Government of the Virgin Islands v. Louis Smith , 949 F.2d 677 ( 1991 )

ALITO, Circuit Judge,

dissenting:

In my view, the district court did not commit "plain error" by failing to give a specific instruction stating that the prosecution was required to prove beyond a reasonable doubt that the homicide charged in this case was not committed in self-defense. As the majority notes, the district court told the jury that the prosecution was required to prove guilt beyond a reasonable doubt (J.A. at 121) and that "the defendant never has a burden of proving anything." (J.A. at 122.) The court also gave a correct instruction on the elements of self-defense. (J.A. at 134-37.) Because the defendant's attorney did not object to the court's charge or request an additional instruction emphasizing that the prosecution's burden applied to the elements of self-defense, no reversible error occurred.

Rule 30 of the Federal Rules of Criminal Procedure generally bars a party from challenging a jury charge on appeal unless the party made a timely and specific objection before the trial court. The doctrine of "plain error" in Fed. R. Crim. P. 52(b) "somewhat tempers the severity of Rule 30," but Rule 52(b) "is to be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result." United States v. Frady, 456 U.S. 152, 163 & n.14 (1982). Its proper role is "to correct particularly egregious errors" and to "redress .. . miscarriages of justice." Id. at 163. It is intended to correct errors that are "obvious" or that "otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings." United States v. Atkinson, 297 U.S. 157, 160 (1936). "By its terms, recourse may be had to [Rule 52(b)] only on appeal from a trial infected with error so 'plain' the trial judge and prosecutor were derelict in countenancing it, even absent the defendant's timely assistance in detecting it." United States v. Frady, 456 U.S. at 163. See also United States v. Young, 470 U.S. 1, 15 (1985); United States v. Wright, 921 F.2d 42, 46 (3d Cir. 1990), cert. denied, 111 S.Ct. 2803 (1991); United States v. Sandini, 888 F.2d 300, 309 (3d Cir. 1989), cert. denied, 110 S.Ct. 1831 (1990); United States v. Anderson, 859 F.2d 1171, 1175 (3d Cir. 1988); United States v. Thame, 846 F.2d 200, 204-05 (3d Cir.), cert. denied, 488 U.S. 928 (1988).

The Supreme Court has also observed that "[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court" and that "[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." Henderson v. Kibbe, 431 U.S. 145, 154, 155 (1977). See also United States v. Castro, 776 F.2d 1118, 1129 (3d Cir. 1985), cert. denied, 475 U.S. 1029 (1986).

Under these well-established principles, there was no plain error here. Certainly it cannot be said that any error in this case was "obvious" or "so 'plain' that the trial judge and prosecutor were derelict in countenancing it." Frady, 456 U.S. at 163. Trial judges generally are not required to instruct juries using any particular words so long as the essential points of law are adequately conveyed, see, e.g., In re Braen, 900 F.2d 621, 626 (3d Cir 1990), cert. denied, 111 S.Ct. 782 (1991), and until today there was little support in federal case law for the rule that a trial judge is obligated to give a specific instruction linking the prosecution's burden of proof and the elements of self-defense. The existing federal cases were these. In United States v. Jackson, 569 F.2d 1003 (7th Cir.), cert. denied, 437 U.S. 907 (1978), a divided panel held that the failure to give such an instruction was not plain error in that case.¹⁰ In Bynum v. United States, 408 F.2d 1207, 1208 (D.C. Cir. 1968), cert. denied, 394 U.S. 935 (1969), the court succinctly rejected a plain error argument based on a jury charge that allegedly did not "make clear that the prosecution's burden of proving guilt beyond a reasonable doubt extended to the self-defense question." The court based its decision on "the charge, taken as a whole" (id.), and thus apparently did not require a specific instruction. Finally, in United States v. Corrigan, 548 F.2d 879 (10th Cir. 1977), where the defendant preserved the issue for appeal by "submitting his proposed instructions and objecting to those given by the [trial] court" (id. at 881), the court of appeals held that the trial court's' instructions were defective. The court of appeals noted, however, that while "a specific statement of the burden of proof in the defense instruction is preferable [, i]ts omission ... is not reversible error per se."¹¹ Id. at 882. In light of the discretion generally enjoyed by trial judges with respect to the framing of jury instructions and the holdings and opinions in the few federal cases concerned with the specific issue involved here, it simply cannot be maintained, in my view, that a defendant's entitlement to a specific instruction on the burden of proof concerning self-defense was "so 'plain' that the trial judge . . . was derelict" in failing to give such an instruction without any request from defense counsel. Frady, 456 U.S. at 163.

