Kurt Simmons Attorney at Law State Bar No. 170162 Post Office Box 748 Somerset, California 95684 Telephone 916-622-4485 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA PETER BELLUCCI, NO. CR. S-91-438 LKK CIV S 95-2306 LKK Movant REQUEST FOR v. RECONSIDERATION OF MOTION PURSUANT TO 28 U.S.C. 2255 AND UNITED STATES OF AMERICA, SUPPLEMENT TO MOTION UNDER AMERICANS WITH DISABILITIES ACT Respondent AND DUE PROCESS CLAUSES ____________________________/ This court, by order of January 8, 1996, ordered summary disposition of this motion pursuant to rule 4(b) of the Rules Governing Proceedings Under 28 U.S.C. 2255, noting at 1:18 of its order that, "The movant is in pro per, and accordingly, the nature of his claims are less than crystal clear." Counsel has reviewed Mr. Bellucci's motion and agrees that at least one of his claims, by far the most significant claim, was so unclear that this court could not effectively address it. Counsel has agreed to assist Mr. Bellucci to present the claim that arises under United States v. Gaudin, 515 U.S. 132, L.Ed.2d 444 (1995), and under the Americans with Disabilities Act and the Due Process Clause in the Constitution for the United States of America. WHY THIS COURT SHOULD GRANT RECONSIDERATION There are two related reasons. The first is that Mr. Bellucci proceeded in propria persona, and it is obvious that he requires legal assistance to clarify his case. One example on point is that he attached the summary page of U.S. v. Gaudin but forgot to mention how it was relevant in his brief. Counsel believes Gaudin is dispositive, but the relevant factual and legal matters of this case in relation to Gaudin must be pointed out to the court. Second is the matter of Mr. Bellucci's exhibit 5a, a psychological evaluation of Mr. Bellucci dated June 15, 1992, shortly after his trial. That evaluation should have been done before trial, as part of effective assistance in trial preparation; but, in any event, it should have been brought to this court, not just for consideration in sentencing, but on the substantive issue of guilt. Then, if necessary, it should have been made a part of the appeal record. The findings of Dr. Miller are material to the jury trial and to the findings of this court and of the appeals court, and they are material to reconsideration of this motion. The relevant fact is this: Mr. Bellucci, an American veteran of World War II, never having been convicted or even accused of a crime in his entire life, stands convicted before this court of "felony" symptoms of the diagnosed disability of "dyslexia," recognized under the Americans with Disabilities Act (hereinafter "ADA"). Exhibit 6 is an article entitled "Zooming In on Dyslexia" from Time magazine of January 29, 1996. This exhibit demonstrates that science is still trying to understand this language-processing disability. While the article concerns the disability in children, dyslexia does not simply go away when unattended children grow old. Rather, they become adults with a lifetime of compensation for the effects of the disorder. In Exhibit 5a to Bellucci's motion, Dr. Miller describes the manifestations he found in Bellucci, at page 7: "The results of the current evaluation indicate that while Mr. Bellucci functions in the low average to average range of intelligence, his basic reading and writing skills are at about a third to sixth grade level due to a learning disability in the auditory processing area (dyslexia). As a result of this disability, he has significant difficulties with understanding information presented to him verbally, as well as in written form." There is no doubt that adult dyslexia presents a problem for attorneys, but that still translates into ineffective assistance of counsel, albeit caused by the disability itself. Dr. Miller goes on to describe the problem in the same paragraph: "Mr. Bellucci is best described as a rugged individualist who takes pride in his independence and self-sufficiency. He is reluctant to admit to short-comings or deficiencies and is very trusting of others. "Like most adults with dyslexia, Mr. Bellucci has attempted to conceal his disability from others, by developing various coping strategies. He will feign understanding or will avoid tasks which require advanced reading and writing skills. He has also relied heavily upon others .... Even during this evaluation, Mr. Bellucci attempted to minimize the seriousness of the disability, and initially stated that he did not believe that his reading disability was a significant factor in the current legal proceedings. It was only after he completed the diagnostic tests that the nature and severity of his disability became evident. Unfortunately, his poor coping strategies have contributed to his current legal difficulties, and he clearly needs to develop a better approach to compensating for his disability." This Court should do everything within its power to assure that the facts actually prove the mens rea requirements of the law, and do not reflect the disability symptoms of an elderly person who has developed elaborate ways to compensate for a language-processing disorder all of his life. Indeed where, as here, there is a substantial possibility that symptoms of a disability are being mistaken for the mens rea element of allegedly criminal conduct that actually injured no one, the ADA (42 U.S.C. 12101) requires