United States of America v. Thomas Smith

PRECEDENTIAL
Filed June 24, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-2605
UNITED STATES OF AMERICA,
Appellant
v.
THOMAS SMITH; BRIAN SMITH; ANDREW GARTH;
TYRONE PAYTON; PAUL CARPINTERI, JR.
APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. No. 00-cr-00399)
District Judge: The Honorable John C. Lifland
ARGUED MARCH 21, 2002
Before: NYGAARD, ROTH and AMBRO,
Circuit Judges.
(Filed: June 24, 2002)
Shawna H. Yen, Esq.
(Argued)
George S. Leone, Esq.
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
Counsel for Appellant
Kevin H. Marino, Esq.
(Argued)
Suite 1600
One Newark Center
Newark, NJ 07102-5211
Counsel for Appellee Thomas Smith
Robert L. Galantucci, Esq.
(Argued)
Philip De Vencentes, Esq.
Galantucci & Patuto
55 State Street
Hackensack, NJ 07601
Counsel for Appellee
Paul Carpinteri, Jr.

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Peter R. Willis, Esq.
Willis & Young
921 Bergen Avenue, Suite 528
Jersey City, NJ 07306
Counsel for Appellee Brian Smith
Anthony J. Iacullo, Esq.
Iacullo & Saluti
103 Park Street, 3rd Floor
Montclair, NJ 07042
Counsel for Appellee Andrew Garth
William D. Sayers, Esq.
Yankowitz, Goldsmith & Sayers
293 Eisenhower Parkway
Livingston, NJ 07039
Counsel for Appellee Tyrone Payton
2
OPINION OF THE COURT
NYGAARD, Circuit Judge.
A jury found five Orange, New Jersey police officers--
Thomas Smith, Brian Smith, Andrew Garth, Tyrone Payton,
and Andrew Carpinteri--guilty of conspiring to violate Earl
Faison’s civil rights in violation of 18 U.S.C S 241. Thomas
Smith, Brian Smith, and Andrew Garth were also convicted
of substantive crimes in violation of 18 U.S.C.S 242.
Following this verdict and upon the motions of the
Defendants, the District Court issued a Fed. R. Crim. P. 29
post-verdict judgment of acquittal as to the conspiracy
conviction of each officer. The government appeals, claiming
that the District Court applied the wrong standard of review
in overturning the jury verdict, misinterpreted Third Circuit
conspiracy law as stated in United States v. Gibbs, 190 F.3d
188 (3d Cir. 1996), and incorrectly failed to consider
evidence of concerted actions of concealment among the
officers after the victim’s death. We will reverse and
reinstate the conspiracy convictions of each officer.
I.
On April 8, 1999, Orange, New Jersey police officer Joyce
Carnegie was murdered while on duty. A composite sketch
of the suspect in the murder was circulated, and the entire
Orange Police Department began actively looking for him.
On April 11, 1999, an Orange police officer saw Earl
Faison, a man who resembled the suspect, enter a taxicab.
The officer approached the cab to question Faison, who
immediately ran away. As Faison ran, he reached for what
the officer thought was a gun. The officer gave chase and
ordered Faison to stop and drop his weapon, which Faison
did. Faison resisted the officer’s initial attempt to handcuff

