United States v. Benjamin

United States Court of Appeals
For the First Circuit

No. 00-1059

UNITED STATES OF AMERICA,

Appellee,

v.

LYNDON BAINE BENJAMIN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge.]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lipez, Circuit Judge.

Colleen E. Carafotes, with whom S. Vanessa M.G. Von
Struensee was on brief for appellant.
Jennifer Hay Zacks, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, was on brief for
appellee.
 June 5, 2001

LIPEZ, Circuit Judge. Lyndon Benjamin appeals his

convictions for one count of bank fraud, in violation of 18

U.S.C. § 1344, and two counts of engaging in transactions over

$10,000 with property derived from a specified unlawful

activity, in violation of 18 U.S.C. § 1957(a) and 18 U.S.C. § 2.

Benjamin asserts six arguments on appeal. We reject each of his

arguments and affirm his convictions.

I. Background

We briefly describe the facts of this case, in the

light most favorable to the verdict, discussing the details more

fully in our consideration of Benjamin's challenge to the

sufficiency of the evidence.

In February 1998, Benjamin obtained a Massachusetts

photo identification card using the false name "Ralph Chapel"

and an unauthorized social security number. He also filed a

business certificate with the City of Boston for a business

called Eastside Motorsports. On March 31, 1998, Benjamin used

the false identification card to open a bank account at Fleet

Bank in the name of "Ralph Chapel d/b/a Eastside Motorsports"

(Eastside Motorsports account). He made a deposit of $100 to

open the account.

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 On April 9, 1998, a man identified as Ian DeCosta

deposited two checks totaling approximately $202,000 into the

account recently opened by Benjamin. Frank Maggelet, a fraud

investigator employed by Fleet Financial Group, testified that

these deposits were made with deposit slips issued by the bank

and pre-printed with the account information for the Eastside

Motorsports account that Benjamin had just opened.1 These checks

were made payable to Stratus Computer, Incorporated. Testimony

at trial indicated that these checks were intended to go to a

post office box for processing, and that Stratus did not

authorize the deposit of the checks into the Eastside

Motorsports account.

Benjamin made large withdrawals from the account the

same day that DeCosta made the deposit of over $200,000.

Specifically, he wrote two checks, for $25,000 each, to Prime

Speed, an auto parts business. Benjamin wrote a third check for

$30,000 to Unique Creations hair salon. Additional draws on the

account totaling $18,700 were made with checks written to cash

and signed by Ralph Chapel on April 13, 14, 28, and 30, 1998.

1
Although Maggelet originally misidentified the individual
who deposited these checks as Benjamin, not DeCosta, he
testified at trial that he made this misidentification on the
basis of photographs of the defendant he considered to be of
poor quality. This misidentification does not affect our
analysis.

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Surveillance photographs indicated that Benjamin was the person

cashing all of these checks.

On April 16, 1998, Benjamin purchased a bank check for

$10,900 from Citizens Bank. This check was made payable to

Benjamin, and the name "Ralph Chapel" was noted on the line of

the check marked "memo." Benjamin purchased a second bank check

for $17,000 from BankBoston on April 17, also made payable to

"Lyndon Benjamin." Benjamin used these checks to purchase a

1998 Lexus in his own name.

On May 11, 1998, two checks totaling approximately

$180,000 were deposited into the Eastside Motorsports account.

Surveillance photos from the bank indicated that Benjamin made

these deposits. One of the checks, in the amount of

approximately $170,000, was made payable to Ben & Jerry's, and

the other check, in the amount of approximately $10,000, was

made payable to Clearmount Corporation. Representatives from

these companies testified that Benjamin was not authorized to

obtain these funds or deposit them into the Eastside Motorsports

account.

During this time, Benjamin, as Ralph Chapel, also

cashed six checks from Prime Speed, the auto parts business to

which he had written two checks of $25,000 each on the day that

DeCosta first deposited large sums of money into the Eastside

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Motorsports account. These six checks, ranging in amount from

$2,000 to $19,900, were all made payable to Ralph Chapel, doing

business as Eastside Motorsports. The checks were cashed by

Benjamin using the name Ralph Chapel and his Massachusetts

identification card. Kevin Primus, the owner of Prime Speed,

testified that these checks were refunds to Benjamin of deposits

he had made for auto parts that Primus was subsequently not able

to obtain from his suppliers.

