United States of America, Plaintiff-appellee, v. Efren Becerra-flores, Defendant-appellant, 24 F.3d 250 (9th Cir. 1994)

Before: KOZINSKI and TROTT, Circuit Judges, and WILLIAMS,^**  District Judge.

MEMORANDUM^*** 

A. In light of the Supreme Court's recent decision in Victor v. Nebraska, 62 U.S.L.W. 4179 (U.S. Mar. 22, 1994), we find that the jury instruction given at Becerra-Flores's trial satisfied the requirements of due process.

Victor held that due process does not require trial courts to define reasonable doubt as "a matter of course." Id. at 4180. Instead, "taken as a whole, the instructions [must] correctly convey the concept of reasonable doubt to the jury." Id. (quoting Holland v. United States, 348 U.S. 121, 140 (1954)) (alteration in original).

As the Court found that the instructions in Victor conveyed this concept correctly, we must do likewise here. In fact, Victor is a harder case because the instruction there at issue used the cryptic phrase "moral certainty." The district court here defined reasonable doubt as "a doubt based on reason and common sense," GER 235, a phrase that--unlike "moral certainty"--is not particularly ambiguous.

B. The district court correctly declined to give either the "mere presence" or "mere proximity" instruction. "If the government's case is based on more than just a defendant's presence, and the jury is properly instructed on all elements of the crime, then a 'mere presence' instruction is unnecessary." United States v. Negrete-Gonzales, 966 F.2d 1277, 1282 (9th Cir. 1992).

But unlike in Negrete-Gonzales--the case on which Becerra-Flores bases his claim--the government here relied on more than Becerra-Flores's presence at the crime. As he himself admitted, approximately 1 kilogram of cocaine was strapped to his body. GER 98, 142. He was also carrying 20 grams in his pocket. GER 86-87, 98. This evidence goes well beyond mere presence.

AFFIRMED.