United States of America v. Thomas R. Alt

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2724
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
THOMAS R. A LT,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 19-cr-10056 — James E. Shadid, Judge.
____________________
A RGUED NOVEMBER 28, 2022 — DECIDED J ANUARY 25, 2023
____________________
Before R OVNER , ST. EVE, and K IRSCH , Circuit Judges.
ST. EVE, Circuit Judge. Thomas Alt made plans to meet with
a fifteen-year-old boy whom he met on Grindr (a popular da-
ting app) to smoke marijuana and engage in sexual activity.
What Alt did not know was that the boy was actually an un-
dercover FBI Agent. Alt was arrested later that day when he
attempted to meet up with the boy. After a three-day jury
trial, Alt was convicted of attempted enticement of a minor
and sentenced to the mandatory minimum 120 months in

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2 No. 21-2724
prison, followed by fifteen years of supervised release. He
timely filed this appeal challenging the district court’s denial
of his motion to suppress, claiming the government commit-
ted a Batson violation, and arguing he was deprived of a fair
trial because of the government’s statements during closing
arguments. Alt also challenges the requirement that he partic-
ipate in a sex offender treatment program as a condition of his
supervised release. We now affirm.
I. Background
On November 1, 2019, Thomas Alt—then twenty-six years
old—sent a message to a Grindr account operated by an un-
dercover FBI Agent. The account included the picture of a
youthful-looking boy and listed his age as eighteen years old,
the minimum required to use the Grindr app. The boy re-
sponded to Alt after Alt sent two more messages. During their
subsequent conversation, the two discussed meeting up to en-
gage in sexual activity and smoke marijuana. The boy explic-
itly told Alt that he was only fifteen years old, but Alt contin-
ued with his plans to meet. Approximately an hour-and-a-
half after the boy first responded, FBI agents arrested Alt out-
side of what Alt believed to be the boy’s home. At the time of
his arrest, Alt had a tablet with the Grindr app and messages,
an iPhone, and marijuana.
A. Post-Arrest Interview
FBI agents interviewed Alt following his arrest. Prior to
any substantive questioning, the following exchange oc-
curred:
FBI: So, before we ask you any questions, you must un-
derstand your rights. You have the right to remain si-
lent, anything you say can be used against you in court.

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No. 21-2724 3
You have the right to talk to a lawyer for advice before
we ask questions, uh, you have a right to have a lawyer
with you during the questioning. If you cannot afford
a lawyer, one will be appointed for you before any
questioning if you wish. If you decide to answer ques-
tions now without a lawyer present, you have the right
to stop answering at any time. So, that last one is the
big one.
ALT: Yep.
FBI: So, no matter what you say, if you decide that you
want to have a lawyer, then we stop. So just, any
time …
ALT: And, real quick, on the, uh, appointed lawyer, do
you have a lawyer here?
FBI: No.
ALT: Ok, gotcha, so I would have to schedule some-
thing.
FBI: So, that would be appointed at your initial appear-
ance.
ALT: Yeah, ok.
FBI: So, um, then, I got a consent statement here. So, if
you could just read that out loud.
ALT: Ok. Uh, I have read this statement of my rights,
and I understand what my rights are. At this time, I am
willing to answer, uh, questions without a lawyer.
FBI: If that is correct, then uh, if you believe that, then
go ahead, and sign where it says signed.

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4 No. 21-2724
ALT: Allowing that I’m still able to stop when when-
ever.
FBI: Whenever you want.
ALT: Perfect, ok, solid.…
After signing the consent statement, Alt admitted that he
was the one using the Grindr app to send messages to whom
he believed to be a fifteen-year-old boy. But Alt claimed that,
while the two were originally planning on engaging in sexual
activity, after learning the boy was only fifteen years old, Alt
only planned to “hang out,” “smoke a little bit,” and have a
“cool conversation.”
B. Pre-trial Motions
Two days after his arrest, the government filed a criminal
complaint against Alt, charging him with one count of at-
tempted enticement of a minor under 18 U.S.C. § 2422(b). A
grand jury indicted Alt two weeks later.
Alt subsequently moved to suppress the statements he
made to the FBI, arguing that he unequivocally invoked his
right to counsel when he said, “do you have a lawyer here?”
after the agents read him his Miranda rights. The district court
denied the motion: “In viewing the context of his statements,
Alt appeared to be contemplating whether to ask for counsel
or asking about the process if he did request counsel in the
future …. Even if Alt was attempting to invoke his right to
counsel, it was not unambiguous and unequivocal.”
With his suppression motion denied, Alt’s case proceeded
to trial.