A nine-count indictment was returned against Benjamin

on September 23, 1998. Count one charged him with bank fraud in

violation of 18 U.S.C. § 1344. Counts two through seven charged

him with money laundering in violation of 18 U.S.C. §

1956(a)(1)(B)(i).2 Counts eight and nine charged Benjamin with

engaging in monetary transactions over $10,000 with property

derived from a specified unlawful activity, in violation of 18

U.S.C. § 1957(a) and aiding and abetting that offense, in

violation of 18 U.S.C. § 2. Following a six-day trial in April

1999, a jury convicted Benjamin of counts one, eight, and nine.

He was sentenced in November 1999 to three years in prison and

ordered to make restitution to Fleet Bank of approximately

$160,000.

2The jury acquitted Benjamin of the six counts of money
laundering.

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 Benjamin makes the following arguments on appeal: 1)

the evidence was insufficient to support his convictions; 2) the

district court improperly instructed the jury; 3) there was a

variance between the allegations in the indictment and the proof

offered at trial; 4) the government failed to disclose

exculpatory evidence; 5) African-Americans were underrepresented

on Benjamin's jury venire; and 6) he was denied effective

assistance of counsel. Benjamin has not appealed his sentence

or the order that he pay restitution. We reject his claims and

affirm his convictions.

II. Sufficiency of the Evidence

Following the close of the government's evidence, and

at the end of the trial, Benjamin moved unsuccessfully for a

judgment of acquittal pursuant to Fed. R. Crim. P. 29. In

considering Benjamin's challenge to the sufficiency of the

evidence on appeal, we view the evidence and draw all inferences

in the light most favorable to the prosecution. See United

States v. Baldyga, 233 F.3d 674, 678 (1st Cir. 2000). "The

evidence is legally sufficient so long as, taken as a whole, it

warrants a judgment of conviction." Id. We examine both direct

and circumstantial evidence in making this evaluation. Id.

A. Bank Fraud

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 In Count One of the indictment, the government charged

that Benjamin

did knowingly execute and attempt to execute
a scheme and artifice to defraud Fleet Bank,
a federally insured financial institution,
and to obtain money owned by and under the
custody and control of Fleet Bank, by means
of false and fraudulent pretenses,
representations and promises, in that he
deposited into a fraudulently opened account
at Fleet Bank checks he knew to be stolen
and to contain forged endorsements; and then
withdrew or otherwise transferred out of the
account a portion of the monies so deposited
and credited to the fraudulent account.

"To prove bank fraud under 18 U.S.C. § 1344,3 the prosecution

must show beyond a reasonable doubt that the defendant (1)

engaged in a scheme or artifice to defraud, or made false

statements or misrepresentations to obtain money from; (2) a

federally insured financial institution; and (3) did so

knowingly." United States v. Brandon, 17 F.3d 409, 424 (1st

Cir. 1994). See also United States v. Kenrick, 221 F.3d 19, 30

(1st Cir. 2000). A scheme or artifice to defraud is "any plan,

3 The bank fraud statute, 18 U.S.C. § 1344, provides:
Whoever knowingly executes, or attempts to execute, a
scheme or artifice--
(1) to defraud a financial institution; or
(2) to obtain any of the money, funds, credits,
assets, securities, or other property owned by, or
under the custody or control of, a financial
institution, by means of false or fraudulent
pretenses, representations, or promises;
shall be fined not more than $1,000,000 or imprisoned
not more than 30 years, or both.

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pattern or course of action, including false and fraudulent

pretenses and misrepresentations intended to deceive others in

order to obtain something of value." United States v. Blasini-

Lluberas, 169 F.3d 57, 65 (1st Cir. 1999) (quotations omitted).

The prosecution must prove that the scheme involved a material

falsehood, and that the defendant had an intent to defraud the

bank. See Kenrick, 221 F.3d at 30. We have defined "intent to

defraud" as "an intent to deceive the bank in order to obtain

from it money or other property." Id.

