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