United States v. Ashton

• Decision Date: 18 April 2013
• Docket Number: Criminal No. 90–27–02.
• Citation: 961 F.Supp.2d 7
• Parties: UNITED STATES of America v. Michelle ASHTON, Defendant.
• Court: U.S. District Court — District of Columbia

961 F.Supp.2d 7

UNITED STATES of America

v.Michelle ASHTON, Defendant.

Criminal No. 90–27–02.

United States District Court,

District of Columbia.

April 18, 2013.

Janice Kaye Myhand, U.S. Attorney's Office, Washington, DC, for Plaintiff.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

Before the Court is defendant Michelle Ashton's Motion [120] to Vacate Sentence pursuant to 28 U.S.C. § 2255. Defendant claims that her Sixth Amendment right to a jury trial was violated when the trial judge instructed the jury that the question of materiality was a matter for the court to determine. Defendant moves the Court to vacate her convictions and sentence. Upon consideration of the Motion [120], defendant's Memorandum of Points and Authorities in Support of Motion [139], the government's Opposition [146], the entire record herein, and the applicable law, defendant's Motion will be DENIED.

I. BACKGROUNDA. Defendant's Underlying Offenses¹

Defendant created the corporation Data Management, Inc. (“ADM”) in Washington, D.C., in the early 1980s. United States v. Dale, 991 F.2d 819, 826 (D.C.Cir.1993). ADM eventually obtained a contract to sell computers to the United States Army and thereafter expanded into Europe and Asia. Id. One of ADM's employees, David Bowers, left the company in 1987 after secretly taping telephone conversations between himself and defendant. Id. Bowers subsequently assisted a government investigation of ADM's operations that led to defendant's indictment and conviction. Id. Defendant's conviction was based on her fraudulent tax treatment of various financial transactions involving ADM's Asian and European operations and on certain alleged misrepresentations or nondisclosures on government forms completed by defendant and her co-defendant, David Dale. Id.

B. Procedural History

Defendant was indicted in 1990 on seven counts related to conspiracy, tax, and fraud offenses.² Presentence Investigation Report (“PSR”) 1c, ¶¶ 12, Sept. 28, 1990. Defendant was convicted on all counts after a jury trial. PSR ¶ 3. In 1991, the district court sentenced defendant to 37 months imprisonment for the conspiracy conviction and concurrent 30–month terms for each of the remaining convictions. Am. J. & Commitment Order 1–2, July 18, 1991. The D.C. Circuit affirmed all of defendant's convictions but remanded the case to the district court for resentencing on a merger of convictions issue.³Dale, 991 F.2d at 858–59. In response to the D.C. Circuit's holding, the district court vacated Count Three ⁴ and re-sentenced defendant to concurrent terms of six months for each of the remaining counts. Am. J. & Commitment Order (Resentencing), June 6, 1996.

Defendant filed a timely Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255 on June 27, 1997,⁵ claiming several constitutional violations. Def.'s M. 1, 4–6, ECF No. 120. The Court never acted on the Motion. In 2002, defendant filed a supplement to her Motion in which she dropped all claims except one: a violation of her Sixth Amendment right to a jury trial. Def.'s Mem. 1, ECF No. 139, Oct. 21, 2002. Defendant claims that she was denied a jury trial because the trial judge instructed the jury that the question of materiality was a question of law for the court to determine. The government opposes defendant's motion on the ground that the motion is procedurally barred. Gov.'s Opp'n 1, ECF No. 146.

II. LEGAL STANDARDA. 2255 Motion

A motion under 28 U.S.C. § 2255 allows federal prisoners to collaterally attack an otherwise final sentence if the sentence was (1) imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. § 2255(a). The petitioner bears the burden of proof under § 2255 and must demonstrate her right to relief by a preponderance of the evidence. United States v. Pollard, 602 F.Supp.2d 165, 168 (D.D.C.2009). Relief under § 2255 is an extraordinary remedy in light of society's legitimate interest in the finality of judgments. United States v. Zakas, 793 F.Supp.2d 77, 79–80 (D.D.C.2011). Thus, a collateral attack under § 2255 is neither a second chance at appeal nor is it a substitute for direct appeal; a defendant is therefore required to show “a good deal more than would be sufficient on a direct appeal” to gain collateral relief. United States v. Pollard, 959 F.2d 1011, 1020 (D.C.Cir.1992); United States v. Frady, 456 U.S. 152, 166, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (“To obtain collateral relief[,] a prisoner must clear a significantly higher hurdle than would exist on direct appeal.”). A district court may deny a § 2255 motion without a hearing when “the motion and files and records of the case conclusively show that the prisoner is entitled to no relief.” United States v. Morrison, 98 F.3d 619, 625 (D.C.Cir.1996).