In finding plain error in this case, the majority notes that "the proper placement of the burden of proof on self-defense . . . implicates the defendant's due process rights" (majority typescript at 10). While I certainly agree that it is appropriate to consider whether an alleged plain error implicates a constitutional right, this factor alone is not dispositive. United States v. Thame, 846 F.2d at 207. Indeed, it seems to me that the alleged error in the present case implicates the same constitutional right as the error that we recently refused to redress under Rule 52(b) in United States v. Santos, 932 F.2d 244, 247-50 (3d Cir. 1991). In that case, we held that the district court erred in charging the jury that a defendant who raises the defense of duress must initially prove the elements of that defense by a preponderance of the evidence. Id. at 249. Instead, we held, once a defendant adequately raises this defense, the prosecution must disprove duress beyond a reasonable doubt. Id. In addition, we stated that due process requires this allocation of the burden of proof for every offense requiring specific criminal intent. Id. We noted that the defendant in Santos had been convicted of at least one offense requiring proof of specific criminal intent, i.e., conspiracy to distribute and to process with intent to distribute cocaine. Id. Nevertheless, we held as follows:

We do not believe that plain error occurred in this case. See generally Martin v. Ohio, 480 U.S. 228, 233-34 . . . (1987) (no violation of Fourteenth Amendment's due process clause occurred where the defendant had to prove affirmative defense by a preponderance of the evidence since jury was instructed to consider all evidence in determining whether prosecution proved elements of crime beyond a reasonable doubt).

Santos, 932 F.2d at 250. Thus, we held that no plain error occurred even though the instruction unconstitutionally placed the burden of proving a particular affirmative defense on the defendant. And the case we cited, Martin v. Ohio, supra, concerned the defense of self-defense.

The other chief factor on which the majority relies in this case is the possibility of prejudice to the defendant. In my view, however, the likelihood that the defendant was prejudiced by the lack of a specific instruction is not great and is insufficient to establish the presence of plain error. As previously noted, the trial court gave proper general instructions on the prosecution's burden of proving guilt beyond a reasonable doubt. (J.A. at 121-27). We have previously stated that correct general instructions concerning the prosecution's burden of proof tend to show that the omission of a specific burden of proof instruction related to an affirmative defense is not plain error. United States v. Castro, 776 F.2d 1118, 1129 (3d Cir. 1985), cert. denied, 475 U.S. 1029 (1986); United States v. Conversano, 412 F.2d 1143, 1149 (3d Cir.), cert. denied, 396 U.S. 905 (1969).

Moreover, several of the court's instructions in this case should have prevented the jury from mistakenly believing that the prosecution's burden did not apply to the elements of self-defense. The court specifically instructed the jury that the prosecution must prove every element of the charged offenses beyond a reasonable doubt (J.A. at 126) and that it could not find the defendant guilty of first degree murder unless it found that he killed the victim "unlawfully." (J.A. at 130.) The court further stated that "the defendant never has a burden of proving anything." (J.A. at 122.) If the jury followed these instructions, it could not have placed the burden of proving self-defense on the defendant.

Closing arguments by counsel for both sides also emphasized that the prosecution had the burden of proof at all times. In particular, defense counsel stressed that this burden "stays with the government throughout these proceedings. It . . . starts with the government and ends with the government." (J.A. at 193.) In Jackson, 569 F.2d at 1010, the Seventh Circuit relied on similar closing statements by counsel in holding that the absence of the specific instruction at issue there was not plain error.

To be sure, it is possible that the jury might have been confused about the burden of proof regarding self-defense. As the majority notes, the trial court did state that the defendants had "raised" the "defense" of self-defense (J.A. at 134), and I agree that a reference to a "defense" raised by the defendant might lead a juror to think that the defendant was obligated to prove this defense — although I suspect that this reasoning is less likely to occur to a lay person than a lawyer familiar with the burden of proving affirmative defenses in civil cases or in old criminal cases. The statement that self-defense could be found if its elements "[were] met" (J.A. at 135) also had some potential to mislead. But it seems to me unlikely that a jury would follow these spurious hints, rather than the court's unambiguous statement that "the defendant never has a burden of proving anything" (J.A. at 122), without at least asking for a clarification. In any event, the mere possibility of prejudice to the defendant is not enough to show plain error. Even if an error is not "harmless beyond a reasonable doubt," it does not follow that the error is "sufficiently major that a miscarriage of justice will result if the conviction is not reversed." United States v. Thame, 846 F.2d at 207. Thus, I find no plain error, and I therefore respectfully dissent.

10 Cf. United States ex rel. Huckstead v. Green, 737 F.2d 673 (7th Cir. 1984) (habeas petitioner denied relief although there was no specific instruction on burden of proof regarding self-defense).

11 Guthrie v. Warden, Maryland Penitentiary, 683 F.2d 820 (4th Cir. 1982), upon which the majority relies (maj. typescript 15-16 & nn.6-7), seems to me to be inapposite. In that case, a divided panel held that the jury instruction on self-defense was erroneous because it improperly placed the burden of proof on the habeas petitioner. The decision did not suggest that correct instructions must be supplemented with an instruction specifically stating that the prosecution bears the burden of proof on this issue. Since the present case concerns the need for a specific supplementary instruction to complement accurate general instructions on the burden of proof, Guthrie is clearly distinguishable. Moreover, the Guthrie court did not consider any procedural requirement analogous to the federal plain error rule because a state statute excused the failure to object under the circumstances of that case. See 683 F.2d at 823 n.3; Guthrie v. Warden, Maryland Penitentiary, 518 F. Supp. 546, 550-51 (D. Md. 1981).