                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-18-1999

USA v. Hernandez
Precedential or Non-Precedential:

Docket 98-5266




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Filed May 17, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 98-5266

UNITED STATES OF AMERICA

v.

JULIO HERNANDEZ,

       Appellant

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 97-cr-00362-2)
District Judge: Honorable Anne E. Thompson

Argued: January 25, 1999

Before: SLOVITER, McKEE and RENDELL, Circuit Judges

(Filed May 17, 1999)

       Lisa Van Hoeck, Esq. (Argued)
       Office of Federal Public Defender
       22 South Clinton Avenue
       Station Plaza #4, 4th Floor
       Trenton, NJ 08609

        Attorney for Appellant

       George S. Leone,   Esq.
       Allan Tananbaum,   Esq. (Argued)
       Office of United   States Attorney
       970 Broad Street
       Room 700 Newark,   NJ 07102

        Attorneys for Appellee
OPINION OF THE COURT

McKEE, Circuit Judge.

Julio Hernandez appeals his conviction for conspiring to
obstruct interstate commerce by robbery in violation of 18
U.S.C. SS 1951 (a) and 2, and receiving or possessing goods
stolen from commerce in violation of 18 U.S.C. S 659. He
argues that the District Court erred in defining reasonable
doubt to the jury, in sustaining objections to certain oral
statements which defense counsel sought to admit into
evidence, and in allowing jurors to ask questions of
witnesses. Because we agree that the District Court's
definition of reasonable doubt was likely to cause
confusion, we will reverse and remand for a new trial.

I.

This case arises from the highjacking of a tractor trailer
truck containing 494 cases of cigarettes valued at
$335,125.00. On the morning of Friday, June 13, 1997,
Jose Sanchez was delivering the shipment of cigarettes
when a van cut him off and forced him to stop his truck.
Washington Alvarez jumped out of the van waiving a gun
and ordered Sanchez to roll down the window and get out
of the truck. Sanchez complied with the demand, but only
after he pressed a panic button inside the truck that was
designed to silently signal an alarm.

As Sanchez was forced from his truck, another
individual, later identified as Julio Hernandez, got in.
Alvarez lead Sanchez to a nearby van and forced him to get
in. When Sanchez got inside, Alvarez placed duct tape over
his eyes and taped his hands together. After Alvarez
finished binding Sanchez, a third individual named Luis got
out of a second van and joined the confederate who had
gotten into Sanchez' truck. The conspirators then drove off
with Sanchez' truck and its cargo, and Alvarez drove off
with Sanchez. Sanchez was eventually released, and sought
help from a police officer who lived nearby. Alvarez was
arrested a short time later.

                                2
Meanwhile, a satellite tracking device inside the stolen
truck disclosed the truck's location to police. As the truck
was backed into a docking space at a gas station, the police
arrived, secured the scene, and questioned onlookers about
the whereabouts of the driver. A garage at the gas station
had been converted to a warehouse, and after the police
conducted their investigation they arrested Hernandez who
had been unloading cases of cigarettes from the truck and
placing them inside the warehouse. Police searched
Hernandez pursuant to that arrest and found Sanchez'
cigarette lighter inside a package of cigarettes that was
inside Hernandez' shirt pocket. Hernandez later gave a
statement in which he explained that he had borrowed a
cigarette from men who had offered him a job unloading the
truck. He explained that he never returned the cigarettes
because the men left when the police arrived.1 According to
Hernandez, the lighter was inside the pack of cigarettes
when he got it.

Hernandez stood trial on charges of conspiring to
obstruct commerce in violation of 18 U.S.C. S 1951(a)
(count 1), obstructing commerce by robbery in violation of
18 U.S.C. SS 1951(a) and 2 (count 2); and receiving and
possessing goods that had been stolen from interstate
commerce in violation of 18 U.S.C. SS 659 and 2 (count 3).

Alvarez testified against Hernandez pursuant to a plea
bargain. He testified that Hernandez had jumped into
Sanchez' truck after Sanchez was forced out of it, and that
Hernandez then drove it away with Luis, and one other
conspirator. Hernandez' trial lasted only four days, but the
jury deliberated for three days without reaching a verdict.
Finally, on the third day, after the trial judge gave a
modified Allen charge, the jury convicted Hernandez on
counts 1 and 3, but acquitted him of the charges in count
2 of the indictment. This appeal followed.

II.

We turn first to Hernandez' challenge to the District
_________________________________________________________________

1. Police did briefly detain two men, but allowed them to walk away after
brief questioning.

                                3
Court's practice of allowing jurors to participate in
questioning witnesses during the course of the trial. The
District Court allowed jurors to pose questions by handing
the court written questions for the court's review. It
appears from this record (and appellant does not argue to
the contrary) that the court would then allow the attorneys
to see the question so that counsel could make whatever
objections they deemed appropriate, and the court could
thus determine the admissibility and propriety of a
question outside the hearing of the jury before asking the
question.

One juror did submit a question in this manner. The
juror asked: "[w]hat kind of rear doors are on the rear of
the trailer?" App. at 644. However, the court did not ask
the question of the witness. Rather, the court allowed the
attorneys to decide what, if any, response each would make
to the question. The court then gave the following
explanation to the jury:

       Let me just say with regard to questions that are
       presented by a witness, -- by a juror, it well may be a
       particular witness who is on the stand at the time may
       not be the person to whom such a question would be
       addressed because he may not be a witness who may
       be in a position to answer the question.

        We appreciate having your questions because now
       the attorneys on both sides know what inquiries you
       would make and either they may address them
       through their closing arguments, or they know if they
       wish to bring any additional witnesses to address the
       question, that would be up to them.

App. at 644-45. Defense counsel immediately objected to
the question, even though the court never asked it. When
court reconvened the following day, defense counsel
reiterated her objection, and requested that the court
conduct voir dire of the juror who had submitted the
question. Defense counsel argued that the substance of the
question, as well as its timing, suggested that the juror
assumed Hernandez was guilty. The court denied the
request stating:

                                4
       That . . . is an unreasonable request because there is
       nothing to suggest the juror had any notions of guilt.
       It merely reveals a juror had a question about the
       truck and what the truck was like. This was a fact
       question. There was nothing in the way the question
       was worded which suggested guilt, innocence, anything
       other than was the light red or was the light green? It
       was purely a fact question.

       I think it was handled appropriately.

App. at 675-76. Defense counsel now insists that

       [b]y permitting the jurors to act as inquisitors and
       declining to investigate alleged jury misconduct
       following the suspect question, the court denied
       Hernandez his Sixth Amendment right to a fair trial
       before an impartial jury. Juror questioning of witnesses
       is a "procedure fraught with perils. In most cases, the
       game will not be worth the candle." United States v.
       Sutton, 970 F.2d 1001, 1005 (1st Cir. 1992).

Appellant's Br. at 37. However, there is nothing here to
suggest "jury misconduct" other than the unsupported
inference that the juror who posed the question had
reached a decision about the defendant's guilt before the
end of the trial. Although defense counsel's argument urges
such an assumption upon us, we refuse to jump to that
conclusion. There is nothing in this record to suggest that
the juror who posed the question was motivated by
anything other than a desire to know about the rear doors
on the highjacked truck. We will not violate the sanctity of
the jury by requiring a judge to probe into the motivation
behind such an innocuous question.