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No. 21-2724 5
C. Jury Selection
During jury selection the government asked if any pro-
spective juror had any negative experiences with law enforce-
ment. Only Juror 68—the only African American prospective
juror—raised his hand. Juror 68 recounted how he was forced
to plead guilty to a DUI charge that he did not commit. When
the district court asked if Juror 68 would nonetheless be able
to keep an open mind when listening to the evidence here and
make a decision based solely on the facts, Juror 68 responded
“absolutely.”
Later, the government asked if any prospective juror had
experiences with sexual abuse. Three jurors raised their
hands, including Juror 68. While being uncertain on the de-
tails, Juror 68 stated that he had “a couple of family members”
and “close personal friends” “go through a situation of sexual
abuse” as minors. When the government asked if Juror 68
would be able to objectively view the evidence despite these
experiences, Juror 68 responded, “I would … stick with the
facts. … This is a totally different situation, so you have to take
it for what it is right now.”
Based on Juror 68’s responses to these two questions—and
that he “provided some hesitancy” when responding—the
government asked the district court to excuse Juror 68 for
cause. Alt opposed excusing Juror 68 for cause because Juror
68 was the only African American prospective juror and ex-
plicitly stated that he could look at the evidence objectively
and would not be biased. The district court denied the gov-
ernment’s request.
The government then used a peremptory challenge to
strike Juror 68, and Alt objected under Batson v. Kentucky, 476

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6 No. 21-2724
U.S. 79 (1986). To support its use of a peremptory challenge,
the government incorporated its reasons for requesting to ex-
cuse Juror 68 for cause.
As we talked back and forth, you know, there were
times when he shrugged his shoulders, where he was
hesitant; he paused. … [T]hat hesitation is what we
don’t want [from] a juror coming out of the gate listen-
ing to the facts. … [H]ere is a man that pleaded for
something that he was innocent for. Well, that creates
… an unconscious bias …. And then on top of that …
he has family members [and friends] that [were] in-
volved in sexual abuse. And so we would rather just
have somebody that … [is] able to sit there and listen
to the facts of the[] case without that extra baggage or
weight weighing them down.
The district court denied Alt’s Batson challenge, holding that
the government provided sufficient race-neutral reasons for
the strike. Once the jury was empaneled, the case proceeded
to trial.
D. Jury Instructions, Closing Arguments, & The Verdict
At the close of evidence, the district court instructed the
jury that “[t]he government has the burden of proving the de-
fendant’s guilt beyond a reasonable doubt. This burden of
proof stays with the government throughout the case.”
Later, during its closing argument, the government added:
[When] you are considering the evidence and whether
it fits these three elements, keep in mind the govern-
ment’s burden; it is beyond a reasonable doubt. It is not
beyond all doubt. It is not beyond any shadow of a
doubt.

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No. 21-2724 7
Alt objected to the government “defining” the reasonable
doubt standard. The district court overruled the objection and
instructed the jury, “I’ve not instructed you as to any defini-
tion of ‘beyond a reasonable doubt’ or ‘reasonable doubt,’ so
that is for you to ultimately determine what you believe to be
reasonable doubt.” During his closing argument, Alt reiter-
ated to the jury that “[i]t’s for you to decide what beyond a
reasonable doubt means.”
E. Sentence & Condition of Supervised Release
The jury ultimately convicted Alt of attempted enticement
of a minor under 18 U.S.C. § 2422(b). The district court sen-
tenced Alt to the mandatory minimum 120 months in prison,
followed by fifteen years of supervised release. As a condition
of his supervised release, the court ordered Alt to participate
in a sex offender treatment program approved by the U.S.
Probation Office.
II. Discussion
Alt appeals the district court’s (1) denying his motion to
suppress, (2) overruling his Batson challenge, (3) overruling
his objection to the Government’s closing arguments, and
(4) ordering that he participate in a sex offender treatment
program as a condition of his supervised release.
A. Motion to Suppress
Alt first argues that the district court erred when it denied
his motion to suppress his statements to the FBI. We review
the district court’s legal conclusion regarding whether a de-
fendant unequivocally invoked his Fifth Amendment right to
counsel de novo. United States v. Bebris, 4 F.4th 551, 560 (7th
Cir. 2021).

