Following a trial, Benjamin was convicted of one count of bank fraud and two counts relating to monetary transactions in violation of 18 U.S.C. §1957. Defense Counsel Alan D. Rose’s April 2, 1999, (Tr 4/12/99 pp. 3-13) request to the Court to conduct an appropriate inquiry on the issue of race in the federal criminal process was denied. Benjamin’s Motions for Judgment of Acquittal at the Close of the Government’s evidence were denied on April 15, 1999 and April 16, 1999, respectively. (Tr. 4/16/99 pp. 19-21) On 10/13/99 a Motion for New Trial was filed by Benjamin based on a post trial discovery that the prosecution had failed to disclose exculpatory evidence. The Motion for New trial was denied.

At trial, the jury heard testimony that Benjamin applied for and received a Massachusetts identification card in the name of Ralph Chapel (Tr. 4/13/99 pp. 32-37 ). On March 31, 1998, Benjamin used an identification document in the name of Ralph Chapel and $100.00 (as opposed to the $10,000 amount required for conviction under § 1957) to open a checking account at Fleet Bank Branch Kneeland Street, Boston (Tr. 4/13/99 p. 51 ). The name on the Fleet account was Ralph Chapel d/b/a Eastside Motorsports. The indictment in this case alleges that Benjamin "deposited into a fraudulently opened account at Fleet Bank checks he knew to be stolen and to contain forged endorsements..." The government offered the following evidence against Benjamin in support of this bank fraud charge:

The District Court denied a motion for a judgment of acquittal pursuant to Rule 29(a) of the Federal Rules of Criminal Procedure at the close of the Government’s case-in-chief, despite that no evidence had been adduced to show that the transactions alleged in counts 8 and 9 of the indictment had any effect on interstate or foreign commerce as required by 18 U.S.C. §1957. (Tr. 4/16/99 pg. 19-21). Sufficiency of the evidence to support a jury's verdict is a legal issue, which is reviewed de novo. Taking the evidence ­ both direct and circumstantial, together with the reasonable inferences to be drawn therefrom ­ in the light most favorable to the government, a reasonable jury could not find the defendant guilty beyond a reasonable doubt, because the interstate commerce requirement is both a substantive and jurisdictional element, and it must be proven to the jury beyond a reasonable doubt. See United States v. DiSanto, 86 F.3d 1238, 1246 (1st Cir. 1996); United States v. Pappadopoulos, 64 F.3d 522, 524 (9th Cir. 1995); Jackson v. Virginia, 443 U.S. 307, 319 (1979). Here, at the close of the government's case Benjamin moved for acquittal pursuant to Federal Rule of Criminal Procedure 29. He argued that the government had not met its burden of showing that the checks in Counts 8 and 9 and the institutions used had a substantial effect on interstate commerce in order to sustain a conviction under § 1957.

C. Standard of Review for Insufficiency of the Evidence

The evidence as a whole, together with all reasonable inferences therefrom, in a light most favorable to the government, failed in this case to prove the essential elements of the crime beyond a reasonable doubt. See United States v. Mangual-Corchado, 139 F.3d 34, 44 (1st Cir. 1998); United States v. Houlihan, 92 F.3d 1271, 1295 (1st Cir. 1996). Where "an equal or nearly equal theory of guilt and a theory of innocence is supported by the evidence" a conviction must be reversed. Blasini, 169 F.3d at 62 (alteration omitted). Here there was insufficient evidence on the interstate commerce issue, which required acquittal. United States v. Ramiro L. Colon-Munoz, No. 98-1684) (1^st Cir.) It is axiomatic that the government bears the burden of proving all elements of a crime beyond a reasonable doubt. Indeed, the Due Process Clause of the Fifth Amendment "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship 397 U.S. 358, 364 (1970).

