United States v. Fuentes

Opinion

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June 13, 1995          NOT FOR PUBLICATION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

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        No. 94-1623



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                   FRANCIS FUENTES,



                                      Appellant.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                    [Hon. Frank H. Freedman, U.S. District Judge]
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                                        Before



                                Boudin, Circuit Judge,
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                           Campbell, Senior Circuit Judge,
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                        and Schwarzer,* Senior District Judge.
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            Paul J. Garrity for appellant.
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            Andrew Levchuk, Assistant United States Attorney, with whom  Kevin
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        O'Regan, Assistant United States Attorney, and Donald K. Stern, United
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        States Attorney, were on brief for appellee.


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        * Of the Northern District of California, sitting by designation.



Per Curiam.  Francis Fuentes was convicted of three drug
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            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,
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            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,
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            676 F.2d 13, 17-18 (1st Cir. 1982).  Read literally, the two-


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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.
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            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),
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            cert.  denied,  393 U.S.  1023 (1969).    Since there  was no
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            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,


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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.
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            DeMasi, 40 F.3d 1306, 1317-18 (1st Cir. 1994), cert.  denied,
            ______                                         _____  ______



            115 S.  Ct. 947 (1995);  United States v.  Ocampo-Guarin, 968
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            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
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            because the  jury was  not instructed  on  the definition  of
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            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
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            (1st Cir. 1987), cert.  denied, 486 U.S. 1009 (1988).   Here,
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            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


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"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
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            F.3d 1161, 1190  (1st Cir.  1993), cert. denied,  114 S.  Ct.
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            2714 (1994), a holding arguably at odds with Fuentes' attempt



            to encourage the same  result soto voce.  Even  assuming that
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            "should" rather  than "must"  were a preferable  instruction,



            but see F.J.C. Pattern  Instruction 21 (1987) (using "must"),
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            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



                                
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                 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."



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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.


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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
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            Francis  v. Franklin, 471 U.S. 307 (1985).  No such objection
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            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).
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            Although  we   have  expressed  doubt  about   this  type  of



            instruction, United  States v. DeWolf,  696 F.2d 1,  3-4 (1st
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            Cir. 1982), it is not governed by Sandstrom or Francis and is
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            certainly not plain  error.   See Lannon v.  Hogan, 719  F.2d
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            518,  521-22 (1st  Cir. 1983),  cert. denied,  465 U.S.  1105
                                            _____ ______



            (1984).



                 Affirmed.
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