Michael Joseph Kearns ]

Plaintiff ]

] Case No. _____________

]

v. ]

]

United States of America ] Companion Criminal Case

Respondent ] No. SA-95-CR-201

Michael Joseph Kearns ]

Plaintiff ]

] Case No. _____________

]

v. ]

]

United States of America ] Companion Criminal Case

Respondent ] No. SA-95-CR-201

I, Michael Joseph Kearns, Plaintiff/Petitioner herein tenders this MEMORANDUM OF LAW in support of PETITION FOR WRIT OF HABEAS CORPUS in the nature of a Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody in support of the said PETITION FOR WRIT OF HABEAS CORPUS and would demand this Court consider these arguments and authorities of this Petitioner in the matter concerning his liberty.

This MEMORANDUM OF LAW is tendered to this Court without prejudice and with his explicit reservation of all his rights.

Michael Joseph Kearns

c/o Jean Rae Kearns

8916 Datapoint #3225

San Antonio, Texas 78229

TABLE OF CONTENTS

PAGE

JURISDICTION * * * * * 10

STATEMENT OF THE CASE * * * * 10

STATEMENT OF THE FACTS * * * * 11

STATEMENTS FOR PETITION FOR WRIT OF HABEAS CORPUS * 15

GROUND ONE * * * * * 16

THE TRIAL COURT LACKED JURISDICTION BY AND WHEN THE INDICTMENT WAS AMENDED AS SET FORTH IN GROUNDS HEREINAFTER.

GROUND TWO * * * * * 17

THAT THE REMOVAL OF BILLY MACK O'NEILL MANDATED THAT HE BE SEVERED FROM THE TRIAL SO THAT HE COULD BE CALLED AS A DEFENSE WITNESS.

GROUND THREE * * * * * 19

THAT THE INDICTMENT WAS IMPERMISSIBLE AMENDED BY THE REMOVAL OF BILLY MACK O'NEILL AS A CONSPIRATOR BUT LEFT IN THE INDICTMENT AS AN AIDER AND ABETTER OF THE CONSPIRACY AND AN AIDER AND ABETTER OF THE SUBSTANTIVE COUNTS.

GROUND FOUR * * * * * 19

TRIAL COURT LACKED JURISDICTION BECAUSE THE INDICTMENT WAS AMENDED IN SUBSTANCE BY THE REMOVAL OF ONE OF THE CONSPIRATORS FROM THE CONSPIRACY COUNT OF THE INDICTMENT.

GROUND FIVE * * * * * 20

THE INDICTMENT FAILED TO ALLEGE THAT THE CERTIFIED MONEY ORDER OR THE CERTIFIED BANKERS CHEQUE WERE DISHONORED BY THE DRAWEE IN COUNTS 2 THROUGH 15 - AND THE COURTS INSTRUCTIONS FAILED TO EXPLAIN THIS MATERIAL FACT TO THE JURY.

GROUND SIX * * * * * 22

THE AMENDED INDICTMENT BROADENED THE CHARGES AND CULPABILITY AGAINST THE REMAINING DEFENDANTS AFTER BILLY MACK O'NEILL WAS STRUCK FROM THE CONSPIRACY COUNT IN THE INDICTMENT.

GROUND SEVEN * * * * * 23

AMENDMENT OF THE INDICTMENT BY STRIKING BILLY MACK O'NEILL FROM CONSPIRACY COUNT TOOK AWAY THE INTENT OF THE GRAND JURY WHEN THEY VOTED FOR A TRUE BILL TO PASS THE CONSPIRACY COUNT TO THE PETIT JURY WITH ALL THE ALLEGED DEFENDANTS INCORPORATED BY REFERENCE AND OVERT ACTS THERETO.

GROUND EIGHT * * * * * 23

REMOVAL OF BILLY MACK O'NEILL FROM THE LIST OF THE DEFENDANTS AT THE BEGINNING OF THE CONSPIRACY COUNT WHILE LEAVING HIM WITHIN THE TEXT OF THE CONSPIRACY COUNT AS HIMSELF AND/OR HIS ALTER EGO, KEPT HIM IN THE COUNT AS A CONSPIRATOR WHO WAS STILL THE PRINCIPAL ENTITY, BUT EXEMPTED HIM FROM THE CONSPIRACY HE WAS INHERENTLY INVOLVED IN, AS HIS ALTER EGO.

GROUND NINE * * * * * 25

THAT THE REMOVAL OF BILLY MACK O'NEILL AND O.M.B./W.D. MCCALL AND ASSOCIATES FROM THE INDICTMENT AS A CONSPIRATOR REQUIRED AN INSTRUCTION ON MULTIPLE CONSPIRACIES.

GROUND TEN * * * * * * 25

AFTER THE REMOVAL OF BILLY MACK O'NEILL - O.M.B., W.D. MCCALL AND ASSOCIATES FROM THE INDICTMENT AT THE COMMENCEMENT OF THE TRIAL - THE INDICTMENT AND THE AMALGAMATED JURY INSTRUCTIONS FAILED TO EXPLAIN HOW THE JURY WAS TO PERCEIVED AND UTILIZE THE INTEGRATED REFERENCING OF THE OVERT ACTS TO THE SUBSTANTIVE COUNTS.

GROUND ELEVEN * * * * * 30

THE REMOVAL OF BILLY MACK O'NEILL - O.M.B., W.D. MCCALL AND ASSOCIATES FROM THE INDICTMENT CREATED TWO INTERPRETATIONS - ONE WHICH STATED AN OFFENSE AND ONE WHICH DID NOT.

GROUND TWELVE * * * * * 30

THE REMOVAL OF BILLY MACK O'NEILL FROM THE CONSPIRACY COUNT IN THE INDICTMENT CONSTITUTED A MATERIAL AMENDMENT OF THE INDICTMENT.

GROUND THIRTEEN * * * * * 31 THAT THE COURT FAILED TO INSTRUCT THE JURY ON THE REQUIREMENT OF FINDING UNIFORM UNANIMOUS VERDICTS OF GUILT FROM THE MULTIPLE SELECTION OF CHOICES AVAILABLE TO THEM BY THE STRUCTURING OF THE INDICTMENT AND THE REMOVAL OF BILLY MACK O'NEILL AND O.M.B., W.D. MCCALL AND ASSOCIATES FROM THE CONSPIRACY COUNT.

GROUND FOURTEEN * * * * * 37

THAT THE DISMISSAL OF BILLY MACK O'NEILL AND THE AMALGAMATED INSTRUCTION TO THE JURY DENIED YOUR MOVANT A FAIR TRIAL.

GROUND FIFTEEN * * * * * 39

THAT THE INSTRUCTIONS TO THE JURY FAILED TO INSTRUCT THAT BILLY MACK O'NEILL COULD NOT BE USED AS AN AIDER AND ABETTER TO THE CONSPIRACY AS WELL AS BEING EXEMPTED FROM THE CONSPIRACY AND THE OVERT ACTS THERETO.

GROUND SIXTEEN * * * * * 40

THAT THE INSTRUCTIONS TO THE JURY FAILED TO INSTRUCT THAT MICHAEL JOSEPH KEARNS AND CLARENCE RAY MIKOLAJCZYK COULD NOT AID AND ABET THEMSELVES IN THE SUBSTANTIVE COUNTS.

GROUND SEVENTEEN * * * * 40

THAT THE INSTRUCTION TO THE JURY FAILED TO INSTRUCT THE JURY THAT IN COUNT ONE THEY COULD NOT USE BILLY MACK O'NEILL AS THE "ONE" CONSPIRATOR, DURING THE EXISTENCE OF THE CONSPIRACY, WHO KNOWINGLY COMMITTED AN OVERT ACT DESCRIBED IN THE INDICTMENT.

GROUND EIGHTEEN * * * * * 41

THAT THE INSTRUCTIONS TO THE JURY FAILED TO INSTRUCT THE JURY ON THE ELEMENTS OF AIDING AND ABETTING A CONSPIRACY - AND - ON THE ELEMENTS OF CONSPIRING TO AID AND ABET THE COMMISSION OF A SUBSTANTIVE COUNT IN THE INDICTMENT.

A. THAT THE INSTRUCTIONS TO THE JURY FAILED TO INSTRUCT THE JURY ON THE ELEMENTS OF AIDING AND ABETTING A CONSPIRACY.

B. THAT THE INSTRUCTIONS TO THE JURY FAILED TO INSTRUCT THE JURY ON THE ELEMENTS OF CONSPIRING TO AID AND ABET THE COMMISSION OF A SUBSTANTIVE COUNT IN THE INDICTMENT.

GROUND NINETEEN * * * * * 43

THAT THE REMOVAL OF BILLY MACK O'NEILL FROM THE LIST OF CONSPIRATORS ALONG WITH AN IMPROPER INDICTMENT USING UNKNOWN CO-CONSPIRATORS - WITHOUT A BILL OF PARTICULARS OR ANY INSTRUCTION FROM THE COURT TAINTED THE JUDICIAL PROCESS AND MANDATES PLAIN ERROR AND A REVERSAL OF ALL CHARGES AND ALL COUNTS.

GROUND TWENTY * * * * * 43

THAT THE INSTRUCTIONS TO THE JURY THAT THE GOVERNMENT WAS NOT REQUIRED TO PROVE THE ABSENCE OF GOOD FAITH WAS PLAIN ERROR MANDATING AN AUTOMATIC REVERSAL.

GROUND TWENTY ONE * * * * 46

THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE THE ASSISTANCE OF COUNSEL WAS STANDBY AND MADE WITHOUT A DETAILED INQUIRY AND EDUCATED EFFORT BY THE COURT AS TO THIS ACCUSED'S KNOWLEDGE, ABILITY TO PRESENT HIMSELF, AND KNOWING WAIVER OF ASSISTANCE OF COUNSEL AND THAT THE WAIVER, IF ANY, WAS VOLUNTARY AND KNOWLEDGEABLE.

GROUND TWENTY TWO * * * * 48

THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, EVENTHOUGH, HE, BY HIS OWN ADMISSION LACKED KNOWLEDGE OF THE COMPLEX SUBJECT OF NEGOTIABLE INSTRUMENTS, HE DID NOT REMOVE HIMSELF FROM THE CASE, NOR, DID HE ASK THE COURT TO APPOINT AN EXPERT ON NEGOTIABLE INSTRUMENTS TO ADVISE HIM REGARDING THIS COMPLEX SUBJECT.

GROUND TWENTY THREE * * * * 50

THE ASSISTANCE OF COUNSEL PROVIDED BY THE COURT WAS INEFFECTIVE, BECAUSE, BY HIS OWN ADMISSION, HE DIDN'T HAVE ANY KNOWLEDGE REGARDING THE COMPLEX SUBJECT OF NEGOTIABLE INSTRUMENTS AND FAILED TO ESTABLISH FOR THE JURY THAT THE CERTIFIED MONEY ORDERS AND THE CERTIFIED BANKERS CHEQUES WERE NEGOTIABLE INSTRUMENTS.

GROUND TWENTY FOUR * * * * 51

THE ASSISTANCE OF COUNSEL PROVIDED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE NEVER DID GET THE "GIST" OF THE INDICTMENT AS STATED IN PARAGRAPH NUMBER 7 OF THE MANNER AND MEANS OF THE INDICTMENT.

GROUND TWENTY FIVE * * * * 52

THE ASSISTANCE OF COUNSEL PROVIDED BY THE COURT WAS INEFFECTIVE, BECAUSE, WHILE HE NEVER DID UNDERSTAND THE "GIST" OF THE INDICTMENT, THAT LACK OF UNDERSTANDING WOULD PREVENT HIM FROM KNOWING THAT MATERIAL EXCULPATORY FACTS WERE WITHHELD FROM THE GRAND JURY.

GROUND TWENTY SIX * * * * 54

THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, WITHOUT UNDERSTANDING THE "GIST" OF THE INDICTMENT, THE COUNSEL COULD NOT MOVE FOR SEVERANCE OF BILLY MACK O'NEILL FROM THE TRIAL SO HE COULD BE CALLED AS A DEFENSE WITNESS TO DISPUTE THE STATEMENT IN PARAGRAPH NUMBER 7 OF THE MANNER AND MEANS.

GROUND TWENTY SEVEN * * * * 55

THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE FAILED TO HIRE AN INVESTIGATOR, DEMAND THE COURT HIRE AN INVESTIGATOR, OR INVESTIGATE HIMSELF AS TO ALL THE FACTS OF THE CASE AND ALL INSTANCES OF THE USE OF THE CERTIFIED MONEY ORDERS AND CERTIFIED BANKERS CHEQUES TO DETERMINE WHETHER OR NOT ANY WERE DISHONORED, AND WHETHER THERE WERE INSTANCES OF THEIR USE THAT WAS NOT CHARGED AND WHY.

GROUND TWENTY EIGHT * * * * 56

THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HIS LACK OF KNOWLEDGE ON NEGOTIABLE INSTRUMENTS PROHIBITED HIM FROM UNDERSTANDING THE USE OF AND THE RELIANCE UPON THE TEXAS BUSINESS AND COMMERCE CODE (UNIFORM COMMERCIAL CODE(UCC)) BY THE ACCUSED AND THAT RELIANCE AMOUNTED TO GOOD FAITH, ON THE PART OF THE ACCUSED.

GROUND TWENTY NINE * * * * 56

THE ASSISTANCE OF COUNSEL PROVIDED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE DID NOT OBJECT TO THE DISMISSAL OF BILLY MACK O'NEILL FROM COUNT ONE, CONSPIRACY, OF THE INDICTMENT, BECAUSE THE DISMISSAL CHANGED THE GOVERNMENTS THEORY OF THE CASE FROM A SINGLE CONSPIRACY TO THAT OF MULTIPLE CONSPIRACIES.

GROUND THIRTY * * * * * 57

THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE THE ASSISTANCE OF COUNSEL DID NOT OBJECT TO A MATERIAL AMENDMENT OF THE INDICTMENT WITHOUT DISMISSAL OF THE INDICTMENT AND RE-PRESENTMENT TO THE GRAND JURY FOR A SUPERSEDING INDICTMENT.

GROUND THIRTY ONE * * * * 58

THE ASSISTANCE OF COUNSEL PROVIDED BY THE COURT WAS INEFFECTIVE, BECAUSE, THE ASSISTANCE OF COUNSEL DID NOT OBJECT TO THE BROADENING OF THE INDICTMENT AS TO THIS ACCUSED BY THE DISMISSAL OF BILLY MACK O'NEILL FROM COUNT ONE OF THE INDICTMENT AND DEMANDING THE INDICTMENT BE DISMISSED FOR BROADENING OF THE CHARGES AGAINST THIS ACCUSED.

GROUND THIRTY TWO * * * * 59

THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE FAILED TO INFORM THE COURT ABOUT THE EXISTENCE OF A PERSONAL ASSET, WORTH FAR IN EXCESS OF THE AMOUNT OF THE LETTER OF CREDIT, THAT COULD BE USED TO DISCHARGE ANY CIVIL OBLIGATION THIS ACCUSED MAY HAVE HAD UNDER THE U.C.C. UPON ANY CERTIFIED MONEY ORDERS HE SIGNED AS MAKER.

GROUND THIRTY THREE * * * * 61

THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE DID NOT OBJECT TO THE GOVERNMENT CHANGING IT'S THEORY OF THE CASE BY THE WITHDRAWAL/DISMISSAL OF BILLY MACK O'NEILL AS A CONSPIRATOR IN COUNT ONE OF THE INDICTMENT.

GROUND THIRTY FOUR * * * * 61

THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, THE INDICTMENT FAILED TO ALLEGE THE CERTIFIED MONEY ORDERS AND THE CERTIFIED BANKERS CHEQUES WERE DISHONORED BY THE DRAWEE AS REQUIRED BY THE TEXAS BUSINESS AND COMMERCE CODE BEFORE ANY ACTION CAN BE TAKEN THEREON, AND THE ASSISTANCE OF COUNSEL FAILED TO OBJECT TO THIS DISREGARD OF STATE LAW AND DEMAND A DISMISSAL WITH PREJUDICE.

GROUND THIRTY FIVE * * * * 63

THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE FAILED TO DEMAND A GOOD FAITH EVIDENTIARY HEARING PRIOR TO TRIAL FOR THE PURPOSE OF ESTABLISHING GOOD FAITH ON THE PART OF THE ACCUSED, THE ELEMENTS OF GOOD FAITH, THE EXISTENCE OF THE LETTER OF CREDIT FROM BILLY MACK O'NEILL AND THE PERSONAL ASSET, WORTH FAR IN EXCESS THE VALUE OF THE LETTER OF CREDIT, PLEDGED TO GUARANTEE THE LETTER OF CREDIT, ALL IN GOOD FAITH.

GROUND THIRTY SIX * * * * 64

THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE DID NOT DEMAND THE COURT DISMISS THE INDICTMENT AFTER THE MATERIAL AMENDMENT OF THE INDICTMENT BECAUSE THE MATERIAL AMENDMENT OF THE INDICTMENT CAUSED THE COURT TO LOSE JURISDICTION OF THE MATTER, IF IT IN FACT EVER HAD ANY.

GROUND THIRTY SEVEN * * * * 65

THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, WHEN THE INDICTMENT FAILED TO ALLEGE THE CERTIFIED MONEY ORDERS AND THE CERTIFIED BANKERS CHEQUES WERE NOT DISHONORED, PURSUANT TO TEXAS STATE LAW, INDICATED THIS INFORMATION WAS WITHHELD FROM THE GRAND JURY AND THE ASSISTANCE OF COUNSEL FAILED TO CHALLENGE THE GRAND JURY PROCEEDINGS FOR THE OMISSION OF THIS MATERIAL FACT.

GROUND THIRTY EIGHT * * * * 66

THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, WHEN THE INDICTMENT FAILED TO ALLEGE VIOLATIONS OF STATE LAW REGARDING NEGOTIABLE INSTRUMENTS, THE ASSISTANCE OF COUNSEL FAILED TO HAVE THE JUDGE INSTRUCT THE JURY AS TO THE APPLICABILITY OF STATE LAW TO NEGOTIABLE INSTRUMENTS.

GROUND THIRTY NINE * * * * 67

THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE FAILED TO EDUCATE THE JURY, AND THEN HAVE PROPER JURY INSTRUCTIONS REGARDING THE DOCTRINES OF ALTER EGO AND THE INSTRUMENTALITY RULE.

GROUND FORTY * * * * * 69

THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, WITH THE POSSIBILITY OF MULTIPLE CONSPIRACIES EXISTING, HE DID NOT DEMAND A JURY INSTRUCTION ON MULTIPLE CONSPIRACIES.

GROUND FORTY ONE * * * * 70

THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE FAILED TO MAKE SURE THE JURY UNDERSTOOD THE HODGEPODGE OF OVERT ACTS AND COUNTS IN THE INDICTMENT.

GROUND FORTY TWO * * * * 71

THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE DID NOT DEMAND A VERDICT FORM THAT WAS CONSISTENT WITH THE LAW, INDICTMENT AND THE FACTS.

GROUND FORTY THREE * * * * 72

THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE HE DID NOT MAKE SURE THE JURY WAS INSTRUCTED AS TO BILLY MACK O'NEILL'S REMOVAL/DISMISSAL FROM COUNT ONE AS AN ACCUSED AND YET STILL LEFT IN THE MANNER AND MEANS OF THE CONSPIRACY AS THE CENTRAL FIGURE, PARAGRAPH NO. 8., AND THE OVERT ACTS, WHERE HE AND/OR HIS ALTER EGO IS MENTIONED IN EVERY GROUP OF OVERT ACTS THAT MAKE UP EACH OF COUNTS 2 - 15.

GROUND FORTY FOUR * * * * 74

THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE ALLOWED WITHOUT OBJECTION, AND INDICTMENT THAT CREATED TWO INTERPRETATIONS, ONE WHICH STATED AN OFFENSE AND ONE WHICH DID NOT STATE AN OFFENSE.

GROUND FORTY FIVE * * * * 75

THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE FAILED TO HAVE THE COURT INSTRUCT THE JURY ON THE REQUIREMENT OF FINDING UNIFORM UNANIMOUS VERDICTS OF GUILT FROM THE MULTIPLE SELECTION OF CHOICES AVAILABLE TO THEM BY THE STRUCTURING OF THE INDICTMENT AND THE REMOVAL OF BILLY MACK O'NEILL AND O.M.B., W.D. MCCALL AND ASSOCIATES FROM THE CONSPIRACY COUNT.

GROUND FORTY SIX * * * * 82

THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE FAILED TO OBJECT TO THE USE OF THE INDICTMENT AS EVIDENCE AGAINST THIS ACCUSED.

GROUND FORTY SEVEN * * * * 85

THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE FAILED TO MAKE SURE THE JURY UNDERSTOOD BILLY MACK O'NEILL COULD NOT BE USED AS AN AIDER AND ABETTER OF THE CONSPIRACY.

GROUND FORTY EIGHT * * * * 86

THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE FAILED TO OBJECT TO THE COURT'S FAILURE TO INSTRUCT THE JURY THAT THE LONE INDIVIDUAL NAMED IN COUNTS 3 AND 7, THE ACCUSED, COULD NOT BE CHARGED WITH AND CONVICTED OF A CHARGE, AIDING AND ABETTING, WHICH REQUIRES A PRINCIPAL.

GROUND FORTY NINE * * * * 87

THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE FAILED TO HAVE THE JURY MAKE A DETERMINATION WHETHER THIS ACCUSED CONSPIRED TO AID AND ABET THE CONSPIRACY HE HAD WITH HIMSELF or THIS ACCUSED AIDED AND ABETTED THE CONSPIRACY TO AID AND ABET HIMSELF IN THE COMMISSION OF A SUBSTANTIVE OFFENSE.

