So, what is the two inference instruction? The two inference instruction given was that if the jury "view[ed] the evidence in the case as reasonably permitting either of two conclusions—one of innocence, the other of guilt—the jury should, of course, adopt the conclusion of innocence."
In United States v. Khan, 821 F.2d 90, 92 (2d Cir. 1987), here, cited by the Fourth Circuit in Blankenship, the Second Circuit held (bold-face supplied by JAT):
In our view, trial judges should not include any variation of the "two-inference" language in their charge. See Sand, Siffert, Loughlin Reiss, Modern Federal Jury Instructions ¶ 4.01, at 4-5 (1986). The "two-inference" language, that if the jury believes the evidence permits either the inference of innocence or of guilt, the jury should adopt the former, is obviously correct as far as it goes. But such an instruction by implication suggests that a preponderance of the evidence standard is relevant, when it is not. Moreover, the instruction does not go far enough. It instructs the jury on how to decide when the evidence of guilt or innocence is evenly balanced, but says nothing on how to decide when the inference of guilt is stronger than the inference of innocence but no strong enough to be beyond a reasonable doubt. In a charge that properly instructs the jury on reasonable doubt, the "two-inference" language "adds nothing." Id., ¶ 4.01, at 4-9. Therefore, we want to make clear now that the "two-inference" language should not be used because, standing alone, such language may mislead a jury into thinking that the government's burden is somehow less than proof beyond a reasonable doubt.n1 In addition, we expect the government, as well as defense counsel, to assume responsibility for bringing these comments to the attention of trial judges.Following that lead, in Blankenship, the Court said (bold-face supplied by JAT):
n1 This opinion was circulated to all active judges of the Court prior to filing.
Although this Court has not had an opportunity to pass judgment on the two-inference instruction, our Sister Circuits disfavor it. See, e.g., United States v. Dowlin, 408 F.3d 647, 666 (10th Cir. 2005); United States v. Jacobs, 44 F.3d 1219, 1226 (3d Cir. 1995); Khan, 821 F.2d at 93. In Khan, the Second Circuit explained that, although correct as a matter of law, the two-inference instruction "by implication suggests that a preponderance of the evidence standard is relevant, when it is not. . . . It instructs the jury on how to decide when the evidence of guilt or innocence is evenly balanced, but says nothing on how to decide when the inference of guilt is stronger than the inference of innocence but no[t] strong enough to be beyond a reasonable doubt." 821 F.2d at 93. We agree and therefore direct our district courts not to use the two-inference instruction going forward.JAT Comments:
1. Note the importance that the Second Circuit in Kahn attached to avoiding the two-inference instruction (see the bolface above). This reminds me of an even stronger admonition by the Second Circuit as to the proper use of the willful blindness instruction. See United States v. Feroz, 848 F.2d 359, 361 (2d Cir. 1988), here (bold-face supplied by JAT):
Nevertheless we are troubled by the fact that the government has failed once again to request the proper instruction on conscious avoidance, despite our previous urgings. See Cano, 702 F.2d at 371 ("[T]o help ensure that the judge gives this charge in an appropriate case, we suggest that in the future government attorneys should make a practice of requesting it. . . ."). Accord Shareef, 714 F.2d at 233. By now our message should be clear: the prosecutor should request that the "high probability" and "actual belief" language be incorporated into every conscious avoidance charge. In the hope that we will not be called upon continually to address this matter, we direct the Clerk of this Court to issue copies of this opinion, within ten days of the issuance of the mandate, to the six United States Attorneys within the Second Circuit, together with a request that the opinion be circulated to every Assistant United States Attorney engaged in criminal prosecutions, within three weeks following the issuance of the mandate.2. I suppose, as indicated in Kahn, the instruction might be appropriate if immediately accompanied by the further instruction that the jury should convict only if evidence of guilt is established beyond a reasonable doubt, so that the two-inference instructions becomes illustrative of the circumstance in which the jury should return a verdict of not guilty. So, I suppose that such an instruction, properly bracketed to emphasize that guilt should occur only if the jury finds guilt beyond a reasonable doubt, might even be favorable to the defendant because the jury is hearing directly from Mount Olympus that equally plausible explanations means the defendant is not guilty. While that may be implicit in the standard jury instruction requiring proof beyond a reasonable doubt, it might be helpful to the defendant (again, properly explained).