Petition for Writ of Certiorari — Ashton v. United States

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

MICHELLE ASHTON

Petitioner

V.

UNITED STATES OF AMERICA

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia

PETITION FOR WRIT OF CERTIORARI

STANLEY J. REED

(Counsel of Record)

THOMAS A. LERNER

LERCH, EARLY, &

BREWER, CHARTERED

3 Bethesda Metro Center

Suite 380

Bethesda, Maryland

20814-5367

(301)986-12300

1.

QUESTIONS PRESENTED

Upon conviction by a jury for a

multiple object conspiracy, where

the objects of the conspiracy bear

different levels of severity under

the Federal Sentencing Guidelines,

does the Guidelines' delegation to

the trial court of the determination

of the defendant's guilt as to the

object of the conspiracy carrying

the most severe sentence violate due

process and the defendant's

constitutional right to a jury

trial?

Does a jury instruction which

defines "reasonable doubt" as a

"doubt for which you can give a

reason" and as such a doubt as would

cause a juror to be "so undecided

that he cannot say he has an abiding

conviction of the defendant's guilt"

unconstitutionally elevate the

ii

degree of doubt required for

acquittal?

%

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........ i

TABLE OF CONTENTS ......2.e2e Aii

SABLE OF AUTHORITIES .....+e-. iv

Cs |

So

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS INVOLVED... 2

STATEMENT OF THE CASE ....... 3

REASONS FOR GRANTING THE PETITION . 14

A. This Court should resolve a split

among the Circuit Courts of Appeal

regarding sentencing practice for

multiple object conspiracies. .. 14

B. The instruction on reasonable

doubt impermissibly altered the

burden of proof imposed on the

ns «© 6 6 =» 0 6 «© «© 0 0 « 23

CONCLUS 5 ON e es ° a ° o a e o . . . . 2 5

iv

TABLE OF AUTHORITIES

STATUTES

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26 U.8.@. 8 740R «© « 2 @ © © 0 6 © & By SD

26 U.8.€. § F406 « « « 6 6 @& © © © @& By SG

28 0.8.6. § 2234 « s« « we © © * ee we © 8

G.8°58.@. § 184.2 « « %& © «© @ 6 ¢ o- Bee

U.8.8.G. § 181.2(@) . « « Sik, 19, 20-82

oS Pee we: Oe ee eee ee tae ae ee ee

0.8.8.0. §@ 2EA.k «© «& © & 6 & + 6 eC Ce Se

9.8.8.G. @ 274.3 «© «© © «© © © © © 6 «6B Se

6.8.0.0. 6 Sta ka ke eee

U.8.8.G. § 3DL.2 «© «© © ® © 0 © 6 8 By Se

¥.8.8.¢. §8 384.3 <«< « 2s 6 © + * & & 8 5 Be

U.S.S.G. § Appendix C, Amendment 75 » 10

CASES

Boyde v. California, 494 U.S. 370,

110 S. Ct. 1190, 108 L.Ed.2d 316

(1990) * 7 e . o e . e = e ° e . e 24, 25

Brown y.—United States, 299 F.2d 438 (D.C.

Gar. S0Gebs + & x toes « 34, Wes

Cage v. Louisiana, 498 U.S. 39

(1990) e * e ° . a + « > > . * « * 23-25

Estelle v. McGuire, --- U.S. --=-, 112

S.Ct. 475, 116 L.Ed.2d 385 (1991) .. .24

Glenn v. United States, 420 F.2d 1323,

1325-26 (D.C. Cir. 1969). . « « « « « 016

Griffin v. United States, ---U.S.---,

112 S. Ct. 466, 116 L.Ed.2d 371

(1991). e + . . = ia + e ec aa = * * se on san

Moore v. United States, 120 U.S.App.D.C.

203, 345 F.2d 97 (D.C. Cir. 1965) .. .23

Newman v. United States, 817 F.2d 635

(AGGn Gina E007). « « « » «D4, 36, 17, 22

Perez v. Irwin,

963 F.2d 499, 502 (2nd Cir. 1992) .. .24

Sullivan v. Louisiana, --- U.S. ---,

113 S.Ct. 2078 (June 1, 1993) . . .24, 25

United States v. Tham, 948 F.2d 1107,

1115 (Sth Gir. 1991)... ... + 039, 20

es ° ;

966 F.2d 936 (5th Cir. 1992)... .« 18-20

vi

CASES (cont'd)