the court to exercise great caution in order to separate the two, so that government does not add to the burden of disabled people by punishing the symptoms of their disabilities as crimes. THE AMERICANS WITH DISABILITIES ACT REQUIRES HEARING While acknowledging that the ADA specifically addresses state, not federal institutions, its standards are binding on federal institutions as well, including federal courts, for three reasons: First, Congress explicitly says it is exercising the "sweep" of its powers to obtain the ADA objective, declaring in section 12101(b), to wit: "(b) Purpose. It is the purpose of this Act -- "(1) to provide a clear and comprehensive NATIONAL MANDATE for the elimination of discrimination against individuals with disabilities; "(2) to provide CLEAR, STRONG, CONSISTENT, ENFORCEABLE standards addressing discrimination against individuals with disabilities; "(3) to ensure that the Federal Government plays a CENTRAL ROLE in enforcing the standards established in this Act ON BEHALF OF INDIVIDUALS WITH DISABILITIES; "(4) to invoke the SWEEP of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities." [emphasis added] A "national mandate" that does not apply to federal agencies is a very curious contradiction in terms. The words, "clear, strong, consistent and enforceable" imply standards applicable to all government, not just enumerated agencies. The "Central Role" of the Federal Government in enforcing the standards cannot be maintained if it does not set the standard by example. And, when Congress invokes the "sweep" of its powers, the term "including" does not limit the power invoked to that of the Fourteenth Amendment or the Commerce Clause. Thus, by the terms of the ADA, if it is within Congress' power to command that the standards therein apply to federal agencies, and it clearly is within the power of Congress to do so, then courts must so construe it. Second, the Fourteenth Amendment does not create new substantive rights. By Congress' recognizing a Fourteenth Amendment power to require states to apply equal protection principles to Americans with Disabilities, it first must implicitly recognize that such is a due process right under the Fifth Amendment. As the Fourteenth Amendment ADA power applies to the States, the Fifth Amendment Due Process Clause requires that the very same principles apply to federal institutions. Third, Congress specifically requires the federal government and its courts to play a CENTRAL role in setting the ADA standard. It could not thereby intend that separate state and federal standards should develop. Not only is that a "non sequitur" to the full "sweeping" use of its powers, but, in this day of re-emerging states' rights, if Congress intended the ADA to apply only to states, as opposed to all of American Government, then states could justly refuse to enforce it, or they could develop their own ad hoc standards, on the grounds that the ADA is not a mandate for equal application of Constitutional standards that apply to federal and state governments alike, but rather a federal incursion into states' rights in violation of the Tenth Amendment. Thus, it is imperative that the ADA standard apply to federal no less than to state institutions. This Court is asked to read the statement of Congressional Findings and Purpose at 42 U.S.C. 12101, and take care that Mr. Bellucci, already a lifelong victim of a disability, not here be made a victim of judicial indifference to "characteristics that are beyond the control of such individuals and resulting from stereotypical assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society." 42 U.S.C. 12101(a)(7) In this case, the "stereotypical assumption" is that the so- called misrepresentations he allegedly made carried a specific intent that the bank rely upon them when, in fact, it was a symptom of his disorder that the "misrepresentation" had no purpose at all, but was an accident. WHY BELLUCCI'S DISABILITY IS MATERIAL TO THIS CLAIM Most relevantly, the crime alleged (violation of 18 U.S.C. 1014) is what California would call a "specific intent" crime. That is, to be criminal, the acts (false statements made) must have been for the specific purpose of influencing the bank's actions. While the federal courts do not use a specific intent instruction, the actual mental "purpose or design" -- to obtain the end that the bank's acts be influenced by his "false" statement -- is an element of the crime. The issue is "actual purpose," as opposed to "dyslexic meandering" resulting in misunderstanding. In point of fact, to a person disabled with dyslexia, the statements alleged may appear to be true; or they may actually be true, within his understanding of their meaning; or, as in the case of failure to acknowledge an existing lawsuit, they may have been done without any consciousness of the actual content of the statement. Compounding Bellucci's disability, this court decided to keep the most material evidence, the mens rea element, from the jury. That is, when push came to shove and Bellucci's good faith was being tested, that which describes his intent by what he actually did was kept from the jury. (With respect to intent, actions speak louder than words, and so much more so when the speaker is affected with a language-processing disorder, as opposed to the moral "disorder" of fraudulent intent necessary