Is a jury instruction on special circumstances lying in wait unconstitutionally shifted the burden of proving the lack of a time gap to the defense?

Houston argues that the district court's jury instruction on special circumstances lying in wait unconstitutionally shifted the burden of proving the lack of a time gap to the defense. In order to challenge a jury instruction on habeas, the defendant must prove that " 'the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.' " Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973)). The instruction must be viewed in the context of the entire trial and the jury instructions taken as a whole. See id.

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It is beyond dispute that the government must prove every element of a crime beyond a reasonable doubt. Thus, a jury instruction that shifts the burden of proof on an element of the crime to the defendant violates due process. Sandstrom v. Montana, 442 U.S. 510, 523-24, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). In this case, the jury was instructed that