IV. SUMMARY OF ARGUMENT

The fatal variance between pleading and proof and the erroneous, disjunctive, jury instructions in this trial denied Benjamin his right to a unanimous jury verdict guaranteed by Article III, cl. 2, and the Sixth Amendment of the Constitution, and his Fifth Amendment right to be "held to answer" only for a crime which he has been indicted by a Grand Jury. The district court misstated the interstate commerce issue, and mischarged the bank fraud count in such a substantial way as to violate due process. The jury in this case did not decide each element of Benjamin’s §1957 convictions, plus there was danger of a composite verdict and lack of unanimity on both the bank fraud schemes and §1957 counts. Support for this conclusion is in the Supreme Court's decision in United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310, 132 L.Ed.2d 444 (1995) which holds that an element of a crime requiring the application of the law to the facts must be decided by a jury. This appeal also presents arguments on the prosecution’s insufficient evidence, failure to prove an effect on interstate commerce, and specified unlawful activity; the government’s failure to provide exculpatory handwriting exemplars evidence; the unfair jury selection process of the District Court; and ineffective assistance of counsel.

1. The Government Did Not Prove That Benjamin Knowingly Engaged in a Monetary Transaction Involving Criminally Derived Property

The jury convicted Benjamin of violating 18 U.S.C. § 1957. That statute makes criminal conduct by one who

The government submitted evidence that Benjamin used an alias and wrong social security number to open a bank account with $100.00 at Fleet. Using wrong identification is not a monetary transaction. The knowledge element further requires that "the defendant know that the property in question is criminally derived..." United States v. Pettigrew, 77 F.3d 1500, 1511 (5th Cir. 1996). In support of the charge, the Government offered two cashier’s checks used by Benjamin to purchase a Lexus. The Government failed to prove that Benjamin had knowledge that the funds in question were criminally derived. Indeed, the following evidenced lack of knowledge: Benjamin used cashier’s checks with his own name, Benjamin purchased the car in his own name; and purchased the car himself, having direct contact with the dealership and bank. All of Benjamin’s actions demonstrate his lack of knowledge that the transactions were in criminally derived property. (Tr. 4/15/99 pg13-19).

C. The Government Offered No Evidence That the Transactions in Counts 8 and 9 Effected Interstate Commerce

One element of 18 U.S.C. § 1957 is that a defendant knowingly engage in a "monetary transaction." The term monetary transaction is defined as "the deposit, withdrawal, transfer, or exchange, in or affecting interstate commerce...." 18 U.S.C. § 1957(f)(1)(emphasis added). In order to convict under this section, the government must prove that the transaction in question affected interstate commerce. United States v. Grey, 56 F.3d 1219, 1225 (10th Cir. 1995).

The language in counts 8 and 9 of the Indictment charges Benjamin with using a Citizens Bank check and BankBoston check to purchase a Lexus automobile. (Tr. 4/15/99 pg. 13-19) The government offered no evidence whatsoever to prove that these transactions affected interstate commerce. (Tr. 4/14/99 pg. 38-49, 57-60) Indeed, when the government recognized that it failed in this respect, it argued to the jury that the Fleet Bank FDIC certificate could be used to prove the interstate commerce element. (Tr. 4/16/99 pg. 28) This cannot satisfy the interstate commerce requirement in §1957. Simply put, Fleet Bank’s FDIC certificate has nothing whatsoever to do with the transactions in Counts 8 and 9. There was no evidence that Fleet Bank was used in connection with the transactions in Counts 8 and 9. The plain language of §1957 requires that the transaction in question -- use of the two bank checks to purchase a car -- have an affect on interstate commerce. The government had representatives from the automobile dealership (Lexus of Watertown), Citizens Bank and BankBoston testify, but the government chose not to elicit testimony on the interstate commerce point. Therefore, Benjamin must be acquitted on Counts 8 and 9. See Pinckney, 85 F.3d at 8 (interstate commerce a substantive element of federal crime to be proven beyond a reasonable doubt). To conclude that the transactions affected interstate commerce under 18 U.S.C. § 1957 simply because a bank was involved in the transaction would, in effect, read § 1957(f)(1) out of the statute.

The Government’s only evidence as to the interstate commerce element was that Fleet Bank was federally insured. This proof is not enough to establish interstate commerce or a substantial effect on interstate commerce. United States v. Peay, 972 F.2d 71, 815 (4^th Cir. 1992); Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82, 87 L.Ed. 2d 122 (1942). Lopez, 115 S. Ct. at 1631 n.3. The government must not effect the delicate balance of federal state relations. To criminalize behavior that is local and has not been proven to substantially effect interstate commerce reaches too far. The Due Process Clause and Sixth Amendment both require the facts in a criminal case must be decided by the jury, based on proof beyond a reasonable doubt. An essential element of 18 U.S.C. §1957 is interstate commerce. The jury in criminal cases must be satisfied by "proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the defendant] is charged." In re Winship, 397 U.S. 358, 364 (1970).

