UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
———————————————————X APRIL 17, 2017
UNITED STATES OF AMERICA -against- OSWALD A. LEWIS———–X
14 Cr. 523—(ILG)
OSWALD A. LEWIS herby affirms the following supplemental affidavit under the penalties of perjury.
• I submit this additional affidavit supported by the record, in support of my motion pursuant to 28 U.S.C. 2255 to vacate my conviction and for an order of the court ordering a new trial.
• I base this motion on the following:
• I was not afforded a fundamentally fair trial. (a) I was not able to testify on my own behalf, cross-examine all the witnesses on the government’s witness list. (b) My appointed attorney, admitted into evidence unsigned stipulations, over my many objections that cause two guilty counts without the government ever having to prove its case. See Tr. 566-619 (c) I was immediately rushed, into a trial process, unprepared, unable to put on a defense. Tr. 12 LN-7, and my choice of counsel were wrongfully denied. See Tr. 8-9-10. (d) I was declined by the court to clarify any issues. See Tr. 8 LN.18. I had limited cross-examination of officers on the AUSA’s witness list. Tr.562-563; I had to use unprepared questions, and limited portions of 3500 material, I still, cannot access, due to pass code locks on the disks. (e) I even had difficulty getting a pen to write my opening statement, which the court said I had to do, within a few hours, so it was done on the fly. See Tr.135-136.
• The judge ignored nearly every attempt I made to the District Court, to intercede on my behalf, concerning the Virginia warrant and the instant case of my arrest. See 4/15/2015, DKt NO.24 again on 5/11/2015 DKt NO.30. A letter was sent to the court reflecting the conduct of officers, during the investigation and the egregious, constitutional violations. (f) Another letter was received, in the judges chambers by me on August 17, 2015, Dkt No.50 filed on the day of a status conference and the court never acknowledge the complaint in court. The complaints did not stop there. Again on 3/4/2016, see DKt NO.97. I sent a letter to the judge’s chambers, about David Stern before trial. Again DKt NO 104. (g) even after trial, I respectfully requested a fatico hearing, to address the unfairness, of the evidence at trial concerning, the shooting incident, that was not fairly challenge. This was also denied. See DKt NO. 149, 151. (h) In the prosecutor’s motion, opposing the hearing, the last paragraph the AUSA argued, I would have an opportunity at sentencing to argue the issue. At sentencing the Court and the AUSA ignored all my arguments, AUSA stated, I was attempting to relitigate my case, when in fact I was arguing the enhancements that were base on clearly erroneous facts. (i) I was told by the court, I should argue this on appeal. See Tr. PG. 5, 27. (j). I was sentenced on erroneous facts, and most of my complaints, were ignored by the court through out the entire court proceedings. The Court’s inattention to my case created a miscarriage of justice. Nor did I raise an issue of ineffective assistance, during my sentencing phase as the Court has stated, in the letter to David Stern. See DKt NO 183. The Court, promptly relieved Mr. Stern, after my conviction, but wrongfully denied me the choice to substitute Stern as my attorney and standby. Stern was not involved in my sentencing phase and this should have been obvious to the District Court, as reflected in my sentencing minutes.
5. The record is clear my vacillation, with attorneys, was only an attempt to have a fair trial a
be able to testify and introduce relevant evidence for my defense. DKt NO.97. The District Court, was well aware of all the prevailing issues, of this complex case, from the very beginning of the proceedings, from numerous letters and complaints and failed to inquire. The judge did not address, the issues of the 3500 material, he said he would. Tr.11-Tr. 12 LN.2-5. Nor did the Court address the issue for me to testify.Tr.9, or my request, to cross -examine more witnesses. Tr.562-563. My trial was not fair, because the court ignored all the above issues or failed to realize their constitutional significance. The jury had not been selected as yet or brought into the court room, all of which proved a sufficient showing, to warrant a fuller exploration by the District Court, or order a short delay to insure I would received a fair trial process.
Had I testified, I could have explain my conduct, and prove the medical evidence, of my injuries, was consistent with my hands, being empty and
extended n a defensive position, when I was shot, by the intruder, who turns out to be law-enforcement. Had I testified, I could have introduce into evidence, the officers own statements, that revealed, once I was arrested outside, I told the officers, I did not know, that they were law enforcement. See 3500 materials (3500-JG-1 and 3500-AD-1). I could have introduce, the NYPD testimonial statements, to confirm, I was screaming, call for help, somebody is trying to kill me!. See 3500 material (3500-JV-2). I could have introduce relevant evidence, of NYPD NET dispatcher radio, evidence that the U.S. Marshal were in plain clothes on the scene at 11:15pm; heard on the AV1 audio disk. DKt NO. 136. See also dispatcher print out report sheets.
