Petition for Writ of Certiorari — Reives v. United States

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FILi

931791 APR 161994

OFFICE OF THE CLERK

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

JOHN OSCAR REIVES,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT.

PETITIONER'S PETITION

FOR WRIT OF CERTIORARI

James R. Van Camp

VAN CAMP, WEST, HAYES & MEACHAM, P.A.

Post Office Drawer 429

Carthage, North Carolina 28327

Counsel of Record for Petitioner

I. QUESTIONS PRESENTED

1. Whether the United States

Supreme Court should clearly outline under

what circumstances a trial court must

instruct the jury on the definition of

reasonable doubt where the United States

Courts of Appeals decisions on the issue

are in conflict.

2. Whether the Court of Appeals for

the Fourth Circuit committed reversible

error and deprived the Petitioner of Due

Process by affirming the trial court's

refusal to provide to the jury a

definition of the reasonable doubt after

the jury specifically requested a

definition of reasonable doubt during jury

deliberations.

VII.

VIII.

II. TABLE OF CONTENTS

QUESTIONS PRESENTED <r a ee ee ee

TABLE OF CONTENTS er pan ag ii

TABLE OF AUTHORITIES .... iii

REFERENCE TO OFFICIAL

OPINION oh tee ee eS viii

STATEMENT OF JURISDICTION : ix

STATEMENT OF APPLICABLE

CONSTITUTIONAL PROVISIONS,

TREATIES, STATUTES,

ORDINANCES AND REGULATIONS .. x

STATEMENT OF THE CASE ane 4S

REASONS FOR ALLOWING WRIT OF

CERTIGRART «© «+ «© «+ se wo eoe SG

I. The decision by the

Fourth Circuit in the

case at bar is in

direct conflict with

decisions from other

federal circuit courts

and thus the Supreme

Court should grant the

Petitioner's request for

a Writ of Certiorari and

definitively resolve

the issue. t= 26 «2 &@ es §

II.

The Court of Appeals for

the Fourth Circuit

violated the Petitioner's

right to Due Process and

committed reversible error

in upholding the trial

court's refusal to define

for the jury the reason-

able doubt standard after \

the jury specifically

requested a definition

of reasonable doubt . . 14

CONCLUSION ..-+ + + © © « » 44

APPENDIX ...+ ++ + © © « * 47

iii

TABLE OF AUTHORITIES

A) Case Authority

Agnew v. United States, 165 U.S. 36, 17

S.Ct. 235, 41 L.Ed. 624 (1897) as ie |

Blatt v. United States, 60 F.2d 481

(Seq Cir. 1932) «+ « «© «© «© «© « «© 3, 26

Bollenbach v. United States, 326 U.S. 607,

66 S.Ct. 402, 90 L.Ed.350 (1946) . ae

Brinegar v. United States, 338 U.S. 160,

69 S.Ct. 1302, 93 L.Ed. 1879 (1949) 30

Cage v. Louisiana, 498 U.S. 39, 111 S.Ct.

328, 112 L.Ed. 2d 339 (1990) . . 36-38

Coffin v. United States, 156 U.S. 432, 15

§.Ct. 394, 39 L.Ed.2d 481 (1895) . 30

Davis v. United States, 160 U.S. 469, 16

S.Ct. 353, 40 L.Ed. 499 (1895) .. 31

Friedman v. United States, 381 F.2d 155,

(SCR Cir. 3967) « « « © « « « Shy 36°87

In re Winship, 397 U.S. 358, 90 S.Ct.

1068, 25 L.Ed.2d 368

(3970) « © « « « » «. §4-15, 39°30, 33

Martin v. United States, 494 U.S.

1008, 110 S.Ct. 1306, 108

L.Ed.2d 482 (1990) . . . . oo >. . > 21

Murphy v. Holland, 776 F.2d 470, (4th

Cir. 1985), abrogated on other grounds,

475 U.S. 1138, 106 S.Ct. 1787, 90

L.Ed.2d Ja8 th70e) «4 & 6 eh helt EMS

Sandoval v. California,

s§.Ct.

L.Ed.2d

U.S. :

1239, ,

(62 U.S.L.W. 4179) (1994) eo 8 41

Schencks v. United States, 2 F.2d 185,

(BeG.e CAs Avaep 6 2 « . 4 11, 28

Sullivan v. Louisiana, U.S. s bbe

S.Ct.

