Opinion
No. 02 Cr. 756 (LMM).
July 14, 2006
MEMORANDUM AND ORDER
1.
The government, in anticipation of the partial retrial of defendant, asks that the Court (i) give a missing witness instruction, for the case in which a witness is not within the peculiar control of either side but is equally available to both sides, to the effect that "no unfavorable inference may be drawn against either side" (Gov't Mem. at 3-4 (quoting United States v. Caccia, 122 F.3d 136, 139 (2d Cir. 1997)), and (ii) instruct the jury as to the burden of proof as set forth in 1 L. Sand, et al., Modern Federal Jury Instructions — Criminal ¶ 4.01, Instr. 4-2 (2005).
The government quotes the charge given at defendant's first trial and that found in Judge Sand's text in Gov't Mem. at 4-6.
2.
The government's argument for a missing witness instruction is based on specific arguments made regarding specific witnesses by defense counsel no longer representing defendant. It is not at all clear that the same arguments will be repeated by current defense counsel. It is obviously premature to consider the use or not (and if used, the content) of a missing witness charge. The issue may be raised at the second trial.3.
The government's unhappiness with the reasonable doubt instruction given at the first trial is, or is principally, two-fold. First, the government argues that the Court's charge does not tell the jury what reasonable doubt is not, instead of telling the jury that it is "not a caprice or whim; it is not a speculation or suspicion. It is not an excuse to avoid the performance of an unpleasant duty. And it is not sympathy." (Gov't Mem. at 6 (quoting 1 Sand, Jury Instructions ¶ 4.01, Instr. 4-2).) Second, the government argues that because the charge instructs the jury that it must acquit if it has a reasonable doubt, it should also instruct the jury that it should vote to convict if satisfied of guilt beyond a reasonable doubt. (Id. at 7.)
The government argues that "[t]his precise language has been approved by the Second Circuit." (Id. (citing United States v. Torres, 901 F.2d 205, 242-43 (2d Cir. 1990)). InTorres, the appealing defendant's specific objection was not to the language the government advocates, but to a different portion of the reasonable doubt instruction. No objection to the objected toportion of the charge had been taken at trial, and the defendant did not establishplain error. Id. at 242.
The government also cites United States v. Magnano, 543 F.2d 431, 436 n. 4 (2d Cir. 1976) as "affirming use of very similar language" to the Sand charge (Id. at 9.) The only language that the Court of Appeals considered in Magnano that is included in the specific addition the government here seeks is a portion of the charge "advising the jury that reasonable doubt `is not an excuse to avoid the performance of an unpleasant duty,'" 543 F.2d at 437, of which (with another statement not relevant here) the Court of Appeals said that "[w]hile this portion of the charge in isolation may be unduly favorable to the Government, it is not prejudicially erroneous when the charge is considered as a whole and especially when . . . no objection was made below." Id. (citation omitted).
The second of the government's points is correct. The omission of the suggested statement was inadvertent and not brought to the Court's attention, and will be included in the charge.
4.
The Court does not agree with the government's first point.
"Although application of the reasonable-doubt standard in criminal cases is required as a matter of due process, `the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course.'" United States v. DeSimone, 119 F.3d 217, 226 (2d Cir. 1997) (quoting Victor v. Nebraska, 511 U.S. 1, 5 (1994)).
The instruction on reasonable doubt given by the Court at the last trial (and many others) is based in large part on that found in Devitt Blackmar, Federal Jury Practice Instructions, the current successor to which is O'Malley, Grenig Lee, Federal Jury Practice Instructions — Criminal (5th ed. 2000, 2005), in which the reasonable doubt instruction is found in Volume 1A, § 12.10. In some respects the language is very much like that recommended by Judge Sand, but it does not contain the language that the government advocates.
The Devitt Blackmar formulation has been recommended by the Second Circuit over many years. See United States v. Ivic, 700 F.2d 51, 69 (2d Cir. 1983) (Friendly, J.), overruled on other grounds by Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249 (1994); United States v. Viafara-Rodriguez, 729 F.2d 912, 913-14 (2d Cir. 1984) (Newman, J.); United States v. Sliker, 751 F.2d 477, 486 (2d Cir. 1984) (Friendly, J.); United States v. Gatzonis, 805 F.2d 72, 74 (2d Cir. 1986) (per curiam); Torres, 901 F.2d at 242-43 (Mahoney, J.); United States v. Delibac, 925 F.2d 610, 614 (2d Cir. 1991) (per curiam); and United States v. Birbal, 62 F.3d 456, 459-60 (2d Cir. 1995) (Oakes, J.).
In United States v. Khan, 821 F.2d 90 (2d Cir. 1987), the Second Circuit found fault with the so-called "two-inference" charge (". . . if the jury views the evidence in the case as reasonably permitting either of two conclusions, one of innocence, the other of guilt, you, the jury, should, of course, adopt the conclusion of innocence"), and noted that Devitt Blackmar in a 1986 supplement had recommended that that language not be used. 821 F.2d at 92-93.
In DeSimone, the Second Circuit noted that "it has been observed that attempts to clarify reasonable doubt tend to create more confusion than does the expression itself," 119 F.3d at 226 (citation omitted), and went on to say: "Because of the difficulty of articulating an acceptable definition, several circuits, including this one, generally discourage trial courts from attempting to define the term." Id. (citing Ivic, 700 F.2d at 69) (other citations omitted). The Devitt Blackmar charge recommended in Ivic does, of course, contain some, albeit brief, explanation of reasonable doubt:
A reasonable doubt is a doubt based upon reason and common sense — the kind of doubt that would make a reasonable person hesitate to act. 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.700 F.2d at 69 n. 11 (quoting 1 Devitt Blackmar, Jury Instructions § 11.14 (3d ed. 1977)).
Judge Friendly said of the instruction the government seeks to modify that "it is fair to both sides, touches all the bases and, being largely founded on decisions of the Supreme Court and courts of appeals, is seemingly immune from challenge having any possibility of success and therefore is not likely to become the basis of one." Ivic, 700 F.2d at 69.
In light of the cited case law, the Court believes that the charge as to reasonable doubt, as given at the first trial, more adequately instructs the jury as to the content of that concept than it would if the suggested language were added, and will threfore adhere in this respect to the charge as given at the first trial.
In so concluding, the Court, in the absence of any controlling authority to the contrary, most respectfully disagrees with the practice of the many judges who use the language the government advocates.
SO ORDERED.