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8 No. 21-2724
“[A] suspect is entitled to the assistance of counsel during
custodial interrogation ….” Davis v. United States, 512 U.S.
452, 462 (1994) (citing Miranda v. Arizona, 384 U.S. 436 (1966)).
And during such an interrogation, “if the suspect invokes the
right to counsel at any time, the police must immediately
cease questioning him until an attorney is present.” Davis, 512
U.S. at 462 (citing Edwards v. Arizona, 451 U.S. 477 (1981)). But
in order to trigger this protection, the invocation of the right
to counsel must be unequivocal. United States v. Hunter, 708
F.3d 938, 943 (7th Cir. 2013); United States v. Hampton, 885 F.3d
1016, 1019 (7th Cir. 2018). In determining when a request for
counsel is clear enough, “our court has found statements in-
dicating a certain and present desire to consult with counsel
sufficient to invoke a defendant’s right to counsel.” Hunter,
708 F.3d at 943; see also Hampton, 885 F.3d at 1020 (invoking
the right requires action-oriented words—i.e., statements that
“request an action (or permission to act).”). “[A]n ambiguous
or equivocal reference to an attorney” is not sufficient to trig-
ger the Edwards rule. Davis, 512 U.S. at 459. When making this
assessment, “we consider the circumstances in which the
statement was made as well as the words employed.” United
States v. Wysinger, 683 F.3d 784, 793–94 (7th Cir. 2012).
It is undisputed here that Alt was subjected to a custodial
interrogation. Thus, the issue is whether Alt unequivocally in-
voked his right to counsel during that interrogation. He did
not. Alt’s alleged invocation—“real quick, on the, uh, ap-
pointed lawyer, do you have a lawyer here?”—does not “in-
dicat[e] a certain and present desire to consult with counsel.”
See Hunter, 708 F.3d at 943. Alt’s statement is devoid of any
action-oriented words—such as “can”—that we have held
sufficient to unequivocally invoke the right. See id. at 944
(“The defendants’ choice of the word ‘can,’ by definition,

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No. 21-2724 9
means that they were inquiring into their present ability to be
‘able to’ obtain a lawyer or to ‘have the opportunity or possi-
bility to’ obtain a lawyer.”). Indeed, “do you have a lawyer
here?” suggests that Alt was still undecided about whether he
wanted a lawyer.
Looking at this statement in context, Alt was merely in-
quiring into the process if he did request to speak to counsel.
As the district court aptly noted, “[i]f counsel was there and it
was convenient at the time for Alt, then he considered asking
for counsel. But since counsel was not immediately there at
the residence where Alt was arrested and Alt was seemingly
ready to talk now, he chose to not ask for a lawyer and to
speak to the Agents instead.” At best, Alt’s statement indi-
cated that he might want to speak to counsel. This is insuffi-
cient to unequivocally invoke the right. See Davis, 512 U.S. at
459 (“But if a suspect makes a reference to an attorney that is
ambiguous or equivocal in that a reasonable officer in light of
the circumstances would have understood only that the sus-
pect might be invoking the right to counsel, our precedents do
not require the cessation of questioning.”) (emphasis in origi-
nal).
As part of this assessment, Alt asks us to consider the
Agent’s statements after Alt allegedly invoked his right to
counsel. According to Alt, the Agent’s response that counsel
would be provided at his initial appearance improperly indi-
cated that counsel could not be consulted prior to the present
questioning. This argument misunderstands the Edwards
bright line rule. “[C]ourts should only consider prior context
when determining whether a defendant unambiguously in-
voked his right to counsel.” Hunter, 708 F.3d at 945 (emphasis
added). If Alt unequivocally invoked his right to counsel, then

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10 No. 21-2724
nothing law enforcement said after that could negate the ef-
fect of his invocation, and all subsequent statements must be
excluded. Law enforcement’s post-invocation statements are
irrelevant to whether Alt invoked his right to counsel in the
first place.1
The district court did not err in denying Alt’s motion to
suppress.
B. Batson Challenge
Alt argues next that the district court erred in denying his
Batson challenge because the government’s race neutral rea-
sons for challenging Juror 68 were not reasonable. We review
a district court’s “Batson findings for clear error.” United States
v. Lovies, 16 F.4th 493, 500 (7th Cir. 2021) (quoting United States
v. Cruse, 805 F.3d 795, 806 (7th Cir. 2015)). Our review is
highly deferential. Lovies, 16 F. 4th at 500 (citing Hunter, 932
F.3d at 617). “Deference is necessary because a reviewing
court, which analyzes only the transcripts from voir dire, is
not as well positioned as the trial court to make credibility de-
terminations. Thus, we affirm unless ‘we arrive at a definitive
and firm conviction that a mistake has been made.’” Lovies, 16
F. 4th at 500 (quoting United States v. Rutledge, 648 F.3d 555,
558 (7th Cir. 2011) and Cruse, 805 F.3d at 806).
Batson prohibits prosecutors from “challeng[ing] potential
jurors solely on account of their race or on the assumption that
1 Alt’s reliance on Wysinger, 683 F.3d at 802, does not warrant a differ-
ent result. In Wysinger, we found that law enforcement’s “pattern of diver-
sion,” post-invocation, was improper “because it relates to and supports
Wysinger’s claim of misleading Miranda warnings.” Id. at 802. Alt does not
allege that the Miranda warnings were misleading. Thus, this holding in
Wysinger is inapplicable here.