Taylor

2078,

124 L.Ed.2d 182 (1993) 38-39

v. Kentucky, 436 U.S. 478, 98 S.Ct.

1930,

Taylor

56 L.Ed.2d 468 (1978) . - 33-34

v. United States, 495 U.S. 575, 110

S.Ct.

2143, 109 L.Ed.2d 607 (1990) 18

Thompson v. Lynaugh, 821 F.2d 1054, (5th

Cir.) cert. denied, 483 U.S. 1035, 108

S.Ct. 5, 97 L.Ed.2d 794 (1987) 11

United States v. Adkins, 937 F.2d 947,

(4th Cir. 1991) PR hes? ES ae eae

United States v. Dockery, 417 F.2d 330

(4th Cir. 1969) we i te oa ee

United States v. Hall, 854 F.2d 1036, (7th

Cir. 1988) Pa ae Ge dee

United States v. Hayes, 794 F.2d 1348

(9th Cir. 1986) cert. denied, 479

U.S. 1086, 107 S.Ct. 1289, 94

L.Ed.2d 146 (1987) —— 21

United States v. Headspeth, 852 F.2d

753, (4th Cir. 1988), abrogated on other

grounds, Taylor v. United States, 495

U.S.

109 L.Ed.2d 607 (1990)

575, 110 S.Ct. 2143,

United States v. Laing, 889 F.2d 281,

(D.C.Cir. 1989) cert. denied,

Martin v. United States, 494 U.S. 1008,

110 S.Ct. 1306, 108 L.Ed.2d 482

(1990) on er ee oe oe oe ee ee 21

United States v. Lawson, 507 F.2d 433 (7th

Cir. 1974), cert. denied, 420 U.S. 1004,

95 S.Ct. 1446, 43 L.Ed.2d 762 (1975) 11

United States v. Littlefield, 840 F.2d

143, (lst Cir.), cert. denied, 488 U.S.

860, 109 S.Ct. 155, 102 L.Ed.2d 126

(1988) oo *. © ee ee ee 8

United States v. Moss, 756 F.2d 329, (4th

Cir. 1985) 27>. Seale oe il, 16, 23-24

United States v. Nolasco, 926 F.2d 869,

(9th Cir.) (en banc), cert. denied,

U.S. 112 §.Ct. lili, 116

L.Ed.2d 80 (1991) 13

United States v. Pepe, 501 F.2d 1142,

(2G0GR Cif. 1976) « « © «© © © bee or? ae

United States v. Ricks, 882 F.2d 885, (4th

Cir. 1989), cert. denied, King v.

United States, 493 U.S. 1047, 110

S.Ct. 846, 107 L.Ed.2d 841 (1990) . 23

United States v. Russell, 971 F.2d 1098,

(4th Cir. 1992), cert. denied,

U.S. , §43 B.Cb. 0bse bee

L.. 86.36 1613 (1993) «: »« «© « « AD, 34

United States v. Shaffner, 524 F.2d 1021,

(7th Cir. 1975), cert. denied, 424

U.S. 920, 96 S.Ct. 1126, 47 L.Ed.2d

Sav (invert + 6 2 * & 68 © Oe ace «+ BS

Victor v. Nebraska, U.S. » BSG

§.Ct. 1239, L.Ed.2d , (62

U.S.L.W. 4179) (1994) . «© «© «© «© «© « 41

Whiteside v. Parke, 705 F.2d 869, (6th

Cir.), cert. denied, 464 U.S. 843,

104 8.Ct. 141, 78 L.Ed.2d 133 (1983) 12

Williams v. United States, 271 F.2d

703 (4th Cir. 1959)... + 14, 16, 18

B) Statutes

Title 21, United States Code,

re 2 eos ge ee

C) Miscellaneous

1 E. Devitt & C. Blackmar, Federal Jury

Practice and Instructions §11.14

(3d ed. 1977) a4

Federal Judicial Center, Pattern

Criminal Jury Instructions 28

(1987) (instruction 21) .... -; 24

vil

IV. REFERENCE TO OFFICIAL OPINION

The official opinion by the United

States Court of Appeals for the Fourth

Circuit, which is the subject of this

Petition, is cited as United States v.