Defendant's more general challenge to the propriety of
allowing juror questioning is an issue of first impression in
this circuit, and requires more discussion. Although we
have not previously addressed this issue, several other
courts of appeal have. Although those courts have
consistently expressed concern over the dangers of the
practice, they have refused to adopt a rule prohibiting juror
questioning of witnesses during the course of a criminal
trial. See United States v. Bush, 47 F.3d 511 (2d Cir. 1995);
United States v. Ajmal, 67 F.3d 12, 14 (2d Cir. 1995);

                               5
United States v. Cassiere, 4 F.3d 1006, 1017-18 (1st Cir.
1993); United States v. George, 986 F.2d 1176, 1178 (8th
Cir. 1993); DeBenedetto v. Goodyear Tire & Rubber Co., 754
F.2d 512, 516 (4th Cir. 1985); United States v. Callahan,
588 F.2d 1078, 1086 (5th Cir. 1979); United States v.
Gonzales, 424 F.2d 1055, 1055 (9th Cir. 1970). We take
this opportunity to approve of the practice so long as it is
done in a manner that insures the fairness of the
proceedings, the primacy of the court's stewardship, and
the rights of the accused.2

In United States v. Polowichak, 783 F.2d 410 (4th Cir.
1986), the court disapproved the practice of posing juror
questions in front of other jurors. The court stated that the
trial judge should require questions to be submitted in
writing, without disclosure to other jurors, "whereupon the
court may pose the question in its original or restated form
upon ruling the question or the substance of the question
proper." Id. at 413.

In United States v. Stierwalt, 16 F.3d 282 (8th Cir. 1994),
the court held that the District Court did not err where
questions were submitted in writing and all evidentiary
issues were resolved before the judge read the questions to
the witness. See id. at 286. See also George, 986 F.2d at
1178-79 (holding that despite the fact that the jury
submitted 65 written questions to the court, the court
employed proper formal procedures in that the questions
were discussed with the attorneys and ruled upon by the
judge).

In United States v. Bush, supra, jurors directly
questioned witnesses, including the defendant. Defense
counsel failed to object, and even engaged in a dialogue
with the jurors.3 The practice of allowing such questioning
_________________________________________________________________

2. Our discussion is in the context of this criminal trial. We note,
however, that properly structured juror questioning in a civil trial poses
even fewer of the risks than we are concerned with here. Moreover,
allowing jurors in both civil and criminal trials to pose questions for
the
court's consideration is consistent with modern concepts of trial
practice.
See Verdict: Assessing the Civil Jury System Robert E. Litan ed. (1993).

3. After the defendant had answered one of the questions asked by a
juror, defense counsel asked the juror: "does that answer your question
sir?" 47 F.3d at 512.

                               6
was therefore reviewed for plain error. The courtfirst noted
that "[w]e have already held . . . that direct questioning by
jurors is a `matter within the judge's discretion, like
witness-questioning by the judge himself.' " Id. at 514. The
court noted that "[e]very circuit court that has addressed
this issue agrees. State courts, moreover, have
overwhelmingly placed juror questioning of witnesses within
the trial judge's discretion, and indeed its common law
roots are deeply entrenched." Id. at 515 (citations omitted).
Nevertheless, the court expressed concern over this
practice. "Although we reaffirm our earlier holding . . . that
juror questioning of witnesses lies within the trial judge's
discretion, we strongly discourage its use." Id. The court
listed several dangers endemic to the practice including
"turning jurors into advocates, compromising their
neutrality," the "risk that jurors will ask prejudicial or
otherwise improper questions," and counsel's inability to
respond for fear of antagonizing, alienating, or
embarrassing a juror. Id. The court noted that

       [b]alancing the risk that a juror's question may be
       prejudicial against the benefit of issue-clarification will
       almost always lead trial courts to disallow juror
       questioning, in the absence of extraordinary or
       compelling circumstances.

Id. at 516.   However, the court affirmed the conviction
because the   challenged questioning had been "limited and
controlled"   and because the defendant could not
demonstrate   prejudice. Id.

In United States v. Sutton, 970 F.2d 1001 (1st Cir. 1992),
the court voiced similar concerns about allowing jurors to
question witnesses even though the procedure used
involved the court asking questions that the jurors had
submitted in writing. Id. at 1005. Once again, the court
allowed the practice though it was clearly troubled by it.
"Although we think this practice may frequently court
unnecessary trouble, we find no error in the circumstances
of this case." Id. at 1003. There, at the beginning of the
trial, the trial court had informed the jurors that they could
ask questions by handing written questions to the jury
foreman who would then give them to the judge. "If your
question even possibly could make any legal difference . . .

                                 7
if it's relevant as the lawyers say, I'll ask it for you." Id. On
appeal, the court stated:

       Allowing jurors to pose questions during a criminal
       trial is a procedure fraught with perils. In most cases,
       the game will not be worth the candle. Nevertheless, we
       are fully committed to the principle that trial judges
       should be given wide latitude to manage trials. We are,
       moreover, supportive of reasoned efforts by the trial
       bench to improve the truth seeking attributes of the
       jury system. Consistent with this overall approach, and
       mindful that the practice . . . may occasionally be
       advantageous, especially in complex cases and under
       carefully controlled conditions, we hold that allowing
       juror-inspired questions in a criminal case is not
       prejudicial per se, but is a matter committed to the
       sound discretion of the trial court.

Id. at 1005. Although the court allowed the practice, it was
quick to discourage it. "We hasten to add that the practice,
while not forbidden, should be employed sparingly and with
great circumspection." Id. The court also added to the list
of concerns enunciated in Bush, though it acknowledged
that the practice could further the search for truth by
allowing jurors to clear up confusion. The court also
recognized that allowing jurors to participate in questioning
could enhance the attentiveness of jurors. Nevertheless, the
court concluded "in most situations, the risks inherent in
the practice will outweigh its utility." Id.

In United States v. Ajmal, supra, the court did reverse a
conviction based upon juror questioning of witnesses, even
though the judge had "incorporated prophylactic
procedures to lessen the potential prejudice. . . ." 67 F.3d
at 15. The Second Circuit noted that the trial judge's
decision to invite such questioning

       was not necessitated by the factual intricacies of this
       banal drug conspiracy, nor . . . prompted by the urging
       of jurors themselves. Rather, the District Court, as a
       matter of course, established at the outset of the trial
       that jurors would be allowed to question witnesses.
       Indeed, the District Court encouraged juror questioning
       throughout the trial by asking the jurors at the end of

                               8
       each witness's testimony if they had any queries to
       pose. Not surprisingly, the jurors took extensive
       advantage of this opportunity to question witnesses,
       including Ajmal himself.

Id. at 14 (emphasis added). The trial judge there had taken
precautions. He had required questions to be in writing,
and the court, rather than the attorneys, asked the
questions. In addition, the court only asked those questions
that it believed were proper under the Federal Rules of
Evidence. Nevertheless, the Court of Appeals held that the
trial judge had abused his discretion.

       Although the District Court substantially complied with
       the procedures this Court advocated in Bush,. . . such
       measures alone cannot purge the harm caused by the
       extensive juror questioning in the case at hand.
       Regardless of the procedures adopted by the District
       Court to vet questions, there must be ample
       justification for adopting the disfavored practice in the
       first instance. To hold otherwise would sanction juror
       questioning of witnesses in any circumstance, so long
       as appropriate prophylactic measures are adopted. We
       cannot accept such a proposition.

        In light of our discussion above, the District Court's
       encouragement of juror questioning of witnesses . . .
       was an abuse of discretion.

67 F.3d at 15 (emphasis added). Thus, although the court
was once again concerned with the practice of allowing
juror questioning absent circumstances sufficient to justify
the risk inherent in the procedure, the court clearly based
its reversal upon the trial court's encouragement of such
questioning, and the frequency with which jurors had
accepted the judge's invitation.

Here, the court received only one question from the jury.
It was a fact question that was not even asked. We do not
think that one fact question which is submitted to a judge
in writing, but not even asked, can be labeled an abuse of
discretion. See United States v. Lewin, 900 F.2d 145 (8th
Cir. 1990). In Lewin, jury questioning was deemed proper
where the jury tendered six questions to the court and the
court only asked four of them. The questions that the court

                               9
allowed were "specific and factual in nature," and no
questions were asked of the defendant. Id. at 147-48. The
court of appeals noted that "this [was] not a case in which
juror questioning was allowed to become disruptive or
abusive." Id. Moreover, the court suggested appropriate
safeguards. "[I]f [the District Court] decides to permit jurors
to ask questions in future trials, it should consider
requiring jurors to submit their questions in writing, or
orally out of the presence of the other jurors, without prior
discussion with the other jurors." Id. at 148.