for felony bank fraud.) Thus, when Swift froze the bank loan preventing completion of the houses so that they could not be sold and the bank could not be repaid, Bellucci completed the projects with his own funds in order to safeguard the bank's interest and effectuate repayment of the loan. The Court is asked to review the Transcript at pages 16-20 regarding the government's motion in limine. At page 16, the court agrees with the prosecution that "the fact that the bank did not suffer a loss is irrelevant." At page 18:11, the prosecutor says, " I don't want the bank to say it didn't suffer a loss. That is irrelevant." And thereafter, the court is already convinced that the fact the bank suffered no loss was irrelevant and would not be admitted. Then at 19:18, Mr. Broderick states: "There's one thing I do anticipate with the bank officer's testimony -- I'm alerting the court now -- on one loan issued the money was stopped by Mr. Swift and his people -- and I'm going to ask the bank officer to the extent it goes to Mr. Bellucci's intent what happened, and he is prepared to testify that Mr. Bellucci went ahead and completed the project out of his own money." At 20:1, the Court: "No, that seems to be irrelevant." Mr. Broderick: "It goes to Mr. Bellucci's intent to defraud the bank. I don't think it goes to the intent to make a false statement." The Court: "It seems there is a distinction between these things. It's fairly straightforward to me. In any event, that is out." So, it occurred that the defense was not allowed to offer the most material kind of evidence on the issue of the intent of a person in a written instrument, who suffers a language- processing disability. This was Circumstantial Evidence of the intended purpose, or the lack thereof. THE MATERIALITY OF THE EVIDENCE KEPT OUT Under Counts Three and Four, the purpose of the false statements is an element of the crime. The government has the burden of convincing the jury, beyond a reasonable doubt, of a specific purpose for the alleged false statement. Lack of purpose is a defense. Circumstantial evidence of a lack of purpose not only tends to disprove the element, but it also raises subtle issues of the materiality of the statement from the perspective of the accused, which goes to the element of "knowingly making a false statement." The evidence kept out, that Bellucci finished the projects with his own money and the Bank was fully repaid, is not only inconsistent with an intent to defraud, but with an intent to shift the risk ... and evidence inconsistent with intent to shift the risk is circumstantial evidence that there was no intent to falsify; or that he knew the statement was false; and that is inconsistent with a "purpose of influencing the bank's action" with the allegedly false statements. Such evidence is important in any case, but in the case of a dyslexic person, it is critical. It is circumstantial evidence of innocence, and so much more so for a person with a language-processing disorder. That is, taking care to avoid injury is inconsistent with a purpose to defraud or shift risk, but it is consistent with a total lack of purpose for the questioned statements or that the accused believed they are true in all material respects. Under the allegations, a lack of purpose for false statements made, or a purpose unrelated to causing reliance by the bank, is factual innocence of the crime alleged. Under the allegations, a belief that the statements are true in all material respects, is not "knowingly making" a false statement, and is factual innocence of the crime alleged. In the case of a person suffering from a language-processing disorder, the difference is between his doing what he knows no alternative to, and a criminal intent. That's not a mere technical difference, but the substantive difference between criminal acts and innocent acts. While the court allowed Bellucci's counsel to argue that Bellucci believed there could be no loss to the bank because the loan was secured by the property, that is a far cry from allowing evidence that there was, in fact, no injury to the bank and Bellucci assumed completion by his own resources, by reason of which the bank was repaid. The difference is that the former is only evidence of a state of belief and it puts Bellucci's credibility into issue on that score. Under the latter, where the jury can actually know that there was no loss and Bellucci actually took affirmative steps to avoid it, the credibility of the government in asserting the materiality of the alleged false statements is at issue. In that case, the jury can see and consider the fact that the statements may have been made without purpose ... and thus, there was no crime; and/or that, from Bellucci's perspective, they may be true in all material respects, and thus not knowingly made as false statements. THIS COURT HAD NOTICE OF BELLUCCI'S DISABILITY There were many instances in the trial where this court, and Mr. Broderick, should have become aware that Mr. Bellucci was affected by a learning disorder. For example: At page 496 of the transcript, line 9, Mrs. Johnson, a former secretary, mentions that his handwriting is "atrocious." At page 498-499, she testifies that his record-keeping methods were abnormal. In total, her testimony was that Mr. Bellucci relied on her to make out the bankruptcy papers, including looking for records