Reives, 15 F.3d 42 (4th Cir. 1994). The

case was originally tried in the United

States District Court for the Middle

District of North Carolina before the

Honorable Judge William L. Osteen (CR-92-

36-D).

viii

V. STATEMENT OF JURISDICTION

The judgment which the Petitioner seeks

to have reviewed, cited as United States

v. Reives, 15 F.3d 42 (4th Cir. 1994) was

entered on January 19, 1994 by the United

States Court of Appeals for the Fourth

Circuit. The United States Supreme Court

has jurisdiction to review the

petitioner's Petition for Writ of

Certiorari pursuant to 28 U.S.C. 1254.

VI. STATEMENT OF CONSTITUTIONAL

PROVISIONS, TREATIES,

STATUTES, ORDINANCES AND REGULATIONS

Pursuant to Rule 14(f) of the Rules of

the Supreme Court of the United States,

the Petitioner identifies the following

constitutional provisions, treaties,

statutes, ordinances, and regulations

pertinent to this case.

l. 21 U.S.C. §846

"Any person who attempts or

conspires to commit an offense

defined in this title shall be

subject to the same penalties as

those prescribed for the

offense, the commission of which

was the object of the attempt or

conspiracy."

2. U.S. Const. Amend. V

"No person shall be held to

answer for a capital, or

otherwise infamous crime, unless

on a presentation or indictment

of a Grand Jury, except in cases

arising in the land or naval

forces, or in the Militia, when

in actual service in time of War

or public danger; nor shall any

person be subject for the same

offense to be twice put in

jeopardy of life or limb; nor

shall be compelled in any

criminal case to be a witness

against himself, nor be

deprived of life, liberty, or

property, without due process

of law; nor shall private

property be taken for public

use, without just

compensation."

RL eS PR AL as ore itn Cr ae eek ad a iE ae eS AR SE ER ee Sy teil ct Ne Lacan aed cae 2

VII. STATEMENT OF THE CASE

Summary of Case

The Petitioner, John Oscar Reives, was

indicted and charged with conspiring with

General Samuel Bristow and Frederick

Douglas Johnson to distribute "crack"

cocaine. Pursuant to an undercover

surveillance operation by law enforcement

authorities, agents purchased crack

cocaine from General Samuel Bristow and

Frederick Douglas Johnson. There was no

evidence directly establishing that the

Petitioner was a party to this

transaction. Rather, General Samuel

Bristow and Frederick Douglas Johnson each

agreed to provide testimony for the

government in exchange for a reduction in

the criminal charges and/or sentencing

which resulted from their illegal actions.

General Samuel Bristow and Frederick

Douglas Johnson testified that the

Petitioner provided the cocaine which was

allegedly sold during the transaction.

The jury found the Petitioner guilty of

conspiracy to distribute crack cocaine.

Nature of Case

The Petitioner was indicted and charged

with conspiring to distribute "crack"

cocaine. A criminal trial, No: CR-92-36-

01-D was held in the United States

District Court for the Middle District of

North Carolina (Durham Division) on June

15, 1992. The Honorable William L.

Osteen, Sr. presided over the criminal

trial. Prior to the trial court's charge

to the jury, counsel for the retitioner

requested that the trial judge define the

"reasonable doubt" standard during the

course of instructing the jury.

Transcript Vol. III, pp. 72-78. The court

refused to provide the requested

instruction as it pertained to the

definition of “reasonable doubt". Id. At

the conclusion of closing arguments by the

parties' respective counsel, the court

instructed the jury on the rules of law

that they were to follow and apply in

deciding the case. The trial court's jury

instructions, in their entirety, are

contained in the Transcript, Vol. III, pp-

117-142.

During the course of deliberation, the

jury, on its own volition, requested

assistance from the court. Specifically,

the foreperson of the jury sent the

following request to the trial judge: "We

need further clarification as to

‘reasonable doubt’.” Transcript, Vol.

III, p- 36. The trial judge indicated at

this point that he was not inclined to

comply with the jury request concerning

the definition of "reasonable doubt".

Transcript, Vol. III, p. 138.

Counsel for the Petitioner, Mr. Van

Camp, then stated to the trial court as

follows:

If Your Honor please, I think

this creates another situation,

and that is, now the jury has

specifically asked you to give

them a definition. It's not

like we're gratuitously giving

them one. The jury obviously

has a problem with this. On

their own motion they have come

forward to the ju:we and said,

"We want to knew what that

phrase means legally." ,

And it seems to me, when they

ask you that -- I mean there was

a definition of “reasonable

doubt" that we used in this

district. It wasn't the state

one, it was a different one,

somewhat. I can't believe that

all of those cases were tried

incorrectly up to that time.