We agree that a trial judge who allows such questioning
in a given case should adopt a procedure to first screen the
questions. However, we conclude that the dangers of
allowing jurors to ask questions orally far outweighs any
perceived benefit of allowing juror questioning of witnesses.
Thus, the judge should ask any juror-generated questions,
and he or she should do so only after allowing attorneys to
raise any objection out of the hearing of the jury.

The procedure utilized here is consistent with our
admonitions and consistent with the sound exercise of
judicial discretion. The court did not surrender its
discretion as to whether to allow a given question to be
asked, and the judge, not the attorneys (and certainly not
the jurors), was to have asked any questions posed by a
juror. This procedure is consistent with the holding of every
court of appeals that has addressed this issue. We hold
that the trial judge did not abuse her discretion.

III.

At trial, defense counsel attempted to have a witness
testify that when police approached Hernandez at the gas
station, Hernandez told them that "he was there unloading
a truck and expected to be paid for his labor." Appellant's
Br. at 18. The District Court ruled that the statement was
inadmissible hearsay. Hernandez argues that this
statement should have been admitted under the state of
mind exception contained in Federal Rule of Evidence
803(3). We afford the District Court's evidentiary rulings
plenary review insofar as the court was interpreting a rule
of evidence. However, we review the court's rulings on

                               10
admissibility for abuse of discretion. See United States v.
Donley, 878 F.2d 735, 737 (3d Cir. 1989).

Federal Rule of Evidence 803(3) states:

       The following are not excluded by the hearsay rule,
       even though the declarant is available as a witness:

       . . .

       (3) Then existing mental, emotional, or physical
       condition. A statement of the declarant's then existing
       state of mind, emotion, sensation, or physical condition
       (such as intent, plan, motive, design, mental feeling,
       pain, and bodily health), but not including a statement
       of memory or belief to prove the fact remembered or
       believed unless it relates to the execution, revocation,
       identification, or terms of declarant's will.

The state of mind exception is usually traced to the
Supreme Court's holding in Mutual Life Ins. Co. v. Hillmon,
145 U.S. 285 (1892). There, the Supreme Court held that
letters in which a missing person expressed an intent to
travel to Crooked Creek could be introduced to help
establish the identity of an unidentified body later found
there. The Court reasoned that "[t]he existence of a
particular intention in a certain person at a certain time
being a material fact to be proved, evidence that he
expressed that intention at that time is as direct evidence
of the fact as his own testimony that he then had that
intention would be." Id. at 295. Thus, while the letters were
not proof that the deceased actually went to Crooked Creek,
they tended to show that at least prior to his death, he
intended to. Id. at 295-96.

The rule is now firmly established that "[t]here are times
when a state of mind, if relevant, may be proved by
contemporaneous declarations of feeling or intent." Shepard
v. United States, 290 U.S. 96, 104 (1933). However, the
scope of this exception must be limited to prevent it from
devouring the rule. Thus "[s]tatements that are considered
under . . . the `state of mind' exception, cannot be offered
to prove the truth of the underlying facts asserted."
Stelwagon Mfg. Co. v. Tarmac Roofing Sys., Inc. , 63 F.3d
1267, 1274 (3d Cir. 1995). See also Blackburn v. Aetna

                               11
Freight Lines,   Inc., 368 F.2d 345, 348 (3d Cir. 1966),
(holding "[i]t   is too well settled to require discussion that a
declaration of   a state of mind or intention is admissible to
prove that the   declarant actually had such intention.").

Thus, in United States v. Palma-Ruedas, 121 F.3d 841
(3rd Cir 1996), we affirmed the District Court's exclusion of
testimony that a witness named Hernandez had said,"nice
to meet" you when introduced to a person named
Avenando. The proponent wanted to use the statement as
evidence that the two had not previously met. We
concluded that use of the statement was improper because
"statements offered to support an implied assertion are
inadmissible hearsay." Id. at 857 (citing United States v.
Reynolds, 715 F.2d 99, 104 (3rd Cir. 1983)). Here,
Hernandez' statement that he had just arrived and expected
to be paid was only relevant because of the implied
assertion that he was not involved in the highjacking.

Appellant relies on United States v. DiMaria, 727 F.2d
265 (2d Cir. 1984), to support his argument that the state
of mind exception applies. In DiMaria, the defendant was
prosecuted for his involvement in stealing cigarettes. His
defense was that he thought that no tax had been paid on
the cigarettes ("bootleg cigarettes"), but that he did not
know they were stolen. In support of that position, defense
counsel attempted to introduce evidence that the defendant
told FBI agents arriving on the scene: "I thought you guys
were just investigating white collar crime; what are you
doing here? I only came here to get some cigarettes real
cheap." Id. at 270. The District Court excluded that
statement ruling that it was inadmissible hearsay. The
Court of Appeals for the Second Circuit reversed. That
court held that the defendant's comment "stated, or so the
jury could find, that his existing state of mind was to
possess bootleg cigarettes, not stolen cigarettes. It was not
offered to prove that the cigarettes were not stolen
cigarettes but only to show that DiMaria did not think they
were. . . . It was a statement of what he was thinking in the
present." Id. at 271. The court also recognized that the
Federal Rules of Evidence opted for the view that"the self-
serving nature of such a declaration went only to its
weight." Id. The court reasoned that"[t]here is a peculiarly

                                 12
strong case for admitting statements like DiMaria's,
however suspect, when the Government is relying on the
presumption of guilty knowledge arising from a defendant's
possession of the fruits of a crime recently after its
commission." Id. at 272.

DiMaria is distinguishable from the instant case. Here,
Hernandez' statement that he was unloading a truck is not
evidence of his state of mind. Rather, it is his out of court
statement of why he was at the gas station, and what he
was doing there. Accordingly, it does not fall within Rule
803(3), or any other exception to the general prohibition
against hearsay evidence. Although his statement that he
expected to be paid arguably falls within DiMaria's
interpretation of Rule 803(3), we believe it is only relevant
because of the implicit assertion that Hernandez was a
laborer, and not involved in a highjacking. Accordingly, the
District Court properly excluded it as required by Palma-
Ruedas. To the extent that DiMaria would require a
different result, we are clearly bound by our own precedent,
as was the District Court.

IV.

Hernandez also alleges that the District Court's definition
of "reasonable doubt" violated his Fifth Amendment right to
due process and his Sixth Amendment right to a jury trial.
"In reviewing whether a District Court in its charge to the
jury correctly stated the appropriate legal standard, our
review is plenary." United States v. Johnstone, 107 F.3d
200, 204 (3d Cir. 1997). Jury instructions, taken as a
whole, must "clearly articulate the relevant legal standards"
and "avoid confusing and misleading the jury." Id. at 204.
When an attack upon a jury charge is based upon the
trial court's instruction on reasonable doubt, "[t]he
constitutional question . . . is whether there is a reasonable
likelihood that the jury understood the instructions to allow
conviction based on proof insufficient to meet the
[constitutional] standard." Victor v. Nebraska, 511 U.S. 1, 6
(1994). Such a reasonable likelihood exists here.

It is axiomatic that "[t]he Due Process Clause requires the
government to prove a criminal defendant's guilt beyond a

                                13
reasonable doubt," therefore, "trial courts must avoid
defining reasonable doubt so as to lead the jury to convict
on a lesser showing than due process requires." Id. at 22.
Nonetheless, District Courts are not required to define
"reasonable doubt" as a matter of course. Id. at 5.
Moreover, when a trial judge does define the term, no
"particular form of words" is required. Id. The law requires
only that the concept be correctly conveyed to the jury
when it is defined. Id. (citing Holland v. United States, 348
U.S. 121, 140 (1954)).

