JULIAN M. SEIDEL, PETITIONER V. UNITED STATES OF AMERICA No. 90-6595 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-7) is not reported. JURISDICTION The judgment of the court of appeals was entered on September 25, 1990. The petition for a writ of certiorari was filed on December 21, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court erred in refusing to instruct the jury on the meaning of reasonable doubt. STATEMENT Following a jury trial in the United States District Court for the District of Maryland, petitioner was convicted on one count of conspiracy to commit mail and wire fraud, in violation of 18 U.S.C. 371; eight counts of mail fraud in violation of 18 U.S.C. 1341; nine counts of wire fraud, in violation of 18 U.S.C. 1343; and one count of tax evasion, in violation of 26 U.S.C. 7201. The district court granted petitioner's post-trial motion for a judgement of acquittal on the tax evasion count. Petitioner was sentenced to a total of 12 years' imprisonment. The court of appeals affirmed petitioner's convictions and reinstated petitioner's tax evasion conviction. Pet. App. 1-7; id. at 8-9. The evidence at trial showed that petitioner was the principal officer and stockholder in the First Maryland Savings and Loan during the 1970's and 1980's. During the 1980's, First Maryland loaned increasingly large amounts to developers for speculative commercial real estate ventures. When developers defaulted on their loans, First Maryland became insolvent. A federal investigation revealed that petitioner and Vice President James Porter had been involved in fraud, document destruction, "wash" loan transactions, kickbacks, and insider loans. In addition, petitioner failed to report a $300,000 kickback on his federal tax return. Pet. App. 3-5. During its final charge, the district court instructed the jury that petitioner was presumed to be innocent and that that presumption attended him throughout the trial. It also charged the jury that the burden rested with the government to establish each and every element of the defendant's guilt beyond a reasonable doubt. 23 Tr. 3375, 3380. The court reiterated the reasonable doubt standard during its instructions on the elements of each of the charged offenses. 23 Tr. 3382, 3383, 3384, 3385, 3388, 3389, 3390, 3391, 3392, 3393, 3395, 3396, 3398, 3400. The district court refused petitioner's proposed jury instruction that included an explanation of reasonable doubt. /1/ The court of appeals affirmed petitioner's convictions, and reinstated petitioner's tax evasion conviction. Pet. App. 7. It summarily rejected petitioner's contention that the district court erred in refusing to give petitioner's requested instruction that explained reasonable doubt to the jury. Id. at 7. ARGUMENT Petitioner contends (Pet. 4-12) that the district court erred in refusing to give his proposed jury instruction explaining the meaning of reasonable doubt. Due process requires a trial court to instruct the jury that the government must prove its case beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 320 n.14 (1979). See generally In re Winship, 397 U.S. 358 (1970). This Court has noted, however, that "(a)ttempts to explain the term 'reasonable doubt' do not usually result in making it any clearer to the minds of the jury." Holland v. United States, 348 U.S. 121, 140 (1954), quoting Miles v. United States, 103 U.S. 304, 312 (1880). See also United States v. Ivic, 700 F.2d 51, 69 (2d Cir. 1983); United States v. Pinkney, 551 F.2d 1241, 1244 (D.C. Cir. 1976) (describing difficulties in defining reasonable doubt). Accordingly, the overwhelming weight of recent authority holds that, as long as the trial court instructs the jury on the government's burden of proving the charges beyond a reasonable doubt, it is not required to explain reasonable doubt in its instructions. See, e.g., United States v. Nolasco, No. 88-1156 (9th Cir., February 15, 1991) (en banc); United States v. Ricks, 882 F.2d 885, 894 (4th Cir. 1989), cert. denied, 110 S. Ct. 846 (1990); United States v. Littlefield, 840 F.2d 143, 146-147 (1st Cir.), cert. denied, 488 U.S. 860 (1988); Thompson v. Lynbaugh, 821 F.2d 1054, 1060-1061 (5th Cir.), cert. denied, 483 U.S. 1035 (1987); Whiteside v. Parke, 705 F.2d 869, 870-873 (6th Cir.), cert. denied, 464 U.S. 843 (1983); United States v. Martin-Trigona, 684 F.2d 485, 493-494 (7th Cir. 1982). Indeed, two of these courts of appeals urge trial courts not to explain reasonable doubt in their instructions. See United States v. Ricks, 882 F.2d at 894; United States v. Martin-Trigona, 684 F.2d at 493-494. Petitioner points out (Pet. 7-8) that there are some old federal decisions that have reversed convictions because the trial court refused to instruct on the meaning of reasonable doubt. See Blatt v. United States, 60 F.2d 481 (3d Cir. 1932); Nanfito v. United States, 20 F.2d 376, 378 (8th Cir. 1927); Schencks v. United States, 2 F.2d 185 (D.C. Cir. 1924). /2/ Petitioner also cites (Pet. 6-7) two other federal court of appeals decisions stating in dicta that a trial court should instruct on the meaning of reasonable doubt on request. See United States v. Pepe, 501 F.2d 1142 (10th Cir. 1974); United States v. Friedman, 381 F.2d 155, 160 (8th Cir. 1967). Petitioner further points to six decisions from state courts. Pet. 7-8. Not one of these state decisions, however, rests its holding or conclusion regarding reasonable doubt explanations solely on federal law -- three rest on state law, /3/ one rests on state and federal law, /4/ and two do not make clear whether they rest on state or federal law. /5/ Despite the differing decisions