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No. 21-2724 11
black jurors as a group will be unable impartially to consider
the State’s case against a black defendant.” Batson v. Kentucky,
476 U.S. 79, 89 (1986). Accordingly, to prevail on a Batson chal-
lenge, Alt “must show the government had a racially discrim-
inatory intent in exercising its peremptory strike” to remove
Juror 68. Lovies, 16 F.4th at 499.
A Batson challenge has three steps:
First, a challenger must make a prima facie case that
the peremptory strike was racially motivated. … The
second Batson step requires only that the explanation
offered in defense of the strike be non-discriminatory.
… At the third and final step, the trial court must de-
termine whether the opponent of the strike has carried
his burden of proving purposeful discrimination.
Id. at 499–500 (citations omitted).
As the government proffered race-neutral reasons for the
strike which the district court ruled on, we review only the
third step—“whether the opponent of the strike has carried
his burden of proving purposeful discrimination.”2 We hold
that Alt has not met this burden.
2 Alt’s sole argument to support his Batson challenge is that Juror 68
was the only African American prospective juror. This is not sufficient to
state a prima facie case that the strike was racially motivated. See Lovies,
16 F. 4th at 499 (“To meet this burden at the first step, however, the strike’s
opponent cannot merely point to the stricken juror’s race.”) (citation omit-
ted). However, “[o]nce a prosecutor has offered a race-neutral explanation
for the peremptory challenges and the trial court has ruled on the ultimate
question of intentional discrimination, the preliminary issue of whether
the defendant had made a prima facie showing becomes moot.” Id. at 503
(quoting Hernandez v. New York, 500 U.S. 352, 359 (1991)).

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12 No. 21-2724
The government pointed to two potential biases, as well as
the juror’s demeanor, to support its use of the peremptory
strike. Foremost, Juror 68 was the only juror to indicate that
he had had negative interactions with law enforcement, being
forced to plead guilty to an offense he did not commit. While
Juror 68 stated that he could “absolutely” keep an open mind
when looking at the evidence in this case despite this experi-
ence, he also noted that, “I don’t think that it would be total
bias. There [is] going to be some unconscious bias. I think that
can happen. I think that’s just a natural thing to do.” Further
animating the government’s concern here, all four witness
whom the government planned to call at trial (and ultimately
did call) were law enforcement personnel. Thus, Juror 68’s
acknowledgement that his prior negative experience with law
enforcement created “some unconscious bias” is a legitimate
race-neutral reason to strike the juror. See United States v.
Brown, 809 F.3d 371, 376 (7th Cir. 2016) (“[B]ias against law
enforcement is a legitimate race-neutral justification.”) (citing
United States. v. Smallwood, 188 F.3d 905, 915 (7th Cir. 1999)).
Juror 68’s indication that he has both family and friends
who have had negative experiences with sexual abuse as mi-
nors, the very subject of this case, also created a risk of bias
Even so, as a reminder, we recently “encourage[d] district courts to
follow each of Batson’s three steps in sequence and to develop a compre-
hensive record as to each step.” Lovies, 16 F. 4th at 503. “The Supreme
Court has designed the three Batson steps as a bulwark to protect against
racial discrimination. By methodically working through each step of a Bat-
son challenge, and not collapsing them into a single inquiry, a crystal-clear
record is developed for the benefit of all, including to facilitate appellate
review.” Id. at 503–04 (citations mitted).

