly balanced, but says not hing on

how to decide when the inference of guilt is strong er than the inference of innocence but no[t] strong enough to be beyond a reasonable doubt." Id.

Hopefully, courts will refrain from including the t woinference language in their charges to the jury in the future. The language does not aid in clarifying the elusive concept of reasonable doubt which, as the district court below recognized, "is a term often used, probably w ell understood, but not easily defined." Indeed, rather than clarifying the concept, the language will often cre ate a

substantial risk of a criminal conviction based onl y upon a preponderance of proof.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

17