United States v. Dennis,

786 F.2d 1029 (11th Cir. 1986). . .18, 22

United States v. Di Matteo,

169 F.2d 798, 801 (3rd Cir. 1948) .. .16

United States v. Harmas, 974 F.2d 1262,

S266 (2200 Cike 1992). «. « « «© © «6 27, 38

United_States v. Nolasco, 926 F.2d

869 (9th Cir. en banc 1991), cert,

denied, ---U.S.---, 112 S. Ct. 111

(1991). a e om e o o . . . a = . e e ° 25

United States v. Owens,

904 F.2d 411 (8th Cir. 1990). .14, 18, 21

United States v. Orozco-Prada, 732

F.2d 1076 (2nd Cir.) cert.

denied 469 7 845 (1984) . « o es 2 * sao

United States v. Peters, 617 F.2d

$03, 506 (7th Cir. 1980). . « « » «3%, 22

ate u ey,

525 F.2d 337 (4th Cir. 1975) cert.

denied, 423 U.S. 1087 (1976). .... .14

In re Winship, 397 U.S. 358 (1970). . .24

In The

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

MICHELLE ASHTON,

Petitioner,

Vv.

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

OPINIONS BELOW

The decision of the United States Court

of Appeals for the District of Columbia

Circuit is reported at 991 F.2d 819 (D.C.

Cir. 1993) reh. denied (June 16, 1993).'

' In these consolidated criminal cases

brought by the United States of America, the

defendants were Michelle Ashton, David M.

Dale, Martin Segal, Terence Sweeney and

Automated Data Management, Inc.

2

¢ No memorandum opinions of

App. 1a-70a.

the District Court relevant to the issues

presented herein have been reported.

JURISDICTION

The judgment of the Court of Appeals

was entered on April 6, 1993. Motions for

Rehearing or for Rehearing En Banc were

denied on June 16, 1993. App. 172a. On

July 14, 1993, the Court of Appeals

granted Petitioner's Motion for Stay of

the Mandate. App. 174a. The jurisdiction

of this Court is invoked under 28 U.S.C.

§ 1254(1).

ONS TIONA TA ORY AND

G OR OV

The Fifth and Sixth Amendments to the

Constitution of the United States, 18

U.S.C. § 371, 26 U.S.C. § 7201 and 26

U.S.C. § 7206, and U.S.S.G. § 1B1.2;

. "App.," refers to the separately

bound appendix to this petition for a writ of

certiorari.

Ow

3

§ 2F1.1; § 2T1.1; § 2T4.1 and § 3D1.2,

including relevant commentary, are set out

in the Appendix.

STATEMENT OF THE CASE

Petitioner Michelle Ashton ("Ashton")

is the majority shareholder of Automated

Data Management, Inc. ("ADM"), which she

founded in 1980. App. 4a. During the

relevant time frame of the indictment, ADM

provided computers, software, and related

training and maintenance to various

governmental agencies, pursuant to the

Small Business Administration's Section

8(a) minority set-aside program. App. 4a.

In early 1985 ADM was awarded a large

contract with the Department of Defense to

supply computers and related goods and

services to Army hkases in the United

States, Europe and Asia. App. 4a.

To service this contract, ADM opened

offices in South Korea and Germany, and

4

hired new vice presidents to manage each

office. App. 4a. These foreign offices

operated under the provisions of the

Status of Forces Agreements ("SOFA") which

restricted their ability to conduct

business with parties other than the

United States government. App. 5a.

David Bowers ("Bowers"), the Vice-

President in charge of ADM's Korean opera-

tions, determined that ADM should attempt

to take advantage of non-SOFA business

opportunities. App. 5a. After consulting

with David Dale ("Dale"), who had been

hired in late 1984 as ADM's Executive

Vice-President, Bowers formed a

corporation based in Guam and purchased a

number of "shell" Hong Kong corporations.

App. 5a. Ownership of those corporations

was transferred to Ashton, Dale and

Bowers. Id. Similar arrangements were

5

made by ADM officers and consultants in

Germany. App. 5a.

In 1990, Ashton, Dale, ADM, and several

ADM officers and employees were indicted

in the United States District Court for

the District of Columbia for a number of

offenses arising from transactions

involving ADM's foreign offices and the

3 Count One

related foreign corporations.

of the indictment alleged a multiple

object conspiracy to defraud the United

States by attempting to evade the payment

of personal and corporate taxes, in

violation of 26 U.S.C. §§ 7201 and 7206,

and by willfully making false statements

> Ashton was indicted on charges of

(Count One) conspiracy (18 U.S.C. § 371),

(Count Three) aiding and assisting

preparation of a false tax return (26 U.S.C.