We find ample evidence of Benjamin's intent to deceive

Fleet Bank. Maggelet testified that Benjamin opened an account

at Fleet under a false name and social security number, and that

the business, Eastside Motorsports, in whose name the account

was opened, did not actually exist. An employee of Stratus

Computer testified that neither DeCosta nor Benjamin was

authorized to cash or deposit the two checks totaling over

$200,000, made payable to Stratus Computer, into the Eastside

Motorsports account. Notwithstanding Benjamin's contention that

he did not know the money deposited by DeCosta was stolen, the

jury could have inferred Benjamin's awareness of this fraudulent

transaction, and acquiescence to it, from DeCosta's use of the

pre-printed deposit slip for the Eastside Motorsports account

(presumably issued to Benjamin, as Ralph Chapel, after he opened

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the account) and the fact that Benjamin wrote three checks

totaling $80,000 withdrawing money from the account later that

same day. Surveillance photos at the bank indicated that

Benjamin himself deposited two large checks into the account on

May 11, 1998. Employees of the companies to which those checks

were made payable testified that Benjamin was not authorized to

deposit those checks, with fraudulent endorsements, into the

Eastside Motorsports account.

The jury could have found further that this deception

and DeCosta's deposit were intended to obtain something of value

from the bank because the Eastside Motorsports account was

credited for over $370,000 as a result of the deposits Benjamin

and DeCosta made. Benjamin benefitted further from the scheme

through his withdrawal from the account of large amounts of the

stolen funds he had deposited there, using the false name Ralph

Chapel.

B. Engaging in Monetary Transactions Over $10,000 in Property
Derived From a Specified Unlawful Activity

Counts eight and nine charged Benjamin with violating

18 U.S.C. § 1957, which criminalizes "knowingly engag[ing] or

attempt[ing] to engage in a monetary transaction in criminally

derived property of a value greater than $10,000 and . . .

derived from specified unlawful activity." Specifically, count

eight charged a monetary transaction on April 16, 1998 involving

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a Citizens Bank check made payable to Lyndon Benjamin in the

amount of $10,893.60. Count nine charged a monetary transaction

on April 17, 1998 involving a BankBoston check made payable to

Lyndon Benjamin in the amount of $17,000. The government had to

establish in the circumstances of this case that the money used

to purchase the bank checks could be linked to the account

Benjamin had fraudulently established at Fleet Bank and funded

with stolen money.

Benjamin cites three deficiencies in the § 1957

evidence. He claims that the government failed to prove: (1)

that he knew the property was derived from a specified unlawful

activity; (2) that he knew the transactions involved criminally

derived property; and (3) that the two monetary transactions

involving the bank checks affected interstate commerce. In

United States v. Richard, 234 F.3d 763 (1st Cir. 2000), we

considered the prosecution's burden of proof for the elements of

§ 1957 relating to "specified unlawful activity" and "criminally

derived property":

A defendant may not be convicted under
section 1957(a) unless he knew that the
transaction involved "criminally derived
property," but he need not know that the
property was derived from the "specified
unlawful activity." 18 U.S.C. § 1957(c).
In other words, the government must prove
(1) that [the defendant] had general
knowledge of the subject property's criminal
nature, and (2) that the property, in fact,

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 was derived from a specified offense listed
in 18 U.S.C. § 1956(c)(7). 18 U.S.C. §
1957(f)(3). The government need not prove
that [the defendant] had knowledge of the
specified offense, or that he committed it.

Richard, 234 F.3d at 769. We discuss the elements of the

offense in turn.

1. Property derived from a specified unlawful activity

We easily dispose of Benjamin's argument that the

government had to prove that he knew the two bank checks were

derived from a specified unlawful activity. This claim misreads

the plain language of § 1957. Subsection (c) of that statute

states: "the Government is not required to prove the defendant

knew that the offense from which the criminally derived property

was derived was specified unlawful activity." 18 U.S.C. §

1957(c). See also United States v. Gabriele, 63 F.3d 61, 65

(1st Cir. 1995). It is sufficient under § 1957 that the two

bank checks were, in fact, derived from bank fraud, which is

listed in 18 U.S.C. § 1956(c)(7) as a specified unlawful

activity. Benjamin's lack of knowledge that bank fraud is among

the enumerated activities was irrelevant.

As we have explained in the preceding section, there

was ample evidence from which the jury could have concluded that

Benjamin committed bank fraud when he opened the account with an

assumed name, presented stolen checks for deposit, asked that

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the funds be credited to the Eastside Motorsports account, and,

as Ralph Chapel, obtained cash from the funds in this account

either by writing checks drawn on the account directly to cash,

or by writing large checks to Prime Speed and receiving checks

back from Prime Speed which he then cashed. More specifically,

Benjamin cashed a check for approximately $19,900 from Prime

Speed on April 14. Benjamin also withdrew $8,700 in cash from

the Eastside Motorsports account in two transactions on April 13

and April 14. Thus, Benjamin had a total of $28,600 cash in his

possession only a few days before he obtained bank checks on

April 16 and April 17 for $10,900 and $17,000, respectively.

