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).
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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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