Petition for Writ of Certiorari — Jones v. United States
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Supreme Court, U.S.
FILED
931961 JUN - 8 1994
No. 93-
ee cer
In the Supreme Court of the Hnited States
OCTOBER TERM, 1993
LESTER V. JONES,
Petitioner,
Vv.
UNITED STATES OF AMERICA,
Respondent.
Petition for Writ of Certiorari
to the United States Court of Appeals
for the Fourth Circuit
PETITION FOR WRIT OF CERTIORARI
Stephen H. Sachs,
Counsel of Record
Mark D. Cahn
Bryan H. Wildenthal
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037-1420
(202) 663-6000
June 8, 1994
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QUESTIONS PRESENTED
1. Whether a defendant in a criminal trial is
entitled upon request, under the Fifth Amendment due
process clause and the Sixth Amendment right to jury trial,
to have the trial court explain to the jury the meaning of
the constitutional principle that a defendant may not be
convicted except upon proof beyond a reasonable doubt.
2. Whether a defendant in a criminal trial is
entitled upon request, under the Fifth Amendment due
process clause, the Sixth Amendment right to jury trial,
and the Sixth Amendment right to counsel, to present
appropriate arguments to the jury, through counsel, on the
meaning of the constitutional principle that a defendant
may not be convicted except upon proof beyond a
reasonable doubt.
QUESTIONS PRESENTED
TABLE OF CONTENTS
TABLE OF CONTENTS
CONSTITUTIONAL PROVISIONS INVOLVED
STATEMENT OF THE CASE
I.
PETITIONER’S FIFTH AND SIXTH
AMENDMENT RIGHTS WERE VIOLATED
BY THE TRIAL COURT’S REFUSAL
TO EXPLAIN THE REASONABLE
DOUBT STANDARD TO THE JURY ....
PETITIONER’S FIFTH AND SIXTH
AMENDMENT RIGHTS WERE VIOLATED
BY THE TRIAL COURT’S REFUSAL
TO PERMIT PETITIONER’S COUNSEL
TO PRESENT ANY MEANINGFUL
ARGUMENT TO THE JURY ON THE
MEANING OF THE REASONABLE
ee
i FF £ FF Vers FF es ky *.
Il. THE LOWER FEDERAL AND STATE
COURTS ARE DIVIDED BY A DEEP, :
LONGSTANDING CONFLICT ON THE
ISSUE OF EXPLAINING REASONABLE
DOURT TO WERE... .555....-. 19
IV. THIS COURT’S RECENT DECISION IN
VICTOR V. NEBRASKA UNDERSCORES
THAT THE ISSUES PRESENTED ARE
RIPE FOR CONSIDERATION BY THIS
PMS Sry Ee ee 24
nnn ..6 5 ae ee ee 29 |
Ms ee la
1. Unpublished opinion per curiam of the
Court of Appeals, United States v. Jones,
No. 92-5661 (4th Cir. April 13, 1994) ...... la
2. Unpublished order of the Court of Appeals,
United States v. Jones, No. 92-5661
(4th Cir. June 7, 1993) (en banc) ......... Ta
= Unpublished judgment of conviction and
sentence of the District Court, United
States v. Jones, No. MJG-90-0405 (D. Md.
i 8 eee AN Orr re ree 9a
4. Unpublished opinion and order of the
District Court, United States v. Jones,
No. MJG-90-0405 (D. Md. Nov. 12, 1992)... 15a
a
3. Unpublished order of the District Court,
United States v. Jones, No. MJG-90-0405
(D. BEG, Fame F5; MO oS 6S. he. 19a
6. Original Indictment, United States v. Jones,
No. MJG-90-0405 (Oct. Sr 2la
y Superseding Indictment, United States v.
Jones, No. MJG-90-0405 (March 21,
he ee 24a
8. Excerpt of charging conference at first
trial before Judge Garbis (July 15, 1991)
CNP es SG 29a
9. Excerpt of petitioner’s counsel’s closing
argument at first trial before Judge Garbis
Quly 22, 1991) (Tr. at 1296)........... 30a
10. Excerpt of petitioner’s counsel’s opening
statement at second trial before Judge
Maletz (April 2, 1992) (Tr. at 45-46) ..... 3la
11. _ Petitioner’s requested jury instruction on
reasonable doubt at second trial before
Judge Maletz (April 9, 1992)........... 32a
12. Excerpt of charging conference at second
trial before Judge Maletz (April 16, 1992)
Gee is,.o2. 4, 35a
13. Excerpt of petitioner’s counsel’s closing
argument at second trial before Judge
Maletz (April 20, 1992) (Tr. at 1516-17) ... 42a
iv
14. Excerpt of proceedings at second trial
before Judge Maletz (jury verdict)
(April 22, 1992) (Tr. at 1618-22) ........ 43a
15. Excerpts from manuscript of Jon O. Newman,
Beyond “Reasonable Doubt,” 68 N.Y.U. L.
REV. _ (1994) (forthcoming) (manuscript
OS 1-6, GE, SD bc 0 SOUS ide wees . 48a
ees
TABLE OF AUTHORITIES
Pages
CASES
Arizona v. Fulminante, 499 U.S. 279 (1991) ....... 8
Barnes v. State, 532 So. 2d 1231 (Miss. 1988) ..... 23
Batson v. Kentucky, 476 U.S. 79 (1986) .......... 8
Blatt v. United States, 60 F.2d 481 (3d Cir. 1932) ... 20
Brown vy. State, 565 So. 2d 304 (Fla. 1990), cert.
denied, 498 U.S. 992 (1990) ............ 23
Byrd v. Commonwealth, 825 S.W.2d 272
ee a ee a ES wo erd.e-« « 23
City of Minot v. Rubbelke, 456 N.W.2d 511
Ee 23
Colgrove v. Battin, 413 U.S. 149 (1973) ......... 25
Collins v. State, 854 P.2d 688 (Wyo. 1993) ....... 23
Commonwealth v. Costley, 118 Mass. 1 (1875) ..... 26
Commonwealth v. Gwaltney, 387 A.2d 848
OE ee eo 18
Commonwealth v. McLeod, 326 N.E.2d 905
ee 25-26
Commonwealth v. Stellberger, 515 N.E.2d 1207
Ey 22
Commonwealth v. Webster, 59 Mass. (5 Cush.) 295
(1850), overruled in part on other grounds by
Commonwealth v. McLeod, 326 N.E.2d 905
Ss SOT a o'0 Woe bole 6 PO b's b's 6 0ce es 25
Commonwealth v. Young, 317 A.2d 258 (Pa. 1974) .. 22
Cooper v. Commonwealth, 345 S.E.2d 775
CU Ms SE ad oe Bd oe do eek es 6 OR 23
Frazier v. Heebe, 482 U.S. 641 (1987) .......... 14
Friedman v. United States, 381 F.2d 155
Gere Cs Bee 6 oe OS ee Fe STS es a 20
Geesa v. State, 820 S.W.2d 154 (Tex. Ct. Crim.
RN TIPE 6.06 6866608 CATERER s 8 22
Gideon v. Wainwright, 372 U.S. 335 (1963) ..... 8, 16
Herring v. New York, 422 U.S. 853 (1975) ..... 17-18
Holland v. United States, 348 U.S. 121 (1954) ..... 28
Hopt v. Utah, 120 U.S. 430 (1887) .......... 25-27
In re Winship, 397 U.S. 358 (1970) .... 68, 14, 25, 28
Jackson v. Virginia, 443 U.S. 307 (1979) .. 7, 9, 14, 28
Lansdowne v. State, 412 A.2d 88 (Md. 1980) .. . . 12, 22
cat OP air hd
cy RE a ie Risk kA tt
Mahorney v. Wallman, 917 F.2d 469
ae aS Sn 6 Gi a 6 4 3a 20
McKaskle v. Wiggins, 465 U.S. 168 (1984) ........ 8
Means v. Sidiropolis, 401 $.E.2d 447
ES ea 23
Miles v. United States, 103 U.S. 304 (1881)..... 27-28
Mundy vy. United States, 176 F.2d 32
Se ae ee ee a 21
Murphy v. Holland, 776 F.2d 470 (4th Cir. 1985),
vacated and remanded on other grounds,
a Be ee ee 10-11
National Organization for Women, Inc. v. Scheidler,
Be ee EE fo on 0 obs odie) we 20
Parker v. State, 849 P.2d 1062 (Nev. 1993), cert.
eo 22
People v. Antommarchi, 604 N.E.2d 95
Pe Es ee hie eid 6. Blavty as 0:0 23
People v. Crandeil, 760 P.2d 423 (Cal. 1988), cert.
denied, 490 U.S. 1037 (1989) ........... 23
People v. Langley, 466 N.W.2d 724 (Mich. App.
RE oe a | a on fy 23
People v. Malloy, 434 N.E.2d 237 (N.Y. 1982), cert.
denied, 459 U.S. 847 (1982) ............ 23
People v. Speight, 606 N.E.2d 1174 (fll. 1992) ..... 23
Perez v. Irwin, 963 F.2d 499 (2d Cir. 1992) .... 20-21
Rojem v. State, 753 P.2d 359 (Okla. Ct. Crim. App.
1988), cert. denied, 488 U.S. 900 (1988) .... 23
Schencks v. United States, 2 F.2d 185
CR Gs res SA ER 6 aS 21
State v. Antwine, 743 $.W.2d 51 (Mo. 1987), cert.
denied, 486 U.S. 1017 (1988) ........... 22
State v. Bishop, 387 N.W.2d 554 (lowa 1986) ..... 22
State v. Bracy, 703 P.2d 464 (Ariz. 1985), cert.
denied, 474 U.S. 1110 (1986) ........... 23
State v. Cotion, 602 P.2d 71 (idaho 1979) ........ 22
State v. Desrosiers, 559 A.2d 641 (R.I. 1989) ..... 22
State v. Dunn, 820 P.2d 412 (Kan. 1991) ........ 23
State v. Goodwin, 813 P.2d 953 (Mont. 1991),
overruled on other grounds by State v.
Turner, 864 P.2d 235 (Mont. 1993) ....... 23
State v. Jones, 245 Neb. 821, = N.W.2d ___,
1994 Neb. LEXIS 104 (1994) ........... 23
State v. Letendre, 579 ‘A.2d 1223 (N.H. 1990) ..... 23
State v. Manning, 409 S.E.2d 372 (S.C. 1991), cert.
Gomied, 112 3. Ch. RHR TRS nc ects 23
ix
State v. McMahon, 603 A.2d 1128 (Vt. 1992)...... 23
State v. Montgomery, 417 S.E.2d 742 (N.C. 1992) .. 22
State v. Scott, 757 P.2d 492 (Wash. 1988) ........ 22
State v. Tapley, 598 A.2d 1190 (Me. 1991) ....... 23
State v. Taylor, 410 So. 2d 224 (La. 1982) ....... 23
State v. Turner, 864 P.2d 235 (Mont. 1993) ....... 23
State v. Van Gundy, 594 N.E.2d 604 (Ohio 1992) ... 22
State v. Williams, 828 P.2d 1006 (Ore. 1992), cert.
Gomi BES DB. Ce Ee Cle ek 23
Sullivan v. Louisiana, 113 S. Ct. 2078
(ie 3 6 ore iN 8 6-9, 14-15, 19, 25, 28
Taylor v. State, 330 So. 2d 91 (Fla. App. 1976) .... 18
Thompson v. Lynaugh, 821 F.2d 1054 (Sth Cir. 1987),
cert. denied, 483 U.S. 1035 (1987) ........ 21
Tumey v. Ohio, 273 U.S. 510 (1927) ............ 8
United States v. Barrera-Gonzales, 952 F.2d 1269
S58 SS Sr eee ae ee 20
United States v. Blackburn, 992 F.2d 666 (7th Cir.
1993), cert. denied, 114 S. Ct. 393 (1993) ... 22
United States v. Cassiere, 4 F.3d 1006
gs Fe a Sr ee 21
United States v. Cronic, 466 U.S. 648 (1984) .... 16-17
United States v. Goodlett, 3 F.3d 976
I a hs ea a aoe 20
United States v. Ivic, 700 F.2d 51 (2d Cir. 1983),
overruled on otner grounds by National
Organization for Women, Inc. v. Scheidler,
eo Rs Sy Ot re err ee ee are 20
United States v. Littlefield, 840 F.2d 143
(1st Cir. 1988), cert. denied, 488
UB. ee a bk Fee We ow 12, 14-15, 21
United States v. Nolasco, 926 F.2d 869 (9th Cir.
1991) (en banc), cert. denied, 112 S. Ct.
5S) Meee ck Ba KS ok eh 15, 20-21
United States v. Olmstead, 832 F.2d 642
(1st Cir. 1987), cert. denied, 486
US MU ON bak eK 10-11, 21
United States v. Pepe, 501 F.2d 1142
(i ie AOR oS. EE As oi cs ss 20
United States v. Pungitore, 910 F.2d 1084 (3d Cir.
1990), cert. denied, 111 S. Ct. 2009-11
GRIPE) Wn es he SEG i PRR OS 20
United States v. Reives, 15 F.3d 42 (4th Cir. 1994),
cert. petition filed, 62 U.S.L.W. 3775
(April 18, 1994) (No. 93-1791) ........ 5, 10
United States v. Russell, 971 F.2d 1098 (4th Cir.