§ 7206(2)), (Count Four) attempted tax

evasion (26 U.S.C. § 7201), (Count Five) wire

fraud (18 U.S.C. § 1343), and three counts of

violations of 18 U.S.C. § 1001 and 18 U.S.C.

§ 2 (Counts Six, Eight and Ten). App. 14a.

6

and concealing material facts from

governmental agencies in violation of 18

U.S.C. § 1001. App. 14a.

The tax evasion object of the

conspiracy count and the substantive tax

offenses centered on allegations that the

defendants had attempted to divert and

conceal taxable income by, among a number

of diverse means, utilizing purported

transactions between ADM and its related

overseas companies to create phony tax

deductions. App. 118a-123a.* The false

statement object of the conspiracy and the

substantive false statement offenses were

anchored by allegations that Ashton and

Dale had lied on certain forms they had

“ The government's principal witness

regarding the attempted tax evasion was

Bowers, who had resigned from ADM in August,

1987, after secretly tape recording

conversations with Ashton and Dale, and

looting ADM of hundreds of thousands of

dollars. App. 4a, 10a-lla.

. |

7

submitted to government agencies regarding

their affiliation with foreign business

interests. App. 127a-128a. Thus, the two

conspiratorial objects involved

identifiably distinct conduct.

After a lengthy jury trial, Ashton and

the co-defendants were convicted of all

counts. App. 15a. The Court gave the

jury a reasonable doubt instruction which

stated in pertinent part:

(r]easonable doubt, as that name

implies, is a doubt based on reason,

u ou_ca ive

a reason. It is such a doubt as

would cause a juror, after careful

and candid and impartial

consideration of all the evidence,

to be so undecided that he cannot

say he has an abiding conviction of

the defendant's guilt.

App. 57a. (Emphasis added).

As to the conspiracy count, the

District Court instructed the jury that

proof of one object of the conspiracy was

8

sufficient for a finding of guilt,? and

the jury returned a general verdict of

guilt on the conspiracy count. The jury

was not asked to nor did it make any

finding as to whether Ashton was guilty of

one or both objects of the conspiracy.

App. 59a.

Over the defendants' objections, the

District Court found that the Federal

Sentencing Guidelines ("the Guidelines")

applied to the conspiracy count®, and

> Court of Appeals Joint Appendix

("C.A. App.") 1666-78.

¢ The conspiracy count was a so-called

"straddle offense", i.e. the indictment

alleged conduct commencing before but

continuing after the implementation of the

Guidelines on November 1, 1987. The Circuit

Court upheld as not clearly erroneous the

District Court's determination that both

objects of the conspiracy continued after

November 1, 1987, triggering the application

of the Guidelines. App. 57a-60a.

a

9

sentenced Ashton to 37 months imprisonment

as to that count’. App. 16a.

Under U.S.S.G. § 2X1.1(a) the “base

offense level" for a conspiracy conviction

is determined by examining the "base

offense level" from the Guidelines for the

"object offense." In determining the base

offense level for a multiple object

conspiracy, the District Court was

required by U.S.S.G. § 1B1.2(d) to treat

the distinct objects of the conspiracy as

separate counts of conviction:

A conviction on a count charging a

conspiracy to commit more than one

offense shall be treated as if the

defendant had been convicted on a

separate count of conspiracy for

each offense that the defendant

conspired to commit.

’ Ashton was sentenced to 30 months on

the substantive offenses, all of which were

pre-Guidelines offenses, with those sentences

to run concurrently with the sentence imposed

on Count One. The Court below held that

Counts 3 and Count 4 merged for sentencing

purposes and remanded for resentencing on

those counts. App. 69a-70a.

10

Application Note 5 of the Commentary to

U.S.S.G. § 1B1.2(d) states, inter alia,

that:

Particular care must be taken in

applying subsection (d) because

there are cases in which the verdict

or plea does not establish which

offense(s) was the object of the

conspiracy. In such cases,

subsection (d) should only be

applied with respect to an object

offense alleged in the conspiracy

count if the court, were it sitting

as a trier of fact, would convict

the defendant of conspiring to

commit that object offense. ...

Both U.S.S.G. § 1B1.2(d) and

Application Note 5 were added to the

Guidelines effective November 1, 1989 to

establish a single standard for the

sentencing of defendants convicted of

multiple object conspiracies. U.S.S.G.