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him, which resulted in his being pepper-sprayed. After the
pepper-spray, Faison ceased struggling, and the officer
successfully handcuffed him.
By this point, nine other officers (including the five
Defendants/Appellees) had arrived on the scene. Upon
3
noticing Faison’s resemblance to the murder suspect,
witnesses claimed that Thomas Smith (who was the senior
officer on the scene) punched Faison. Then Payton and
Carpinteri punched Faison and threw him in a squad car.
Garth and Thomas Smith then entered the squad car and
repeatedly punched Faison as he lay on the seat. An
unindicted officer pulled Smith and Garth out of the car.
After this beating, Thomas Smith ordered all of the
officers to return to the police department with the suspect.
This order conflicted with the established protocol of
bringing suspects in the Carnegie murder to the Essex
County Prosecutor’s Office for questioning, and was also
contrary to the routine police practice of leaving an officer
at the scene of an arrest to handle calls. There was also
testimony at trial that it was unusual for so many officers
to accompany a suspect to the police station.
As the officers, in five separate cars, approached the
police station, Thomas Smith ordered that they turn off
their lights. Faison was brought into the station through
the south entrance--which led to a locker room--even
though the north entrance was the designated prisoner
drop-off area. Numerous officers testified that they had
never taken a prisoner through the south entrance of the
police station.
Once in the station, Faison, still handcuffed, was laid on
the floor of the south stairwell. Faison was never brought to
the booking room, was never fingerprinted or photographed,
and was never given the opportunity to wash the pepper-
spray from his face and eyes--all of which was contrary to
routine police practice.
After Faison was placed in the stairwell, Payton began
yelling at him, removed money from Faison’s pocket,
suggested that the money be given to Officer Carnegie’s
mother, and then pointed his gun at the handcuffed
Faison’s head. When an unindicted officer grabbed Payton’s
weapon, Brian Smith sprayed pepper-spray at close range
into Faison’s nose and mouth. Faison’s breathing became
labored and he soon died of cardiac arrest.
Immediately after paramedics removed Faison’s body
from the police station, the officers initiated efforts to
4
conceal their actions. Payton and Carpinteri wrote

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consistent but false incident reports; Garth and Brian
Smith falsely claimed in their shift reports that they were
not present at the arrest; and Thomas Smith neglected to
mention in his commander’s summary sheet his presence
at the Faison arrest. Thomas Smith also instructed one
officer not to write a report of the incident because "the less
people on the scene the better," (App. at 1233), and Smith
instructed the arresting officer not to file a report
concerning the incident.
Faison did not kill Officer Carnegie. Six days after his
death, Officer Carnegie’s murderer was arrested.
II.
In reviewing a Fed. R. Crim. P. 29 post-verdict motion for
judgment of acquittal, a district court must "review the
record in the light most favorable to the prosecution to
determine whether any rational trier of fact could have
found proof of guilt beyond a reasonable doubt based on
the available evidence." United States v. Wolfe, 245 F.3d
257, 262 (3d Cir. 2001). The court is required to"draw all
reasonable inferences in favor of the jury’s verdict." United
States v. Anderskow, 88 F.3d 245, 251 (3d Cir. 1996).
Thus, a finding of insufficiency should "be confined to cases
where the prosecution’s failure is clear." United States v.
Leon, 739 F.2d 885, 891 (3d Cir. 1984). We have plenary
review of a district court’s grant of a post-verdict judgment
of acquittal. United States v. Leggett, 162 F.3d 237, 241 (3d
Cir. 1998).
Title 18 of the United States Code, S 241, makes it a
federal crime for "two or more persons [to] conspire to
injure, oppress, threaten or intimidate any person .. . in
the free exercise" of his constitutional rights. 18 U.S.C.
S 241. In granting the officers’ Rule 29 motions on this
conspiracy conviction, the District Court, relying on its
interpretation of United States v. Gibbs, 190 F.3d 188 (3d
Cir. 1999), said, "the existence of a conspiracy cannot be
inferred from evidence of related facts and circumstances,
without a reasonable and logical inference that the
activities of the participants could not have been carried out
5
except as the result of a preconceived scheme or common
understanding." (App. at 10) (emphasis added). Applying
this standard, the District Court found that the jury verdict
could not stand because "there are other plausible
explanations for [the officers’] conduct than a preconceived
scheme or common understanding," (App. at 13), and
"[t]here is no evidence to support the Gibbs requirement of
a reasonable and logical inference that [the officers’]
activities could not have been carried on except as the
result of a preconceived agreement or understanding." (App.
at 20). This misapprehends the holding in Gibbs and fails
to give the appropriate deference to the jury’s verdict.
In Gibbs we stated:

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To prove a conspiracy, the government must establish
a unity of purpose between the alleged conspirators, an
intent to achieve a common goal, and an agreement to
work together toward that goal. See United States v.
Robinson, 167 F.3d 824, 829 (3d Cir. 1999). The
government may prove these elements entirely by
circumstantial evidence. See McGlory, 968 F.2d at 321
(citing United States v. Kapp, 781 F.2d 1008, 1010 (3d
Cir. 1986)). The existence of a conspiracy "can be
inferred from evidence of related facts and
circumstances from which it appears as a reasonable
and logical inference, that the activities of the
participants . . . could not have been carried on except
as the result of a preconceived scheme or common
understanding." Kapp, 781 F.2d at 1010 (internal
quotation omitted). The government need not prove
that each defendant knew all of the conspiracy’s
details, goals, or other participants. See United States
v. Theodoropoulos, 866 F.2d 587, 593 (3d Cir. 1989),
overruled on other grounds by United States v. Price,
13 F.3d 711, 727 (3d Cir. 1994).
Gibbs, 190 F.3d at 197. The "could not have been carried
on except as a result of a preconceived scheme or common
understanding" language relied upon by the District Court
is preceded by the permissive "can be inferred" language in
Gibbs, rendering incorrect the District Court’s statement
that a conspiracy "cannot be inferred" unless the existence
of a preconceived scheme is the only plausible explanation
6
of the activities in question. Reading this permissive
language as mandatory led the District Court to
erroneously conclude that the officers’ conspiracy
convictions were not supportable.
As is clear from the context in Gibbs, the"preconceived
scheme" sentence is simply one way in which a conspiracy
"can be inferred" (hence the use of the permissive "can").
We did not ask in Gibbs, nor in any case since Gibbs,
whether there was a plausible, non-conspiratorial
explanation for a defendant’s actions. In Gibbs , we upheld
the conspiracy conviction of the appellant Sydnor even
though Sydnor claimed to have merely bought drugs from
Gibbs, as opposed to having engaged in a conspiracy with
Gibbs. Gibbs, 190 F.3d at 202. In that case, it was certainly
plausible that Sydnor was merely a purchaser from, as
opposed to a participant in, Gibbs’s larger drug operation.
Nonetheless, we affirmed Sydnor’s conspiracy conviction
stating, "[v]iewing all the evidence in the light most
favorable to the government, as we must, we believe that a
reasonable jury could have concluded that Sydnor knew
that he was dealing with a larger drug operation when he
purchased drugs from Gibbs." Id. This is the standard the
District Court should have used in evaluating the officers’
Rule 29 motion.

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Beyond Gibbs, our, and the Supreme Court’s,
jurisprudence, is consistent. To sustain a conspiracy
conviction, the "contention that the evidence also permits a
less sinister conclusion is immaterial. To sustain the jury’s
verdict, the evidence does not need to be inconsistent with
every conclusion save that of guilt." United States v. Dent,
149 F.3d 180, 188 (3d Cir. 1998). See also Holland v.
United States, 348 U.S. 121, 139 (1955); United States v.
Carr, 25 F.3d 1194, 1201 (3d Cir. 1994); United States v.
Gonzales, 918 F.2d 1129, 1132 (3d Cir. 1990). Thus, the
District Court’s assertions to the contrary were erroneous.
The District Court also applied the incorrect standard for
granting a Rule 29 motion. As we have said, "when deciding
whether a jury verdict rests on legally sufficient evidence [ ]
[i]t is not for us to weigh the evidence or to determine the
credibility of the witnesses. Rather, we must view the
evidence in the light most favorable to the government, and
7
will sustain the verdict if any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt." Dent, 149 F.3d at 187 (internal citations
omitted); see also Jackson v. Virginia, 443 U.S. 307, 318-19
(1979) (an inquiry into the sufficiency of the evidence "does
not require a court to ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable
doubt. Instead, the relevant question is whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt.") (emphasis in original) (internal citations omitted).
Appellant correctly argues that the District Court drew
inferences favorable to the defense and substituted its
conclusions for those of the jury.
There were sufficient facts presented to the jury that
could have lead a rational trier of fact to find beyond a
reasonable doubt that the officers had engaged in a
conspiracy to violate Faison’s constitutional rights. For
instance, there was testimony that each officer either
threatened to or actually did physically harm Faison; that
it was unusual for so many officers to accompany a suspect
back to the station; that suspects in Officer Carnegie’s
murder were to be taken to the County Prosecutor’s Office,
instead of the jail where Faison was taken; that it was
highly unusual to bring a suspect into the police station
through the south entrance; and that the officers acted in
concert to cover-up their actions. The fact that a group of
people, arguably with a common goal--that of punishing
Officer Carnegie’s murderer--engaged as a group in so
many unusual acts could certainly lead a reasonable juror
to the conclusion that there was at least a tacit agreement
between the officers, formed at the scene of the arrest, that
Faison was to be assaulted. Hence, we will reverse.
III.

