USCA1 Opinion
June 13, 1995 NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 94-1623
UNITED STATES,
Appellee,
v.
FRANCIS FUENTES,
Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, U.S. District Judge]
___________________
____________________
Before
Boudin, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Schwarzer,* Senior District Judge.
_____________________
____________________
Paul J. Garrity for appellant.
_______________
Andrew Levchuk, Assistant United States Attorney, with whom Kevin
______________ _____
O'Regan, Assistant United States Attorney, and Donald K. Stern, United
_______ _______________
States Attorney, were on brief for appellee.
____________________
____________________
_____________________
* Of the Northern District of California, sitting by designation.
Per Curiam. Francis Fuentes was convicted of three drug
__________
offenses arising from his involvement in a heroin importation
and distribution scheme. 21 U.S.C. 841, 846, 963. On
appeal, he argues that in four respects the district court
erred in its instructions to the jury. We review for plain
error only, since Fuentes did not object to the challenged
instructions when they were given. United States v. Whiting,
_____________ _______
28 F.3d 1296, 1308 (1st Cir.), cert. denied, 115 S. Ct. 532
_____ ______
(1994).
1. Fuentes first claims that the instructions quoted
below, given at different places in the charge, impermissibly
reduced the government's burden of proof by equating
reasonable doubt with a preponderance of the evidence:
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 must of course
adopt the conclusion of innocence.
Consider the evidence in the case for
only those purposes for which it has been
admitted, and give it a reasonable and
fair construction in light of your common
knowledge of the natural tendencies and
inclinations of human beings.
You should consider all the facts and
circumstances in evidence to determine
which of the witnesses are worthy of
greater credence.
The first instruction, known as the "two conclusions"
instruction, was upheld in United States v. Del Toro Soto,
______________ ______________
676 F.2d 13, 17-18 (1st Cir. 1982). Read literally, the two-
-2-
-2-
conclusions instruction merely emphasizes that in a close
case the jury must acquit; it says nothing about the
government's burden of proof. In this case the judge advised
the jury separately, and reiterated throughout his charge,
that the government had the burden of proving guilt beyond a
reasonable doubt. However the two-conclusions instruction
might be read out of context, we do not think that a jury
repeatedly instructed on the reasonable doubt standard could
view the two-conclusions charge as substituting for or
modifying the reasonable doubt standard.
In United States v. Kahn, 821 F.2d 90, 91 (2d Cir.
______________ ____
1987), the Second Circuit disapproved of a two-conclusions
instruction similar to that in this case; but it also found
that the instruction did not constitute reversible error in
the context of the full reasonable doubt instruction there
given. In another case, the Second Circuit refused to find
plain error when, without objection, the trial court gave an
arguably more harmful version of the two-conclusions charge.
United States v. Marcus, 401 F.2d 563, 567 (2d Cir. 1968),
______________ ______
cert. denied, 393 U.S. 1023 (1969). Since there was no
_____ ______
objection to the charge in our case, we see no conflict with
the Second Circuit.
The second and third instructions criticized on appeal
relate to the jury's evaluation of witness testimony and
other evidence. As with the two-conclusions instruction,
-3-
-3-
these instructions say nothing about the burden of proof;
they merely guide the jury in evaluating and considering the
evidence and are perfectly appropriate. United States v.
______________
DeMasi, 40 F.3d 1306, 1317-18 (1st Cir. 1994), cert. denied,
______ _____ ______
115 S. Ct. 947 (1995); United States v. Ocampo-Guarin, 968
_____________ _____________
F.2d 1406, 1412 (1st Cir. 1992).
Fuentes says that though the challenged instructions may
not be erroneous per se, they did cause confusion here
_______
because the jury was not instructed on the definition of
__________
reasonable doubt. But the judge was not required to define
reasonable doubt, an effort that often is itself the source
of error. United States v. Olmstead, 832 F.2d 642, 645-46
_____________ ________
(1st Cir. 1987), cert. denied, 486 U.S. 1009 (1988). Here,
_____ ______
the judge explained that the defendant was presumed innocent
and that the government must prove every element of the
crimes charged beyond a reasonable doubt. The judge then
repeated the government's burden over 20 times throughout its
charge. The jury did not misunderstand the government's
burden of proof. Victor v. Nebraska, 114 S. Ct. 1239, 1243
______ ________
(1994).