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No. 21-2724 13
which constitutes a sufficient race-neutral reason to strike the
juror.
Finally, the government pointed to Juror 68’s demeanor in
responding to questions as another reason for the peremptory
strike: “As we talked back and forth, you know, there were
times when he shrugged his shoulder, where he was hesitant;
he paused.” Being present during voir dire, the district court
was able to independently assess and consider both the pros-
ecutor’s and Juror 68’s demeanor when ruling on Alt’s Batson
challenge, and “[w]e accord the district judge’s credibility de-
termination great deference on appeal.” See Lovies, 16 F. 4th at
502 (“From his firsthand vantage point, the district judge was
in the best position to make the determination that the prose-
cutors were sincere.”); id. at 501 (“A trial judge’s firsthand ob-
servations of a juror’s demeanor are important where a per-
emptory strike’s proponent refers to that demeanor.”). We do
so here, as well.
The district court did not clearly err in denying Alt’s Bat-
son challenge.
C. Defining the Reasonable Doubt Standard
Alt also alleges that the government’s discussion of the
standard of proof constitutes reversible error. During closing
arguments, the prosecutor told the jury, “[when] considering
the evidence and whether it fits these three elements, keep in
mind the government’s burden; it is beyond a reasonable
doubt. It is not beyond all doubt. It is not beyond any shadow
of a doubt.” Alt objected and the district court overruled his
objection. “We review for abuse of discretion a district court’s
‘decision to overrule an objection to comments in a closing ar-
gument.’” United States v. Chavez, 12 F.4th 716, 728 (7th Cir.

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14 No. 21-2724
2021) (quoting United States v. Lopez, 870 F.3d 573, 579 (7th Cir.
2017)). This analysis is a two-step process, asking “(1)
‘whether the prosecutor’s comments were improper standing
alone,’ and if improper, (2) ‘whether the remarks in the con-
text of the whole record denied the defendant[ ] the right to a
fair trial.’” Chavez, 12 F.4th at 728 (quoting United States v.
Kelerchian, 937 F.3d 895, 916 (7th Cir. 2019)).
“Many times in the past, we have been explicit about the
inappropriateness of defining ‘reasonable doubt.’” United
States v. Alex Janows & Co., 2 F.3d 716, 722 (7th Cir. 1993). We
have been so clear, in fact, that in Alex Janows, we found it “re-
markable” and improper for the prosecutor to tell the jury
that “beyond a reasonable doubt means just that. It does not
mean proof to a certainty or proof beyond all doubt.”
Id. at 723.
The government’s comments here were substantially the
same as those in Alex Janows. “[W]e [again] admonish counsel,
do not define ‘reasonable doubt’ to a jury.” Id. Without more,
however, “we will not reverse because the error is harmless.”
Id. The evidence against Alt was overwhelming. Specifically,
the government presented the Grindr messages, in which Alt
repeatedly asked the boy for his address and discussed, in de-
tail, his plans to engage in sexual activity with the boy. Even
after the boy told Alt that he was only fifteen years old, Alt
persisted in his plans. After finally providing his address, for
example, the boy told Alt, “Just don’t tell anyone I blew you
lol,” and Alt responded, “Agreed, and same goes with u. Just
between us.” Alt then traveled to what he believed to be the
boy’s address, in another city, and was arrested outside of
that residence. “There is no chance that a jury would have re-
solved this case differently” absent the prosecutor’s

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No. 21-2724 15
comments. Id. Put differently, the prosecutor’s remarks in no
way deprived Alt of a fair trial. See Chavez, 12 F.4th at 728.
Alt’s argument that jurors afford statements from govern-
ment prosecutors substantial weight, rendering this error sig-
nificant, is unpersuasive. Even if statements from the govern-
ment are impactful for a jury, statements from the presiding
judge carry even more weight. Compare United States v. Vargas,
583 F.2d 380, 386 (7th Cir. 1978) (“coming from the mouth of
the representative of the United States, the [prosecutor’s]
statements carry much weight ….”) (citation omitted), with
United States v. Harper, 662 F.3d 958, 961 (7th Cir. 2011) (“in-
structions from the court carry more weight with jurors than
do arguments made by attorneys.”) (citing Boyde v. California,
494 U.S. 370, 384 (1990)). And here, the district court immedi-
ately reminded the jury that, “I’ve not instructed you as to any
definition of ‘beyond a reasonable doubt’ or ‘reasonable
doubt,’ so that is for you to ultimately determine what you
believe to be reasonable doubt.” This additional instruction
cured any potential risk of prejudice. See United States v. Cor-
nett, 232 F.3d 570, 574 (7th Cir. 2000) (holding “whether the
trial court’s instructions to the jury were adequate to cure any
prejudice that might otherwise result from the improper com-
ments” is a relevant factor to assess prejudice due to prosecu-
tor’s comments); see also Harper, 662 F.3d at 961 (“we presume
that the [district] court’s proper instruction ensured that the
jury applied the correct standard.”). Alt also reiterated to the
jury that it was up to them to define the standard during his
own closing argument.
While denying the objection to the prosecutor’s statements
was in error, the error was harmless and does not warrant re-
versal.