People were found guilty and not

guilty, and life went on. And

just to say, for example, that

definition now, all of a sudden,

becomes obsolete as of -- to a

certain time -- I would, for the

record, move that the Court

consider the definition which we

have previously provided on our

request for instructions to

be given to the jury, which

was the definition which was

routinely used in our system.

And the Fourth Circuit in

this courtroom, and

courthouse, and to my

knowledge, for some thirty or

forty years, it was never

reversed on that basis.

Transcript, Vol. III, pp. 138-139.

Despite the specific request from the

jury and the specific request from counsel

for the Petitioner that the Court comply

with the jury request and instruct the

jury regarding the definition of the term

"reasonable doubt", the trial judge

refused to give the requested instruction

or any other definition of reasonable

doubt. Transcript, Vol. III, p. 140. The

trial judge proceeded to call the jury

back into court, and re-read a single

paragraph from the original instruction

given to the jury prior to deliberations.

ai,

Specifically, the trial judge stated as

follows:

[Tjhat while the Government's

burden of procf is a strict or

heavy burden, it is not

necessary that a defendant's

guilt be proved beyond all |

possible doubt. It is only

required that the Government's

proof exclude any reasonable

doubt concerning the defendant's

guilt. A reasonable doubt may

arise from the evidence, or from :

a lack of evidence... .

That's as much definition as I

can give you on "reasonable

doubt". You'll take that

instruction, along with’ the

instructions which I have given

you, and which you have a copy

of, to take to your jury room

and continue your deliberation.

Thank you very much.

Transcript, Vol. III, p. 141.

The trial judge then sent the jury back

for further deliberation. The trial

judge proceeded to make the following

comments in open court:

Mr. Van Camp, it's possible that

nothing further will come of the

matter. But I will tell you, if

I haven't told you earlier, that

sitting from the perspective

where I sit, it occurs to me

that the definition of

“reasonable doubt" is = an

important item in criminal

law. And that the history of

our country is such length

and duration that there

should be a good definition

of "reasonable doubt"

formulated to the extent that

trial courts can give more

than the instruction which I

have just given; and I wish

it were so. But I must say

that that's the way I read

the law at this time.

Transcript, Vol. III, pp. 141-142.

After several hours of deliberation, the

jury found the Petitioner guilty of

conspiring to distribute "crack" cocaine

in violation of Title 21, United States

Code, Section 846. The Petitioner

appealed to the Fourth Circuit and

assigned as error the trial judge's

failure to instruct the jury on the

definition of the "reasonable doubt"

Standard, when the jury specifically

requested such a definition. The Fourth

Circuit, although citing the’ great

confusion in the law among the circuits as

well as within the Fourth Circuit,

affirmed the Petitioner's conviction.

VIII. REASONS FOR ALLOWING

WRIT OF CERTIORARI

I. THE DECISION BY THE FOURTH CIRCUIT

IN THE CASE AT BAR IS IN DIRECT

CONFLICT WITH DECISIONS FROM OTHER

FEDERAL CIRCUIT COURTS AND THUS THE

SUPREME COURT SHOULD GRANT THE

PETITIONER'S REQUEST FOR A WRIT OF

CERTIORARI AND DEFINITIVELY RESOLVE

THE ISSUE.

Pursuant to Rule 10 of the Supreme

Court Rules, a review on Writ of

Certiorari is not a matter of right, but a

matter of judicial discretion. Although a

Petition on Writ of Certiorari will be

granted only when there are special and

important reasons, subsection (a) to Rule

10 outlines "the character of reasons that

will be considered" by the court.

Specifically, Rule 10(a) states that the

Supreme Court should consider review

"when the United States Court of Appeals

has rendered a decision in conflict with

the decision of another United States

Court of Appeals on the same matter." in

the case at bar, the Fourth Circuit

expressly acknowledged that the issue of

whether or not to define reasonable doubt

to a jury "has engendered a fair amount of

controversy, but little in the way of hard

and fast rules for the trial courts."

United States v. Reives, 15 F.3d at 44.

The Fourth Circuit went on to state "the

Court of Appeals are divided about if,

when, and how the concept of ‘reasonable

doubt’ should be defined." United States

v. Reives, 15 F.3d at 44.’

' The Fourth Circuit's decision specifically

acknowledged that four circuits agree that the failure

to define reasonable doubt is reversible error, four

circuits agree that the decision to define should be

left to the trial court's discretion, and two circuits

(including the Fourth Circuit), leave the decision

An examination of the relevant current

case law in the federal circuit courts

Clearly establishes that the Fourth

Circuit's decision in United States v.