1992), cert. denied, 113 S. Ct. 1013 (1993) .. 4-5
xi
u
MO AS i BEE aD wink
United States v. Sawyer, 443 F.2d 712
Sn RIN a's as the cc's wc ce coe 17-18
United States v. Taylor, 997 F.2d 1551
ES 21
United States v. Veltmann, 6 F.3d 1483
I es Ss oe 0 wo 20
United States v. Witt, 648 F.2d 608
EE EE 10, 21
Vasquez v. Hillery, 474 U.S. 254 (1986) .......... 8
Victor v. Nebraska, 114 S. Ct. 1239
Se ee 6, 9, 12-13, 24-25, 27-29
Wainwright v. Witt, 469 U.S. 412 (1985) ........ 25
Waller v. Georgia, 467 U.S. 39 (1984) ........... 8
Whiteside v. Parke, 705 F.2d 869 (6th Cir. 1983),
cert. denied, 464 U.S. 843 (1983) ........ 20
Whitus v. Georgia, 385 U.S. 545 (1967) .......... 8
Williams v. United States, 271 F.2d 703
EE eee 22
Wills v. State, 620 A.2d 295 (Md. 1993) ......... 22
CONSTITUTIONAL PROVISIONS,
STATUTES, AND RULES
U.S. COMNE, AMOR: 25.86 28 SRS CS passim
Uae CE, SO. OS Fake ee eases passim
26 US Stee Cee a oe 0 eee EA BEN Ce ce s 2
20 U.S.C, 5 Tae GR aoe 6 25S Cote 2
oe Ua 6 Se tA ad oda oe aba e es 1
ae Us oe 6 6 4 eet eee 1
a. Cas. Ses Bes 6 STA RS 19
SUP. C8. BR. WD do ie ke Ge Bek a eS 1
OTHER AUTHORITIES
FEDERAL JUDICIAL CENTER, PATTERN CRIMINAL
Jurmy ThesTmucTIOns (1967)... ..6-00026. 13
Kerr, Norbert L., et al., Guilt Beyond a Reasonable
Doubt: Effects of Concept Definition and
Assigned Decision Rule on the Judgments
of Mock Jurors, 34 J. PERSONALITY & SOCIAL
POVCHIULOGT Bae COT a ikka Cam css wes 11
McBaine, J.P., Burden of Proof: Degrees of Belief,
ae Gs Ba Ds eo hehe ee eee 13
lice caiaiaiiaiiiail
Newman, Jon O., Beyond "Reasonable Doubt,”
68 N.Y.U. L. REV. _ (1994) (forthcoming)
ie ek ho 6 hea ee ete CS 12-13
Note, Reasonable Doubt: To Define, or Not To
Define, 90 COLUM. L. REV. 1716 (1990) ... 9-11
Strawn, David U. & Buchanan, Raymond W.,
Jury Confusion: A Threat to Justice, 59
Oo By Ge ee a a 11
XiV
OPINIONS AND ORDERS BELOW
The unpublished opinion per curiam of the United
States Court of Appeals for the Fourth Circuit affirming
petitioner’s conviction, dated April 13, 1994, is reprinted
at App. la. This opinion is also available on LEXIS at
1994 U.S. App. LEXIS 7149, and on WESTLAW at 1994
WL 126775. The unpublished order of the court of
appeals denying petitioner’s request for an en banc
hearing, dated June 7, 1993, is reprinted at App. 7a. The
unpublished judgment reflecting petitioner’s conviction and
sentence, entered by the United States District Court for
the District of Maryland on September 30, 1992, is
reprinted at App. 9a. The unpublished opinion and order
of the district court denying petitioner’s motion for bond
pending appeal, dated November 12, 1992, is reprinted at
App. 15a. The unpublished order of the district court
ordering that petitioner be released from prison and serve
out the remainder of his term under supervised probation,
dated June 23, 1993, is reprinted at App. 19a.
JURISDICTIONAL STATEMENT
This Court has jurisdiction to review the judgment
below by a writ of certiorari pursuant to 28 U.S.C. § 1254
(1988). The judgment of the court of appeals was rendered
on April 13, 1994. App. la. This petition is therefore
timely pursuant to 28 U.S.C. § 2101(c) (1988) and Sup.
CT. R. 13.
CONSTITUTIONAL PROVISIONS INVOLVED
This case involves the construction of the Fifth
Amendment’s guarantee that “[nJo person shall ... be
deprived of life, liberty, or property, without due process
of law," U.S. CONST. Amend. V, and the Sixth
Amendment’s guarantees that “fijn all criminal
prosecutions, the accused shall enjoy the right to . . . trial,
by an impartial jury ... and [the right] to have the
Assistance of Counsel for his defence," U.S. CONST.
Amend. VI.
STATEMENT OF THE CASE
Petitioner Jones, then an attorney practicing in
Harford County, Maryland, was indicted on October 18,
1990 on two counts of tax evasion for the tax years 1983
and 1984. On March 21, 1991, a superseding indictment
added two counts of tax perjury relating to amended
returns for 1983 and 1984 that petitioner filed in 1986.
The superseding indictment .charged that petitioner
intentionally failed to report approximately $120,000 and
$170,000 in income in 1983 and 1984, respectively, in
violation of 26 U.S.C. § 7201 (1988). The indictment
further charged that petitioner intentionally understated his
income in the amended returns filed in 1986, in violation
of 26 U.S.C. § 7206(1) (1988). App. 21a-28a.
Petitioner was tried to a jury before the Honorable
Marvin J. Garbis, United States District Judge for the
District of Maryland, in July 1991. Following a three-
week trial, the jury deliberated for a full week but
remained deadlocked on all four counts. Judge Garbis
declared a mistrial and petitioner was retried in April 1992
before the Honorable Herbert N. Maletz, a retired judge of
the United States Court of International Trade sitting by
designation. The main issue at trial was whether petitioner
intended to understate his income. The defense did not
contest the existence (nor, essentially, the amount) of the
understatement. Petitioner did not testify at his retrial, nor
2
Eh Felis teat aad eae SEU ae, Be
did the defense call any witnesses. Petitioner’s entire
defense was that the government had failed to carry its
heavy burden of proving guilt beyond a reasonable doubt.
At both his first and second trials, petitioner
requested that the court instruct the jury on the meaning of
the reasonable doubt standard. App. 29a, 32a-34a, 35a.
Following Fourth Circuit precedent prohibiting such
instructions, both Judges Garbis and Maletz refused to
provide the requested instructions. App. 29a, 35a. Judge
Garbis, however, expressed his personal agreement that an
instruction explaining reasonable doubt should be required:
I will go further, Mr. Sachs. I think that you are
right. I think that - I am not suggesting that this
case should ever get up to appeal. But if it did, I
would hope that that would be reversible error not
to give it.
App. 29a.
At petitioner’s retrial, Judge Maletz also refused to
permit petitioner’s counsel to present any meaningful
argument to the jury on the meaning of the reasonable
doubt standard. App. 35a-39a.! On April 22, 1992,
' During the opening statement on retrial, counsel used without
objection a brief, colloquial “baseball metaphor" to the effect that in a
criminal case, unlike in baseball, “a tie doesn’t go to the runner. They
got to throw us out by a mile." App. 31a. Judge Maletz permitted
counsel to repeat this metaphor in closing argument, solely because it
was not objected to in opening argument. App. 39a, 42a. At
petitioner’s first trial, Judge Garbis had permitted petitioner’s counsel
to explain the meaning of reasonable doubt during closing argument.
App. 30a.
following two days of deliberations, the jury at petitioner’s
retrial convicted him on the two counts of tax evasion.
Petitioner was acquitted on the two counts of filing false
amended returns. App. 43a-47a. On September 30, 1992,
petitioner was sentenced to eighteen months imprisonment,
a $25,000 fine, and a $50 special assessment pursuant to
18 U.S.C. § 3013 (1988). App. 9a-14a.?
On appeal, petitioner contended that his conviction
should be reversed because his rights under the Fifth and
Sixth Amendments were violated by the trial court’s refusal
to explain the meaning of reasonable doubt to the jury and
by the trial court’s refusal to permit petitioner’s counsel to
present any meaningful argument to the jury on the
meaning of reasonable doubt. A panel of the United States
Court of Appeals for the Fourth Circuit affirmed
petitioner’s conviction in an unpublished opinion per
curiam dated April 13, 1994. App. la-6a.’ In affirming
petitioner’s conviction, the panel relied on Fourth Circuit
precedent holding that trial courts not only are not
constitutionally required to explain the meaning of
reasonable doubt to the jury, but are prohibited from doing
so. App. 3a-6a.‘ The panel also cited Fourth Circuit
? Petitioner began serving his sentence on January 4, 1993. On
June 23, 1993, the district court ordered petitioner released and
permitted him to serve out the remainder of his term vader supervised
probation. App. 19a-20a. As a result of his conviction, however,
petitioner remains suspended from the practice of law.
> On June 7, 1993, the full Fourth Circuit had denied petitioner’s
request for an en banc hearing by a 10-2 vote (Widener and
Murmaghan, JJ., dissenting). App. 7a-8a.
* The Fourth Circuit has generally prohibited any explanation of
reasonable doubt, except “when the jury is "demonstrably confused or
(continued...)
ee
precedent holding that trial courts may prohibit defense
counsel from presenting argument to the jury on the
meaning of reasonable doubt. App. 6a.
REASONS FOR GRANTING THE PETITION
This case presents a constitutional issue that this
Court has never squarely addressed: whether a criminal
defendant is entitled upon request, especially in a trial
where the sole defense is that the government has failed to
sustain its burden of proving guilt beyond a reasonable
doubt, to have the meaning of that concept explained to the
jury.’ Petitioner’s right to such an explanation under the
Fifth and Sixth Amendments was violated by the trial
court’s refusal in this case to instruct the jury on the
meaning of reasonable doubt, and by the trial court’s
refusal to permit petitioner’s counsel to present any
meaningful argument to the jury on the meaning of
reasonable doubt.
* (...continued)
uncertain’ and requests such an instruction.” United States v. Russell,
971 F.2d 1098, 1100 (4th Cir. 1992) (citation omitted), cert. denied,
113 S. Ct. 1013 (1993). The Fourth Circuit recently abandoned even
that exception to its rule, however, holding that an explanation should
not be given even when the jury requests one. See United States v.
Reives, 15 F.3d 42 (4th Cir. 1994) (affirming trial court’s refusal to
provide any explanation despite explicit request from jury for
“clarification as to ‘reasonable doubt’"), cert. petition filed, 62
U.S.L.W. 3775 (April 18, 1994) (No. 93-1791).
5 This issue is sometimes stated as whether reasonable doubt
should be “defined” for the jury. Petitioner seeks not merely a
“definition” in the narrow dictionary sense, however, but a practical,
common-sense explanation to convey to lay jurors the meaning of this
legal term of art.
This Court’s recent decision in Sullivan v.
Louisiana, 113 S. Ct. 2078 (1993), held that erroneous
definitions of reasonable doubt can never be treated as
harmless error. This zero-tolerance rule cannot be squared
with the reality, as demonstrated by empirical evidence,
practical experience, and common sense, that juries
deprived of any explanation of reasonable doubt will
routinely misdefine it for themselves. Sullivan underscores
the necessity of explaining reasonable doubt to the jury in
order to vindicate the constitutional right to jury trial itself.
The lower federal and state courts are deeply
divided over the issue of explaining reasonable doubt to the
jury. The ripeness of this issue for resolution by this
Court is further underscored by this Court’s recent decision
in Victor v. Nebraska, 114 S. Ct. 1239 (1994), which
referred briefly to the issue in dicta but did not explore its
ramifications or resolve its application to the type of case
presented here.
I. PETITIONER’S FIFTH AND SIXTH
AMENDMENT RIGHTS WERE VIOLATED BY
THE TRIAL COURT’S REFUSAL TO
EXPLAIN THE REASONABLE DOUBT
STANDARD TO THE JURY
In the landmark case of In re Winship, 397 U.S.
358 (1976), this Court held that a criminal defendant may
not constitutionally be convicted except upon proof beyond
a reasonable doubt. This Court found this requirement
implicit in the guarantee of due process of law under the
Fifth and Fourteenth Amendments. Jd. at 361-64. As this
Court declared, “[iJt is critical that the moral force of the
criminal law not be diluted by a standard of proof that
6
eS ENE
is Silitedd tte A ih Steak eh
ip Gir te, Y
leaves people in doubt whether innocent men are being
condemned." Id. at 364.
The reasonable-doubt standard ... is a
prime instrument for reducing the risk of
convictions resting on factual error. The
standard provides concrete substance for the
presumption of innocence--that bedrock
“axiomatic and elementary" principle whose
“enforcement lies at the foundation of the
administration of our criminal law."
Id. at 363 (citation omitted). Winship made clear that a
criminal trial jury must, at the very least, be told to apply
this vitally important standard of proof. As this Court
subsequently held, however,
[t]he Winship doctrine requires more than
simply a trial ritual. A doctrine establishing
so fundamental a substantive constitutional
standard must also require that the factfinder
will rationally apply that standard to the
facts in evidence.
Jackson v. Virginia, 443 U.S. 307, 316-17 (1979)
(emphasis added).
Only by fully and accurately explaining this crucial
concept to the jury can the promise of Winship and Jackson
be fulfilled. This constitutional imperative was
underscored by this Court’s decision in Sullivan v.
Louisiana, 113 S. Ct. 2078 (1993), which held that a
constitutionally erroneous jury instruction on reasonable
doubt can mever be treated as harmless error. To hold
otherwise, this Court explained, would eviscerate not only
7
the right to due process, but the Sixth Amendment right to
jury trial itself. As Sullivan noted, “[iJt is self-evident. . .
that the Fifth Amendment requirement of proof beyond a
reasonable doubt [recognized in Winship] and the Sixth
Amendment requirement of a jury verdict are interrelated."
Id. at 2081. Where the jury has been improperly
instructed on the meaning of reasonable doubt, “there has
been no jury verdict within the meaning of the Sixth
Amendment." Id. at 2082.6 Indeed, this Court, by
refusing to apply harmless-error analysis, has singled out
the reasonable doubt standard for a level of protection
reserved for only a handful of other constitutional
guarantees. ’
The central insight of Sullivan is that a failure to
properly explain the meaning of reasonable doubt to the
jury "“vitiates all the jury’s findings." Jd. at 2082
* The traditional harmless-error inquiry—“whether the guilty
verdict actually rendered in this trial was surely unattributable to the
error,” id. at 2081 (emphasis in original)—is thus rendered impossible.