Appendix C, Amendment 75. Application

Note 5 was expressly added to "address

cases in which the jury's verdict does not

specify how many or which offenses were

the object of the conspiracy of which the

|

11

defendant was convicted." Id. (citations

omitted). A reasonable doubt standard is

to apply to the trial court's deter-

mination of guilt as to an "object

offense" since "a higher standard of proof

should govern the creation of what is in

effect a new count of conviction for the

purposes of Chapter Three, Part D.

(multiple counts)." Id. (Emphasis added.)

Despite the unambiguous language of

U.S.S.G. § 1B1.2(d) and the accompanying

Application Notes, the District Court

failed to make any factual findings -- let

alone a finding beyond a reasonable doubt

-- as to Ashton's guilt with respect to

the multiple objects set forth in the

conspiracy count. Nevertheless, the court

below held that the District Court "did

make the required determination" by merely

adopting the presentence report's

conclusory language that "...in this

12

conspiracy the defendants [Dale and

Ashton] attempted to evade both personal

and corporate taxes." App. 61a.

Having "found" Ashton "guilty" of the

judicially created offense of conspiracy

to evade taxes, the District Court

performed the requisite grouping of her

"two" conspiracy convictions pursuant to

U.S.S.G. § 3D1.2, and then applied

U.S.S.G. § 3D1.3(a), which mandates that

the offense level applicable to a

Group is the offense level. .. for

the most serious of the counts

comprising the Group, i.e., the

highest offense level of the counts

in the group." (Emphasis added).

The District Court then determined

pursuant to U.S.S.G. § 2T1.1 and § 2T4.1

that the base offense level for conspiracy

to evade or attempt to evade taxes, with a

tax loss between $1,000,000 and $2,000,000

13

was level 16,° or ten levels higher than

the base offense level for a conspiracy

with a false statement object.” As a

result, Ashton was subject to a

presumptive sentence far greater than that

applicable to a conspiracy with a false

statement object."

8 calculation of the "tax loss" was

also much in controversy below, because the

defendants had amended erroneous returns and

paid back taxes owed well before they were

indicted. App. 62a. However, the Circuit

Court held that the calculation of "loss"

included the amount the taxpayer evaded "or

attempted to evade", citing U.S.S.G. § 2T1.1.

id.

% The presentence report expressly

concluded that the government had suffered no

financial loss attributable to the false

statements, a circumstance which would raise

the base offense level for a false statement

offense or conpsiracy. U.S.S.G. § 2F1.1.

C.A.App. 2776 (under seal).

0 without adjustments or departures,

the Guidelines provide a presumptive sentence

of 21 to 27 months for a level 16 offense.

With adjustments found by the District Court,

Ashton's base offense level was increased to

level 21, carrying a presumptive sentence of

37-41 months. By contrast, the Guidelines

provide a presumptive sentence at 0-6 months

14

A. This Court sho so s

Beginning with Brown v. United States,

299 F.2d 438 (D.C. Cir. 1962) (opinion by

then Circuit Judge Burger), the Courts of

Appeals in four circuits Have held that

where there is a general jury verdict

finding guilt of conspiracy, any

uncertainty as to the object(s) of the

conspiracy found by the jury must be

resolved in favor of the defendant, even

where the defendant has also been

convicted of the substantive offenses

alleged as the objects. United States v.

Owens, 904 F.2d 411 (8th Cir. 1990);

Newman v. United States, 817 F.2d 635

(10th Cir. 1987); United States v.

Quicksey, 525 F.2d 337 (4th Cir. 1975),

for a level 6 false statement offense.

EE |

15

cert. denied, 423 U.S. 1087 (1976); United

States v. Orozco-Prada, 732 F.2d 1076 (2d

Cir.), cert. denied, 469 U.S. 845 (1984).

In each of those cases, the jury found

the defendant guilty either of a

conspiracy alleging violations of more

than one statute, or of a multiple object

conspiracy. The Courts of Appeal held in

each case that the defendant could only be

sentenced on the conspiracy conviction

based on that object or offense carrying

" The

the least onerous sentence.

implicit rationale for these holdings is

that absent a jury trial waiver the law

does not permit a trial court to sentence

a defendant based on speculation about the

jury's intentions, but only for an offense

= = Newman, the court held that the

ambiguity of the verdict tainted the guilty

finding such that it could not simply be

cured by resentencing, and remanded the case

for a new trial. 217 F.2d at 639.

