1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-20-1998

United States v. Isaac

Precedential or Non-Precedential:

Docket 96-7109

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Recommended Citation

"United States v. Isaac" (1998). 1998 Decisions. Paper 16.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/16
Filed 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 Appellant 
 James 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 violation of 

21 U.S.C. S 846; (2) possession of marijuana with intent 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 guilty on 

the third. Isaac appeals his convictions, claiming that the 

district court inaccurately described the reasonable-doubt 

standard for the jury; failed to caution the jury on 

assessing the credibility of witnesses who, according to 

Isaac, should be considered accomplices or immunized 

witnesses; neglected to take judicial notice of the fact that 

identical charges against those witnesses were dropped "in 

response to the government's motion to dismiss" and

allowed the prosecutor to intimate that Isaac's decision not 

to testify was evidence against him. We will affirm. 

I. FACTS 

On August 5, 1994, a boat mechanic working near docks 

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 Corporal 

Roberts arrived, he found two men sitting on the barge, 

dressed in shorts and short-sleeved shirts and barefoot. 

They looked tired, bruised, sunburnt and dehydrated. Upon 

questioning by Corporal Roberts and U.S. Customs agents, 

 2 
the men identified themselves as Conrad Brown and Irvin 

Reid and said that they had arrived on the boat from 

Jamaica. They also described a man they knew as "Rocky," 

who, they said, had accompanied them from Jamaica and 

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 Roberts 

and Agent Smiley approached the man, the van and an

accompanying car sped off, but the man made no attempt 

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 had 

arrived with them in the boat from Jamaica. When customs 

agents searched the boat they found 29 bales of marijuana 

weighing approximately 582 pounds. 

Isaac, Brown and Reid were charged with conspiracy to 

possess marijuana with intent to distribute, possession 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 moved 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 Brown and 

Reid had been dropped "in the interest of justice and the 

witnesses['] cooperation." 

At Isaac's subsequent trial, Brown and Reid testified that 

they had set out on July 31, 1994 to go fishing with 

"Rocky." Because it was a windy day, they had taken a 

larger, community-owned vessel called the "Community 

Aid." Brown and Reid were dressed for a day offishing, 

barefoot, in shorts and short-sleeved shirts. The three of 

them first stopped in Port Royal, where Isaac disembarked 

to get beer. He returned with a friend, and asked that 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 island 

named Lime Cay. While Isaac and his friend drank beer 

under a tree, Brown and Reid took a walk. When they

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

move" for $20,000 in Jamaican dollars. Brown initially 

agreed, but then changed his mind when he grasped that 

a lengthy trip was involved. At that point, Brown and Reid 

claimed that Isaac's friend threatened them with a gun and 

forced them to remain on Lime Cay while he and Isaac 

departed in the boat. Brown was ready to swim to the 

mainland, but Reid did not think he could swim the nine or 

ten mile distance, so the two of them remained on the 

island. 

Several hours later, Isaac and his friend returned. The 

two five-gallon canisters of gasoline with which the boat 

had been equipped were gone, replaced by seven fifty-fivegallon drums of gasoline. The bow, which had been open, 

was now covered with a piece of plywood. Isaac's friend 

forced Brown and Reid to board at gunpoint, and Isaac, 

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. Thomas, 

and piloted the boat to the dock where it was discovered. 

Upon docking, Isaac left, telling Brown and Reid he would 

return. Shortly thereafter Brown and Reid were found and 

arrested. 

Brown testified that early in the trip he had planned to 

jump overboard and swim to safety, but he was dissuaded 

by Reid, who could not swim well. Neither made any further 

attempt to escape: they had never been far from Jamaica 

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 could convict 

Isaac only if the government had proven him guilty beyond 

a reasonable doubt, explaining the evidentiary standard as 

follows: 

 4 
 Reasonable doubt is a term often used, probably well 

 understood, but not easily defined. Reasonable doubt 

 is what the term implies. The doubt must be 

 reasonable. It is not a mere possible or imaginary 

 doubt, because as you well know, everything relating to 

 human affairs, and depending on oral testimony, is 

 open to some possible or imaginary doubt. The 

 government is not required to produce evidence that 

 will exclude every possibility 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 reasonable doubt. A reasonable doubt is 

 a fair doubt, based upon reason and common sense -- 

 the kind of doubt that would make a reasonable person 

 hesitate to act. Proof beyond a reasonable doubt must, 

 therefore, be proof of such a convincing character that 

 you would be willing to rely and act upon it, 

 unhesitatingly, in the most important of your own 

 affairs. 