An appellate court could only engage in improper speculation as tc
whether a properly instructed jury “would surely have found [the
defendant] guilty beyond a reasonable doubt.” Id. at 2082 (emphasis
in original). ra
’ These include the rights to counsel, see Gideon v. Wainwright,
372 U.S. 335 (1963), to self-representation, see McKaskle v. Wiggins,
465 U.S. 168, 177-78 n.8 (1984), to be tried in public, see Waller v.
Georgia, 467 U.S. 39, 49-50 & n.9 (1984), or before an impartial
judge, see Tumey v. Ohio, 273 U.S. 510, 535 (1927), and not to be
indicted or convicted by a grand or petit jury chosen with racial bias,
see Batson v. Kentucky, 476 U.S. 79, 100 (1986); Vasquez v. Hillery,
474 U.S. 254, 261-62 (1986); Whitus v. Georgia, 385 U.S. 545, 549-
50 (1967). By contrast, even so fundamental a right as the Fifth
Amendment’s prohibition of coerced confessions has been held to be
subject to harmless-error analysis. See Arizona v. Fulminante, 499
U.S. 279, 311-12 (1991).
(emphasis in original). This is because the reasonable
doubt standard is the lens through which the jury views all
the evidence in a criminal trial. Sullivan sets forth a rule
of zero tolerance for constitutional defects in that lens due
to a faulty definition of the reasonable doubt standard.
Sullivan’s logic applies with equal force to a lens that is
out of focus due to the disparate and inaccurate
understandings of the reasonable doubt standard by jurors
who receive no explanation of that standard at all. In
either case the lens through which the jury views the
evidence is flawed.
The mere unexplained recitation of the reasonable
doubt standard amounts to no more than the empty "trial
ritual” condemned by Jackson, 443 U.S. at 316-17.
Empirical evidence, practical experience, and common
sense all compel the conclusion that lay jurors, if deprived
of an explanation, will indeed be severely handicapped in
trying to “rationally apply that standard to the facts in
evidence." Jackson, 443 U.S. at 317. As Justice
Ginsburg recently noted:
the argument for defining [reasonable doubt]
is strong. While judges and lawyers are
familiar with the reasonable doubt standard,
the words “beyond a reasonable doubt" are
not self-defining for jurors. Several studies
of jury behavior have concluded that “jurors
are often confused about the meaning of
reasonable doubt," when that term is left
undefined.
Victor v. Nebraska, 114 §. Ct. 1239, 1253 (1994)
(Ginsburg, J., concurring in part and concurring in the
judgment), quoting Note, Reasonable Doubt: To Define, or
9
Not To Define, 90 CoLUM. L. REV. 1716, 1723 (1990).
As Judge Anderson of the Ninth Circuit Court of Appeals
has observed,
The phrase “proof beyond a reasonable
doubt" is not a self-defining term. It is a
nebulous and generalized concept. It is the
core feature of every criminal trial. In my
view, based upon my experiences, jurors do
derive a benefit from a proper definition. It
furnishes at least some standard against
which they can measure the proof in a
particular case. A proper definition
furnishes the jury with a concept which they
can relate to their own decision-making
processes in their daily personal and business
lives.
United States v. Witt, 648 F.2d 608, 612 (9th Cir. 1981)
(Anderson, J., concurring).
Indeed, the arguments typically asserted against
defining or explaining reasonable doubt are premised on
two conflicting rationales. On the one hand, it has been
argued that the meaning of reasonable doubt is so self-
evident, even to laypeople, that no further elaboration is
needed.* As Justice Ginsburg and Judge Anderson have
* See, e.g., United States v. Reives, 15 F.3d 42, 45 (4th Cir.
1994), cert. petition filed, 62 U.S.L.W. 3775 (April 18, 1994)
(No. 93-1791), quoting Murphy v. Holland, 716 F.2d 470, 475 (4th
Cir. 1985), vacated and remanded on other grounds, 475 U.S. 1138
(1986) (“the term has a ’self-evident meaning comprehensible to a lay
juror’"); United States v. Olmstead, 832 F.2d 642, 645 (ist Cir. 1987),
cert. denied, 486 U.S. 1009 (1988) (same).
10
suggested, this facile premise cannot withstand scrutiny.
Empirical studies confirm that the likelihood of jury
confusion is disturbingly high. Such studies indicate that,
despite this Court’s zero tolerance tor constitutionally
flawed definitions of reasonable doubt, lay jurors deprived
of any explanation of that concept will routinely define it
for themselves in ways that run afoul of the Constitution.
At the same time, it has been suggested that
reasonable doubt is so difficult to define, even by judges
and lawyers, that attempts to do so lead inevitably to
confusion and misstatement of the concept.’® Thus, the
Fourth Circuit’s blanket proscription rests on _ the
implausible assumption that lay jurors can be expected to
properly comprehend, without any explanation or
® One study of potential jurors who were given a reasonable doubt
instruction with no definition or explanation found that 23 percent
believed that if the circumstantial evidence was equally balanced
between guilt and innocence, the defendant should be convicted. David
U. Strawn & Raymond W. Buchanan, Jury Confusion: A Threat to
Justice, 59 JUDICATURE 478, 480-82 (1976), cited in Note, supra, at
1723 & n.69. Another study of over 600 college students acting as
mock jurors, some of whom were given a definition of reasonable
doubt and some not, found that “the meaning of the concept of
reasonable doubt [was] not obvious to” the subjects and that “[tJhere
was considerably greater individual uncertainty and group disagreement
when reasonable doubt was undefined, and more hung juries resulted.“
Norbert L. Kerr, et al., Guilt Beyond a Reasonable Doubt: Effects of
Concept Definition and Assigned Decision Rule on the Judgments of
Mock Jurors, 34 J. PERSONALITY & SOCIAL PSYCHOLOGY 282, 292
(1976), cited in Note, supra, at 1723 & n.66.
0 See, e.g., Olmstead, 832 F.2d at 645 ("the term has eluded
clear definition"); Murphy, 776 F.2d at 475 ("[ijnstead of
improvement, the most likely outcome of attempts to define reasonable
doubt is unnecessary confusion and a constitutionally impermissible
lessening of the required standard of proof”).
11
illustration, a legal term of art that judges and lawyers
struggle to define. But see, e.g., Lansdowne v. State, 412
A.2d 88, 93 (Md. 1980) (noting that since even
experienced judges “have difficulty construing the meaning
of reasonable doubt’ . . . [sJome unskilled and untutored
lay jurors are at least as likely ... to misconstrue the
meaning"). Judge Torruella of the First Circuit Court of
Appeals, noting the “obvious contradiction" of these
arguments, has concluded:
What to me is self-evident is that we would
not be engrossed in this debate if the
meaning of “proof beyond a reasonable
doubt" were as prone to common
understanding as is claimed.
United States v. Littlefield, 840 F.2d 143, 151 (ist Cir.
1988) (Torruella, J., concurring), cert. denied, 488 U.S.
860 (1988)."
Empirical evidence and experience demonstrate, as
discussed above, that reasonable doubt is a legal term of
art that does not have a self-evident meaning to jurors, and
that judges are capable of devising explanations of the
concept that will. greatly aid the jury’s comprehension.
'! Chief Judge Newman of the Second Circuit Court of Appeals,
criticizing as “curious” the attitude of those courts, like the Fourth
Circuit below, which have argued against any explanation of reasonable
doubt, notes that he finds it “rather unsettling that we are using a
formulation that we believe will become less clear the more we explain
it.” Jon O. Newman, Beyond “Reasonable Doubt,” 68 N.Y.U. L.
REv. _, ___ (1994) (manuscript at 8, see App. 51a-52a), quoted in
Victor, 114 S. Ct. at 1253 (Ginsburg, J., concurring in part and
concurring in the judgment).
12
I iii
ss we ene ee
Both Justice Ginsburg and Chief Judge Newman of the
Second Circuit Court of Appeals, for example, have
advocated use of the instruction proposed in 1987 by the
Federal Judicial Center. See Victor, 114 S. Ct. at 1253
(Ginsburg, J., concurring in part and concurring in the
judgment); Jon O. Newman, Beyond “Reasonable Doubt,”
68 N.Y.U. L. REV. __, ___ (1994) (manuscript at 19-20,
see App. 52a-54a); FEDERAL JUDICIAL CENTER, PATTERN
CRIMINAL JURY INSTRUCTIONS 17-18 (1987)
(instruction 21). Even if the concept of reasonable
doubt were inherently difficult to define, that would hardly
justify courts in abandoning the effort altogether. As one
scholar has observed:
Difficulties of the task of describing a degree
of belief should not deter the legal profession
from attempting a common sense description
of that degree. As is aptly said by Right
Hon. A.J. Balfour in ... Foundations of
Belief (p. 234): “If we have to find our way
over difficult seas and under murky skies
without compass or chronometer, we need
not on that account allow the ship to drive at
random."
J.P. McBaine, Burden of Proof: Degrees of Belief, 32
CAL. L. REV. 242, 260 (1944).
2 Petitioner does not suggest that this Court should dictate any
single explanation of reasonable doubt to this Nation’s courts. But for
the reasons discussed herein, the Fifth Amendment due process clause
and the Sixth Amendment jury trial guarantee require that some
thorough and balanced explanation of that concept be provided when
requested by the defendant (or by the jury itself).
13
It would be incongruous to guard only against
distortions of the reasonable doubt standard resulting from
judicial explanations overtly flawed on the surface, while
ignoring the misapplications of the standard that necessarily
result from refusing to give any explanation at all. The
damage to the defendant’s constitutional rights is the same
in either case. Such a narrow, blinkered approach renders
Winship, Jackson, and Sullivan a triumph of form over
substance. Put simply, the rule followed by the Fourth
Circuit encourages systematic, widespread constitutional
error in the jury room, at the same time that it attempts to
sweep such error under the rug and immunize it from
review.
In sum, providing the jury with an explanation of
reasonable doubt is essential to vindicate both the right to
due process of law under the Fifth Amendment and the
right to trial by jury under the Sixth Amendment." As
Judge Torruella has concluded, “the failure to grant an
instruction explaining the term ’proof beyond a reasonable
doubt’ is an error of constitutional dimension, striking at
'? At the very least, this Court should reject the holdings of those
courts, like the Fourth Circuit, which rigidly prohibit any explanation.
This Court should, at the very least, hold that the Constitution requires
that trial courts enjoy the discretion to provide an explanation.
Alternatively, this Court should require federal trial courts to
explain the concept of reasonable doubt, or should at least protect their
discretion to do so, pursuant to this Court’s inherent supervisory
authority over the lower federal courts. See, e.g., Frazier v. Heebe,
482 U.S. 641, 645-46 (1987) (exercising supervisory power to strike
down federal district court rule against admission to its bar of attorneys
not residing or maintaining offices within the state where the district
court sits).
14
the very heart of the presumption of innocence.”
Littlefield, 840 F.2d at 151 (Torruella, J., concurring).
Due process principles require that guilt be
established beyond a reasonable doubt.
Likewise, due process principles require a
judge to define that standard adequately for
the jury--the group charged with the solemn
task of determining guilt or innocence.
United States v. Nolasco, 926 F.2d 869, 874 (9th Cir.
1991) (en banc) (Wiggins, J., joined by Pregerson,
Alarcon, and Fernandez, JJ., dissenting), cert. denied, 112
S. Ct. 111 (1991).
Finally, it is clear under Sullivan, supra, that, if the
trial court’s refusal io explain reasonable doubt to
petitioner’s jury was error, such error cannot properly be
subjected to harmless-error analysis. Even if harmless
error analysis were appropriate, the error in this case could
not be deemed harmless beyond a reasonable doubt.
Il. PETITIONER’S FIFTH AND SIXTH
AMENDMENT RIGHTS WERE VIOLATED BY
THE TRIAL COURT’S REFUSAL TO PERMIT
PETITIONER’S COUNSEL TO PRESENT ANY
MEANINGFUL ARGUMENT TO THE JURY
ON THE MEANING OF THE REASONABLE
DOUBT STANDARD
The trial court compounded the constitutional error
in this case by not only refusing to explain reasonable
doubt to the jury itself, but also by refusing to permit
petitioner’s counsel to present any meaningful argument to
15
the jury on the meaning of reasonable doubt.“ Even if
this Court were to deem it constitutionally acceptable for
the trial court not to explain reasonable doubt to the jury,
this Court should hold, at a bare minimum, that defense
counsel must be permitted to include an accurate and
proper explanation or illustration of reasonable doubt in
arguments to the jury. Refusing to permit such arguments
by counsel not only violates the Fifth Amendment
guarantee of due process of law and the Sixth Amendment
right to jury trial, by obstructing the jury’s comprehension
of the reasonable doubt standard implicit in that
guarantee,’ it also violates the Sixth Amendment right to
counsel.
Argument by counsel is an essential conduit for the
enforcement of constitutional guarantees like the reasonable
doubt standard. As this Court has held:
An accused’s right to be represented by
counsel is a fundamental component of our
criminal justice system. Lawyers in criminal
cases “are necessities, not luxuries." Their
presence is essential because they are the
means through which the other rights of the
person on trial are secured.
United States v. Cronic, 466 U.S. 648, 653 (1984)
(footnote omitted), quoting Gideon v. Wainwright, 372
U.S. 335, 344 (1963).
4 See supra at 3 & note 1.
'S The argument here is essentially the same as that for requiring
the court to explain reasonable doubt to the jury. See supra at 6-15.
16
inci
A key component of the right to counsel is the right
to have counsel present argument to the jury. This Court
has quoted approvingly Lord Eldon’s aphorism that “truth
is best discovered by powerful statements on both sides of
the question.” See Cronic, 466 U.S. at 655. "More
specifically," this Court has declared,
the right to the assistance of counsel has
been understood to mean that there can be
no restrictions upon the function of counsel
in defending a criminal prosecution in accord
with the traditions of the adversary
factfinding process that has been
constitutionalized in the Sixth and Fourteenth
Amendments... .
There can be no doubt that closing
argument for the defense is a basic element
of the adversary factfinding process in a
criminal _ trial. Accordingly, it has
universally been held that counsel for the
defense has a right to make a closing
summation to the jury, no matter how strong
the case for the prosecution may appear to
the presiding judge.
Herring v. New York, 422 U.S. 853, 857-58 (1975)."°
‘© This Court held in Herring that a defendant has a constitutional
right to have his counsel present closing argument even in a bench
trial. Id. at 859. See also United States v. Sawyer, 443 F.2d 712, 713
n.5 (D.C. Cir. 1971) ("The defendant’s right to present argument is
part of his Sixth Amendment right to counsel and to jury trial.").
