# Petition for Writ of Certiorari — Ashton v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 906

## Text

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

oe Se oe > >) Gem aee ee ae e e
18 U.S.C. § 1001 . 2. « © © © © © © © By ©
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1197%3A1. Public record. Not legal advice.