Reives directly conflicts with the

decisions from other federal circuits.

More importantly, a review of the relevant

case law illustrates that there is no

continuity whatsoever among the federal

circuits regarding if or when it is

appropriate to define reasonable doubt to

the jury.

For example, the Third, Eighth, Tenth,

and District of Columbia Circuits require

that the court give an instruction

defining reasonable doubt when requested

by a defendant or the jury. See, e.qd.,

Blatt v. United States, 60 F.2d 481, (3rd

with the trial court but condemn the use of any

definition. See United States v. Reives, 15 F.3d at

44n.1.

—

Cir. 1932); Friedman v. United States, 381

F.2d 155, 160 (8th Cir. 1967); United

States v. Pepe, 501 F.2d 1142, 1143 (10th

Cir. 1974); Schencks v. United States, 2

F.2d 185, 187 (D.C. Cir. 1924). However,

the Fourth, Fifth, and Seventh Circuits

have taken the position that, as a general

rule, no attempt at all should be made to

define reasonable doubt. See, e.g.,

United States v. Moss, 756 F.2d 329, 333

(4th Cir. 1985); Thompson v. Lynaugh, 821

F.2d 1054, 1060-61 (5th Ciz.) cert.

demied, 483 U.S. 1035, 108 S.Ct. 5, 97

L.Ed.2d 794 (1987); United States v. Hall,

854 F.2d 1036, 1099 (7th Cir. 1988);

United States v. Shaffner, 524 F.2d 1021,

1023 (7th Cir. 1975), cert. denied, 424

U.S. 920, 96 S.Ct. 1126, 47 L.Ed.2d 327

(1976); United States v. Lawson, 507 F.2d

433 (7th Cir. 1974), cert. denied, 420

U.S. 1004, 95 S.Ct. 1446, 43 L.Ed.2d 762

(1975).

While not requiring a definition of

reasonable doubt, the First Circuit has

held that a trial judge's decision to give

an instruction defining reasonable doubt

is discretionary. United States _ v.

Littlefield, 840 F.2d 143, 146-47 (1st

Cir.), cert. denied, 488 U.S. 860, 109

S.ct. 155, 102 L.Ed.2d 126 (1988).

Similarly, the Sixth Circuit does not

require a definition of reasonable doubt,

but has recognized that the failure to

define may violate due process unless the

"totality of the circumstances"

establishes that a defendant otherwise

received a constitutionally fair trial.

Whiteside v. Parke, 705 F.2d 869, 871-72

(6th Cir.), cert. denied, 464 U.S. 843,

104 S.Ct. 141, 78 L.Ed.2d 133 (1983). The

Ninth Circuit has held that the decision

concerning whether or not to define

reasonable doubt rests within the

discretion of the trial court, holding

that "an appropriate instruction defining

reasonable doubt is permissible but not

necessarily required." United States v.

Nolasco, 926 F.2d 869, 872 (9th Cir.) (en

banc), cert. denied, U.S. 112

S.Ct. 111, 116 L.Ed.2d 80 (1991).

Based on the foregoing authority it is

Clear that the decision by the Fourth

Circuit Court of Appeals in the case at

bar is in direct conflict with previous

decisions by four federal circuit courts.

Specifically, the Fourth Circuit's

decision is in direct conflict with

decisions from the Third, Eighth, Tenth,

and District of Columbia Circuits, which

require the trial court to define

reasonable doubt for the jury. In order

to insure fair and consistent treatment of

all defendants in all circuits, the

Supreme Court should grant the

Petitioner's petition for Writ of

Certiorari and resolve this issue.

II. THE COURT OF APPEALS FOR

THE FOURTH CIRCUIT VIOLATED

THE PETITIONER'S RIGHT TO

DUE PROCESS AND COMMITTED

REVERSIBLE ERROR IN

UPHOLDING THE TRIAL COURT'S

REFUSAL TO DEFINE FOR THE

JURY THE REASONABLE DOUBT

STANDARD AFTER THE JURY

SPECIFICALLY REQUESTED A

DEFINITION OF REASONABLE

DOUBT.

In a criminal trial, the United States

has the burden to prove the guilt of a

defendant beyond a reasonable doubt.

