Rehearing and Rehearing In Banc Denied March 6, 1978.
SPRECHER, Circuit Judge.
The main issue in this appeal is whether the district court plainly erred in a criminal case by its failure to read an instruction to the jury as to the government's burden of proof on the issue of self-defense.
The case arises out of an altercation between the defendant, Clifford Jackson, and a federal correctional officer, William Neris, in the visiting room of the Metropolitan Correctional Center (MCC) in Chicago, Illinois. The grand jury's indictment charged that the defendant assaulted, in violation of
A brief recital of the evidence presented at trial will show the gist of the government's case and the basis for the defendant's claim that a clearer self-defense instruction was required. The prosecution relied primarily on the testimony of Officer Neris and three other witnesses present in the waiting room of the MCC during the fight. The testimony established that there was a general rule known to all visitors of the MCC that physical touching in the visiting room was limited to a single embrace upon entering and another upon leaving the room. The officer on duty in the visiting room was responsible, as part of his duties, for seeing to it that that rule was enforced.
Prior to the day of the altercation, Officer Neris had several times ordered the defendant and his wife to stop violating the visiting room's physical touching rule.
The defendant responded angrily and cursed loudly at Officer Neris (Tr. at 129, 220 and 365). Officer Neris turned away from the defendant, walked across the room and called the lieutenant, who was his supervisor, informing him that an inmate was shouting and asking him to send assistance. (Tr. at 129). Officer Neris then went to his desk which was on the other side of the room from where the defendant and his wife had been seated. (Tr. at 130, 220).
Defendant moved across the room toward the officer shouting at him, telling him to stop picking on defendant and his wife, and threatening to strike the officer. In response, Officer Neris told defendant to "try it." (Tr. at 131). Officer Neris claimed that the defendant then pushed him in response to which the officer picked up a plastic garbage can to use in self-defense. The defendant knocked it out of his hand and proceeded to knock him down, strike him in the face several times and push his head several times into a metal rail on a sofa. (Tr. at 132). Additional officers arrived at the visiting room, restrained the defendant after a struggle and took him away kicking and screaming. Officer Neris was not hospitalized, but he did miss a full week of work recuperating from the attack.
The defendant presented two witnesses on his behalf, Anise Jackson, his wife, and Frank Mora, an inmate who was in the visiting room at the time of the incident. Mrs. Jackson's testimony, corroborated by Mora's,
The district court held a hearing on instructions in accordance with Fed.R.Crim.P. 30.
The instruction was objected to by the government and the court held that "Paragraph 4 should be made the subject of a separate instruction." (Tr. at 513). At that time, the court stated expressly that "the defendant is free to tender an instruction that covers Paragraph 4 . . . when we get to it." (Tr. at 513-14, 523).
After a recess, both the prosecutor and defense counsel tendered instructions on the self-defense issue. The defendant's proposed instruction specifically stated, "[i]f evidence of self-defense is present, the Government must prove beyond a reasonable doubt that the defendant did not act in self-defense."
In the defendant's closing argument, however, he did make reference to the issue of the government's burden of proof as to the self-defense claim. Defense counsel argued:
(Tr. at 565).
In instructing the jury, the court read the general instruction quoted earlier, without paragraph 4 included, which stated that the prosecution had the burden to prove all the elements of section 111 beyond a reasonable doubt and also read the prosecution's instruction on self-defense.
The jury instruction issue must be divided into two parts. First, did defense counsel adequately object to the court's self-defense instruction or did he instead waive that issue? Second, if the objection to the instruction was waived, did the district court's failure to read an instruction that clearly placed the burden of proof on the self-defense issue on the government nevertheless constitute "plain error?"
As to the waiver issue, we hold that the defendant did not adequately object to the court's instruction on self-defense.
525 F.2d at 1162. Thus, this court has made clear its view that counsel has an affirmative obligation to make the district court aware of any errors in its decision to reject a jury instruction and that counsel cannot "rely" upon the court's "own examination amidst the diverse pressures existent during the closing phases of a trial." United States v. Wright, supra at 985.