17
Furthermore, while “[tJhe trial court has broad
discretion in controlling the scope of closing argument{,'’]
[tJhat discretion is abused . . . if the court prevents defense
counsel from miaking a point essential to the defense."
United States v. Sawyer, 443 F.2d 712, 713 (D.C. Cir.
1971) (finding it error to prevent defense counsel from
explaining to the jury the meaning of the legal term
"inference" and how to distinguish it from the term
presumption"), cited with approval by Commonwealth v.
Gwaltney, 387 A.2d 848, 851 (Pa. 1978). In a passage
with striking applicability to the instant case, where
petitioner’s sole defense was that the prosecution failed to
carry its burden of proof, the Sawyer court noted that "if a
single point of law is the linchpin for the defense, there is
every reason to permit defense counsel to state the point as
emphatically as possible." 443 F.2d at 714. See also,
e.g., Taylor v. State, 330 So. 2d 91, 93 (Fla. App. 1976):
[I]t is entirely appropriate for an attorney in
closing argument to relate the applicable law
to the facts of the case. ... An attorney
should therefore be allowed to explain to the
jury those instructions which are relevant to
his theory of the case and to emphasize any
portion of .the jury charge that he feels to be
pertinent.
'7 It is well established that a trial judge has discretion to control
the duration, scope, and content of counsel’s arguments. There is no
right to present arguments which misstate the law or meander on at
excessive length. See, e.g., Herring, 422 U.S. at 862. But as
discussed in text below, that discretion cannot constitutionally extend to
denying defense counsel the opportunity to present a thorough,
appropriate argument on the meaning of the reasonable doubt standard.
18
In sum, given the central constitutional importance
of the reasonable doubt standard, and the intolerable
likelihood that a jury uninformed on the meaning of that
standard will be confused and misguided in applying it,
supra at 9-14, defense counsel cannot, consistently with the
Fifth and Sixth Amendments, be denied the opportunity to
present a thorough, appropriate argument on the meaning
of that standard."
Il THE LOWER FEDERAL AND STATE
COURTS ARE DIVIDED BY A _ DEEP,
LONGSTANDING CONFLICT ON THE ISSUE
OF EXPLAINING REASONABLE DOUBT TO
THE JURY
The existence of a conflict among the federal Courts
of Appeals on an important legal issue has always been
viewed as a compelling reason for this Court to grant a
petition for certiorari. See, e.g., Sup. Cr. R. 10.1(a).
This case presents a textbook example of such a conflict.
While several circuits, like the Fourth Circuit below,
condemn or discourage attempts to explain the concept of
reasonable doubt, a majority of the circuits either require
that the concept be explained, or encourage the use of
some explanation while leaving the decision to the
discretion of the trial courts.
Furthermore, as with the trial court’s refusal to expiain
reasonable doubt to the jury, this error cannot, under Sullivan, supra,
be subjected to harmless-error analysis, and even if harmless-error
analysis were appropriate, the error in this case could not be deemed
harmless beyond a reasonable doubt.
19
The Third,’® Eighth,” and Tenth” Circuits have
long required that trial courts explain the meaning of
reasonable doubt to the jury upon request by the defendant.
The Second,” Sixth,” Ninth,“ and Eleventh”
Circuits leave the issue to the discretion of the trial courts,
while approving, and in some cases strongly encouraging,
the use of an explanation. The Second Circuit, for
'9 See Blatt v. United States, 60 F.2d 481 (3d Cir. 1932). Cf.
United States v. Pungitore, 910 F.2d 1084, 1145 n.87 (3d Cir. 1990),
cert. denied, 111 S. Ct. 2009-11 (1991) (noting in dicta the Fourth and
Seventh Circuits’ anti-definition rule).
® See Friedman v. United States, 381 F.2d 155, 160 (8th Cir.
1967).
21 See United States v. Pepe, 501 F.2d 1142, 1143 (10th Cir.
1974). Cf Mahorney v. Wallman, 917 F.2d 469, 473 (10th Cir. 1990)
(suggesting in dicta that “a defendant may not be entitled to an
instruction defining the fundamental standard of ‘reasonable doubt,’”
without citing or purporting to undermine Pepe); United States v.
Barrera-Gonzales, 952 F.2d 1269, 1271-72 (10th Cir. 1992) (stating
that jury instructions must “provide[] the jury with ample understanding
of the issues and standards applicable,” citing Pepe with approval, and
citing a particular explanation of reasonable doubt as “the preferable
definition of reasonable doubt").
2 See Perez v. Irwin, 963 F.2d 499, 502 (2d Cir. 1992); United
States v. Ivic, 700 F.2d 51, 69 (2d Cir. 1983), overruled on other
grounds by National Organization for Women, Inc. v. Scheidler, 114 S.
Ct. 798 (1994).
® See United States v. Goodlett, 3 F.3d 976, 979 (6th Cir. 1997);
Whiteside v. Parke, 705 F.2d 869, 872-73 (6th Cir. 1983), cert.
denied, 464 U.S. 843 (1983).
* See United States v. Nolasco, 926 F.2d 869, 872 (9th Cir.
1991) (en banc), cert. denied, 112 S. Ct. 111 (1991) (expressly
rejecting Fourth, Fifth, and Seventh Circuit cases “discourag[ing] or
even condemn{ing] the us: of reasonable doubt definitions”).
% See United States v. Veltmann, 6 F.3d 1483, 1492 (11th Cir.
1993).
20
example, has described one traditional explanation as “the
preferable way of expressing the notion of reasonable
doubt." Perez v. Irwin, 963 F.2d 499, 502 (2d Cir. 1992).
The Ninth Circuit, in an en banc decision, has declared
that "’a proper definition [of reasonable doubt] is always
appropriate.’" United States v. Nolasco, 926 F.2d 869,
872 (9th Cir. 1991) (en banc), cert. denied, 112 S. Ct. 111
(1991), quoting United States v. Witt, 648 F.2d 608, 611
(9th Cir. 1981). Furthermore, four of the eleven judges in
Nolasco went even further and contended, as petitioner
does here, that an explanation of reasonable doubt is
constitutionally required. See 926 F.2d at 873-75
(Wiggins, J., joined by Pregerson, Alarcon, and
Fernandez, JJ., dissenting).
The First, Fifth,?” and District of Columbia”
Circuits discourage attempts to explain reasonable doubt
but also appear to leave the issue to the discretion of the
% See United States v. Cassiere, 4 F.3d 1006, 1024 (ist Cir.
1993) ("the district court [is] in the best position to determine whether,
and if so how, to define reasonable doubt"); United States v. Olmstead,
832 F.2d 642, 644-46 (lst Cir. 1987), cert. denied, 486 U.S. 1009
(1988). But see United States v. Littlefield, 840 F.2d 143, 151 (ist
Cir. 1988), cert. denied, 488 U.S. 860 (1989) (Torruella, J.,
concurring) (urging reconsideration of Olmstead and adoption of rule
that providing explanation of reasonable doubt is constitutionally
required).
27 See Thompson v. Lynaugh, 821 F.2d 1054, 1060-61 (Sth Cir.
1987), cert. denied, 483 U.S. 1035 (1987).
% See United States v. Taylor, 997 F.2d 1551, 1557-58 (D.C. Cir.
1993). Taylor marked an abrupt departure from the D.C. Circuit’s
historic rule requiring that trial courts explain the meaning of
reasonable doubt to the jury upon request by the defendant. See Mundy
v. United States, 176 F.2d 32 (D.C. Cir. 1949); Schencks v. United
States, 2 F.2d 185, 187 (D.C. Cir. 1924).
21
trial courts. Only the Seventh Circuit joins the Fourth
Circuit below in rigidly prohibiting trial courts from
explaining reasonable doubt to the jury.” Furthermore,
the Fourth Circuit’s current disdain for explaining
reasonable doubt, see supra at 4-5, note 4, is sharply at
variance with the Fourth Circuit’s own historic recognition
of the vital importance of such a practice. See Williams v.
United States, 271 F.2d 703, 705 (4th Cir. 1959) ("it is the
duty of the court to define and explain the meaning and
application of ’reasonable doubt’").
State jurisdictions reflect this same division. The
highest state court in Maryland, where petitioner’s federal
trial took place, has strongly reaffirmed that jurisdiction’s
longstanding requirement of explaining reasonable doubt to
the jury. See Lansdowne v. State, 412 A.2d 88, 91-93
(Md. 1980) (emphasizing the vital constitutional role of the
reasonable doubt standard); accord Wills v. State, 620
A.2d 295, 298 (Md. 1993). Idaho, Iowa, Massachusetts,
Missouri, Nevada, North Carolina, Ohio, Pennsylvania,
Rhode Island, Texas, and Washington also require that
reasonable doubt be explained to the jury. New York
*% See United States v. Blackburn, 992 F.2d 666, 668 (7th Cir.
1993), cert. denied, 114 S. Ct. 393 (1993).
* See State v. Cotton, 602 P.2d 71, 74 (Idaho 1979); State v.
Bishop, 387 N.W.2d 554, 560 (Iowa 1986); Commonwealth vy.
Stellberger, 51S N.E.2d 1207 (Mass. App. 1987); State v. Antwine,
743 S.W.2d 51, 62-63 (Mo. 1987), cert. denied, 486 U.S. 1017
(1988); Parker v. State, 849 P.2d 1062, 1066 (Nev. 1993), cert.
denied, 114 S. Ct. 570 (1993); State v. Montgomery, 417 S.E.2d 742,
748 (N.C. 1992); State v. Van Gundy, 594 N.E.2d 604, 606 (Ohio
1992); Commonwealth v. Young, 317 A.2d 258, 261-63 (Pa. 1974);
State v. Desrosiers, 5S9 A.2d 641, 645 (R.I. 1989); Geesa v. State,
820 S.W.2d 154, 161-62 (Tex. Ct. Crim. App. 1991); State v. Scott,
757 P.2d 492, 495 n.5 (Wash. 1988).
22
courts have long employed explanations of reasonable
doubt and are required to explain the concept if the jury so
requests.*! Several other jurisdictions approve or strongly
encourage the use of some explanation,” while still others
disapprove explanations.* |
As this summary demonstrates, the lower federal
and state courts are deeply divided on this vital
31 See People v. Antommarchi, 604 N.E.2d 95, 98 (N.Y. 1992)
("for over 100 years we have approved language defining a reasonable
doubt as one which a juror could, if called upon to do so, express or
articulate"); People v. Malloy, 434 N.E.2d 237, 239 (N.Y. i982),
cert. denied, 459 U.S. 847 (1982) (trial court must respond to jury
request with meaningful supplemental instruction).
2 See People v. Crandell, 760 P.2d 423, 450 (Cal. 1988), cert.
denied, 490 U.S. 1037 (1989); Brown v. State, 565 So. 2d 304, 307
(Fla. 1990), cert. denied, 498 U.S. 992 (1990); State v. Taylor, 410
So. 2d 224, 225 (La. 1982); State v. Tapley, 598 A.2d 1190, 1192 n.4
(Me. 1991); People v. Langley, 466 N.W.2d 724, 726 (Mich. App.
1991); State v. Goodwin, 813 P.2d 953, 961 (Mont. 1991), overruled
on other grounds by State v. Turner, 864 P.2d 235 (Mont. 1993); State
v. Jones, 245 Neb. 821, 832, | N.W.2d ___, 1994 Neb. LEXIS
104, at *20-*21 (1994); State v. Letendre, S79 A.2d 1223, 1224 (N.H.
1990); State v. Manning, 409 S.E.2d 372, 375 (S.C. 1991), cert.
denied, 112 S. Ct. 1282 (1992).
3 See State v. Bracy, 703 P.2d 464, 479 (Ariz. 1985), cert.
denied, 474 U.S. 1110 (1986); People v. Speight, 606 N.E.2d 1174,
1177 (ill. 1992); State v. Dunn, 820 P.2d 412, 416 (Kan. 1991); Byrd
v. Commonwealth, 825 S.W.2d 272, 276 (Ky. 1992); Barnes v. State,
532 So. 2d 1231, 1235 (Miss. 1988); City of Minot v. Rubbelke, 456
N.W.2d 511, 514 (N.D. 1990); Rojem v. State, 753 P.2d 359, 368
(Okla. Ct. Crim. App. 1988), cert. denied, 488 U.S. 900 (1988); State
v. Williams, 828 P.2d 1006, 1017 (Ore. 1992), cert. denied, 113 S.
Ct. 171 (1992); State v. McMahon, 603 A.2d 1128, 1128-29 (Vt.
1992); Cooper v. Commonwealth, 345 S.E.2d 775, 777 (Va. App.
1986); Means v. Sidiropolis, 401 S.E.2d 447, 451 n.1 (W. Va. 1990);
Collins v. State, 854 P.2d 688, 699 (Wyo. 1993).
23
constitutional issue, and need guidance and clarification
from this Court. This constitutes a compelling reason why
this Court should grant certiorari in this case.
IV. THIS COURT’S RECENT DECISION IN
VICTOR V. NEBRASKA UNDERSCORES THAT
THE ISSUES PRESENTED ARE RIPE FOR
CONSIDERATION BY THIS COURT
In the consolidated cases of Victor v. Nebraska and
Sandoval v. California, 114 S. Ct. 1239 (1994), this Court
rejected claims that the trial courts involved had provided
constitutionally erroneous instructions to the jury on
reasonable doubt. Because the trial court in each case did
provide an explanation of reasonable doubt, this Court was
not presented, as it is here, with the issue of whether the
Constitution requires such an explanation. This Court did
state in dicta, however, that “the Constitution neither
prohibits trial courts from defining reasonable doubt nor
requires them to do so as a matter of course." Jd. at 1243.
This Court did not otherwise explore the issue and
did not address its ramifications in any particular context,
such as that presented by petitioner’s case in which the sole
defense offered at trial was that the prosecution failed to
carry the burden of proving guilt beyond a reasonable
doubt. Furthermore, the Victor dictum, by its very terms,
sheds no light on petitioner’s related claim that his counsel
should have been permitted to present appropriate
arguments on the meaning of reasonable doubt. See supra
at 15-19. The cursory nature of this dictum, an
examination of this Court’s prior dicta relating to the issue
(which demonstrate that this Court has never squarely
resolved it), Justice Ginsburg’s concurring opinion in
24
Victor, and the particular context of petitioner’s case, all
demonstrate that the issues presented are now eminently
ripe for plenary consideration by this Court.