on this issue, review is not warranted. The trial court's refusal to instruct on the meaning of reasonable doubt is consistent with the clear trend of authority in the federal courts. All of the recent federal decisions hold that a district court has no duty to explain reasonable doubt in its instructions. The federal decisions that have reversed convictions because, or in part because, the judge failed to elaborate on the meaning of reasonable doubt in his instructions -- Blatt, Nanfito, and Schencks -- were issued between 1924 and 1932. In light of the many intervening federal decisions that have upheld convictions even though reasonable doubt was not explained to the jury during the court's instructions, those courts could well reexamine their position should the issue arise again. Indeed, Schencks is now questionable in the District of Columbia Circuit in light of that Circuit's subsequent decision in Pinkney (551 F.2d at 1244) that emphasized the difficulties of explaining reasonable doubt. And none of the state court decisions relied on by petitioner rests explicitly and exclusively on federal law. /6/ Petitioner's attempted reliance (Pet. 8) on Cage v. Louisiana, 111 S. Ct. 328 (1990), is also misplaced. In Cage, this Court held only that the trial court's instructions improperly equated reasonable doubt with "grave uncertainty", "actual substantial doubt," and "moral certainty." Cage presented no issue concerning the trial court's duty to explain reasonable doubt in its instructions; it concerns, rather, the requirement that, if such a definition is given, the definition must be consistent with the standard of reasonable doubt. Additional considerations also counsel against review in this case. In evaluating the sufficiency of jury instructions, the entire charge as well as the record as a whole must be considered. See United States v. Park, 421 U.S. 658, 674-675 (1975); Boyd v. United States, 271 U.S. 104, 107 (1926). The mere failure to give an instruction that explains a point of law is less likely to be prejudicial than a misstatement of law. See Henderson v. Kibbe, 431 U.S. 145, 155 (1977). See also Kentucky v. Whorton, 441 U.S. 786, 789-790 (1979) (in holding that the failure to instruct on the presumption of innocence did not violate due process, Court determined that the entire content of the trial, including all of the instructions given in a case, the arguments of counsel, and the weight of the evidence, had to be considered to determine whether due process had been violated). In this case, as noted, the trial court clearly and repeatedly instructed the jury that it must find guilt beyond a reasonable doubt on each of the offenses. See pages 2-3, supra. Even if petitioner's premise were otherwise correct (which it is not), petitioner provides no basis for concluding, in the context of this case, that omission of an instruction elaborating on the meaning of reasonable doubt constitutes a violation of due process. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General THOMAS E. BOOTH Attorney MARCH 1991 /1/ Petitioner's proposed jury instruction #46 included the following statement: (W)hile the Government's burden of proof is a strict or heavy burden, it is not necessary that the defendant's guilt be proved beyond all possible doubt. It is only required that the Government's proof exclude any "reasonable doubt" concerning the defendant's guilt. A "reasonable doubt" is a real doubt, based upon reason and common sense after careful and impartial consideration of all the evidence in the case. Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs. If you are convinced that the accused has been proved guilty beyond a reasonable doubt, say so. If you are not convinced, say so. /2/ In two of these three decisions, the failure to explain the meaning of reasonable doubt was not the only basis of reversal. In Schenks, the court found reversible error on Fourth Amendment grounds, and then included the observation regarding the reasonable doubt explanation. 2 F.2d at 187. In Nanfito, the court cited three other bases for reversal in addition to the lack of a reasonable doubt explanation. 20 F.2d at 378-379. /3/ Davenport v. State, 519 P.2d 452, 456 (Alaska 1974); State v. Lansdowne, 287 Md. 232, 243, 412 A.2d 88, 93 (1980); People v. Giamanco, 67 A.2d 1008, 413 N.Y.S. 2d 746, 747 (1979). /4/ Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258, 262-263 (1974). /5/ See State v. Desrosiers, 559 A.2d 641, 645 (R.I. 1989); State v. Holm, 93 Idaho 904, 907, 478 P.2d 284, 288 (1970) (referring generally to defendant's claim based on "constitutional due process, equal protection of the laws, and * * * a fair jury trial"). /6/ We note that, in United States v. Nolasco, supra, the court referred to State v. McHenry, 88 Wash. 2d 211, 558 P.2d 188 (1977), a decision not cited by petitioner. In McHenry, the court faced a situation in which there was "a complete failure to instruct on the presumption of innocence" and a "failure to isolate and define the requirement of proof beyond a reasonable doubt." 88 Wash. 2d at 212; 558 P.2d at 189. It concluded, in part, that "(t)he failure of the (trial) court to state clearly to the jury the definition of reasonable doubt and the concomitant necessity for the state to prove each element of the crime by that standard is far more than a simple procedural error, it is a grievous constitutional failure." 88 Wash. 2d at 214; 558 P.2d at 190. In this case, as noted (pages 2-3, supra), the court repeatedly emphasized the necessity of proof beyond a reasonable doubt for the elements of each of the charged offenses.