16

for which a jury has in fact convicted the

defendant:

It goes without saying that that

sort of conjecture is an imper-

missible technique in a system of

jurisprudence entitling the

accused "to have his guilt found

by a jury directly and

specifically, and not by way of

possible inference".

Newman, 817 F.2d at 639, citing Glenn v.

United States, 420 F.2d 1323, 1325-26

(D.c. Cir. 1969) (quoting United States v.

Di Matteo, 169 F.2d 798, 801 (3rd Cir.

1948).

In conflict with these decisions, the

Seventh and Eleventh Circuits have upheld

sentencing on a multiple object conspiracy

count based upon the most serious

substantive offense alleged as an object

of the conspiracy if the defendant was

also separately convicted of that

substantive offense: "it is reasonable to

assume that the jury found the defendant

17

guilty of a conspiracy to commit all five

of the substantive offenses listed in

Count One." United States v. Peters, 617

F.2d 503, 506 (7th Cir. 1980); Accord,

United States v. Harmas, 974 F.2d 1262,

1268 (llth Cir. 1992).

Peters was strongly criticized in

Newman, 817 F.2d at 638-39. There, the

Tenth Circuit stated that "culpability for

conspiracy is not a necessary consequence

of a conviction on the predicate

offenses." Id, Newman flatly rejected

the notion that a "general conviction

entails a finding of guilt as to every

objective alleged", and noted that where

an indictment charges a conspiracy to

violate more than one statute, "the jury

may find the defendant guilty if it

believes the defendant conspired to

violate any of the cited statutes." Id.

(citations omitted.) Finally, disagreeing

18

with United States v., Dennis, 786 F.2d

1029 (llth Cir. 1986) cert. denied, 481

U.S. 1037 (1987), the Tenth Circuit held

that it was an improper invasion of the

province of the jury for an appellate

court to "weigh the evidence in the jury's

stead." 817 F.2d at 639.

The post-Guidelines cases which have

12

addressed the issue,“ are, like the pre-

Guidelines cases, in direct conflict.

See, United States v. Cooper, 966 F.2d 936

(Sth Cir. 1992), cert. denied, --- U.S.

---, 113 S.Ct. 481 (1992). Compare United

States v. Owens, 904 F.2d 411 (8th Cir.

1990).

In Cooper, the Fifth Circuit

recognized the rationale underlying Brown

and its progeny, but concluded that the

‘2 Harmas, although decided in 1992,

involved conduct which pre-dated the

Guidelines.

19

requirements of U.S.S.G. § 1Bl.2 were not

inconsistent with Brown, provided that the

Guidelines sentence actually imposed for

the most onerous object did not exceed the

maximum statutory term for the lesser

object of the conspiracy. Referring to

U.S.S.G. § 1B1.2(d), the Court found that

"more than sufficient evidence exists from

which the District Court, sitting as a

trier of fact, could have found that

Cooper conspired to violate..." the

statute carrying the more serious

sentence. 966 F.2d at 941."

3 United States v. Tham, 948 F.2d

1107, 1115 (9th Cir. 1991), cited by the

Court below, addressed the application of

§ 1B1.2(d) in the context of an indictment

charging the defendant under 18 U.S.C. § 371

"for two separate conspiracies with two

different objects." As with the court below,

Tham accepted without explanation or

elaboration ofthe procedures set forth in

U.S.S.G. § 1B1.2(da) for sentencing in

multiple object conspiracy cases.

20

The court below sub silentio abandoned

its own pre-Guidelines precedent in Brown

in favor of a myopic application of the

Guidelines.'* Neither Cooper nor the

court below recognized, let alone

addressed, the myriad constitutional

questions raised by the Guidelines'

"creation" of a "new count of conviction"

by operation of law. (U.S.S.G. § 1B1.2(d);

U.S.S.G Appendix C, Amendment 75). Nor

did either court question the concomitant

delegation to the trial court ("sitting as

a trier of fact") of the jury's

constitutionally required fact finding

function as to guilt.

Whereas Cooper disdained the impact on

Guidelines calculations which are

dependent upon the gravamen of the

% As authority the court cited only

U.S.S.G. § 1B1.2(d) and United States v.

Tham, supra.

21

conspiracy, Qwens turned precisely on that

issue. Owens held that where the jury

returned only a general verdict of guilt

in a multiple object conspiracy case, the

District Court erred in sentencing Owens

based on the conspiratorial object which

yielded the highest sentencing range under

the Guidelines. 904 F.2d at 415. Although

the court in Qwens did not specifically

address U.S.S.G. § 1B1.2, the only

rationale for Owens is the defendants’

fundamental right -- recognized in Brown

and its progeny -- to a jury determination

as to each offense which gives rise to the

defendant's actual sentence under the

Guidelines.”