First of all, the issues resented in the instant
petition were neither raised nor resolved in Victor. As this
Court has repeatedly held, mere dicta does not have any
binding precedential force. See, e.g., Wainwright v. Witt,
469 U.S. 412, 422 (1985); Colgrove v. Battin, 413 U.S.
149, 158 (1973). As Justice Ginsburg observed in Victor,
this Court has, in fact,
never held that the concept of reasonable
doubt is undefinable, or that trial courts
should not, as a matter of course, provide a
definition. Nor... have we ever held that
the Constitution does not require trial courts
to define reasonable doubt.
114 S. Ct. at 1253 (Ginsburg, J., concurring in part and
concurring in the judgment).
This Court in Victor cited Hopt v. Utah, 120 U.S.
430, 440-41 (1887), as support for-its dictum on defining
reasonable doubt. The Hopt Court, however, was very
much aware of the need to explain reasonable doubt to the
jury, even a century before the constitutional nature of the
issue was recognized and articulated in Winship and
Sullivan. The Hopt Court criticized a Massachusetts
court’s “definition” of “beyond a reasonable doubt” that
merely restated the concept as "to a reasonable and moral
certainty." See id. at 440, citing Commonwealth v.
Webster, 59 Mass. (5 Cush.) 295, 320 (1850), overruled in
part on other grounds by Commonwealth v. McLeod, 326
25
N.E.2d 905 (Mass. 1975). The Court then noted that
the same Massachusetts court had
said, that an instruction to the jury that they
should be satisfied of the defendant’s guilt
beyond a reasonable doubt, had often been
held sufficient, without further explanation.
Id., citing Commonwealth v. Costley, 118 Mass. 1 (1875).
While opining that "[iJn many cases it may undoubtedly be
sufficient," id. (emphasis added),** the Hopt Court stated:
But in many instances, especially where the
case is at all complicated, some explanation
or illustration of the rule may aid in its full
and just comprehension. As a matter of fact,
it has been the general practice in this
country of courts holding criminal trials to
give such explanation or illustration. The
* *The difficulty with this instruction is, that the words to a
reasonable and moral certainty’ add nothing to the words "beyond a
reasonable doubt’; one may require explanation as much as the other."
Id.
3° The Court followed this observation with the statement: “It is
simple, and as a rule to guide the jury is as intelligible to them
generally as any which could be stated, with respect to the conviction
they should have of the defendant’s guilt to justify a verdict against
him." Jd. (emphasis added). The Court clearly did not mean to imply
that the mere statement of the reasonable doubt “rule” is just as
"intelligible" as any explanation of that rule. Rather, the Court meant
only that the reasonable doubt rule is just as intelligible as any other
brief “rule-type" statement of the proper burden of proof. In the
passage immediately following, quoted below in text, the Court
emphasized that “some explanation or illustration of the rule" would
often help the jury. See id. (emphasis added).
26
rule may be, and often is, rendered obscure
by attempts at definition, which serve to
create doubts instead of removing them. But
an illustration like the one given in this case,
by reference to the conviction upon which
the jurors would act in the weighty and
important concerns of life, would be likely to
aid them to a right conclusion, when an
attempted definition might fail.
Id. at 440-41 (emphases added). In sum, the Court in
Hopt, while conceding that certain poorly phrased
"definitions" of reasonable doubt migit tend to confuse
rather than clarify, emphasized the value of providing an
appropriate “explanation or illustration” of the concept to
the jury.”
One other piece of 19th-century dictum is also
frequently cited with regard to this issue. In Miles v.
United States, 103 U.S. 304 (1881), decided six years
before Hopt, the Court commented that “[a]ttempts to
explain the term ’reasonable doubt’ do not usually result in
making it any clearer to the minds of the jury." Jd. at
312. The thrust of this dicta was largely contradicted by
the later decision in Hopt, as the foregoing discussion
illustrates. The Court in Miles was addressing a claim
(which it rejected) that the definition provided in that case
% It is not clear whether this Court in Victor intended to follow
the Hopt Court’s distinction between a “definition” of reasonable doubt
and an “explanation or illustration” of that concept. Cf supra at 5,
note 5 (noting the distinction between these terms).
27
was erroneous, and thus was not confronted with the issue
of whether any explanation at all was required.”
Such century-old dicta cannot be given much weight
in any event, in light of the subsequent sea changes in this
Court’s reasonable doubt jurisprudence reflected in
Winship, Jackson, and Sullivan. It was not established,
prior to Winship, that the reasonable doubt standard itself is
constitutionally required, so it is only to be expected that
this Court’s prior decisions would be silent on whether an
explanation of that concept is constitutionally required.
And it was not at all clear, prior to Sullivan, how central
the Sixth Amendment right to jury trial is to this issue.
See supra at 7-9.
In any event, this Court’s dictum in Victor cannot
be viewed as dispositive on the facts of petitioner’s case.
Petitioner’s entire defense was premised on the
prosecution’s failure to establish his guilt beyond a
reasonable doubt. In that context, it is difficult to overstate
the importance of fully and properly explaining this
constitutional guarantee to the jury. Furthermore, the
Fourth Circuit below held not merely that an explanation of
reasonable doubt need not be provided “as a matter of
course," but that a trial court should never provide an
explanation. That.is a far harsher rule than any suggested
by the dictum in Victor. As set forth supra at 14, note 13,
petitioner, while contending that an explanation of
7 This Court quoted the Miles dictum in Holland v. United States,
348 U.S. 121, 140 (1954), in the course of a passage devoted mainly
to criticizing, as potentially confusing, the particular definition of
reasonable doubt at issue there (which the Court ultimately upheld).
Again, the issue of whether an explanation was required was not before
the Court.
28
reasonable doubt is always required upon request, argues in
the alternative that trial courts must, at the very least,
enjoy the discretion to provide an explanation. Finally, the
Victor dictum sheds no light on whether, as petitioner
contends, defense counsel must be permitted to present
argument to the jury on the meaning of reasonable doubt.
See supra at 15-19.
In sum, this Court, having never squarely addressed
the fundamental issues presented by this case, should now
grant certiorari, resolve the conflict in the lower courts,
and provide clear and definitive guidance on these vital
constitutional questions.
CONCLUSION
For the foregoing reasons, petitioner urges this
Court to issue a writ of certiorari in this case.
Respectfully submitted,
Stephen H. Sachs,
Counsel of Record
Mark D. Cahn
Bryan H. Wildenthal
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037-1420
(202) 663-6000
June 8, 1994
[1. Unpublished opinion per curiam of the Court of
Appeals, United States v. Jones, No. 92-5661 (4th
Cir. April 13, 1994)]
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
)
UNITED STATES OF AMERICA, )
Plaintiff-Appellee, )
)
v. ) No. 92-5661
)
LESTER V. JONES, )
Defendant-Appellant. )
)
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-90-405-MJG)
Argued: December 10, 1993
Decided: April 13, 1994
la
Before ERVIN, Chief Judge, WILKINS, Circuit Judge,
and
WILLIAMS, Senior United States District Judge for the
Eastern
District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Stephen Howard Sachs, WILMER, CUTLER
& PICKERING, Washington, D.C., for Appellant. Joseph
Lee Evans, Assistant United States Attorney, Baltimore,
Maryland, for Appellee. ON BRIEF: Mark D. Cahn,
WILMER, CUTLER & PICKERING, Washington, D.C.,
for Appellant. Richard D. Bennett, United States
Attorney, Ira L. Oring, Assistant United States Attorney,
Baltimorr, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this
circuit. See I.0.P. 36.5 and 36.6.
OPINION
PER CURIAM:
On April 23, 1992 Lester Jones was convicted of
two counts of income tax evasion in violation of 26 U.S.C.
§ 7201. The jury found him not guilty of two counts of
fraudulent filing of amended returns in violation of 26
U.S.C. § 7206(1). On September 30, 1992 Jones was
sentenced to eighteen months imprisonment, a $25,000 fine
and a $50 special assessment. Jones appeals his conviction
solely on the basis that the court erred in refusing to
instruct the jury on the meaning of “reasonable doubt."
Finding no error, we affirm.
I.
Lester Jones, a Maryland attorney engaged in
private practice, was randomly selected for an IRS audit in
the spring of 1986. Revenue agent Joan Rowe investigated
Jones’ tax returns and discovered that Jones had failed to
report on his federal return approximately $120,000 in
1983 and $170,000 in 1984, resulting in a tax liability of
approximately $135,000.
The existence and the amount of the understatement
are not contested by Jones; he claims, however, that he did
not intend to underreport his income. Jones maintains that
he gave all relevant information to his tax preparer, Ronald
Dochter, who had boasted that he could dramatically
reduce Jones’ tax obligations. Jones claims that the
numerous double-countings and omissions on his returns
were never brought to his attention by Dochter; Jones was
preoccupied with the serious illness of his wife and with a
3a
hectic, chaotic practice and therefore relied on his office
staff and Dochter to prepare accurate returns.
Jones was indicted by a grand jury on October 18,
1990 and his trial began on July 1, 1991. The jury in that
trial was unable to reach a verdict and a mistrial was
declared on July 30, 1991. Retrial began on April 1,
1992.
Evidence at the retrial indicated that while Jones
had reported an income of approximately $50,000 each
year, he made expenditures for luxury items alone of
$173,800 in 1983 and $237,000 in 1984. Jones also
submitted several loan applications to banks during the
period indicating his income to be between $150,000 and
$200,000.
Jones did not testify at his retrial. His entire
defense was that the government failed to carry the burden
of proving his intent beyond a reasonable doubt. Jones’
request that the court instruct the jury on the definition of
reasonable doubt was denied.
The district court restricted defense counsel’s ability
to define reasonable doubt in his closing argument by
permitting him to. merely repeat in closing a baseball
analogy to reasonable doubt that he had made in his
opening argument. In his opening argument, defense
counsel stated
this business of reasonable doubt is not just a
matter of whether the scales tip a little bit
one way or the other. It is not in this
business, in the criminal business, a tie
4a
doesn’t go to the runner. They got to throw
us out by a mile. That is what proof beyond
a reasonable doubt means.
In closing, defense counsel reiterated his point by stating
that “beyond a reasonable doubt means that it is it is [sic]
close, if it is anywhere near close, the Government hasn’t
made its case. They have to throw us out by a mile, to use
a baseball metaphor." Jones argues that he was deprived
of a fair trial because the district court refused to charge
the jury on the definition of reasonable doubt and limited
his closing argument in that respect.
Il.
The clear mandate of the Fourth Circuit is that
district court judges should refrain from defining
reasonable doubt. United States v. Ricks, 882 F.2d 885,
894 (4th Cir. 1989); United States v. Valezquez, 847 F.2d
140, 142-43 (4th Cir. 1988); United States v. Porter, 821
F.2d 968, 972-73 (4th Cir. 1988); United States v.
Headspeth, 852 F.2d 753, 755 (4th Cir. 1988); United
States v. Crockett, 813 F.2d 1310, 1317 (4th Cir. 1987);
United States v. Love, 767 F.2d 1052, 1060 (4th Cir.
1985); United States v. Moss, 756 F.2d 329, 333 (4th Cir.
1985).
This court recently addressed the issue in United
States v. Reives, 15 F.3d 42 (4th Cir. 1994). After
indicating that "we have never found a refusal of a party’s
request for a clarifying instruction to be error... ," we
further noted that where a definition was given, we have
not reversed on that ground alone but rather have examined
the instruction as a whole to see whether it was
Sa
prejudicially misleading or confusing. Jd. at 44. In
affirming the district court’s refusal to give a clarifying
instruction, "we reaffirm[ed] our longstanding, albeit
forgiving, proscription against any attempts to define
reasonable doubt to jurors." Id. at 46.
Furthermore, we have consistently held that a
district court has the authority to limit closing argument to
prohibit counsel from defining reasonable doubt.
Headspeth, 852 F.2d at 756; Crockett, 813 F.2d at 1317.
Therefore, the district court did not err in limiting the
closing argument of Jemes’ counsel.
Il.
Given the clear precedent of this circuit, we find
that the district court did not err in rejecting Jones’ request
for an instruction clarifying reasonable doubt or in limiting
closing argument. Jones’ conviction is therefore affirmes
AFFIRMED
[2. Unpublished order of the Court of Appeals, United
States v. Jones, No. 92-5661 (4th Cir. June 7,
1993) (en banc)]
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FILED
June 7, 1993
No. 92-5661
CR-90-405-MJG
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
LESTER V. JONES
Defendant - Appellant
ORDER
The appellant’s suggestion of hearing in banc was
submitted to the Court. A majority of judges having voted
in a requested poll of the Court to deny hearing in banc,
Ta
Ce
IT IS ORDERED that the suggestion for hearing in
banc is denied.
IT IS FURTHER ORDERED that this case shall be
calendared for argument at the October 1993 session of
Court.
Entered at the direction of Chief Judge Ervin with
the concurrence of Judges Russell, Hall, Phillips,
Wilkinson, Wilkins, Niemeyer, Hamilton, Luttig and
Williams. Judges Widener and Murnaghan dissent.
FOR THE COURT - BY
DIRECTION
/s/ Bert M. Montague
CLERK
(3. Unpublished judgment of conviction and sentence of
the District Court, United States v. Jones,
No. MJG-90-0405 (D. Md. Sept. 30, 1992)]
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
UNITED STATES OF AMERICA JUDGMENT IN A
CRIMINAL CASE
We Case Number:
MJG-90-0405
LESTER V. JONES Joseph L. Evans/
Ira L. Oring
Attorney for
United States
(Name and Address of Defendant) Stephen H. Sachs, Esq.