GROUND FIFTY * * * * * 88

THE ASSISTANCE OF COUNSEL PROVIDED BY THE COURT WAS INEFFECTIVE, BECAUSE, BY FAILING TO MAKE TIMELY OBJECTIONS AND DEMAND ON THE COURT, HE ALLOWED THE STANDARD OF REVIEW TO SHIFT FROM HARMLESS ERROR TO THE STANDARD OF PLAIN ERROR.

Ground FIFTY ONE * * * * 89

THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE HE DID NOT OBJECT TO THE USE OF INSTRUMENTS NOT PART OF THE ALLEGED CONSPIRACY, FOR WHICH NO PROPERTY, MONEY OR FUNDS WAS SOUGHT, TO BE ADDED TO THE AMOUNT OF "LOSS" FOR THE CALCULATION OF SENTENCE.

The jurisdiction of the Constitution for the United States of America and the Judiciary Act of 1789, 1 Stat. 73, is invoked. And as the Writ of Habeas Corpus invoked herein is a common law action, involving substantive rights guaranteed this accused by the Constitution for the United States of America, this Court is obligated to convene the Common Law side of the Court with Section 34 of the Judiciary Act of 1789, 1 Stat. 92, speaking expressly to the subject; And be it further enacted, that the laws of the several states, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply.

(emphasis added)

On June 21, 1995, a sealed Indictment was issued by a grand jury sitting for the United States District Court, San Antonio, Bexar County, Texas, charging this accused with violations of the Federal Government's own Code, Title 18 USC §§ 2, 371, 1341, and not any statutory violations of any particular "Act of Congress."

This accused was arrested sometime near the end of August in Snyder, Texas.

Sometime after this accused's arrest, Joe Mike Egan was appointed by the Court as this accused's standby/advisory assistance of counsel, over my objection.

Joe Mike Egan came to see me several times at the Wackenhut facility. During these visits I had discussions with Mr. Egan regarding the good faith defense issues, the Texas Business and Commerce Code (Uniform Commercial Code (UCC)), and the Federal Rules of Criminal Procedure, among others. Mr. Egan informed me he had no knowledge of negotiable instruments, the UCC, and he did not have a Federal Criminal Code and Rules in his office.

I asked Mr. Egan to do some investigations regarding the case and he told me he didn't have the time.

At the very beginning of the trial and during all proceedings I made all my appearances as special appearances and I complained to the Judge outlining the most egregious defects of Mr. Egan as to his knowledge and performance. The Judge told me I had to make do with Mr. Egan.

In light of the Amendment Number Six's command "to be informed of the nature and cause of the accusation;" I attempted to query the Judge regarding specifics of nature and cause, trying to pin down the truth without any assumptions or presumptions being used against me without my knowledge. The Judge refused on the record to answer any of my questions.

During the second week of the trial I found a copy of "Benedict's on Admiralty", a comprehensive legal treatise on admiralty. "Benedict's" listed in one section admiralty crimes and listed therein was "18 USC 371 - Conspiracy." When I queried the Judge trying to pin down the truth as to whether, "18 USC 371 - Conspiracy" was in fact an admiralty crime, the Judge responded, "You don't see any ships around here, do you Mr. Kearns?"

The query regarding admiralty was to find out if there was some voluntary contract/agreement placing myself under the Admiralty Jurisdiction. I even demanded of the Judge to shut down the admiralty side of the Court and to reconvene the common law side.

When I could not get answers from the Judge or my standby/advisory assistance of counsel, nor any help from the same counsel, I felt as if there was no chance to get a just determination on the merits, so I prepared an affidavit and left the trial.

I was then arrested some seven months later and have been in Federal custody since.

There was no appeal filed on my behalf, I am attacking the whole proceeding with a Petition for a Writ of Habeas Corpus.

This case actually started in l990 when Michael Joseph Kearns started a process with the General Electric Company, Aircraft Engines Division, Lynn, Mass. (GE) regarding a "hush kit" for a series of GE aircraft jet engines namely the CF-700. The end result of the series of negotiations was that I caused the forming of a Delaware Corporation, Noise Reduction Engineering, Inc. (NRE) and the issuance of a letter of intent from GE to NRE regarding the said CF-700 "hush kit" project.

Because neither Michael Joseph Kearns or his partner and equal stock holder of NRE stock, George Ottendorf, had the available funds to build a prototype, flight test the prototype and get U.S. Federal Aviation Administration (FAA) approval, we went looking for an investor. One of the many potential investors was a French company, Societe D'Exploitation et de Constructions Aeronautiques, (SECA), a member of Group Aerospatiale, whom is owned principally by the French Government (98%).

The result of the negotiations was a "Stock Transfer Agreement" whereby the stock in NRE was transferred to SECA with certain obligations by SECA to Michael Joseph Kearns and George Ottendorf. There was also an agreement setting forth advance payments against profits in the form of and named an "Employment Agreement" but the substance was a non-compete agreement.

The total contractual value was approximately 120 MUSD.

Because of fraud, bad faith dealing and other allegations the said agreements were canceled, revoked and rescinded by Michael Joseph Kearns issuing an Affidavit of Revocation and Rescission and demanding the return of his property, namely the NRE stock.

The value represented by the action against the French involving the return of the NRE stock was used as the basis for O.M.B., W.D. McCall and Associates to issue Michael Joseph Kearns a Letter of Credit in the amount of 1.5 MUSD, and Certified Money Orders (CMO) to use to exercise this line of credit. Any funds, credit or value issued as a result of the Letter of Credit was understood to be returned when the French situation was resolved.

My cautious approach to working with O.M.B., W.D. McCall and Associates was in part the result of a business deal with a company by the name of Computer Resources, Inc. wherein I invested $50,000. and the contractual arrangements regarding the $50,000. were not lived up to. The French deal had turned into the same kind of a situation only with much larger numbers. I certainly did not want another problem situation on top of the ones I already had.

In order to further validate whether or not O.M.B., W.D. McCall and Associates had the authority to issue and can issue a Letter of Credit as proposed, I contacted a lawyer from Seattle, Washington area by the name of Hartford Van Dyke, who is an expert regarding financial matters of this type, specifically in the area of expertise regarding liens and the collection thereof. I personally sent Mr. Van Dyke approximately $240. for copying and mailing costs of a couple of thousand pages of copies regarding the commercial precepts of these matters.

A copy of Anderson's on the UCC was given to me with an update subscription for me to do research into the various aspects of the said UCC and to have the case law to back up the conclusions made by Anderson's. The set of Anderson's on the UCC consisted of a set of books, about 8 or 9 in number, which took the UCC apart sentence by sentence and made comments on the same, as well as giving case law to back up their conclusions. This set of books cost approximately $960.00.

I also obtained a copy of the Bank Officer's Handbook on Commercial Banking Law, which explained the Uniform Commercial Code (UCC) specifically to the operations of banks and financial institutions, from Attorney Jerry Wilkins, while I was in Waxahachie, Texas to investigate the operation.

Some of the important information I came across while doing research was that the principal in O.M.B., W.D. McCall and Associates, Billy Mack O'Neill, having been in the business of vehicle sales for years, is actually listed in Title 31 United States Code § 5312 (a)(2)(T) as a "financial institution." And further that contained within the Governments own Code, the Federal Code of Criminal Procedure, Title 18 USC where "credits" are listed as an ASSET in section 664, as things of VALUE in section 657, and also listed as PROPERTY in section 1344 of the said Title 18 USC.

I further wanted to test the validity of these types of negotiable instruments, so, I took a $1,000,000. negotiable instrument made payable to myself from LeRoy Schweitzer and attempted to deposit it with the clerk of the United States District Court as a bond in a civil action to give the clerk an opportunity to validate or verify the authenticity of the instrument. After a 20 minute wait in the clerk's office at the clerk's counter, the clerk told me I would need an order from the judge before she could accept it.

I also took another $1,000,000. negotiable instrument to a bank for verification. I gave the instrument to the bank only for verification and collection, and received a receipt for the said instrument. I did not open an account with the instrument, nor deposit the instrument for credit, money or value from the bank. In the process of presentment, the F.B.I. took the instrument from commercial channels and labeled the instrument as false, fraudulent, and fictitious, without presentment to the payor.

I then had a Notary Public issue a Notice of Protest against the instrument and I filed the said Notice of Protest with the postmaster in the town where the bank is located, which is a requirement under the UCC before an action can be taken on the instrument by the holder in due course.

It was my intent and it still is my intent to cover direct losses to any party because of my actions, from the proceeds of NRE.

I never used an alias but always used my own name and address so everyone knew how and where to get a hold of me. Thus there was no scienter or mens rea to defraud anyone.

There were several facts that came to light, namely, an organization in Wisconsin, Farm Preservation, run by one L.A. Peth, had been issuing credit and credit instruments for four (4) years with no civil litigation, 18 USC 1345, or indictments.

When I issued the CMO to Wichita Falls Teachers Federal Credit Union, for $15,000 they IMMEDIATELY sent me the Certificate of Title with the lien discharged and a company check for $800. These two actions further validated, these instruments (CMO's) were used in the normal course of business and they were familiar with them to the point they took immediate action upon the receipt of the CMO.

Also, the Veterans Administration filed a civil suit against me in the Federal Courts in San Antonio, Bexar County, Texas in an action to obtain some kind of instrument acceptable to and payable through the Federal Reserve System OR to recover the property at 7102 Elk Trail, San Antonio, Bexar County, Texas. This was further substantiation that if any action was going to be taken on these instruments, it would be of a civil nature.

Attorney Jerry Wilkins was either hired by or a partner of F.R. Johnny Johnson in USA First. During my investigation in Waxahachie, I had numerous conversations with Attorney Jerry Wilkins regarding the contemplated transactions and the Texas Business and Commerce Code (UCC). I was shown from the UCC how these transactions were contemplated and accomplished, all pursuant to law.

During the trial, Monday, January 29, 1996, at approximately 10:30 AM o'clock, the Judge called a sidebar conference to talk to this accused. At the sidebar conference, attended by all the attorneys and this accused, the Judge said he was going to waive any and all my objections. I queried the Judge as to, did he mean constitutional and administrative as well as judicial procedural objections and the Judge responded with the same statement, he was going to waive all my objections, but he wanted my participation in the "trial." When I returned to my seat, the assistance of counsel appointed by the Court told me, "The Judge just wrote you a blank check."

The Judge initially made a distinction between those accused's with standby/advisory assistance of counsel and those accused's represented by assistance of counsel, when he said that when any of the accused's had any objection it would apply to the others within their respective group.

However, as the proceeding went along the Judge applied any objection made by anyone to all the accused's of both groups.

This Petitioner would invoke any and all objections made by any of the accused's during any of the proceedings in the complained of cause.

Because the Judge waived all objections of any kind to this accused during a sidebar discussion on January 29, 1996, this Court is under a mandate to inspect the entire record for error that is not complained of but is in the form of fundamental, harmful, plain, and/or reversible error.

This statement applies to each and every Ground contained herein that references or claims Ineffective Assistance of Counsel.

This Court must recognize that;

- The proper standards for attorney [assistance of counsel] performance is that of reasonably effective assistance;

- Defense [assistance of counsel] counsel had duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process;

- Actual or constructive denial of assistance of counsel altogether is legally presumed to result in prejudice;

- Since fundamental fairness is central concern of writ of habeas corpus, no special standards ought to apply to claims of ineffective assistance of counsel made in habeas proceedings.

Except for the assistance of counsel's unprofessional errors and lack of reasonable professional judgment, the result of the proceeding would have been different.

Ground ONE THE TRIAL COURT LACKED JURISDICTION BY AND WHEN THE INDICTMENT WAS AMENDED AS SET FORTH IN GROUND TWO.

An indictment imparts jurisdiction to a court and gives that court its power to act. U.S. v. Macklin, 523 F.2d 193.

When the indictment is amended in any material way then the court is without jurisdiction in a criminal case. U.S. v. Anzelmo, 319 F.Supp 1106, affirmed F.2d

The instant indictment was amended in a material way as set forth in Ground Two, herein.

The defense attorney for Billy Mack O'Neill, John Convery, motioned the court to have Billy Mack O'Neill removed from the conspiracy in Count 1, because of a possible double jeopardy claim. The prosecution first objected. Billy Mack O'Neill then threatened to take the matter to the 5th Circuit on an interlocutory appeal and the prosecution gave in to the removal of Billy Mack O'Neill from the Indictment in Count 1.

The court lost the jurisdiction conferred by the indictment and had no power to proceed, when the indictment was amended.

Most of all the grounds setforth hereinafter compound the material amendment of the indictment in one way or another. Each Ground must be dealt with individually; but aggregated to the harm and prejudice in this issue in that the accumulative effect was plain error and mandates a new trial.

Ground 2 THAT THE REMOVAL OF BILLY MACK O'NEILL MANDATED THAT HE BE SEVERED FROM THE TRIAL SO THAT HE COULD BE CALLED AS A DEFENSE WITNESS.

The gist of the case is found in Paragraph 7 of Count l; wherein the indictment claims;

7. It was further part of the scheme and artifice to defraud that the defendants, aided and abetted by each other, gave each of the property owners at least one fraudulent "Certified Money Order" which they knew could not and would not be negotiated or redeemed for money, payment or funds and subsequently assumed possession of the properties. [emphasis added]

in other words, that everyone knew that the drawee, Billy Mack O'Neill would not honor the CMO's or the Certified Bankers Cheques [CBC's] with payment or money or funds. THE ENTIRE CASE REVOLVED AROUND THIS POSTULATION. It became the prosecutions burden to prove this claim beyond a reasonable doubt. It became the burden of the defense to present exculpatory evidence to establish facts that the defendants DID NOT KNOW that the drawee would not honor the CMO's for money, payment or funds. In order to establish this exculpatory fact it was paramount that the co-defendants of Billy Mack O'Neill in this case be permitted to call Billy Mack O'Neill to the witness stand and ask him if he had informed the other defendants that as the drawee - he would not honor the CMO's or the CBC's with money, payment, or funds. Without being able to call Billy Mack O'Neill as a witness the other defendants were helpless to provide direct exculpatory material evidence to prove their lack of mens rea and scienter to the primary claim that they knew that Billy Mack O'Neill would not honor the said instruments.

In actuality Billy Mack O'Neill should have been severed from the trial in the beginning so he could be called as a defense witness. However, when he was removed from the list of conspirators but left in the overt acts as both the drawee and an addressee and an aider and abetter of both the conspiracy and substantive counts without having him as a defense witness to defend against the primary claim in the case: (knowledge that Billy Mack O'Neill would not honor the CMO' s or the CBC's) and (willful intent to join into agreement to obtain properties of others with the use of the CMO's and the CBC' s) then there was no defense at all! ! ! ! It was a shame and a mockery for the defense attorneys to set moot and the prosecutor to rant and rave without any positive rebuttal. None-the-less, even without motions to sever Billy Mack O'Neill it was a blatant violation of due process and a fair trial to proceed without being allowed to defend against the claims of the indictment.

WHEREFORE, the prosecutor never should have put Billy Mack O'Neill in the same case as a co-defendant - knowingly depriving the co-defendants of a defense by joiner of the primary defense witness in the case to invalidate the mens rea to defraud by use of the alleged worthless CMO' s and CBC' s being negotiated via the United States Mail.

Secondly, the court was unable to proffer any curative instructions as the defense stood moot. None-the-less, it was plain error as the case was lost from the beginning with Billy Mack O'Neill as a co-defendant - who was only superficially removed from the conspiracy.

Finally the collective defense requested severance of Billy Mack O'Neill from the trial. Pursuant to Baker v. U.S., 329 F.2d 786 and U.S. v. Hedman, 630 F.2d 1184 a severance in this case was mandatory!

U.S. v. Stoecker, 920 F.Supp 876 sets forth the factors required for a severance:

1. Whether co-defendants testimony would be exculpatory;

2. Whether co-defendant would in fact testify;

3. Whether testimony would bear on defendant's case.

see also U.S. v. Williams, 31 F.3d 522.

In the instant case, after Billy Mack O'Neill was removed from the list of conspirators and left in the overt acts - the Court should have, sua sponte severed Billy Mack O'Neill and mandated a superseding indictment.

Ground 3 THAT THE INDICTMENT WAS IMPERMISSIBLE AMENDED BY THE REMOVAL OF BILLY MACK O'NEILL AS A CONSPIRATOR BUT LEFT IN THE INDICTMENT AS AN AIDER AND ABETTER OF THE CONSPIRACY AND AN AIDER AND ABETTER OF THE SUBSTANTIVE COUNTS.

Pursuant to U.S. v. Clemente, 22 F.3d 477, the Court states that:

Amendment of the indictment in violation of the 5th Amendment occurs when charging terms are altered, either literally or constructively.

In the instant case Billy Mack O'Neill was removed from the list of conspirators but left in the indictment in paragraphs 4, ~, 6, 7, ~, and 9 as an aider and abetter to the conspiracy. Since the instructions to the jury did not inform the jury that Billy Mack O'Neill could not be considered as a conspirator or as an aider and abetter of the conspiracy, the intent of the grand jury was altered and the charging terms were literally altered, constituting plain error and mandating an automatic reversal of the case..

This Ground is further supported by the Fifth Circuit and stands for the authority, howbeit more in-depth and broader, in U.S. v. Doucet, 994 F.2d 169 when the Court stated:

3. Criminal Law - Amendment of indictment to broaden it, other than by grand jury, need not be explicit to constitute reversible error, but may be implicit or constructive.

and,

6. Criminal Law - Indictment may be amended constructively so as to constitute reversible error by actions of either court or prosecutor.

With the language of Doucet, one can see that this instant case begs for reversal with prejudice.

Ground 4 TRIAL COURT LACKED JURISDICTION BECAUSE THE INDICTMENT WAS AMENDED IN SUBSTANCE BY THE REMOVAL OF ONE OF THE CONSPIRATORS FROM THE CONSPIRACY COUNT OF THE INDICTMENT.

The indictment can only be amended in form and not substance. The removal of one of the conspirators from the conspiracy count in the instant indictment is more than mere form, it changes the substance of the indictment.

The indictment is the product of the grand jury and the trial court cannot amend the indictment in substance. The amended indictment is not the product of the grand jury and therefore cannot confer jurisdiction on the trial court.

It is also ineffective assistance of counsel not to demand of the trial court to dismiss the amended indictment for lack of jurisdiction.

The assistance of counsel should have moved for the indictment to go back to the grand jury for action to reflect the removal of Billy Mack O'Neill from the presentment to the Grand Jury. At the same time the indictment goes back to the grand jury, the assistance of counsel should have moved for the opportunity to testify before the said grand jury by the accused.

Ground 5 THE INDICTMENT FAILED TO ALLEGE THAT THE CERTIFIED MONEY ORDER OR THE CERTIFIED BANKERS CHEQUE WERE DISHONORED BY THE DRAWEE IN COUNTS 2 THROUGH 15 - AND THE COURTS INSTRUCTIONS FAILED TO EXPLAIN THIS MATERIAL FACT TO THE JURY.

Ground (A). Under Texas law, an instrument has to be presented for payment to the drawee, dishonored, and then sent by certified mail to the drawer, who has ten (10) days after he receives the dishonored instrument to make the dishonored instrument good before he can be charged under the Texas Penal Code with theft by check, a felony, depending on the amount of the check.

Presentment for payment is the commercial process to determine whether the drawee will accept, pay, or dishonor the negotiable instrument pursuant to the Uniform Commercial Code.

Pursuant to U.S. v. Edmonson, 962 F.2d 1535 (lOth.Cir.1992), and U.S. v. Gayle, 936 F.2d 1234 (llth. Cir. l991), an indictment must be competent and forthright attempt to notify accused of extent of his alleged culpability.

In the instant case, the indictment alleges the Certified Money Order and the Certified Bankers Cheque were false, fraudulent and fictitious, yet the said instruments were not presented for payment and dishonored.

"In adjudicating non-federal questions, (were the CMO's and CBC's lawful negotiable instruments?) Federal courts must apply state law" U.S. v. Little, 52 F3d 495, (CA4.1995), and "Money Orders are instruments created pursuant to state law and the law of the state in which the money order was purchased generally governs." Center Video Indus. v. Roadway Package System, Inc., 90 F3d 185,186, Paragraph No. 8, as well as 189, Note 7 (CA7.1996) In fact Center Video goes into Colorado law and the UCC in the discussion of the said instrument.

Texas law, the Texas Business and Commerce Code (Uniform Commercial Code (UCC)) controls negotiable instruments in Texas. All states have passed the UCC in some form or other and is thus controlling in these states.

Had this information been presented to the grand jury, most if not all the substantive counts would never have been true billed.

Analogous to the instant case was a similar case under Texas law expounded in U.S. v. Prieto-Tejas, 779 F.2d 1098 (5th.Cir.1986) which stated:

3. After defendant presented evidence that he was within [Texas] statutory travelers exemption (Texas Penal Code 46.03) from prohibitions of Texas statute (Texas Penal Code 46.02(a)) providing that person commits offense if he knowingly, intentionally or recklessly carries on or about his person a handgun, illegal knife or club, government failed to present evidence that defendant was not traveler and, therefore, defendant could not be convicted of carrying firearm unlawfully during commission of felony.

Ground (B). In the instant case the arguments presented under (A) above, were not put in the form of jury instructions - for the jury to make a proper determination that the instruments were false, fraudulent and fictitious as alleged in the indictment, because the instruments were not dishonored by the drawee, pursuant to the law that governs negotiable instruments in Texas, the UCC.

This requirement is specifically important in the area of good faith and the case law on good faith jury instructions.

In U.S. v. Riffe, 28 F.3d 565 (6th.Cir.1994), the court stated:

7. Refusal to give accurate jury instruction is reversible if it impairs defendant's theory of the case and it is not covered adequately by instructions given.

And, in U.S. v. Migliaccio, 34 F.3d 1517(10th.Cir.1994) the court stated:

14. Instructions must adequately instruct jury on legal principles underlying defense; it is not enough to present defense in wholly factual terms. (emphasis added)

There was no instruction given in the instant case that gave the defendant's theory of the case.