Reasonable doubt is not an easy concept to understand,
and it is all the more difficult to explain. Moreover, given
the concerns about crime that are so prevalent in today's
society, common sense suggests that it is particularly
difficult for lay jurors to understand that they must acquit
a criminal defendant if the prosecution does not establish
guilt beyond a reasonable doubt, even if they feel that the
defendant is probably guilty. Jurors may well be reluctant
to free someone accused of a serious and violent crime
"merely" because the government didn't prove beyond a
reasonable doubt what they feel "in their hearts" is
probably true. Yet, due process is satisfied by nothing less
than a juror's understanding that he or she may not vote
to convict a defendant based upon a belief "that the
defendant is probably guilty. . . ." Sullivan v. Louisiana, 508
U.S. 275, 278 (1993) (emphasis added). Rather, an
impartial evaluation of evidence is required. "A juror is
impartial if he or she can lay aside any previously formed
`impression or opinion as to the merits of the case' and can
`render a verdict based on the evidence presented in
court.' " United States v. Polan, 970 F.2d 1280, 1284 (3d
Cir. 1992). Reasonable doubt is, therefore, a doubt based
upon reason rather than whim, possibilities or supposition.
Id. at 1286.

Here, the District Court commented upon proof at
different points during the trial. The court first commented
upon reasonable doubt during the course of jury selection.
The court informed potential jurors:

       [THE COURT]: Now, ladies and gentlemen, a criminal
       case comes before you by way of indictment and the
       Government has to prove the elements of the offense,

                               14
       each offense in the indictment beyond a reasonable
       doubt, each count has to be proven beyond a
       reasonable doubt.

        And if the Government fails to prove to your
       satisfaction each and every element of each count, then
       you would return a verdict of not guilty. If the
       Government does prove a count beyond a reasonable
       doubt, including each and every element, then you
       would return a verdict of guilty.

       You are to be thoughtful, systematic, analytical,
       impartial, unbiased. . . .

        Under our system of justice, the Government carries
       the burden of proof in a criminal case. The Government
       brings the charge. The Government has to prove the
       charge. . . .

        How do you decide if they have been proven? There
       is no scale we can say all right, this is how you can
       weigh the evidence. It's really an internal process that
       you must engage in. You have to use your judgment,
       your maturity, your powers of analysis, your sense of
       what makes -- what sounds reasonable, what sound
       [sic] likely. Does this sound like what happened or does
       that sound like I can't believe that's what happened?
       You have to decide that.

App. at 121-22 (the "voir dire instructions"). 4

After the jury was empaneled, but before the jury began
hearing evidence, the court told the jury:

       The burden of proof is on the Government. The
       Government brings the charges. The Government has
       to prove the charges. The grand jury has been
       impaneled by the Government. The defendant doesn't
       appear before the grand jury. The grand jury hears the
       evidence and decides whether an indictment shall
       issue, and you are the body to decide whether the
       charges are to be sustained.
_________________________________________________________________

4. For clarity, we will separately characterize each of the portions of
the
District Court's comments to the jury that are relevant to this appeal.

                               15
How do you decide that? By whether the Government
can prove the guilt of the charges of this defendant
beyond a reasonable doubt. That's the standard.

How do you decide what is proof beyond a reasonable
doubt? There is no specific definition. I'm sorry to tell
you, but there are none. It's what you in your own
heart and your own soul and your own spirit and your
own judgment determine is proof beyond a reasonable
doubt.

I'll give you some definitions at the end of the trial
when I give the Judge's charge to the jury, but don't
expect it to be the kind of ruler or measuring rod that
you are going to be able to say: Uh-huh, now, I know
what proof beyond a reasonable doubt means. It's what
you feel inside as you listen to the evidence, and so
that's why you really have to pay attention from the
very beginning.

I'm going to have each witness put his or her name up
on the easel there so you can just see that. That kind
of helps you to focus. The government will call its
witnesses first because that's the way a case proceeds.
Each witness is called by the Government, questioned
by counsel for the Government, cross-examined by the
defense lawyer, counsel for the defense, and then, one
by one, they come in and go out.

Then the Government rests at the end of its
presentation of witnesses.

Then the defendant has an opportunity to present any
witnesses he wants to present. He doesn't have to. He
is free to present anybody he wants.

Then both sides rest.

Then the lawyers on each side give what we call a
closing argument. They summarize what has been
presented in the trial and the Judge gives the Judge's
charge to the jury. When I do that, I'll give you
something written so you can read along with me.
That's when I'll define proof beyond a reasonable
doubt. I'll define the presumption of innocence, what

                        16
       does that mean. I'll define robbery. I'll define the
       various terms that you will hear throughout the trial.

App. at 175-76 (emphasis added) (the "initial instruction").
Defense counsel objected, and the court responded in an
effort to impress upon the jurors the importance of the
reasonable doubt concept. The court stated:

       I don't want you to think that it is so ephemeral that
       it's meaningless or so subjective that it's an unworthy
       concept. It is a very important concept. It's indeed the
       backbone of the criminal law that proof must be
       convincing to a jury as to the guilt of a defendant
       beyond a reasonable doubt. And you will have to
       analyze the proofs so as to decide in your own mind:
       Was this proven beyond a reasonable doubt?

App. at 13 (the "clarification").

At the end of the trial the District Court gave what
defendant refers to as a "traditional charge" on reasonable
doubt. There, the court explained:

        Under our system, the judge is the final arbiter of all
       questions of law and the jury in its deliberations must
       follow the law as given to it by the judge. It is the
       judge's function to instruct you in the law.

        You are not to be concerned with the wisdom of any
       rule of law. . . .

       ***

        Each phase of the instructions is to be considered
       and applied together with all other parts and phases of
       the instructions. You must not pick out some
       particular instruction alone or some particular portion
       of an instruction and overemphasize it and apply it
       without considering and keeping in mind all the other
       instructions given you with regard to this case.

        You should construe each of the instructions in light
       of and in harmony with the other instructions. You
       should apply the instructions as a whole to the
       evidence. The order in which the instructions are given
       has no significance and is no indication of their relative
       importance. . . .

                               17
       ***

        A defendant is never to be convicted on mere
       suspicion or conjecture. The burden is always upon the
       prosecution to prove guilt beyond a reasonable doubt.
       This burden never shifts to a defendant for the law
       never imposes upon a defendant in a criminal case the
       burden or duty of calling any witness or testifying
       himself or producing any evidence.

        If after a fair, impartial and careful consideration of
       all the evidence, you have a reasonable doubt as to a
       defendant's guilt, it is your duty to acquit him. . . .

        Now, what is reasonable doubt? Now, I'll try to define
       that. Reasonable doubt. A reasonable doubt is doubt
       based on reason and common sense. A reasonable
       doubt is such a doubt as would cause you to hesitate
       to act in matters of importance in your own lives. A
       reasonable doubt may arise from a lack of evidence. It
       is doubt based on reason, logic, common sense and
       experience. Reasonable doubt is not vague or
       hypothetical doubt. It is not speculative, imaginary
       qualms or misgivings. It is not just an excuse by a
       juror to avoid the performance of an unpleasant duty.
       It is not the normal sympathy which one human being
       may hold for another.

App. at 800-1 (the "traditional charge").

We first address Hernandez' assertion that portions of the
voir dire instructions require a new trial. He argues that
"[b]ased on the court's remarks, the jury may have believed
incorrectly that a conviction could be based on what they
felt in their hearts or what sounded likely." Appellant's Br.
at 18. He asserts that "the court's sounds likely test
reduced the constitutionally required standard of proof to a
mere preponderance of the evidence."