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Finally, relying on Grunewald v. United States , 353 U.S.
391 (1957), the District Court found that "any acts of
concealment which occurred after the use of pepper spray
in the south stairwell or at the very least at the time of
death cannot be considered substantive parts of conspiracy
8
under Gruenwald [sic]." (App. at 8). Thus, when evaluating
the sufficiency of the evidence to sustain the conspiracy
convictions--evidence the jury was allowed to consider at
trial--the District Court disregarded the evidence of:
the false report attributed to Mr. Carpinteri, the false
report attributed to Mr. Payton, the false report
attributed to Brian Smith, the false report attributed to
Andrew Garth . . . Thomas Smith’s statement to
Detective Jackson in response to Detective Jackson’s
question about preparing a report, ‘No, the fewer, the
better,’ or words to that effect.
(App. at 8). This reliance on Grunewald was misplaced.
Grunewald held that an act of concealment does not
constitute an "overt act" in furtherance of an 18 U.S.C.
S 371 conspiracy for the purpose of determining the
commencement date for the statute of limitations. The case
did not discuss whether concerted acts of concealment may
be considered in reviewing the sufficiency of the evidence to
sustain a conviction under 18 U.S.C. S 241. The Supreme
Court has limited Grunewald’s holding, stating,
"Grunewald, however, was a statute of limitations case, and
whatever exasperation with conspiracy prosecutions the
opinion may have expressed in dictum says little about the
views of Congress when it enacted S 846." United States v.
Shabani, 513 U.S. 10, 14 (1994).1
The question to ask, then, is whether this evidence is
relevant to finding a conspiracy, or in other words, whether
it has "any tendency to make the existence of any fact that
is of consequence to the determination of the action more
probable than it would be without the evidence." Fed. R.
Evid. 401. Because "[a]ll relevant evidence is [generally]
admissible," Fed. R. Evid. 402, if we find these acts of
concealment to be relevant to a finding of a conspiracy, and
_________________________________________________________________
1. We also note that the rule that co-conspirator hearsay statements are
admissible to be used against a defendant only if made in furtherance of
the conspiracy, see Lutwak v. United States, 344 U.S. 604, 617-18
(1953), is not applicable in the present case to limit evidence of acts of
concealment which occurred after the object of the conspiracy had been
accomplished, i.e., after Faison’s death.
9
find no other reason for their exclusion, then they should
have been considered by the District Court.

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Other courts of appeals have considered acts of
concealment relevant to determining whether a conspiracy
existed. See, e.g., United States v. Piche, 981 F.2d 706 (4th
Cir. 1992); United States v. Bigham, 812 F.2d 943 (5th Cir.
1987); United States v. Davis, 810 F.2d 474 (5th Cir. 1987).
Furthermore, it is intuitive that concerted actions to cover
up the circumstances of Faison’s death, taken just minutes
after his death, have a tendency to suggest that the acts of
brutality were undertaken as part of an agreement, as
opposed to having been random, uncoordinated acts. Thus,
because the evidence regarding the concerted cover-up was
relevant (and was properly admitted during trial), the
District Court erred by disregarding this evidence in its
evaluation of the officers’ Rule 29 motions.
We conclude that, when viewed in the light most
favorable to the prosecution, reasonable jurors could have
found the existence of a conspiracy among the officers
beyond a reasonable doubt. For this reason, the District
Judge erred by granting a post-verdict judgment of
acquittal on the conspiracy count, and we will reverse.
CONCLUSION
In sum, and for the above reasons, we will reverse the
District Court’s grant of post-verdict judgments of acquittal,
reinstate the conspiracy convictions under 18 U.S.C.S 241
as to each officer, and remand the cause to the District
Court for sentencing on the reinstated counts.
10
AMBRO, Circuit Judge, Concurring:
I concur both in the majority’s decision and in nearly all
its reasoning. Nonetheless, I write separately because the
majority permits a mischievous loose line, which it takes
from United States v. Gibbs, 190 F.3d 188 (3d Cir. 1999), to
remain part of our conspiracy jurisprudence. That line
states that "a conspiracy can be inferred from evidence
. . . from which it appears . . . that the activities of the
participants . . . could not have been carried on except as
the result of a preconceived scheme or common
understanding." Id. at 197.1 This line is dictum and
misstates our settled conspiracy law. We should repudiate
it before it enables a guilty defendant to go free in an
erroneous acquittal.
The problem with the offending dictum is that it suggests
that a jury may not consider a defendant’s conduct to be
evidence of a conspiracy unless there is no other
explanation for it. That has never been the law in this
Circuit. Indeed, the offending dictum is inconsistent with
the principle that we must accept the jury’s verdict"if any
rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt." Gibbs,
190 F.3d at 197. The majority and I agree that the
offending dictum does not state a requirement for proving a