IN CONCLUSION to these consolidated issues and pursuant to the UCC 1-105, Territorial Application of the Act: Parties power to choose applicable law, Texas parties have no choice but to use the Texas Business and Commerce Code as their authority for disputes involving negotiable instruments, while parties in other states have the authority to use either the Texas UCC or the other state's UCC. Both acts are essentially the same, except for some minor differences.

As Prieto-Tejas, supra, relied upon state law, so does this accused rely on the Texas Business and Commerce Code, for the factual determination of the said negotiable instruments, namely the Certified Money Order and the Certified Bankers Cheque as to their validity. Anderson' on the UCC goes even further to tell what is not presentment for payment at:

3-501:8 What does not constitute presentment for payment Hart v. Sims, 702 F.2d 574 (CA5) Telephone call by the payee to the bank on which check is drawn inquiring whether account is sufficient to cover the check does not constitute presentment for payment.

clearly shows the act of presentment for payment has to be an act of more than inquiry.

The bottom line is that the Certified Money Orders and the Certified Bankers Cheque, were not found to be dishonored and should not have been used as substantive counts - which constitute plain error, both in the instructions and indictment in violation of the due process guarantees of the Article of Amendment Number 5 to the Constitution for the United States of America.

Ground 6 THE AMENDED INDICTMENT BROADENED THE CHARGES AND CULPABILITY AGAINST THE REMAINING DEFENDANTS AFTER BILLY MACK O'NEILL WAS STRUCK FROM THE CONSPIRACY COUNT IN THE INDICTMENT.

Pursuant to U.S. v. Homick, 964 F.2d 899; the Fifth Amendment requires that the defendant be tried only on charges handed down by grand jury and thus, after indictment has been rendered, it's charges may not be broadened through indictment except by grand jury.

When Billy Mack O'Neill was struck from the indictment, it broadened the culpability of the other defendants in that they had to be found taking more responsibility for the conspiracy supplanting Billy Mack O'Neill.

Ground 7 AMENDMENT OF THE INDICTMENT BY STRIKING BILLY MACK O'NEILL FROM CONSPIRACY COUNT TOOK AWAY THE INTENT OF THE GRAND JURY WHEN THEY VOTED FOR A TRUE BILL TO PASS THE CONSPIRACY COUNT TO THE PETIT JURY WITH ALL THE ALLEGED DEFENDANTS INCORPORATED BY REFERENCE AND OVERT ACTS THERETO.

Pursuant to U.S. v. ITT, 824 F.2d 628, restructured indictment is insufficient where it takes away the intent of the grand jury to indict pursuant to the full evidence presented to them.

Amendment of the indictment occurs when charging terms of the indictment are altered either literally or in effect by prosecutor or court after grand jury has passed upon them. Gaither v. U.S., 413 F.2d 1061.

Also - in the reverse - in U.S. v. Maling, 737 F.Supp 684, affirmed 943 F.2d 115. It was not a violation in the indictment because all 15 co-conspirators were set forth with specific overt acts therein satisfying constitutional and statutory requirements of adequate notice for criminal defendants.

In the instant case the defendants were notified that Billy Mack O'Neill, aka 0.M.B., W.D. McCall and Associates, was the primary conspirator - being in every single overt act. To strike him from the indictment changed the evidence and the potential co-conspirators and denied adequate notice for the defense.

See also, Sheppard v. Rees, 909 F.2d 1234, to wit: trial cannot be

fair unless nature of charges against defendant are adequately made known to him in a timely fashion, amending the indictment to strike the primary co-conspirator just days before the trial is not timely and denied your movant a fair trial.

Ground 8 REMOVAL OF BILLY MACK O'NEILL FROM THE LIST OF THE DEFENDANTS AT THE BEGINNING OF TEE CONSPIRACY COUNT WHILE LEAVING HIM WITHIN THE TEXT OF THE CONSPIRACY COUNT AS HIMSELF AND/OR HIS ALTER-EGO, KEPT HIM IN THE COUNT AS A CONSPIRATOR WHO WAS STILL THE PRINCIPAL ENTITY, BUT EXEMPTED HIM FROM THE CONSPIRACY HE WAS INHERENTLY INVOLVED IN, AS HIS ALTER EGO.

Under the Doctrine of Alter Ego, Court merely disregards corporate entity and holds individual responsible for acts knowingly and intentionally done in the name of the company/corporation.

Liability is fastened to the individual merely as an instrumentality in conducting his own personal business, Garvin v. Matthews, 193 Wash. 152, 74 P.2 990, 993.

Also, under the "Instrumentality Rule", the company/business will be disregarded when it is conducted as to make it only an adjunct and instrumentality of the owner. Taylor v. Standard Gas and Electric Co., C.C.A.Okl 96 F.2d

Pursuant to U.S. v. Caldwell, 989 F.2d 1056, the elements of conspiring to defraud the United States as follows:

1. Entering into an agreement

2. To obstruct a lawful function of the government

3. By deceitful or dishonest means, and,

4. At least one overt act in furtherance of the conspiracy.

Within the overt acts of the conspiracy the alter-ego business name Billy Mack O'Neill, "O.M.B., W.D. McCall and Associates" or his own name, Billy Mack O'Neill, is found respectively in the counts of mail fraud as such:

Billy Mack O'Neill O.M.B., W.D. McCall and Associates

Count 2. 1 time[s] Count 2. 3 time[s]

Count 3. 0 Count 3. 2

Count 4. 2 Count 4. 3

Count 5. 1 Count 5. 2

Count 6. 1 Count 6. 2

Count 7. 0 Count 7. 2

Count 8. 1 Count 8. 4

Count 9 0. Count 9. 2

Count 10. 1 Count 10. 1

Count 11. 1 Count 11. 1

Count 12. 1 Count 12. 2

Count 13. 0 Count 13. 2

Count 14. 0 Count 14. 2

Count 15. 0 Count 15. 2

_________________ ________________

TOTAL 9 times TOTAL 30 times

Considering that Billy Mack O'Neill could not be considered as a conspirator (as he was removed therefrom), how then could anyone conspire with Billy Mack O'Neill or with his alter ego, O.M.B., W.D. McCall and Associates?

The first element of the conspiracy, supra. is: "Entering into an agreement." It was impossible to enter into an agreement with a person who was struck from the indictment as a potential conspirator!

The fourth element of the conspiracy, supra is: "At least one overt act in furtherance of the conspiracy." It was impossible to consider any overt act which expressly implied the participation of a person who was struck from the Indictment!

Billy Mack O'Neill and W.D. McCall and Associates were mentioned 39 times throughout the overt acts of the conspiracy to commit mail fraud against the United States. Common sense dictates that a special instruction would have to be rendered to the jury explaining "IF" the defendants could be found guilty of conspiring with Billy Mack O'Neill or his alter ego, O.M.B., W.D. McCall and Associates, while he in turn was not conspiring with them in concert and with a willful intent to violate the law pursuant to the specificity of the intrinsic elements thereof.

Ground 9 THAT THE REMOVAL OF BILLY MACK O'NEILL AND O.M.B./W.D. MCCALL AND ASSOCIATES FROM THE INDICTMENT AS A CONSPIRATOR REQUIRED AN INSTRUCTION ON MULTIPLE CONSPIRACIES.

Pursuant to U.S. v. Kendall, 665 F.2d 126, the Court is required to instruct the jury if the possibility exists of multiple conspiracies. U.S. v. Walker, 25 F3d, 540 to wit:

14. Conspiracy (key) 48.2(1)

If possibility of multiple conspiracy exists, District Judge must so instruct Jury."

In the instant case the conspiracy revolved around the overt act of Billy Mack O'Neill and his alter ego, O.M.B./W.D. McCall and Associates. He is peppered throughout the overt acts, either Billy Mack O'Neill, O.M.B./W.D. McCall and Associates or both, 39 times. However, the jury could not consider him as a conspirator as he was struck from the conspiracy in the indictment that went to the jury. Thus there had to be multiple conspiracies in this case. If there was any at all.

Ground 10 AFTER THE REMOVAL OF BILLY MACK O'NEILL - O.M.B., W.D. MCCALL AND ASSOCIATES FROM THE INDICTMENT AT THE COMMENCEMENT OF THE TRIAL - THE INDICTMENT AND THE AMALGAMATED JURY INSTRUCTIONS FAILED TO EXPLAIN HOW THE JURY WAS TO PERCEIVE AND UTILIZE THE INTEGRATED REFERENCING OF THE OVERT ACTS TO THE SUBSTANTIVE COUNTS.

The indictment was structured in such a manner that in order to be able to correlate the overt acts to the substantive counts one would have to make and independent listing thereof. See Exhibit "A" Appendix Page 1. Please note that each count cross-references to a random order within the overt acts of the referenced count of conspiracy, i.e., Count 2 is found in paragraphs 61, 62, 63, 64, 65, and 66. Whereas Count 12 is found in paragraphs 1, 2, 3, 4, and 5. Unless someone explained this hodgepodge to the jury and showed them how to cross-reference - then they were left without any system to correlate the referenced counts. None of the 66 overt acts listed in Count 1 and referenced to from Counts 2 to 15 had any cross-referencing to any exact correlating Count.

Now let's add another factor to this confusion. Billy Mack O'Neill as O.M.B., W.D. McCall and Associates was peppered throughout the referenced counts as a participant in the overt act - yet he was struck from the Conspiracy. This means that the jury had to then not only correlate unidentifiable referenced criminal actions, they had to somehow find substitute defendants to fill the gap for the actions of Billy Mack O'Neill - O.M.B., W.D. McCall and Associates to other parties to find the one overt act that would allow them to find everyone guilty of a conspiracy, except the central figure to whom sine qua non there could be no conspiracy.

How did the jury find guilt? They did it by collective ignorance because the Court, the prosecutor and 8 public defender attorneys did not object and therefore it was evident that a universal unanimous verdict was not required.

In U.S. v. Gayle, 936 F.2d 1234, the court mandated that: the indictment must be competent and forthright attempt to notify the accused of extent of his alleged culpability. Also in U.S. v. Lopez, 970 F.2d 583, the indictment must be clear enough to allow defendants to prepare his or her defense. Your movant could not understand the hodge- podge until he made a correlating listing, and then correlated the places wherein Billy Mack O'Neill and O.M.B., W.D. McCall and Associates were essential to the culpability mens rea, and then to construct a matrix of who was in which counts and not in others. And who was found guilty of what. Which is impossible to tell the way the elements overlap between the referenced and partially omitted overt acts and substantive counts with only a single party therein.

This failure of someone to explain this hodgepodge to the jury left them with the only conclusion they could make, that they were not required to make a universal unanimous verdict. See also Ground for a parallel argument.

TABLE SHOWING BY COUNT

PEOPLE INVOLVED AND PARAGRAPH NUMBER OF OVERT ACTS

Count 2 Billy Mack O'Neill - O.M.B., W.D. McCall and Associates [REMOVED]

Michael Joseph Kearns

Wayne Slater [NOT GUILTY THIS COUNT]

Clarence Ray Mikolajczyk [NOT GUILTY THIS COUNT]

Overt acts in paragraphs 61 - 66

________________________________________________________________________

Count 3 Michael Joseph Kearns

Overt acts in paragraphs 52 - 58

________________________________________________________________________

Count 4 Billy Mack O'Neill - O.M.B., W.D. McCall and Associates [REMOVED]

Michael Joseph Kearns

Overt acts in paragraphs 10 - 15

________________________________________________________________________

Count 5. Billy Mack O'Neill - O.M.B., W.D. McCall and Associates [REMOVED]

Michael Joseph Kearns

Overt acts in paragraphs 43 - 47

________________________________________________________________________

Count 6 Billy Mack O'Neill - O.M.B., W.D. McCall and Associates [REMOVED]

Michael Joseph Kearns

Clarence Ray Mikolajczyk [NOT GUILTY THIS COUNT]

Overt acts in paragraphs 16 - 20

________________________________________________________________________

Count 7 Michael Joseph Kearns

Overt acts in paragraphs 2 l - 26

________________________________________________________________________

Count 8 Billy Mack O'Neill - O.M.B., W.D. McCall and Associates [REMOVED]

Patricia Ray Koehler

Oliver Neal Paulson [FOUND NOT GUILTY ALL COUNTS]

Overt acts in paragraphs 6 - 9

________________________________________________________________________

Count 9 Michael Joseph Kearns

Patricia Rae Koehler

Overt acts in paragraphs 27 - 38

________________________________________________________________________

Count 10 Billy Mack O'Neill - O.M.B., W.D. McCall and Associates [REMOVED]

Earl Oscar Forester Overt acts in paragraphs 39 - 40

Overt acts in paragraphs 39 - 40

_______________________________________________________________________

Count 11 Billy Mack O'Neill - O.M.B., W.D. McCall and Associates [REMOVED]

Earl Oscar Forester

Overt acts in paragraphs 41 - 42

________________________________________________________________________

Count 12 Billy Mack O'Neill - O.M.B., W.D. McCall and Associates [REMOVED]

Wayne Slater

Overt acts in paragraphs 1 - 5

________________________________________________________________________

Count 13 Billy Mack O'Neill - O.M.B., W.D. McCall and Associates [REMOVED]

Vicki Slater

Overt acts in paragraphs 48 - 51

Count 14 Clarence Ray Mikolajczyk

Overt act in paragraph 59

________________________________________________________________________

Count 15 Clarence Ray Mikolajczyk

Overt act in paragraph 60

________________________________________________________________________

MATRIX SHOWING PEOPLE IN COUNTS 2 - 15

The purpose of this Matrix is to show which Counts Billy Mack O'Neill - O.M.B., W.D. McCall and Associates were involved in. The counts listed by other people's names that Billy Mack O'Neill - O.M.B., W.D. McCall and Associates were listed therein are printed in BOLD UNDERLINED.

NAMES COUNTS

Billy Mack O'Neill - [REMOVED] 2, 4, 5, 6, 8, 10, 11, 12, 13

O.M.B., W.D. McCall and Associates

________________________________________________________________________

Michael Joseph Kearns 2, 3, 4, 5, 6, 7, 9

________________________________________________________________________

Earl Oscar Forester 10, 11

________________________________________________________________________

Wayne Slater 2, 12

________________________________________________________________________

Vicki Slater 13

________________________________________________________________________

Patricia Rae Koehler 8, 9

________________________________________________________________________

Oliver Neal Paulson [Not Guilty] 8

________________________________________________________________________

Clarence Ray Mikolajczyk 2,6,14,15

PEOPLE IN CONSPIRACY BY THEMSELVES

NAMES COUNTS

Michael Joseph Kearns 3, 7

________________________________________________________________________

Clarence Ray Mikolajczyk 14, 15

Ground 11 THAT THE REMOVAL OF BILLY MACK O'NEILL - O.M.B., W.D. MCCALL AND ASSOCIATES FROM THE INDICTMENT CREATED TWO INTERPRETATIONS - ONE WHICH STATED AN OFFENSE AND ONE WHICH DID NOT.

Pursuant to Standard Oil v. U.S., 307 F.2d 120, the court mandated that an indictment is insufficient if it proposes two interpretations. One of which defines an offense and it's theory and one of which does not.

In the instant case your movant in Counts 3 and 7 had no other parties therein, yet in the overt acts Billy Mack O'Neill as O.M.B., W.D. McCall and Associates was the central figure within the reference overt acts of these counts. Also in Counts 14 and 15, the same thing transpired. Thus, with Billy Mack O'Neill removed from the conspiracy and overt acts as the central figure an identifiable offense as referenced in the indictment was not founded.

Ground 12 THE REMOVAL OF BILLY MACK O'NEILL FROM THE CONSPIRACY COUNT IN THE INDICTMENT CONSTITUTED AA MATERIAL AMENDMENT TO THE INDICTMENT.

Pursuant to U.S. v. McNeese, CA7(Wis) 1990, 901 F.2d 585, material amendments of the indictment can only be made by the grand jury.

In the instant case, Billy Mack O'Neill was the central figure in the conspiracy and his alter ego, O.M.B., W.D. McCall and Associates, was the epicenter of the conspiracy as set forth in the manner and mean, paragraph number 2 and 8 and in every group of overt acts for each substantive count, thus Billy Mack O'Neill aka O.M.B., W.D. McCall and Associates, was the inherent materiality and foundation of the conspiracy. Whereupon, the striking of Billy Mack O'Neill from the Conspiracy Count constituted a material amendment to the Indictment establishing prima facie plain error.

The removal of Billy Mack O'Neill as the central figure in the conspiracy, from the Conspiracy Count, in reality broadened the culpability for the conspiracy to every other accused, and, if it did not do so, then there is no conspiracy without Billy Mack O'Neill.

Because Billy Mack O'Neill was withdrawn/dismissed from the conspiracy count, there ceased to be a conspiracy and the Indictment should have been dismissed with prejudice.

Ground 13 THAT THE COURT FAILED TO INSTRUCT THE JURY ON THE REQUIREMENT OF FINDING UNIFORM UNANIMOUS VERDICTS OF GUILT FROM THE MULTIPLE SELECTION OF CHOICES AVAILABLE TO THEM BY THE STRUCTURING OF THE INDICTMENT AND THE REMOVAL OF BILLY MACK O'NEILL AND O.M.B., W.D. MCCALL AND ASSOCIATES FROM THE CONSPIRACY COUNT.

The foregoing issue sounds confusing, because, IT IS!!! It was so confusing to the jury, that they could not rely upon a single interpretation of the indictment, in it's hodgepodge structure, and the charge from the court which did not clarify the problem. This is exacerbated by the removal of Billy Mack O'Neill from the list of defendants in the Conspiracy Count while leaving him and his alter ego in the overt acts and the manner and means.

What is meant by a uniform unanimous verdict is a verdict wherein all people from the jury agrees the same way about a count in a unanimous vote. For example, if you are charged with both the principal and/or as an aider and abetter of the principal. Each juror must state that they find you guilty as the principal or as the aider and abetter. If 6 jurors find you guilty as an aider and abetter and the other 6 jurors find you guilty as the principal - then they all found guilt in a unanimous vote. But it was not a uniform vote as it was a split vote, and as such a pseudo-unanimous verdict.

Heretofore setforth in Ground it has been shown the indictment was a hodgepodge. In order for anyone to understand the indictment - the indictment had to be redone pursuant to a bill of particulars format as setforth in Exhibit "A" of Ground . Each Count had to be specifically cross-referenced to the overt acts and even then an additional listing was required to show which Counts were referenced to the overt acts of Billy Mack O'Neill - O.M.B., W.D. McCall and Associates which were dismissed from the Conspiracy Count of the Indictment along with Billy Mack O'Neill - O.M.B., W.D. McCall and Associates - as you cannot dismiss a co-conspirator and still use his co-conspirator agreements against another co-conspirator.

Now, pursuant to the styling of this issue we are claiming that the Court's instruction failed to instruct and caution the jury that they had to reach uniform-unanimous verdicts of guilt - not a multiple choice independent selection which could be unanimously voted upon without a uniform specificity as to the exact nature of guilt from the multiple choice selection available to them.

What then was the multiple choice array from which the jury could randomly choose from? The choice is as follows:

1. The conspiracy to defraud the U.S. by the use of the mail.

2. Aiding and Abetting a conspiracy to defraud the U.S. by use of the mail.

3. Conspiracy to aid and abet the defrauding of the U.S. the mail.

4. As a principal in any of the substantive counts from 2 to 15.

5. As an aider and abetter of various substantive counts.

6. As a conspirator and aider and abetter of any of the various substantive

7. As a removed conspirator from Count 1 but culpable of all of the above exempting the actual conspiracy.

Each juror had the opportunity to use one of the 7 different interpretations within the conspiracy to defraud the United States in Count 1, in paragraphs 4, 5, 6, 7 and 9. The Conspiracy count uses the words, "the defendants aided and abetted by each other." This is a conspiracy count. Yet the language within the foregoing paragraphs invokes the elements of aiding and abetting.

However - How is one to interpret these elements in conjunction with the Conspiracy Count? 1. As aiding and abetting a Conspiracy? 2. As aiding and abetting by itself? 3. Conspiracy to aid and abet? 4. As a conspiracy by itself? 5. Or as both a conspiracy and the aiding and abetting thereof?

With 12 jurors having 5 paragraphs to consider with 5 different interpretations of possible verdicts, you have a mathematical probability ratio of non-uniformity of a unanimous verdict - beyond any acceptable ratio of fairness. If each of the 12 jurors had a possible selection of 25 instances, the probability of all 12 jurors having the exact same uniform selections is over a 10,000 to one chance. Unless they were instructed that a unanimous vote had to be uniform from the multiple choice selection at their bidding.

Such an instruction would have to be construed as such:

"There are some 25 selections of differing elements in Count 1 that you can choose from to find guilt. Before you can arrive at a unanimous verdict of guilt each of you must find the exact same set of elements that you find to show culpability to each of all of the defendants."

Let's look at these elements as the jury would have to correlate them into the multiple choice array?

Elements for Conspiracy

to Defraud the United States

Pursuant to U.S. v. Caldwell, 989 F.2d 1056 the elements are:

1. Entering into an agreement;

2. to obstruct a lawful function of the government;

3. by deceitful or dishonest means, and;

4. at least one overt act in furtherance of the conspiracy.