7. I did not want the court’s appointed attorney David Stern to be my choice of counsel. On September 11, 2015, I requested 45 days to find an attorney to represent me. The Court granted me only 15 business days. See DKt NO.58; see also status conference September 11, 2015-pg 4-5. The records shows I tried to explain, the hardship of finding an attorney from the detention center in this allotted time, because many things were outside of my control. During the time, the court granted me, I interview only one attorney, because there was a 500.00 to 1500.00 fee, just to come see me for an interview at the jail, regardless if they would be retained or not. Because of this, I had two of my sisters to help me with the process, to interview attorneys outside the jail.
8. On one occasion Dr. Arlene Lewis, who is my sister, came to New York, and interviewed several attorneys. She then went to David stern’s office, in Manhattan and met with him and interviewed him on my behalf. Mr. Stern also came to see me months before. However, I did not wish to hire Mr. Stern after our meeting. The 15 days had passed and we were unsuccessful in finding a lawyer, because my family lives out of state and I was unable to make calls at will, and schedule visits with a number of attorneys, due to there own schedules. Robert Feldman was one of those attorneys, who eventually called us back and said he was interested in taking the case. My incarceration made this process difficult, as I explained to the judge, on September 11, 2015, at the court proceedings pg 4-5, why I needed more time to find a lawyer. The judge interrupted me, so I never finish explaining. Instead the judge went on to tell me, whatever issues I have concerning Virginia, it is not apart of this case. The court insistence upon expeditiousness, never allow me to adequately prepare for trial, pro-se or with my attorney of choice. The court did not make a proper determination as to why, I wanted the change of counsel, instead the judge made assumptions and give little attention to my letters or my concerns.
9. Thereafter I told my family, if I cannot find an attorney by the courts deadline, I would be force to have a court appointed attorney, which is what took place. That attorney, nevertheless became David Stern. DKt.NO.50,70. The court never let me clarify the fact that I never wanted David Stern as my choice of counsel. Still, I tried to work with Stern regardless, so it would not delay the process. After Mr. Stern’s appointment of counsel, David Stern explained to me, that he does not give out his phone number or engage in emails, this alone made difficult to communicate effectively with Stern.
10. I felt David Stern had to many clients and was not willing to give the case a meaningful testing for the extensive discovery and he needed help with the complexities of the case. This was made cleared, by his continued assertions to me personally, and on record. See October 5, 2017 status conference Tr. LN.7-9 PG 3. In addition to this, Stern hired an associate to assist him with the case, and filed a letter to the court requesting more time, which was granted. See DKt,NO.71. There were valid reasons to substitute Mr. Stern, he did not argue or investigate issues with the warrant or my juvenile record and he had not prepared a defense for my case.
11. On March 7, 2016 the court prevented me from being represent by my lawyer of choice, who would have made sure I testified and would have requested instruction, introduce evidence and call witnesses to aid in my defense. The Court restricted me from having a fair adversarial testing. The court directed David Stern to be my standby, even though Stern advises the court he was unfamiliar with the role. This was a violation of my rights, regardless of the in effectiveness or prejudice, of David Stern’s pretrial deficiencies. Because my retain counsel, was familiar with the role of standby and was ready to proceed. The court’s denial was an actual constructive denial of assistance of counsel. My constitutional rights were violated, at the most critical stage.
12. On March 10, 2016, the jury deliberated on a one aided view, of the government’s case and absolutely no evidence or testimony came from my defense. The jury’s acquittal, of the more serious charges, premised on the same intent of the assault charges, was sufficient to prove the government’s evidence was insufficient and not overwhelming. If my testimony and the exculpatory testimony, of professor Deforest, and the aid of my retained lawyer, had not been precluded, there was more than a reasonable probability, that the result of the proceedings would have been different.
13. In Tr.744LN-13; the jury deliberation question, reads as follows: Judge Glasser, may we please have diagrams illustrating where casing were found (interior and exterior) evidence defining which casing were attached to each weapon evidence defining which weapon belongs to whom. The jury deliberation questions was base on the most critical evidence of my entire case, which my testimony and professor Deforest testimony, would have answer precisely, what the jury was asking, as stated in professor Deforest affidavit. Also my retain lawyer would have aided the jury in understanding, my character and my state of mind, at the time of the incident. Instead of the jury hearing, the one sided view of the prosecutors case. This undermined the juror’s truth seeking function.
