United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER OVERRULING OBJECTION TO
Nuffer, United States District Judge
West Fisher objects to the following language in Instruction
No. 16 regarding the definition of “reasonable
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.
the defendant in United States v. Conway,
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. Not only is this language copied verbatim
from the Tenth Circuit's model jury instructions,
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.” The Tenth Circuit has reiterated this
holding in several other cases. 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. Consistent with these cases, his objection
will be overruled on this basis.
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.” This is immaterial, as other jury
instructions contain this direction. Accordingly, Fisher's
objection will be overruled on this basis also.
IT IS HEREBY ORDERED that Fisher's
objection to Instruction No. 16 is OVERRULED.
 Objection to Jury Instructions
(“Objection”), docket no. 60, filed February 12,
 Instruction No. 16 (emphasis
 73 F.3d 975 (10th Cir. 1995).
 See Id. at
 Criminal Pattern Jury Instructions
§ 1.05, at 9 (2011 ...