Elements for Aiding and Abetting a Conspiracy

Pursuant to U.S. v. Miller, 552 F.Supp 827, the elements are:

1. Knowledge of the conspiracy and its essential plan;

2. Acting with intent to further the conspiracy.

Elements of Aiding and Abetting

Pursuant to U.S. v. Teffera, 985 F.2d 1082 the elements are:

1. Specific Intent to facilitate commission of crime by another;

2. "Guilty Knowledge" by alleged abetter;

3. Commission of substantive offense by someone else;

4. Assistance or participation in commission of the offense.

Elements for a Conspiracy to aid and abet the Commission of a substantive crime

This is a difficult precept of law as an aider and abetter is punished as a principal for assisting in the commission of a crime; whereas, a conspirator is punished for joining with one or more other people in a plan to commit a crime. U.S. v. Miller, 552 F.Supp 827. Whereas pursuant to U.S. v. Simpson, 979 F.2d 1282; the federal aider and abetter statute does not create a separate crime. But the federal aider and abetter statute does create an alternative method of finding guilt for someone involved in the offense while not the principal. Thus the substantive crime would be - defrauding the United States. Then would come the aiding and abetting the defrauding of the United States - then would come the conspiracy to aid and abet the defrauding the United States. Thus, first the elements of defrauding the United States must be given in conjunction with the elements of aiding and abetting to defraud the United States in conjunction with the elements of the conspiracy to aid and abet the defrauding of the United States. The jury could have found that there was insufficient evidence to support either conspiracy or aiding and abetting but in the aggragate the jury could accumulate the inculpatory evidence to find guilt.

Elements of conjunctive Aiding and Abetting a Conspiracy to commit fraud against the United States

In the instant case, the indictment charges conspiracy. Within the language of the charge was the interjection of "aided and abetted by each other" in the furtherance thereof, supra.

It is therefore presumed a juror could find that in the aggregation of acts of probable conspiracy and probable aiding and abetting could accumulatively constitute enough culpability to assume guilt - in the conjunctive. Whereas, in the disjunctive, the jury would not.

The case of Mankani v. U.S., 738 F.2d 538 at 540 explains at 19.

Conspiracy:

Requisite mental state for conspiracy is intent, not mere knowledge, thus, the "conscious avoidance" theory is not appropriate to a charge of conspiracy.

In Mankani it was also established that because the defendant was not a co-conspirator the evidence was insufficient to find defendant guilty of aiding and abetting.

Thus the conjunctive of a requirement of finding essentially both aiding and abetting and conspiracy requires explicit instruction on the elements to the jury.

Instructions on Elements

Failure to instruct jurors about essential elements of a crime is a constitutional error that lets jury convict without finding defendant guilty of that element. See, U.S. v. Caldwell, 989 F.2d 1056 and Franklin v. Francis, 723 F.2d 770.

The Supreme Court in Kotteakos v. U.S., 1946, 328 U.S. 750; provides the benchmark for determining whether an error or defect affects substantial rights and thus may be disregarded:

"The question is, not were they [the jury] right in their judgment, regardless of the error or its effect upon the verdict. It is rather what effect the error had or reasonable may be taken to have had upon the jury's decision. The crucial thing is the impact of the thing done wrong on the minds of other men, not on one's own, in the total setting. [citations omitted]

Kotteakos was quoted in U.S. v. McCracken, 488 F.2d 406, 426 (5th.Cir.1974).

Further, where jury instructions conflict, reviewing court cannot presume that jury followed the correct one, U.S. v. Stein, 37 F.3d 1407.

Further, each count in furtherance of scheme to defraud constitutes a separate crime. It is not the scheme to defraud but the use of the mails or wires that constitute mail or wire fraud. Thus, the elements of fraud, per se must also be setforth in order to find guilt of individual counts - if the conspiracy count fails. The elements of mail fraud pursuant to U.S. v. Smith, 39 F.3d 119 are:

1. Willful participation in a scheme to defraud

2. use of mails in furtherance of scheme, and

3. specific intent to deceive or defraud.

In all, some 15 elements would have to be found to find guilt of aiding and abetting a conspiracy to defraud the United States by use of the mail. Furthermore, these elements would have to be stepped both upwards and downwards and also contain language which would provide for points of disjunction.

Finally, let's look at the problem with the removal of Billy Mack O'Neill - O.M.B., W.D. McCall and Associates from the conspiracy, while leaving him in the overt acts.

As you can readily see from Ground in the listing of the Counts showing that Billy Mack O'Neill - O.M.B., W.D. McCall and Associates was utilized 39 times. On page 2 of the indictment it states: "The manner and means by which the conspiracy was sought to be accomplished included the following;

2. As a part of this scheme, defendant Billy Mack O'Neill did business in Waxahachie, Texas, and Victoria, Texas, as "O.M.B., W.D. McCall", "O.M.B., W.D. McCall and Associates", "W.D. McCall and Associates", and/or "U.S.A. First".

This made Billy Mack O'Neill - O.M.B., W.D. McCall and Associates the central figure of any conspiracy. Every overt act which correlated to the substantive counts required Billy Mack O'Neill - O.M.B., W.D. McCall and Associates in order for it to have any agreement pursuant to the government's theory of the case.

Now the jury had to make up another list to determine if Billy Mack O'Neill - O.M.B., W.D. McCall and Associates was a prerequisite for the other defendants to have either;

1. as aiding and abetting a conspiracy

2. aiding and abetting by itself

3. conspiring by themselves without Billy Mack O'Neill - O.M.B., W.D. McCall and Associates

4. conspiring to aid and abet

5. or both conspiracy and aiding and abetting among themselves minus Billy Mack O'Neill - O.M.B., W.D. McCall and Associates.

Then add to this whether they could find guilt to each of the principal counts and if Billy Mack O'Neill - O.M.B., W.D. McCall and Associates could be found guilty of the substantive counts as an aider and abetter. To top this off could Billy Mack O'Neill be found guilty of aiding and abetting the conspiracy - instead of being a conspirator as paragraphs 4, 5, 6, 7 and 9 set forth aiding and abetting within the conspiracy count. True - he was struck as a conspirator but was he struck as an aider and abetter of a conspiracy - which the jury could assume as he was left in the overt acts and only struck from the list of conspirators!

All of the above creates a multiple array of selections from which the jury could have found independent guilt but not in a uniform unanimous vote. Compounded to this multiple selection array you have the hodgepodge of overt acts which are blindly referenced to the substantive counts of mail fraud.

Pure common sense tells us that because the jury was not instructed to vote uniformly on each count in a unanimous manner they independently voted unanimously from the multiple choice array available to them.

As the Court said in U.S. v. Stein, 37 F.3d 1407 (9th.Cir.1994);

7. Where two jury instructions conflict, reviewing court cannot presume that jury followed correct one. pointing out the need for jury instructions that have to be answered, yes or no, with no ambiguities left in the mind of the jury.

This constitutes plain error. It is an error which everyone involved in the case is responsible for, the prosecutor, in the construction of the indictment without a bill of particulars, the court, for failing to visualize the ramification of removing Billy Mack O'Neill - O.M.B., W.D. McCall and Associates from the conspiracy count of the indictment as a conspirator but leaving him therein as an aider and abetter to the conspiracy, while he was in fact the central figure in the case, and the defense attorneys for failing to timely object to the hodgepodge indictment without a bill of particulars, the removal of Billy Mack O'Neill from the conspiracy count without demanding the indictment be resubmitted to the grand jury, and the multiple choice array selection to go to the jury.

Counts 4, 5, 6, 7, and 9 contained the aiding and abetting of the conspiracy language. There were 5 different ways the jury could find guilt within each of the 5 paragraphs with considering Billy Mack O'Neill - O.M.B., W.D. McCall and Associates as an aider and abetter of the conspiracy while being struck as a conspirator. Take these 25 potential interpretations with 12 independent not voting uniformly and you have a probability of over 10 million to 1 that each of the 12 jurors would pick the same exact possible element within the same paragraph.

The jury instructions failed to set forth the elements for the 25 different combinations of elements and failed to instruct the jury on the requirement for uniform unanimity on each element, pursuant to In Re Winship, 397 U.S. 358 (1970).

It is axiomatic that a miscarriage of justice has prevailed pursuant to the argument and authorities within this issue.

WHEREUPON, this issue has jurisdiction on collateral challenge pursuant to your own rule in Title 18 U.S.C. Rule 52(b) and to the principles set forth in U.S. v. Yamin, 868 F.2d 130 (5th.Cir.1989) where the court stated:

2. To constitute plain error, error must have been so fundamental as to have resulted in a miscarriage of justice.

and also U.S. v. Davis, 974 F.2d 182 and requires reversal with prejudice.

Ground 14 THAT THE DISMISSAL OF BILLY MACK O'NEILL AND THE AMALGAMATED INSTRUCTIONS TO THE JURY DENIED YOUR MOVANT A FAIR TRIAL.

The substantive crime is the object of the agreement to conspire to commit a crime. In the instant case the grand jury was lead to believe that the object per se, was defrauding the United States by deceptive use of the mails.

BY reference the overt acts of the conspiracy were the basis for the culpability of the object of mail fraud. As heretofore established, Billy Mack O'Neill aka O.M.B., W.D. McCall and Associates was the central figure of the conspiracy sine qua non.

The instructions in this case invoked the Pinkerton theory of guilt of other co-conspirators.

Also, the instructions set forth an element of the conspiracy as such:

"That one of the conspirators during the existence of the conspiracy knowingly committed at least one of the overt acts described in the indictment in order to accomplish some object or purpose of the conspiracy."

The removal of Billy Mack O'Neill - O.M.B., W.D. McCall and Associates from the conspiracy as a culpable party with whom other co-conspirators made their agreement to commit one overt act voided the mutual mens rea - as one party was being charged with the conspiracy. This effectively is the same as conspiring with a government agent or an informant agent. They cannot be a party to a conspiracy - thus one person cannot conspire with them as they are removed from consideration as culpable parties.

In order to show the prejudice and plain error we must redundantly show the enumerated overt acts independently. As heretofore established, Billy Mack O'Neill and O.M.B., W.D. McCall and Associates are legally one in the same, supra; (also page one of the indictment).

Billy Mack O'Neill was the central figure using his alter ego, O.M.B., W.D. McCall and Associates, as the epicenter of the alleged scheme. He manufactured documents which he called "Certified Money Orders" and "Certified Bankers Cheques". Purportedly that would discharge the debts of properties and goods of individuals who utilized his documents. The indictment states that everyone who used these documents knew that they were fraudulent and that they were not redeemable for payment to satisfy debts. The indictment further states that each of the co-defendants knowingly conspired with Billy Mack O'Neill - O.M.B., W.D. McCall and Associates in his scheme within the

overt acts. Since Billy Mack O'Neill - O.M.B., W. D. McCall and Associates could not be convicted of conspiracy because he was removed therefrom, no one could conspire with him. U.S. v. Werme, 939 F.2d 108. Thus it was not Billy Mack O'Neill - O.M.B., W.D. McCall and Associates culpability that was used - but instead it was the indictment itself that was used as evidence against the other co-defendants.

In U.S. v. Crowell, 997 F.2d 146, the court has mandated that an indictment cannot be used as evidence against a person. If Billy Mack O'Neill - O.M.B., W.D. McCall and Associates was not to be found guilty of the overt acts then the overt acts became mere allegations of guilty by reference and as such evidence on their own volition, independent of the actor of the evidence.

In U.S. v. Dischner, 960 F.2d 870, the court stated, "That an indictment must be read as a whole and construed with common sense." It is pure common sense that the removal of Billy Mack O'Neill - O.M.B., W.D. McCall and Associates from culpability of the necessary mens rea of agreement without any form of clarifying instruction to the jury from the court, utterly destroyed the basis for a true bill and utterly removed fairness from the trial process.

Ground 15 THAT THE INSTRUCTIONS TO THE JURY FAILED TO INSTRUCT THAT BILLY MACK O'NEILL COULD NOT BE USED AS AN AIDER AND ABETTER TO THE CONSPIRACY AS WELL AS BEING EXEMPTED FROM THE CONSPIRACY AND THE OVERT ACTS THERETO.

If Billy Mack O'Neill in Ground could not be used as the ONE person to be elected to have committed the requisite overt act as set forth as the Third element - then he could not be used as the aider and abetter to the conspiracy to defraud the United States by the use of the U.S. Postal Service.

In paragraphs 4, 5, 6, 7 and 9 the indictment states that he was an aider and abetter in the conspiracy. Yet he was removed as a conspirator. The Court failed to explain to the jury that he could not be used as an aider and abetter of the conspiracy as he had been exculpated from the requisite scienter and mens rea of the conspiracy and therefore was exempt from that element as an aider and abetter.

The harm and prejudice was that the jury could still perceive him as an aider and abetter of the conspiracy as aiding and abetting was also invoked as the last charge in the indictment, along with being invoked within the conspiracy count itself. If Billy Mack O'Neill could be found guilty of the aiding and abetting the conspiracy then the jury could conclude that it was why he was left in the overt acts while being removed from the list of conspirators. Under this postulation he could have joined into the conspiracy as an aider and abetter and could be the ONE guilty within the overt acts as the requisite entity to fulfill the obligation of the element as setforth to the jury.

Ground 16 THAT THE INSTRUCTIONS W THE JURY FAILED W INSTRUCT THAT MICHAEL JOSEPH KEARNS AND CLARENCE RAY MIKOLAJCZYK COULD NOT AID AND ABET THEMSELVES IN THE SUBSTANTIVE COUNTS.

In Counts 3 and 7, Michael Joseph Kearns was charged singularly. In Counts 14 and 15, Clarence Ray Mikolajczyk was charged singularly.

In U.S. v. Teffera, 985 F.2d 1082, the Court laid out the technical

elements of aiding and abetting as:

5. Technical elements of aiding and abetting are: specific intent to facilitate commission of crime by another; "guilty knowledge" by alleged abetter; commission of substantive offense by someone else; and assistance or participated in commission of the offense. (emphasis added).

Also in U.S. v. Ledezma, 26 F.3d 636, the Court stated:

10. Essence of crime of aiding and abetting is defendant's offering assistance or encouragement to PRINCIPAL in commission of substantive offense. (emphasis added)

The jury instructions on Counts 3, 7, 14, and 15 failed to advise the jury that in order to be an aider and abetter, the aider and abetter had to "facilitate commission of crime by another[person]" or "offer assistance or encouragement to principal ..." clearly indicating one cannot aid and abet oneself and on this point the jury was not instructed.

Arguendo, had the jury instructions properly instructed the jury on Counts 3, 7, 14, and 15 as to aiding and abetting, the verdict form would have had to reflect those instructions. The verdict form in the instant case did not reflect such instructions and therefore was a re-enforcement to the jury they could find a defendant guilty of aiding and abetting oneself, howbeit, contrary to common sense, reason and case law.

Ground 17 THAT THE INSTRUCTION TO THE JURY FAILED TO INSTRUCT THE JURY THAT IN COUNT ONE THEY COULD NOT USE BILLY MACK O'NEILL AS THE "ONE" CONSPIRATOR, DURING THE EXISTENCE OF THE CONSPIRACY, WHO KNOWINGLY COMMITTED AN OVERT ACT DESCRIBED IN THE INDICTMENT.

The instructions that went to the jury on conspiracy were general

instructions accepted by the 5th Circuit. The Court charged the elements

as follows:

First: That "TWO" or more persons made an agreement to commit the crime as charged in the Indictment.

Second: That the defendant knew the unlawful purpose of these agreements and joined in it willfully, that is with the intent to further the illegal purpose; and

Third: That "ONE" of the conspirators during the existence of the conspiracy knowingly committed at least ONE of the overt acts described in the Indictment, in order to accomplish some object or purpose of the conspiracy.

In Ground we have established that Billy Mack O'Neill - O.M.B., W.D. McCall and Associates were clearly set forth in the Indictment in each Count as the central figure, as in the Manner and Means, paragraph no. 2 and 8. He was the most likely "ONE" to knowingly commit an overt act - as he was in all the groups of overt acts of the substantive counts as the DRAWEE, and in Count 2 of the substantive Counts as the ADDRESSEE.

After the trial began the Indictment was amended to remove Billy Mack O'Neill from the list of conspirators but he was left in the overt acts. No instruction was provided to the jury on how to deal with this situation. Even the verdict form that went to the jury left him out of Count 1. The jury simply assumed that he must have already been found guilty of the charge in another trial or plead guilty to the charge in the current trial. Thus they could find him as the "ONE" who committed the overt act pursuant to the mandate of the Court's instruction - heretofore setforth as the Third element. See U.S. v. Caldwell, 989 F.2d 1056 and U.S. v. Maling, 737 F.Supp 684, affirmed 943 F.2d 115.

Ground 18 THAT THE INSTRUCTIONS TO THE JURY FAILED TO INSTRUCT THE JURY ON THE ELEMENTS OF AIDING AND ABETTING A CONSPIRACY - AND - ON THE ELEMENTS OF CONSPIRING TO AID AND ABET THE COMMISSION OF A SUBSTANTIVE COUNT IN THE INDICTMENT.

A. THAT THE INSTRUCTIONS TO THE JURY FAILED TO INSTRUCT THE JURY ON THE ELEMENTS OF AIDING AND ABETTING A CONSPIRACY.

B. THAT THE INSTRUCTIONS TO THE JURY FAILED TO INSTRUCT THE JURY ON THE ELEMENTS OF CONSPIRING TO AID AND ABET THE COMMISSION OF A SUBSTANTIVE COUNT IN THE INDICTMENT.

A. Because of the interjection of the exact same words in Count 1 as used in Count 2 - 15 to charge aid and abet the jury was, to say the least, confused as to the actual charges each accused was in fact charged with.

This confusion could only be cured with a jury instruction that would show the jury the elements of aiding and abetting a conspiracy for the express purpose of making sure the jury voted in a uniform unanimous manner on what the grand jury really charged.

The elements for aiding and abetting a conspiracy are listed in U.S. v. Miller, 552 F.Supp 827, as;

1. the accused knew conspiracy existed,

2. understood essential nature of the plan, and,

3. sought to make the plan succeed.

B. Pursuant to U.S. v. Perry, 643 F.2d 38, 46, 47, the Court describes

the difference between a "conspiracy to aid and abet" and an "aiding and

abetting a conspiracy."

In Section "A" of this Ground, it is alleged that the court failed to instruct the jury on the elements of aiding and abetting a conspiracy. In this Section, it is alleged that the Court also failed to instruct the jury on conspiring to aid and abett. It has been alleged by rumor that in reality your movant actually was most culpable of aiding and abetting the conspirators who were conspiring to aid and abet the substantive counts of mail fraud - except for counts 3 and 7, wherein it is rumored that your movant actually aided and abetted himself in the conspiracy to aid and abet himself to commit the substantive offense listed in Counts 3 and 7 because he was acting alone within the counts with himself and Billy Mack O'Neill's alter ego, O.M.B., W.D. McCall and Associates. Or in the alternative, it is quite possible that the jury found that your movant conspired to aid and abet the conspiracy he had with himself.

Naturally, however, your movant could not conspire directly with Billy Mack O'Neill as he was struck from the list of conspirators and only left in personification in the overt acts.

Wherefore, failure to instruct the jury on these two sub-issues left the jury without any guidelines from which to consider the ramifications of the structure of the indictment in it's hodgepodge form.

Ground 19 THAT THE REMOVAL OF BILLY MACK O'NEILL FROM THE LIST OF CONSPIRATORS ALONG WITH AN IMPROPER INDICTMENT USING UNKNOWN CO-CONSPIRATORS - WITHOUT A BILL OF PARTICULARS OR ANY INSTRUCTION FROM THE COURT TAINTED THE JUDICIAL PROCESS AND MANDATES PLAIN ERROR AND A REVERSAL OF ALL CHARGES AND ALL COUNTS.

In U.S. v. Pilnick, 267 F.Supp 791, paragraphs 17 and 18 adopt the standard legal principles of requirements of an indictment and a bill of particulars. Basically, in a conspiracy to violate mail fraud it is mandated that the defendants must be afforded all of the names of the co-conspirators and their individual accompanying overt acts.

In Count 1 of the Indictment, the standard conspiracy language is used in paragraph 1 in that it listed the conspirators and then added UNKNOWN OTHERS to the conspiracy. Mail Fraud requires mens rea and scienter. Paragraph 7, goes on to state that all of the conspirators KNEW that the CMO's/CBC's of Billy Mack O'Neill - O.M.B., W.D. McCall and Associates would not be honored. This broad statement included unknown co-defendants.

When the trial commenced the original indictment was amended to remove Billy Mack O'Neill from the list of conspirators - yet he was left in the overt acts.

The plain error and axiomatic harm and prejudice is that one of the UNKNOWN OTHERS would have to be incorporated into the overt acts of Billy Mack O'Neill in order to find an overt act from which to validate the conspiracy.

Without a bill of particulars or an explanatory instruction from the Court, this aggregated plain error denied your movant a fair trial under the Article of Amendment Number 5 to the Constitution for the United States of America.

Ground 20 THAT THE INSTRUCTIONS TO THE JURY THAT THE GOVERNMENT WAS NOT REQUIRED TO PROVE THE ABSENCE OF GOOD FAITH WAS PLAIN ERROR MANDATING AN AUTOMATIC REVERSAL.

The Court instructed the jury as follows:

The burden of proving good faith does not rest with the defendant you are considering because that defendant does not have an obligation to prove anything in this case. Neither is the government required to prove the absence of good faith. It is the government's burden to prove to you, beyond a reasonable doubt, each element of the charge as outlined above. (emphasis added)

There are two concepts wrong with this instruction in the mind of a reasonable juror, one, it shifts the burden to the accused to prove good faith, and, two, because of the contradiction within the same instruction and no corrective or explaining instruction, reasonable jury members could vote guilty on this good faith instruction without being uniform unanimous in their voting. Either of these requires reversal with prejudice.

In U.S. v. Alkins, 925 F.2d 541, paragraph 4. Post Office, Key 35(5) states:

Good faith is complete defense to mail fraud charge.

In paragraph 5, id, it states:

Government must prove lack of good faith beyond reasonable doubt

in mail fraud trial.

The words "absence" and "lack of" are identical in context. The problem arose because the Court used a "standard instruction" on good faith for general instances other than that of a mail fraud charge.

First: The complained of statement, "Neither is the government required to prove the absence of good faith.", might be interpreted by a reasonable jury member as impermissible shifting the burden of proving good faith to the accused.

The presumption in mail fraud is that the mailing was accomplished

in good faith and this presumption is required by the mass amount of mailings done on a daily basis, versus the very small amount of mailings constituting "mail fraud."