14. Not calling professor Deforest was out of my control, I had no information to call him and Stern’s affidavit contradicts his reply letter. Nor was it a reasonable defense strategy, to advise me, to incriminate myself and say I had a gun in my hand, when I open the bedroom door. As I have argued in my rule 29/33 motion for judgment of acquittal, (DKT.NO-126). Stern’s theory was not a theory that I wanted to use. Nor was there any truth to it and I would not lie to help David Stern’s theory. David Stern’s multiple errors, had a direct impact on the jury’s verdict, cause conflict between us and prejudice my defense.
15. in the 2255 motion, a claim of ineffective assistance, for David Stern’s lapse in his representation was made. David Stern responded, with a letter contradicting, what was said to me in front of Mr. Feldman and Mr. Aab, during a brief meeting, at MDC Brooklyn. Further David Stern asserted, he did not stipulate to fugitive in possession, he only stipulated to fugitive. This is misguided, because fugitive in possession, count 7 was what he was stipulating to. This error allowed the government, a conviction, on a dismissed charge.
16. Furthermore, David Stern never argued the stipulations. His decision to enter the stipulations, that was not factual, into evidence, relieved the government of its burden of having to prove it’s case. This violated my due process. The 1995 charges were dismissed in the year 1995. David Stern knew this information at the time he entered into the stipulations. The warrant the U.S. Marshals arrested me for, was insufficient to prove anything that we could not argue. More alarming, once the stipulations convicted me, the fugitive-in-possession count 7 was dismissed after trial on my rule 29/33 motions of judgment of acquittal. David Stern fails to argue the 28 years old juvenile conviction, knowing the court records was destroy as stated in the PSR. Nor did Mr. Stern adequately consider the justification defense to felon in possession knowing the facts supported the theory. See Tr. 636-637.
17. The Court sanctions me for using my constitutional rights, of my choice of counsel. The facts of my case shows: the excludable time was due to numerous reasons related to the case. Further, the government was still sending discovery, up until three weeks before trial. See DKt.NO>104-PG ID# 462. M. Booth was retained, once my family learned I was arrested, but I did not interview him, or knew he was retained until he appear in court. Thereafter he explained to me when I asked “if he was familiar with cases such as mine” he then explain that he never had a case that involves a police shooting. His answer confirm my choice to seek and retain, a lawyer who was somewhat familiar with the issues of my type of case, which was then designated a complex case.
18. However, due to the solitary confinement, I was unable to communicate effectively. I was lock down for 23 hours a day, and allowed only one, phone call a month, my mental and physical condition deteriorated. This was an extraordinary burden that went on for months, and became an issue, in my ability, to find a proper attorney for my case. Numerous superseding indictments follow, time was excluded for medical reasons, and the Virginia warrant, discovery was still outstanding. Further, there are discovery disc that I am still unable to access, the AUSA and David Stern has been notified also a second letter was sent directly to the AUSA, I received no response.
19.After Mr. Talkins took the case he requested more time, because his other case was on trial, this cause some time to be excluded. After my family did not accept his fee for trial, which was separate from his fee for pretrial hearings, he relieved himself, because the court denied my request. Mr. Talkins and Mr. Feldman were the only lawyers I myself interviewed and hire. This was no attempt to delay the process, as the court has stated: “this an incredible attempt to delay this trial indefinitely”. Tr.9-LN-176-17. I would not waste financial resources, to delay a trial. The court did not sufficiently address, the prevailing issues or allow me to clarify the specific reasons for my actions, nor allow my retain attorney to speak and made no attempts to cure the matter. My constitutional rights were violated, while exercising my rights to simply find a lawyer who would give a meaningful adversarial testing for my complex case.
