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United States v. Herman

United States Court of Appeals, First Circuit

February 6, 2017

ROSALIND HERMAN, Defendant, Appellee.


          Steven A. Feldman and Feldman and Feldman on brief for appellant.

          Craig Estes, Assistant United States Attorney, and Carmen M. Ortiz, United States Attorney, on brief for appellee.

          Before Howard, Chief Judge, Torruella and Lipez, Circuit Judges.

          HOWARD, Chief Judge.

         Defendant-Appellant 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.


         We 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.

         As an 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. (citation omitted).

         Here, Herman takes issue with the following passage from the court's instructions:

[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.

         Herman 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).

         Herman's 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 guesswork.'").

         Any 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 instruction ...

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