The Supreme Court of the United States of America ruled on these types of issues in two almost similar cases; Sandstrom v. Montana, 442 US 510, 61 LEd2d 39 (1979) and Francis v. Franklin, 471 US 307, 85 Led2d 344 (1985) wherein the Court was primarily dealing with "presumptions" in jury instructions but did go on to state very emphatically about "reasonable jury members" "might interpret" or "could have understood" the instruction to shift this accused the burden of proof of an essential element of the offense as being unconstitutional because it violates due process.

In Re Winship, 397 US 358 (1970), the Supreme Court stated; "Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." The Court labeled this a "bedrock, axiomatic and elementary [constitutional] principle." Francis at 313.

"The general instructions as to the prosecutions burden and the defendant's presumption of innocence do not dissipate the error in the challenged portion of the instructions." Francis at 320.

The Francis Court went on to say much about this "crucial element of intent" and "criminal intention." concluding @ 325, "This Court has not resolved whether an erroneous charge that shifts the burden of persuasion to the defendant on an essential element of an offense can ever be harmless." And even the Court of Appeals conducted a careful harmless-error inquiry and concluded that the Sandstrom error at trial could not be deemed harmless, Francis @ 325. Mirroring Sandstrom at 526, ".... that in any event an unconstitutional jury instruction on an element of the crime can never constitute harmless error, ....."

Second: Then for the area of contradicting instructions: the complained of statement contradicts the entire "Good Faith Defense" jury instruction because "absence of good faith" is the same as "fraudulent intent" which "is one of the essential elements of the offenses with which the defendants are charged." What the complained of statement might say or could say to a reasonable juror, "neither is the government required to prove the absence of good faith [or i.e. fraudulent intent]." Which is exactly what the government must prove, and Alkins, supra, says it even more or point with no interpretation necessary, "Government must prove lack of good faith beyond reasonable doubt

in mail fraud trial."

"As the jury's verdict was a general one, we have no way of knowing that [Kearns] was not convicted on the basis of the unconstitutional instruction." And it has long been settled that when a case is submitted to the jury on alternative theories the unconstitutionality of any of the theories requires that the conviction be set aside." Sandstrom at 526 with numerous cites.

Now because your reasonable jurors "might interpret" or "could have understood" the government had the burden of proving fraudulent intent and at the same time reasonable jurors "might interpret" or "could have understood" the government was not required to prove "the absence of good faith" or fraudulent intent, thereby setting up a situation where different jurors could vote "guilty" on the same instruction but for opposite reasons and therefore violating the uniform unanimous verdict required by the Constitutional Due Process requirement - mandating reversal with prejudice.

Mail fraud requires an instruction which informs the jury that the

government MUST PROVE a lack of (or absence of) good faith beyond a reasonable doubt. Thus the Court gave an incorrect instruction to the jury because this was a mail fraud case. This constituted plain error and mandates reversal with prejudice.

Ground 21 THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE THE ASSISTANCE OF COUNSEL WAS STANDBY AND MADE WITHOUT A DETAILED INQUIRY AND EDUCATIVE EFFORT BY THE COURT AS TO THIS ACCUSED'S KNOWLEDGE, ABILITY TO PRESENT HIMSELF, AND KNOWING WAIVER OF ASSISTANCE OF COUNSEL AND THAT THE WAIVER, IF ANY, WAS VOLUNTARY AND KNOWLEDGEABLE.

The Court appointed "STANDBY" assistance of counsel for this accused over his objection, who by his own admission had no knowledge concerning the complex subject of negotiable instruments.

This accused also learned that the "standby" assistance of counsel did not have in his office a copy of the Federal Rules of Criminal Procedure when he was first appointed. After this accused complained to the judge about his lack of knowledge and the rule book issue, he did acquire the said rule book. However, my request for a knowledgeable assistance of counsel in the area of negotiable instruments was denied. This accused was told by Judge Prado, I would have to make do with the one I had.

In U.S. v. Sandles, 23 F.3d 1121 (7th.Cir.1994) the court stated in paragraph no. 7. Criminal Law,

Appointment of CAPABLE standby counsel during trial cannot function as substitute for detailed inquiry into defendant's decision to waive his constitutional right to counsel.

If the assistance of counsel is INCAPABLE, obviously the accused is prejudiced before he gets out of the starting gate, much less for the whole trial, as was the situation in the instant case.

Further, U.S. v. Turnbull, 888 F.2d 636 carries the subject of standby/advisory counsel even further when the court states in paragraph no. 1.;

Absent a knowing and voluntary waiver of right to counsel, appointment of advisory [standby] counsel is not sufficient to meet the Sixth Amendment requirements.

Even if the court allows "hybrid representation" in which the accused has assumed any of the "core functions" of the lawyer, this hybrid scheme is acceptable only if the accused has voluntarily waived counsel, U.S. v. Turnbull, @ 638 quoting U.S. v. Kimmel, 672 F.2d 720 (CA9.1982).

The accused in the instant case never made a knowingly intelligent waiver of effective meaningful assistance of counsel, either, expressed, implied, or constructive, furthermore, the court never made an informative inquiry to this accused as to his expertise or knowledge of any of the complex subjects, including but not limited to, grand jury matter; the indictment; pre-trial matters concerning the grand jury, the indictment, the evidence, the good faith defense; getting to the "heart" or "gist" of the indictment; questioning witnesses; objections made before, during and after trial to preserve all appealable issues; an informed summation; filing a notice of appeal; filing the appeal; post conviction collateral attack.

The harm and prejudice committed against this accused is that "standby" assistance of counsel does not meet the guarantee of the requirements of the Article of Amendment Number Six to the Constitution for the United States of America or the standards set forth by the Supreme Court of the United States of America in it's landmark case, Stricklin v. Washington, when the Court said, That a person who happens to AA lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command," @685

Judges have [known and compelling duty to protect the public from lawyers who are unable or unwilling to defend them in litigation." Matter of Maurice, 69 F3d 830 (CA7.1995), Paragraph No. 7.

The appointment of STANDBY assistance of counsel in the instant matter is plain error and requires reversal with prejudice.

Ground 22 THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, EVENTHOUGH, HE, BY HIS OWN ADMISSION LACKED KNOWLEDGE OF THE COMPLEX SUBJECT OF NEGOTIABLE INSTRUMENTS, HE DID NOT REMOVE HIMSELF FROM THE CASE, NOR, DID HE ASK THE COURT TO APPOINT

AN EXPERT ON NEGOTIABLE INSTRUMENTS TO ADVISE HIM REGARDING THIS COMPLEX SUBJECT.

It is axiomatic that if one has a known duty to be effective and meaningful assistance of counsel to this accused and lacks knowledge on the subject of the case, and knows he lacks the knowledge by his own admission, then it is pragmatic that the counsel either remove himself from the case or ask the court to appoint an expert in the subject he is lacking in, to comply with his known duty.

This lack of knowledge on the part of the court appointed assistance of counsel, if not evident at this point, will become more evident as this subject is developed.

As Hollinghead, supra, ".... familiarity with the facts and the law of the particular case ...." puts the assistance of counsel under a burden to advise the court of his lack of knowledge of at least the law of the subject wherein he lacks knowledge, so the court can appoint someone else or an expert on the subject to advise him.

As AmJur 2d, Vol. 21A, page 751 § 751, states in part, "... counsel should further conduct appropriate investigations, both factual and legal, ..." indicating investigating the statutes involved and any statutes used to defeat the mens rea, if any, should be fully investigated.

The assistance of counsel should have known the matter of negotiable instruments was an issue for determination under Texas law, the Texas Business and Commerce Commission (Uniform Commercial Code)

(UCC), because, "Money orders are instruments created pursuant to state law and the law of the state in which the money order was purchased generally governs." Center Video Indus v. Roadway Package Systems Inc., 90 F3rd 185, 186, Paragraph No. 8, as well as, Note 7. In fact, Center Video goes into Colorado law and the UCC in the discussion of the said instruments. This is a Principle and Doctrine of the Federal Courts as set forth in U. S. v. Little, 52 F3rd 495 (CA4.1995), when the courts said "in adjudicating non-federal questions, Federal court must apply state law."

The Fifth Circuit recognizes that lack of knowledge, ignorance of state law by the assistance of counsel establishes prejudicial ineffective assistance of counsel, Trass v. Maggio, 731 F.2d 288, No. 5., and went on to quote Kennedy v. Maggio, 725 F.2d 269, 272-273, (to be effective counsel must be familiar with current state law on significant points of relevance.)

Judges have [known and compelling duty to protect the public from lawyers who are unable or unwilling to defend them in litigation." Matter of Maurice, 69 F3d 830 (CA7.1995), Paragraph No. 7.

The court was advised on this lack of knowledge on the part of the assistance of counsel and committed plain error when it failed to investigate the matter and either appoint a knowledgeable assistance of counsel in the area of negotiable instruments or appoint an expert to furnish the knowledge to the assistance of counsel which he admittedly lacked he admittedly lacked, and demands reversal with prejudice.

The harm and prejudice suffered by this accused is the denial of effective meaningful assistance of counsel guaranteed to him by Article of Amendment Number Six of the Constitution for the United States of America and the Supreme Court of the United States landmark case dictum in Stricklin v. Washington.

Ground 23 THE ASSISTANCE OF COUNSEL PROVIDED BY THE COURT WAS INEFFECTIVE, BECAUSE, BY HIS OWN ADMISSION, EE DIDN'T HAVE ANY KNOWLEDGE REGARDING THE COMPLEX SUBJECT OF NEGOTIABLE INSTRUMENTS AND FAILED TO ESTABLISH FOR THE JURY THAT THE CERTIFIED MONEY ORDERS AND THE CERTIFIED BANKERS CHEQUES WERE NEGOTIABLE INSTRUMENTS.

The Court is under a burden to provide effective meaningful assistance of counsel pursuant to Stricklin v. Washington, 466 U.S. 668, and quoting the Court:

3. Benchmark for judging any claim of ineffectiveness of counsel must be whether counsel's conduct so undermined proper functioning of adversarial process that trial cannot be relied on as having produced a just result.

When the assistance of counsel appointed by the Court by his own admission has no knowledge of the complex subject of negotiable instruments, the counsel by default cannot be effective and meaningful to anyone much less this accused.

The lack of effective meaningful assistance of counsel violates the guarantees of Article of Amendment Number 6 of the Constitution for the United States of America.

The Fifth Circuit recognizes the importance of this knowledge when

it stated in Boyle v. Johnson, 93 F.3d 180, paragraph no. 14. Criminal Law, "Informed strategic decisions by counsel are given a heavy measure of deference." (emphasis added). Obviously the reverse could be said; UNINFORMED STRATEGIC DECISIONS BY COUNSEL WILL BE GIVEN NO DIFFERENCE.

American Jurisprudence 2d, Vol. 21A, quoting Hollingshead v. Wainwright, (CA5.Fla) 423 F.2d 1059, states in part, ".... effectiveness must be measured by the lawyers familiarity with the facts and law of the particular case."

Stricklin, supra, makes it very plain in paragraph no. 7. Criminal Law - Ineffective Counsel - "Counsel can deprive a defendant of the right to effective assistance of counsel simply by failing to render adequate legal assistance."

These many grounds on ineffective assistance of counsel will be this accused's attempt to "identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment," see Stricklin, supra, paragraph no. 17.

One of the first omissions of the assistance of counsel was his failure to establish that the Certified Money Orders and the Certified Bankers Cheques were in fact negotiable instruments and that Texas state law, the Texas Business and Commerce Code (Uniform Commercial Code (UCC)) is the law of the realm controlling on the subject in the instant case. See U.S. v. Little, 522 F3d 495,(CA4.1995) and Center Video Indus. v. Roadway Package Systems, Inc., 90 F3d 185 (CA.7 1996

It is and will be shown that the assistance of counsel provided by the court has made numerous errors and omissions that reflect the failure to exercise skill, judgment and diligence such that a reasonable competent criminal defense attorney would not have made. In fact, this assistance of counsel's performance in this matter amounted to no representation at all and this accused has been clearly deprived of effective representation, and his "conviction" should be overturned or reversed with prejudice.

The harm and prejudice suffered by this accused is the denial of effective meaningful assistance of counsel guaranteed to him by the Article of Amendment Number Six of the Constitution for the United States of America and supported by the Supreme Court of the United States in Stricklin v. Washington and the jury never was introduced to the requirement that the said Certified Money Orders and Certified Bankers Cheques were negotiable instruments pursuant to Texas state law.

Had the jury been made aware of the satisfaction of the requirement of Texas state law by the said instruments, the jury would have had to return a verdict, under good faith, of not guilty.

Judges have [known and compelling duty to protect the public from lawyers who are unable or unwilling to defend them in litigation." Matter of Maurice, 69 F3d 830 (CA7.1995), Paragraph No. 7.

Ground 24 THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE NEVER DID GET THE "GIST" OF THE INDICTMENT AS STATED IN PARAGRAPH NUMBER 7 OF THE MANNER AND MEANS OF THE INDICTMENT.

In order to give effective meaningful assistance of counsel it is the first order of business to understand the "GIST" of the Indictment, because, if you don't understand what the heart of the document is all about, you will not know how to attack the document.

For instance, the "GIST" of the instant Indictment was the statement in paragraph number 7 of the Manner and Means, ".... which they [the accused] knew could not and would not be negotiated or redeemed for money, payment or funds ...."

In U.S. v. Li, 856 F.Supp 411, the court quite plainly states in paragraph number 4, Bills and Notes, "Check is negotiable instrument with value of its own, and, thus, check does not need to be deposited in order to have value." Eventhough this statement is about "check," any negotiable instrument would and could be said to have the same value factor. "Cashiers checks and certified checks are both checks and money orders are check equivalents." Center Video Indus. v. Roadway Package System, Inc., 90 F3d 185 (CA.7 1996), Paragraph No. 11,

The assistance of counsel to be effective should have known that the question of the negotiable instruments was a non-federal question and the federal court in adjudicating this non-federal question must apply state law, i.e., The Texas Business and Commerce Code. See, U.S. v. Little, 52 F3d 495 (CA4.1995)

None of the accused in the instant case had any knowledge that the Certified Money Orders or the Certified Bankers Cheques could not or would not be negotiated or redeemed for money, payment, funds, credits or something of value. And the government never did prove that any of the accused had any such knowledge and that there was a conspiracy to use such knowledge in an unlawful manner.

With the governments failure to prove the heart of the Indictment, the case is ripe for reversal with prejudice.

The harm and prejudice to this accused was that the accused could and was denied effective assistance of counsel guaranteed him by the Article of Amendment Number Six to the Constitution for the United States of America and the mandates of Stricklin v. Washington along with the jury being deceived by the government and the jury did not have all the information and proof necessary to establish the mens rea for conviction of the offenses charged.

Ground 25 THE ASSISTANCE OF COUNSEL PROVIDED BY THE COURT WAS INEFFECTIVE, BECAUSE, WHILE HE NEVER DID UNDERSTAND THE "GIST" OF THE INDICTMENT, THAT LACK OF UNDERSTANDING WOULD PREVENT HIM FROM KNOWING THAT MATERIAL. EXCULPATORY FACTS WERE WITHHELD FROM THE GRAND JURY.

The lack of knowledge concerning the heart of the Indictment prevented assistance of counsel from knowing material exculpatory facts and evidence were withheld from the grand jury considering the instant Indictment.

The most obvious material fact not given to the grand jury is the additional United States Code sections, primarily Section 1344, Bank Fraud, in the same chapter as Mail Fraud, Section 1341. 18 U.S.C. § 1344 states:

Whoever knowingly executes, or attempts to execute, a scheme or artifice -

1. to defraud a financial institution; or

2. to obtain any of the moneys, 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, representation, or promises;

shall be fined not more than $1,000,000 or imprisoned not more than 30 years or both. (emphasis added)

18 U.S.C. § 657 states in relevant part:

".... and whoever, being a receiver of any such institution, or agent or employee of the receiver, embezzles, abstracts, purloins or willfully misapplies any money, funds, CREDITS, securities OR OTHER THINGS OF VALUE belonging to such institution, ...." (emphasis added)

18 U.S.C. § 664 states in relevant part:

"Any person who embezzles, steals, or unlawfully and willfully or converts to his own use or to the use of another, any of the moneys, funds, securities, premiums, CREDITS, property, OR OTHER ASSETS of any employee welfare benefit plan ...." (emphasis added)

It would be obvious why the United States Attorney would not want to discuss these Sections with the grand jury, because these sections classify credits as property, things of value, and assets, AND the United States Attorney knew the Certified Money Orders and the Certified Bankers Cheques were negotiable instruments transferring credits. Furthermore, the United States Attorney did not want to have any mention of credits during the trial. Other material exculpatory evidence and facts in the hands of the United States Attorney was a Letter of Credit from O.M.B, W.D. McCall and Associates, signed by Bill O'Neill in the amount of $1,500,000. and the pledging of a personal asset worth far in excess of the 1.5 MUSD.

The fact there was no challenge from the assistance of counsel to the Indictment specifying these particular facts and evidence being withheld from the grand jury proves this accused's case of ineffective assistance of counsel and the denial of effective assistance of counsel contrary to Article of Amendment Number Six of the Constitution for the United States of America and the Supreme Court of the United States dictum in Stricklin v. Washington.

The harm and prejudice caused to this accused is not only the denial of a constitutional requirement of effective meaningful assistance of counsel but the jury would not and did not get the facts regard these additional specifics proving a lawful good faith defense to the allegations.

And in light of all that, this case needs reversal with prejudice.

Ground 26 THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, WITHOUT UNDERSTANDING THE "GIST" OF THE INDICTMENT, THE COUNSEL COULD NOT MOVE FOR SEVERANCE OF BILLY MACK O'NEILL FROM THE TRIAL SO HE COULD BE CALLED AS A DEFENSE WITNESS TO DISPUTE THE STATEMENT IN PARAGRAPH NUMBER 7 OF THE MANNER AND MEANS.

Rule 14 of the Federal Rules of Criminal Procedure states that severance is necessary when one of the defendants can and will offer exculpatory evidence and Billy Mack O'Neill is the only one who would know that not all if any of the defendants would know the truth of the statement in paragraph number 7, to wit; "... which they [the accused's] knew could not and would not be negotiated or redeemed for money, payment or funds ....." The entire case revolved around this statement.

This demand for severance should have been made before trial, in order to be effective and meaningful assistance of counsel, and based on the need to call Billy Mack O'Neill as a defense witness to offer that piece of exculpatory evidence to refute the said statement.

The factors required for a severance are set forth in U.S. v. Stoecker, 920 F.Supp 876, also see U.S. v. Williams, 31 F.3d 522.

The cases supporting the requirement that severance in this case was mandatory are, U.S. v. Baker, 329 F.2d 786 and U.S. v. Hedman, 630 F.2d 1184.

Not to know the requirements and reasons in the instant case for severance, is ineffective assistance of counsel and that lack of knowledge is shown in the record, because, there is no demand, pretrial, for severance, which is a prima facie showing of ineffectiveness of assistance of counsel and requires reversal with prejudice.

Ground 27 THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE FAILED TO HIRE AN INVESTIGATOR, DEMAND THE COURT HIRE AN INVESTIGATOR, OR INVESTIGATE HIMSELF AS TO ALL THE FACTS OF THE CASE AND ALL INSTANCES OF THE USE OF THE CERTIFIED MONEY ORDERS AND CERTIFIED BANKERS CHEQUES TO DETERMINE WHETHER OR NOT ANY WERE DISHONORED, AND WHETHER THERE WERE INSTANCES OF THEIR USE THAT WAS NOT CHARGED AND WHY.

It is required by the Texas Business and Commerce Code (Uniform Commercial Code (UCC)), Section 3.802, that an instrument be dishonored before any action can be taken on the instrument, and when the instrument is dishonored by the drawee, the holder is given his option to sue either on the instrument or on the underlying obligation. See, Center Video Indus. v. Roadway Package System, Inc., 90 F3d 185,186, where the court said, "Money Orders are instruments created pursuant to state law and the law of the state in which the money order was purchased generally governs."(paragraph no. 8)

The [assistance of] [c]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. Stricklin v. Washington, 466 US 668, Paragraph No. 13.

The assistance of counsel should have known the negotiable instrument was a non-federal issue and "In adjudicating non-federal questions, Federal courts must apply state law" [in this case the UCC] U.S. v. Little, 52 F3d 495, (CA4.1995),

The first area of investigation is to determine whether or not the said instruments were in fact dishonored.

The second area of investigation is to determine if the all the uses of the instruments and if not why not.

The third are of investigation was whether or not any of the instances not charged, if the people involved thought they were defrauded or not, and if not, why not.

This investigation is the type contemplated in Stricklin, supra, and U.S. v. Cronic, 466 U.S. 648 and the lack of investigation amounts

to ineffective assistance of counsel and requires reversal with prejudice.

Judges have [known and compelling duty to protect the public from lawyers who are unable or unwilling to defend them in litigation." Matter of Maurice, 69 F3d 830 (CA7.1995), Paragraph No. 7.

For the court's information, the instruments in the instant case were never dishonored by anyone.

Ground 28 THE ASSISTANCE OF COUNSEL PROVIDED BY THE COURT WAS INEFFECTIVE, BECAUSE, HIS LACK OF KNOWLEDGE ON NEGOTIABLE INSTRUMENTS PROHIBITED HIM FROM UNDERSTANDING THE USE OF AND THE RELIANCE UPON THE TEXAS BUSINESS AND COMMERCE CODE (UNIFORM COMMERCIAL CODE(UCC)) BY THE ACCUSED AND THAT RELIANCE AMOUNTED TO GOOD FAITH, ON THE PART OF THIS ACCUSED.