However, the portion of the voir dire instructions that
Hernandez challenges has nothing to do with reasonable
doubt, nor do we think the jurors could have interpreted
the comments to suggest a definition of that concept.
Rather, the court was simply explaining how jurors go
about determining if a witness is telling the truth. Its

                               18
comments amounted to nothing more than a suggestion
that jurors ask themselves whether testimony has the
proverbial "ring of truth," and we find no error in the court
having done so. See Altmose Construction Co. v. NLRB, 514
F.2d 8, 15 n.8 (3d Cir. 1975) (noting the proverbial ring of
truth in the noncriminal context); NLRB v. Nichols-Dover,
Inc., 414 F.2d 561, 564 (3d Cir. 1969) (same). We reach a
different result, however, with regard to the court's
explanation of reasonable doubt.

Defendant acknowledges that the traditional charge was
proper, but argues that the initial instruction stated an
incorrect definition of reasonable doubt, and also suggested
that the jury could ignore the correct definition in the
traditional charge by warning jurors that the traditional
definition would not be helpful.5 Appellant's Br. at 18. The
government responds in part by arguing that the judge's
initial instruction was meant merely to give an overview of
the trial procedure. The government cites Guam v. Ignacio,
852 F.2d 459 (9th Cir. 1987), to argue that "[i]nstructions
given at the start of a case simply do not have the same
impact and therefore importance as instructions given to
the jury at the close of a case, just before the case is
submitted for the jury's deliberation." Appellee's Br. at 14.
However, we believe that Ignacio, and the other cases relied
upon by the government actually support Hernandez'
argument.

In Ignacio, the trial court gave some general preliminary
instructions that included instructions on reasonable
doubt. The instruction that the court gave was, however,
incomplete, and the Court of Appeals for the Ninth Circuit
had previously ruled that the instruction "standing alone,"
was erroneous under Guam law. Ignacio, 852 F.2d at 461.
However, the court's final charge "adequately cured the
incomplete instruction. . . ." Id. Here, the initial instruction
suggested that jurors could convict the defendant based
upon what they believed in their own heart, soul and spirit
_________________________________________________________________

5. "There is no   specific definition. I'm sorry to tell you, but there are
none. It's what   you in your own heart and your own soul and your own
spirit and your   own judgment determine is proof beyond a reasonable
doubt." App. at   175.

                                 19
whether or not that belief was based upon a reasoned
conclusion that the evidence established Hernandez' guilt
beyond a reasonable doubt. Therefore, it was erroneous,
not merely incomplete. The distinction is substantial.
Subsequent amplification can fill the interstices in an
incomplete explanation. However, when an erroneous
instruction is given, a subsequent clarification must be
sufficiently clear and compelling to allow a reviewing court
to conclude that there was no reasonable likelihood that
the initial inaccuracy affected the jury's deliberations.
Victor, supra. Here, the government does not even maintain
that the court's explanation that reasonable doubt is "what
you feel inside" was correct. Rather, the government urges
us either to ignore this language or to minimize its
significance because of the subsequent clarification. In
Ignacio, the court stated:

       [g]eneral orientation at the beginning of a trial should
       be cautiously worded, but it will not require reversal
       unless it produces prejudice or misleads the jury in a
       material way.

Id. at 461. Allowing a jury to determine reasonable doubt as
to each element of a crime based upon what "you in your
own heart and your own soul and your own spirit and your
own judgment determine is proof beyond a reasonable
doubt" clearly misleads the jury in a material way, to the
prejudice of the defendant. It allows each juror to judge the
evidence by a visceral standard unique to that juror rather
than an objective heightened standard of proof applicable to
each juror. It allows jurors to convict based upon their
individual "gut feeling."

In Jackson v. Virginia, 443 U.S. 307 (1979), the Court
stated

       The standard of proof beyond a reasonable doubt . . .
       plays a vital role in the American scheme of criminal
       procedure, because it operates to give concrete
       substance to the presumption of innocence to ensure
       against unjust convictions and to reduce the risk of
       factual error in a criminal proceeding. At the same time
       by impressing upon the factfinder the need to reach a
       subjective state of near certitude of the guilt of the

                               20
       accused, the standard symbolizes the significance that
       our society attaches to the criminal sanction and thus
       to liberty itself.

443 U.S. at 315 (emphasis added) (internal quotation
marks omitted).6 Thus, although a juror must subjectively
believe that a defendant has been proven guilty, that
subjective belief must be based upon a reasoned, objective
evaluation of the evidence, and a proper understanding of
the quantum of proof necessary to establish guilt to a "near
certitude." An instruction which allows a juror to convict
because of his or her subjective feelings about the
defendant's guilt, without more, is clearly inadequate. Here,
as Judge Sloviter quite correctly notes in her thoughtful
and forceful dissent, the District Court did tell the jury that
their verdict had to be based upon the evidence, and that
the government had the burden of proof. See dissent at 31.
However, a likelihood of confusion remained as to the
quantum of evidence necessary to sustain a conviction, and
the level of certainty that a juror had to have as to the
defendant's guilt, because the original explanation of
reasonable doubt may well have remained in the juror's
minds. Thus, a juror may well have concluded that a"gut
feeling" as to the defendant's guilt was adequate to convict
so long as that feeling was supported by a preponderance
of the evidence (or even less). The reasonable likelihood that
this may have happened is not mitigated merely because
jurors understood that the government had the burden of
proof. Francis v. Franklin, 471 U.S. 307, 322 (1985).
Moreover, the remaining cases that the government relies
upon are not to the contrary. See Appellee's Br. at 14.

In United States v. Hegwood, 977 F.2d 492 (9th Cir.
1992), defense counsel failed to object to the court's initial
definition of the crime of conspiracy. Id. at 495. The
definition that the court gave did not inform the jurors that
an intent to commit the substantive crime was an element
of the conspiracy. However, the court's final instructions
_________________________________________________________________

6. In Jackson, the defendant was convicted in a bench trial. Thus, the
Court was not considering the effect of an erroneous reasonable doubt
standard on a lay jury. Nevertheless, as the dissent quite correctly
notes,
the language of Jackson is relevant to our discussion.

                               21
did inform the jury of that element. On appeal, the
erroneous initial instruction was reviewed for plain error.
The court relied upon Ignacio to hold that, absent
exceptional circumstances, "[w]here the instruction
challenged is given at the beginning of trial, reversal is
unwarranted unless the defendant can prove prejudice or
that the jury was materially misled." Id. The court then
stated that no exceptional circumstances existed and it
therefore would not assume that the jurors failed to follow
the correct instruction. It was the only instruction they had
on whether the government had to prove intent to commit
the substantive offense. The court reasoned that

       [i]t stretches credulity to think that the jury
       disregarded the instruction they had just been given
       because it included an element that had not been
       mentioned earlier.

Id. (citing Franklin, 471 U.S. at 322)). The situation here is
far more problematic than an inquiry into whether
providing a missing element cured its earlier omission.
Indeed, our situation is more akin to the problem in
Franklin, supra. There, a defendant was charged with
murder in connection with a fatal shooting that occurred
after he had escaped from state custody. The defendant's
sole defense was that the gun had accidentally discharged.
The trial judge instructed the jury that one is presumed to
intend the natural consequences of his or her actions, but
that the presumption may be rebutted. The court also
informed the jury that the defendant was presumed
innocent, and that the prosecution had the burden of
proving each element of the crime charged beyond a
reasonable doubt.

Following his conviction, the defendant appealed alleging
that the court's charge had improperly shifted the burden
of proof to him, and that the language in the charge
clarifying the burden of proof did not cure the infirmity. The
Supreme Court agreed.

       A reasonable juror could easily have resolved the
       contradiction in the instruction by choosing to abide by
       the mandatory presumption and ignore the prohibition
       of presumption. Nothing in these specific sentences or

                               22
       in the charges as a whole makes clear to the jury that
       one of these contradictory instructions carries more
       weight than the other. Language that merely
       contradicts and does not explain a constitutionally
       infirm instruction will not suffice to absolve the infirmity.
       A reviewing court has no way of knowing which of the
       two irreconcilable instructions the jurors applied in
       reaching their verdict.