 While bearing in mind that it is rarely possible to prove 

 anything to an absolute certainty, you must remember, 

 as well, that a defendant must never be convicted on 

 mere assumption, conjecture or speculation. So if the 

 jury views the evidence in the case as reasonably 

 permitting either of two conclusions, one of innocence, 

 the other of guilt, the jury should, of course, adopt the 

 conclusion of innocence. 

 Reasonable doubt may arise also from a lack of 

 evidence or proof. If you find that the government has 

 failed to produce evidence sufficient to satisfy you of 

 the guilt of the defendant beyond a reasonable doubt, 

 then he is entitled to an acquittal, or a verdict of"not 

 guilty." But if, after considering all of the evidence and 

 giving the accused the benefit of a reasonable doubt, 

 both as to the evidence presented or the lack of 

 evidence, you are led to the conclusion that he is 

 guilty, you should so declare by your verdict. 

Isaac points to several aspects of this charge which, he 

contends, misled the jury by suggesting that an improperly 

low level of certainty was required for conviction, in 

violation of the Fifth and Sixth Amendments. 

 5 
The Constitution requires that the government prove

every element of criminal charge beyond a reasonable 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 particular 

set of words is mandated. Victor v. Nebraska, 511 U.S. 1, 5, 

114 S. Ct. 1239, 1243 (1994). Due process is satisfied if the 

instructions, taken as a whole, accurately convey the 

concept of reasonable doubt to the jury. Id. (citing 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 the entire 

instruction the jury received led it to apply the correct 

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 portion 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 Court of 

Appeals has held that the "two-inference" instruction is 

improper because it "may mislead a jury into thinking that 

the government's burden is somehow less than proof 

beyond a reasonable doubt." United States v. Inserra, 34 

F.3d 83, 91 (2d Cir. 1994) (quoting United States v. Khan, 

821 F.2d 90, 93 (2d Cir. 1987)). In a decision issued three 

weeks after Isaac's trial, we urged trial courts to heed the 

Second Circuit's criticism of the "two-inference" instruction 

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 instruction 

was so constitutionally deficient per se that it infected the 

entire instruction on reasonable doubt. 44 F.3d at 1226. 

Accordingly, we will consider whether this deficiency 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 

 6 
to confuse and mislead the jury. We disagree. The practice 

of defining reasonable doubt by what it is not is well 

established. For instance, the definition formulated by 

Justice Shaw of the Massachusetts Supreme Judicial Court 

more than a century ago, which has served as a model 

instruction, begins by explaining that reasonable doubt "is 

not mere possible doubt . . . ." Victor, 511 U.S. at 8, 114 

S. Ct. at 1244 (quoting Commonwealth v. Webster, 59 Mass. 

295, 320 (1850)). More recently, the U.S. Supreme Court 

has affirmed judgments in two cases where the trial court 

explained reasonable doubt by contrasting what it is with 

what it is not. 511 U.S. at 7, 18, 114 S. Ct. at 1244, 1249. 

Here, the court contrasted reasonable doubt with "all 

possible doubt" and "imaginary doubt," and explained that, 

while it was not "absolute certainty," neither was it "mere 

conjecture or speculation." The court also stated the 

reasonable doubt was "a fair doubt" of the sort that would 

make a person hesitate to act. We are satisfied that the 

court made appropriate use of the negative examples, 

which were contrasted with positive examples to create a 

framework for the jury's understanding. 