20.On March 7, 2016 the court did not safeguard my rights to a fair trial. (a) the government had an unfair advantage, as I was unprepared and defenseless. Tr.10 LN-4-6.1 asked for a fair trial and was ordered to sit down. Tr.LN-7-11 (b) David Stern’s lapse in representation at the most critical stage, violated my six amendment rights to a meaningful adversarial testing. (c)the complete denial of my choice of counsel and standby counsel, was restricted arbitrarily, were my retained counsel, was ready and elected to pursue a plausible defense strategy for my case. Tr.9-LN-9. (d) The force waiver of my rights, was not a voluntary. (e) the case consist of over 13,000 pages of discovery and was designated a complex case. See DKt.NO.11. A short delay, was reasonable, under the prevailing circumstances, were all the facts were all available to the court. (f) I was sanction, for simply using my Constitutional right, of changing two retained attorneys, when there was valid reasons, I was force to use a CJA, The court knew I had conflict with, who was also unfamiliar with the role of standby counsel, and compelled to proceed pro-se, unprepared, without fully understanding the entire trial process.
21.The district court’s caviler treatment, to my numerous complaints, in letters and objections before trial, during trial and after trial, shows the court ignored, the prevailing issues, and rush my case to trial. The court had access to the overwhelming, relevant evidence, in the case files that negated my guilt, of assault charges. The impact of the court’s indifference, gave the government and law enforcement extraordinary leeway that allowed unchallenged testimony to support my assault conviction. The jury never heard or saw the totality of the documented evidence in the government’s files. The court precluded, testimony that was critical to my defense. This undermined the confidence in the results of my trial. Thereby, rendering the adversary process itself unreliable.
22.My defense was seriously impaired, because the evidence, in the police reports and discovery, is what I would have to introduce into evidence, if I was granted a continuance. Since it was obvious, after I was denied my choice of counsel, and compelled to proceed, as my own lawyer, it was only fair, that I be given a fair opportunity to prepare a defense. Instead I was immediately rush into a trial process. The one month duration the court set aside for my trial, was reduce to just 4 days. The trial was unfair and did not allow me to introduce, “reliable evidence” that the jury, never heard, that would have demonstrated my factual innocence, to the assault charges. Nor cross-examine all the witnesses, on the government’s witness list. Such as: NYPD sergeant Joseph Vereline, who made a testimonial statement to Queens District Attorney, that he heard me scream, call for help somebody’s trying to kill me! And other government witnesses, who made prior statements, that was admissible and would have impeach, trial testimony of law enforcement who testified.
23.Had I been able to testify, I could have explained with the help of discovery documents how I was shot and injured by the US Marshals who continued to shoot at me through a clos bedroom door. Which would have proved the overwhelming evidence for the justification defense of felon possession. Because I was entitled to defense instructions relating to my case and the facts existed. David Stern fail to request or argue any instructions before trial as my lawyer and had nothing in place for my defense, once the court compelled me to represent myself, giving me no fair opportunity to defend myself. David Stern knew this was one of my concerns, because I presented this to him, numerous letters and conversations. Furthermore, the four elements of the justification defense, was consistent by the facts of the incident on record, in police reports and from the government’s witnesses, own testimonial statements.
24.Had I “TESTIFIED” I would have explained to the jury, the two bullets that was found inside the shed, where the officers claim they were standing was both inconclusive and unsuitable to the firearm, the government said was used to fire at the NYPD. I could have further explained, why the NYPD testimony was proof that the shooting towards them, never happen and they were not standing by the shed. Nor did they see me shooting towards them outside a window. This would have establish by my testimony and evidence confirmed by the detective’s own testimony. See Detective Bendig’s testimony Tr. 421. Who said he saw a face and detective Garofalo testified, that he did not know for a fact that I knew he was in the backyard. Tr.498-499-502-503. I could have introduce the evidence of police shooting in the back yard from the government’s own witness, on audio disc. See DKtNO.27. and evidence of two contradicting versions of the incident bedroom DKt.NO.39 and bates# Lewis000001-7, hallway version, statement that are admissible, that the jury never heard. All contradicting, the intent to assault, and contradicting officer’s testimony.
25.On March 8, 2016, NYPD expert witness detective Brado’s testimony was based mainly, on firearm operability and test fires from the NYPD Firearm Analysis Section lab. On March 8, 2016, the NYPD expert testimony of detective Jonathan Fox, was base on test fires and inconclusive and unsuitable evidence, (RS 19, see Tr.384, (RS 20, See Tr.387. Pertaining to the bullets in the shed that was allegedly fired in the direction of officers from the window where the officers claim, the offense took place. Nor did the shell casings, found in the rear yard.(24.1 24.2 24.3) match the 9mm cartridge RS15, that came from the 9mm Ruger, that the prosecutor claim was used in the charged offense. Tr. 398-399-400-401,402. The government’s NYPD ballistic expert witnesses testimony was insufficient and misleading. The NYPD ballistic expert’s testimony, was not base on any evidence, of me firing inside the apartment towards US Marshal’s. the ballistic evidence in the living room, reveals the US Marshals, were firing towards the close bedroom door where I occupied at the time of the shooting. The jury never heard this, in evidence.
