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BOHANAN v. UNITED STATES

May 19, 1993

LENNY BOHANAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: JOHN E. SPRIZZO

 SPRIZZO, D.J.:

 Petitioner, Lenny Bohanan, submits this pro se motion pursuant to Title 28, United States Code, Section 2255, to vacate, set aside, or correct his sentence. For the reasons that follow, the motion is denied without a hearing.

 Indictment S 85 Cr. 1066 (JES) was filed on April 29, 1986 in nine counts. Count One charged Lenny Bohanan with conspiracy to commit eleven armed bank robberies in violation of 18 U.S.C. § 371 (1982). Bohanan also was charged with three substantive counts of armed bank robbery in violation of 18 U.S.C. § 2113(d)(1982).

 On June 25 and 26, 1986, after a three week jury trial, the jury returned guilty verdicts against Bohanan and his co-defendant Hogan on all counts. Defendants' convictions arose out of their participation, with Herbert Davenport, in a series of armed bank robberies which occurred in Manhattan, Brooklyn and Roosevelt, New York during 1980-1984.

 On July 31, 1986, this Court sentenced Bohanan to five years' imprisonment on the conspiracy count, to run concurrently with twenty year terms on each of the bank robbery counts. Bohanan filed a Notice of Appeal on August 6, 1986. On February 10, 1987, the Court of Appeals affirmed the judgment of conviction.

 On April 15, 1987, Bohanan filed a motion for reduction of his sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure, which this Court denied on June 9, 1987.

 On March 15, 1989, Bohanan filed his first petition pursuant to 28 U.S.C. § 2255. On March 6, 1990 this Court dismissed that petition, adopting Magistrate Judge Michael H. Dolinger's recommendation issued February 7, 1990. On December 14, 1990, the Court of Appeals dismissed Bohanan's appeal of that order and on February 25, 1991 denied his motion for reconsideration.

 Bohanan subsequently filed his second 2255 motion on October 7, 1991 and on November 29, 1991, moved to amend that motion to add a third claim. *fn1"

 The principal basis for Bohanan's second petition under § 2255 is alleged new evidence which petitioner received in June 1990 pursuant to a FOIA request submitted to the FBI on June 13, 1988. The Government contends that this evidence should have been included in his first petition and that the present petition should therefore be dismissed as an abuse of the writ.

 Although this information was not received until after the first petition was filed, it does appear that had petitioner filed his FOIA request sooner than 1988, he might well have had this evidence available at the time he filed his first petition. Nevertheless, even though there is some persuasive force to the Government's argument that the second petition should be dismissed on procedural grounds, since the Court has concluded for the reasons set forth below, that there is no merit to petitioner's claims, the Court will, in the interest of judicial economy, dismiss the petition on the merits.

 The new evidence upon which petitioner relies consists, in essence, of information that: (1) the FBI had another suspect, Earl Bowe, who had been found in possession of some of the proceeds of one of the bank robberies; (2) that the Government had endeavored to conceal that fact by introducing a stipulation into evidence at trial which set forth an undifferentiated amount of $ 10,462 as the loss sustained in that robbery, *fn2" thereby failing to disclose that $ 3,275.00 of that amount consisted of savings bonds, which bonds had been found in the possession of Earl Bowe and; (3) that another group of bank robbers in New Jersey had used a "modus operandi," virtually identical to that used in the New York robberies for which Bohanan was convicted.

 To meet his burden on this petition, Bohanan must demonstrate that had the aforesaid evidence been disclosed to the defense, and been available at his trial, there is a reasonable probability that the result would have been different; see United States v. Bagley, 473 U.S. 667, 678, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985); i.e., that there is such likelihood that the result would have been different as to undermine confidence in the result reached. Moreover, as the Supreme Court noted in United States v. Agurs, 427 U.S. 97, 110, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976), the good or bad faith of the prosecutor in failing to disclose the alleged evidence is not either dispositive or relevant in deciding whether the nature of the evidence not disclosed, taken in the context of all of the trial evidence, is such as to, as in objective matter, undermine confidence in the result reached.

 Petitioner has failed to meet that burden. Davenport, as a co-conspirator and accomplice witness for the Government, testified in detail at trial as to Bohanan's involvement in the planning, Trial Transcript ("Tr.") 323-331, 362-67, 379-383, 523-25, 529-532, and execution, Tr. 368-79, 383-90, 532-36, of the bank robberies for which Bohanan was convicted. Moreover, much of Davenport's testimony was corroborated by Cumming, a long-time acquaintance of Bohanan, who testified that Bohanan admitted to him that he had robbed the four banks set forth in the ...


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