on which to find the information. This is a peculiarity consistent with Dr. Miller's finding of dyslexia. But the testimony of Randy Bellucci and Peter is most revealing of the disorder. Page 516, and much of Randy's testimony elsewhere, concerns a partnership relationship with his father that was a verbal agreement upon which he relied for twenty-five (25) years. His father completely controlled the business end. See page 533:16 et seq. It was a partnership based upon an oral agreement because "[I]n an Italian family you always have an oral agreement. You don't need a written contract." Randy "tried to stay away from [the] paperwork and stuff as far a possible." (Transcript, 549:21) "All the paperwork was my father's part. I wanted nothing to do with the office." (Transcript, 539:8) "My dad took care of all the banking and took care of all the checking accounts and funds so I would not go out and spend too much money." (Transcript, 537:4) The court is asked to read Randy's entire testimony with the ADA and dyslexia in mind. Even without a diagnosis, his own behavior with respect to language-processing is very similar to his father's. At the bottom of the first column, page 63 of exhibit 6, Time magazine states: "This optimism seems extraordinary in view of the mounting evidence that both dyslexia and oral-language impairment are inherited disorders. In fact, it seems quite probable that a single gene on chromosome 6 may underlie at least some cases of dyslexia and perhaps other language-based learning disorders as well." Thus, without evidence of Mr. Bellucci's disorder being presented, the description of the business relationship between Randy and Peter stretches the credibility of both. With evidence of a learning disability also comes an explanation that not only makes the relationship understandable and credible, but also two of the "misrepresentations" to the bank -- that Peter "owned" the assets transferred to Randy, and to Wildhorse, Inc. -- are also seen to be true from Peter Bellucci's perspective. That is, Randy and he were partners, and transfers within a partnership are not transfers so far as the business is concerned. As Randy testified at Transcript page 529:20: "Q. If your dad needed those properties back in his name, if he was asked so by the bank or something, would you have deeded them back? "A. Sure, no problem. "Q Any hesitation? "A. No." THAT IS, FROM MR. BELLUCCI'S PERSPECTIVE, THE MATERIAL POINT: At all times, the questions concerning the bank's security, and a transfer to Wild Horse or to Randy, were not material to the issue of who owned them, in the sense of the right to pledge them for business purposes. He pledged them, and had he ever been called upon to do it, he would deliver them. That is materiality. The evidence of Peter's disability was even more compelling, had his attorney or this court been aware of his condition. Turning now to the evidence of dyslexia of Peter Bellucci which was before this court in the trial: From the very beginning of his testimony, he mis-perceives things. Thus, he is asked his age and when his next birthday will be. He answers with his present age (70) and his next age (71). (Transcript, 554:18). He has a tenth grade education. (Transcript, 554:24) He describes his business at pages 555-556. His accumulation of wealth may seem to be a lot for a low-normal intelligent dyslexic person, but it is the savings of constructing "way over 2,500" houses (556:2) in the business with his son "ever since he was a just a baby, practically." (556:25.) He describes his and his Son's duties at page 557: It was his "to make sure that it ran right," and all things necessary thereto, including all the paperwork like repaying loans, collecting rents, and paying the taxes. And Randy was to be out on the job. That is most interesting because, as we have seen, Randy trusted his dad; Randy couldn't do the paperwork; and, as we shall see from the testimony and from Dr. Miller, due to his disability, Peter reads at a third- to fifth-grade level and, in a real sense, because it is so burdensome, Peter can't read at all. At page 565, Peter admits a confusion about whether he previously said he was president or vice president of Wild Horse Investments. But, throughout his and his son's testimony, it is clear that Wild Horse was Peter's alter ego which he intended to become a operating business for Randy, but it never really got off the ground. See page 565:13. It is clear that his perception of transfers made to Wild Horse were to help it get off the ground, but he still "owned" them within the meaning of business transfers between partners in a partnership. (See page 566:12 et seq.) Far from the bankruptcy being a plot to conceal assets, the decision to file Chapter 11 was made against the advice of counsel (page 638) and because he learns that Swift is going to kick him out of his house. (See page 578:23) How were the bankruptcy papers filled out? He sought no legal advice, and he said of his secretary, "She knew more about it than I do. It's a form that we had to file so I wouldn't get -- be kicked out of my house." (582:18) Until one grasps the nature of his disability, some of this seems less than credible. Thus, at page 587, discussing transfers one year prior to filing, Mr. Broderick asked if he knew of the requirement. He states his present knowledge. Then