25.Further, the AUSA used inconclusive ballistic evidence, to level criminal charges against me, rather than providing a positive identification. The acquittal and the jury deliberations questions prove that the jurors, wanted a clear understanding of the facts. Which was the main factor in the determination of the assault verdict. This was never clarified for the jury, base on other available evidence that was excluded. The government had an unfair advantage and misleads the jurors to believe, they were receiving all the evidence in the case.
27. After trial, the jury still did not know who fire what gun and what gun belong to whom, as stated in there deliberation questions. Proving more reason why the EXCLUSION of my testimony and that of professor Deforest, seriously impaired my defense. The testimony was critical to my defense and would have reveal I did not shoot at NYPD Officers in the rear yard, or the US Marshals inside the apartment. Nor was there any criminal intent, to commit a crime of assault.
28. On March 7, 2016, I was unconstitutionally rush into a trial process, which impaired my ability to formulate and present a defense. This deprived me of my ability to respond to the government’s allegations against me. Moreover, David Stern’s stipulations had no strategic or tactical justification, for the course taken, or any legitimate explanations, would make it a reasonable tactic, to enter into evidence, a dismissed charge, that cause a guilty verdict. Further, David Stern’s reasons for not calling a witness, who Stern himself, stated in his own opinion would have acquitted me of assault charges if the witness did testify on my behalf, was not reasonable under my six amendment guarantee to a fair adversarial testing. Even David Stern’s assistance, at the charge conference could not cure his multiple errors, because the errors had a direct impact on the jury’s verdict and the outcome of my trial. The damage was already done before the trial.
29.During the entire court proceedings, the court rubber stamp the government’s allegations and never acknowledge, or gave any proper consideration, to the officers misconduct, that was presented, to the court in letters and complaints. Which came from police reports and documents and not from my own blanket statements. The jury had a one-sided view of untrustworthy evidence and never heard the overwhelming evidence, in the police reports and discovery documents. Which would have expose, the misconduct and material alteration, of the evidence and obstruction of justice, that took place to cover up the shooting incident on August 26, 2014. The court had a duty to inquire but choose to remain silent. This appearance of partiality caused a miscarriage of justice, and I was convicted for assault charges, I did not commit.
30.My trial was not fair, because I was unable to introduce the overwhelming evidence in discovery documents which was my primary defense and there was a reasonable probability had the jury heard the evidence, such as, the closed bedroom door the US Marshals were shooting at in bates# Lewis000000455, 456,457 and the recklessness of the shooting, which shows the US Marshal’s bullets entering the next door apartment in bates # Lewis000000421, 463, 461 and 531; which was never in evidence. Further, my opening statements were corroborated in officer’s testimony such as: NYPD Robin Steneck’s testimony in Tr.277; confirming the shot that was fired into the air conditioner. See Lewis000000218; which shows the backyard area of the window and air conditioner. See also discovery documents in Lewis00000070, 459, 460. Showing the inside of bedroom window and air conditioned, where I had to retreat once I was shot, while screaming for help. After I was shot, I was arrested and assaulted by officers, it took nearly a year to remove the bullet from my arm, only after numerous complaints to the district court. See DKt.NO.30.
31.On August 26, 2014, the evidence found inside and outside the apartment, also captured on CSU video, clearly proves the US Marshals were the only ones shooting inside the apartment. The discovery also shows shell casings recovered from the living room floor, in discovery documents bates# Lewis000000244, 246, 247. The evidence and facts of the case show the use of deadly force by the US Marshals while, firing at a close bedroom door. Then planted their own shell casing inside the bedroom, beneath the firearm, that the prosecutor claim, was used to shoot at the US Marshals. In discovery document bates# Lewis000000221. Further, the US Marshals, all give testimony that was inconsistent with the evidence. The shell castings marked in the NYPD legend, RS1 to RS23 shown in NYPD crime scene unit (CSU) diagram run# 14/0604, displays the inside and outside of the apartment of 144-47 175th Street, were CSU claim, the shell casings were found in plain view, after a complete and thorough search of the area. My trial was not fair, because the evidence that the ATF and NYPD detectives, claim they recovered on August 27, 2014 a day after the incident was found in the exact location, in plain view were CSU claim, they conducted the methodical search on August 26,2014. The inconclusive evidence, was used against me even thought one shell casing found was never sent to the NYPD lab to be tested. This fact and other facts, was never in evidence or clarified for the jury to determine. The true facts of my case and the obstruction of justice that took place, Such as, The deliberate concealment of shell castings evidence, that was furtively conceal from 8/27/2014, and did not start going to the NYPD lab until 1/5/2015, the last being 2/04/2016 a month before trial.
