Unpublished Disposition, 935 F.2d 276 (9th Cir. 1991)

MEMORANDUM^** 

John R. Kerr appeals his conviction, following a jury trial, for one count of tampering with a witness, in violation of 18 U.S.C. § 1512(b). Kerr claims the district court erred by failing adequately to instruct the jury as to the meaning of reasonable doubt. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review de novo whether jury instructions given over a defendant's timely objection accurately state the law. United States v. Terry, 911 F.2d 272, 278 (9th Cir. 1990). "An erroneous instruction is grounds for reversal only if there is a reasonable possibility that the error materially affected the jury's verdict." United States v. Kindred, No. 90-10270, 5433, 5437 (9th Cir. April 30, 1991) (citing United States v. Herbert, 698 F.2d 981, 986 (9th Cir.), cert. denied, 464 U.S. 821 (1983)). "Where no objection is raised below, we review for plain error. Terry, 911 F.2d at 279. "Plain error requires reversal 'only when it appears necessary to prevent a miscarriage of justice or to preserve the integrity of the judicial process.' " United States v. Chambers, 918 F.2d 1455, 1458 (9th Cir. 1990) (quoting United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir. 1986)).

Generally, the district court has broad discretion in formulating jury instructions, and neither party may demand specific language. United States v. Wellington, 754 F.2d 1457, 1463 (9th Cir.), cert. denied, 474 U.S. 1032 (1985). The phrase "proof that leaves you firmly convinced" adequately defines proof beyond a reasonable doubt. United States v. Nolasco, 926 F.2d 869, 872 (9th Cir. 1991) (en banc); Bustillo, 789 F.2d at 1368.

Here, the district court instructed the jury, "a reasonable doubt is a doubt based upon reason and common sense, and may arise from a careful and impartial consideration of all the evidence. Proof beyond a reasonable doubt is proof that leaves you firmly convinced that the defendant is guilty."¹  Kerr objected that the term "firmly convinced" was "more akin to clear and convincing, and ... water [ed] down the reasonable doubt instruction." On appeal, Kerr also argues that the phrase "reason and common sense," impermissibly lowers the government's burden of proof by requiring the juror's doubt to be founded on both reason and common sense, instead of one or the other. The testimony of several witnesses and a taped phone conversation, which the government played for the jury, supported Kerr's conviction.

We have upheld use of the "firmly convinced" language Kerr challenges. See Nolasco, 926 F.2d at 872; Bustillo, 789 F.2d at 1368. Moreover, we conclude that use of the phrase "reason and common sense" wrought no miscarriage of justice in this instance. See Chambers, 918 F.2d at 1458. The evidence against Kerr was substantial, and the likelihood that minor changes in the jury instructions would have secured his acquittal, almost nonexistent. Therefore, we affirm. See Kindred, No. 90-10270, slip op. at 5437; Chambers, 918 F.2d at 1458.

AFFIRMED.