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16 No. 21-2724
D. Conditions of Supervised Release
Finally, Alt argues that the district court abused its discre-
tion by ordering sex offender treatment as a condition of su-
pervised release. We review a district court’s decision to im-
pose a special condition of supervised release for abuse of dis-
cretion. United States v. Ross, 475 F.3d 871, 873 (7th Cir. 2007);
Gall v. United States, 552 U.S. 38, 46 (2007) (“[A]ppellate review
of sentencing decisions is limited to determining whether
they are ‘reasonable.’”).
Alt argues that sex offender treatment programs are only
necessary for repeat offenders, which he is not. But nowhere
do the Sentencing Guidelines indicate that this condition
should only be imposed for repeat offenders, and Alt pro-
vides no legal support for this argument. The Guidelines rec-
ommend imposing this condition for a defendant like Alt,
who was convicted of a sex offense. U.S.S.G. § 5D1.3(d)(7).
Further, the district court noted the condition was necessary
to help protect the public given that Alt posed a risk to minors
and the community. See 18 U.S.C. § 3583(d)(1) (noting courts
may impose conditions of supervised release “reasonably re-
lated” to the § 3553(a) sentencing factors); § 3553(a)(2)(C)
(“The court shall impose a sentence sufficient, but not greater
than necessary, … to protect the public from further crimes of
the defendant.”). The district court did not abuse its discretion
by imposing this condition.
III. Conclusion
For the foregoing reasons, the rulings of the district court
are
A FFIRMED

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No. 21-2724 17
K IRSCH , Circuit Judge, concurring. I join the majority opin-
ion but write separately on the issue of defining the reasona-
ble doubt standard (part II.C.). Our circuit has a rigid rule,
which has developed over time, that strictly prohibits district
judges and the parties from ever defining reasonable doubt
for a jury. We are the only circuit that affords district judges
no discretion to define the phrase. In my view, we should join
the other circuits that trust district judges with the discretion
to define the phrase in the appropriate circumstances. We
should, however, counsel district judges against doing so as a
matter of course so as not to further confuse the meaning of
the phrase, particularly when it has not been put at issue in
the case.
“[T]he Constitution neither prohibits trial courts from de-
fining reasonable doubt nor requires them to do so as a matter
of course.” Victor v. Nebraska, 511 U.S. 1, 5 (1994). But we have
made very clear that district judges and parties in our circuit
are prohibited from doing so. For instance, in United States v.
Glass, 846 F.2d 386, 387 (7th Cir. 1988), defense counsel at-
tempted to define reasonable doubt during closing argument.
The jury sought a more precise definition from the district
judge during its deliberations, but the judge refused to give
one, and the jury returned a guilty verdict. The defendant ap-
pealed, arguing that the trial court erred in refusing to define
reasonable doubt for the jury. We affirmed, holding that:
It is … inappropriate for judges to give an in-
struction defining “reasonable doubt,” and it is
equally inappropriate for trial counsel to pro-
vide their own definition. See, e.g., United States
v. Dominguez, 835 F.2d 694, 701 (7th Cir. 1987).
Trial counsel may argue that the government

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18 No. 21-2724
has the burden of proving the defendant’s guilt
“beyond a reasonable doubt,” but they may not
attempt to define “reasonable doubt.” Thus, the
court below should not have allowed Glass’s
counsel to explain to the jury his understanding
of “reasonable doubt.” And Glass’s counsel,
who created this whole problem, should not
have defined it.
Id. (emphasis in original); see also, e.g., United States v. Hat-
field, 591 F.3d 945, 949 (7th Cir. 2010) (“[S]ome courts, includ-
ing our own, tell district judges not to try to explain to a jury
the meaning of beyond a reasonable doubt.”); United States v.
Bruce, 109 F.3d 323, 329 (7th Cir. 1997) (“It is well established
in this Circuit, however, that neither trial courts nor counsel
should attempt to define ‘reasonable doubt’ for the jury.”);
United States v. Thompson, 117 F.3d 1033, 1035 (7th Cir. 1997)
(“The law is clear in this circuit that it is improper for attor-
neys to attempt to define the term.”); United States v. Hall, 854
F.2d 1036, 1039 (7th Cir. 1988) (“[N]o attempt should be made
to define reasonable doubt.”); Dominguez, 835 F.2d at 701 (“In
this circuit, instructions by counsel on the meaning of reason-
able doubt are improper … .”).
Our rule has not always been so stringent. In the not too
distant past, we merely cautioned district courts against de-
fining reasonable doubt. See, e.g., United States v. Kramer, 711
F.2d 789, 795 (7th Cir. 1983) (“caution[ing]” judges not to de-
fine reasonable doubt); United States v. Martin-Trigona, 684
F.2d 485, 493 (7th Cir. 1982) (“advis[ing] against defining ‘rea-
sonable doubt’”); see also Seventh Circuit Pattern Criminal
Jury Instructions § 2.07 (1980) (recommending that no instruc-
tion be given defining ‘reasonable doubt’ but acknowledging