The removal of any element of a criminal charge from the jury's consideration violates not only the Winship due process mandate, but also " 'invade[s] [the] fact-finding function' which in criminal cases the law assigns solely to the jury." Carella v. California, 491 U.S. 263, 268 (1989) (per curiam)(Scalia, J., concurring). The paucity of proof means there was insufficient evidence of an interstate commerce nexus to sustain Benjamin’s §1957 convictions.

The trial judge agreed to give the instruction proposed by the government. Benjamin’s counsel argued against this, another instruction was requested and denied. It was required here because the jury ‘s note demonstrated confusion. The counts in this case were complex, there was variance between the indictment and the proof at trial, and reason to believe the jury would have trouble deciding about the differing schemes and the element of interstate commerce. Nonetheless, the trial judge proceeded to give the government’s instruction. In conflict with the Supreme Court's decision in Gaudin, the jury instructions removed an element of the §1957 violation from the jury's consideration -- interference with interstate commerce. With respect to the jury question "Please clarify your definition of interstate. Does this mean that transactions take place in multiple states or only in Massachusetts?" The Court instructed as follows:

The judge’s disjunctive instruction made it impossible to attain on which set of facts the jury was unanimous, and misstated the interstate commerce element, thereby violating Benjamin’s right to have the jury determine his guilt as to every element of the crime charged. The challenged instruction relieved the government from proving to the jury that Benjamin’s transactions actually had at least a minimal effect on interstate commerce. The "affecting interstate or foreign commerce" requirement of §1957 is both jurisdictional and an essential element of the offense. United States v. Leslie, 103 F.3d 1093, 1101 (2d. Cir.), cert. denied, 117 S. Ct. 1713 (1997); United States v. Aramony, 88 F.3d at 1386. See Aramony, 88 F.3d at 1386; see also United States v. Spriggs, 102 F.3d 1245, 1260 (D.C. Cir. 1996) cert. denied, 66 U.S.L.W. 3256 (U.S. Oct. 6, 1997) (No. 96-9082). The instruction effectively dictated the jury's application of the law to the facts because, as prohibited by Gaudin, the instruction here removed the issue from the jury's consideration.
Benjamin objected to the instruction. Tr. 4/20/99. The court told the jury that if they believed the government's evidence, even on Benjamin’s opening an account at Fleet under an alias, they had to find the interstate commerce element satisfied for §1957. That instruction tied a legal result to the particular facts of the Benjamin’s case. The element of interstate commerce is a question of fact that must be determined by the jury. Benjamin was deprived by the jury instructions of his Constitutionally warranted benefit of having the jury evaluate the government's proof of every element of the crime. Jury instructions must be assessed as a whole. United States v. Voss, 82 F.3d 1521, 1529 (10th Cir.), cert. denied, 117 S. Ct. 226 (1996). The jury instructions as a whole both misled the jury, and removed the issue from the jury's determination.
The second prong of the instruction also states that interstate commerce is found if after the initial deposit of funds which opened the account the initial deposit of checks was made to an FDIC institution. Benjamin did not make the deposits and there was no evidence that he knew the nature of the stolen checks. It is not clear whether the initial deposit of checks in the instruction refers to the $100.00. If it does, that is an insufficient amount to convict under §1957. Significantly, the jury could have each arrived at separate factual conclusions with respect to the elements of the §1957 charge, and separate conclusions regarding the guilt of Benjamin, on different acts, but due to the disjunctive and confusing jury instruction on interstate commerce this lack of unanimity was masked, and the judge in instructing the jury to find interstate commerce as synonymous with the indictment, an indictment that the government admitted was faulty, committed error. The problem was repeated and compounded by the bank fraud instruction where unanimity on the scheme was instructed, but no special verdict revealed on which scheme, if any the jurors unanimously agreed.