Based on this evidence, the jury could have inferred that

Benjamin used that cash, which was derived from bank fraud, to

obtain the two bank checks. Thus, the jury could have concluded

that the two bank checks charged in counts eight and nine were

in fact drawn on funds obtained from a specified unlawful

activity.4

4While the government did not have to prove that Benjamin
knew the property was derived from a specified unlawful
activity, the district court instructed the jury that they
needed to find "that the defendant knew the property was derived
from bank fraud." The court acknowledged at a later proceeding
that this instruction improperly increased the burden for the
government. Thus, while there was no need for the government to
prove Benjamin's knowledge on this point, the improper
instruction likely meant that the jury found that Benjamin had
such knowledge. Even if he did not have that knowledge,
however, that fact does not affect our analysis of the

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 2. Criminally derived property

Next, Benjamin argues that the government failed to

prove that he knew that the transactions involved criminally

derived property. Section 1957 defines "criminally derived

property" as "any property constituting, or derived from,

proceeds obtained from a criminal offense." 18 U.S.C. §

1957(f)(2). We have interpreted this element to require a

defendant to have "general knowledge of the subject property's

criminal nature." Richard, 234 F.3d at 769. Benjamin's

conviction for bank fraud provided evidence that he realized the

funds originally in the Eastside Motorsports account - which

were then used to obtain the bank checks - were derived from

criminal activity.

Benjamin does not persuade us otherwise. He claims

that the issuance of the bank checks in his own name, and his

use of the checks to purchase a car in his own name, indicate

his lack of knowledge that the funds were criminally derived.

However, Benjamin's use of his own name for these transactions

is irrelevant. The subject property at issue for the monetary

sufficiency of the evidence under § 1957 because we consider
what the jury needed to find as though it had been instructed
properly. As we have held, "[a] patently erroneous . . .
instruction does not establish the standard by which we measure
the sufficiency of the evidence on appeal." United States v.
Zanghi, 189 F.3d 71, 80 (1st Cir. 1999).

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transactions charged in counts eight and nine is the money used

to obtain the bank checks. As we have explained, those funds

were criminally derived because they originally arrived in the

Eastside Motorsports account as a product of bank fraud.

Benjamin also claims that there is "no evidence, that

the defendant was aware of the nature, location, source,

ownership or control of the checks deposited by DeCosta."

However, those unauthorized deposits of stolen checks were made

with deposit slips pre-printed with the account information for

the Eastside Motorsports account. Benjamin does not dispute

that he was responsible for opening that account and that he did

so using a false name and a false social security number.

Because Benjamin opened the account, the jury reasonably could

have found that Benjamin was aware of DeCosta's deposits into

the account using the pre-printed slips provided by the bank.

Additionally, Benjamin, signing checks as Ralph Chapel, wrote

three checks totaling $80,000 from the account later in the same

day that DeCosta deposited the two stolen checks. These

circumstances reasonably could lead rational jurors to conclude

that Benjamin realized that the funds in the Eastside

Motorsports account were derived from some activity of a

criminal or fraudulent nature. See, e.g., Richard, 234 F.3d at

769 (upholding conviction under § 1957 where "[b]ased upon [the

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defendant's] convictions of both mail fraud and securities

fraud, it is clear that he had sufficient knowledge that the

money he received from his investors - the subject property -

was criminally derived"); United States v. Butler, 211 F.3d 826,

830 (4th Cir. 2000) (finding that five cashiers' checks drawn on

funds obtained through bankruptcy fraud constituted "criminally

derived property"). As we discussed above, there was also

evidence regarding Benjamin's cash withdrawals and cashing of

other checks from which the jury could have inferred that the

two bank checks were drawn on funds that were derived from the

bank fraud. Therefore, we find the evidence sufficient for the

jury to have found that Benjamin realized the bank checks were

property derived from criminal activity.

3. Monetary transaction affecting interstate commerce

Finally, Benjamin claims that the monetary transactions

did not have the requisite connection to interstate commerce.

