Even if we agreed with Spanier that the jury instruction improperly reflected the 2007 statute, we would still reverse. “[N]ot every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation.” Middleton v. McNeil, 541 U.S. 433, 437 (2004). We consider the instruction “in the context of the instructions as a whole and the trial record,” asking “‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Boyde v. California, 494 U.S. 370, 380 (1990)).
There is not a reasonable likelihood that the jury convicted Spanier on the basis of the contested jury instruction language—that is, by finding that he was “a person that employs or supervises” someone who is supervising the welfare of a child. App. 1307. The jury instruction at the beginning of the trial reflected the 1995 statute and did not include the “employs or supervises” language. App. 704. In his opening statement, Spanier followed suit, emphasizing that to convict, the jury would need to “find that [Spanier] knowingly endangered the welfare of a child by violating a duty of care, protection or support, to a child whose welfare he was supervising.” App. 739. And the Commonwealth’s theory of the case was that Spanier himself supervised the welfare of a child, not that he employed or supervised such a person. Although the prosecutor argued in closing that “[t]he buck stopped with” Spanier and that he was “the top of the food chain,” her repeated theme was that if Spanier, Schultz, and Curley had “call[ed] the authorities and let the authorities investigate it, . . . [t]hey wouldn’t have been responsible. But they took it upon themselves.” App. 1282. She continued with the theme that Spanier assumed responsibility for supervising the welfare of a child[.]
Therefore, it is not reasonably likely that the jury convicted Spanier because he employed someone who supervised the welfare of a child—rather than because he himself supervised the welfare of a child. On direct appeal, the Pennsylvania Superior Court took care to note how the record showed that Spanier himself was supervising the welfare of a child. It stated multiple times that because Spanier “personally oversaw [the university’s] response” to the abuse allegations, he “was clearly supervising a child’s welfare pursuant to Lynn.” Spanier, 192 A.3d at 153-54. The Court reached its conclusion that there was no error in the jury instruction in light of “the facts of this case.” Id. at 154. We agree with, and defer to, the Superior Court’s reasonable reading of the record. See Waddington v. Sarausad, 555 U.S. 179, 193-94 (2009) (holding that even if the jury instruction was ambiguous, the state courts reasonably concluded, after reviewing the trial record, that the jury’s conviction was not based on the incorrect understanding of the law that the defendant said the instruction had conveyed).
In sum, we conclude that there was no due process error with regard to the jury instruction. Under clearly established federal law, state courts have considerable latitude to rule on the meaning of statutes, and this latitude extends to announcing a new rule of law to uphold a conviction—so long as the new rule is not unexpected and indefensible. In addition, there is not a reasonable likelihood that the jury convicted based on the contested language in the jury instruction. Given the demanding standard on habeas corpus review of state-court convictions, we conclude that the District Court erred in granting the petition.