The assistance of counsel's lack of knowledge of negotiable instruments would preclude him from understanding the relevant state law pertaining to those instruments to provide effective meaningful assistance of counsel to this accused to show the court and jury how his actions were authorized and sanctioned by state law, that the negotiable instrument question was a state law question, Center Video Indus. v. Roadway Package System, Inc., 90 F3d 185,(CA7 1996), Paragraph 11, and the requirement that non-federal questions must be adjudicated in Federal court by applying state law, U.S. v. Little, 52 F3d 495, (CA4.1995),

Failure to understand the applicable state law prejudiced this accused by the counsel's failure to demand a good faith evidentiary hearing, pre-trial, to effectively show the court this accused's good faith and ALL the elements of that good faith for the expressed purpose that good faith kills intent and good faith is a complete defense to mail fraud, U.S. v. Alkins, 925 F.2d 541, paragraph number 4, and also to make sure that all the elements of good faith were listed in the instructions to the jury.

Such prejudice to this accused is ineffective assistance of counsel and demands reversal with prejudice.

Ground 29 THE ASSISTANCE OF COUNSEL PROVIDED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE DID NOT OBJECT TO THE DISMISSAL OF BILLY MACK O'NEILL FROM COUNT ONE, CONSPIRACY, OF THE INDICTMENT, BECAUSE THE DISMISSAL

CHANGED THE GOVERNMENTS THEORY OF THE CASE FROM A SINGLE CONSPIRACY TO THAT OF MULTIPLE CONSPIRACIES.

Because Billy Mack O'Neill and his alter ego, O.M.B., W.D. McCall and Associates, as the drawee and central figure, pursuant to paragraph no. 8 of the manner and means of the indictment, on the Certified Money Orders and Certified Bankers Cheques, was withdrawn from the conspiracy count, this withdrawal changed the governments case from one of a single conspiracy to that of a case of multiple conspiracies. The failure of the assistance of counsel to object to the dismissal/withdrawal of Billy Mack O'Neill from the conspiracy count and the changing of the government's theory of the case was ineffective to say the least.

The harm and prejudice to this accused from this change in the theory of the case can be shown best by case law. As stated in Lincoln v. Sunn, 807 F.2d 805, paragraph no. 12,

A change in the government's theory late in criminal case might constitute prejudicial variance or constructive amendment and the critical consideration is whether the introduction of the new theory changes the offense charged, or so alters the case that defendant has not had a fair opportunity to defend.

Also failure by the assistance of counsel to demand a mistrial and re-indictment also constituted ineffective assistance of counsel because of the change in the government's theory of the case.

The government cannot change it's theory of the case without adequate time for this accused to prepare to meet a different burden to defend against or attack, and it is ineffective of the assistance of counsel to allow this to happen without objection and demands reversal with prejudice.

Ground 30 THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE THE ASSISTANCE OF COUNSEL DID NOT OBJECT TO A MATERIAL AMENDMENT OF THE INDICTMENT WITHOUT DISMISSAL OF THE INDICTMENT AND RE-PRESENTMENT TO THE GRAND JURY FOR A SUPERSEDING INDICTMENT.

The dismissal/withdrawal of Billy Mack O'Neill from Count One, Conspiracy, of the Indictment amounted to a material amendment of the Indictment.

Pursuant to U.S. v. McNeese, 901 F.2d 585, material amendments of the indictment can only be made by the grand jury.

The material amendment of the indictment by the Court changed the indictment from an indictment which was a product of the grand jury to an indictment which was not a product of the grand jury, therefore a re-presentment to the grand jury was mandatory.

Because Billy Mack O'Neill was the central figure of the conspiracy count, pursuant to the manner and means paragraph no. 8 and he was or his alter ego, O.M.B., W.D. McCall and Associates were in every group of overt acts for each count of the conspiracy, the withdrawal/dismissal of Billy Mack O'Neill from Count One would have necessitated his withdrawal/dismissal from the manner and means of the conspiracy and the withdrawal/dismissal from the overt acts in furtherance of the conspiracy, in other words, without Billy Mack O'Neill and/or O.M.B., W.D. McCall and Associates there was no

conspiracy.

U.S. v. ITT, 824 F.2d 628, a restructured [amended] indictment is insufficient when it takes away the intent of the grand jury to indict pursuant to the full evidence presented to them. Gaither v. U.S., 413 F.2d 1061 describes when an amendment of the indictment occurs when the court stated, amendment occurs when charging terms of the indictment are altered either literally or IN EFFECT by prosecutor or the court after grand jury has passed on them.

It was ineffective for the assistance of counsel not to object to this material amendment and to demand a new presentment to the grand jury be made for a superseding indictment, and committed harm and prejudice to this accused such that this conviction should be reversed with prejudice.

To support this said reversal with prejudice, the Fifth Circuit has set forth the matter of amending the indictment in U.S. v. Doucet, 994 F.2d 169, paragraph no. 3. when it stated;

3. Amendment of indictment to broaden it, [to any of the accused]

other than by grand jury, need not be explicit to constitute reversible error, but may be implicit or constructive.

Ground 31 THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, THE ASSISTANCE OF COUNSEL DID NOT OBJECT TO THE BROADENING OF THE INDICTMENT AS TO THIS ACCUSED BY THE DISMISSAL OF BILLY MACK O'NEILL FROM COUNT ONE OF THE INDICTMENT AND DEMANDING THE INDICTMENT BE DISMISSED FOR BROADENING OF THE CHARGES AGAINST THIS ACCUSED.

When Billy Mack O'Neill was dismissed from the conspiracy count without being removed from the overt acts, the indictment was impermissible broadened as to this accused. This broadening was either literal or constructive in the minds of the jury, neither of which is permitted.

The Court said in U.S. v. Homick, 964 F.2d 899, the Fifth Amendment requires that the defendant be tried only on charges handed down by the grand jury.

Common sense will dictate that if one individual is removed from a conspiracy, especially when that individual is the central figure as listed in paragraph no. 8 of the manner and means, and in every group of overt acts that make for Counts 2 - 15 of the indictment, then the culpability for the remaining conspirators necessarily has to be increased in that the other defendants had to take more responsibility for the conspiracy when supplanting Billy Mack O'Neill, if not literally than at least constructively, in the minds of the jury.

This is the broadening that is contemplated as being impermissible and when the assistance of counsel failed to object to this broadening by not demanding the indictment be dismissed, was ineffective to say the least, and requires reversal with prejudice.

Ground 32 THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE FAILED TO INFORM THE COURT ABOUT THE EXISTENCE OF A PERSONAL ASSET, WORTH FAR IN EXCESS OF THE AMOUNT OF THE LETTER OF CREDIT, THAT COULD BE USED TO DISCHARGE ANY CIVIL OBLIGATION THIS ACCUSED MAY HAVE HAD UNDER THE U.C.C. UPON ANY

CERTIFIED MONEY ORDERS HE SIGNED AS MAKER.

The Court has the power to subpoena the records of Aerospatiale, Societe D'Exploitation et de Constructions Aeronautiques (SECA), and Noise Reduction Engineering, Inc. (NRE) to prove the value of the asset pledged to the Letter of Credit. Failure of the assistance of counsel to use the power of the court to so prove the value of the asset was ineffective. Principally, because he did not understand the letter of credit was a state law question, that the negotiable instrument question was a state law question, Center Video Indus. v. Roadway Package System, Inc., 90 F3d 185,(CA7 1996),Paragraph 11, and the Federal court must apply state law in adjudicating non-federal questions, U.S. v. Little, 52 F3d 495, (CA4.1995),

In order for this Court to see that the good faith was a measurable quantity in USD, enough to discharge any and all obligations this accused might become obligated to, and this accused's intent to so discharge the said obligations, the records of Aerospatiale, SECA, and NRE were necessary to be the target of a subpoena duces techum.

Of course, once the good faith is established, the intent or mens rea is killed, see U.S. v. Alkins, 925 F.2d 541, paragraph no. 4. Post Office, where the Court states; "Good faith is complete defense to mail fraud."

Stricklin, specifically states the need for investigation and common sense would dictate the first investigation by the assistance of counsel would be to see the validity of the good faith claimed by the accused. Once good faith is established, that claim can be solidified by a proper investigation into the facts surrounding the claim of an asset to support the said Letter of Credit and that assets commercial value or commercial worth.

For the assistance of counsel not to carry on the required investigations is ineffective on his part, not to present information to the jury on the part of the Letter of Credit played in the whole affair and it's commercial value, compounded the ineffectiveness and the total ineffectiveness herein demands reversal and that reversal with prejudice.

Judges have [known and compelling duty to protect the public from lawyers who are unable or unwilling to defend them in litigation." Matter of Maurice, 69 F3d 830 (CA7.1995), Paragraph No. 7.

The harm and prejudice suffered by this accused in addition to the denial of effective assistance of counsel guaranteed by the Article of Amendment Number Six of the Constitution for the United States of America, is that the jury could convict this accused when the element of intent or mens rea had been eliminated by the good faith of this accused, in violation of the due process guarantees of the Article of Amendment Number Five of the Constitution for the United States of America.

Ground 33 THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE DID NOT OBJECT TO THE GOVERNMENT CHANGING IT'S THEORY OF THE CASE BY THE WITHDRAWAL/DISMISSAL OF BILLY MACK O'NEILL AS A CONSPIRATOR IN COUNT ONE OF THE INDICTMENT.

The dismissal/withdrawal of Billy Mack O'Neill from Count one of the Indictment changed the government's theory of the case from that of a large massive single conspiracy to that of multiple conspiracies.

As stated in Lincoln v. Sunn, 807 F.2d 805, paragraph no. 12,

A change in the government's theory late in criminal case might constitute prejudicial variance or constructive amendment and the critical consideration is whether the introduction of the new theory changes the offense charged, or so alters the case that defendant has not had a fair opportunity to defend.

The withdrawal/dismissal from the conspiracy not only showed the government's change in the theory of the case but also was a constructive amendment of the indictment and the assistance of counsel's lack of objection to and demand for a dismissal of the Indictment, a severance from Billy Mack O'Neill, or some other attack on the Indictment was ineffective and violated this accused's Sixth Amendment right to effective meaningful assistance of counsel.

The harm and prejudice committed on this accused by this plain error requires a reversal with prejudice.

The harm and prejudice suffered by this accused in addition to the denial of effective meaningful assistance of counsel guaranteed to this accuse by the Article of Amendment Number Six of the Constitution for the United States of America is the denial of due process by not allowing this accused time to meet a new challenge as guaranteed to him by the Article of Amendment Number Five of the Constitution for the United States of America. Had this accused been afforded due process the outcome of the trial would have been different.

Ground 34 THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, THE INDICTMENT FAILED TO ALLEGE THE CERTIFIED MONEY ORDERS AND THE CERTIFIED BANKERS CHEQUES WERE DISHONORED BY THE DRAWEE AS REQUIRED BY TEE TEXAS BUSINESS AND COMMERCE CODE

BEFORE ANY ACTION CAN BE TAKEN THEREON, AND THE ASSISTANCE OF COUNSEL FAILED TO OBJECT TO THIS DISREGARD OF STATE LAW AND DEMAND A DISMISSAL WITH PREJUDICE.

Texas state law, the Texas Business and Commerce Code (Uniform Commercial Code (UCC)) is the governing law in Texas on negotiable instruments and the instant CMO's and CBC's were in compliance with the UCC Chapter 3, Section 3.104.

The assistance of counsel's lack of knowledge started with his lack of understanding that the negotiable instrument question was a non-federal question and must be adjudicated by applying state law, U.S. v. Little, 52 F3d 495 (CA.4 1995).

Lack of knowledge or the part of the assistance of counsel concerning state law at the heart of the matter, namely the UCC caused this accused great prejudice. The Indictment incorrectly alleges the CMO's and CBC's to be "false, fraudulent and fictitious" when they in fact meet the criteria of the UCC § 3.104 to be a negotiable instrument specifically because they are "any writing" and have the four requirements of "any writing" to be a negotiable instrument or that the CMO 's were in fact check equivalents, Center Video Indus. v. Roadway Package System, Inc., 90 F3rd 185 (CA7.1996)

Under the doctrine set forth in Hollingshead v. Wainwright, 423 F.2d 1059, the assistance of counsel's effectiveness MUST BE MEASURED by his familiarity with the facts and the law of the particular case, and obviously the assistance of counsel was not familiar, as shown prima facilely by the record, and therefore this accused was denied effective meaningful assistance of counsel as guaranteed by the 6th Amendment to the Constitution for the United States of America and that denial is plain error and requires reversal with prejudice and more specifically because there was no evidence or testimony that the CMO's or CBC's did not meet state law requirements.

Additional harm and prejudice suffered by this accused is the denial of due process by the jury not holding the evidence up to the correct standard, that being Texas state law, in violation of the Article of Amendment Number Five of the Constitution for the United States of America. Had the jury considered the evidence in light of the correct legal standard the outcome of the trial would have been different and this accused found not guilty.

Ground 35 THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE HE FAILED TO DEMAND A GOOD FAITH EVIDENTIARY HEARING PRIOR TO TRIAL FOR THE PURPOSE OF ESTABLISHING GOOD FAITH ON THE PART OF THE ACCUSED, THE ELEMENTS OF THAT GOOD FAITH, THE

EXISTENCE OF THE LETTER OF CREDIT FROM BILLY MACK O'NEILL AND THE PERSONAL ASSET, WORTH FAR IN EXCESS THE VALUE OF THE LETTER OF CREDIT, PLEDGED TO GUARANTEE THE LETTER OF CREDIT, ALL IN GOOD FAITH.

The standards set forth in Stricklin v. Washington, would necessitate a good faith evidentiary hearing, pre-trial, when the facts and the circumstances warrant it, as was the situation in this instant case.

It goes without saying, the accused's reliance upon state law, the CMO's and the CBC's in compliance with state law, the issuance of the letter of credit, the pledge of a personal asset worth far in excess of the letter of credit, and the amount of legal advice sought along with the amount of personal legal research done by the accused would warrant a complete and in depth good faith evidentiary hearing, pre-trial, for the court to fully understand there was no intent to deceive or defraud anyone. This accused's reliance upon state law is supported by U.S. v. Little, 522 F3d, 495 (CA.4,1995) when the court said, "in adjudicating non-federal questions, Federal courts must apply state law." and the premise that negotiable instruments are non-federal questions is supported by Center Video Indus. v. Roadway Package Systems, Inc., 90 F3d 185(CA7,1996) when the court discussed "Colorado State Law," "The UCC (Uniform Commercial Code)," "Cashiers Checks," "Certified Checks," and "Money Orders" while specifically stating, "Money Orders are instruments created pursuant to state law, and the law of the state in which the money order was purchased generally governs."

The lack of the good faith evidentiary hearing robbed the court of the testimony, evidence with all the elements of the good faith necessary for the court to have an opportunity to make a determination whether or not the good faith did in fact negate intent on the part of the accused and robbed the jury of the chance to consider all the elements of the good faith defense in their deliberations concerning guilt or innocence. The lack of a good faith evidentiary hearing pre-trial was ineffective on the part of the assistance of counsel and requires reversal with prejudice.

Judges have [known and compelling duty to protect the public from lawyers who are unable or unwilling to defend them in litigation." Matter of Maurice, 69 F3d 830 (CA7.1995), Paragraph No. 7.

The harm and prejudice suffered by this accused in addition to the denial of effective meaningful assistance of counsel as guaranteed to him by the Article of Amendment Number Six of the Constitution for the United States of America is the denial of due process as guaranteed to him by the Article of Amendment Number Five of the Constitution for the United States of America in that the Court could have and probably would have issued a dismissal with prejudice pre-trial after the said good faith evidentiary hearing because of the establishment of the good faith on the part of this accused and the destroying of the mens rea. Should the Court have wanted to proceed to trial then the jury would have been properly informed of the existence of and the extent of the good faith and the outcome of the trial would have been different.

Ground 36 THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE DID NOT DEMAND THE COURT DISMISS THE INDICTMENT AFTER THE MATERIAL AMENDMENT OF THE INDICTMENT BECAUSE THE MATERIAL AMENDMENT OF THE INDICTMENT CAUSED THE COURT TO LOSE JURISDICTION OF THE MATTER, IF IT IN FACT EVER HAD ANY.

Because the Indictment imparts jurisdiction of the criminal matter to the court and gives the court it's power to act, U.S. v. Macklin, 523 F.2d 193.

The material amendment of the indictment, without action by the grand jury, causes the court to lose it's jurisdiction in a criminal matter, U.S. v. Anzelmo, 319 F.Supp 1106, affirmed F.2d

The material amendment of the instant indictment, either literally or in effect, has been established herein by Ground 3 and Ground 4

Under the doctrine of effective meaningful assistance of counsel as set forth in Stricklin v. Washington, 466 U.S. 668, the failure to object to the loss of subject matter jurisdiction because of the amended indictment and the failure to demand dismissal of the said amended indictment was ineffective on the part of the assistance of counsel, caused great harm and prejudice to this accused and demands the reversal of the conviction, with prejudice.

The harm and prejudice suffered by this accused in addition to the denial of effective meaningful assistance of counsel as guaranteed to him by the Article of Amendment Number Six of the Constitution for the United States of America is the denial of due process as guaranteed to this accused by the Article of Amendment Number Five of the Constitution for the United States of America by making this accused answer to a Court when the Court lost any jurisdiction it may have had in the matter when the Indictment was materially amended.

Ground 37 THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, WHEN THE INDICTMENT FAILED TO ALLEGE THE CERTIFIED MONEY ORDERS AND THE CERTIFIED BANKERS CHEQUES WERE DISHONORED, PURSUANT TO TEXAS STATE LAW, INDICATED THIS INFORMATION WAS WITHHELD FROM THE GRAND JURY AND THE ASSISTANCE OF COUNSEL FAILED TO CHALLENGE THE GRAND JURY PROCEEDINGS FOR THE OMISSION OF THIS MATERIAL FACT.

An indictment must be a competent and forthright attempt to notify the accused of extent of his alleged culpability. See U.S. v. Edmonson, 962 F.2d 1535 and U.S. v. Gayle, 936 F.2d 1234.

When the instant indictment labeled the negotiable instruments, Certified Money Orders and Certified Bankers Cheques, as "false, fraudulent and fictitious" and yet failed to allege these same negotiable instruments did not meet the criteria of Texas state law and failed to allege these same negotiable instruments were presented to the drawee and dishonored, the assistance of counsel should have known material facts and applicable state law were withheld from the grand jury. The premise of negotiable instruments being a state law question is supported by Center Video Indust. v. Roadway Package Systems, Inc., 90 F3d 185(CA7,1996) when the court said, "Money Orders are instruments created pursuant to state law, and the law of the state in which the money order was purchased generally governs." Also in the same line of thinking "in adjudicating non-federal questions (state law), Federal courts must apply state law. U.S. v. Little 90, F3d 495,(CA4.1995)

This failure on the part of the assistance of counsel to object to the withholding of material facts and law from the grand jury and then not to challenge the said grand jury proceedings was ineffective on the part of the assistance of counsel pursuant to the doctrine setforth in Stricklin, and requires reversal with prejudice.

The harm and prejudice suffered by this accused in addition to the denial of effective meaningful assistance of counsel as guaranteed by the Article of Amendment Number Six of the Constitution for the United States of America is the denial of due process as guaranteed to this accused by the Article of Amendment Number Five of the Constitution for the United States of America, when the grand jury returned an improper Indictment because it did not allege the proper law of the realm regarding negotiable instruments. And the outcome of the proceeding would have been different had the grand jury known this.

Ground 38 THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, WHEN THE INDICTMENT FAILED TO ALLEGE VIOLATIONS OF STATE LAW REGARDING NEGOTIABLE INSTRUMENTS, THE ASSISTANCE OF COUNSEL FAILED TO HAVE THE JUDGE INSTRUCT THE JURY AS TO THE APPLICABILITY OF STATE LAW TO NEGOTIABLE INSTRUMENTS.

Because state law, in this case the Texas Business and Commerce Code (Uniform Commercial Code (UCC)), controls negotiable instruments in Texas state and the indictment failed to allege any violation of the UCC, for instance, that the negotiable instruments, the Certified Money Orders and the Certified Bankers Cheques, did not meet the criteria as set forth in the UCC Chapter 3, Section 3.104, and/or that the negotiable instruments were dishonored, after a lawful presentment to the drawee, pursuant to the UCC Chapter 3, Section 3.507, the assistance of counsel was required to make sure that the proper jury instructions were given to the jury on this matter.

The statement in the preceding paragraph, "the Texas Business and Commerce Code (Uniform Commercial Code (UCC)), controls negotiable instruments in Texas state" is supported by Center Video Indust. v. Roadway Package Systems, Inc., 90 F3d 185(CA7,1996) when the court said, "Money Orders are instruments created pursuant to state law, and the law of the state in which the money order was purchased generally governs." and because state law is a non-federal questions "in adjudicating non-federal questions (state law), Federal courts must apply state law. U.S. v. Little, 90 F3d 495,(CA4.1995).

The requirement to give accurate jury instructions on the accused's theory of the case, U.S. v. Riffe, 28 F.3d 565, and that instruction must adequately instruct the jury on legal principals underlying defense because it is not enough to present defense in wholly factual terms, U.S. v. Migliaccio, 34 F.3d 1517, cannot be avoided.

This accused's reliance on the UCC was well known to the assistance of counsel and yet he failed to insure that this reliance, in good faith, and as a part of a good faith defense was properly presented to the jury in the jury instructions, and therefore was ineffective, committed harm and prejudice to this accused and requires reversal with prejudice.

The harm and prejudice suffered by the accused in addition to the denial of effective assistance of counsel guaranteed by the Article of Amendment Number Six of the Constitution for the United States of America is the denial of due process guaranteed to this accused by the Article of Amendment Number Five of the Constitution for the United States of America by not instructing the jury as to the proper law to judge the instruments by and had the jury had the correct instructions, the outcome would have been different.

Ground 39 THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE FAILED TO EDUCATE THE JURY, AND THEN HAVE PROPER JURY INSTRUCTIONS REGARDING THE DOCTRINES OF ALTER EGO AND THE INSTRUMENTALITY RULE.