he was directed to the time of filing, "So you didn't know that (then)?" "A. No. I didn't read the fine print. "Q. It's throughout the form. "A. Yes, I have seen it, put my glasses on and I've read it every once in awhile." This is evasive and without apparent purpose, until you recall the symptoms as stated at page 7 of Dr. Miller's report: "Like most adults with dyslexia, Mr. Bellucci has attempted to conceal his disability from others, by developing various coping strategies." How does he say to the court, "I can't read," especially when the problem is not "can't," so much as it is the symptomatic difficulty he has with reading which he has learned to conceal and to avoid while growing old in a world that rarely understands the nature of the disability? On cross examination, Peter is forced to admit his disability, little by little, but neither his attorney nor this court picked it up. So, at page 609, he is asked about a tax return, and answers: "I don't know. On my -- I have filled them all out. He [the accountant] showed them to me and asked me to sign and I signed them. And I don't go over the figures with him. That is why I hired him. And I had a real good one. Elmer Bishop went through several audits with the IRS. I had no problem. If I have a good accountant, I leave it to him. I don't know anything about that." Of course, if his attorney and the court and the jury don't know anything about his disability, then they are more likely to doubt his credibility than to accept his conduct as the business practice by which the witness had saved two million dollars. But, the testimony goes on, as Mr. Searles pushes Peter to answer. "No, I do disagree with you because I don't know. ... I'm not going to look at that because I wouldn't understand it." At page 609, what looks like evasion, after taking dyslexia into account, is actually a poignant truth. At page 613:7, he is asked if he recognizes exhibit G-7. He answers: "I don't recognize them, but they are the ones I gave to her, yes." The only thing it makes sense to understand out of such a contradictory statement is that he is saying he cannot recognize them because he cannot read them, but he remembers the exhibit. At page 639, he tells about his methods of writing: "I told you that I take copies of things cause I don't type and I don't write very good. And my spelling is ferocious, that I take copies, I write it on paper. She correct[s] it or my secretary corrects it, either one, then they type it out for me." Mr. Searles persists in examining him about his reading of the bankruptcy forms. At page 640:5, he says: "You can --- I don't mean to be insulting, but you can read, can't you?" and Bellucci answers, "But -- about -- yeah, I can read it." Then at page 641:19: "Q. It's your testimony, then, you did not even review this? "A. No. I'm not saying that. Because I don't review it, but I'm sure I didn't." These are the non sequiturs of dyslexic reluctance to admit to the disability which Peter himself does not understand. At the bottom of page 642, Mr. Searles refers to an entry for Peter to read. Again, rather than to read it himself, Peter says at 642:24: "A. Just read it. I don't have to look at it. I understand when you talk to me." At page 644:15: "Q. But you did look at this document before you signed your name under penalty of perjury? "A. I glanced. I didn't go over every item in effect. That is why I need an attorney to go over each item by item, because I didn't know what I was doing." Again at 648:10, the following occurred: "Q. All right. Do you recall being deposed February 17th of 1989? "A. No, you have to read it for me. I wouldn't be able to tell what it is. "Q. I don't want to read anything from it. I just want to show you a copy. "A. Well, if you don't read it[,] then it's bits. I DON'T UNDERSTAND WHAT I READ." [emphasis added] Can there be any question at this point, but that without the disability being before the jury as an explanation, Bellucci could not receive a fair trial? Yet, this court is reminded, as it considers the issue of materiality, that in fact the jury came back hung, and it was most reluctantly that it found him guilty of two of the four counts under the court's refusal to accept the hung jury return. THE MATERIALITY ISSUE Under 18 U.S.C. 1014, the defendant's state of mind -- his purpose in making the false statement -- is at issue as a material element. Dyslexia does not prevent the existence of the criminal mens rea element. What it does is distort the meaning of the evidence that we perceive as material to the conclusion that the criminal state of mind or purpose exists. Thus, for example, if a person makes a statement, we presume that he knows he made the statement and its meaning, and that the meaning is the same for him as it is for us, and thus his intention or purpose in making that statement is the same for him as it would be for us under like circumstances. Dyslexia invalidates these basic presumptions. A dyslexic person does not process, or even perceive language in the same way we do. But, more importantly, an adult dyslexic person has learned to hide and cover-up for his disability all his life. The result is that you cannot rely on his indication that he understands the meaning of inquiries, or on his descriptions of events. He may speak truly of his perceptions in ways which seem false to us. As