Williams v. United States, 271 F.2d 703

(4th Cir. 1959). The United States

Supreme Court has recognized that the

reasonable doubt standard "plays a vital

role in the American scheme of criminal

procedure." In re Winship, 397 U.S. 358,

363, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368

(1970). Among other things, the

reasonable doubt standard ee ae

prime instrument for reducing the risk of

convictions resting on factual error."

Id. In order for a conviction to be

upheld, the evidence must tend to prove

the defendant's guilt beyond a reasonable

doubt, regardless of whether the evidence

is direct or circumstantial. United

States v. Dockery, 417 F.2d 330 (4th Cir.

1969). The "beyond a reasonable doubt"

requirement applies in state as well as

federal proceedings. See In re Winship,

397 U.S. at 364, 90 S.Ct. at 1072-73.

When analyzing the question of if or

when to define reasonable doubt, and the

confusion it has created, one need look no

further than the Fourth Circuit precedent.

The Fourth Circuit previously adhered to a

general rule that it was the duty of

district courts to define and explain the

meaning and application of the term

"reasonable doubt". Williams, 271 F.2d at

705. However, the practice of district

court judges in attempting to define the

term “reasonable doubt" was subsequently

disfavored in the Fourth Circuit. Murphy

v. Holland, 776 F.2d 470, 475-76 (4th Cir.

1985), abrogated on other grounds, 475

U.S. 1138, 106 S.Ct. 1787, 90 L.Ed.2d 334

(1986); United States v. Moss, 756 F.2d

329, 333 (4th Cir. 1985) ("[r]Jecognizing

“that little can be gained from attempts to

define reasonable doubt, while admitting

that added confusion is often created by

these well-intentioned judicial efforts,

we join in the general condemnation of

trial court attempts to define reasonable

doubt in their jury instructions").

However, prior to the Fourth Circuit's

holding in the case at bar, the Court

arguably recognized an "exception" to the

general rule that definitions of the

reasonable doubt standard should be

avoided. This “exception” applied when

the jury itself specifically requests the

trial judge to explain the concept of

reasonable doubt. United States vy.

Adkins, 937 F.2d 947, 950 (4th Cir. 1991)

("{t]he only exception to our categorical

disdain for definition [of reasonable

doubt] is when the jury specifically

requests it"). Indeed, the Fourth Circuit

has recognized as far back as the Murphy

decision that " .. . the wisest course

for trial courts to take is to avoid

defining reasonable doubt in their

instructions unless specifically requested

to do so by the jury.” Murphy, 776 F.2d

at 475 (emphasis added). See also, United

States v. Headspeth, 852 F.2d 753, 755

(4th Cir. 1988), abrogated on other

grounds, Taylor v. United States, 495 U.S.

575, 110 S.Ct. 2143, 109 L.Ed.2d 607

(1990) (recognizing "exception" where jury

specifically requests explanation of

reasonable doubt standard).

Thus, according to the Fourth Circuit,

when the jury specifically requests that

the court explain the concept of

"reasonable doubt", the exception set

forth by the above-referenced Fourth

Circuit decisions applies, " .. . and it

is the duty of the court to define and

explain the meaning and application of

"reasonable doubt'." Williams, 271 F.2d

at «703; The scenario of a jury

specifically requesting a definition of

“reasonable doubt" was recently addressed

by the Fourth Circuit in United States v.

Russell, 971 F.2d 1098, 1108 (4th Cir.

S.Ct. 1013, 122 L.Ed.2d 161 (1993), where

| )

the Fourth Circuit stated: "We generally

disapprove of instructions defining

reasonable doubt, but we have suggested

that such an instruction should be given

when the jury is ‘demonstrably confused or

uncertain' and requests such an

instruction."

In affirming the Petitioner's

conviction in the case at bar, the Fourth

Circuit dismissed the foregoing authority

as dicta. United States v. Reives, 15

F.3d at 46. According to the court's

decision "the underlying premise in all

our cases is that trying to explain things

will confuse matters, and we cannot see

why a jury request should change this

premise." United States v. Reives, 15

F.3d at 46.

This statement by the court in Reives

misses the _ point; if the jury has

specifically asked for help, they are

already confused! How can "trying to

explain things" only "confuse matters"

when the jury's request for an explanation

is itself based upon confusion? To simply

ignore this confusion on the grounds that

"it won't matter anyway" leaves’ the

defendant's fate in the hands of a judge's

guesswork. What if a definition will

clear the way for the jury? What if it

would "matter"? If a definition of

reasonable doubt can assist the jury in

their deliberations after they have

requested help, what possible reason could

there be for not providing the definition?

