United States v. Colon Pagan

• Court: Court of Appeals for the First Circuit
• Decided: August 20, 1993
• Docket: 92-2314
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 92-2314

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                 ROBERTO COLON-PAGAN,

                                Defendant, Appellant.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                           Selya and Stahl, Circuit Judges.
                                            ______________

                                 ____________________

            James Kousouros  with whom  Debra K.  Kousouros was  on brief  for
            _______________             ___________________
        appellant.
            Jose  A.  Quiles, Senior  Litigation  Counsel,  Criminal Division,
            ________________
        with  whom Daniel F. Lopez-Romo, United States Attorney, and Miguel A.
                   ____________________                              _________
        Pereira, Assistant United States Attorney, were on brief for appellee.
        _______

____________________

                                   August 20, 1993
                                 ____________________

BREYER,  Chief Judge.  Roberto Colon Pagan appeals
                                ___________

             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
                                                                        _

             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,
                              ______________     _____

             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
                                              ___

             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
                                                             ___

             (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.
                                                      ___

                       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.
                                             ___  ____  ______________

             Baptiste, 608 F.2d 666, 668 (5th  Cir. 1979) (warning courts
             ________

             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,
                                                            ____________

             450   U.S.  1000   (1981).     Indeed,  courts   have  found

             unconstitutional  reasonable  doubt  instructions that  seem

             significantly less  permissive.  See Cage  v. Louisiana, 498
                                              ___ ____     _________

             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."  
                          ___________________________________________

             See, e.g., United States  v. Gordon, 634 F.2d 639,  644 (1st
             ___  ____  _____________     ______

             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,
                                                            ___ ________

             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
                                             ____

             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
                                              ___

             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
                                                                 ________

             v. Louisiana, No. 92-5129,  1993 WL 179275 at *2  (U.S. June
                _________

             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
             ___

             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
                                      _____

             reach  this conclusion  on  the  basis  of  case  law.    In

             Sullivan,  the Supreme  Court  held that  a constitutionally
             ________

             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.
                          ________                             _______

             Fulminante, 111 S.Ct.  1246 (1991), it held that  a criminal
             __________

             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))
                              ____    _____

             (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,
             _____

             ordinarily,  of insisting  that counsel  object to  an error

             before the trial ends (so that the judge can correct it), we
             ______

             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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