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