the founder of legal reasoning once put it: "To Socrates well, the wine tastes sweet. To Socrates ill, the wine tastes bitter. Is sweetness, therefore, in the wine, or in Socrates?" Like sweetness, while truth is not entirely "in the eye of the beholder," we must know some critical things about the beholder to access the objective accuracy of his description. Was Socrates well, or ill, when he drank the wine? That is obviously as important as Socrates' reputation as a connoisseur of fine wines. For Peter Bellucci, there is a complication. He has had his illness all of his life. When we understand the nature of the illness, we see another problem immediately. It is intrinsically unfair to attach a fraudulent purpose to Peter's statements by hypothesizing that he was caught in his own plot to defraud Swift and to introduce evidence of the state court trial finding that he did, in fact, plot to defraud Swift, when the nature of his illness and its impact on the events Swift complained of were not disclosed nor examined in the state trial; nor in the bankruptcy proceedings; nor before this court. See, for example, the cross examination at page 601-602. Peter candidly discloses his belief that Swift had nothing coming. The Prosecutor then asks if that is still his position "even if a superior court disagrees?" It is plain wrong to base a criminal fraud case on the findings of a civil fraud case, at any time. But it rises to a constitutional denial of due process to so base a case where the disabling effects of dyslexia were never addressed in any legal proceeding, state or federal. In point of fact, there is one reliable index of truth: Mr. Bellucci was 70 years old; he was a hard worker involved in the real estate industry where his dishonesty, if he was dishonest, is very likely to have shown. Over thirty years, he accumulated a small fortune. Yet, he had never even been accused of a crime until these events which are obviously complex far beyond this man's ability, with his low normal intelligence, to handle, even if he had no disability. And still, even interpreted at its worst, no one, not even Swift (let alone the bank) was ever in danger of suffering a wrongful or unlawful loss. We all have heard of "technical loopholes" in the law by which the guilty sometimes go free. This is the exact opposite. This is a technical conviction of an American with a Disability of a technical crime, based upon the known limitations of such disabled people to cope with those technicalities in the same way people without such a disability cope with them. UNITED STATES v. GAUDIN, 132 L.Ed.2d 444 (1995) As in this case, in Gaudin a real estate agent was convicted for having made a series of allegedly false statements on federal loan documents in connection with real estate transactions. The jury was instructed that the government had to prove the alleged false statements were material to HUD's activities and decisions, but the issue of materiality was a matter for the court to decide, and it determined the statements were material. The Supreme Court reversed, holding that questions of fact, and mixed questions of law and fact concerning materiality of statements, must go to the jury. In so doing, it rejected government contentions that materiality is a legal question, saying that it is the kind of question typically resolved by juries; that the concept of the criminal jury as mere fact- finder has no historical support in the case law. The facts, as relayed by Justice Scalia, are important because they indicate what is not present in Bellucci's case, namely, a pattern to defraud. Unlike Gaudin, the bank in Bellucci's case lost nothing and didn't even suffer an increased risk: "In the 1980's, respondent engaged in a number of real estate transactions financed by loans insured by the FHA of HUD. Respondent would purchase rental housing, renovate it, obtain an inflated appraisal, and sell it to a 'strawbuyer' (a friend or relative) for whom respondent would arrange an FHA-insured mortgage loan. Then, as prearranged, respondent would repurchase the property (at a small profit to the strawbuyer) and assume the mortgage loan. Twenty-nine of these ventures went into default." 132 L.Ed.2d 448. The government charged that, during the course of this plan, respondent made false statements by knowingly inflating the appraised values, and he executed forms which showed that the buyer was to pay some of the costs when, in fact, Gaudin (the seller) was to pay all costs. The government had testimony of several persons as to why the requested information was important. At close of evidence, the trial court instructed the jury that materiality must be proved, but the court also instructed that "the statements charged in the indictment are material statements." The Ninth Circuit reversed, then held en banc that taking the question of materiality from the jury denied rights guaranteed by the fifth and sixth amendments. It should be noted that, while 18 U.S.C. 1001 requires a "materially false statement" and section 1014 does not have an express requirement of materiality, the latter has an express "purpose" element not found in 1001. Thus, the argument of Gaudin is a fortiori to this court because "the purpose" of a misstatement is measured from the perspective of the person making it. Thus, it is from Bellucci's perspective that the statements he made must be found to be "material," i.e. an "immaterial false statement for the purpose of deceiving" is a contradiction in terms from the speaker's perspective. The parties in Gaudin agreed as to the definition of "materiality," that the statement must have a natural tendency to influence or be capable of influencing the decision of the body to whom submitted. 