Consideration of the instruction given to the jury reveals that the jury simply did not make an independent finding that the actions of Benjamin as charged in the § 1957 counts had effected interstate commerce. A finding that the defendant was guilty as charged in Count One of the indictment, as one component of the disjunctive jury instruction stated, is not an equivalent or identical finding. The jury was not presented with evidence that each alleged §1957 transaction involved over $10,000. and effected interstate commerce, and did not make a special verdict on which scheme alleged under Count One they allegedly unanimously agreed upon.(Tr. 4/16/99 82-85) A verdict of guilty must rest on an actual jury finding of guilty. See Sullivan v. Louisiana, 113 S. Ct. 2078, 2082; 508 U.S. 275 (1993). Speculation about the probable finding that the jury would have made in view of the evidence before it, had it been properly instructed does not satisfy this requirement. Id. The district court incorrectly instructed the jury on the statutory elements necessary for conviction under 18 U.S.C. § 1957. United States v. Fiel, 35 F.3d at 1005. The finding of at least a minimal effect on interstate commerce is an essential element that the government must prove beyond a reasonable doubt in order to convict a defendant of violating § 1957.

Courts of appeals have long been divided on the question of whether error resulting from the failure of the trial court to give proper instructions on the essential elements of an offense can be harmless. The Supreme Court case Sullivan v. Louisiana, although not involving precisely this issue, significantly affects its resolution. Sullivan, which involved an erroneous jury instruction concerning the meaning of reasonable doubt has spawned extensive discussion in the lower courts about whether and under what circumstances a jury instruction that omits entirely or improperly describes an essential element of an offense can be harmless. Sullivan and two of its predecessors, Carella v. California, 491 U.S. 263 (1989) and Rose v. Clark, 478 U.S. 570 (1986) frame the debate.

According to these cases, harmless error analysis applies only to authentic as opposed to purported jury verdicts. Sullivan mandates that a jury verdict following a jury instruction that omits an element of a crime is merely a purported verdict. As a consequence, these courts have found that such an erroneous instruction cannot be harmless error, and the judgment of conviction must be reversed, regardless of the strength of the evidence relevant to the omitted element. The only exception occurs when some other unquestioned aspect of the jury’s (purported) verdict indicates that the jury made findings from which it may be logically inferred that the element was satisfied. i.e. when a jury’s finding on an element as to which it has been correctly instructed a "functional equivalent" of a finding on the omitted element. Some courts have loosened the Sullivan strictures by finding that one portion of a jury’s verdict was the "functional equivalent" of another even though the latter is not necessarily implied by the former. Such a broad reading of the requirement of functional equivalence invites the danger that Sullivan proscribed, the replacement of the jury by the court as the finder of fact. The Sullivan reasoning applies with full force whenever the jury was deterred by an improper (or omitted) jury instruction from considering an element of the charged crime. Sullivan’s applicability in the plain error context was the subject of dispute among lower courts until the most recent Term when the Supreme Court ruled in Johnson v. United States 117 S. Ct. 1544 (1997) that plain error analysis applied to jury instruction errors just as it does to other errors. In Sullivan, the Supreme Court held that the failure by a trial court to properly instruct the jury on the meaning of reasonable doubt could not be harmless and thus mandated reversal. Justice Scalia’s opinion for the Court in Sullivan built upon his concurring opinion in Carella v. California. There, the Court held unconstitutional a jury instruction that imposed mandatory presumptions if the jury found certain facts. Here the Court in Benjamin’s case made just such an instruction. Justice Scalia discussed the standard at some length and his opinion presaged the central tenets of Sullivan. The problem with the conclusive presumption instruction, Justice Scalia wrote, was that it deprived the defendant of his right to a determination by a jury of his guilt or innocence, i.e., it deprived him of a verdict. Justice Scalia explained, that the problem would not be cured by an appellate court’s determination that the record evidence unmistakably established guilt, for that would represent a finding of fact by judges, not by a jury. Such an error could be harmless, Justice Scalia held, only if other findings of the jury were the functional equivalent of the omitted element.

The Sullivan reasoning is applicable in Benjamin’s case to the failure of the trial court properly to instruct the jury on an element of a crime. The First Circuit held that such a failure could not be harmless based on Sullivan. After referring to the portion of Sullivan set forth above, the court stated that the same reasoning applied in the case before it. United States v. DiRico, 78 F.3d 732, 736-37 (1st Cir. 1996). So, where a jury has not rendered a verdict that addresses every essential element of the charged offense, and therefore has not rendered a verdict on the crime charged, the question of whether the same verdict would have been rendered absent the constitutional error is meaningless.

