THIRD SUPPLEMENT TO MEMORANDUM AND POINTS AND AUTHORITIES IN SUPPORT OF GROUNDS FOR RELIEF UNDER 28 U.S.C. § 1651 OF WRIT OF ERROR CORAM NOBIS TO VACATE FEDERAL CONVICTION WHERE SENTENCE HAS NOT YET BEEN SERVED.
Comes now Pro Per Defendant/Prisoner/Appellant Douglas J. Carpa and makes this third supplement to the First and Second Supplements attached to the 28 U.S.C. § 1651 Coram Nobis, specifically, to Ground Twelve and Ground Seven.
Ground Twelve: The Court erred when it denied my jury instruction on "lack of criminal intent" and "Good Faith Belief" in addition to the Court’s instruction on § 1503, obstruction of justice. There is abundant case law in the Fifth and Eleventh Circuits that "corruptly" requires a certain mental state of being improper, wicked, or evil as a necessary motive to convict under 18 U.S.C. § 1503.
"the Court approved jury instruction which stated that the word "corruptly" in 18 U.S.C. § 1503 means a defendant acted with improper motive or bad or evil or wicked purpose." United States v. Partin (1977, CA5 Ga) 552 F2d 621, cert den 434 US 903, 54 L ED2d 189, 98 5 Ct 298; United States v. Haas (1978, CA5 Ala) 583 F2d 216, reh den (CA5 Ala) 588 F2d 829, and cert den 440 US 981, 60 L Ed2d 240, 99 5 Ct 1788; Holland v. United States (1957, CA5 Fla) 245 F2d 341 (disapproved on other grounds Moore v. United States (CA5 Tex) 254 F2d 213, 58—1 USTC ¶ 9371; United States v. Ryan (1971, CA9 Cal) 455 F2d 728, 20 ALR Fed 719; United States v. Haldeman (1976 181 App DC 254, 559 F2d 31, cert den 431 US 933, 53 L Ed2d 250, 97 5 Ct 2641, reh den 433 US 916, 53 L Ed2d 1103, 97 5 Ct 2992) (the term "corruptly," as used in the statue simply meant having an evil or improper purpose or intent);
"The court regarded intent to be an essential element of the "corrupt" conduct proscribed under 18 U.S.C. § 1503." United States v. Haas (1978, CA5 Ala) 583 F2d 216, reh den (CA5 Ala) 588 F2d 829 and cert den 440 US "term ‘corruptly,’ as used in 18 U.S.C.S. § 1503, making a federal offense to corruptly obstruct administration of justice, is specific intent of crime, and term takes on different meanings in various contexts." (emphasis mine) United States v. Brand (1985, CAll Ala) 775 F2d 1460.
"it [government] must establish that conduct was prompted in part by corrupt motive." (emphasis mine) United States v. Thomas (1990, CAll GA) 916 F2d 647; United States v. Saget (1993, CA11 Ga) 991 F2d 702.
There was absolutely no proof of evil, bad or criminal intent on my part of that of Codefendants Ippolito and Mokdad. Therefore, the Court’s denial of my jury instruction of "lack of criminal intent" and "Good Faith Belief" was plain error.
"when trial judge omits from jury instructions element of offense necessary to find defendant guilty, omission is plain error." United States v. Nelson, 27 F3d 199 (6th Cir. 1994).
"Omission of essential element of offense from jury instruction is plain error and cannot be harmless." United States v. Hove, 52 F3d 233 (9th Cir. 1995).
"Jury verdict cannot stand if the instructions provided to the jury do not require it to find each element of the crime under the proper standard of proof." United States v. Ojebode, 957 F2d 1218 (5th Cir. 1992).
"Failure to instruct jury as to required element of offense charged would mandate reversal." United States v. Davis, 956 F2d 804 (10th Gir. 1992).
"Failure to submit entire element of crime to jury, when properly preserved request is made, is treated as structural and is "reversible error" without regard to harm." United States v. Randazzo, 80 F3d 623 (1st Cir. 1996).
"[When] the judge failed/refused to give requested instructions, the Supreme Court reversed and held that state statutes did not take precedent over constitutional law and that the judge had to give the requested instruction. "James v. Kentucky, 466 US 341, 80 L ED2d 346, 104 5 Ct 1830 (1984).
Ground Seven: The case law is abundant that reversal is required for denying my motion to put on all defenses and theories of defense.
"Defendant in criminal trial is entitled to have jury consider any theory of defense that is supported by law and that has some foundation in evidence. "United States v. Carter, 910 F2d 1524 (7th Cir. 1990); United States v. Schweihs, 971 F2d 1302 (7th Cir. 1992); United States v. Washington, 819 F2d 221 (9th Cir. 1987).
"Convictions based on theories not submitted to the jury cannot stand." United States v. Winfield, 997 F2d 1076 (4th Cir. 1993).
"Refusal to give accurate jury instruction is reversible error if it impairs defendant’s theory of the case and is not covered adequately by instructions given. United States v. Riffe, 28 F3d 565 (6th Cir. 1994).
"Criminal defendant has right to jury charge which reflects defense theory." United States v. Boonphakdee, 40 F3d 538 (2d Cir. 1994).
"There is no more cruel tyranny than that which is exercised under cover of the law, and with the colors of justice." United States v. Jannotti, 673 F2d 578 at 614—15 quoting Judge Aldisert dissenting quoting Montesquieu De L’Espirit du lois (1748).
I declare under penalty of perjury the foregoing is true and correct.
Executed this 23 day of February 1998.
/s/
Douglas J Carpa, Pro Per
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