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No. 21-2724 19
that “the Seventh Circuit has refused to adopt a per se rule
against defining reasonable doubt”); Seventh Circuit Manual
on Jury Instructions in Federal Criminal Cases § 6.01-3 (1963)
(providing a definition of reasonable doubt). But now, we di-
rect all district judges to follow Glass and abstain from ever
defining the term for a jury, without exception. Seventh Cir-
cuit Pattern Criminal Jury Instructions § 1.04, Committee
Comment (2022) (relying exclusively upon the Glass line of
cases to conclude “that it is inappropriate for the trial judge to
attempt to define ‘reasonable doubt’ for the jury”).
Our rule stands alone. Although several circuits discour-
age district judges from defining the phrase, all but ours give
district judges at least some discretion to do so.1 Moreover,
1 See, e.g., United States v. Herman, 848 F.3d 55, 57 (1st Cir. 2017) (hold-
ing that a district court “retains significant discretion in formulating” an
instruction defining reasonable doubt, so long as the instruction is accu-
rate); United States v. Shamsideen, 511 F.3d 340, 348 (2d Cir. 2008) (holding
that the district court did not err when it “clearly and accurately instructed
the jury on the reasonable doubt standard in some detail”); United States
v. Hoffecker, 530 F.3d 137, 174–75 (3d Cir. 2008) (holding that the district
court correctly defined reasonable doubt for the jury based on the Third
Circuit Pattern Criminal Jury Instructions § 3.06); United States v. Walton,
207 F.3d 694, 696, 699 (4th Cir. 2000) (en banc) (discouraging definition of
the reasonable doubt standard but allowing a trial judge to define it “if the
jury requests a definition”); United States v. Williams, 20 F.3d 125, 128, n.1
(5th Cir. 1994) (rejecting our approach and noting that the Fifth Circuit has
“encouraged” district courts “to use [the Fifth] Circuit’s Pattern Jury In-
struction on the definition of reasonable doubt”); United States v. Ashraf-
khan, 964 F.3d 574, 578 (6th Cir. 2020) (“[I]f a court chooses to define the
[reasonable doubt] standard, [then it must] make[ ] clear to the jury that
the burden of proof is high.”); United States v. Harris, 974 F.2d 84, 85–86
(8th Cir. 1992) (instruction defining reasonable doubt is proper when it
provides “a correct statement of the law”); United States v. Nolasco, 926 F.2d

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20 No. 21-2724
most circuits have pattern jury instructions defining the
phrase.2 The Eighth Circuit even imposes an affirmative duty
on district courts to instruct juries on the meaning of reason-
able doubt. See Eighth Circuit Pattern Criminal Jury Instruc-
tions § 3.11, Committee Comments (2021) (citing Friedman v.
United States, 381 F.2d 155 (8th Cir. 1967)).
Still, the Supreme Court and several circuits have cau-
tioned that efforts to define the phrase may “result in further
obfuscation of the concept[.]” United States v. Olmstead, 832
F.2d 642, 645 (1st Cir. 1987); see also, e.g., Holland v. United
States, 348 U.S. 121, 140 (1954) (citation omitted) (“Attempts to
explain the term ‘reasonable doubt’ do not usually result in
making it any clearer to the minds of the jury … .”). But that
is not the same as curtailing altogether the district court’s
869, 872 (9th Cir. 1991) (en banc) (holding that “an appropriate instruction
defining reasonable doubt is permissible but not necessarily required”);
United States v. Petty, 856 F.3d 1306, 1309 (10th Cir. 2017) (district courts
retain “considerable latitude in instructing juries on reasonable doubt” so
long as instruction accurately conveys concept); Johnson v. Alabama, 256
F.3d 1156, 1191 (11th Cir. 2001) (“If a trial court does attempt to define
reasonable doubt, it must explain the standard correctly[.]”); United States
v. Mejia, 597 F.3d 1329, 1340 (D.C. Cir. 2010) (rejecting challenge to jury
instruction defining reasonable doubt when defendant “offer[ed] no rea-
son why the Constitution would apply differently simply because he pre-
ferred no instruction”).
2 See, e.g., Third Circuit Pattern Criminal Jury Instructions § 3.06
(2021); Fifth Circuit Pattern Criminal Jury Instructions § 1.05 (2019); Sixth
Circuit Pattern Criminal Jury Instructions § 1.03 (2022); Eighth Circuit Pat-
tern Criminal Jury Instructions § 3.11 (2021); Ninth Circuit Pattern Crimi-
nal Jury Instructions § 6.5 (2022); Tenth Circuit Pattern Criminal Jury In-
structions § 1.05 (2021); Eleventh Circuit Pattern Criminal Jury Instruc-
tions § BI B3 (2020). I am confident that our circuit’s pattern instruction
committee can likewise craft an appropriate instruction.