32.On August 27, 2014, shell casing recovered, went to numerous locations, instead of being given to an invoicing officer for forwarding to property clerk to be sent to lab for ballistic analysis. Instead the shell casings are concealed for months, then end up in separate locations, even though the evidence was recovered together the same day. The ATF, 113th pct, 49th pct invoice the evidence, some 5 months later, one 9mm shell casing took 11 months to be invoice in NYP property clerk records, at the Bronx 49th pct in the robbery section. The officers who directly involved with the shooting incident also process their own crime scene. This conflict of interest would have been reveal in details, how this obstructive activity, plague the entire ballistic evidence, because, this is typical indicia of obstructive conduct. Trial Tr.426-428 reveals detective Bendig claim he found a 9mm shell casing 85 days later, after CSU recovered 9mm casings, search and photograph the entire area, then ATF agent Howard Stern claim he recovered a 9mm casing in the CSU photograph location. See Trial Tr:325-326. Detective Keith Smith returns a 9mm casing 7/14/2015; what he recovered on August 27, 2014; accompanied by agent Stern. ATF examine the firearms during this same time of the concealment. And NYPD lab produced a 40-caliber shell casing using a NYPD 40 caliber laboratory firearm around the same time.
33.Evidence recovered on August 27, 2014 was not immediately sent to the lab or property clerk following NYPD protocol. More alarming, no 9mm NYPD firearms were sent to the lab for ballistic analysis, but check on site. The government rests its case, after I began to expose the 3 bullets in Sandy Rao’s testimony Tr.537 to Tr.543. My trial was not fair and there was no expert testimony, for my defense to reveal these facts. Had I been given a fair opportunity, to be heard and present the available material facts into evidence. I also provided the court with extensive exhibits in my complaints. See Dkt.NO 136. After trial I was denied a factico hearing on the misleading evidence that was used to unfairly convict me.
34.On April 13, 2017, the government filed a response naturally opposing the motion 2255. The facts are clear to any discerning fact finder, the government’s arguments concerning the incident, is base on numerous significant discrepancies that contradicts the entire discovery. The government’s oversize motions, is filled with outlandish versions of events that never occurred. The false testimony of, whiskey drinking, shooting with two automatic pistols, and hostage situation, are false allegations. Further, no blood was found on the table or bottle that was supposedly used for this act. In Lewis000000246, 247 and ATF search warrant videos 76 mp4 77mp4; it clearly proves the bottle on the table, was tamper with and opened and close. My hospital condition clearly shows, in countless photographs both hands were bloody. My trial was not fail, because the government had an unfair advantage, to assert whatever allegations they wish, and by using 20 year old arrest to take away the attention of the serious violation of my constitutional rights and the obstruction of justice.
35.The court ignored the testimony from law enforcement, which was mostly cumulative and could have been easily impeached, if I had been able to prepare a defense, these facts would have been in evidence to prove the facts of my case. Professor Deforest testimony would have corroborated the discovery facts, that I did not commit the crime of assault. The jury would have heard all the exculpatory documented evidence that was unfairly excluded from my trial, because I had no defense. The combination of the errors undermined the integrity of my entire trial process. The officer misconduct continued during my arrest. I was begging officers, not to cuff my injured wrist, instead I was brutally assaulted Tr. 463 Q. “so I was laying down then?” A. you were. Q. So how is a person laying down resisting, if I’m lying down? The court: Excuse me sustained. The facts show, my condition was photograph, from the hospital, in discovery documents bates# Lewis000000362, Lewis000000363, the facial injuries and nasal fractures in bates# Lewis000000358 the gunshot wound to the wrist in Lewis000000359, Lewis000000361, were officers placed handcuffs, on purposely to cause pain.