(RET)
Attorney for Defendant
__FILED____ENTERED
__LODGED RECEIVED
SEP 30 1992
[illegible]
CLERK U.S. DISTRICT COURT
DISTRICT OF MARYLAND
BY___ CRIMINAL DEPUTY
THE DEFENDANT ENTERED A PLEA OF:
( guilty O nolo contendere] as to count(s) »
and
O not guilty as to count(s)
THERE WAS A: Jury
(© finding C verdict] of guilty as to count(s)_1 & 2
F the § tine Indi
THERE WAS A: Jury
(O finding @ _ verdict) of not guilty as to count(s)_3 & 4
O judgment of acquittal as to count(s)
The defendant is acquitted and discharged as to
this/these count(s).
THE DEFENDANT IS CONVICTED OF THE
OFFENSE(S) OF: Counts 1 and 2, Title 26 and 18,
Sections 7201 and 2 - Tax Evasion; Aiding and Abetting.
Microfilmed
Date SEP 30 1992
IT IS THE JUDGMENT OF THIS COURT THAT:
the defendant is hereby committed to the custody of the
Attorney General or his authorized representative for
imprisonment of a term of 18 months as to Count No. 1,
and 18 months as to Count No. 2 to run concurrent to
Count 1.
IT IS FURTHER ORDERED that the defendant self-
surrender at
10a
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ig
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;
12:00 noon on January 4, 1993.
IT IS FURTHER ORDERED that the defendant pay a fine
in the amount of $25,000.00 as to Count No. 1.
In addition to any conditions of probation imposed above,
IT IS ORDERED that the conditions of probation set out
on the reverse of this judgment are imposed.
CONDITIONS OF PROBATION
Where probation has been ordered the defendant shall:
(1) refrain from violation of any law (federal, state, and
local) and get in touch immediately with your
probation officer if arrested or questioned by a law-
enforcement officer;
(2) associate only with law-abiding persons and
maintain reasonable hours;
(3) | work regularly at a lawful occupation and support
your legal dependents, if any, to the best of your
ability. (When out of work notify your probation
officer at once, and consult him prior to job
changes);
(4) not leave the judicial district without permission of
the probation officer;
(5) notify your probation officer immediately of any
changes in your place of residence;
(6) follow the probation officer’s instructions and report
as directed.
The court may change the conditions of probation, reduce
or extend the period of probation, and at any time during
the probation period or within the maximum probation
period of 5 years permitted by law, may issue a warrant
lla
and revoke probation for a violation occurring during the
probation period.
IT IS FURTHER ORDERED that the defendant shall pay a
total special assessment of $_50.00 _ pursuant to Title
18, U.S.C. Section 3013 for count(s)_2 _as follows:
IT IS FURTHER ORDERED THAT counts are
DISMISSED on the motion of the United States.
IT IS FURTHER ORDERED that the defendant shall pay
to the United States attorney for this district any amount
imposed as a fine, restitution or special assessment. The
defendant shall pay to the clerk of the court any amount
imposed as a cost of prosecution. Until all fines,
restitution, special assessments and costs are fully paid, the
defendant shall immediately notify the United States
attorney for this district of any change in name and
address.
IT IS FURTHER C}.DERED that the clerk of the court
deliver a certified copy of this judgment to the United
States marshal of this district.
O The Court orders commitment to the custody of the
Attorney General and recommends:
_September 25, 1992
Date of Imposition of Sentence
_/s/ Herbert N. Maletz
Signature of Judicial Officer
12a
HERBERT _N. MALETZ, SENIOR, U.S. DISTRICT
JUDGE
Name and Title of Judicial Officer
I hereby attest and certify on 2
__9-30-92 __that the foregoing |
document is a full, true and
correct copy of the original on
file in my office and in my legal
custody.
JOSEPH A. HAAS
CLERK, U.S. DISTRICT COURT
DISTRICT OF MARYLAND
By___/s/ [illegible] __Deputy
RETURN
I have executed this Judgment as follows:
Defendant delivered on to at
Date
, the institution designated by the
Attorney General, with a certified copy of this Judgment in
a Criminal Case.
13a
United States Marshal
By
Deputy Marshal
14a
8 ES AN eR ae he Kano nev rm a Do srehi eer Hows, (ORR REN a RARE me o8 nc lg NON pb Gh ey RNP NR A RS SRI CITE TIE SPS 4 2 OE SOP ROR EE CeO LR I Nd HE
’ PONT AN te sate ° ” ” tha be ia Pah a ca A my To Se ee Stites as Pee ae ents eG ree ee eee rere os ios q
[4. Unpublished opinion and order of the District
Court, United States v. Jones, No. MJG-90-0405
(D. Md. Nov. 12, 1992)]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA :
Criminal No.
Vv. : MJG-90-0405
(Judge Maletz)
LESTER V. JONES
MEMORANDUM AND ORDER
On September 25, 1992, the defendant Lester V.
Jones was sentenced by the court to 18 months
imprisonment and a fine of $25,000, following his
conviction by a federal jury of two counts of tax evasion.
At the conclusion of the defendant’s sentencing proceeding,
the defendant moved to remain free on bond pending his
appeal. The parties have submitted memoranda on the
issue and the court is now prepared to rule. For reasons
explained below, the defendant’s motion will be denied.
Under 18 U.S.C. § 3143(b), a defendant may only
remain at liberty pending appeal if the court determines
that his or her appeal raises a substantial question of iaw
likely to result in a reversal, an order for a new trial, a
sentence that does not include incarceration, or a reduced
sentence which is less than any time served plus the
15a
expected duration of the appeal process. The Fourth
Circuit has defined a “substantial question” as a “close
o> teil Sein Acie, EO
United States v. Steinhorn, 927 F.2d 195, 196 (4th
Cir. "1991).
The only appellate issue that the defendant claims to
be “substantial” is the court’s refusal to define the term
reasonable doubt in its instructions to the jury and its
“limitation upon defense counsel’s discussion of reasonable
doubt in closing argument" (Def. Mem. at 3).' This,
however, is not a close question or one that could be
decided the other way. The Fourth Circuit has “frequently
admonished district courts not to attempt to define
reasonable doubt in their instructions to the jury absent a
specific request from the jury itself." United States v.
Headspeth, 852 F.2d 753, 755 (4th Cir. 1988); see also
United States v. Ricks, 882 F.2d 885, 894 (4th Cir. 1989),
cert. denied, 493 U.S. 1047 (1990); United States v.
Valezquez, 847 F.2d 140, 142-43 (4th Cir. 1988); United
States v, Porter, 821 F.2d 968, 972 (4th cir. 1988), cert.
denied, 485 U.S. 934 (1988); United States v. Love, 767
F.2d 1052, 1060 (4th Cir. 1985), cert. denied, 475 U.S.
1081 (1986).
In the face of the above authorities, the defendant
argues that the issue he presents is a close one because
other Federal Circuits have decided the question the other
way. The inquiry under Steinhomn, however, is not
' While the court did imstruct defense counsel not to define
reasonable doubt, counsel was permitted to analogize reasonable doubt
to his baseball metaphor that a “tie goes to the defendant and that the
prosecution’s burden is to throw the defendant out by a mile."
16a
whether the issue in question has “divided the judiciary"
(Def. Mem. at 3), but whether it is a close question under
the precedents of this Circu't. As the above-cited cases
demonstrate, the defendant’s asserted issue clearly is not a
close question in this Circuit.
The defendant also seeks to remain free pending
appeal on the ground that he would likely serve his entire
sentence before his appeal is decided. In support of this
argument, the defendant cites a case decided by the
Honorable Joseph H. Young of this court, United States v.
McManus, 651 F.Supp. 382 (D.Md.), aff'd, 826 F.2d
1061 (4th Cir. 1987). In McManus, the defendant’s
motion for release pending appeal was granted despite the
court’s finding that no substantial appellate question
existed. The court held release to be nevertheless
appropriate because “if detained pending appeal, defendant
will likely serve the better portion of his two year term of
incarceration before the case is resolved." McManus, 651
F.Supp. at 384.
In making the above argument, the defendant fails
to understand the significance of the congressional
amendment that was made to 18 U.S.C. § 3143 after the
McManus decision. At the time of that decision, § 3143
only provided for release pending appeal if a defendant
presented a substantial issue likely to result in reversal or
an order for new trial. As set forth above, Congress has
since revised the statute so as to also provide for release if
the defendant presents a substantial issue likely to result
either in a sentence that does not include incarceration or a
reduced sentence which is less than any time served plus
the anticipated length of the appellate process. Thus,
under § 3143, it is now evident that a defendant may not
17a
be released pending appeal on the mere ground that his
sentence will have been served by the time his i
decided. A defendant must in addition present a substantial
appellate issue likely to result in a reduction of his
sentence, such that incarceration pending appeal will be
plainly unjust. As discussed above, the defendant
has failed to present such an issue.
For the foregoing reason, the defendant’s motion is
denied.
Dated: November _12_, 1992.
18a
(5. Unpublished order of the District Court, United
States v. Jones, No. MJG-90-0405 (D. Mad.
June 23, 1993)]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA :
Criminal No.
Vv. : MJG-90-0405
(Judge Maletz)
LESTER V. JONES
MEMORANDUM AND ORDER
On September 25, 1992, the defendant, Lester V.
Jones, was sentenced by the court to 18 months
imprisonment following his conviction on two counts of tax
evasion. The defendant was also fined $25,000 and
sentenced to perform 1,000 hours of community service
upon his release from prison. Having served some six
months of his sentence, the defendant now moves, pursuant
to Rule 35 of the Federal Rules of Criminal Procedure, for
an order of the court reducing the sentence of confinement
to time served. The government opposes the motion.
Because of the failing health of the defendant’s wife
and daughter, the court will grant the defendant’s motion,
with the condition that the defendant be placed on
probation for the remainder of his 18-month sentence. The
defendant’s daughter has been confined to bed rest since
19a
———————————
the difficult and complicated birth of her first child on May
10, 1993. While the responsibility for caring for their
daughter has fallen on the defendant’s wife, she herself has
been in declining health as a result of stress and an
aggravated ulcer condition.
The court is also influenced by the defendant’s
exemplary work performance during his period of
incarceration, as demonstrated by the report of his prison
supervisor. Under these circumstances, and given the
nature of the defendant’s offense, the court does not
believe that any appropriate purpose would be served by
the defendant’s continued incarceration. Accordingly, it is
hereby ordered this 23rd day of June, 1993, by the United
States District Court for the District of Maryland, the
following:
1) The defendant’s term of imprisonment is
reduced to time served; he shall be released immediately;
2) The defendant shall be placed on probation
for the time remaining to be served on his original 18-
month sentence;
3) The defendant shall perform the 1,000 hours
of community service previously ordered upon his release
from prison; and
4) The defendant shall pay the $25,000 fine
previously ordered, if he has not already done so.
/s/ Herbert N. Maletz
Herbert N. Maletz
Senior Judge
20a
fy
bie Sie ida Pe GTS PEN eat ra en OT moet IR RMA ee Mea ee ToT OR A ae Ty NTS On Nena GER Rete NP Rete Yara ree
[6. Original Indictment, United States v. Jones,
No. MJG-90-0405 (Oct. 18, 1990)]
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA : CRIMINAL
NO. G-90-0405
v. : (Tax Evasion,
26 U.S.C.
LESTER V. JONES : §7201; Aiding
and Abetting
18 U.S.C. §2)
INDICTMENT
The Grand Jury for the District of Maryland
charges:
That on or about the 14th day of August, 1984, in
the State and District of Maryland,
LESTER V. JONES
a resident of Hydes, Maryland, who during the calendar
year 1983 was married, did willfully attempt to evade and
defeat a large part of the income tax due and owing by him
and his spouse to the United States of America for the
calendar year 1983, by preparing and causing to be
prepared, and by signing and causing to be signed, and by
mailing and causing to be mailed in the District of
2la
|
Maryland a false and fraudulent joint U.S. Individual
Income Tax Return, Form 1040, on behalf of himself and
his spouse, which was filed with the Internal Revenue
Service, wherein it was stated that their joint taxable
income for said calendar year was the sum of $51,317.75,
and that the amount of tax due and owing thereon was the
sum of $15,879.00, whereas, as he then and there well
knew and believed, their joint taxable income for the said
calendar year was approximately $150,000, upon which
said joint taxable income there was a substantial tax due
and owing to the United States of America, to wit,
approximately $59,000.00.
26 U.S.C. §7201
18 U.S.C. §2
COUNT II
The Grand Jury for the District of Maryland
charges:
That on or about the 12th day of August, 1985, in
the State and District of Maryland,
LESTER V. JONES
a resident of Hydes, Maryland, who during the calendar
year 1984 was married, did willfully attempt to evade and
defeat a large part of the income tax due and owing by him
and his spouse to the United States of America for the
calendar year 1984, by preparing and causing to be
prepared, and by signing and causing to be signed, and by
mailing and causing to be mailed in the District of
22a
'
Maryland a false and fraudulent joint U.S. Individual
Income Tax Return, Form 1040, on behalf of himself and
his spouse, which was filed with the Internal Revenue
Service, wherein it was stated that their joint taxable
income for said calendar year was the sum of $50,792.27,
and that the amount of tax due and owing thereon was the
sum of $15,940.46, whereas, as he then and there well
knew and believed, their joint taxable income for the said
calendar year was approximately $183,000, upon which
said joint taxable income there was a substantial tax due
and owing to the United States of America, to wit,
approximately $76,000.90.
26 U.S.C. §7201
18 U.S.C. §2
's/ Breckinridge L. Will
Breckinridge L. Willcox
United States Attorney
[7. Superseding Indictment, United States v. Jones,
No. MJG-90-0405 (March 21, 1991)]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA : CRIMINAL
NO.