Section 1957(f) defines "monetary transaction" as "the deposit,

withdrawal, transfer, or exchange, in or affecting interstate or

foreign commerce, of funds or a monetary instrument . . . by,

through, or to a financial institution." 18 U.S.C. §

1957(f)(1). Section 1957(f) only requires that the transactions

have a de minimis effect on commerce. See United States v.

Owens, 167 F.3d 739, 754 (1st Cir. 1999) (construing 18 U.S.C.

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§ 1956).5 As proof on this point, the government offered Fleet

Bank's certificate of insurance issued by the Federal Deposit

Insurance Corporation (FDIC). This document, certifying that

the bank is federally insured, suffices to satisfy the

requirement that the transactions had at least a minimal impact

on interstate commerce. See United States v. Ford, 184 F.3d

566, 584 (6th Cir. 1999) (construing 18 U.S.C. § 1956 and §

1957).

III. Jury Instructions

Benjamin objects to the jury instructions on two

grounds. He argues first that the district court omitted an

instruction on the materiality of the fraud in its instructions

on bank fraud. Second, Benjamin claims that the court's

instructions on § 1957 did not require the jury to find the

requisite connection between the monetary transaction and

interstate commerce. Because Benjamin did not raise these

objections before the district court, our review is for plain

error. See Fed. R. Crim. P. 52(b); see also United States v.

Olano, 507 U.S. 725, 731 (1993); Baldyga, 233 F.3d at 680.

Thus, before deciding that any error requires a new trial, we

must find that the error affected Benjamin's substantial rights

5
The interstate commerce element of § 1957 and § 1956
(money laundering) has been construed similarly. See, e.g.,
United States v. Ford, 184 F.3d 566, 583 (6th Cir. 1999).

-16-
by affecting the outcome of the trial. See Olano, 507 U.S. at

731; Baldyga, 233 F.3d at 682.

A. Bank Fraud Instruction

As the government concedes, the district court did not

instruct the jury that materiality was a required element of the

"scheme or artifice to defraud" prong of bank fraud under §

1344(1).6 Since the time of Benjamin's trial, the Supreme Court

has declared that materiality is an element of bank fraud in

proving that a defendant engaged in a scheme or artifice to

defraud. See United States v. Neder, 527 U.S. 1, 25 (1999);

United States v. Colon-Munoz, 192 F.3d 210, 221 (1st Cir. 1999).

Thus, the court's failure to instruct the jury on this point was

error. As we noted above, Benjamin's failure to object to this

omission means that we will correct the error only if we

conclude that it affected his substantial rights. See Olano,

507 U.S. at 731. To answer this question, we must determine

"whether the record contains evidence that could rationally lead

to a contrary finding with respect to the omitted element."

Neder, 527 U.S. at 19. See also Baldyga, 233 F.3d at 682.

6Under the false pretenses prong of bank fraud, § 1344(2),
the district court did instruct the jury that the false
representations needed to "relate to a material aspect of the
transaction in question." Thus, Benjamin challenges the jury
instructions on only one of the two prongs of the statute.

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 In Neder, the Court defined a matter as "material" if

"a reasonable man would attach importance to its existence or

nonexistence in determining his choice of action in the

transaction in question." Neder, 527 U.S. at 222 n.5 (quoting

Restatement (Second) of Torts § 538 (1976)). We find that the

jury, properly instructed on this issue, easily would have found

Benjamin's use of a false identification card and phony business

to be material. In making the unauthorized deposits into and

withdrawals out of the account, Benjamin further represented

that he was Ralph Chapel and implicitly represented that he was

authorized to cash or deposit the stolen checks. Fleet Bank

likely would have found Benjamin's use of false identifying

information important in determining whether the institution

would allow him to become a banking customer and whether the

bank would credit his account for the amount of the stolen

checks he and DeCosta presented for deposit. Thus, the record

does not contain evidence that could have led a rational jury to

reach a contrary finding on materiality.

B. Jury Instruction on Engaging in Monetary Transactions Over
$10,000 in Property Derived from Unlawful Activity

Benjamin's objection to the jury instructions on these

counts is similar to his challenge to the sufficiency of the

evidence: he argues that the district court instructed the jury

in a way that allowed it to find him guilty without determining

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that the two transactions affected interstate commerce.