It certainly cannot make matters worse.

The defendant deserves the benefit of the

doubt, not the court. Bollenbach v.

United States, 326 U.S. 607, 612-613, 66

S.Ct. 402, 405, 90 L.Ed.350 (1946) ("when

a jury makes explicit its difficulties a

trial judge should clear them away with

concrete accuracy"); United States v.

Laing, 889 F.2d 281, 290 (D.C.Cir. 1989)

cert. denied, Martin v. United States, 494

U.S. 1008, 110 S.Ct. 1306, 108 L.Ed.2d 482

(1990) ("where the jury explicitly reveals

its confusion on an issue, however, the

court should reinstruct the jury to clear

away the confusion"); United States -v.

Hayes, 794 F.2d 1348 (9th Cir. 1986) cert.

denied, 479 U.S. 1086, 107 S.Ct. 1289, 94

L.Ed.2d 146 (1987) (District Court has

responsibility to eliminate confusion when

a jury asks for clarification).

Moreover, the narrow "exception" to the

rule prohibiting definitions of reasonable

doubt, whether dicta or not, was not

created in a vacuum. Instead, it was

carved out by the court to protect a

defendant's constitutional right to due

process by reducing the prospects of jury

confusion. While the phrase "all men are

created equal" certainly has merit, it

does not, by any stretch of the

imagination, translate into a conclusion

that all juries are equal -- whether in

their capacity to evaluate and judge

evidence, or in their ability to

understand complicated legal concepts.

Stated differently, some juries find no

difficulty in understanding and applying

the court's instructions, while other

juries, for one reason or another, may

need further assistance from the court.

When a defendant's liberty is at stake in

a criminal trial, a court should make

every effort to insure that confusion does

not undermine the tenets of our criminal

procedure. If a jury needs no further

assistance after receiving the court's

initial instructions, then let them go to

work. However, if the jury feels that it

cannot properly proceed without further

instructions or clarification, then the

court should provide the requested

assistance pursuant to approved pattern

jury instructions. See United States v.

Ricks, 882 F.2d 885, 894 n.12 (4th Cir.

1989), cert. denied, King v. United

States, 493 U.S. 1047, 110 S.Ct. 846, 107

L.Ed.2d 841 (1990) (court should define

reasonable doubt upon request from jury to

do so);

The Fourth Circuit's decision in United

States v. Moss, supra, clearly sets forth

the proper procedure that a trial judge

should follow when the jury specifically

requests an explanation of the reasonable

doubt standard: "{[wje suggest that

whenever a jury request makes an

instruction defining reasonable doubt

necessary, district courts should

accurately replicate the pattern jury

instruction used to avoid any unnecessary

confusion." United States v. Moss, 756

F.2d at 334 & n.l. In United States v.

Moss the court quoted the pattern jury

instruction found in 1 E. Devitt & C.

Blackmar, Federal Jury Practice and

Instructions §11.14 (3d ed. 1977), which

states as follows:

Proof beyond a reasonable doubt

must therefore be proof of such

a convincing character that a

reasonable person would not

hesitate to rely and act upon it

in the most important of his own

affairs.

United States v. Moss, 756 F.2d at 334 &

n.l. This pattern instruction was also

given by the trial court in United States

v. Russell, supra, after a specific jury

request for such an instruction. United

States v. Russell, 971 F.2d at 1108.

Other courts have held that the pattern

jury instruction set forth in Federal

Judicial Center, Pattern Criminal Jury

Instructions 28 (1987) (instruction 21)

Should be used by trial courts when

attempting to define reasonable doubt.

United States v. Hall, 854 F.2d at 1044.?

In fact, the Hall court stated that ".

a district: judge who on the basis of his

experience with juries and his observation

of the particular jury thinks that such an

instruction [on reasonable doubt] would

help the jurors in their deliberations

should be allowed to give it, especially

if the jury requests further instruction

on reasonable doubt." Id. (Emphasis

added). Thus, the courts do have a proper

? This pattern jury instruction on reasonable

doubt reads as follows: "Proof beyond a reasonable

doubt is proof that leaves you firmly convinced of the

defendant's guilt. There are very few things in this

world that we know with absolute certainty, and in

criminal cases the law does not require proof that

overcomes every possible doubt. If, based on your

consideration of the evidence, you are firmly

convinced that the defendant is guilty of the crime

charged, you must find him guilty. If, on the other

hand, you think there is a real possibility that he is

not guilty, you must give him the benefit of the doubt

and find him not guilty."

course to follow once a definition of

reasonable doubt is necessary.