'S Although it is conceded that a

special verdict was not required, Griffin v.

United States, --- U.S. --~, 112 S. Ct. 466,

116 L.Ed.2da 371 (1991), the ambiguity

surrounding the jury's general verdict could

have been eliminated by its use. A special

verdict may have resulted in discovery of the

jury's determination that Ashton was guilty

22

U.S.S.G. § 1B1.2(d) constitutes an

unconstitutional imputation of guilt by a

legal fiction created by operation of law,

rather than by a jury verdict based on

proof beyond a reasonable doubt. '°

of Count One solely on the basis of conduct

which occurred prior to the effective date of

the Guidelines, and/or solely on the basis of

the false statement object of the conspiracy.

See United States v. Dennis, 786 F.2d 1029

(11th Cir. 1986) (encouraging the government

to request the use of special verdicts to

remove the ambiguity inherent in a general

verdict in a multiple object or muitiple

offense conspiracy).

7 Although Peters and Newman were also

in conflict, each still hewed to the

requirement of a jury verdict as to the

offense for which sentence was imposed, with

Peters crediting the convictions on the

substantive counts as dispositive of the jury

findings on the conspiracy counts. By

contrast, sentencing pursuant to U.S.S.G.

§ 1B1.2(d) does not require, nor is it

dependent on the existence of convictions for

the substantive counts which are alleged as

the object(s) of the conspiracy. Under the

Guidelines, the harsher result is reached

even in the absence of convictions for the

substantive offenses, which is not a result

which would have been attained under Peters.

Only the Guidelines, as approved by Cooper

and the court below, omit the need for a jury

determination as to the substantive offenses.

23

Moreover, the Guidelines have not resolved

the conflict among the Circuits; to the

contrary, the conflict has been elevated

to one of constitutional dimension

necessitating this Court's intervention.

The District court's instruction on

"reasonable doubt" required the jurors to

have an articulable, explicable reason for

an acquittal.” Moreover, the requirement

in this instruction that the juror have an

"abiding conviction", like the requirement

of a "moral certainty" which was dis-

approved in Cage v. Louisiana, 498 U.S. 39

7 According to the court below, this

instruction has been approved in the local

and federal courts in the District of

Columbia since Moore v. United States, 120

U.S.App.D.C. 203, 345 F.2d 97 (D.C. Cir.

1965) and has been incorporated into the

uniform jury instruction for the District of

Columbia. App. 57a.

24

(1990), distracts the jurors from their

mission of achieving evidentiary

certainty, as required in Cage. See also,

erez v in, 963 F.2d 499, 502 (2nd

Cir. 1992). As such, this instruction,

viewed as a whole, creates a reasonable

likelihood that the jury applied the

instruction in a way that diminished the

burden of proof which the Constitution

imposes upon the government, and requires

reversal of Ashton's convictions. In re

Winship, 397 U.S. 358 (1970); Cage v.

Louisiana, 498 U.S. 39 (1990); Boyde v,

California, 494 U.S. 370, 110 S. Ct. 1190,

108 L.Ed.2d 316 (1990); Estelle v.

McGuire, --- U.S. ---, 112 S.Ct. 475, 116

L.Ed.2d 385 (1991); Sullivan v. Louisiana,

woe U.S, ---, 113 &.Ct. 2078 (une i,

1993).

The extent of confusion and diversity

of practice in state and federal courts

25

which surrounds the defining of reasonable

doubt, and whether a definitional

instruction is even required is well

summarized in United States v. Nolasco,

926 F.2d 869 (9th Cir. en banc 1991),

cert. denied, --- U.S. ---, 112 S. CG. 2d2

(1991). Cage and Boyde make compelling

the need for a clear "reasonable doubt"

instruction approved by this Court to

provide affirmative guidance to federal

and state courts; Sullivan v. Louisiana

makes the prompt resolution of this issue

vital.

CONCLUSION

The petition for a writ of certiorari

should be granted.

26

Respectfully submitted,

LERCH, EARLY & BREWER, CHTD.

Stanley J. Reed

(Counsel of Record)

Thomas A. Lerner

3 Bethesda Metro Center

Suite 380

Bethesda, Maryland 20814-5367

(301) 986-1300

Attorneys for Petitioner

Michelle Ashton

Filed: July 23, 1993

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