E. THE FATAL VARIANCE BETWEEN PLEADING AND PROOF

The fatal variance between pleading and proof and the erroneous jury instructions in this case denied Benjamin his right to a unanimous jury verdict guaranteed by Article III, cl. 2, and the Sixth Amendment of the Constitution, and his Fifth Amendment right to be "held to answer" only for a crime which he has been indicted by a Grand Jury. See United States v. Mastelotto, 717 F.2d at 1250. Further prejudice resulted from the witness misidentification and "spillover of evidence" from DECOSTA to Benjamin. Here, the indictment is and was deficient because it failed to identify the correct individual in COUNT 1, and because in Counts 8 and 9 the checks which were listed as violating 18 U.S.C. §1957 and the banks listed on which the counts were based were never shown at trial to have involved interstate commerce.

The Government offered insufficient evidence to establish that Benjamin committed bank fraud substantially as charged in the Indictment, because there was no evidence that Benjamin deposited checks into the Ralph Chapel d/b/a East Side Motors Sports account at Fleet Bank. It was not clear, of which scheme, if any, the jury unanimously found Benjamin guilty. There was lack of an augmenting unanimity instruction or special verdict enabling the determination of which alleged scheme the jury found Benjamin guilty.

Thus, it appears that Benjamin’s indictment was constructively amended at trial. The purposes underlying the rule against amendments and constructive amendments include notice to the defendant of the charges he will face at trial, notice to the court so that it may determine if the alleged facts are sufficient in law to support a conviction, prevention of further prosecution for the same offense, and finally, of "paramount importance," the assurance that a group of citizens independent of prosecutors or law enforcement officials have reviewed the allegations and determined that the case is worthy of being presented to a jury for a determination of the defendant’s guilt or innocence. United States v. Radetsky, 535 F.2d 556, 562 (10th Cir. 1976).

1. Benjamin must Be Acquitted of the Bank Fraud Charge Because the Government Failed to Prove the Allegations in the Indictment

The jury convicted Benjamin of bank fraud in violation of 18 U.S.C. § 1344. Benjamin must be acquitted, however, because the government filed to prove the bank fraud charge substantially as charged in the Indictment Stirone v. United States, 361 U.S. 212 (1959); see also United States v. Santa-Manzano, 842 F.2d 1 (1st Cir. 1988) (Breyer, J). See also United States v. Mastelotto, 717 F.2d 1238, 1246-47 (9th Cir. 1983). Here we have a faulty indictment that was incorporated by reference into a jury instruction. Under the circumstances of this case, the proper remedy is acquittal. See, e.g., United States v. Camiel, 689 F.2d 31, 38 (3d Cir. 1982).

The evidence failed to establish that Benjamin deposited the checks; that Benjamin knew that the checks were stolen; and that Benjamin knew that the checks contained forged endorsements. No reasonable inference or set of inferences can bridge the gap between the facts alleged in the indictment and the Government’s proof at trial. The government did not prove the allegations in the indictment.

To establish bank fraud pursuant to 18 U.S.C. § 1344

The general verdict did not reflect which scheme the jury unanimously found Benjamin guilty of, thus requiring acquittal.

2. Benjamin Must Be Acquitted of the Bank Fraud Charge Because the Jury Was Not Sufficiently Instructed including on the Element of Materiality Neder v. United States

The Court seemed to realize that it erroneously instructed the jury on the bank fraud charge. (Tr. 4/16/99 pg. 85, Add .Ex. 6 ). The Supreme Court determined that materiality is an element of the fraud perpetrated by "a scheme or artifice" under 18 U.S.C. § 1344. See Neder v. United States, 119 S. Ct. 1827, 1839 (June 10, 1999). Not having had the benefit of Neder, the district court did not instruct the jury that in order to convict it had to find that the "scheme or artifice to defraud" involved material falsehoods. The newly-announced rule applies to this appeal. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (holding that "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the rule constitutes a 'clear break' with the past"). The district court's omission of the materiality element will be reviewed for plain error because Benjamin did not claim that materiality was an element before the district court. See Johnson v. United States, 520 U.S. 461, 465-66 (1997); see also United States v. Collins, 60 F.3d 4, 7 (1st Cir. 1995).

