United States v. Harold T. Wosepka

787 F.2d 1294

Opinion

ORDER

The opinion filed April 9, 1985, 757 F.2d 1006, is modified as follows:

The first three sentences of the paragraph at the bottom of the first column, page 1009 are deleted and replaced with the following:

We do not find United States v. Witt, 648 F.2d 608 (9th Cir.1981), to the contrary. Witt found that the trial judge’s failure to provide a definition of reasonable doubt was not reversible error. It also noted that “ ‘an omission or an incomplete instruction is less likely to be prejudicial than a misstatement of the law.’ ” Witt, 648 F.2d at 610 (quoting Henderson v. Kibbe, 431 U.S. 145, 155, 97 S.Ct. 1730, 1737, 52 L.Ed.2d 203 (1977)). Wosepka involves an instruction which did not fairly or accurately convey the meaning of a reasonable doubt — an instruction Witt recognized as a potential ground for reversal. Furthermore, Witt does not authorize the elimination of explanatory reasonable-doubt instructions in all cases.

The remainder of the paragraph is not changed.