USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 92-2314
UNITED STATES,
Appellee,
v.
ROBERTO COLON-PAGAN,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Selya and Stahl, Circuit Judges.
______________
____________________
James Kousouros
_______________

with whom

Debra K. Kousouros was

___________________

on brief

appellant.
Jose A. Quiles, Senior Litigation Counsel, Criminal
________________
with whom Daniel F. Lopez-Romo, United States Attorney, and
____________________
Pereira, Assistant United States Attorney, were on brief for
_______

Divisi

Miguel
______
appell

____________________
August 20, 1993
____________________

BREYER,
his conviction

Chief Judge.
___________

Roberto Colon Pagan appeals

for possessing,

with intent to

about six kilograms of cocaine.

evidence
working

against
at

San Juan's

suitcase marked
the

him was

sitting

in

the

questioned him,

strong.

airport,

for a New

luggage (through

21 U.S.C.

obtained a

841(a)(1).

drug

reacted

the

to the
agents

The

sniffing dog,

positively to

York flight; drug

its tag)

plane;

distribute,

agents traced

appellant,
arrested

who was

appellant,

search warrant, opened

the bag

and

found the cocaine.

believed
him

appellant's claim that

$1,000 to

strength of
trial, for

Neither the agents,

take

the

bag to

this evidence,
the court's

a short fat
New

however,

nor the jury,

man had given

York.

Despite

the

we must

order a

new

instruction to

the jury

about the

meaning of "reasonable doubt" was seriously erroneous.

The court

told the jury that

the government must

prove guilt beyond a "reasonable doubt," which, it said, did

not mean

guilt "beyond all

proof meant "proof

of such

possible doubt."
a convincing

Rather, that

character that

a
_

person . . . would be willing to rely and act upon it . . .

______________________________________________________
. "

(emphasis added.)

Earlier, it had

said that in order

to convict, "the [evidentiary] scales would have to tip more

to the government's side"

than in a civil case,

where "the

-22

plaintiff

will prevail

if he

makes the

scale tip

just a

little

bit to the side."

innocence.
"doubt

It mentioned

And, it also said that a "reasonable doubt" is a

based

upon

reason

and

appellant's counsel did not

trial,

the presumption of

common

sense."

Because

object to these instructions at

the issue on appeal is whether they contain an error

that is "plain" or

a "defect[]" that "affect[s] substantial

rights." Fed. R. Crim. P. 52(b).

The underscored language,

in our view, amounts to such an error.

The Supreme

Court has said that,

in applying the

"plain error" rule, Rule 52(b), we must ask 1) whether there

is an "error," 2) whether the error is "clear" or "obvious,"
and 3)

whether

which in most

the error

"affect[s] substantial

cases means that the error was, at a minimum,

"prejudicial."

United States
______________

1777-78 (1993).

If

a defect

v. Olano,
_____

but is not required to do so."

"Court of

113 S.Ct.

meets these three

then a court of appeals "has authority

added that the

rights,"

1770,

criteria,

to order correction,

Id. at 1778.
___

Appeals should

The Court has

correct" such

an

error if it "'seriously affect[s] the fairness, integrity or

public reputation
(quoting

of judicial

United States
______________

v.

proceedings.'"
Atkinson, 297
________

-33

Id.
___

U.S.

at 1779
157,

160

(1936)).

And,

it

has

said that

an

error

do

so

reasonable doubt"

as

"independent of defendant's innocence."

To

define "proof

beyond a

may

Id.
___

proof simply that a person "would be willing to rely and act

upon"

is erroneous.

incorrect impression
criminal case upon

The instruction may give the jury

that it can

movie or

convict a defendant

in a

evidence no stronger

than

decision to go shopping or

to a

the basis of

might reasonably support a

the

to take a vacation.

See, e.g., United States v.

___ ____ ______________

Baptiste, 608 F.2d 666, 668 (5th

________

Cir. 1979) (warning courts

not to define "proof beyond a reasonable doubt" as the "kind

of proof that

you would be willing to rely

and act upon in

the management of your own personal affairs"), cert. denied,

____________
450

U.S.

1000

unconstitutional
significantly less

(1981).
reasonable

Indeed,
doubt

permissive.

courts

have

instructions that

See Cage
___ ____

found
seem

v. Louisiana, 498
_________

U.S. 39, 40-41 (1990)

reasonable doubt was

(holding as unlawful instruction that

"such doubt

grave uncertainty" and

that

what

was

as would give

"an actual

required

for

rise to

substantial doubt,"

conviction

was

certainty" that the defendant was guilty).

and

"moral

We recognize

that the district court

may simply have misspoken.

have meant

a somewhat different

to refer to

It may

standard that

-44

appellate courts
that

have not held unlawful,

refers to proof the

jurors "would be

namely a standard
willing to rely

and act upon in the most important of their own affairs."