The Doctrine of Alter Ego and the "Instrumentality Rule" were left out of the proceedings in the instant matter. These two important doctrines were necessary for the jury to understand the complexities of the Indictment and the ramifications of the withdrawal/dismissal of the central figure, Billy Mack O'Neill, from the Conspiracy Count of the Indictment.

Because Billy Mack O'Neill was only mentioned nine (9) times in Counts 2 - 15 and O.M.B., W.D. McCall and Associates was mentioned thirty (30) times in the same counts, it would be necessary to understand the Doctrine of Alter Ego and the Instrumentality Rule to comprehend the relationship of Billy Mack O'Neill and O.M.B., W.D. McCall and Associates, so one could fully understand the Indictment and the allegations therein, specifically in light of the withdrawal/dismissal of the central figure, Billy Mack O'Neill, from Count One as a conspirator, yet remained in the manner and means of the conspiracy as the central figure, pursuant to paragraph no. 8 therein.

The Doctrine of Alter Ego is well known and simply stated is; the court disregards corporate entity and holds individual responsible for acts knowingly and intentionally done in the name of the company/corporation.

The understanding by the jury of the doctrine of alter ego would probably have resulted in a not guilty verdict or in the minimum a hung jury, why, because the jury would not have understood how Billy Mack O'Neill could not be named in Count One and yet was the central figure in the manner and means of the conspiracy, pursuant to paragraph no. 8. About the only common sense answer, in the mind of the jury, was that Billy Mack O'Neill plead guilty to Count One and therefore the guilt or innocence question was taken from their hands, but surely if Billy Mack O'Neill plead guilty and was guilty, and therefore the rest of the accused's must be guilty, to this accused's harm and prejudice.

The Instrumentality Rule, Taylor v. Standard Gas and Electric Company, 96 F.2d 693, basically is along the lines of the doctrine of alter ego, in that, the company/business will be disregarded when it is conducted as to make it only an adjunct and instrumentality of the owner. Garvin v. Matthews, 74 P.2 990, 993, places liability on the individual when the business is merely an instrumentality in conducting his own personal business.

The confusion in the mind of the jury could have been eliminated for sure by a re-presentment to the grand jury with a superseding indictment. Barring the re-presentment to the grand jury, the absolute minimum that should have been done was a curative instruction to the jury. There was no such instruction.

The lack of re-presentment to the grand jury or an instruction to the jury on the part of the court appointed assistance of counsel was ineffective, caused great harm and prejudice to this accused, tainted the process and requires reversal with prejudice.

The harm and prejudice suffered by this accused in addition to the denial of effective assistance of counsel guaranteed him by the Article of Amendment Number Six of the Constitution for the United States of America is the denial of due process guaranteed to him by the Article of Amendment Number Five of the Constitution for the United States of America by not allowing the jury to properly interpret the Indictment and the culpability assigned by the grand jury.

Ground 40 THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, WITH THE POSSIBILITY OF MULTIPLE CONSPIRACIES EXISTING, HE DID NOT DEMAND A JURY INSTRUCTION ON MULTIPLE CONSPIRACIES.

With so many people named in the Indictment there existed the possibility of multiple conspiracies, specifically when the Indictment on its face, paragraph one, lists eight accused's, and then states; ".... the defendants, [lists all eight] and others, known and unknown did knowingly, intentionally and willfully combine, conspire, confederate and agree together AND WITH EACH OTHER ...." [emphasis added].

When the central figure in Count One of the Indictment, Conspiracy, pursuant to paragraph no. 8 of the manner and means of the Conspiracy in the Indictment, is withdrawn/dismissed then the possibility is greatly heightened or increased as to the existence of multiple conspiracies, OR NO CONSPIRACY.

In U.S. v. Kendall, 665 F.2d 126, the court stated that the court is required to instruct the jury if the possibility exists of multiple conspiracies. In U.S. v. Walker, 25 F.3d 540 the court stated it more emphatically in paragraph

no. 14. to wit;

"If possibility of multiple conspiracy exists, district judge must so instruct jury."

This is not maybe or should, the court said "MUST SO INSTRUCT JURY."

For the assistance of counsel not to make sure the judge followed a clear mandate to so instruct the jury is plain error, ineffective assistance of counsel, and demands reversal with prejudice.

The harm and prejudice suffered by this accused in addition to the denial of effective meaningful assistance of counsel guaranteed him by the Article of Amendment Number Six of the Constitution for the United States of America is the denial of due process guaranteed him by the Article of Amendment Number Five of the Constitution for the United States of America by not having the jury properly instructed as to the law to protect this accused from double jeopardy for the same conduct in another possible action.

Ground 41 THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE HE FAILED TO MAKE SURE THE JURY UNDERSTOOD THE HODGEPODGE OF OVERT ACTS AND COUNTS IN THE INDICTMENT.

The assistance of counsel could have and should have polled the jury after the verdict[s] were in and asked them one question for each of the Counts 2-15: What overt acts in Count One of the Indictment went with each of the Counts 2 - 15? The answer would probably have shocked the court.

For the accused the requirement has been established. In U.S. v. Gayle, 936 F.2d 1234, the court mandated that: the indictment must be competent and forthright attempt to notify the accused of the extent of his alleged culpability. Also in U.S. v. Lopez, 970 F.2d 583, the court said the indictment must be clear enough to allow defendants to prepare his or her defense.

What about the jury? Does the jury have to understand and comprehend the indictment? Or, can the jury be told what to do without understanding the whole matter?

Sixty six (66) overt acts from Count One make up Counts 2 - 15. However, there is no indication in Counts 2 - 15 which of the overt acts apply to which counts, for instance, Count 2 consists of overt acts no. 61 - 66, whereas Count 12 consists of overt acts no. 1 - 5, and no where in the indictment is any referencing accomplished, setting forth which overt acts make up which Count.

Count One of the Indictment sets forth that the conspirators were conspiring to commit mail fraud, see paragraph 1(e) of the Indictment. The 66 paragraphs of overt acts were in furtherance of the conspiracy to commit mail fraud. Counts 2 - 15 were the Counts were the substantive mail fraud was charged along with aiding and abetting.

Eventhough the accused's were charged in Counts 2 - 15 with mail fraud and aiding and abetting, the jury had to look at Count One - Overt Acts - paragraphs 1 - 66 to actually see what the defendants were alleged to have done that constituted mail fraud and aiding and abetting. To accomplish this, it would have been necessary for the jury to make a chart of each Count and identify which overt acts went with each Count. Your petitioner has done just that, see Chart and Matrix with Ground 10 herein.

It was ineffective assistance of counsel on the part of the assistance of counsel not to make sure the jury understood which overt acts went with which Count, created harm and prejudice to this accused, and demands reversal with prejudice.

The harm and prejudice suffered by the accused in addition to the denial of effective meaningful assistance of counsel guaranteed him by the Article of Amendment Number Six of the Constitution for the United States of America is the denial of due process guaranteed him by the Article of Amendment Number Five of the Constitution for the United States of America by allowing the jury to convict without a uniform unanimous vote of guilt because the jury had a multiple choice array from which to find guilt and no instruction to tell them they had to find a uniform unanimous verdict of guilt. Had the jury been properly instructed the outcome of the trial would have been different.

Ground 42 THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE HE DID NOT DEMAND A VERDICT FORM THAT WAS CONSISTENT WITH THE LAW, INDICTMENT AND THE FACTS.

The Counts of the Indictment that show the Verdict Form for what it really was are Counts 2, 3, 6, 7, 14, and 15. In Counts 2 - 15 the accused so named in the Counts were each charged with mail fraud, the substantive offense, and aiding and abetting in the commission of the substantive offense. Yet, the Verdict Form does not make any differentiation, one was guilty of both or not guilty of both.

Take Counts 2 and 6, first. In Counts 2 and 6 there were accused's found not guilty of both the substantive offense and aiding and abetting the commission of the substantive offense. Your accused was in both these Counts and was found guilty both of the substantive offense and aiding and abetting. The question is; Whom did I aid and abet, one of the accused found not guilty of both the substantive offense and aiding and abetting? We will never know because the jury was never asked.

However, pursuant to U.S. v. Teffera, 985 F.2d 1082, paragraph no. 5. the court stated the following:

5. Technical elements of aiding and abetting are: specific intent to facilitate commission of crime by another; "guilty knowledge" by alleged abetter; commission of substantive offense by someone else; and assistance or participated in commission of the offense.

Also in U.S. v. Ledezma, 26 F.3d 636, in paragraph no. 10, the court

10. Essence of crime of aiding and abetting is defendant's offering assistance or encouragement to principle in commission of substantive offense.

So, if one of the accused found not guilty was the principle, then how could this accused be found guilty of aiding and abetting? Impossible, you say, well guess what happened!!! How do I know, see the next paragraph. In Counts 3, 7, 14 and 15 there was only one individual named in each of those Counts, and yet that individual was found guilty of aiding and abetting. Teffera and Ledezma, supra, say that cannot happen, yet it did, and its in the record. Whom did these individuals aid and abet? Themselves? Could be.

Even in all the other Counts to find ALL guilty of the principal offense and aiding and abetting, it sounds like another impossibility. Some one has to be the principle and then someone else can be an aider and abetter, only the jury under proper instructions can so find. And the Verdict Form for the other Counts has the same defect, no differentiation as to who was the principle and who was the aider and abetter.

Anyway, it was ineffective assistance of counsel to say the least to allow the use of a Verdict Form as was used without objection and a demand to specify on the Verdict Form what exactly one was guilty of, instead of lumping it all together and caused harm and prejudice to this accused and demands reversal with prejudice.

The harm and prejudice suffered by this accused in addition to the denial of effective assistance of counsel guaranteed by the Article of Amendment Number Six of the Constitution for the United States of America was the denial of due process guaranteed him by the Article of Amendment Number Five of the Constitution for the United States of America because this accused was adjudged guilty of an offense that is an impossibility, and had the jury been properly instructed the out come would have been different.

Ground 43 THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE HE DID NOT MAKE SURE THE JURY WAS INSTRUCTED AS TO BILLY MACK O'NEILL'S REMOVAL/DISMISSAL FROM COUNT ONE AS AN ACCUSED AND YET STILL LEFT IN THE MANNER AND MEANS OF THE CONSPIRACY AS THE CENTRAL FIGURE, PARAGRAPH NO. 8., AND THE OVERT ACTS, WHERE HE AND/OR HIS ALTER EGO IS MENTIONED IN EVERY GROUP OF OVERT ACTS THAT MAKE UP EACH OF COUNTS 2 - 15.

The Indictment specifically states that Billy Mack O'Neill was

the central figure in the alleged conspiracy in paragraph no. 8 of the manner and means and then Billy Mack O'Neill and/or his alter ego is in every group of overt acts that make up each of Counts 2 - 15.

It is inconceivable to think that any rational jury member would look at this Indictment and wonder; "How come Billy Mack O'Neill is not one of the accused in Count One, are we being told the whole story or what?"

Because the jury was not informed as to the reasons for Billy Mack O'Neill's withdrawal/dismissal from Count One as an accused but yet left in the heart of Count One as the central figure, pursuant to paragraph no. 8 of the manner and means and in every group of overt acts that make up each of Counts 2 - 15, they would naturally think he plead guilty. Because, if he had not plead guilty but had been withdrawn/dismissed from Count One of the Indictment any rational jury member would know Billy Mack O'Neill would be taken out of the whole Count, not just from the list of the accused.

The harm and prejudice to this accused from this way of deduction by the jury was the jury would think, "If Billy Mack O'Neill plead guilty, and he must have because he is still in Count One, just not in the list of accused, then he must be guilty and so must all the rest of that bunch."

It was ineffective assistance of counsel on the part of the assistance of counsel for this accused not to make sure that type of harm and prejudice did not spill over to this accused. The proper way to clarify the situation would have been with a jury instruction to this specific matter. It was ineffectiveness when he didn't propose a specific jury instruction and object if the judge would not allow it.

The harm and prejudice suffered by this accused in addition to the denial of effective assistance of counsel guaranteed him by the Article of Amendment Number Six of the Constitution for the United States of America is the denial of due process guaranteed this accused by the Article of Amendment Number Five of the Constitution for the United States of America in that the jury could and did still assign a role in the conspiracy to Billy Mack O'Neill, when none could be assigned to him because he was left in the text of the Indictment as the central figure especially with this accused and his alleged role in the conspiracy.

With a proper Indictment and jury instructions regarding the role of Billy Mack O'Neill and this accused, the out come of the trial would have been different in that the jury would not have been able to put Billy Mack O'Neill and this accused in any conspiracy and would have had to vote not guilty.

Ground 44 THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE ALLOWED WITHOUT OBJECTION, AN INDICTMENT THAT CREATED TWO INTERPRETATIONS, ONE WHICH STATED AN OFFENSE AND ONE WHICH DID NOT STATE AN OFFENSE.

In Counts 3 and 7 this accused was the lone individual named as an accused therein. In the overt acts supporting these two Counts Billy Mack 0'Neill's alter ego O.M.B., W.D. McCall [and Associates] is listed.

This accused was charged with aiding and abetting, but it was never established whom or what principle this accused aided and abetted.

In Standard Oil v. U.S., 307 F.2d 120, the court mandated that an indictment is insufficient if it proposes two interpretations.

When Billy Mack O'Neill and necessarily his alter ego were withdrawn/dismissed from Count One, including the manner and means and the overt acts, that left this accused absolutely by himself in the two counts yet charged with aiding and abetting.

As already seen in U.S. v. Teffera, 985 F.2d 1082, which sets out the technical elements of aiding and abetting, the commission of the substantive offense by someone else has to occur; and U.S. v. Ledezma, 26 F.3d 636, shows that the essence of crime of aiding and abetting is defendant's offering assistance or encouragement to principle in commission of substantive offense. Thus, it is impossible to be charged and convicted of aiding and abetting oneself. This problem was never corrected.

For Count One, listing a single conspiracy, the same set of circumstances apply. The central figure, pursuant to paragraph no. 8 of the manner and means, is Billy Mack O'Neill and under the doctrine of alter ego, Billy Mack O'Neill even when O.M.B., W.D. McCall and Associates is mentioned, yet, Billy Mack O'Neill is withdrawn/dismissed from Count one, and thereby his name and that of his alter ego removed therefrom.

The above paragraph begs the question; If I was in A single conspiracy with Billy Mack O'Neill and he is withdrawn/dismissed from the conspiracy, then whom am I charged as having conspired with? Obviously, I cannot conspire with myself.

For an indictment that could be construed two different ways or have two different interpretations was ineffective on the part of the assistance of counsel and requires reversal with prejudice.

The harm and prejudice suffered by this accused in addition to the denial of effective meaningful assistance of counsel guaranteed him by the Article of Amendment Number Six of the Constitution for the United States of America is the denial of due process guaranteed him by the Article of Amendment to the Constitution for the Untied States of America because the jury would not know what was considered an offense and what was not considered an offense and would mistakenly convict this accused of conduct that was not an offense. Had the Indictment and the instructions been proper the out come of the trial would have been different in that the jury would not have voted for conviction of conduct that was not considered an offense.

Ground 45 THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE FAILED TO HAVE THE COURT INSTRUCT THE JURY ON THE REQUIREMENT OF FINDING UNIFORM UNANIMOUS VERDICTS OF GUILT FROM THE MULTIPLE SELECTION OF CHOICES AVAILABLE TO THEM BY THE STRUCTURING OF THE INDICTMENT AND THE REMOVAL OF BILLY MACK O'NEILL AND O.M.B., W.D. MCCALL AND ASSOCIATES FROM THE CONSPIRACY COUNT.

Because of the hodgepodge structure of the Indictment, the withdrawal/dismissal of Billy Mack O'Neill from the list of defendants in the Conspiracy Count, which exacerbated the problem, and to top it all off there was no instruction from the Court to clarify the situation on the requirement of a uniform unanimous verdict.

What is meant by a uniform unanimous verdict is a verdict wherein all people from the jury agree the same way about a count in a unanimous vote. For example, if you are charged with both the principle and as an aider and abetter of the principle. Each juror must state that they find you guilty as the principle or as an aider and abetter. If 6 jurors find you guilty as an aider and abetter and the other 6 jurors find you guilty as the principle - then they all found guilt in a unanimous vote. But it was not a uniform unanimous vote, as it was a split vote, and as such a pseudo-unanimous verdict.

In order for anyone to understand the Indictment it was necessary to have the Indictment redone to a bill of particulars format as setforth in Exhibit "A" of Ground . Each Count had to be specifically cross referenced to the overt acts and even then an additional listing was required to show which Counts were referenced to the overt acts of Billy Mack O'Neill - O.M.B., W.D. McCall and Associates which were dismissed from the Conspiracy Count of the Indictment along with Billy Mack O'Neill - O.M.B., W.D. McCall and

Associates - as you cannot dismiss a co-conspirator and still use his co-conspirator agreements against another co-conspirator.

Now, pursuant to the styling of this issue we are claiming that the Court's instruction failed to instruct and caution the jury that they had to reach uniform-unanimous verdicts of guilt - not a multiple choice independent selection which could be unanimously voted upon without a uniform specificity as to the exact nature of guilt from the multiple choice selection available to them.

What then was the multiple choice array from which the jury could randomly choose from? The choice is as follows:

1. The conspiracy to defraud the U.S. by the use of the mail.

2. Aiding and Abetting a conspiracy to defraud the U.S. by use of the mail.

3. Conspiracy to aid and abet the defrauding of the U.S. the mail.

4. As a principal in any of the substantive counts from 2 to 15.

5. As an aider and abetter of various substantive counts.

6. As a conspirator and aider and abetter of any of the various substantive

7. As a removed conspirator from Count 1 but culpable of all of the above exempting the actual conspiracy.

Each juror had the opportunity to use one of the 7 different interpretations within the conspiracy to defraud the United States in Count 1, in paragraphs 4, 5, 6, 7 and 9. The Conspiracy count uses the words, "the defendants aided and abetted by each other." This is a conspiracy count. Yet the language within the foregoing paragraphs invokes the elements of aiding and abetting.

However - How is one to interpret these elements in conjunction with the Conspiracy Count? 1. As aiding and abetting a Conspiracy? 2. As aiding and abetting by itself? 3. Conspiracy to aid and abet? 4. As a conspiracy by itself? 5. Or as both a conspiracy and the aiding and abetting thereof?

With 12 jurors having 5 paragraphs to consider with 5 different interpretations of possible verdicts, you have a mathematical probability ratio of non-uniformity of a unanimous verdict - beyond any acceptable ratio of fairness. If each of the 12 jurors had a possible selection of 25 instances, the probability of all 12 jurors having the exact same uniform selections is over a 10,000 to one chance. Unless they were instructed that a unanimous vote had to be uniform from the multiple choice selection at their bidding.

Such an instruction would have to be construed as such:

"There are some 25 selections of differing elements in Count 1 that you can choose from to find guilt. Before you can arrive at a unanimous verdict of guilt each of you must find the exact same set of elements that you find to show culpability to each of all of the defendants."

Let's look at these elements as the jury would have to correlate them into the multiple choice array?

Elements for Conspiracy

to Defraud the United States

Pursuant to U.S. v. Caldwell, 989 F.2d 1056 the elements are:

1. Entering into an agreement;

2. to obstruct a lawful function of the government;

3. by deceitful or dishonest means, and;

4. at least one overt act in furtherance of the conspiracy.

Elements for Aiding and Abetting a Conspiracy

Pursuant to U.S. v. Miller, 552 F.Supp 827, the elements are:

1. Knowledge of the conspiracy and its essential plan;

2. Actin with intent to further the conspiracy.

Elements of Aiding and Abetting

Pursuant to U.S. v. Teffera, 985 F.2d 1082 the elements are:

1. Specific Intent to facilitate commission of crime by another;

2. "Guilty Knowledge" by alleged abetter;

3. Commission of substantive offense by someone else;

4. Assistance or participation in commission of the offense.

Elements for a Conspiracy to aid and abet the Commission of a substantive crime

This is a difficult precept of law as an aider and abetter is punished as a principal for assisting in the commission of a crime; whereas, a conspirator is punished for joining with one or more other people in a plan to commit a crime. U.S. v. Miller, 552 F.Supp 827. Whereas pursuant to U.S. v. Simpson, 979 F.2d 1282; the federal aider and abetter statute does not create a separate crime. But the federal aider and abetter statute does create an alternative method of finding guilt for someone involved in the offense while not the principal. Thus the substantive crime would be - defrauding the United States. Then would come the aiding and abetting the defrauding of the United States

- then would come the conspiracy to aid and abet the defrauding the United States. Thus, first the elements of defrauding the United States must be given in conjunction with the elements of aiding and abetting to defraud the United States in conjunction with the elements of the conspiracy to aid and abet the defrauding of the United States. The jury could have found that there was insufficient evidence to support either conspiracy or aiding and abetting but in the aggragate the jury could accumulate the inculpatory evidence to find guilt.

Elements of conjunctive Aiding and Abetting a Conspiracy to commit fraud against the United States

In the instant case, the indictment charges conspiracy. Within the

language of the charge was the interjection of "aided and abetted by each other" in the furtherance thereof, supra.

It is therefore presumed a juror could find that in the aggregation of acts of probable conspiracy and probable aiding and abetting could accumulatively constitute enough culpability to assume guilt - in the conjunctive. Whereas, in the disjunctive, the jury would not.

The case of Mankani v. U.S., 738 F.2d 538 at 540 explains at 19.

Conspiracy:

Requisite mental state for conspiracy is intent, not mere knowledge, thus, the "conscious avoidance" theory is not appropriate to a charge of conspiracy.

In Mankani it was also established that because the defendant was not a co-conspirator the evidence was insufficient to find defendant guilty of aiding and abetting.

Thus the conjunctive of a requirement of finding essentially both aiding and abetting and conspiracy requires explicit instruction on the elements to the jury.

Instructions on Elements

Failure to instruct jurors about essential elements of a crime is a constitutional error that lets jury convict without finding defendant guilty of that element. See, U.S. v. Caldwell, 989 F.2d 1056 and

Franklin v. Francis, 723 F.2d 770.