Franklin, 471 U.S. at 322 (emphasis added). That is
precisely our situation. Indeed, our situation is worse
because in the initial instruction the District Court
suggested that jurors would derive little guidance from the
definition that would be given at the end of the trial. Jurors
who may have been confused by the more abstract
traditional charge may well have relied upon the court's
earlier assessment of the definition, and adopted the more
easily understood standard of what you feel "in your heart
and soul" to determine if the defendant's guilt had been
proven beyond a reasonable doubt.

The dissent believes that the initial instructions"were
really comments rather than instructions . . . ," and
concludes that they were not sufficient to create a
reasonable likelihood of prejudice under Victor v. Nebraska,
especially since they were immediately followed by a
curative instruction. Dissent at 31. However, nothing in
this record suggests that lay jurors drew this fine
distinction, or that they were even aware of it. Moreover,
the jury was never instructed to ignore the substantive
portion of the court's initial instructions in determining the
meaning of reasonable doubt. We do not suggest that the
problems created by the initial instruction could not have
been cured. Rather, we hold that the instructions taken as
a whole (including the clarification) were not adequate to
"unring" the bell. The clarification stressed the importance
of the concept of reasonable doubt, and emphasized that it
was not an "ephemeral" concept. However, it did not
provide an accurate definition of the term, or instruct
jurors to rely exclusively upon the written definition they
would receive at the end of the trial. When the jurors finally
heard the correct definition they had been forewarned that
the definition they were hearing was less helpful than the
prior erroneous explanation of what the term meant.

                               23
We are also unconvinced by the government's reliance
upon United States v. Dilg, 700 F.2d 620 (9th Cir. 1981).
See Appellee's Br. at 15-6. In Dilg, two juries were selected
simultaneously. One was to hear Dilg's case, and the other
was to be "on deck" to hear a trial that would start after
Dilg's was finished. After both juries were selected, the
judge gave general instructions that included instructions
as to the presumption of innocence. Dilg's jury was then
sworn, and the other jury was excused until later in the
week.7

At the conclusion of Dilg's trial the court gave a formal
charge that informed the jury of the government's burden of
proving every element beyond a reasonable doubt, but did
not mention the presumption of innocence. On appeal the
defendant argued that this omission required a new trial.
The prosecution countered that the jurors had been
informed of the presumption of innocence in the court's
general comments before trial and this cured the omission.
The court of appeals disagreed.

       There was no indication that the preliminary
       instructions were intended as the sole source of any
       aspect of the law by which the case was to be decided.
       To make matters worse, at no time during the
       instructions given at the close of the trial did the judge
       refer back to the pre-trial instruction given on the
       presumption of innocence.

Dilg, 700 F.2d at 625. Here, it is clear that the initial
instructions were not intended to be the "sole source" of the
law the jury was to apply. Although the final charge did not
"refer back to the court's preliminary comments," Appellee's
Br. at 15, it did not have to. The seed had already been
planted, and nothing in the final charge diminished the
fertility of that seed.

The government urges us to adopt a rule giving thefinal
charge more weight than instructions given during the
course of the trial because it was given immediately before
_________________________________________________________________

7. Because we find that the instructions given during voir dire were not
erroneous we need not decide the effect of an erroneous instruction that
is given before jurors are sworn.

                               24
deliberations, and the initial instructions were muted by
the passage of time having been given earlier in the trial.
See Appellee's Br. at 15. We refuse to adopt a rule that
would judge the significance of a preliminary jury
instruction by the length of the trial absent instructions
from the trial court that would cause jurors to place more
weight on the final charge than instructions given during
the course of the trial. We will not assume that jurors,
contrary to their oath, ignored part of the judge's initial
instruction simply because it came early in the trial.8 "The
[law] presumes that jurors, conscious of the gravity of their
task, attend closely the particular language of the trial
court's instructions in a criminal case and strive to
understand, make sense of, and follow the instructions
given them." Franklin, 471 U.S. at 324. We will not now
hold that the importance of a jury instruction is determined
by its proximity to the end of the trial.

Similarly, we disagree with the dissent's assessment of
the importance of "one sentence in an overview that covers
eight pages." Dissent at 32. Clearly, one sentence can not
be viewed out of context with the totality of the judge's
instructions. Neither can that one sentence be ignored
when viewing the eight pages of which it is a part. Thus, we
can not agree that our holding is based upon "unfounded
speculation that the jurors disregarded clear instructions."
Dissent at 33 (citing United States v. Newby, F.3d 1143,
1147 (3d Cir. 1993).9 Rather, this conviction can stand only
if we engage in unfounded speculation that jurors followed
the proper written instruction despite the court's statement
that it was not going to help them. See Franklin, 471 U.S.
at 322 ("[a] reviewing court has no way of knowing which of
the two irreconcilable instructions the jurors applied in
reaching their verdict."). Here, the jury was given two
explanations of reasonable doubt. One was incorrect, and
one was not. Due Process does not allow us to guess which
_________________________________________________________________

8. Moreover, we note that this trial only lasted four days.

9. In Newby, the curative instruction as to improperly admitted evidence
"was clear and effective," and the evidence in question was, "at most
cumulative." Id. at 1146. Here, the curative instruction was neither clear
nor effective, and the error requiring a curative instruction was far more
serious.

                               25
definition the jurors adopted so long as there is a
reasonable likelihood it chose the wrong one. Victor, 511
U.S. at 6. We hold only that, given the totality of the unique
circumstances here, that reasonable likelihood exists.

The government's position to the contrary is rooted in the
axiom that jury instructions must be viewed in their
entirety, and a series of cases that have reaffirmed that
principle. See United States v. Isaac, 134 F.3d 199 (3d Cir.
1998); United States v. Pine, 609 F.2d 106 (3d Cir. 1979);
United States v. Smith, 468 F.2d 381 (3d Cir. 1972).
Accordingly, the government relies upon Hegwood, to argue
that "even assuming arguendo that the court's preliminary
instructions were faulty, they were outweighed and indeed
cured by the court's correct final charge." Appellee's Br. at
14. The government contends that the instructions, taken
as a whole, adequately conveyed the concept of reasonable
doubt and that there was, therefore, no reasonable
likelihood that the jury understood the standard of
conviction to be less than beyond a reasonable doubt.

However, as noted above, "[l]anguage that merely
contradicts and does not explain a constitutionally infirm
instruction will not suffice to absolve the infirmity."
Franklin, 471 U.S. at 322. Thus, although the soundness of
the principle underlying the government's argument is
beyond dispute, we do not think it cures the infirmity in the
initial instruction. Accordingly, we conclude that there is a
reasonable likelihood that jurors utilized an improper
definition of reasonable doubt and convicted the defendant
not because the government proved its case beyond a
reasonable doubt as that term is properly understood, but
because the jurors "felt" the defendant was guilty.10
_________________________________________________________________

10. Our holding today is not intended to discourage the very common
practice of providing jurors with preliminary remarks to assist them
during the course of the trial. We only hold that when such preliminary
instructions are given, jurors must not be allowed to guess at which of
two conflicting instructions control their deliberations. This can be
avoided by simply informing jurors which instructions control in the
event they perceive a conflict between something they are told during the
course of the trial, and something contained in the formal instructions
that will follow the close of the evidence.

                               26
V.

For the reasons   set forth above, the judgment of
conviction will   be reversed, and the matter will be
remanded to the   District Court for further proceedings
consistent with   this opinion.

                                 27
RENDELL, Circuit Judge, Concurring:

I join in the thorough analysis, and result reached, by my
colleague, but write briefly only to offer an additional
practical reason as to why the purported cure by the
District Court judge was not an adequate fix.

I have great faith in jurors, but think it asks too much to
expect them to cast aside the court's initial instruction that
reasonable doubt is incapable of definition and is based on
what you feel inside, when later they are told its more
analytic underpinnings. It strikes me as an exceedingly
difficult if not impossible task.