MJG-90-0405
Vv. : (Tax Evasion,
26 U.S.C.
LESTER V. JONES ; §7201; False
Declaration,
26 U.S.C.
§7206(1);
Aiding
and Abetting,
| 18 U.S.C. §2)
| SUPERSEDING INDICTMENT
| The Grand ‘Jury for the District of Maryland
| charges:
| That on or about the 14th day cf August, 1984, in
| the State and District of Maryland,
LESTER V. JONES
24a
a resident of Hydes, Maryland, who during the calendar
year 1983 was married, did willfully attempt to evade and
defeat a large part of the income tax due and owing by him
and his spouse to the United States of America for the
calendar year 1983, by preparing and causing to be
prepared, and by signing and causing to be signed, and by
mailing and causing to be mailed in the District of
Maryland a false and fraudulent joint U.S. Individual
Income Tax Return, Form 1040, on behalf of himself and
his spouse, which was filed with the Internal Revenue
Service, wherein it was stated that their joint taxable
income for said calendar year was the sum of $51,317.75,
and that the amount of tax due and owing thereon was the
sum of $15,879.00, whereas, as he then and there well
knew and believed, their joint taxable income for the said
calendar year was approximately $170,000, upon which
said joint taxable income there was a substantial tax due
and owing to the United States of America, to wit,
approximately $68,000.00.
26 U.S.C. §7201
18 U.S.C. §2
COUNT II
And the Grand Tury for the District of Maryland
charges:
That on or about the 12th day of August, 1985, in
the State and District of Maryland,
LESTER V. JONES
25a
a resident of Hydes, Maryland, who during the calendar
year 1984 was married, did willfully attempt to evade and
defeat a large part of the income tax due and owing by him
and his spouse to the United States of America for the
calendar year 1984, by preparing and causing to be
prepared, and by signing and causing to be signed, and by
mailing and causing to be mailed in the District of
Maryland a false and fraudulent joint U.S. Individual
Income Tax Return, Form 1040, on behalf of himself and
his spouse, which was filed with the Internal Revenue
Service, wherein it was stated that their joint taxable
income for said calendar year was the sum of $50,792.27,
and that the amount of tax due and owing thereon was the
sum of $15,940.46, whereas, as he then and there well
knew and believed, their joint taxable income for the said
calendar year was approximately $217,000, upon which
Said joint taxable income there was a substantial tax due
and owing to the United States of America, to wit,
approximately $93,000.00.
26 U.S.C. §7201
18 U.S.C. §2
., COUNT Tit
And the Grand Jury for the District of Maryland
charges:
That on or about the 6th day of October, 1986, in
the State and District of Maryland,
LESTER V. JONES
6a
a resident of Hydes, Maryland, did willfully and knowingly
make and subscribe an amended joint United States
Individual Income Tax Return, Form 1040, for the
calendar year 1983, which was verified by a written
declaration that it was made under the penalties of perjury
and was filed with the Internal Revenue Service Center at
Philadelphia, Pennsylvania, the said LESTER V. JONES
well knowing that the 1983 Amended United States
Individual Income Tax return was not true and correct as
to every material matter in that the said LESTER V.
JONES reported on Line la of Schedule C that the gross
receipts for 1983 generated from his business and
profession at an attorney were $297,002.35, whereas the
said LESTER V. JONES there knew and believed that he
had received additional gross receipts which should have
been included in the figure on Line la of Schedule C of the
1983 amended joint United States Individual Income Tax
return.
26 U.S.C. §7206(1)
18 U.S.C. §2
COUNT IV.
And the Grand Jury for the District of Maryland
charges:
That on or about the 6th day of October, 1986, in
the State and District of Maryland,
LESTER V. JONES
27a
a resident of Hydes, Maryland, did willfully and knowingly
make and subscribe an amended joint United States
Individual Income Tax Return, Form 1040, for the
calendar year 1984, which was verified by a written
declaration that it was made under the penalties of perjury
and was filed with the Internal Revenue Service Center at
Philadelphia, Pennsylvania, the said LESTER V. JONES
well knowing that the 1984 Amended United States
Individual Income Tax return was not true and correct as
to every material matter in that the said LESTER V.
JONES reported on Line la of Schedule C that his gross
receipts for 1984 generated from his business and
profession as an attorney were $422,907.27, whereas the
said LESTER V. JONES there knew and believed that he
had received additional gross receipts which should have
been included in the figure on Line la of Schedule C of the
1984 amended joint United States Individual Income Tax
Return.
26 U.S.C. §7206(1)
18 U.S.C. §2
Breckinridge L. Willcox
United States Attorney
A TRUE BILL:
Foreperson
3/21/91
Dated
28a
[8. Excerpt of charging conference at first trial before
Judge Garbis (July 15, 1991) (Tr. at 973)]
THE COURT: .... Mr. Sachs. You don’t have
to argue it now. 1 want you to know this is a dilemma that
I would like to see siruightened out, especially in a case
MR. SACHS: We are grateful for the Court
addressing it in advance. I can tell you that we of course -
- as the Court may have seen, we request notwithstanding
the Fourth Circuit’s ruling, we request an instruction, the
classic one about the most important affairs, et cetera. We
recognize the Court is bound, it cannot give it. The
Supreme Court however has never addressed it.
We believe that --
THE COURT: I will go further, Mr. Sachs. I
think that you are right. I think that -- I am not suggesting
that this case should ever get up to appeal. But if it did, I
would hope that that would be reversible error not to give
it.
MR. SACHS: In any case, Your Honor, we take
that view and recognize your hands are tied. We
nonetheless request it.
29a
[9. Excerpt of petitioner’s counsel’s closing argument
at first trial before Judge Garbis (July 22, 1991)
(Tr. at 1296)]
MR. SACHS: .... Beyond a reasonable doubt,
ladies and gentlemen, doesn’t mean beyond any doubt. It
doesn’t mean that the government has to prove its case to a
mathematical certainty. Very few things can be done that
precise.
But it does mean that they have to remove any
doubt that’s reasonable, any concern of the kind that would
cause you to hesitate in the most important of your own
personal or family or business or job situations.
[10. Excerpt of petitioner’s counsel’s opening statement
at second trial before Judge Maletz (April 2, 1992)
(Tr. at 45-46)]
MR. SACHS: .... I mention this presumption of
Les Jones’ innocence and the need for the Government to
prove the case beyond a reasonable doubt, as Judge Maletz
reminded you yesterday, this presumption of innocence is
Les Jones’ and it remains with him throughout the entire
case, until the Government has removed it, and this
business of reasonable doubt is not just a matter of whether
the scales tip a little bit one way or the other. It is not in
this business, in the criminal business, a tie doesn’t go to
the runner. They got to throw us oui by a mile. That is
what proof beyond a reasonable doubt means.
3la
Sige
[11. Petitioner’s requested jury instruction on reasonable
doubt at second trial before Judge Maletz (April 9,
1992)]
IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF MARYLAND
)
UNITED STATES OF AMERICA )
Plaintiff,
LESTER V. JONES
Defendant
DEFENDANT’S REQUESTED INSTRUCTIONS
TO THE JURY
Defendant Lester V. Jones hereby requests the
Court instruct the jury in the above-captioned case in
accordance with the proposed instructions attached hereto.
Respectfully submitted,
/s/ Stephen H. Sachs
Stephen H. Sachs
WILMER, CUTLER & PICKERING
2445 M Sireet, N.W.
32a
Washington, D.C. 20037-1420
(202) 663-6000
Counsel for Defendant
Lester V. Jones
Dated: April 9, 1992
DEFENDANT'S REQUESTED INSTRUCTION NO. 2
Reasonable Doubt'
I have said that the government must prove the
defendant guilty beyond a reasonable doubt. The question
naturally is what is a reasonable doubt? The words almost
define themselves. It is a doubt based upon reason and
common sense. It is a doubt that a reasonable person has
after carefully weighing all of the evidence. It is a doubt
which would cause a reasonable person to hesitate to act in
a matter of importance in his or her personal life. Proof
beyond a reasonable doubt must, therefore, be proof of
such a convincing character that a reasonable person would
not hesitate to rely and act upon it in the most important of
his own affairs. A reasonable doubt is not a caprice or
whim; it is not a speculation or suspicion. It is not an
' The defendant recognizes that this instruction is foreclosed by
Fourth Circuit law, United States v. Ricks, 882 F.2d 885, 894 (4th
Cir. 1989), but notes that the fairness of the Fourth Circuit’s restriction
on this instruction has not been ruled upon by the United States
Supreme Court.
33a
— i
excuse to avoid the performance of an unpleasant duty.
And it is not sympathy.
In a criminal case, the burden is at all times upon
the government to prove guilt beyond a reasonable doubt.
The law does not require that the government prove guilt
beyond all possible doubt; proof beyond a reasonable doubt
is sufficient to convict. This burden never shifts to the
defendant, which means that it is always the government’s
burden to prove each of the elements of the crimes charged
beyond a reasonable doubt.
If, after fair and impartial consideration of all of the
evidence you have a reasonable doubt, it is your duty to
acquit the defendant. On the other hand, if after fair and
impartial consideration of all the evidence you are satisfied
of the defendant’s guilt beyond a reasonable doubt, you
should vote to convict.
Modern Federal Jury Instructions § 4-2
34a
[12. Excerpt of charging conference at second trial
before Judge Maletz (April 16, 1992) (Tr. at 1399-
1405)]
MR. SACHS: Your Honor, I can’t identify it on
the first ten pages, except I think it is probably appropriate
to raise it here. We specifically request that the Court give
the reasonable doubt instruction requested by us as
instruction number two, but as we point out in our
footnote, we recognize the fact that the Fourth Circuit has
forbidden you to do that.
THE COURT: You mean define reasonable doubt?
MR. SACHS: Yes, sir. We have asked for that.
We know you don’t have the authority to do it, I
understand that.
THE COURT: Right.
MR. SACHS: But some day, I know it is not in
this case, but some day, a higher court than the Fourth
Circuit may have to look at that, and so I simply want to
preserve the point that we requested, but we recognize you
can’t give it. It is our requested instruction number two.
Our reasonable doubt request.
THE COURT: Incidentally, I am well aware of the
fact, in closing argument you may not, according to the
teaching of the Fourth Circuit, define reasonable doubt of
the defendant for the jury. I know that is a problem.
35a
MR. SACHS: Your Honor, in the last trial, I think
the parties agreed, although I am not positive of this. I
know I said without objection that -- I used I believe the
boilerplate language, that, you know, this means doubt
about the most important affairs --
THE COURT: In your life and so on.
MR. EVANS: I don’t think you said that, Steve.
MR. SACHS: I also said there was a
colloquialism, I said they have to throw us out by a mile.
The tie doesn’t go to the runner. Judge Garbis permitted
that, I believe, I know I did, and the Government I think
did not object to it.
THE COURT: Object to what?
MR. SACHS: Well, the Government I believe, the
Government will have to speak for itself. I know I said
that reasonable doubt means that it can’t be a close call. A
tie as in baseball, a tie doesn’t go to the runner, they have
to throw us out by a mile. I recognize it is not the perfect
metaphor, but the Government did not object to that.
Judge Garbis expressly, in a conference like this,
permitted me to do it, I thought I also said, but I could be
wrong, the usual boilerplate. But in any case, Your
Honor, I request that I be permitted, even though I know
the Court can’t give the instruction, that I be permitted to
give what in most courts in this country is given weight,
Judge, is s [sic] definition of reasonable doubt.
eee ee ee ~ ee
THE COURT: Of course, except the Fourth
Circuit.
MR. SACHS: Except the Fourth Circuit, but I
repeat most courts in this country who have a sounder view
of this matter than the eccentric Fourth Circuit.
THE COURT: I am not so sure it is an eccentric
Fourth Circuit. The First Circuit has taken the position
that the term reasonable doubt defines itself and it is not
necessary to elaborate on that. There is a decision on that.
Now, what the District Courts now do, I don’t
know, but I do know what the First Circuit has said, but
we are in the Fourth Circuit in any event.
Mr. Evans, what is your position?
MR. EVANS: Well, we feel obliged to follow
what the Fourth Circuit says. I don’t think that we can
sort of concur, or I certainly would object to Mr. Sachs
arguing from the old boilerplate definitions that used to be
given, you know, most important decisions in your life,
you know, I certainly object to that.
If he is going to say -- if Steve is going to say, a tie
doesn’t go to the runner, something like that, I mean, we
are not guing to stand up and object in the middle of this
closing argument.
THE COURT: Let’s see if we can get this matter
squared away right now. First, there is not even a request
of the Court by Mr. Sachs to argue that he be allowed to
37a
argue before the jury as to what the old, shall we say
hackneyed meaning of reasonable doubt is.
MR. SACHS: I am making that request.
THE COURT: You mean about the most important
thing in your life?
MR. SACHS: I want to tell the jury that.
THE COURT: You want to argue that?
MR. SACHS: I am asking the Court’s permission.
If the Court forbids it obviously, I won’t do it. I don’t
think there is anything in the four or five or six cases in
the Fourth Circuit on the subject of the Court, I don’t think
there is anything that forbids a defendant from arguing that
to the jury. I think you are free to permit me to do it, and
I ask that you --
THE COURT: I really don’t think so. In any
event, I will sustain that objection, and I will not permit
argument based on a definition of reasonable doubt,
because this Court, the Fourth Circuit, when I say this
Court has stated again and again, we do not want
reasonable doubt defined, and I believe, I am not positive
of this, that one or two decisions by the Fourth Circuit to
the effect that where the defendant’s counsel wanted to
argue precisely the point that you want to argue, Mr.
Sachs, the Fourth, this Court would not permit it, and the
Fourth Circuit said the Court acted well within its
discretion. In other words, I feel constrained.
38a
MR. SACHS: I certainly accept the Court’s ruling
and disagree with it, and would like my exception noted.
That moves us to the colloquialism I was permitted to do
the last time, which is the baseball metaphor, which I
feel --
THE COURT: What is your position on that?
MR. EVANS: Well, I don’t really like it, because
it is simply another way of defining reasonable doubt, and
so it is kind of doing through the back door what can’t be
done through the front door. If that is the metaphor that
Mr. Sachs is going to use -- I mean, we don’t like to
object during closing argument.
THE COURT: We are not talking about objecting
at the course of the closing argument. We are talking
about now.
MR. EVANS: All right. Well, I think we have to
oppose it, Your Honor. I think the law constrains us to
oppose it for the same reasons we opposed the other.
MR. SACHS: May I remind the Court, I had said
precisely that in my opening statement without objection,
in this case without objection.
THE COURT: I am going to put it this way. If
you said it in the opening statement without objection, you
can use precisely the same words for your closing. I think
otherwise we would have an incongruous result, I think,
and I want the objection to be noted to that extent.
