Page:Hotaling et al. v. Church of Jesus Christ of Latter-Day Saints.djvu/1

Rh closely reviewing the very piece of evidence at issue. It was a single comment in an otherwise unobjectionable argument by the government. The proof of Sanchez’s guilt was quite strong and the comment being contested was, at best, peripheral to the credibility of one single source of incriminating evidence. We are satisfied that it could not unfairly have affected the jury’s decision in any way given the other persuasive evidence against Sanchez.

Sanchez finally challenges the instructions given to the jury regarding the presumption of innocence. He argues that by including in those instructions a statement that a defendant begins a criminal trial with a “clean slate,” the court unfairly minimized the depth and importance of the presumption of innocence. We find no merit in that contention.

The instruction in whole, as largely derived from § 12.10 of Devit’s Federal Jury Practice and Instructions, was:

"Now, as you know, this is a criminal case. There are three basic rules about a criminal case that you must keep in mind. First, the defendant is presumed innocent until proven guilty. The indictment against the defendant brought by the government is only an accusation, nothing more. It is not proof of guilt or anything else. The defendant, therefore, starts out with a clean slate.

Second, the burden of proof is on the government until the very end of the case. The defendant has no burden to prove his innocence or to present any evidence or to testify. …

Third, the government must prove the defendant’s guilt beyond a reasonable doubt. And I will give you further instructions on this point later. But bear in mind, in this respect, that a criminal case is different from a civil case."

J.A. at 81.

We can find no error in these instructions. Sanchez points to no decision finding error in comparable “clean slate” references. Indeed, instructions incorporating such a reference have been expressly upheld by several other circuits. See United States v. Littlefield, 840 F.2d 143, 146 (1st Cir.1988); United States v. Walker, 861 F.2d 810, 813 nn. 7 & 8 (5th Cir.1988); United States v. Hollister, 746 F.2d 420, 424 (8th Cir.1984); United States v. Cummings, 468 F.2d 274, 280 (9th Cir.1972). We agree with those circuits that the reference in the context made could not constitute reversible error.

AFFIRMED.