132 L2d 449. That is also the definition applied to Section 1014. See U.S. v. Braverman, 522 F2d 218. Bellucci submits that the instruction given, and the agreed materiality instruction in Gaudin, are not a sufficient materiality instruction in a case wherein an element is a specific purpose of the accused. But the issue here is that this court made determinations of materiality to keep the evidence from the jury. It determined, as a matter of law, albeit it relied upon authority, that the fact the bank suffered no loss was not material, and the fact that Bellucci took steps, after Swift seized the bank loans, to complete the project to repay the bank, was not material evidence. The underlying constitutional issues are the flip-side of those presented in Gaudin. There the court held that the defendant has a right to be convicted of all the elements of a crime, including materiality of the statements, by a jury. Here, the issues arise under the confrontation right (some of the evidence would have come from government witnesses on cross examination) and under the right to call witnesses on one's own behalf. Both of those sixth amendment rights are necessary for fifth amendment fair trials and sixth amendment trial by jury; for, if a court can exclude evidence that the jury could plausibly believe material to the allegation, the court can deprive the jury of the evidence necessary to acquit the accused. In the instant case, the relevant issue was not whether the court thought the proffered evidence was material. Rather, the relevant issue was whether a jury could reasonably find the facts -- that the bank suffered no loss, and that Bellucci took affirmative action, at his own risk after Swift tied up the bank loan, to complete the project and repay the bank -- material to the purpose, if any, of the accused in making the statements, if indeed he made them. One part of materiality is what the jury assumes in the absence of that evidence. Government must be pursuing Bellucci for some reason. Remember that, while juries have common knowledge of technical loopholes in the law, they do not have common experience with "technical felonies," and they may be justly very reluctant to convict a person so charged. The court should note, the bank was not a real complainant. The government was, for its own reasons which may or may not be those Congress intends. And that right of the jury to decide the mixed questions of law and fact, such as relevance and materiality that can make a difference in determining guilt or innocence, is exactly what the Gaudin Court continues to insist is the essence of the right to trial by jury in these United States of America. The Court begins its examination of the jury issue at 132 L.Ed.2d 450. At page 451, citing with approval J. Thayer, A Preliminary Treatise on Evidence at Common Law: "Indeed, our cases have recognized in other contexts that the materiality inquiry, involving as it does 'delicate assessments of the inferences a "reasonable [decisionmaker]" would draw from a given set of facts and the significance of those inferences to him ... [is] peculiarly on[e] for the tryer of fact.' TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438 (1976) (securities fraud); McLanahan v. Universal Ins. Co., 1 Pet 170, 188-189 (1828) (materiality of false statements in insurance applications)." U.S. v. Gaudin, 132 L.Ed.2d at 451 While it is true that the Gaudin case arose over the instruction of materiality that was given, keeping evidence from a jury is, in effect, giving an instruction the jury cannot ignore, even if it wants to, because the facts are not before it. Thus, in effect, the judge decided the materiality issue on the proffered evidence in such a way that left the jury helpless. It is one thing to keep evidence from the jury because it could not reasonably influence them except through passion, and then against non-government parties. But, when the exclusion would work in favor of a criminal prosecution, an entirely different interest comes into play. It is the right of the jury to acquit, notwithstanding clear disagreement with the court as to the law. Quoted the Supreme Court in Gaudin, in addition to all other purposes, at 132 Led 2nd 450: "This right [to trial by jury] was designed 'to guard against a spirit of oppression and tyranny on the part of rulers,' and 'was from very early times insisted on by our ancestors in the parent country, as the great bulwark of their civil and political liberties.' 