Contrary to his claim, however, the district court instructed

the jury properly. As part of its explanation of "monetary

transaction," the court stated: "The term monetary transaction

means the deposit, withdrawal, transfer, or exchange in or

affecting interstate or foreign commerce of funds or a monetary

instrument by or through - by, through, or to a financial

institution." The jury received an additional instruction on

this point after it requested a clarification during its

deliberations on the definition of interstate commerce. In

response to this inquiry, the district court instructed the

jury, in part, as follows:

[Y]ou must still find that the
transactions had at least a minimal effect
on interstate commerce; that is, that the
activities affected commerce in any way or
degree.
Now, the interstate commerce element
can be established in several ways. First,
if you find that the government has proved
bank fraud as alleged in Count 1 of the
indictment, you are free to consider whether
or not the bank fraud, which is the
specified unlawful activity designated in
Counts 2 through 7 [the money laundering
counts], affected interstate commerce.
Second, you are free to consider, if
you find that an initial deposit of funds
was made to Fleet Bank, whether that initial
deposit of checks was to an FDIC-insured
financial institution.
Third, you are free to consider
whether or not the source of that initial

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 deposit to Fleet Bank affected interstate
commerce in any way or degree.

We discern no error in this instruction. As we have explained,

§ 1957 requires only that the monetary transaction have a de

minimis effect on interstate commerce. See Owens, 167 F.3d at

754. The theory of the government's case was that the four

stolen checks deposited in the Eastside Motorsports account at

Fleet Bank provided the funds for the purchase of the two bank

checks at issue in counts eight and nine. Therefore, the

instruction that the jury could find that these initial deposits

of stolen funds had a de minimis effect on interstate commerce -

either because the bank to which they were deposited was FDIC-

insured or because the source of that deposit actually affected

interstate commerce to any degree - adequately described the

requirements of § 1957.

IV. Variance

Benjamin argues that there was a variance between what

was alleged in count one of the indictment, charging him with

bank fraud, and the proof offered at trial. We will reverse a

conviction for this reason only where "the variance works a

substantial interference with the defendant's right to be

informed of the charges." United States v. Arcadipane, 41 F.3d

1, 6 (1st Cir. 1994). We consider this question de novo. See

United States v. Portela, 167 F.3d 687, 700 (1st Cir. 1999).

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 Benjamin seems to argue in his brief that a variance

existed because the indictment charged him with bank fraud,

requiring the prosecution to prove that he personally deposited

all of the checks involved, while the evidence demonstrated that

Ian DeCosta made the two-check deposit on April 9. However,

count one of the indictment charged Benjamin with bank fraud

under 18 U.S.C. § 1344, as well as with aiding and abetting that

crime, in violation of 18 U.S.C. § 2. There is no requirement

that a defendant personally commit an act to be held responsible

for aiding and abetting the commission of that act. See Colon-

Munoz, 192 F.3d at 223; United States v. Loder, 23 F.3d 586,

590-91 (1st Cir. 1994). The indictment alleged that Benjamin

engaged in a scheme to defraud Fleet Bank, and the evidence at

trial was offered to prove exactly that scheme. We thus

conclude that the indictment provided adequate notice to

Benjamin, and there was no variance in the proof offered.

V. Exculpatory Evidence

Benjamin claims that the district court erred in

denying his motion for a new trial based on the government's

failure to disclose handwriting exemplars he gave at the time of

his arrest in violation of Brady v. Maryland, 373 U.S. 83

(1963). We review the district court's denial of his motion for

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an abuse of discretion. See United States v. Montilla Rivera,

171 F.3d 37, 40 (1st Cir. 1999).

The handwriting samples at issue here were taken at the

time of Benjamin's arrest as part of routine Secret Service

procedures. The government never analyzed the samples or

introduced them at trial. Benjamin requested them in September

1999 following his conviction, and the record indicates that

counsel for the government had not been aware of the exemplars

(presumably because they were never analyzed or used for any

purpose) prior to Benjamin's request. While it was the

government's position then, and remains now, that it was not

required to produce the handwriting samples because they were

not analyzed or even used, counsel nonetheless responded

promptly to Benjamin's letter and produced the exemplars.

The prosecution is obligated to provide a defendant

access to material exculpatory evidence that is in its control.

See United States v. Bagley, 473 U.S. 667, 675-76 (1985); Brady,

373 U.S. at 87. Evidence is material only when "there is a

reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been

different." Bagley, 473 U.S. at 682. A "reasonable

probability" is one that is "sufficient to undermine confidence

in the outcome." Id.