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conspiracy and cannot justify a post-verdict acquittal in
this case. We part company, however, in deciding what to
do with this language. I would simply reject it; the majority
tries to work around it.
The majority adopts the Government’s argument that we
need not worry about the offending dictum because it does
not purport to state a requirement in conspiracy cases, but
merely describes one of many ways that the Government
may prove a conspiracy. Maj. Op. at 7. Its explanation for
this reading is that the sentence merely says that"a
conspiracy can be inferred" from evidence that admits no
_________________________________________________________________
1. As I discuss below, this sentence did not originate in Gibbs, but rather
has been passed down through several of our opinions beginning with
United States v. Barrow, 363 F.2d 62, 64 (3d Cir. 1966). For
convenience, I often refer to it as the "offending dictum" in this
concurrence.
11
other explanation, not that a conspiracy "cannot be inferred
unless" such evidence exists. According to the majority, if
this language stated a requirement, it would not use the
word "can."
This explanation is unconvincing. First, another panel of
our Court has already misread this language as if it states
a requirement for conspiracy cases. In United States v.
Schramm, 75 F.3d 156 (3d Cir. 1996), this Court, reversing
a conspiracy conviction, observed: "We, therefore, cannot
conclude that the evidence adduced at trial allows a
reasonable inference, that the activities of the participants
. . . could not have been carried on except as the result of
a preconceived scheme or common understanding." Id. at
162 (internal quotation marks omitted) (emphasis added).
The majority insists that the offending dictum merely
suggests one way to prove a conspiracy, but Schramm
obviously did not read it that way. Instead, Schramm said
(in dicta, as explained below) that unless the standard is
satisfied, no conspiracy exists. This demonstrates that as
long as we allow the offending dictum to linger in our
jurisprudence, courts will misread it to state a conspiracy
requirement.
Moreover, it is natural that Schramm, having erroneously
decided to cite the offending dictum, interpreted it to state
a requirement. For example, if a judge charges a jury as
follows--"you can find the defendant guilty of bank robbery
from evidence that (1) he entered a financial institution and
(2) obtained money by force"--he has obviously laid out the
requirements for a bank robbery conviction. He has not
simply suggested one of many ways that the jury may find
the defendant guilty (even though the charge does not
technically exclude that interpretation). Similarly, when the
offending dictum says that "a conspiracy can be inferred
from evidence . . . from which it appears . . . that the
activities of the participants . . . could not have been