Finally, Isaac objects to the court's explanation that proof 

beyond a reasonable doubt is "proof of such a convincing 

character that you would be willing to rely and act upon it, 

unhesitatingly, in the most important of your affairs." Isaac 

argues that this language was disapproved by the Supreme 

Court in Holland. We read the case differently. In Holland, 

the Court recommended that the reasonable doubt section 

of the jury charge be phrased "in terms of the kind of doubt 

that would make a person hesitate to act" rather than "the 

kind of doubt . . . which you folks in the more serious and 

important affairs of your own lives might be willing to act 

upon." 348 U.S. at 140, 75 S. Ct. at 138. Wefind that the 

instructions the court gave in this case properly heeded the 

Supreme Court's recommendation by stressing the need for 

convincing proof, and using the word "unhesitatingly." 

Moreover, in the preceding sentence of the charge, the 

court quoted the Holland formulation almost verbatim, 

stating that reasonable doubt is "the kind of doubt that 

would make a reasonable person hesitate to act." 

 7 
As a whole, the court's instructions adequately conveyed 

the government's burden of proof to the jury. The court 

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 accurately 

explained that the standard was high, but not to the point 

of absolute certainty or to the exclusion of possibilities 

which defy common sense. By analogizing the standard 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 it 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 Fifth 

Amendment right to due process and a fair trial, and his 

Sixth Amendment right to confrontation, by denying his 

request that the jury be instructed to weigh the testimony 

of Brown and Reid with greater care because they were 

immunized witnesses and accomplices.1 Although it would 

have been better had the district court given the 

instruction, we conclude that this jury was sufficiently 

apprized of the credibility concerns posed by the testimony 

of immunized witnesses Brown and Reid. 

We recognize that a witness who has been given a reward 

for cooperation has also been given an incentive to shade 

the truth or to lie. It may well be the better practice to give 

an instruction if requested. However, such an instruction is 

not required, especially when, as here, it has been made 

clear to the jury that it is permitted to disbelieve testimony 

to the extent it finds that the testimony was driven 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 Practice and 

Instructions (4th ed. 1992). 

 8 
a 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 accomplices and 

immunized witnesses with skepticism and caution, 

particularly when it is uncorroborated and material to 

establishing the defendant's guilt. See, e.g., United States v. 

Rosa, 560 F.2d 149, 156 (3d Cir. 1977); United States v. 

Bromwell, 467 F.2d 895, 896 (3d Cir. 1972); United States 

v. Schanerman, 150 F.2d 941, 943 (3d Cir. 1945); Marsh v. 

United States, 82 F.2d 703, 704 (3d Cir. 1936). 

Nevertheless, to date we have not determined whether it is 

error per se for a trial court to refuse to give such an 

instruction even when, as here, it was requested. Cf. United 

States v. Wright, 921 F.2d 42 (3d Cir. 1990) (considering 

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 accomplices 

and informers raises particular credibility problems 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. United 

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 witnesses by 

cross-examination, and to have the jury properly 

instructed. See Hoffa v. United States, 385 U.S. 293, 311- 

12, 87 S. Ct. 408, 418-19 (1966). Although no particular 

instruction is mandated, warning the jury to consider the 

testimony of an accomplice with great care and caution 

before relying on it is appropriate. Marsh, 82 F.2d at 704 

(citing Caminetti v. United States, 242 U.S. 470, 495, 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 that 

witnesses are presumed to speak the truth. See Crawford, 

212 U.S. at 204, 29 S. Ct. at 268. We have held, however, 

that a defendant's right to the presumption of innocence is 

 9 
violated 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. Evans, 398 

F.2d 159, 162 (3d Cir. 1968). Juries are now advised 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 factual 

 situation by carefully scrutinizing and analyzing the 

 testimony of each and every witness, with a view 

 toward determining whether a witness is neutral or 

 friendly, or whether the witness has told the truth or 

 exaggerated his testimony. 

In this situation, the necessity for an immunized witness 

or accomplice instruction is reduced. Therefore, we prefer 

to allow the trial court the discretion to decide whether to 

include an immunized witness or accomplice instruction 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 States 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). The trial court 

will generally be acting within its discretion if it allows 

defense counsel broad latitude to probe the credibility of 

accomplices and immunized witnesses, and instructs the 

jury to consider whether the witnesses' self-serving motives 

in testifying have destroyed or diminished their credibility. 