If students of film were told before viewing afilm that
there are no set rules for assessing a film and they should
trust their heart and soul, then later, after viewing it, they
are told to comment on it using a "reasoned" approach, will
they not cling nonetheless to the impressions formed
throughout the viewing based on their emotional reaction?
I think we are naive if we think not.

Reasonable doubt is difficult enough without the
confusion evident on this record. Can we trust that a juror
who adheres to the judge's instruction and determines in
her heart and soul that the defendant is probably guilty will
be able to perform the mental gymnastics to replace all she
has observed and felt with a reasoned weighing of the
government's case (assuming she has made the effort to do
so in the face of initial instructions that the later definition
will be of little help)? I am dubious.

While it is true that a trial court's   guidance as provided
in most preliminary instructions will   pale in significance as
compared to the final dictates given,   that is not the case if
the particular instruction guides the   jury's perceptions and
observations as much as, or even more   than, their ultimate
decision making.

Further, I do not agree with our dissenting colleague that
our holding that this particular miscue was not cured poses
any threat to the concept of cure beyond the limits of this
unique fact pattern.

                                28
SLOVITER, Circuit Judge, Dissenting:

I approve and join in Parts I, II and III of the majority's
opinion. I dissent from Part IV because I do not agree that
we should reverse a conviction when, as we all agree, the
trial court gave the jury complete and accurate instructions
on reasonable doubt before the jury deliberated. The
majority overturns the conviction on the basis of language
with which the District Court described reasonable doubt in
preliminary comments made to the jury before they heard
opening statements or evidence. However, in light of the
majority's concession that there was no error in the
instruction on reasonable doubt when it was included in
the charge that was given to the jury four days later,
immediately before the jury proceeded to deliberate, the
effect of the majority's decision is to elevate those
preliminary comments to incurable error. In my view, the
majority's result is serious error, both because in the
circumstances here the erroneous instructions, if any, were
cured and because, as a general principle, incurable error
is limited to grievous faults.

I.

The trial of Julio Hernandez began on February 4, 1998,
on a three-count superseding indictment charging (count 1)
conspiracy to obstruct, delay and affect commerce and the
movement of commodities in commerce by robbery of a
tractor-trailer and the contents thereof, in violation of 18
U.S.C. S 1951(a); (count 2) obstructing, delaying and
affecting commerce and the movement of articles and
commodities in commerce by robbery, and threatening
physical violence to a person in furtherance of a plan to rob
a tractor-trailer and its contents, in violation of 18 U.S.C.
SS 1951(a) and 2; and (count 3) receiving and possessing
with the intent to convert to his own use goods and chattel,
namely 494 cases of cigarettes valued at over $250,000
that had been embezzled and stolen from a motortruck and
were moving as part of an interstate shipment, in violation
of 18 U.S.C. SS 659 and 2.

The jury received comments and/or instructions from the
trial judge on reasonable doubt on three separate

                               29
occasions. The first occasion was on February 4 during
what the majority characterizes as the "voir dire
instruction." Hernandez contends that because the court
stated in the course of those comments that the jurors
would have to use their sense of "what sounds likely" in
evaluating the evidence, he was entitled to a new trial. The
majority rejects Hernandez's contention and concludes that
there was no error in the remarks made by the District
Court at that time.

The third occasion was the formal jury charge, given to
the jury orally and in writing on February 13, before it
proceeded to deliberate. The defendant does not challenge
the instruction and the majority finds that charge to be
without error. That instruction fully incorporates all of the
relevant elements of a reasonable doubt charge, which the
majority refers to as the "traditional charge" on reasonable
doubt. In it, the District Court stated as follows:

       Now, what is reasonable doubt? Now, I'll try to define
       that. Reasonable doubt. A reasonable doubt is doubt
       based on reason and common sense. A reasonable
       doubt is such a doubt as would cause you to hesitate
       to act in matters of importance in your own lives. A
       reasonable doubt may arise from a lack of evidence. It
       is doubt based on reason, logic, common sense and
       experience. Reasonable doubt is not vague or
       hypothetical doubt. It is not speculative, imaginary
       qualms or misgivings. It is not just an excuse by a
       juror to avoid the performance of an unpleasant duty.
       It is not the normal sympathy which one human being
       may hold for another.

        It is not necessary for the United States or the
       Government to prove the guilt of a defendant to a
       mathematical certainty or beyond all possible doubt.
       The reason is in this world of ours, it is practically
       impossible for a person to be absolutely and completely
       convinced regarding any disputed fact which by its
       nature is not susceptible of mathematical certainty.
       Consequently, the law is such that in a criminal case
       it is sufficient if the proofs establish that a defendant
       is guilty beyond a reasonable doubt, not beyond all
       possible doubt.

                               30
        Reasonable doubt is an honest and reasonable
       uncertainty existing in your mind as to the guilt of the
       defendant after carefully considering all the evidence. A
       reasonable doubt may be said to exist in any case
       when after a careful consideration of all of the evidence
       the jury would be unwilling to rely upon that evidence
       unhesitatingly in a matter of importance in its own
       affairs.

App. at 800-02.

The majority's decision to reverse Hernandez's conviction
thus rests on its conclusion that the remarks made by the
District Court on the second occasion, February 9,
immediately after the jury was sworn and before the
opening statements, which the majority characterizes as
"the initial instructions," were such flagrant error as to
mislead the jury and be incurable.

These remarks are quoted in full in the majority's
opinion. What are the majority's objections?

The majority focuses on the statement made by the
District Court, after it advised the jury that there is no
specific definition of reasonable doubt (a patently accurate
comment), that "[i]t's what you in your own heart and your
own soul and your own spirit and your own judgment
determine is proof beyond a reasonable doubt." App. at
175. The majority has two objections: this statement
"allows each juror to judge the evidence by a visceral
standard unique to that juror, rather than an objective
heightened standard of proof applicable to each juror,"
Majority Opinion at 20, and it "allows jurors to convict
based upon their individual gut feeling.' " Id. The majority
fails to acknowledge that in those remarks, which were
really comments rather than instructions, the District
Court emphasized, at the outset of even that initial stage,
that "[t]he burden of proof is on the Government. The
Government brings the charges. The Government has to
prove the charges." App. at 175 (emphasis added). Nor does
the majority specify what the jurors were told that might
lead them to look to their "gut feelings" rather than the
evidence to which the District Court repeatedly referred.

                                31
If the majority's objection to the language used by the
District Court is that it improperly suggests a subjective
approach, then the majority is inconsistent with the
Supreme Court's articulation of the concept of reasonable
doubt as a "subjective state of near certitude," Jackson v.
Virginia, 443 U.S. 307, 315 (1979) (emphasis added); see In
re Winship, 397 U.S. 358, 364 (1970).

The majority's objection to the District Court's"initial
instructions" takes those comments out of context. It gives
short shrift to the government's argument that these
comments were merely meant to give an overview of the
trial procedure. An examination of the court's entire
presentation at that time reveals that the court was
providing precisely that overview. See generally Federal
Judicial Center, Benchbook for U.S. District Court Judges 95
(4th ed. 1996) (Preliminary jury instructions "are intended
to give the jury, briefly and in understandable language,
information to make the trial more meaningful."). The
District Court began by explaining the jury's function and
role, that witnesses will be called, that there will be
interpreters, who the lawyers will be, that the burden of
proof is on the Government, the sequence of events, where
the jurors could lunch, and the courtroom procedures to be
followed. The comment to which the majority objects is one
sentence in an overview that covers eight pages. App. at
172-79.

The District Court emphasized the preliminary nature of
those comments, stating on several occasions that the
charge and the instructions would be given to the jury at a
later time. Immediately after the language on which the
majority focuses, the District Court expressly told the
jurors that it would give them "some definitions at the end
of the trial when I give the Judge's charge to the jury." App.
at 175. Shortly thereafter, the court, continuing its
explanation of the sequence of events that would follow,
stated that after the lawyer on each side makes a closing
argument, "the Judge gives the Judge's charge to the jury.
When I do that, I'll give you something written so you can
read along with me. That's when I'll define proof beyond a
reasonable doubt. I'll define the presumption of innocence,
what does that mean. I'll define robbery. I'll define the

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various terms that you are hearing throughout the trial."
App. at 176 (emphasis added). The court's procedure was
consistent with common practice, under which the formal
instructions containing precise definitions are left for the
end of trial, following a formal charge conference.

