United States v. Bullard , 38 F. App'x 753 ( 2002 )

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
5-17-2002
USA v. Bullard
Precedential or Non-Precedential: Non-Precedential
Docket No. 01-1952
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Recommended Citation
"USA v. Bullard" (2002). 2002 Decisions. Paper 283.
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NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 01-1952
___________
UNITED STATES OF AMERICA
vs.
MICHAEL BULLARD
Appellant.
___________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Criminal No. 00-cr-00085)
District Judge: The Honorable William H. Yohn, Jr.
___________
ARGUED
May 6, 2002
BEFORE: NYGAARD, ALITO, and ROSENN, Circuit Judges.
Elizabeth T. Hey, Esq. (Argued)
Defender Association of Philadelphia
Federal Court Division
Curtis Center
Independence Square West
Suite 540 West
Philadelphia, PA 19105
Counsel for Appellant
Eric B. Henson, Esq. (Argued)
Office of the United States Attorney
Suite 1250
615 Chestnut Street
Philadelphia, PA 19106
Counsel for Appellee
(Filed: May 17, 2002)
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OPINION OF THE COURT
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NYGAARD, Circuit Judge.
Appellant, Michael Bullard, challenges the District Court’s refusal to issue
his requested jury instruction during his criminal trial. We will affirm the District
Court’s order because we hold that the court did not abuse its discretion.
Bullard was indicted on a single count of possession of a firearm by a
convicted felon in violation of 18 U.S.C. 922(g). A superseding indictment was
obtained subsequently which added a Notice of Prior Convictions which exposed Bullard
to the enhanced penalty provision of the Armed Career Criminal Act, 18 U.S.C. 924(e).
The jury could not achieve unanimity in Bullard’s first trial, so the District Court
declared a mistrial. During his second trial, the jury convicted Bullard of possession of a
firearm by a convicted felon, and, in a separate proceeding, also found that he had been
convicted of the predicate offenses necessary for enhanced sentencing.
During the trial, Bullard asserted the affirmative defense that he had a legal
justification for being in possession of a firearm. While the Government bears the
burden of proving the elements of the crime charged beyond a reasonable doubt, the
defendant bears the burden of proving the elements of his defense by a preponderance of
the evidence. See United States v. Dodd, 225 F.3d 340, 342 (3d Cir. 2000), cert. denied,
532 U.S. 959 (2001). At the conclusion of the court’s jury instructions, Bullard
requested a specific instruction comparing the weight of the "beyond a reasonable doubt"
standard to the "preponderance of the evidence" standard. The District Court refused to
issue Bullard’s requested instruction, and Bullard assigns this as error on appeal.
We review jury instructions for an abuse of discretion. See United States v.
Zehrbach, 47 F.3d 1252, 1264 (3d Cir. 1995) (en banc). We consider "whether, viewed
in light of the evidence, the charge as a whole fairly and adequately submits the issues in
the case to the jury." Id. (quoting Bennis v. Gable, 823 F.2d 723, 727 (3d Cir. 1987)).
We will reverse if "the instruction was capable of confusing and thereby misleading the
jury." Id. (quoting Bennis, 823 F.2d at 727).
We find that the District Court did not abuse its discretion in refusing to
issue Bullard’s requested comparative instruction. Taken as a whole, the jury
instructions are not confusing or misleading. The Court properly instructed the jury of
the Government’s burden. For example, it stated:
Remember, as well, the law never imposes upon a defendant
in a criminal case the burden or duty of calling any witnesses
or producing any evidence because the burden of proving
guilt beyond a reasonable doubt is always assumed by the
Government. (App. 448a).
As I have mentioned to you, the Government’s burden of
proof in a criminal case is guilt beyond a reason[able] doubt,
with the exception of this justification defense which I will
explain later. What this means is that unless the Government
proves beyond a reasonable doubt that a defendant has
committed every essential element of an offense which he has
been charged, you must find him not guilty as to that offense.
(App. 458a-459a).
It is not required that the Government prove guilt beyond all
possible doubt. The test is one of reasonable doubt. A
reasonable doubt is a doubt based upon reason and common
sense. The kind of doubt that would make a reasonable
person hesitate to act. Proof beyond a reasonable doubt,
must, therefore, be proof 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. Unless the
Government proves beyond a reasonable doubt that the
defendant has committed each and every element of the
offense charged in the indictment, you must find the
defendant not guilty of the offense. (App. 460a).
The court also properly instructed the jury of Bullard’s burden in establishing the
affirmative defense of legal justification. Among its instructions, it said:
Now, there are two difference[s] with reference to this
defense from the crime that is charged [ ] possession of a
firearm by a convicted felon. As to the defense of legal
justification, the burden [of] proof is upon not the
Government, but upon the defendant and it is the burden of
the defendant to prove each of the elements of the defense by
a preponderance of the evidence rather than proof beyond a
reasonable doubt.
Now, what is proof by a preponderance of the evidence? To
establish by a preponderance of the evidence means to prove
that something is more likely so than not so. In other words,
[a] preponderance of the evidence in the case means such
evidence as when considered and compared with that
opposed to it, has more convincing force and produces in
your minds the belief that what is sought to be true is more
likely true than not true. (App. 468a).
Taking the jury instructions as a whole, we find they are neither misleading nor
confusing. The District Court did not abuse its discretion in refusing to issue Bullard’s
requested comparative instruction.
In sum, and for the reasons above, we will affirm the District Court’s
judgment.
_________________________
TO THE CLERK:
Please file the foregoing opinion.
/s/ Richard L. Nygaard
Circuit Judge