An immunized witness or accomplice charge is advisable 

when the jury has not otherwise been sufficiently alerted 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 accomplice or 

immunized witness charge. First, Isaac's attorney was 

permitted to conduct a vigorous defense. He repeatedly 

pointed out in cross-examination and argument to the jury 

that the government had no direct evidence, beyond the 

testimony of Reid and Brown, that Isaac had ever been on 

 10 
board the Community Aid or had forced Reid and Brown to 

accompany him from Jamaica. Isaac's attorney also 

brought out the facts that Reid and Brown had initially 

been indicted on the same charges as Isaac, and that they 

were represented by private counsel whose fees were being 

paid by an unknown source. Moreover, the crossexamination of Reid and Brown revealed that, although the 

charges against them had been dropped, they were still 

being kept in prison as material witnesses and realized they 

would not be freed until they had testified against Isaac. 

Thus, Isaac's counsel brought to the jury's attention factors 

which suggested that Reid and Brown might be motivated 

to give false evidence and that, without this suspect 

testimony, evidence of Isaac's involvement in the smuggling 

operation was slim. 

Second, the trial court instructed the jury that they were 

the judges of credibility and should consider the witnesses' 

motives, the circumstances under which they had testified 

and the relationship each might have to the prosecution or 

the defense. The court's instructions, taken together with 

defense counsel's vigorous attack on the credibility 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 Process 

Clause occurred where the informer was rigorously crossexamined and the trial court both recapped the defendant's 

version of events for the jury and gave it a general 

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 that 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 notice 

that all charges against Reid and Brown were dismissed, 

but did not add that this was done "in response to the 

 11 
government's motion." Isaac contends that the omission 

"placed a judicial imprimatur and enhancement on the 

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 party 

requests that it do so and supplies the necessary 

information. Fed. R. Evid. 201(b), (d). In this instance, the 

fact that the charges against Reid and Brown had been 

dropped on the motion of the United States was readily 

ascertainable from the court order, entered into evidence at 

Isaac's trial as Exhibit F. Indeed, when the court ruled on 

the defendant's motion to take judicial notice of certain 

facts, the court agreed to include the words "in response to 

the government's motion"; their omission from the judicially 

noticed facts read to the jury seems to have been 

inadvertent, not deliberate. 

Nonetheless, the judicial order dismissing the charges 

against Brown and Reid was entered into evidence, and it 

clearly stated that the charges were dismissed on the 

motion of the government. In addition, the government's 

motion to designate Reid and Brown as material witnesses 

was also entered into evidence; the supporting affidavit 

stated that the drug charges had been dismissed "in the 

interest of justice and the witnesses['] cooperation," a point 

defense counsel drove home in his closing argument.

Consequently, the jury was not misled into believing that 

the court had independently dismissed the charges against 

Brown and Reid. 

V. PROSECUTOR'S CLOSING ARGUMENT 

Finally, Isaac argues that his Fifth Amendment right not 

to testify was violated when the prosecutor stated, over 

defense counsel's objection, "Raymond Isaac captained that 

boat from Jamaica, and the only people who would know 

that Raymond Isaac captained that boat from Jamaica are 

Raymond Isaac, Conrad Brown, Irvin Reid, and that fourth 

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

According to Isaac, the prosecutor was implying that Isaac's 

decision not to testify and give his version of what did or 

did not happen on the boat was evidence of his guilt. 

In Griffin v. State of California, the Supreme Court 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 Baxter v. 

Palmigiano, 425 U.S. 308, 319, 96 S. Ct. 1551, 1558

(1976). Otherwise, the defendant is penalized by the court 

for exercising his constitutional right not to incriminate 

himself. Griffin, 350 U.S. at 614, 85 S. Ct. at 1232-33. 

