UNITED STATES of America, Plaintiff-Appellee, v. Robert Joseph ROSSO, Jr., Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Gary S. Wainwright, Defendant-Appellant.
Nos. 98-2953, 98-4109
United States Court of Appeals, Eighth Circuit.
Submitted May 14, 1999. Decided June 17, 1999.
Steven N. Snyder, Assistant U.S. Attorney, Fort Smith, AR, argued (P.K. Holmes, III, on the brief), for Appellee in No. 98-2953. Jana K. Harris, Little Rock, AR, argued (Paul J. Casey, Brnet Bumpers and Julie Zamacona, on the brief), for Appellee in No. 98-4109.
Before WOLLMAN, Chief Judge, BEAM and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
In these two criminal cases the appellants raised an identical challenge to the Eighth Circuit Model Jury Instruction on reasonable doubt, and the cases were consolidated for hearing. Appellant Robert Joseph Rosso, Jr. was convicted of conspiracy to distribute methamphetamine in violation of
Appellants claim that the Eighth Circuit pattern instruction on reasonable doubt is unconstitutional under the due process clause because it is vague and fails to stress the government’s burden of proof. Both objected to its use at their trials. The model instruction on reasonable doubt reads as follows:
A reasonable doubt is a doubt based upon reason and common sense, and not the mere possibility of innocence. A reasonable doubt is a kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such convincing character that a reasonable person would not hesitate to rely and act upon it. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.
Eighth Circuit Model Jury Instruction—Criminal, Instruction 3.11 (1996).
Appellants raise several objections to this instruction and cite portions of other definitions of reasonable doubt which they believe to be superior.3 They argue that the instruction is vague because it circularly defines “reasonable doubt” in terms of “reason” and “reasonable” and that jurors would therefore be unable to understand the concept. They also contend that the instruction is deficient under Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954), because the third sentence uses the phrase “would not hesitate to ... act.”4 Finally, appellants argue that the instruction does not stress the gravity of a juror’s decision. They prefer language such as that in one of the standard pattern instruction collections which states that the proof must be “of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his or her own affairs.” 1 Edward J. Devitt et al., Federal Jury Practice and Instructions § 12.10 (4th ed.1992) (emphasis added).
We have previously found the circuit model instruction on reasonable doubt to pass constitutional muster in a number of cases. See, e.g., United States v. Kime, 99 F.3d 870, 877 (8th Cir.1996) (challenge for not saying reasonable doubt could arise from lack of evidence); United States v. Harris, 974 F.2d 84, 85 (8th Cir.1992) (challenge was to the phrase “and not the mere possibility of innocence” as lowering the government’s burden of proof); United States v. Knight, 547 F.2d 75, 77 (8th Cir.1976) (per curiam) (substantively similar instruction challenged for not defining reasonable doubt “exclusively in terms of hesitation to act”). To the extent this precedent covers the points raised here, we are not free to depart from it. See United States v. Olness, 9 F.3d 716, 717 (8th Cir.1993). To the extent appellants raise somewhat different challenges to the instruction, their arguments fail on the merits. The instruction is not circular just because it uses reason or reasonable to define reasonable doubt. The use of these words is appropriate and unlikely to confuse jurors. Cf. Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (“A ‘reasonable doubt’ ... is one based upon ‘reason.’ ”). The instruction is not deficient under Holland because it defines doubt in its second sentence exactly as counseled by that case, and the third sentence of the instruction which dis-
In addition to the jury instruction issue raised by both appellants, Wainwright argues that there was insufficient evidence to convict him of the federal offense of interstate transportation of stolen goods. He claims that the proof at trial showed only that he made bad business judgments or possibly violated state law and that his post trial motion for acquittal should have been granted. On a claim of insufficient evidence we review the evidence at trial “in the light most favorable to the jury’s verdict” and “give the verdict the benefit of all reasonable inferences that might be drawn from the evidence.” United States v. Wilson, 103 F.3d 1402, 1406 (8th Cir.1997) (citations omitted). “We will overturn the jury’s verdict only if no reasonable jury could have concluded that the government proved the elements of the offense beyond a reasonable doubt.” Id.
The evidence at trial showed Wainwright managed the Little Rock, Arkansas store of Dealers Truck Equipment Company, Inc. (Dealers). Dealers is based in Shreveport, Louisiana, and its primary business is retro-fitting trucks for commercial use. Wainwright expanded his store’s business to include the sale of accessory equipment for four wheel drive and all terrain vehicles. In the summer of 1995 Wainwright’s store began selling accessory equipment to P.G.S. 4X4 Centre (PGS), an Australian company. Dealers’ home office had a policy requiring its approval of all new accounts, but it was not made aware of the PGS account. Wainwright sought to become a partner in PGS with a one-third ownership interest, and he established his own export company to facilitate shipment to PGS of products purchased directly from the manufacturer.
Equipment was at first only shipped to PGS after payment had been received, but later it was shipped on credit. Dealers’ home office became aware of the PGS account when payment for one shipment had not been received within 60 days. It advised Wainwright to stop doing business with PGS and insisted that a credit application be completed. PGS faxed Wainwright the necessary information in January 1996, and he had his secretary verify the information and prepare a credit application. The credit application was backdated to July 15, 1995, and Wainwright wrote Dealers that a credit application had been completed before any of the shipments to PGS.
Wainwright became aware of a trade show to be held in Australia in February 1996, and he shipped approximately $50,0005 of Dealers’ equipment to Australia five weeks before the show. No one at Dealers’ home office knew about the shipment, and it was not handled like an ordinary business transaction. PGS had not ordered the equipment; it was only expecting a few samples to display at the show.6 No invoice had been prepared; the contents of the shipment were only documented on a legal pad.7 Wainwright personally arranged and paid for a roundtrip ticket to Australia so that he could help PGS at the show. He had not originally sought permission for the trip, but later requested that he be reimbursed for the airfare. Dealer’s home office told him they had no interest in the trade show and that if he went it would be on his own time and with his own money. PGS paid customs officials $21,000 in Australian funds
While Wainwright was in Australia, two employees from the Little Rock store went to Shreveport to report certain of his activities to company officials. After hearing their report, both the president and vice-president of Dealers drove to Little Rock to investigate. As a result of the investigation, Wainwright was terminated when he returned from Australia. An inventory conducted after Wainwright was terminated showed that the Little Rock store was short $209,000.
There was also a considerable amount of testimony admitted at trial under
Wainwright was arrested by local officials after his termination and later indicted by a federal grand jury and convicted for transporting stolen property in interstate commerce in violation of
The government need not have disproven every reasonable hypothesis of innocence for the jury’s verdict to be upheld; rather it only needed to provide sufficient evidence for a reasonable fact-finder to find Wainwright guilty beyond a reasonable doubt. See United States v. Turk, 21 F.3d 309, 311 (8th Cir.1994). Where the evidence could be interpreted in more than one way, the jury’s interpretation must be upheld. See United States v. Erdman, 953 F.2d 387, 389 (8th Cir.1992). There was a great deal of evidence to support the jury’s verdict, and it obviously rejected Wainwright’s theory of the case after considering all the evidence.
Wainwright theorizes that the jury must have relied on evidence admitted under
We conclude for these reasons that there is no basis to overturn the convictions of either Rosso or Wainwright. The judgments are therefore affirmed.