United States v. Petty
2017 U.S. App. LEXIS 8877
| 10th Cir. | 2017Background
- Ishmael Petty was tried for assaulting three federal prison employees in Florence, CO, under 18 U.S.C. § 111; conviction and consecutive 20‑year sentences were imposed (he was already serving life for murder).
- At trial the district court gave the Tenth Circuit Pattern Jury Instruction on reasonable doubt, including the phrase that proof "leaves you firmly convinced" of guilt.
- Petty objected, arguing the instruction (1) lowered the burden by using "firmly convinced," (2) understated the heaviness of the government’s burden by saying it is "only required" to exclude reasonable doubt, and (3) failed to tell jurors that reasonable doubt can arise from lack of evidence.
- The district court overruled the objections; the jury convicted; Petty appealed claiming due process and Sixth Amendment error in the reasonable‑doubt instruction.
- The Tenth Circuit reviewed the constitutionality of the instruction de novo but considered the charge as a whole and the court’s precedent allowing some latitude in defining reasonable doubt.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Petty) | Held |
|---|---|---|---|
| Whether "firmly convinced" understates the reasonable‑doubt standard | The instruction properly conveys reasonable doubt; "firmly convinced" is an acceptable formulation | "Firmly convinced" suggests a lower standard than "beyond a reasonable doubt" or might be closer to clear and convincing | Affirmed — "firmly convinced," when read with surrounding language (e.g., acquit if a "real possibility" of innocence), comports with the Constitution (Conway precedent) |
| Whether saying it is "only required" to exclude reasonable doubt diminishes the government's heavy burden | The phrase explains what reasonable doubt is not (absolute certainty); context makes clear the burden is significant | "Only required" implies the burden is not strict or heavy, undermining due process | Affirmed — phrase must be read in context; the instruction as a whole adequately describes the standard and does not lessen the burden |
| Whether the instruction must explicitly state that reasonable doubt can arise from lack of evidence | The instruction’s repeated statements about the government’s burden and decision based on the evidence make that point clear | The jury should be told explicitly that lack of evidence can create reasonable doubt | Affirmed — no constitutional error; taken as a whole the charge made clear the government must present sufficient evidence and failure to do so requires acquittal |
Key Cases Cited
- Tillman v. Cook, 215 F.3d 1116 (10th Cir.) (standard of review for reasonable‑doubt instruction)
- Victor v. Nebraska, 511 U.S. 1 (1994) (Constitution does not mandate particular wording for reasonable doubt instruction)
- United States v. Conway, 73 F.3d 975 (10th Cir.) (upholding "firmly convinced" formulation)
- United States v. Pepe, 501 F.2d 1142 (10th Cir.) (noting difficulty of defining reasonable doubt)
- Cupp v. Naughten, 414 U.S. 141 (1973) (instructions must be read as a whole)
- Dunbar v. United States, 156 U.S. 185 (1894) (observing attempts to define "reasonable doubt" often fail)
- United States v. Kieffer, 681 F.3d 1143 (10th Cir.) (explaining that instruction may state what reasonable doubt does not require)
- United States v. Barrera‑Gonzales, 952 F.2d 1269 (10th Cir.) (discussing comparative strength of phrases like "firmly convinced")