However, when the defendant uses his Griffin protection 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 Robinson, 

the Supreme Court held that once defense counsel had 

asserted in closing argument that the government did not 

allow the defendant to tell his side of the story, it was not 

a violation of the Fifth Amendment for the prosecutor to 

respond by telling the jury that the defendant could 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 remarks in 

context to determine whether they are a fair response 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 violating 

Griffin, it was a fair response to defense counsel's closing 

argument. Much of that argument was an attack on the 

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 Brown and 

Reid were probably not the most upstanding individuals; 

however, there were no paragons of virtue present during 

the smuggling operation who could testify about it. In this 

context, the prosecutor's declaration that "the only people 

who would know that Raymond Isaac captained the boat 

are Raymond Isaac, Conrad Brown, Irvin Reid, and that 

fourth individual in Jamaica" comes across as an assertion 

that the government obtained its evidence from the only 

 13 
available sources. Although the prosecutor would probably 

have been better advised, given Griffin, to omit the reference 

to Isaac, the comment was not "of such character that 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 Fifth 

and Sixth Amendments were not violated, his convictions 

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. 

 14 
McKEE, Circuit Judge, concurring. 

I concur in the judgment and the opinion of the majority. 

I write separately, however, to express my concern over the 

district court's "two-inference" jury instruction on 

reasonable doubt. 

In defining "reasonable doubt," the district court 

instructed the jury: 

 Reasonable doubt is a term often used, probably well 

 understood, but not easily defined. Reasonable doubt 

 is what the term implies. The doubt must be 

 reasonable. . . . The government is not required to 

 produce evidence that will exclude every possibility 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 reasonable doubt. A 

 reasonable doubt is a fair doubt, based upon reason 

 and common sense -- the kind of doubt that would 

 make a reasonable person hesitate to act. . . . 

 While bearing in mind that it is rarely possible to 

 prove anything to an absolute certainty, you must 

 remember, as well, that a defendant must never be 

 convicted on mere assumption, conjecture or 

 speculation. So if the jury views the evidence in the 

 case as reasonably permitting either of two conclusions, 

 one of innocence, the other of guilt, the jury should, of 

 course, adopt the conclusion of innocence. 

 . . . But if, after considering all of the evidence and 

 giving the accused the benefit of a reasonable doubt, 

 both as to the evidence presented or the lack of 

 evidence, you are led to the conclusion that he is 

 guilty, you should so declare by your verdict. 

I agree with the majority that these instructions, taken as 

a whole, accurately conveyed the concept of reasonable 

doubt to the jury. In fact, the Supreme Court has expressly 

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 satisfied that 

 15 
this approved language and other portions of the charge 

mitigated any harm that flowed from the language 

suggesting that conviction was appropriate if the jurors 

concluded that one inference was merely more likely than 

the other. 

Isaac's trial preceded this Court's decision in United 

States v. Jacobs, 44 F.3d 1219 (3d Cir.), cert. denied, 115 

S. Ct. 1835 (1995), where we joined the Second Circuit in 

criticizing the two-inference language, see United States v. 

Inserra, 34 F.3d 83, 91 (2d Cir. 1994); United States 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 judges in future 

cases," Jacobs, 44 F.3d at 1226. This trial court did 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 when, as 

here, the defendant objects to the language. 

The two-inference language standing alone "may mislead 

a jury into thinking that the government's burden is 

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 language 

suggests that the government merely has to prove guilt by 

a preponderance of the evidence, the "least demanding 

standard." Livingstone v. North Belle Vernon Borough, 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 private 

parties." Id. (internal quotations omitted). Because society's 

stake in the outcome of this type of case is "minimal," "it is 

appropriate to [apply] a standard that allocates the risk of 

error between the litigants `in roughly equal fashion.' " Id. at 

534-35. The same is not true of criminal cases for which 

the standard proof beyond a reasonable doubt is reserved; 

"society wishes to `exclude as nearly as possible the 

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 evidence of 

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guilt or innocence is evenly balanced, but says nothing on 

how to decide when the inference of guilt is stronger than 

the inference of innocence but no[t] strong enough to be 

beyond a reasonable doubt." Id. 

Hopefully, courts will refrain from including the twoinference 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 well 

understood, but not easily defined." Indeed, rather than 

clarifying the concept, the language will often create a 

substantial risk of a criminal conviction based only upon a 

preponderance of proof. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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