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No. 21-2724 21
discretion to ever provide a definition, and the Supreme
Court has “never held that the concept of reasonable doubt is
undefinable[.]” Victor, 511 U.S. at 26 (Ginsburg, J., concurring
in part and concurring in the judgment).
In my view, while district courts need not define the term
for the jury as a matter of course (particularly where the
meaning of the phrase has not been put at issue), I am not
convinced that there will never be a case in our circuit where
the jury will not benefit from an instruction defining this sem-
inal phrase.
This is a case in point. Here is the full exchange on this
issue that took place in front of the jury during the govern-
ment’s closing argument:
PROSECUTOR: … keep in mind the govern-
ment’s burden; it is beyond a reasonable doubt.
It is not beyond all doubt. It is not beyond any
shadow of a doubt.
DEFENSE COUNSEL: I’m going to object to de-
fining a “reasonable doubt.” The jurors can do
that for themselves.
COURT: [Prosecutor], your response?
PROSECUTOR: My response is that I’m not de-
fining it so much as explaining that [sic] what it
is not.
COURT: I don’t think at this point [prosecutor]
has gone out of bound here, so I’ll allow it go
ahead.
PROSECUTOR: The only thing I’ll add to that is
any doubt you have --

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22 No. 21-2724
COURT: Let met interject one thing though.
PROSECUTOR: Yes, sir.
COURT: I’ve not instructed you as to any defi-
nition of “beyond a reasonable doubt” or “rea-
sonable doubt,” so that is for you to ultimately
determine what you believe to be reasonable
doubt. Go ahead, [defense counsel].
DEFENSE COUNSEL: Judge, I still believe that
it’s improper argument. There’s a reason that’s
not defined.
COURT: I understand, but he’s moving on. Go
ahead, [prosecutor].
After the prosecutor defined reasonable doubt for the jury,
to me it would have been better for the district judge to simply
have included an instruction to the jury—after the lawyers’
arguments concluded—along these lines:
[T]he government has the burden of proving the
defendant guilty beyond a reasonable doubt.
Some of you may have served as jurors in civil
cases, where you were told that it is only neces-
sary to prove that a fact is more likely true than
not true. In criminal cases, the government’s
proof must be more powerful than that. It must
be beyond a reasonable doubt.
Proof beyond a reasonable doubt is proof that
leaves you firmly convinced of the defendant’s
guilt. There are very few things in this world
that we know with absolute certainty, and in
criminal cases the law does not require proof

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No. 21-2724 23
that overcomes every possible doubt. If, based
on your consideration of the evidence, you are
firmly convinced that the defendant is guilty of
the crime charged, you must find him guilty. If
on the other hand, you think there is a real pos-
sibility that he is not guilty, you must give him
the benefit of the doubt and find him not guilty.
Federal Judicial Center Pattern Criminal Jury Instructions § 21
(1988). This “clear, straightforward, and accurate” definition
of reasonable doubt “plainly informs the jurors that the pros-
ecution must prove its case by more than a mere preponder-
ance of the evidence, yet not necessarily to an absolute cer-
tainty.” Victor, 511 U.S. at 26–27 (Ginsburg, J., concurring).
This instruction would have been better—for both the jury
and the parties—after the government had put the definition
at issue. Instead, the district judge followed our precedent
and left it completely to the jurors to determine what they be-
lieved reasonable doubt meant. At least to me, that route
seems much more likely to lead to confusion among jurors
than providing them with an accurate definition of reasonable
doubt.
All the other circuits give district judges at least some dis-
cretion to define reasonable doubt depending on the unique
circumstances of the case, and most provide them with lan-
guage accurately conveying the concept. We should too.

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