United States of America v. Vernon Grant

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-2885
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UNITED STATES OF AMERICA
v.
VERNON GRANT,
Appellant.
___________
On Appeal from the District Court of the Virgin Islands
(D.C. Criminal No. 04-cr-00077)
District Judge: Honorable Raymond L. Finch
___________
Submitted Under Third Circuit L.A.R. 34.1(a),
May 6, 2008
Before: RENDELL, FUENTES, and CHAGARES, Circuit Judges.
(Opinion Filed: June 4, 2008)
OPINION OF THE COURT
FUENTES, Circuit Judge:
Vernon Grant appeals his conviction following a jury trial on three counts of
conspiracy to possess with intent to distribute cocaine, conspiracy to import heroin and
possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841, 952, 960

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Specifically, Grant argues under Sullivan v. Louisiana, that a constitutionally1
deficient jury instruction that lowers the government’s beyond a reasonable doubt burden
of proof violates a defendant’s Sixth Amendment right to a jury trial. 508 U.S. 275, 277-
82 (1993). In Sullivan, the Supreme Court held that “the jury verdict required by the
Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt.” Id. at 282. The
Court explained “that the Fifth Amendment requirement of proof beyond a reasonable
doubt and the Sixth Amendment requirement of a jury verdict are interrelated.” Id.
We have jurisdiction under 28 U.S.C. § 1291. The District Court had jurisdiction2
pursuant to 18 U.S.C. § 3231.
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and 18 U.S.C. § 2. Grant was sentenced to 168 months imprisonment, 5 years of
supervised release and ordered to pay a special assessment of $300. Grant challenges his
conviction, alleging (1) that the government’s failure to disclose his original passport
violated his “rights to present a defense, to compulsory process and to due process” and
the District Court’s suppression of the passport was arbitrary and (2) that the District
Court “violated [his] Fifth Amendment right to due process and his Sixth Amendment
right to a jury trial” by giving an erroneous reasonable doubt jury instruction that
unconstitutionally lowered the government’s burden of proof. Appellant Br. at 1-2. We1
conclude that Grant’s arguments are without merit. Therefore, we will affirm the
conviction.2
Because we write for the parties, we recite only the facts essential to our decision.
The indictment alleged that Grant conspired with others to import controlled substances
into the U.S. from St. Maarten and Anguilla using female couriers. The couriers
transported the cocaine in large Coleman coolers filled with fish and ice. During jury
selection, in response to defense counsel’s request, the District Court ordered the

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government to produce Grant’s passport. Grant sought production of his passport to
establish that he was not in Anguilla on certain dates alleged by his co-conspirators. In
response, and because the original was not available, the government produced a
complete copy. The copy produced reflected that Grant entered Anguilla on June 21,
2003. The District Court observed, however, that the acts involving Grant in St. Maarten,
occurred prior to June 21, and before he had been to Anguilla. As a result, the District
Court denied admission of the passport after finding that the entries were not relevant.
Grant’s first argument is that the government violated his due process rights when
it failed to comply with the District Court’s order to produce his original passport, which
it had taken from him at the time of his arrest. Exercising plenary review over Grant’s
alleged constitutional violations, we find these arguments unconvincing. See United
States v. Tyler, 281 F.3d 84, 90 (3d Cir. 2002). We note two problems with Grant’s
contention. First, he conceded that the copies provided by the government were complete
and could have been used at trial without causing prejudice. Next, Grant did not raise any
issue of authenticity with respect to the copy of the passport. See Fed. R. Evid. 1003 (“A
duplicate is admissible to the same extent as an original unless (1) a genuine question is
raised as to the authenticity of the original or (2) in the circumstances it would be unfair
to admit the duplicate in lieu of the original”). We also note that the government did not
have the original passport in its possession and thus did not withhold its production in bad
faith. Accordingly, we conclude that government’s disclosure of a complete and accurate

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Specifically, the District Court explained the standard of reasonable doubt and the3
government’s burden. The District Court’s further instructed the jury that if the evidence
supported two inferences, one of guilt, the other of innocence, Grant should be found not
guilty.
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copy of Grant’s passport, in lieu of the original, did not amount to a violation of his due
process rights.
We also conclude that once the District Court determined the copy of the passport
was sufficient, it properly denied admission. Grant asserts that he sought to use the
passport to establish that he was not in Anguilla on certain dates alleged by his co-
conspirators. Grant’s passport was stamped on June 21, 2003 upon his entry to Anguilla.
However, the testimony by one of his co-conspirators about Grant’s involvement in the
conspiracy implicated him before his entry into Anguilla and placed him in St. Marteen,
thus making the passport entry irrelevant. Another co-conspirator testified that he spoke
to Grant during a call which he placed to Anguilla in September 2003, which is
corroborated by the passport. We are satisfied that the District Court did not abuse its
discretion in excluding the passport.
Grant’s second argument is that the District Court’s “two-inference” reasonable
doubt jury instruction was erroneous because it lowered the government’s burden of
proof. While we disapproved of the “two-inference” instruction in United States v.3
Jacobs, 44 F.3d 1219, 1226 & n.9 (3d Cir. 1998), we did not hold the instruction
constitutionally deficient per se. Even more significant, after Jacobs, we held that an

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almost verbatim jury instruction as the one given by the District Court in this case was not
constitutionally deficient. See U.S. v. Isaac, 134 F.3d 199, 202-05 (3d Cir. 1998). As we
stated in Isaac, the jury instruction adequately stated the government’s burden and that it
never shifted to the defendant. It also explained that a reasonable doubt was a high
standard but not an absolute certainty. Thus, we conclude that Grant’s argument that the
jury instruction violated his right to due process and right to a jury trial has no merit.
For the foregoing reasons, the judgment of conviction will be affirmed.

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