USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2314
UNITED STATES,
Appellee,
v.
ROBERTO COLON-PAGAN,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Selya and Stahl, Circuit Judges.
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James Kousouros with whom Debra K. Kousouros was on brief for
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appellant.
Jose A. Quiles, Senior Litigation Counsel, Criminal Division,
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with whom Daniel F. Lopez-Romo, United States Attorney, and Miguel A.
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Pereira, Assistant United States Attorney, were on brief for appellee.
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August 20, 1993
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BREYER, Chief Judge. Roberto Colon Pagan appeals
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his conviction for possessing, with intent to distribute,
about six kilograms of cocaine. 21 U.S.C. 841(a)(1). The
evidence against him was strong. A drug sniffing dog,
working at San Juan's airport, reacted positively to a
suitcase marked for a New York flight; drug agents traced
the luggage (through its tag) to the appellant, who was
sitting in the plane; the agents arrested appellant,
questioned him, obtained a search warrant, opened the bag
and found the cocaine. Neither the agents, nor the jury,
believed appellant's claim that a short fat man had given
him $1,000 to take the bag to New York. Despite the
strength of this evidence, however, we must order a new
trial, for the court's instruction to the jury about the
meaning of "reasonable doubt" was seriously erroneous.
The court told the jury that the government must
prove guilt beyond a "reasonable doubt," which, it said, did
not mean guilt "beyond all possible doubt." Rather, that
proof meant "proof of such a convincing character that a
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person . . . would be willing to rely and act upon it . . .
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. " (emphasis added.) Earlier, it had said that in order
to convict, "the [evidentiary] scales would have to tip more
to the government's side" than in a civil case, where "the
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plaintiff will prevail if he makes the scale tip just a
little bit to the side." It mentioned the presumption of
innocence. And, it also said that a "reasonable doubt" is a
"doubt based upon reason and common sense." Because
appellant's counsel did not object to these instructions at
trial, the issue on appeal is whether they contain an error
that is "plain" or a "defect[]" that "affect[s] substantial
rights." Fed. R. Crim. P. 52(b). The underscored language,
in our view, amounts to such an error.
The Supreme Court has said that, in applying the
"plain error" rule, Rule 52(b), we must ask 1) whether there
is an "error," 2) whether the error is "clear" or "obvious,"
and 3) whether the error "affect[s] substantial rights,"
which in most cases means that the error was, at a minimum,
"prejudicial." United States v. Olano, 113 S. Ct. 1770,
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1777-78 (1993). If a defect meets these three criteria,
then a court of appeals "has authority to order correction,
but is not required to do so." Id. at 1778. The Court has
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added that the "Court of Appeals should correct" such an
error if it "'seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.'" Id. at 1779
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(quoting United States v. Atkinson, 297 U.S. 157, 160
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(1936)). And, it has said that an error may do so
"independent of defendant's innocence." Id.
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To define "proof beyond a reasonable doubt" as
proof simply that a person "would be willing to rely and act
upon" is erroneous. The instruction may give the jury the
incorrect impression that it can convict a defendant in a
criminal case upon the basis of evidence no stronger than
might reasonably support a decision to go shopping or to a
movie or to take a vacation. See, e.g., United States v.
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Baptiste, 608 F.2d 666, 668 (5th Cir. 1979) (warning courts
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not to define "proof beyond a reasonable doubt" as the "kind
of proof that you would be willing to rely and act upon in
the management of your own personal affairs"), cert. denied,
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450 U.S. 1000 (1981). Indeed, courts have found
unconstitutional reasonable doubt instructions that seem
significantly less permissive. See Cage v. Louisiana, 498
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U.S. 39, 40-41 (1990) (holding as unlawful instruction that
reasonable doubt was "such doubt as would give rise to a
grave uncertainty" and "an actual substantial doubt," and
that what was required for conviction was a "moral
certainty" that the defendant was guilty). We recognize
that the district court may simply have misspoken. It may
have meant to refer to a somewhat different standard that
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appellate courts have not held unlawful, namely a standard
that refers to proof the jurors "would be willing to rely
and act upon in the most important of their own affairs."
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See, e.g., United States v. Gordon, 634 F.2d 639, 644 (1st
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Cir. 1980) (criticizing, but finding no plain error, in
instruction that proof beyond a reasonable doubt is proof
"that you would be willing to act on it in the most
important decisions that you have to make in your own lives
and for yourselves"). Nonetheless, we must consider what
the court did say, not what it may have intended to say.
And what it did say was clearly wrong. We can find no other
relevant instruction that somehow undid that wrong. And, we
therefore conclude that, in context, the instruction meets
the criteria for "error" and "obviousness." Cf. Baptiste,
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608 F.2d at 668 (finding no "plain" error where similar
instruction limited by context, but warning that such
finding would be likely in the future).
We also find that the error "affect[ed]
substantial rights." Fed. R. Civ. P. 52(b). While this
limitation ordinarily means that the error must at least
have been prejudicial, the Supreme Court has "never held
that a Rule 52(b) remedy is only warranted in cases of
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actual innocence." Olano, 113 S. Ct. at 1779 (emphasis in
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original). Rather, the Court has stated that "[t]here may
be a special category of forfeited errors that can be
corrected regardless of their effect on the outcome," or
whose prejudice may be presumed. Id. at 1778. The Court has
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also indicated that an unconstitutional "reasonable doubt"
instruction belongs in this category. The Sixth Amendment's
right to trial by jury, the Court has explained, requires "a
jury verdict of guilty beyond a reasonable doubt." Sullivan
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v. Louisiana, No. 92-5129, 1993 WL 179275 at *2 (U.S. June
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1, 1993). Where a trial court has seriously misdescribed
the government's burden of proof, however, "there has been
no jury verdict within the meaning of the Sixth Amendment."
Id. at *3-*4. We need not consider the strength of the
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evidence, therefore, in order to hold that the erroneous
instruction "affect[ed] substantial rights."
Finally, we believe that the erroneous
instruction, in the context of this case, "seriously"
affected the "fairness, integrity or public reputation of
judicial proceedings." Olano, 113 S. Ct. at 1779. We can
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reach this conclusion on the basis of case law. In
Sullivan, the Supreme Court held that a constitutionally
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defective "reasonable doubt" instruction constitutes a
"structural defect[] in the constitution of the trial
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mechanism." Sullivan, 1993 WL 179275 at *4. In Arizona v.
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Fulminante, 111 S. Ct. 1246 (1991), it held that a criminal
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trial marred by a "structural defect . . . 'cannot reliably
serve its function as a vehicle for determination of guilt
or innocence, and no criminal punishment [resulting from
such a trial] may be regarded as fundamentally fair.'" Id.
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at 1265 (quoting Rose v. Clark, 478 U.S. 570, 577-78 (1986))
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(emphasis added).
We can also reach this conclusion on the basis of
common sense. The erroneous instruction permitted the jury
to convict on the basis of evidence that it may have
believed sufficient to justify no more than the most
ordinary of decisions -- not evidence that proved guilt
beyond a "reasonable doubt." The instruction thus
significantly weakened what is perhaps the law's greatest,
and certainly its best known, safeguard against wrongly
convicting an innocent person. In this way, the error
"seriously affect[ed]" the "integrity" and "fairness" and,
perhaps, the "public reputation of judicial proceedings."
Olano, 113 S. Ct. at 1779. Thus, despite the importance,
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ordinarily, of insisting that counsel object to an error
before the trial ends (so that the judge can correct it), we
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have here a case of "plain error," Fed. R. Crim. P. 52(b),
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which requires a new trial, despite the absence of
objection.
So ordered.
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