2 J. Story, Commentaries on the Constitution of the United States, 4th ed 1873 at 540-541. See also Duncan v. Louisiana, 391 U.S. 145, 151-154 (1968) (tracing the history of trial by jury)." The point is this: How dare a court exclude evidence that may tell a jury that this is a case of technical violation of law that caused no injury which, in turn, might have the jury thinking that government has ulterior motives when, as an historical fact relied on by our Supreme Court, the purpose of the jury is to safeguard the people from exactly that kind of oppression. In point of fact, what the court ruled immaterial for purposes of trial, whether material to factual innocence or not, was material for the historical and traditional purposes of trial by jury -- to determine whether to acquit or not, as a balance to government oppression. At the bottom of 132 L.Ed.2d 451, the Court restated the principle, this time citing Justice Chase's defense with approval, saying: "Justice Chase's defense to one of the charges in his 1805 impeachment trial was that 'he well knows that it is the right of juries in criminal cases, to give a general verdict of acquittal, which cannot be set aside on account of its being contrary to law, and that hence results the power of juries, to decide on the law as well as on the facts, in all criminal cases. This power he holds to be a sacred part of our legal privileges ....' 1 S. Smith & T. Lloyd, Trial of Samuel Chase 34 (1805)." At 132 L.Ed.2d 452, the Court criticizes the government's reliance on Sparf & Hansen v. United States, 156 U.S. 51, at 90, saying: "But our decision [in Sparf] in no way undermined the historical and constitutionally guaranteed right of criminal defendants to demand that the jury decide guilt or innocence on every issue, which includes application of the law to the facts. To the contrary, Justice Harlan, writing for the Court, explained the many judicial assertions of the jury's right to determine both law and fact as expressions of 'the principle, that when the question is compounded of law and fact, a general verdict, ex necessitate, disposes of the case in hand, both as to law and fact.'" A fortiori, the excluded evidence was material to the factual innocence of defendant's purpose in his statement that he was not subject to any civil action; he was only required to answer "No" to one of a series of questions to which the truthful answers were "No." Why? Because the reasonable alternatives to determine "purpose" which the jury had were to "mislead the bank" or no purpose at all. A finding that the bank suffered no loss and that he did not take advantage of Swift's seizure, but completed the projects at his own expense, gives rise to an inference that there was "no purpose" for the misrepresentation, and thus for factual innocence. That alternative is especially important for an accused with a language-processing disorder. CONCLUSION While addressing a slightly different issue, in Faretta v. California, 422 U.S. 806, the U.S. Supreme Court made clear the very personal nature of the right to counsel, saying: "Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed him by the Constitution, for in a very real sense, it is not his defense." 45 L.Ed.2d pgs. 573-574. In the instant case, Bellucci has really only one defense, and that defense has not been presented: He is affected with a disability, and because of this disability, the evidence by which people infer his intent is not reliable. Put another way, the material evidence is his answers to questions he must have surely read, except that, in a practical sense, Bellucci can't read and he doesn't process language in the same way other people do; and that fact, so material to HIS defense, was kept a secret from the jury. Initially, his counsel ably raised the issues of materiality raised herein, and preserved them at trial. But they were not raised on appeal. Second, defense counsel didn't even discover the dyslexia all through trial. Perhaps that counsel, no more than this court, can be faulted for that oversight; and perhaps we might even say that Bellucci should have known it; but he didn't. The evidence from Dr. Miller is that it is symptomatic to deny and cover-up the disorder and adapt to cope with it. This boils Bellucci's fault down to innocently getting into a mess he could not cope with under the language-processing compensations he had made all his life. But in June, after the trial, but before sentencing, the disability was discovered and Dr. Miller wrote his report. A reasonably prudent defense should have seriously considered that report, not just for sentencing, but for substantive guilt or innocence, for it could not be more obvious that the disability drastically affects the reliability of the government's evidence. And, today, it is seen that it also increases the materiality of the evidence which the court eliminated. Wherefore, this court should hold a hearing into the effects of dyslexia under the facts of this case, and on the reliability of the inferences drawn from the evidence at trial, taking due regard that the jury's first return was a hung jury. And that hearing should inquire into the materiality of the evidence eliminated from trial in both of two respects: First, as to its impact on guilt or factual innocence in the present posture of this case with a diagnosis of dyslexia; and second, as to its effect on Bellucci's rights to a fair trial with an impartial jury within the historic meaning confirmed in U.S. v. Gaudin, and thereon, this court should vacate the conviction and dismiss the indictment, for, as a matter of law, the evidence presented at trial cannot convict a person suffering this disability. Dated: February 6, 1996 _____________________________________ Kurt Simmons, Attorney for Peter Bellucci # # #
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U.S.A. v. Bellucci