United States District Court, District of Columbia
For DAVID M. DALE, Defendant: Cynthia M. Monaco, LEAD ATTORNEY, ROPES & GRAY, Washington, DC; Roger Campbell Spaeder, LEAD ATTORNEY, ZUCKERMAN SPAEDER, LLP, Washington, DC; Samuel John Buffone, LEAD ATTORNEY, BUCKLEYSANDLER LLP, Washington, DC.
For MICHELLE ASHTON, Defendant: Nancy Luque, LEAD ATTORNEY, LUQUE MARINO LLP, Washington, DC; Peter Goldberger, LEAD ATTORNEY, PRO HAC VICE, LAW OFFICE OF PETER GOLDBERGER, Ardmore, PA.
For AUTOMATED DATA MANAGEMENT, INC., Defendant: Jacob A. Stein, LEAD ATTORNEY, STEIN, MITCHELL & MUSE, L.L.P., Washington, DC.
For UNITED STATES OF AMERICA, Plaintiff: Janice Traver, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Office of International Affairs, Criminal Division, Washington, DC; Mark Henry Dubester, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Criminal Division, Washington, DC; Sherri Lee Berthrong, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
Royce C. Lamberth, Chief United States District Judge.
Before the Court is defendant Michelle Ashton's Motion  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 , defendant's Memorandum of Points and Authorities in Support of Motion , the government's Opposition , the entire record herein, and the applicable law, defendant's Motion will be DENIED.
A. Defendant's Underlying Offenses
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, 301 U.S. App. D.C. 110 (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.  Presentence Investigation Report (" PSR" ) 1c, ¶ ¶ 1-2, 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.  Dale, 991 F.2d at 858-59. In response to the D.C. Circuit's holding, the district court vacated Count Three  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,  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 ...