In light of Neder, there is no doubt that the court's instruction on bank fraud,

making only a minimal reference to materiality, compounded with the confusing scheme instructions, was error. In Johnson, the Supreme Court held that where the law at the time of trial is contrary to the law at the time of the appeal, "it is enough that an error be 'plain' at the time of appellate consideration." Id. at 468. The requirement under Rule 52(b) that the plain error "affect substantial rights" has been interpreted to mean that "the error must have been prejudicial: It must have affected the outcome of the district court proceedings." Olano, 507 U.S. at 734. This standard is substantially the same as the standard applied in a harmless error analysis under Rule 52(a), except that "[i]t is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice." Id. Arguments throughout this brief have demonstrated the prejudice to Benjamin of this and other errors.

F. THE PROSECUTION'S FAILURE TO DISCLOSE SPECIFIC EVIDENCE TO THE ACCUSED VIOLATED BRADY BECAUSE THE EVIDENCE WAS BOTH FAVORABLE AND MATERIAL. STRICKLER V. GREENE, 119 S. CT. 1936

After Benjamin’s trial it was discovered that the government failed to turn over exculpatory handwriting exemplars information to Benjamin, and, therefore, Benjamin’s conviction must be overturned. Benjamin’s Motion for New Trial based on these facts was denied. Handwriting exemplars were material to Benjamin’s defense. As referenced above, the prosecution and their witnesses alluded many times throughout the trial as to Benjamin’s signatures on incriminating documents. Had Benjamin known about the exculpatory handwriting evidence, this evidence could have been used to impeach the prosecution, which is doubtlessly "favorable," evidence United States v. Bagley, 473 U.S. 667, 676 (1985). Yet Benjamin’s New Trial Motion on this ground was denied. Review of the denial of new trial motions is generally for manifest abuse of discretion. See United States v. Montilla-Rivera (Montilla-Rivera II), 171 F.3d 37, 40 (1^st Cir. 1999). Here it is contended that the district court applied an incorrect legal standard, so the standard of review is de novo. See United States v. Huddleston, 194 F.3d 214, 218 (1st Cir. 1999). Cf. United States v. Natanel, 938 F.2d 302, 314 (1st Cir. 1991); cf. United States v. Montilla-Rivera (Montilla-Rivera I), 115 F.3d 1060, 1066-67 (1st Cir. 1997). Benjamin brought his motions for new trial under Brady v. Maryland, 373 U.S. 83 (1963), which requires the government to produce to defendants exculpatory and impeachment evidence that is in its custody, possession, and control, see Brady, 373 U.S. at 87; see also United States v. Bagley, 473 U.S. 667, 676 (1985); Huddleston, 194 F.3d at 222, and Federal Rule of Criminal Procedure 33. Benjamin’s new trial motions based on newly discovered evidence satisfied the required four elements: (1) the evidence was unknown or unavailable to defendant at the time of trial;(2) the failure to discover the evidence was not due to a lack of diligence on the part of the defendant; (3) the new evidence was material; and (4) the evidence would probably produce an acquittal upon retrial of defendant.United States v. Ortiz, 23 F.3d 21, 27 (1st Cir. 1994); see also Fed. R. Crim. P. 33. The difference between a new trial motion based on an alleged Brady Violation and an ordinary Rule 33 motion is found in the tests for the third and fourth elements. For Rule 33 motions, "the evidence must create an actual probability that an acquittal would have resulted if the evidence had been available." United States v. Sepulveda, 15 F.3d 1216, 1220 (1st Cir. 1993). If, on the other hand, the government possesses Brady evidence but does not disclose it--, as is the case here-- the non-disclosure warrants a new trial if the evidence is "material." It is "material" here because there was a "reasonable probability" that the evidence would have changed the result. Bagley, 473 U.S. at 682. The Court has defined "reasonable probability" as a probability "sufficient to undermine confidence in the outcome." Id. Since Sepulveda, the Supreme Court has further expounded on the "reasonable probability" concept. Recently, the Court said, "The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Strickler v. Greene, 119 S. Ct. 1936, 1952 (1999) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)).