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 We conclude easily that Benjamin received a fair trial

without presenting the handwriting exemplars for the jury's

consideration. He has not even attempted to explain how the

samples are material in the sense that they undermine confidence

in the jury's verdict of guilty. Indeed, as noted, the

exemplars were never analyzed or used as part of the

prosecution's case. The case against Benjamin did not rest on

an identification of his handwriting. Thus, we find that no

Brady violation occurred.

VI. Underrepresentation of African-Americans in the Jury

Venire

Benjamin, who is African-American, claims that the

underrepresentation of African-Americans in his jury venire

violated his rights under the Sixth Amendment and the Jury

Selection and Service Act, 28 U.S.C. § 1861. Guided by our

recent decision in United States v. Royal, 174 F.3d 1 (1st Cir.

1999), we reject this argument.

"[T]he American concept of the jury trial contemplates

a jury drawn from a fair cross section of the community."

Taylor v. Louisiana, 419 U.S. 522, 527 (1975). This requirement

is fundamental to the right to jury trial guaranteed by the

Sixth Amendment. See id. at 530; Royal, 174 F.3d at 6. To make

a prima facie case that the right to a jury drawn from a fair

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cross-section of the community has been violated, a defendant

must establish the following:

(1) that the group alleged to be excluded is
a "distinctive" group in the community;
(2) that the representation of this group in
venires from which juries are selected is
not fair and reasonable in relation to the
number of such persons in the community; and
(3) that this underrepresentation is due to
systematic exclusion of the group in the
jury- selection process.

Duren v. Missouri, 439 U.S. 357, 364 (1979). See also Royal,

174 F.3d at 6.

In Royal, as here, the defendant argued that he was

entitled to a new trial because the jury selection process for

the District of Massachusetts produced a systematic under-

representation of African-American jurors. Royal was allowed to

inspect the jury records for 1994 to investigate his claim, and

he retained an expert to analyze this data. See Royal, 174 F.3d

at 4-5. We noted at the outset of that opinion that "[t]here is

no dispute that Royal has satisfied the first prong of [the

Duren] test; blacks are unquestionably a 'distinctive' group for

the purpose of a fair cross-section analysis." Id. at 6. Thus,

we turn to the second prong of the Duren test to analyze

Benjamin's claim.

We need not discuss the complicated mathematical

analyses we considered in Royal. For the purpose of evaluating

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Benjamin's claim, we rely on our conclusion that the statistics

about the jury selection procedure in Massachusetts were

"insufficient to satisfy Royal's burden under the second prong

of Duren." Royal, 174 F.3d at 11. Benjamin attempts to avoid

this result by claiming only that the statistical analysis in

Royal "uses outdated numbers from 1994." However, he has not

articulated even a vague reason to suspect that the statistics

discussed in Royal are no longer accurate, let alone that such

different statistics, if they existed, would suffice to

establish a violation under Duren. In sum, Benjamin has not

explained why Royal should not guide our analysis here.

Accordingly, we cannot conclude that the representation of

African-Americans in the jury venires "is not fair and

reasonable in relation to the number of such persons in the

community." Duren, 439 U.S. at 364.7

VII. Ineffective Assistance of Counsel

Finally, Benjamin argues that his Sixth Amendment

rights were violated by the ineffective assistance of his trial

lawyer. However, "[w]e have held with a regularity bordering on

the monotonous that fact-specific claims of ineffective

7 Because we find that Benjamin's claim falters on the
second prong of the Duren test, we do not consider whether the
alleged underrepresentation of African-Americans in the jury
venires results from their systematic exclusion from the jury
selection process. See Royal, 174 F.3d at 11.

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assistance cannot make their debut on direct review of criminal

convictions, but, rather, must originally be presented to, and

acted upon by, the trial court." United States v. Mala, 7 F.3d

1058, 1063 (1st Cir. 1993); see also United States v. Berrios,

132 F.3d 834, 841 (1st Cir. 1998). Although we have

occasionally reviewed ineffective assistance claims on direct

appeal, "we travel this route only when the critical facts are

not in dispute and the record is sufficiently developed to allow

reasoned consideration of the claim." Mala, 7 F.3d at 1063.

Concluding that this is not such a case, we decline to consider

Benjamin's claim. This action, of course, is without prejudice

to Benjamin's right to raise the ineffective assistance of

counsel claim in a proceeding for post-conviction relief.

VIII. Conclusion

For the foregoing reasons, we affirm Benjamin's

convictions.

Affirmed.

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