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UNITED STATES v. VARGAS

December 14, 1994

UNITED STATES OF AMERICA against FIDEL VARGAS, Defendant.


The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 Fidel Vargas, through counsel, has moved under 28 U.S.C. 2255 to vacate his conviction and sentence for conspiracy to distribute approximately two (2) kilograms of cocaine and to do so within 1,000 feet of a public school, in violation of 21 U.S.C. 812, 841 and 856. Vargas appealed his conviction, which was affirmed by summary order. United States v. Vargas, Dkt. No. 92-1516 (2d Cir. May 21, 1993).

 I deny the application.

 II

 Vargas argues that there was insufficient evidence of guilt and that the issue of entrapment was not fully explored. These questions were presented to the Court of Appeals, which held that "the government presented ample evidence from which a rational jury could conclude that Vargas was not entrapped and was instead predisposed to commit the crimes with which the defendant was charged." Id. at 2. No valid reason for questioning the Court of Appeals' conclusion has been provided.

 III

 Vargas claims that his counsel was ineffective because of failure to conduct a pretrial investigation; such an investigation necessarily depends upon leads provided by the client. There is no evidence that avenues suggested by the client which might have altered the outcome were ignored. Vargas complains that two informants were not interviewed, but has provided no indication that they were willing to talk with the defense other than from the witness stand, nor indications that their cross-examination was limited or ineffective.

 Vargas asserts that character witnesses might have tipped the scales in his favor, but fails to identify what persuasive character witnesses would have been involved, or to show that counsel was unwise in not opening up such witnesses to cross-examination.

 Vargas argues that his counsel failed to move to dismiss the indictment or to seek a bill of particulars and states that "without a bill of particulars, it is not possible to determine whether or not the indictment states a criminal offense" involving a non-government conspirator. Vargas' argument concedes that the indictment on its face is adequate.

 A bill of particulars is a device to avoid unfair surprise requiring a continuance. Vargas has not established unfair surprise.

 IV

 Without asserting that defense counsel failed to argue that government agents raised the level of the offense by offering a large transaction within 1,000 feet of a school, Vargas states in the context of alleged inadequate assistance of counsel that "if the district court had been aware of its power to depart downward based on sentencing entrapment, there is a reasonable likelihood that it might have done so." Vargas assumes that such leeway is novel because announced in United States v. Giles, 768 F. Supp. 101, aff'd 953 F.2d 636 (2d Cir.), cert. denied 117 L. Ed. 2d 647, 112 S. Ct. 1509 (1992), but ignores the fact that the district court in Giles had itself reached that conclusion, and that its decision was upheld. It has long been recognized that under 18 U.S.C. ...


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