The prosecution's failure to disclose specific evidence to the accused here violated Brady because the evidence is both favorable and material. Strickler v. Greene, 119 S. Ct. 1936, 1948-49 (1999). Benjamin satisfies both criteria as these handwriting exemplars could have proven alleged signatures were not his. In Brady, the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment . . . ." 373 U.S. at 87. In Giglio, the Supreme Court found a Brady-type due process violation by the Government's suppression of evidence of a leniency agreement with an accomplice witness. 405 U.S. at 151. Specifically, the Supreme Court stated that the accomplice witness's "credibility as a witness was . . . an important issue in the case, and evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it." Id., 405 U.S. at 154-55. Thus, the suppression of such evidence violated due process.

Numerous cases define the Brady obligation in the context of appellate review considering the ramifications of a prosecutor's failure to disclose evidence. Using this post-trial perspective, Brady held that it would be a due process violation only if the suppressed evidence was "material." Courts have concluded that "[e]vidence is considered material 'only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Ortiz v. Stewart, 149 F.3d 923, 935 (9th Cir. 1998) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).

From the post-trial perspective, the suppression of evidence that would not have changed the outcome, either because it was inadmissable or because it lacked sufficient probity, would not create a due process violation. This standard is only appropriate, and thus applicable, in the context of appellate review. Whether disclosure would have influenced the outcome of a trial can only be determined after the trial is completed and the total effect of all the inculpatory evidence can be weighed against the presumed effect of the undisclosed Brady material. See, e.g., Giglio, 405 U.S. at 154 (finding violation because "the Government's case depended almost entirely" on the cooperating witness's testimony, making impeachment crucial).

The post-trial review determines only whether the improper suppression of evidence violated the defendant's due process rights. However, that the suppression may not have been sufficient to violate due process does not mean that it was proper. This conclusion is clear from consideration of an analogous standard of review, the standard for ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court set the standard for ineffective assistance of counsel as assistance that falls below reasonably objective standards and that prejudiced the defendant. As its standard for prejudice, the Supreme Court drew from Brady's materiality standard. See Strickland, 466 U.S. at 694 ("Accordingly, the appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution . . . ."); United States v. Spawr Optical Research, Inc., 864 F.2d 1467, 1472 n.6 (9th Cir. 1988) ("The Strickland standard for prejudice has been considered to impose virtually the same burden on the defense as the standard for materiality in Brady claims."). Thus, the tests for Strickland and Brady are similar.

In this light, it is clear that Brady's materiality standard determines prejudice from admittedly improper conduct. It should not be considered as approving all conduct that does not fail its test. Just as unreasonably deficient assistance of counsel is improper even if it does not meet the prejudice prong of Strickland and result in a Sixth Amendment violation, so suppression of exculpatory evidence is improper even if it does not satisfy the materiality standard of Brady and result in a due process violation. Though an error may be harmless, it is still error.

In Brady, the Supreme Court was concerned with the prosecutor's ability to corrupt the trial by allowing the introduction of false testimony. The Supreme Court stated that Brady was an extension of two prior cases: First, Mooney v. Holohan, 294 U.S. 103 (1935), in which the Supreme Court found a due process violation in a conviction that was based on perjury solicited by the government; and second, Napue v. Illinois, 360 U.S. 264 (1959), in which the Supreme Court found a similar violation when the government, although not soliciting false evidence, allows it to go uncorrected. See Brady, 373 U.S. at 86-87.

Because Brady seeks to protect the quality and completeness of the evidence upon which the jury bases its verdict, it is understandable that information that is not likely to result in admissible evidence is irrelevant. Therefore, Brady does not require the disclosure of information that would only assist the defense in creating its trial strategy. It does, however, require the disclosure of information that is likely to result in admissible evidence that would give the jury a court a more complete basis for judging guilt or punishment.