B. Cause & Prejudice Requirement for Claims Not Raised on Direct Appeal

Generally, claims not raised on direct appeal may not be raised on collateral review. Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). The procedural-default rule is neither a statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to conserve judicial resources and to respect the law's important interest in the finality of judgments. Id. If a defendant failed to contemporaneously object to a claimed trial error or if a defendant failed to raise the claim on direct review, the claim may be raised on collateral review only if the defendant can first demonstrate either that the defendant is “actually innocent” or that there is sufficient “cause” excusing her double procedural default as well as “actual prejudice” resulting from the errors of which she complains. United States v. Frady, 456 U.S. 152, 167–68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); United States v. Pettigrew, 346 F.3d 1139, 1144 (D.C.Cir.2003) (citations omitted).

C. Sixth Amendment Right to a Jury Trial

The Sixth Amendment's right to a jury trial “gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged.” United States v. Gaudin, 515 U.S. 506, 511, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). However, in criminal cases, as in civil cases, the jury does not have the power to determine pure questions of law and a court is “permitted to instruct the jury on the law and insist that the jury follow his instructions.” See id. at 513, 115 S.Ct. 2310 (citing Sparf v. United States, 156 U.S. 51, 105–06, 15 S.Ct. 273, 39 L.Ed. 343 (1895)). Prior to 1995, the “unanimous verdict of the federal courts” was to consider “materiality” ⁶—even when it was an element of a charged crime—as a question of law for the court's determination rather than the jury's. United States v. Bridges, 717 F.2d 1444, 1448 (D.C.Cir.1983); see also United States v. Paxson, 861 F.2d 730 (D.C.Cir.1988) (rejecting a criminal defendant's Sixth Amendment challenge of a court's determination of materiality in his jury trial); Sinclair v. United States, 279 U.S. 263, 298, 49 S.Ct. 268, 73 L.Ed. 692 (1929) (“[T]he materiality of what is falsely sworn, when an element in the crime of perjury, is one for the court.”). However, in 1995, the Supreme Court disrupted that uniform practice in Gaudin by holding that the Sixth Amendment requires the issue of materiality to be determined by a jury when materiality is an element of the charged crime. Gaudin, 515 U.S. at 522–23, 115 S.Ct. 2310. The Court found that because materiality requires some findings of fact, materiality is not a pure question of law and neither tradition nor stare decisis justified the continued application of an unconstitutional practice. Id. at 51213, 51823.

Gaudin was decided on June 19, 1995—two years after the D.C. Circuit remanded defendant's appeal but before the district court resentenced defendant in 1996. See Gaudin, 515 U.S. at 506, 115 S.Ct. 2310;Dale, 991 F.2d at 859; Am. J. & Commitment Order (Resentencing), June 6, 1996. The Supreme Court has held that Gaudin applies retroactively when a defendant's case was “not yet final” at the time Gaudin was decided. Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). Because defendant was still awaiting resentencing when the Supreme Court decided Gaudin, defendant's case was “not yet final,” and Gaudin applies to defendant's case.

III. DISCUSSIONA. Preservation of Claim for Collateral Review

Defendant claims, as the basis for her § 2255 Motion, a violation of her Sixth Amendment right to a jury trial due to the trial court's determination that materiality was a question of law to be determined by the court rather than a finding of fact to be determined by the jury.⁷ Def.'s Mem. 1. However, the government claims that because defendant failed to preserve her claim at trial and on direct appeal, she must first establish the requisite “cause” and “prejudice” before the Court can properly entertain her Motion. Gov.'s Opp'n 5–6. Defendant argues that she properly preserved her claim at trial, claiming that “defendants did object during the conferenceon jury instructions” to the trial court's “proposed explicit instruction that materiality had been proven” on the identified counts. Def.'s Mem. 12–13 (citing 7/13/90 Tr. at 3878–79). However, the defense did not object to the court's decision to determine materiality as a matter of law, Def.'s Mem. 13, but rather to the court's wording of the proposed instruction for the sole purpose of preventing the defendant from being prejudiced in the minds of the jury:

Mr. Spaeder [Defense Counsel]: Assuming that Your Honor were to ... rule as a matter of law that the omissions charged in Counts 6 through 10 are material, it would be the defendants' position that in instructing the jury the language Your Honor should use is that the...