Summaries of Selected Opinions, 0917 COBJ, Vol. 46, No. 8 Pg. 86
August, 2017
U.S. COURT OF APPEALS FOR THE TENTH CIRCUIT
No. 15-1421. United States v. Petty. 5/22/2017. D.Colo. Judge Baldock. Reasonable Doubt—Adequacy of Jury Instruction.
Defendant was convicted of assaulting three employees at a federal correctional facility. At his trial, over his objection, the district court tendered a reasonable doubt instruction that tracked verbatim the Tenth Circuit’s Pattern Jury Instruction on reasonable doubt. Defendant was found guilty.
On appeal, defendant challenged the instruction’s statement that “[p]roof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt.” He argued that use of the phrase “firmly convinced” connotes a lesser standard of proof than proof beyond a reasonable doubt. Use of the phrase “firmly convinced,” together with language in the instruction informing the jury that it must acquit the defendant if “you think there is a real possibility that he is not guilty,” presented a correct and comprehensible statement of the reasonable doubt standard.
Second, defendant challenged the use of the word “only” in the sentence, “It is only re quired that the government’s proof exclude any ‘reasonable doubt’ concerning the defendant’s guilt.” Although defendant’s argument—that use of the word “only” undermined the government’s burden by suggesting that the burden is not heavy or difficult to meet—had some superficial force, taken in context there was no constitutional error. The sentence immediately preceding the challenged statement explained that “in criminal cases the law does not require proof that overcomes every possible doubt.” Taken in context, the reference to “only” that followed this statement merely pointed out that proof beyond a reasonable doubt is not proof that overcomes all doubt.
Third, defendant challenged the failure of the instruction to specifically inform the jury that reasonable doubt may arise from a lack of evidence. The Tenth Circuit reasoned that the realization that the government would fail to meet its burden of proof if it failed to present the necessary evidence of guilt was quite apparent from the instruction as a whole. The reasonable doubt instruction, taken as a whole, adequately conveyed the concept of reasonable doubt to the jury.
The conviction was affirmed.
No. 16-3070. United States v. Pauler.
5/23/2017. D.Kan. Judge McKay. Possession of Firearm after Conviction of Domestic Violence Offense—Prior Municipal Conviction as Qualifying Offense.
Defendant was convicted of violating 18 U.S.C. § 922(g)(9) for possessing a firearm after having previously been convicted of a misdemeanor crime of domestic violence under a municipal domestic battery ordinance. The district court denied defendant’s motion to dismiss the indictment for failure to state an offense.
On appeal, defendant argued that conviction of a municipal ordinance did not constitute a misdemeanor conviction under “Federal, State, or Tribal law.” The term “misdemeanor crime of domestic violence” is defined under 18 U.S.C. § 921(a)(33)(A) to include misdemeanors...
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