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carried on except as the result of a preconceived scheme or
common understanding," the most natural reading is that
it states a requirement, not a suggestion to the Government
about one way to prove a conspiracy.
Unlike the majority, which tries to sidestep the offending
dictum, I would simply reject it and state clearly that the
12
courts of this Circuit should henceforth ignore it. The best
evidence that it is not good law is that none of our cases
takes it seriously. The sentence originated in our 1966
opinion in United States v. Barrow, 363 F.2d 62, 64 (3d Cir.
1966). Barrow apparently spawned this dictum without any
precedent, following it with a string citation to four cases
that do not support it. Id.2 Moreover, notwithstanding its
apparent announcement of a new conspiracy standard,
Barrow itself did not apply that standard. Instead, it upheld
conspiracy convictions for operating illegal gambling
businesses because a jury "could have" inferred the
defendants’ involvement and the evidence was "susceptible
of a reasonable and logical inference" that a conspiracy
existed. Id. at 64-65.
Subsequent conspiracy cases quoted, but similarly
declined to apply, the offending dictum. In United States v.
Ellis, 595 F.2d 154 (3d Cir. 1979), police officers were
convicted of a conspiracy to violate the civil rights of
suspects in their custody. Id. at 160. We quoted the line
from Barrow, but then upheld their conspiracy convictions
without considering whether the evidence foreclosed every
possibility other than the existence of a preconceived
scheme or common understanding. Seven years later, in
_________________________________________________________________
2. The four cases are Glasser v. United States, 315 U.S. 60, 80 (1942);
United States v. Amedeo, 277 F.2d 375, 377 (3d Cir. 1960); United States
v. Monticello, 264 F.2d 47, 49-50 (3d Cir. 1959); and United States v.
Migliorino, 238 F.2d 7, 9 (3d Cir. 1956). Glasser says about this issue
that "[p]articipation in a criminal conspiracy need not be proved by
direct evidence; a common purpose and plan may be inferred from a
development and collocation of circumstances." 315 U.S. at 80 (internal
quotation marks omitted). Amedeo notes that"[c]onspiracy involves some
action in concert among conspirators but no one claims any more that
there must be express agreement among them. And a conspiracy may be
proven by circumstantial evidence alone." 277 F.2d at 377. Perhaps most
importantly, Monticello states what appears to be the opposite of the
offending dictum: "[A] conspiracy charge may be sustained on such
[circumstantial] evidence. Nor need the evidence be inconsistent with
every conclusion save that of guilt, provided it does establish a case from
which the jury can find the defendant guilty beyond a reasonable doubt."
264 F.2d at 49-50. Finally, Migliorino provides that "[o]vert acts done in
apparent pursuance of a common plan serve as evidence to demonstrate
the existence of a conspiracy." 238 F.2d at 9.
13

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United States v. Kapp, 781 F.2d 1008 (3d Cir. 1986), in
which we faced an "admittedly sparse record," we again
parroted the offending dictum, but then upheld a conviction
for conspiracy to transport stolen motor vehicles because
the defendant’s participation in the conspiracy"could be
inferred" from the evidence. Id. at 1010. In Schramm, as
noted above, we misstated the offending dictum as a
conspiracy requirement, but still did not rely on it. Rather
we stated that "there must be evidence tending to prove
that defendant entered into an agreement and knew that
the agreement had the specific unlawful purpose charged in
the indictment," 75 F.3d at 159 (citation omitted) (emphasis
added), and we only reversed the conviction in that case
because no evidence supported it. Id. at 160. Finally, in
Gibbs we upheld a conspiracy drug conviction even though
we acknowledged that a mere buyer-seller relationship
cannot prove a drug conspiracy and the district court had
"no evidence that [the defendant] ever did anything to
further the conspiracy other than buy and sell drugs." 190
F.3d at 199. Paying no attention to whether the evidence
permitted no conclusion other than a preconceived scheme
or common design, we upheld the conviction because"a
reasonable jury could have concluded beyond a reasonable
doubt that [the defendant] knew that he was dealing with
a larger drug operation." Id. at 202.
Not only have we consistently ignored the offending
dictum in our conspiracy analyses, we have frequently
contradicted it. E.g., United States v. Dent, 149 F.3d 180,
188 (3d Cir. 1998) ("To sustain the jury’s verdict, the
evidence does not need to be inconsistent with every
conclusion save that of guilt.") (citation omitted); United
States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990)
(same); United States v. Monticello, 264 F.2d 47, 49-50 (3d
Cir. 1959) (same).
That this Court has, for almost forty years, refused to
apply the offending dictum makes sense. That language,
taken literally, states an incorrect and almost impossible
standard. It requires the Government to prove a negative:
that no other explanation could possibly exist for a given
set of facts except a conspiracy. This conflicts sharply with
the basic principle, which Gibbs itself affirms, that we must
14
uphold the jury’s verdict whenever any rational view of the
facts permits. Gibbs, 190 F.3d at 197. Moreover, it
improperly transforms the reasonable doubt standard into
a requirement of jury certainty. See Victor v. Nebraska, 511
U.S. 1, 18 (1994) (approving a jury instruction stating that
reasonable doubt does not mean "absolute or mathematical
certainty"). We should unambiguously reject this incorrect
language before it confuses the next court to consider it.
A True Copy:
Teste:
Clerk of the United States Court of Appeals

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for the Third Circuit
15

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