2. Fuentes next claims that the judge erred by using
charge language inconsistent with jury nullification. The
judge instructed the jury, in essence, that it "must" convict
the defendant if the government proved all the elements of
the crimes charged; Fuentes says that the proper wording is
-4-
-4-
"should," so that the possibility of jury nullification is
left open. Although the government has conceded that the
defendant raised and preserved his objection in the district
court, the government is mistaken, and we review for plain
error.1
We have squarely held that a defendant is not entitled
to have the jury told that nullification is a permissible
course for the jury to take, United States v. Sepulveda, 15
_____________ _________
F.3d 1161, 1190 (1st Cir. 1993), cert. denied, 114 S. Ct.
_____ ______
2714 (1994), a holding arguably at odds with Fuentes' attempt
to encourage the same result soto voce. Even assuming that
_________
"should" rather than "must" were a preferable instruction,
but see F.J.C. Pattern Instruction 21 (1987) (using "must"),
___ ___
the difference between "should" and "must" in the present
context is far too subtle an adjustment to constitute plain
error.
3. Fuentes now claims that the judge erroneously left
out the "intent to distribute" element when instructing on
the charge of possession of heroin with an intent to
distribute. 21 U.S.C. 841(a)(1). It is quite true that
the district court did say, in what was almost certainly a
slip of the tongue, that "if [the defendant] did know [that
____________________
1Fuentes' co-defendant asked for an instruction
affirmatively advising the jury that it could engage in
nullification and Fuentes adopted his co-defendant's request.
Neither Fuentes nor his co-defendant asked the court to
substitute "must" for "should."
-5-
-5-
he possessed a controlled substance] and he did have
possession, then you must find the defendant guilty as
charged." In this passage, the intent to distribute element
is omitted and, taken literally, the jury is told to convict
based on mere knowing possession.
But in fact this slip occurred in a discussion of the
possession element of the offense that occurred when the
court had already painstakingly told the jury that the
offense required two elements: knowing possession and an
intent to distribute. Further, after finishing the separate
discussion of possession, the district court then returned to
the "second element," repeated that "the Government [must]
prove beyond a reasonable doubt that the defendant intended
to distribute the controlled substance," and the court then
enlarged at some length on the intent element.
The district court would undoubtedly have corrected the
slip if it had been asked to do so, and the case is a perfect
example of why counsel is obligated to make timely objections
to instructions. In all events, reading the instructions as
a whole there is virtually no chance that the jury thought
that it could convict on this count without finding an intent
to distribute. The risk that the conviction was affected by
this slip is not only far from what is needed for plain error
review, see United States v. Olano, 113 S. Ct. 1770, 1777-79
___ _____________ _____
(1993), but is virtually nonexistent.
-6-
-6-
4. As his final argument, Fuentes says that the judge
erred when, in connection with the conspiracy charges, the
judge instructed the jury that "it is reasonable for you to
draw the inference that a person intends the natural and
probable consequences of his acts knowingly done or knowingly
committed." This, says Fuentes, amounts to the creation of a
presumption that at the very least shifts the burden of proof
onto the defendant to disprove intent; and he reminds us that
presumptions to this effect were condemned by the Supreme
Court in Sandstrom v. Montana, 442 U.S. 510 (1979), and
_________ _______
Francis v. Franklin, 471 U.S. 307 (1985). No such objection
_______ ________
was made at trial.
The disputed instruction does not create a presumption,
nor does it direct the jury to draw any kind of inference; it
merely poses a permissive inference based on common sense.
Hardy v. United States, 691 F.2d 39, 42 (1st Cir. 1982).
_____ ______________
Although we have expressed doubt about this type of
instruction, United States v. DeWolf, 696 F.2d 1, 3-4 (1st
______________ ______
Cir. 1982), it is not governed by Sandstrom or Francis and is
_________ _______
certainly not plain error. See Lannon v. Hogan, 719 F.2d
___ ______ _____
518, 521-22 (1st Cir. 1983), cert. denied, 465 U.S. 1105
_____ ______
(1984).
Affirmed.
________
-7-
-7-