The Supreme Court in Kotteakos v. U.S., 1946, 328 U.S. 750; provides the benchmark for determining whether an error or defect affects substantial rights and thus may be disregarded:

"The question is, not were they [the jury] right in their judgment, regardless of the error or its effect upon the verdict. It is rather what effect the error had or reasonable may be taken to have had upon the jury's decision. The crucial thing is the impact of the thing done wrong on the minds of other men, not on one's own, in the total setting. [citations omitted]

Kotteakos was quoted in U.S. v. McCracken, 488 F.2d 406, 426 (5th.Cir.1974).

Further, where jury instructions conflict, reviewing court cannot presume that jury followed the correct one, U.S. v. Stein, 37 F.3d 1407.

Further, each count in furtherance of scheme to defraud constitutes a separate crime. It is not the scheme to defraud but the use of the mails or wires that constitute mail or wire fraud. Thus, the elements of fraud, per se must also be setforth in order to find guilt of individual counts - if the conspiracy count fails. The elements of mail fraud pursuant to U.S. v. Smith, 39 F.3d 119 are:

1. Willful participation in a scheme to defraud

2. use of mails in furtherance of scheme, and

3. specific intent to deceive or defraud.

In all, some 15 elements would have to be found to find guilt of aiding and abetting a conspiracy to defraud the United States by use of the mail. Furthermore, these elements would have to be stepped both upwards and downwards and also contain language which would provide for points of disjunction.

Finally, let's look at the problem with the removal of Billy Mack O'Neill - O.M.B., W.D. McCall and Associates from the conspiracy, while leaving him in the overt acts.

As you can readily see from Ground in the listing of the Counts showing that Billy Mack O'Neill - O.M.B., W.D. McCall and Associates was utilized 39 times. On page 2 of the indictment it states: "The manner and means by which the conspiracy was sought to be accomplished included the following;

2. As a part of this scheme, defendant Billy Mack O'Neill did business in Waxahachie, Texas, and Victoria, Texas, as "O.M.B., W.D. McCall", "O.M.B., W.D. McCall and Associates", "W.D. McCall and Associates", and/or "U.S.A. First".

and on page 3 paragraph no. 8 states:

8. It was further part of the scheme and artifice to defraud that the defendant Billy Mack O'Neill upon receipt from the seller or lender of a "Certified Money Order" would send the seller or lender a Fraudulent "Certified Bankers Cheque" which he knew could not or would not be negotiated or redeemed for money, payment or funds.

This made Billy Mack O'Neill - O.M.B., W.D. McCall and Associates the central figure of any conspiracy. Every overt act which correlated to the substantive counts required Billy Mack O'Neill - O.M.B., W.D. McCall and Associates in order for it to have any agreement pursuant to the government's theory of the case.

Now the jury had to make up another list to determine if Billy Mack O'Neill - O.M.B., W.D. McCall and Associates was a prerequisite for the other defendants to have either;

1. as aiding and abetting a conspiracy

2. aiding and abetting by itself

3. conspiring by themselves without Billy Mack O'Neill - O.M.B., W.D. McCall and Associates

4. conspiring to aid and abet

5. or both conspiracy and aiding and abetting among themselves minus Billy Mack O'Neill - O.M.B., W.D. McCall and Associates.

Then add to this whether they could find guilt to each of the principal counts and if Billy Mack O'Neill - O.M.B., W.D. McCall and Associates could be found guilty of the substantive counts as an aider and abetter. To top this off could Billy Mack O'Neill be found guilty of aiding and abetting the conspiracy - instead of being a conspirator as paragraphs 4, 5, 6, 7 and 9 set forth aiding and abetting within the conspiracy count. True - he was struck as a conspirator but was he struck as an aider and abetter of a conspiracy - which the jury could assume as he was left in the overt acts and only struck from the list of conspirators!

All of the above creates a multiple array of selections from which the jury could have found independent guilt but not in a uniform unanimous vote. Compounded to this multiple selection array you have the hodgepodge of overt acts which are blindly referenced to the substantive counts of mail fraud.

Pure common sense tells us that because the jury was not instructed to vote uniformly on each count in a unanimous manner they independently voted unanimously from the multiple choice array available to them.

As the Court said in U.S. v. Stein, 37 F.3d 1407 (9th.Cir.1994);

7. Where two jury instructions conflict, reviewing court cannot presume that jury followed correct one.

pointing out the need for jury instructions that have to be answered, yes or no, with no ambiguities left in the mind of the jury.

This constitutes plain error. It is an error which everyone involved in the case is responsible for, the prosecutor, in the construction of the indictment without a bill of particulars, the court, for failing to visualize the ramification of removing Billy Mack O'Neill - O.M.B., W.D. McCall and Associates from the conspiracy count of the indictment as a conspirator but leaving him therein as an aider and abetter to the conspiracy, while he was in fact the central figure in the case, and the defense attorneys for failing to timely object to the hodgepodge indictment without a bill of particulars, the removal of Billy Mack O'Neill from the conspiracy count without demanding the indictment be resubmitted to the grand jury, and the multiple choice array selection to go to the jury.

Paragraphs 4, 5, 6, 7, and 9 contained the aiding and abetting of the conspiracy language. There were 5 different ways the jury could find guilt within each of the 5 paragraphs with considering Billy Mack O'Neill - O.M.B., W.D. McCall and Associates as an aider and abetter of the conspiracy while being struck as a conspirator. Take these 25 potential interpretations with 12 independent not voting uniformly and you have a probability of over 10 million to 1 that each of the 12 jurors would pick the same exact possible element within the same paragraph.

The jury instructions failed to set forth the elements for the 25 different combinations of elements and failed to instruct the jury on the requirement for uniform unanimity on each element, pursuant to In Re Winship, 397 U.S. 358 (1970).

It is axiomatic that a miscarriage of justice has prevailed pursuant to the argument and authorities within this issue.

WHEREUPON, this issue has jurisdiction on collateral challenge pursuant to your own rule in Title 18 U.S.C. Rule 52(b) and to the principles set forth in U.S. v. Yamin, 868 F.2d 130 (5th.Cir.1989) where the court stated:

2. To constitute plain error, error must have been so fundamental as to have resulted in a miscarriage of justice.

and also U.S. v. Davis, 974 F.2d 182 and requires reversal with prejudice because of the ineffectiveness of the assistance of consul under Stricklin.

It is quite obvious as to what the harm and prejudice is this accused, he could and probably was found guilty without the required uniform unanimous verdict as required by the Constitution for the United States of America.

And further, the additional harm and prejudice to this accused was the ineffective assistance of counsel in that he failed to understand the Indictment and the law to the extent he did not recognize that a multiple choice of the offenses and their elements to the jury was possible and he failed/or would not bring the multiple choice of the offenses and their elements to the attention of the court, and then failed to or would not demand either a dismissal of the Indictment and re-indictment or an extensive curative instruction to the jury, if this matter could even be cured by a jury instruction. All this was contrary to the guarantees afforded this accused by the Constitution for the United States of America and the United States Supreme Court in Stricklin v. Washington and requires reversal with prejudice.

The out come of the trial would have been different except for the denial of the assistance of counsel and the multiple choice of possibilities presented to the jury without objection and/or instruction.

GROUND 46 THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE BECAUSE, HE FAILED TO OBJECT TO THE USE OF THE INDICTMENT AS EVIDENCE AGAINST THIS ACCUSED.

Your petitioner and the other accused were all charged in Count One of the indictment in ONE conspiracy with Billy Mack O'Neill as the central figure, pursuant to paragraphs no. 22 and 8 of the manner and means, sine qua non.

The substantive crime is the object of the agreement to conspire to commit a crime. In the instant case the grand jury was lead to believe that the object per se, was defrauding the United States by deceptive use of the mails.

BY reference the overt acts of the conspiracy were the basis for the culpability of the object of mail fraud. As heretofore established, Billy Mack O'Neill aka O.M.B., W.D. McCall and Associates was the central figure of the conspiracy sine qua non.

The instructions in this case invoked the Pinkerton theory of guilt of other co-conspirators.

Also, the instructions set forth an element of the conspiracy as such:

"That one of the conspirators during the existence of the conspiracy knowingly committed at least one of the overt acts described in the indictment in order to accomplish some object or purpose of the conspiracy."

The removal of Billy Mack O'Neill - O.M.B., W.D. McCall and Associates from the conspiracy as a culpable party with whom other co-conspirators made their agreement to commit one overt act voided the mutual mens rea - as one party was being charged with the conspiracy. This effectively is the same as conspiring with a government agent or an informant agent. They cannot be a party to a conspiracy - thus one person cannot conspire with them as they are removed from consideration as culpable parties.

In order to show the prejudice and plain error we must redundantly show the enumerated overt acts independently. As heretofore established, Billy Mack O'Neill and O.M.B., W.D. McCall and Associates are legally one in the same, supra; (also page one of the indictment).

Billy Mack O'Neill was the central figure using his alter ego, O.M.B., W.D. McCall and Associates, as the epicenter of the alleged scheme. He manufactured documents which he called "Certified Money Orders" and "Certified Bankers Cheques". Purportedly that would discharge the debts of properties and goods of individuals who utilized his documents. The indictment states that everyone who used these documents knew that they were fraudulent and that they were not redeemable for payment to satisfy debts. The indictment further states that each of the co-defendants knowingly conspired with Billy Mack O'Neill - O.M.B., W.D. McCall and Associates in his scheme within the

overt acts. Since Billy Mack O'Neill - O.M.B., W. D. McCall and Associates could not be convicted of conspiracy because he was removed therefrom, no one could conspire with him. U.S. v. Werme, 939 F.2d 108. Thus it was not Billy Mack O'Neill - O.M.B., W.D. McCall and Associates culpability that was used - but instead it was the indictment itself that was used as evidence against the other co-defendants.

In U.S. v. Crowell, 997 F.2d 146, the court has mandated that an indictment cannot be used as evidence against a person. If Billy Mack O'Neill - O.M.B., W.D. McCall and Associates was not to be found guilty of the overt acts then the overt acts became mere allegations of guilty by reference and as such evidence on their own volition, independent of the actor of the evidence.

In U.S. v. Dischner, 960 F.2d 870, the court stated, "That an indictment must be read as a whole and construed with common sense." It is pure common sense that the removal of Billy Mack O'Neill - O.M.B., W.D. McCall and Associates from culpability of the necessary mens rea of agreement without any form of clarifying instruction to the jury from the court, utterly destroyed the basis for a true bill and utterly removed fairness from the trial process. The assistance of counsel appointed by the court should have recognized what was happening to the indictment and the evidence the minute Billy Mack O'Neill was withdrawn/dismissed therefrom, and objected timely and demanded the court dismiss the said Indictment for the reasons aforesaid and it was ineffective for him not to recognize what happened and to take appropriate action.

The harm and prejudice suffered by this accused in addition to the denial of effective meaningful assistance of counsel guaranteed by the Article of Amendment Number Six of the Constitution for the United States of America and the denial of due process guaranteed him by the Article of Amendment Number Five of the Constitution for the United States of America by having the jury consider improper evidence in the matter and then entering a verdict of guilt on such evidence.

The out come of the trial would have been different except for the ineffectiveness of the assistance of counsel.

Ground 47 THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE FAILED TO MAKE SURE THE JURY UNDERSTOOD BILLY MACK O'NEILL COULD NOT BE USED AS AN AIDER AND ABETTER OF THE CONSPIRACY.

If Billy Mack O'Neill in Ground could not be used as the ONE person to be elected to have committed the requisite overt act as set forth as the Third element - then he could not be used as the aider and abetter to the conspiracy to defraud the United States by the use of the U.S. Postal Service.

In paragraphs 4, 5, 6, 7 and 9, of the manner and means of the Indictment, states that he was an aider and abetter in the conspiracy. Yet he was removed as a conspirator. The Court failed to explain to the jury that he could not be used as an aider and abetter of the conspiracy as he had been exculpated from the requisite scienter and mens rea of the conspiracy and therefore was exempt from that element as an aider and abetter.

The harm and prejudice to this accused was that the jury could still perceive him as an aider and abetter of the conspiracy as aiding and abetting was also involved as the last charge in the Indictment, along with being invoked within the conspiracy itself. If Billy Mack O'Neill could be found guilty of the aiding and abetting the conspiracy then the jury could conclude that it was why he was left in the manner and means and the overt acts while being removed from the list of conspirators. Under this postulation he could have joined into the conspiracy as an aider and abetter and could be the ONE guilty within the overt acts as the requisite entity to fulfill the obligation of the element as setforth to the jury.

For Billy Mack O'Neill to be considered in any manner whatsoever in the mind of the jury concerning Count One is ineffectiveness on the part of the assistance of counsel because it allows the jury to assign any small measure of culpability, when the Court has said he can have none, to aid in the finding of guilt on this accused for Billy Mack O'Neill' s role as the central figure. This error is so egregious it requires reversal.

The additional harm and prejudice suffered by the accused in addition to the denial of effective meaningful assistance of counsel guaranteed him by the Article of Amendment Number Six of the Constitution for the United States of America and the Supreme Court of the United States dictum in Stricklin v. Washington along with the denial of due process guaranteed him by the Article of Amendment Number Five of the Constitution for the United States of America because the jury could consider an individual dismissed from the Conspiracy Count as an aider and abetter just because he was left in the text of the Manner and Means and the Overt Acts. Had the assistance of counsel acted in an effective and meaningful manner, the out come of the trial would

have been different.

Ground 48 THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE FAILED TO OBJECT TO THE COURT'S FAILURE TO INSTRUCT THE JURY THAT THE LONE INDIVIDUAL NAMED IN COUNTS 3 AND 7, THIS ACCUSED, COULD NOT BE CHARGED WITH AND CONVICTED OF A CHARGE, AIDING AND ABETTING, WHICH REQUIRES A PRINCIPAL.

In Counts 3 and 7, Michael Joseph Kearns was charged singularly with mail fraud and aiding and abetting. In U.S. v. Teffera, 985 F.2d 1082, the Court laid out the technical elements of aiding and abetting as:

5. Technical elements of aiding and abetting are: specific intent to facilitate commission of crime by another; "guilty knowledge" by alleged abetter; commission of substantive offense by someone else; and assistance or participated in commission of the offense. (emphasis added)

Also in U.S. v. Ledezma, 26 F.3d 636, the Court stated:

10. Essence of crime of aiding and abetting is defendant's offering assistance or encouragement to PRINCIPAL in commission of substantive offense. (emphasis added)

The jury instructions on Counts 3 and 7 failed to advise the jury that in order to be an aider and abetter, the aider and abetter had to "facilitate commission of crime by another[person]" or "offer assistance or encouragement to PRINCIPAL ..." clearly indicating one cannot aid and abet oneself and on this point the jury was not instructed.

Also, had the jury instructions properly instructed the jury on Counts 3 and 7 as to aiding and abetting, the verdict form would have had to reflect those instructions and asked the jury to name the PRINCIPAL whom I was alleged to have aided and abetted. The verdict form did not reflect such instructions and therefore was a re-enforcement to the jury they could find a defendant guilty of aiding and abetting oneself, howbeit, contrary to common sense, reason and the case law.

For the assistance of counsel not to object and also to demand what the case law postulates, is ineffectiveness on the part of the assistance of counsel and requires reversal with prejudice.

The harm and prejudice suffered by this accused in addition to the denial of effective meaningful assistance of counsel guaranteed him by the Article of Amendment Number Six of the Constitution for the United States of America is the denial of due process guaranteed him by the Article of Amendment Number Five of the Constitution for the United States of America when he was charged with and convicted of an offense where clearly the elements of the offense were not all met by the prosecution.

Ground 49 THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE HE FAILED TO HAVE THE JURY MAKE A DETERMINATION WHETHER THIS ACCUSED CONSPIRED TO AID AND ABET THE CONSPIRACY HE HAD WITH HIMSELF OR THIS ACCUSED AIDED AND ABETTED THE CONSPIRACY TO AID AND ABET HIMSELF IN THE COMMISSION OF A SUBSTANTIVE CRIME.

Because of the interjection of the exact same words in Count 1 as used in Count 2 -15 to charge aid and abet, the jury was, to say the least, confused as to the actual charges each accused was in fact charged with.

This confusion could only be cured with a jury instruction that would show the jury the elements of aiding and abetting a conspiracy for the express purpose of making sure the jury voted in a uniform unanimous manner on what the grand jury really charged.

The elements of aiding and abetting a conspiracy are listed in U.S. v. Miller, 552 F.Supp 827, as;

1. the accused knew conspiracy existed

2. understood essential nature of the plan, and,

3. sought to make the plan succeed.

Pursuant to U.S. v. Perry, 643 F.2d 38, 46, 47, the Court describes the difference between a "conspiracy to aid and abet" and an "aiding and abetting a conspiracy

The Court failed to instruct the jury on the elements of aiding and abetting a conspiracy and the Court also failed to instruct the jury on conspiring to aid and abet.

It has been alleged by rumor that in reality your movant actually was most culpable of aiding and abetting the conspirators who were conspiring to aid and abet the substantive counts of mail fraud - except for Counts 3 and 7, wherein it is rumored that your movant actually aided and abetted himself in the conspiracy to aid and abet himself to commit the substantive offense listed in Counts 3 and 7 because he was acting alone within the Counts with himself. Or in the alternative, it is quite possible the jury would have found that your movant conspired to aid and abet the conspiracy he had with himself.

Naturally, however, your movant could not conspire directly with Billy Mack O'Neill as he was struck from the list of conspirators and only left in personification in the Manner and Means and the Overt Acts of the Indictment.

The harm and prejudice to this accused is he really didn't know if he was conspiring to aid and abet the conspiracy he had with himself or aiding and abetting himself to commit the substantive offense listed in Counts 3 and 7 and your movant wanted somebody to tell him what he was really doing so he could get a good nights sleep.

Under the Stricklin doctrine, it is ineffectiveness of assistance of counsel for your movant to be deprived of so much sleep because the counsel provided by the Court was unable to properly instruct the jury so they would make the determination as to what your movant really was doing. Therefore, this case should be reversed with prejudice.

Ground 50 THE ASSISTANCE OF COUNSEL PROVIDED BY THE COURT WAS INEFFECTIVE, BECAUSE, BY FAILING TO MAKE TIMELY OBJECTIONS AND DEMANDS ON THE COURT, HE ALLOWED THE STANDARD OF REVIEW TO SHIFT FROM HARMLESS ERROR TO THE STANDARD OF PLAIN ERROR.

The Assistance of Counsel appointed by the Court, Joe Mike Egan, was ineffective because he failed to preserve the lower standard of review of the Court's decisions by timely objecting thereto. The errors and omissions of the Assistance of Counsel is well documented in the previous Grounds of this Petition.

By failing to timely object to such things as the Indictment and the Jury Instructions the Assistance of Counsel caused the review to be conducted under the Plain Error standard instead of Harmless Error standard. See U.S. v. Hernandez-Palacios, 838 F.2d 1346, 1350 (CA5.1988).

This failure to timely object and the shifting of the standard of review is contrary to the professionalism required by the Constitution of the United States of America and the dictum as declared by the Supreme Court of the United States in Stricklin v. Washington for effective meaningful assistance of counsel. This plain error requires reversal with prejudice.

The harm and prejudice suffered by this accused in addition to the denial of effective meaningful assistance of counsel guaranteed to this accused by the Article of Amendment Number Six of the Constitution for the United States of America is the denial of his due process rights under Article of Amendment Number Five of the same Constitution.

Had the Assistance of Counsel made the timely objections and demand on the Court, the outcome of the proceeding would have been different.

Ground 51 THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE HE DID NOT OBJECT TO THE USE OF INSTRUMENTS NOT PART OF THE ALLEGED CONSPIRACY, FOR WHICH NO PROPERTY, MONEY OR FUNDS WAS SOUGHT, TO BE ADDED TO THE AMOUNT OF "LOSS" FOR THE CALCULATION OF SENTENCE.

The two negotiable instruments had LeRoy Schweitzer as the maker and in one instance this accused as the payee (Instru. 1) and in the second instance this accused and the Treasury of the United States of America as co-payees (Instru. 2). Both negotiable instruments were denominated in the amount of one million dollars.

Instru. 1 was given to the Clerk of the District Court in San Antonio, Bexar County, Texas, as a deposit in a civil matter, so the Clerk's office could validate the authenticity and availability of funds supporting the said instrument. Instru. 2 was taken to a bank for transmittal to the Comptroller of the Currency for verification of funds and was not deposited in an account for credit, funds, money or anything of value. The bank only gave me a receipt for the instrument and nothing else.

Verification of funds is a commercially acceptable means of ascertaining the availability of funds and the authenticity of the instruments.

These two negotiable instruments had nothing whatsoever to do with any of the accused's in the complained of cause and nothing to do with O.M.B., W.D. McCall and Associates. These two negotiable instruments had no testimony nor evidence presented in the current complained of cause.

The assistance of counsel had a duty to provide such skill and knowledge as will render the trial a reliable adversarial testing process, Stricklin v. Washington, 466 US 668, which includes the sentencing and appeal phase of the "trial."

It is unprofessional and ineffective assistance of counsel to allow two negotiable instruments to be included in the total dollar amount of the "loss" specifically when the total amount of the "loss" determines the length of sentence to be served. Furthermore, "[j]udges have duty to protect the public from lawyers who are unable or unwilling to defend them in litigation."

In Matter of Maurice, 69 F.3d 830 (CA7.1995).

This lack of effective assistance of counsel in the sentencing phase is just one more instance of ineffective assistance of counsel in this case and begs for the whole case to be reversed or at the very minimum in this Ground, the correct total dollar figure be assigned to the "loss."

However, if this is a higher form of administrative action where the Constitution does not apply and the administrative agency assumes I am under it's jurisdiction knowingly, intentionally, and voluntarily in some form of contract/agreement, then I can see where anything can happen.