A careful examination of the Rule 30 hearing held by the court below demonstrates that counsel for the defendant failed to make a distinct objection to the court's self-defense instruction on the basis that it failed to assign properly the burden of proof. The defendant's first burden of proof instruction placed the self-defense issue in with the elements of the charge. Since the absence of self-defense is not an "element" of the charge, the court declined to read the instruction, but made clear its willingness to read a separate instruction on the burden of proof. (Tr. at 513-14). The better approach would have been for the court to read the defendant's tendered instruction and thereby avoid the ensuing confusion.
The second instruction tendered by the defendant was a relatively long one and the court not unreasonably chose to read a shorter version presented by the prosecution. A comparison between the two instructions
Having concluded that defendant failed to object to the jury instruction, there remains the issue of whether the court's failure to give a burden of proof instruction constituted "plain error" within the meaning of Fed.R.Crim.P. 52(b).
In deciding whether a defect in a jury instruction is "plain error," we must examine the entire record before us, United States v. Guy, 456 F.2d 1157, 1164 (8th Cir.), cert. denied, 409 U.S. 896, 93 S.Ct. 136, 34 L.Ed.2d 153 (1972); United States v. Johnson, 515 F.2d 730, 736 (7th Cir. 1975), and determine whether the instructional mistake had a probable impact on the jury's finding that the defendant was guilty. United States v. Wharton, 139 U.S.App.D.C. 293, 299, 433 F.2d 451, 457 (1970); United States v. Bernett, 161 U.S.App.D.C. 363, 383, 495 F.2d 943, 963 (1974); United States v. Johnson, supra at 736. Several factors coalesce in this case to convince us that the failure to assign a specific burden of proof on the self-defense issue was not plain error.
First, the court did read a self-defense instruction to the jury, thereby presenting the defendant's theory of the case to the factfinder. See United States v. Bernett, supra at 963. In fact, the instruction made clear that if the jury accepted the defendant's version of the case it "should find him not guilty." (Tr. at 591). Second, defendant's counsel stated, without objection, in his closing argument that the prosecution had to prove the absence of self-defense beyond a reasonable doubt. (Tr. at 565).
TONE, Circuit Judge, dissenting.
I disagree with the majority on the plain error question.
Given all this, I have trouble with the conclusion that it was not plain error to leave the jury in the dark as to which side had the burden of proving self-defense and what the standard of proof was. The error was not cured by defense counsel's statement in closing argument that the prosecution had the burden of proving absence of self-defense beyond a reasonable doubt. It was the judge who was responsible for advising the jury on the law, and the jury was given the customary admonition to that effect. The prosecutor, in his argument, listed the propositions which the government was required to prove, and absence of self-defense was not one of them. Plainly, the jury was left with no reliable information on the burden and standard of proof as to the issue of self-defense.
There remains, therefore, only one basis on which the judgment might be affirmed, viz., that the evidence of self-defense was so weak, in light of all the other evidence, that the omission to instruct properly was very unlikely to have had any effect on the verdict. I must admit that I too think it very unlikely that the jury would have found this issue in the defendant's favor even if they had been properly instructed. I have trouble, however, with "probable impact" as a test for plain error when the error in question was the failure to instruct the jury in such a way that they could properly decide a controlling issue in the case. Once it is conceded, as it is in this case, that there is sufficient evidence to support a finding of self-defense,
I therefore respectfully dissent.
18 U.S.C. § 111. Included in the list of persons in § 1114 is "any officer or employee of any United States penal or correctional institution." 18 U.S.C. § 1114. There is no dispute that William Neris was such an employee.
The instruction is quite similar to that proposed in 2 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 41.19 (1977).
(Tr. at 565).
Second, defendant objects to the court's instruction to the jury regarding his reasonable belief that Officer Neris was engaging in an unlawful use of force against the defendant. The jury was instructed that "[a] person is justified in the use of force when . . . he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force." (Tr. at 591). We believe that the instruction is an accurate statement of the law.