39a
In other words, your position, I can understand it,
getting around the Court’s ruling from the back door. Not
quite.
MR. EVANS: Not quite, but sort of.
THE COURT: Open the door a little bit.
MR. SACHS: Your Honor, I just want to point out
in this connection, a year ago I tried a criminal case before
Judge Nickerson, and the issue arose as to whether the
Court had -- what the Court should or would and should do
if the jury asked for a definition. And that led to the next
issue of whether counsel can tell the jury that it has the
right to ask for a definition.
Let me quickly say, I have no intention -- I will not
do such a thing, but the variance on the issue --
THE COURT: Suppose the jury should ask, we
will cross that bridge when we get to it.
MR. SACHS: I understand, and I will certainly not
encourage them to ask.
THE COURT: I don’t know how Judge Nickerson
would feel today, it kind of escapes me now, about seven
defendants.
MR. SACHS: A drug case.
MR. EVANS: A drug case.
THE COURT: As I said, I was directing you
gentlemen to my first ten pages, which in my view
constitute the boilerplate.
Is there anything further?
MR. SACHS: Not on the first ten pages, Your
Honor.
THE COURT: I think you have indicated you have
no objection.
MR. EVANS: That is correct.
4la
[13. Excerpt of petitioner’s counsel’s closing argument
at second trial before Judge Maletz (April 20, 1992)
(Tr. at 1516-17)]
MR. SACHS: .... Ladies and gentlemen, in the
deadly serious business of a criminal case, especially a
criminal tax case, there needs to be something niore than
numbers, even big numbers. There has to be an intent to
cheat. And you can’t brand a man a felon, you can’t put
the mark of Cain on his brow, based on guessing or
speculation or conjecture. And beyond a reasonable doubt
means that it is it is [sic] close, if it is anywhere near
close, the Government hasn’t made its case. They have to
throw us out by a mile, to use a baseball metaphor.
[14. Excerpt of proceedings at second trial before Judge
Maletz (jury verdict) (April 22, 1992) (Tr. at
1618-22)]
THE CLERK: We are taking a verdict in criminal
number MJG 90-0405, USA versus less [sic] Lester V.
Jones.
Members of the jury, please answer to your names
as I call them.
(Roll call.)
THE CLERK: Members of the jury have you
agreed upon your verdict?
THE JURY: Yes.
THE CLERK: Who shall say for you?
THE FOREMAN: I shall.
THE COURT: Would you please stand, sir.
THE CLERK: Has verdict sheet which was
submitted to the jury been answered?
THE FOREMAN: Yes, it has.
THE CLERK: Is the form signed and dated by
you?
THE FOREMAN: Yes, it has been.
43a
THE CLERK: Would you answer the questions as
I read them.
Verdict form, count one, question one, how do you
find the defendant, Lester V. Jones, as to count one of the
superseding indictment?
THE FOREMAN: Guilty.
THE CLERK: Count two, question two, how do
you find the defendant, Lester V. Jones, as to count two of
the superseding indictment?
THE FOREMAN: Guilty.
THE CLERK: Count three, question three, how do
you find the defendant, Lester V. Jones, as to count three
of the superseding indictment?
THE FOREMAN: Not guilty.
THE CLERK: Count four, question four, how to
[sic] you find the defendant, Lester V. Jones, as to count
four of the superseding indictment?
THE FOREMAN: Not guilty.
THE COURT: Please poll the jury.
THE CLERK: Mr. Foreman, you have announced
the verdict of the jury, is that your verdict also?
JUROR NUMBER 1: Yes, it is.
THE CLERK: Juror number 2, you have heard the
verdict as yours?
JUROR NUMBER 2: Yes, it is.
THE CLERK: Juror number 3, you have heard the
verdict as yours?
JUROR NUMBER 3: Yes, it is.
THE CLERK: Juror number 4, you have heard the
verdict as yours?
JUROR NUMBER 4: Yes.
THE CLERK: Juror number 5, you have heard the
verdict as yours?
JUROR NUMBER 5: Yes. It is.
THE CLERK: Juror number 6, you have heard the
verdict as yours?
JUROR NUMBER 6: Yes, it is.
THE CLERK: Juror number 7, you have heard the
verdict announced by your Foreman as to the defendant
and as to each of the counts in which he is charged, is that
your verdict?
JUROR NUMBER 7: Yes, it is.
THE CLERK: Number 8, you have heard the
verdict as yours?
JUROR NUMBER 8: Yes, it is.
THE CLERK: Number 9, you have heard the
verdict as yours?
JUROR NUMBER 9: Yes.
THE CLERK: Juror number 10, you have heard
the verdict as yours?
JUROR NUMBER 10: Yes.
THE CLERK: Juror number 11, you hav~ heard
the verdict as yours?
JUROR NUMBER 11: Yes.
THE CLERK: Juror number 12, you have heard
the verdict as yours, is that your verdict?
JUROR NUMBER 12: Yes, it is.
THE CLERK: Members of the jury, harken to
your verdict as the Court has recorded it. The verdict and
answers thereto having been read, you and each of you
have answered them as read by your foreman and so you
all say?
THE JURY: Yes.
THE CLERK: Verdict recorded.
THE COURT: Ladies and gentlemen of the jury, I
know that you have given this case your most earnest
46a
attention during the course of trial and during the course of
your deliberations. It has been a privilege to have worked
with you. I know that you have given consideration to all
the contentions of the parties, the most earnest
consideration to all the parties.
At this juncture, i want to excuse you with the
thanks of the Court. The jury will now be excused.
(The jury is excused from the courtroom.)
47a
[15. Excerpts from manuscript of Jon O. Newman,
Beyond “Reasonable Doubt," 68 N.Y.U. L. REV.
____ (1994) (forthcoming) (manuscript at 1-4, 8, 19-
20)]
Beyond "Reasonable Doubt"
by Jon O. Newman‘
It is a great honor for me to participate in the James
Madison Lecture series. This series has a special
significance for me that I believe is shared by only two of
the distinguished men and women who have preceded me
to this podium. This series was endowed by Louis
Schweitzer, and it was my distinct privilege to know that
remarkable individual. We met in 1970 when I was asked
by the Ford Foundation to prepare an evaluation of the
Vera Institute of Criminal Justice, the pioneering research
and action agency that Mr. Schweitzer initially funded (and
named in memory of his wife). The interview left me with
a vivid impression of his commitment to an enlightened
system of criminal justice. So it is a special privilege for
me to participate in the lecture series that he initially made
possible.
The James Madison Lectures were inaugurated “to
enhance the appreciation of civil liberty and strengthen the
“ Judge Newman is the Chief Judge of the United States Court of
Appeals for the Second Circuit. This lecture was delivered as the
James Madison Lecture et New York University Law School on
November 9, 1993.
48a
national purpose." Any leciure named for or the principal
architect of the Bill of Rights could to
goal. I hope I do not stray outside the lofty objective of
on a right that is not
mentioned in Madison’s handiwork, and was not
formal recognition as comprehended within the general
language of the Bill of Rights untii 1970,' though assumed
by the Supreme Court to be a requirement, at least in the
federal courts, as early as 1881.2 My focus is the implicit
component of the Due Process Clause that guarantees every
person the right not to be convicted of a crime unless the
evidence establishes guilt beyond a reasonable doubt.
My thesis may be stated quite simply. I believe
that the constitutional jurisprudence of this Nation has
accepted the “reasonable doubt" standard as a verbal
formulation to be conveyed to juries in jury charges, but
has failed to take the standard seriously as a rule of law
against which the validity of convictions is to be judged.
The consequences of this deficiency are, in my view, two-
fold: We are convicting some people who are not guilty
beyond a reasonable doubt, a few of whom may in fact be
innocent, and at the same time, quite paradoxically, we are
acquitting some people who could be proven to be guilty
beyond a reasonable doubt, most of whom are in fact
' See In_re Winship, 397 U.S. 358, 364 (1970) (“[TJhe Due
Process Clause protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to constitute
the crime with which he is charged.").
* See Mills v. United States, 103 U.S. 304, 312 (1881) ("The
evidence upon which a jury is jusiified in returning a verdict of guilty
must be sufficient to produce a conviction of guilt, to the exclusion of
all reasonable doubt.”).
49a
guilty. Thus the proposition I wish to discuss is that the
time has come for American courts, especially federal
courts, to move beyond “reasonable doubt" as merely an
incantation, to give renewed consideration to what the
standard means and how it should be applied as a rule of
law, toward the end that the standard serves as a more
precise divider of the guilty from the innocent.
I say “more precise" because all must recognize that
fact-finders are fallible and that any system of adjudicating
guilt will inevitably run some risk of both convicting the
innocent and acquitting the guilty. Recognition of the
inevitability of both types of mistakes usually leads us to
say that it is better to acquit some number of guilty persons
than to convict one innocent person.* What we would not
readily agree on is the appropriate ratio of guilty persons
acquitted to innocent persons convicted. The cases: bave
frequently mentioned a ratio of ten to one,‘ though ratios
of twenty to one, and even ninety-nine to one have been
mentioned in earlier literature.°
3 “[I}t is far worse to convict an innocent man than to let a guilty
man go free.“ In re Winship, 397 U.S. 358, 372 (Harlan, J.,
concurring). .
* See Furman v. Georgia, 408 U.S. 238, 367 n. 158 (Marshall,
J., concurring (quoting William O. Douglas, Foreword in Jerome
Frank and Barbara Frank, Not Guilty 11-12 (1957)); Goetz v. Crosson,
967 F.2d 29, 39 (2d Cir. 1992) (Newman, J., concurring); Bunnell v.
Sullivan, 947 F.2d 341, 351 (9th Cir. 1991) (in banc) (Kozinski, J.,
concurring); United States v. Greer, 538 F.2d 437, 441 (D.C. Cir.
1976); 4 William Blackstone, Commentaries ch. 27, p. 358.
* See Sir John Fortescue, De Laudibus Legum Angliae, ch. 27, p.
65 (originally written 1471, republished in Dr. Chrimes ed.,
Cambridge Univ. Press 1949) (“I should, indeed, prefer for twenty
50a
Whatever ratio we find acceptable, one of the major
variables in achieving that ratio is the degree of certainty
we impose on fact-finders. If you would tolerate as many
as 100 guilty persons going free in preference to convicting
one innocent person, then you will insist that no one be
convicted unless the fact-finder is sure of guilt to a degree
approaching absolute certainty. If your ratio is ten to one,
then you will likely impose a somewiiat less rigorous
standard upon the fact-finder, but still require a high
degree of certainty.
[manuscript at 1-4]
ies.)
A somewhat curious aspect of the “reasonable
doubt" standard is the reluctance of most courts to offer the
jury any explanation as to what the standard means.
Indeed, some federal courts have in recent years sternly
admonished trial judges not to attempt any amplification of
the standard whatsoever."* I find it rather unsettling that
guilty men to escape death through mercy, than one innocent to be
condemned unjustly."); Thomas Starkie, Evidence 756 (1724), quoted
in IX Wigmore on Evidence § 2497 at 409-10 (Chadbourn rev. 1991)
("The maxim of the law is that it is better that ninety-nine ...
offenders shall escape than that one innocent man be condemned.").
* See, ¢.g., United States v. Hall, 854 F.2d 1036 (7th Cir. 1988);
Murphy v. Holland, 776 F.2d 470, 478-79 (4th Cir. 1985), judgment
a using ———
-. Rev. 1716, 721 (1990).
Sla
i%
aa
we are using a formulation that we believe will become
less clear the more we explain it.’
[manuscript at 8]
Coa
Il. Moving Beyond “Reasonable Doubt"
My argument is that the time has come for
American courts to move beyond “reasonable doubt," to
take this standard seriously and apply it conscientiously as
a rule of law. By “moving beyond ’reasonable doubt’" I
do not mean discarding the “reasonable doubt" standard in
favor of some higher degree of certainty. I am entirely
content to stay with “reasonable doubt" as the standard to
which the jury must be persuaded of guilt. Nor do I mean
to challenge the doctrine that, on appeal from convictions,
appellate courts should view the evidence "in the light most
favorable to the prosecution." Rather, niy point is that
courts must do more than verbalize the “reasonable doubt"
'? See 1 Sand, supra [Leonard B. Sand et al., Modern Federal
Jury Instructions (1993)], { 4.01, at 4-12 (“[TJhe better practice is to
spend some moments with the jury discussing the government’s
standard of proof in order to clarify its meaning... ."). See also
Defining Reasonable Doubt, supra, n.16 [sic].
® See Jackson v. Virginia, 443 U.S. [307] at 319 [1979]. But see
sea SS oly eager Sion. Resaenaaie Demi
Criminal Decision Making Process 24 Amer. Crim. L. Rev. 910
(1987)] at 980 (arguing that reasonable doubt standard cannot properly
be infused into sufficiency review as long as all reasonable inferences
are construed in favor of the prosecution).
52a
standard in jury instructions; they must make that standard
an enforceable rule of law. There are several ways that
courts could move beyond the current approach to
reasonable doubt.
1. Clarifying the "reasonable doubt" jury
instruction. First, we could make the “reasonable doubt"
instruction clearer to jurors by focusing their attention
solely on the need to be sure of guilt to a high degree. A
model charge, prepared in 1987 by a subcommittee of the
Judicial Conference’s Committee on the Operation of the
Jury System, contains very useful language. Its key
sentence reads, "Proof beyond a reasonable doubt is proof
that leaves you firmly convinced of the defendant’s
guilt."*! Notably absent from the subcommittee’s model
charge is the misleading phrase about a doubt “based on
reason" and the ambiguous language about “hesitating on
important matters."** For reasons not clear to me, this
*! See Federal Judicial Center, Modern Federal Jury Instructions
Instruction 21 (1987).
® The complete instruction reads:
As I have said many times, the government has the burden of
proving a 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 necessary 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 that overcomes every possible doubt.
If, based on your consideration of the evidence, you are firmly
53a
authoritatively formulated model instruction has not been
widely adopted.
{manuscript at 19-20]
convinced that the defendant is guilty of the crime charged, you must
find him guilty. If om the other hand, you think there is a real
possibility that he is not guilty, you must give him the benefit of the
doubt and find him not guilty.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.