There is no reason to assume that the jurors were
unaware that the formal instructions and definitions,
including that for reasonable doubt, would be given later in
light of the District Court's clear statements to that effect.
Just as we assume that jurors follow the accurate, formal
instructions of the court, see Opper v. United States, 348
U.S. 84, 94 (1954) ("To say that the jury might have been
confused amounts to nothing more than an unfounded
speculation that the jurors disregarded clear instructions of
the court in arriving at their verdict. Our theory of trial
relies upon the ability of a jury to follow instructions.");
United States v. Newby, 11 F.3d 1143, 1147 (3d Cir. 1993)
(jury presumed to follow curative instructions regarding
stricken evidence absent "overwhelming probability" jury
was unable to follow it), we should assume that the jurors
here listened to the judge's preliminary instructions
regarding when and how they would receive their formal
ones.

Even were this not enough to show that there was no
prejudicial error from the court's overview at the beginning
of the trial, this conclusion is reinforced by the District
Court's clarification of the import of the earlier language as
soon as counsel objected. At sidebar, defense counsel
stated:

        I'm also objecting to the Court's lack of definition of
       burden of proof as far as reasonable doubt is
       concerned as something you feel inside which suggests
       they can go with some sort of a gut or bias or prejudice
       or some feeling about the case, while beyond a
       reasonable doubt is the highest burden we have in our
       system of justice.

App. at 182.

Contrary to the majority's suggestion that what it regards
as the infirm instruction was not corrected, but merely
contradicted by the final charge, the District Court took

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steps almost immediately in response to counsel's
objection. After reviewing the indictment with the jury, the
court stated as follows

        Now, I have told you proof beyond a reasonable
       doubt will be defined in my charge, just as I will
       explain at greater length presumption of innocence.
       Because I refer to the fact that proof beyond a
       reasonable doubt has no accurate measuring rod, I
       don't want you to think that it is so ephemeral that it's
       meaningless or so subjective that it's an unworthy
       concept. It is a very important concept. It's indeed the
       backbone of the criminal law that proof must be
       convincing to a jury as to the guilt of a defendant
       beyond a reasonable doubt. And you will have to
       analyze the proofs so as to decide in your own mind:
       Was this proven beyond a reasonable doubt?

App. at 191.

In light of the prompt correction to the remarks that the
majority finds objectionable, the court's emphasis to the
jury that the instruction on reasonable doubt would be
given later (and in writing), and the majority's
acknowledgment that the final instructions on reasonable
doubt were not objectionable, I believe that there is no
reasonable likelihood that the jurors were misled to use an
improper definition of reasonable doubt in finding
Hernandez guilty.

I believe the majority's reversal of a conviction based on
its view that the court's preliminary remarks were incurable
is out of step with the precedent. Underlying our
jurisprudence is recognition that error will occasionally be
made, even error of constitutional magnitude, but that
most error either can be cured through an instruction or
has not prejudiced a defendant's right so substantially that
the conviction must be reversed. See generally Donnelly v.
DeChristoforo, 416 U.S. 637, 644 (1974) ("Although some
occurrences at trial may be too clearly prejudicial for . . . a
curative instruction to mitigate their effect, the
[prosecutor's comment that defendant hoped to be
convicted of a lesser charge] is hardly of such character.");
United States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir.

                               34
1995) (en banc) ("In determining prejudice, we consider the
scope of the objectionable [prosecutorial] comments and
their relationship to the entire proceeding, the ameliorative
effect of any curative instructions given, and the strength of
the evidence supporting the defendant's conviction.");
Newby, 11 F.3d at 1146 ("[W]e presume that the jury will
follow a curative instruction [regarding stricken evidence]
unless there is an `overwhelming probability' that the jury
will be unable to follow it and a strong likelihood that the
affect of the evidence would be `devastating' to the
defendant." [citations omitted]); United States v. Menichino,
497 F.2d 935, 945 (5th Cir. 1974) ("[A]ny harm done by the
[mid-trial] charge was vitiated by the later proper and
curative instructions."). To evaluate a claimed error in a
jury instruction, as in this case, an appellate court must
look to the charge as a whole. See Victor v. Nebraska, 511
U.S. 1, 5 (1994).

There was extensive analysis of two reasonable doubt
instructions by the Supreme Court in Victor, where the
petitioners challenged their reasonable doubt instructions.
In one case, the petitioner challenged the charge that
defined reasonable doubt in terms of "moral evidence" and
"moral certainty," but the Court, although not condoning
use of those terms, nevertheless concluded that they
neither suggested a standard of proof lower than required
by due process nor allowed conviction on factors
extraneous to the government's proof. Id. at 16. In the other
case, the Court held that the instruction that a reasonable
doubt is "not a mere possible doubt" also did not require
reversal because other language in the instruction made
clear the meaning of that instruction. Similarly, the Court,
while agreeing that the trial court's equating of a
reasonable doubt with a "substantial doubt" was
problematic, nonetheless concluded that "taken as a whole,
the instructions correctly conveyed the concept of
reasonable doubt to the jury." Id. at 22.

It is significant that Justice O'Connor, speaking for the
Court in Victor, pointed out that "in only one case have we
held that a definition of reasonable doubt violated the Due
Process Clause." Id. at 5. In the case to which she referred,
Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam), the

                               35
Court held that an instruction defining a reasonable doubt
to be "an actual substantial doubt" was fatally defective
because it suggested a higher degree of doubt than is
required for acquittal under the reasonable doubt standard.
Id. at 41. Certainly, the alleged error here in the court's
preliminary, overview remarks is in no way equivalent with
that in Cage, particularly as the error, if any, was followed
by a prompt cure and, ultimately, a fully correct charge.

The majority suggests that the decision in Francis v.
Franklin, 471 U.S. 307 (1985), may be analogous to this
case. Not so. The instructions in Franklin were not defective
because of the reasonable doubt portion of the charge but
because the instruction on intent effected a mandatory
presumption in violation of the Fourteenth Amendment's
requirement that the state prove every element of a criminal
offense.

In fact, in Holland v. United States, 348 U.S. 121 (1954),
the Court, in considering the petitioner's challenge to a
reasonable doubt charge in a federal criminal trial, agreed
that there were problems with the charge, which"should
have been in terms of the kind of doubt that would make
a person hesitate to act . . . rather than the kind on which
he would be willing to act. . . ," but nevertheless declined
to reverse, noting "the instruction as given was not of the
type that could mislead the jury into finding no reasonable
doubt when in fact there was some." Id. at 140.

Similarly, in this case, I see no basis to conclude that the
court's initial comments to the jury in an overview of the
procedure that was to take place could have misled the
jury. Although the court may not have adopted the most
felicitous expression in its overview, both the curative
instruction and the final charge were correct. The District
Court's final jury instructions emphasized that"[a]
defendant is never to be convicted on mere suspicion or
conjecture"; "[r]easonable doubt is not vague or
hypothetical doubt"; "[i]t is not speculative, imaginary
qualms or misgivings." App. at 801. Those final instructions
correctly conveyed the meaning of reasonable doubt and
adequately neutralized whatever misleading effect may have
been caused by the "what you feel inside" language in the
remarks some four days earlier.

                               36
Our zealousness to insure that a defendant has had a
fair trial and that justice has been done does not mean that
every error, although corrected, must lead to reversal. In
this case, I disagree with my colleagues that a small portion
of the trial court's initial comments, which were promptly
corrected and later neutralized by the final charge, requires
reversal of Hernandez's conviction. I therefore respectfully
dissent.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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