36.Had I testified and been able to call witnesses such as: NYPD officer Robert Lewis, who spoke at my sentencing hearing and also wrote to the court on my behalf risking his own reputation. See Dkt.NO 175 who would have also testified on my behalf about my respect for the law and my character. Had I been able to present a defense I could have call witnesses from the block of the incident, who heard me screaming for help, shortly after the US Marshals, made the midnight, forcible entry into the apartment. Had I testified I could have explained in evidence for the jury to consider my true character and how hard I work, for many years and all my children will agree, that I am a great father. See Dkt.NO 145. See also DKt.NO 140.
37.My trial was not fundamentally fair, the record supports. The court restricted arbitrarily my choice of counsel, even before trial. The court denied Sam Talkin substitution. See Dkt.NO 48 and denied David Stern substitution. See Dkt.NO. 110. then at trial denied Robert Feldman substitution. The court eviscerated my six amendment right of choice of counsel and arbitrarily chose my trial counsel for me, but readily granted both Sam Talkin & David stern’s applications to be remove, without any objection. See DKt.NO.58, DktNO.120, 125.
38.On October 20, 2017; the district court sentence me to 24 years in prison even though (1) I only fired shots in fear in the air and into an air conditioner, while screaming for help. The evidence was insufficient and the facts of the case proves I was shot, arrested and brutalized by the US Marshals and no Physical evidence of me shooting toward the officers existed. The officer’s testimony was base on, false self-interest testimony, all officers had an interest in the outcome of this case. (2) I am a 46 year old category 1 defendant, who has never served any prison time or had any prior violence in my criminal history and had not been arrested in over 20 years (3) I was sentence and enhanced to misinformation that did not reflect the physical evidence or true facts of my case, no mitigating factors were ever considered by the district court, even thought the court was aware of the prevailing circumstances, and the clear misconduct by officers, that took place during and after the shooting incident, which was ignored by the district court (4) the judge’s insistence upon expeditiousness, denied my retained counsel of choice, who was ready to engage the government in a fair adversarial testing, this error cause me to have no time, to put on a defense or request instructions, call witnesses, introduce the material exhibits in time for trial, all of which my court appointed CJA fail to do. (5) The court impaired my ability to testify, this prevented me from proving the facts of my case and my opening statements, that was base on facts, discovery evidence and testimonial statements from officers. (6) the exclusion of material testimony from an expert witness was wrongfully precluded, due to my appointed attorney’s pretrial ineffective assistance at the most critical stage.
39.(7) my trial was not fair because of the numerous cumulative errors such as: stipulations that were not factual or challenge, cause two guilty counts (8) the omission of an essential element on count 8 under 18 U.S.C 922(K) statues. The knowledge requirement, was remove from the adapted instructions the court used at trial. This was an intrusion on the jury’s prerogative (9)and not being able to subpoena or cross-examine all the witnesses on the government’s witness list, who I identified in complaints before trial, that made prior inconsistent statements, when it was clear, that I wanted the opportunity. See Tr.562-563. (10)The court did not safeguard my rights to ensure the evidence use against me was trustworthy and reliable (11)further the court ignored the nature of the offense, gave little weight under 18 U.S.C 3553 (a)factors, ignore my acceptance of responsibility of the possession of firearm, my respect for the law, ignored my sentence memorandum and my objections to the PSR altogether. Noting that the assault conviction was base on misinformation and produce no injuries to officers. See Tr.506-507 and that it was me, who sustained permanent mental and physical injuries, from officers’ conduct. (12) The fact show that numerous officers on my case, had already been involved in complaints against them, from other defendants, for the same issues I raised in my complaints, that the jury never heard. (13) The errors had a cumulative effect, rendering my trial fundamentally unfair. I was convicted for assault charges, I simply did not commit. (14)I poured out my complaints to the District judge throughout the entire court proceeding with facts and details, in hopes of getting a fair trial and was virtually ignored. It is my opinion that Judge I Leo Glasser cannot be impartial, when ruling on my case. The mere circumstances of the entire court proceedings, was constitutionally unfair. (15)I was sentence in violation of my Fifth Amendment rights and Fourteen Amendments rights of due process and Sixth Amendment rights were violated. I therefore respectfully ask that this court reverse the judgment with a finding of fact, supported by the record in favor of the appellant in the alternative, the court should retry the case for a fair and impartial trial before an unprejudiced judge on proper evidence and under correct instructions as in just and proper.
/s/ Oswald A. Lewis
cc A.U.A Attorney
Jonathan P. Lax