Cases from four federal circuits

expressly require the trial court to

define reasonable doubt. In Blatt v.

United States, 60 F.2d 481 (3rd Cir. 1932)

the defendant appealed his conviction for

maintaining a common nuisance. After the

evidence was presented, the trial court

refused to define reasonable doubt in its

jury instructions. The specific

instruction requested had previously been

approved by this court in Agnew v. United

States, 165 U.S. 36, 17 S.Ct. 235, 41

L.Ed. 624 (1897). The Third Circuit

reversed the conviction holding that it

was prejudicial error not to give an

“instruction upon the meaning in the law

of the term ‘reasonable doubt'." Blatt v.

United States, 60 F.2d at 481. Similarly,

in Friedman v. United States, 381 F.2d 155

(8th Cir. 1967) the Eighth Circuit held

that it is the trial court's "duty" to

instruct on the meaning of reasonable

doubt, and failure to do so constitutes

error. Friedman, 381 F.2d at 160.

In United States v. Pepe, 501 F.2d 1142

(10th Cir. 1974) the defendant was

convicted on charges of conspiracy to

possess and possession of heroin. At the

conclusion of the trial the court defined

reasonable doubt for the jury as follows:

A reasonable doubt is a fair

doubt based upon reason and

common sense and arising from

the state of the evidence. It

is rarely possible to prove

anything to an absolute

certainty. Proof beyond a

reasonable doubt is established

if the evidence is such as a

reasonably prudent man would be

willing to rely and act upon in

the most important of his own

affairs. A defendant is not

convicted on mere suspicion or

conjecture.

United States v. Pepe, 501 F.2d at 1143.

Understandably, the Tenth Circuit found

the foregoing definition constitutionally

sufficient and affirmed the defendant's

conviction. More importantly, however,

the court expressly recognized the

necessity to define reasonable doubt:

At the outset, we recognize that

the reasonable doubt standard is

a constitutional cornerstone of

the criminal justice system. A

defendant is entitled to have

his jury apprised of this

standard and its corollary, the

presumption of innocence, and is

entitled to have the meaning of

reasonable doubt explained to

the jury.

United States v. Pepe, 501 F.2d at 1143

(emphasis added).

Finally, in Schencks v. United States,

2 F.2d 185 (D.C.Cir. 1924) the defendant

was convicted of selling narcotics. The

Circuit Court for the District of Columbia

reversed the conviction on the grounds

that, inter alia, the trial court failed

to define for the jury the term reasonable

doubt. The Circuit Court expressly noted

that the defendant had requested that the

trial court provide the jury with a

definition of reasonable doubt.

Although the Supreme Court has never

expressly decided that issue, the court's

previous decisions do establish the

importance of the reasonable doubt

Standard in our judicial system. [In the

case of In re Winship, 397 U.S. 358, 90

S.Ct. 1068, 25 L.Ed.2d 368 (1970), Justice

Brennan discussed at length the importance

of the reasonable doubt standard in the

context of our judicial system. The case

presented the issue of whether proof

beyond a reasonable doubt was required

during the adjudicatory Stage of a

juvenile proceeding. Before discussing

the merits of the case, Justice Brennan

discussed the importance of reasonable

doubt:

The requirement that guilt of a

criminal charge be established

by proof beyond a reasonable

doubt dates at least from our

early years as a nation. The

demand for a higher degree of

persuasion in criminal cases was

recurrently expressed from

ancient times (though) its

crystallization into the formula

"beyond a reasonable doubt'

seems to have occurred as late

as 1798.

J * .

The reasonable doubt standard

plays a vital role in the

American scheme of criminal

procedure. It is a_ prime

instrument for reducing the risk

of convictions resting on

factual error. The standard

provides concrete substance for

the presumption of innocence. .

that bedrock ‘axiomatic and

elementary' principle whose

‘enforcement lies at the

foundation of the administration

of our criminal law'.

In re Winship, 397 U.S. at 361-62, 90

S.Ct. at 1071-72, quoting in part, Coffin

v. United States, 156 U.S. 432, 453, 15

S.Ct. 394, 403, 39 L.Ed.2d 481 (1895).