___________________________________________
See, e.g., United States
___ ____ _____________
Cir.

1980) (criticizing,

instruction that
"that

you

would

v. Gordon, 634 F.2d 639,

______
but

proof beyond
be

finding no

plain error,

a reasonable doubt

willing to

act

on

644 (1st

it

in

in

is proof
the most

important
and for

decisions that you have to make in your own lives

yourselves").

the court

Nonetheless, we must

did say, not

what it may

consider what

have intended

And what it did say was clearly wrong.

We can find no other

relevant instruction that somehow undid that wrong.

therefore

conclude that, in

to say.

And, we

context, the instruction meets

the criteria

for "error" and "obviousness."

Cf. Baptiste,
___ ________

608

668

where similar

F.2d at

instruction

(finding no

limited

by

"plain" error

context,

but

warning

that

such

finding would be likely in the future).

We

also

find

substantial rights."
limitation

that

Fed. R.

ordinarily means

have

been prejudicial,

that

Rule 52(b)

actual innocence."

the

Civ. P. 52(b).
that the

the Supreme

remedy is
Olano,
_____

error

only
____

While

error must
Court has

this

at least

"never held

warranted in

113 S. Ct. at 1779

-55

"affect[ed]

cases of

(emphasis in

original).
be

Rather, the

special category

corrected

Court has stated that

"[t]here may

of

regardless of

forfeited

errors

that can

their effect

on the

outcome," or

whose prejudice may be presumed. Id. at 1778.

___
also

indicated that an

be

The Court has

unconstitutional "reasonable doubt"

instruction belongs in this category.

The Sixth Amendment's

right to trial by jury, the Court has explained, requires "a

jury verdict of guilty beyond a reasonable doubt."
v. Louisiana, No. 92-5129,
_________
1, 1993).

Where a trial

the government's

court has seriously

burden of proof, however,

no jury verdict within the

Id.
___

at *3-*4.

evidence,

1993 WL 179275 at *2

We need

(U.S. June
misdescribed

"there has been

meaning of the Sixth Amendment."

not consider

therefore, in

Sullivan
________

order to

the strength

hold that

of the

the erroneous

instruction "affect[ed] substantial rights."

Finally,

we

in

affected the

"fairness, integrity

reach

proceedings."

this conclusion

context

that

instruction,

judicial

the

believe
of

Olano, 113
_____
on

the

Sullivan,
________

the Supreme

Court

defective

"reasonable

doubt"

this

the

erroneous

case,

"seriously"

or public

reputation of

S.Ct. at 1779.

basis
held that

of

case

We can

law.

In

a constitutionally

instruction

constitutes

"structural

defect[]

in

the

constitution

of

the

trial

-66

mechanism."

Sullivan, 1993 WL 179275

________

Fulminante, 111 S.Ct.

__________
trial

such

In Arizona v.
_______

1246 (1991), it held that

a criminal

marred by a "structural defect . . . 'cannot reliably

serve its
or

at *4.

function as a vehicle for

innocence,

and no

determination of guilt

criminal punishment

a trial] may be regarded

[resulting from

as fundamentally fair.'" Id.

__________________
___

at 1265 (quoting Rose v. Clark, 478 U.S. 570, 577-78 (1986))

____
_____
(emphasis added).
We can
common sense.
to

convict

also reach this conclusion on the basis of

The
on

erroneous instruction permitted the jury

the basis

believed

sufficient

ordinary

of decisions

to

of

evidence

justify
--

no

that

more

not evidence

it may

than

the

that proved

have
most
guilt

beyond

"reasonable

doubt."

significantly weakened what

and

certainly

convicting

its

perhaps,

the "public

Olano, 113
_____

S.Ct. at

ordinarily,

safeguard

person.

"seriously affect[ed]"

instruction

is perhaps the

best known,

an innocent

The

In

reputation of
1779.

of insisting

Thus,

law's greatest,
against wrongly

this way,

the "integrity" and

thus

the error

"fairness" and,

judicial proceedings."
despite the

that counsel

importance,

object to

an error

before the trial ends (so that the judge can correct it), we
______
have here a

case of "plain error," Fed. R.

Crim. P. 52(b),

-77

which

requires

objection.
So ordered.
___________

new

trial,

despite

the

absence

of

-88