The prosecution here violated the requirements of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). Unlike the tests for ineffective assistance of counsel and for Brady-Giglio (disclosure) violations, which seek to determine whether the truth determining process was so undermined that no reliable determination of guilt or innocence could have taken place, after-trial discovered claims involving evidence such as Benjamin’s are reviewed for a determination of whether that evidence "would have changed the outcome of the trial if it had been introduced." The reason why the standard for after-discovered evidence is more strict than for a Brady-Giglio disclosure violation has been explained by the United States Supreme Court:

G. African Americans Were Underrepresented on Benjamin’s Jury Venire

Benjamin asserts that the jury selection system used in his case violates the Sixth Amendment and the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861, et seq., because it systematically excludes Asians, Blacks, and Hispanics from jury service. The Sixth Amendment grants criminal defendants the right to trial by an impartial jury. U.S. Const. amend. VI. A jury selection system violates that right if the system does not draw its jury members from a fair cross section of the community. See Taylor v. Louisiana, 419 U.S. 522, 530 (1975). Similarly, the Jury Act "ensure[s] that potential grand and petit jurors are selected at random from a representative cross section of the community and that all qualified citizens have the opportunity to be considered for service." United States v. Bearden, 659 F.2d 590, 593 (5th Cir. 1981), quoted in United States v. Contreras, 108 F.3d 1255, 1265 (10th Cir.), cert. denied, 118 S. Ct. 116 (1997). Because the Jury Act's fair cross section requirement parallels a defendant's Sixth Amendment right to trial by an impartial jury, the defendant's Jury Act challenge and constitutional challenge both come under the Sixth Amendment standard. See Taylor, 419 U.S. at 528-30 & n.11).
In substance, the Jury Act sets forth guidelines for selecting grand and petit juries in federal courts. See 28 U.S.C. § 1861. It requires that each judicial district devise a plan for randomly selecting jurors based on voter registration rolls or lists of actual voters. See id. § 1863(b)(2). In order to establish a prima facie case that a jury selection system violates the Sixth Amendment fair cross section requirement, a defendant must demonstrate:(1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this is due to systematic exclusion of the group in the jury-selection process. Duren v. Missouri, 439 U.S. 357, 364 (1979).

African-Americans were underrepresented on Benjamin’s jury venire. African-Americans are systematically underrepresented on jury venires in the district court. Benjamin is African-American. On the day the jury selection began in this case, April 12, 1999 the entire venire had only one African-American. (Tr ) The First Circuit’s opinion in United States v. Royal, ___ F.3d ___, 1999 WL 179003 (April 2, 1999) uses outdated numbers from 1994. (Tr. 4/15/99 pg. 4-8)(Tr. 4/12/99 pg 3-13).

H. Benjamin WAS DENIED HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL

Benjamin’s Sixth Amendment right to the effective assistance of counsel was violated because his trial was not the same lawyer from the firm who had been dealing with Benjamin all along and thus was not familiar with all the material and insight Benjamin had provided on the case, and trial counsel did not present certain evidence as described in appellant’s affidavit attached hereto in the Addendum as Exhibit 7 and incorporated herein by reference. In order to prevail on an ineffective assistance of counsel claim, "the defendant must show the counsel’s representation fell below an objective standard of reasonableness," and that the defendant was prejudiced as a result of such conduct. Strickland v. Washington, 466 U.S. 668, 688 (1984). As to the conduct of counsel, "the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland at 689. As to prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different." Id. at 694.

Granted, the tactical decisions of trial counsel must command a high degree of deference. United States v. Hansel, 70 F.3d 6, 8 (2d Cir. 1995). But not asking for a curative instruction on the jury instructions in all the detail as given in the manner argued above, and Benjamin’s points in the affidavit, if true, cannot cumulatively "be considered sound trial strategy."

CONCLUSION

The United States Constitution guarantees the accused the right of a trial by a jury of his peers, primarily in order to ensure that the accused is judged by prevailing community mores. As Judge Learned Hand stated, the institution of the jury introduces a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions. Without full knowledge of the nature of the crime, the jury cannot speak for the people or exert their authority. If an element of the crime is conceded and stripped away from the jury’s consideration, the jurors become no more than factfinders. The jury must know why it is convicting or acquitting the defendant, because that is simply how our judicial system is designed to work. United States v. Gilliam, 994 F.2d 97, 101 (2d Cir. 1993) (quoting United States ex rel. McCann v. Adams, 126 F.2d 774, 776 (2d Cir. 1942), cert. denied, 510 U.S. 927 (1993). For the reasons above, and any the Court deems appropriate, Benjamin asks that this Court reverse all of his convictions, and any other appropriate relief.

Respectfully submitted,

LYNDON B. BENJAMIN,

By his attorney,

____________________________

S. VANESSA M.G.VON STRUENSEE , ESQ

BBO 555267

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