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United States v. Fisher

United States District Court, D. Utah

February 15, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
WEST FISHER, Defendant.

          MEMORANDUM DECISION AND ORDER OVERRULING OBJECTION TO JURY INSTRUCTIONS

          David Nuffer, United States District Judge

         Defendant West Fisher objects[1] to the following language in Instruction No. 16 regarding the definition of “reasonable doubt”:

If . . . you think there is a real possibility that [the defendant] is not guilty, you must give him the benefit of the doubt and find him not guilty.[2]

         Like the defendant in United States v. Conway, [3] Fisher argues that this language understates the degree of certainty that a jury must reach in order to find a defendant guilty and subtly shifts the burden of proof to the defense.[4] Not only is this language copied verbatim from the Tenth Circuit's model jury instructions, [5] but the Tenth Circuit in Conway expressly held that this language “is a correct and comprehensible statement of the reasonable doubt standard” and “reject[ed] . . . the contention that the phrase ‘real possibility' . . . impermissibly shifts the burden of proof.”[6] The Tenth Circuit has reiterated this holding in several other cases.[7] It is remarkable, therefore, that, among the many authorities cited in and attached to Fisher's objection, he did not reference any of these controlling cases.[8] Consistent with these cases, his objection will be overruled on this basis.

         Fisher further objects to this instruction because it “does not instruct that the burden of proof is on the government to prove beyond reasonable doubt each and every element of the crime.”[9] This is immaterial, as other jury instructions contain this direction.[10] Accordingly, Fisher's objection will be overruled on this basis also.

         ORDER

         THEREFORE, IT IS HEREBY ORDERED that Fisher's objection[11] to Instruction No. 16 is OVERRULED.

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Notes:

[1] Objection to Jury Instructions (“Objection”), docket no. 60, filed February 12, 2019.

[2] Instruction No. 16 (emphasis added).

[3] 73 F.3d 975 (10th Cir. 1995).

[4] See Id. at 981.

[5] Criminal Pattern Jury Instructions ยง 1.05, at 9 (2011 ...


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