FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. William G. Young, U.S. District Judge]
A. Feldman and Feldman and Feldman on brief for appellant.
Estes, Assistant United States Attorney, and Carmen M. Ortiz,
United States Attorney, on brief for appellee.
Howard, Chief Judge, Torruella and Lipez, Circuit Judges.
HOWARD, Chief Judge.
Rosalind Herman was convicted, after a jury trial, of
conspiracy, willful violation of the Investment Advisers Act,
wire fraud, and corruptly impeding the administration of
internal revenue laws. These charges arose from a scheme in
which Herman and a co-conspirator solicited funds for
purported investment in a hedge fund management company.
Rather than investing the money they obtained, totaling more
than $1.3 million, Herman and her confederate used it for
personal expenses. Herman also allegedly defrauded the
Internal Revenue Service by claiming false business
deductions and failing to file tax returns in some years,
resulting in almost $1.85 million in unreported income. After
the jury returned its guilty verdict, the district court
sentenced Herman to eighty-four months' imprisonment. On
appeal, Herman raises two narrow claims, one relating to her
convictions and a second challenging her sentence. Because we
find each of these claims unavailing, we affirm.
begin with Herman's challenge to her convictions, which
is predicated entirely upon purported deficiencies in the
district court's instructions on the reasonable doubt
standard. Because Herman failed to object to the instructions
below, we review only for plain error. See United States
v. Van Anh, 523 F.3d 43, 57 (1st Cir. 2008). In order to
satisfy this demanding standard, Herman must establish that
"(1)  an error occurred (2) which was clear or obvious
and which not only (3) affected [her] substantial rights, but
also (4) seriously impaired the fairness, integrity, or
public reputation of judicial proceedings." Id.
at 55 (first alteration in original) (citation omitted).
Herman's claim falters on the first element. We perceive
no error, much less plain error, in the district court's
reasonable doubt instructions.
initial matter, we have repeatedly noted "that
reasonable doubt does not require definition."
United States v. Rodríguez-Cardona, 924 F.2d
1148, 1160 (1st Cir. 1991). Thus, "an instruction which
uses the words reasonable doubt without further definition
adequately apprises the jury of the proper burden of
proof." United States v. Ademaj, 170 F.3d 58,
66 (1st Cir. 1999) (citation omitted); see also Victor v.
Nebraska, 511 U.S. 1, 5 (1994) ("[T]he Constitution
neither prohibits trial courts from defining reasonable doubt
nor requires them to do so as a matter of course.").
Where, however, the court does undertake to define the term,
it cannot employ a definition that creates "a reasonable
likelihood of leading the jury to believe that it can convict
on some lesser standard of proof." Van Anh, 523
F.3d at 57 (citation omitted). With that said, "the
Constitution does not require . . . any particular form of
words." Victor, 511 U.S. at 5. The district
court, thus, retains significant discretion in formulating
its instructions, so long as it "correctly conve[ys] the
concept of reasonable doubt to the jury." Id.
Herman takes issue with the following passage from the
[T]he burden of proof here is not common sense, of course you
can use your common sense, the burden of proof here is proof
beyond a reasonable doubt, and there must be no guesswork, no
speculation, no "maybe this happened, "
"perhaps, " "possibly, " "it could
have, " not even that it's likely that this or that
happened, it has to be proved beyond a reasonable doubt.
makes five specific arguments as to why the reasonable doubt
instructions were deficient. Four are easily disposed of.
First, while Herman correctly notes that the court was not
required to define reasonable doubt, neither was it
prohibited from doing so. See Victor, 511 U.S. at 5.
Second, once it decided to provide a definition, the court
was not bound to use one of the specific formulations that
Herman now proposes. See id. Third, the mere fact
that the district court gave a "negative"
definition, explaining reasonable doubt by reference to what
it is not, does not, in itself, require reversal.
United States v. DeVincent, 632 F.2d 147,
152-53 (1st Cir. 1980). Fourth, the court's allusion to
the jury's use of "common sense, " while
perhaps unnecessary, did not constitute error. United
States v. Munson, 819 F.2d 337, 346 (1st Cir. 1987).
fifth claim of instructional error is the most substantial,
but it too ultimately fails. Herman posits that, by
presenting "a choice between guesswork and speculation
on the one hand, and reasonable doubt on the other, "
the court "effectively reduced the government's
burden of proof." This is because the instructions could
have led the jury to believe that "it could return a
guilty verdict so long as it found the government's proof
was non-speculative." Unfortunately for Herman, we have
previously upheld the use of language very similar to that at
issue here. See United States v. Burnette, 375 F.3d
10, 20 (1st Cir. 2004) ("The jury must never find the
defendant guilty on mere suspicion, conjecture or
guess."), vacated on other grounds, 543 U.S.
1181 (2005); United States v. Whiting, 28 F.3d 1296,
1304 (1st Cir. 1994) ("[A] defendant is never to be
convicted 'on the basis of mere conjecture, surmise or
suggestion that the jury may have been misled is further
undermined by the court's repeated emphasis that proof
beyond a reasonable doubt was required for conviction.
Indeed, the court mentioned the reasonable doubt standard no
fewer than nine times in its instructions to the jury. And it
introduced the concept on the very first day of trial, when
it made clear that Herman sat before the jury as "an
innocent woman" who could only be convicted based on
proof "beyond a reasonable doubt." In this context,
we perceive no reasonable likelihood that the language cited
by Herman led the jury to apply a lesser standard of proof.
See Van Anh, 523 F.3d at 58 (holding that