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August 13, 1999


The opinion of the court was delivered by: Raggi, District Judge.


Armindo Soares is presently incarcerated serving a 188-month term of incarceration as a result of his 1994 conviction in this district for conspiring and attempting to possess cocaine with intent to distribute it. Through counsel, Soares now moves pursuant to 28 U.S.C. § 2255 for an order vacating his conviction. Soares had previously challenged his conviction on direct appeal without success. See United States v. Bahna, 68 F.3d 19 (2d Cir. 1995). Before this court, he now contends that (1) he was denied effective assistance of trial and appellate counsel in violation of the Sixth Amendment; (2) the prosecution failed to meet its disclosure obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and their progeny; (3) he was denied a fair trial as a result of government misconduct; and (4) both the prosecution and the trial court intimidated potential defense witnesses in violation of petitioner's Sixth Amendment rights. The court has granted Soares considerable discovery on his claims. It has entertained successive written submissions in support of his evolving legal theory. Having carefully reviewed these materials as well as the opposition papers filed by the government, the court finds that Soares' claims must be rejected as either procedurally barred or without merit.

Factual Background

1. The Prosecution's Evidence*fn1

Armindo Soares's involvement in cocaine trafficking came to light as the result of a government investigation into the criminal activities of his brother-in-law, Mark Bahna. The inquiry was triggered, at least in part, by the 1988 arrest of Ralph Bencivengo, one of Bahna's confederates. After Bencivengo agreed to cooperate with the Drug Enforcement Administration, agents arranged for him to meet with Bahna on a number of occasions and to negotiate a reverse sale of a large quantity of cocaine. In the course of surveilling these meetings, agents learned that Bahna was assisted in his trafficking by Soares and William Lombard. Further investigation revealed that Soares and Lombard regularly obtained cocaine from Bahna and, in turn, sold it to their own customers.

a. The Reverse Sale of Ten Kilograms of Cocaine

1) The January 4, 1990 Meeting at Caesar's Day Bazaar

After extensive negotiations, Bahna and Bencivengo agreed to meet at the Caesar's Bay Bazaar shopping center in Brooklyn on the night of January 4, 1990, to finalize the purchase of ten kilograms of cocaine. On that date, surveillance agents observed Bahna arrive at Caesar's Bay in a car driven by Soares. The cautious way in which Soares drove among rows of parked cars and the frequent movement of his head to check around him led the agents to conclude that he was looking for surveillance vehicles. This was subsequently confirmed by Bencivengo who reported that as soon as he met up with Bahna, that target warned him that their meeting was being surveilled. Bahna directed Bencivengo to enter Soares's car, whereupon petitioner drove to another section of the shopping center. As Bahna exited the vehicle, Soares brandished a gun toward Bencivengo and threatened to kill him if the informant was wearing a wire. Outside the car, Bahna searched Bencivengo to ensure that this was not the case. Bahna then told Bencivengo that he would need to see a sample of the cocaine before coming forward with any money. He reiterated this condition in a telephone call made a few minutes later from a nearby supermarket pay telephone to an agent posing as the cocaine supplier. When the agent/supplier rejected this new demand, Bahna and Soares drove away.

2) The January 9, 1990 Meeting at the Floridian Diner

Soares was arrested later on the night of January 9, 1990, at Bahna's home. Initially, he falsely denied being at the Caesar's Bay shopping center on January 4, 1990. Subsequently, he admitted driving to that location and seeing Bahna search Bencivengo, but he denied all knowledge of a narcotics transaction.

  b. Other Evidence of Soares's Participation in the Charged

In addition to Bencivengo and the federal agents who were able to testify to events relating to the ten-kilogram transaction in January 1990, the prosecution called three other witnesses who implicated Soares in the charged narcotics conspiracy: Glenn Schaeffer, Charles Costa, and Ron Sahi.

1) Glenn Schaeffer

Schaeffer testified that Bahna, for whom he worked as a "strong arm" in certain drug deals, had expressly identified his brother-in-law, Armindo Soares, as his partner. Schaeffer further stated that in a spring 1989 meeting at Bahna's house, he witnessed Soares return 600-800 grams of cocaine to Bahna complaining of its poor quality. Soon thereafter, Schaeffer participated in a conversation with Bahna and Soares as to the brands of cocaine then available and their prices and quality.

Schaeffer also recalled accompanying Bahna, in June 1989, to a Manhattan social club operated by Rocco Arena, a reputed member of organized crime. Arena told Bahna that Soares had to pay tribute money to the club since he was selling drugs in Greenwich Village. Bahna insisted that no money was owing since Soares was his partner and he was already paying Arena thousands of dollars. Schaeffer was present when Bahna reported this conversation to Soares and heard Soares refuse to pay Arena any more money.

Schaeffer testified that in July 1989 he was present when Bahna took a kilogram of cocaine from the kitchen cabinet in his home and placed it in a baby satchel. His wife, Elizabeth Soares Bahna, who is also petitioner's sister, then picked up the satchel and carried it and her child into the car. The group proceeded to Soares's apartment where Schaeffer saw Bahna hand the kilogram of drugs to Soares and receive a paper bag of money in return.

2) Charles Costa

Charles Costa testified that he was a customer of Mark Bahna who, in the spring of 1989, was offered a kilogram of cocaine for $17,000-$17,500. Bahna asked Costa not to mention the proposed price in front of his wife since he was selling the same quantity to her brother for $18,000-$18,500. Costa recalled another conversation in the summer of 1989 concerning Bahna's interest in acquiring five kilograms of cocaine from one of Costa's other sources. Bahna explained that two to three of the kilograms would be for Soares.

3) Ron Sahi

2. Procedural History

A brief outline of the procedural history of this case is necessary to address some of the issues raised in Soares's motion to vacate.

a. Soares's 1990 Trial

The prosecution initially tried Soares together with William Lombard before this court in June 1990. Mark Bahna had already pleaded guilty on March 12, 1990, to two counts of conspiring and attempting to possess ten kilograms of cocaine. Pursuant to a cooperation agreement, Bahna was obliged to provide full cooperation to federal authorities, but prosecutors had orally promised that they would not call him to testify against his brother-in-law, Armindo Soares.

Bahna's history of cooperation was troubled from the start. Immediately after his arrest, he had inculpated Lombard in his criminal activities, but exculpated Soares. On the eve of the Soares/Lombard trial, however, Bahna admitted that he had lied about his brother-in-law in order to assist him. These shifting positions were made known to Soares's first trial counsel, Robert Kalina, who himself interviewed Bahna. Ultimately, the defense chose not to call Bahna as a witness.

After the jury returned its verdict of guilty, both defendants moved for new trials. The court granted these motions on July 31, 1991, finding as to Soares that it had erred in limiting his presentation of character evidence.

b. Soares's 1994 Trial

Lombard did not stand trial again. Instead, on March 14, 1994, he pleaded guilty to conspiracy and attempt to purchase cocaine with intent to distribute it. Soares, however, now represented by Judd Burstein, was retried in March 1994 before then Chief Judge Thomas C. Platt.*fn2 Once again petitioner was found guilty of the narcotics charges against him. Judge Platt then transferred Soares's case back to this judge for sentencing.

Before this court, Mr. Burstein moved for yet another new trial, alleging a variety of errors in the proceedings before Judge Platt. After reviewing the parties' detailed submissions and hearing oral argument, this court denied the motion and, on September 27, 1994, sentenced Soares to concurrent terms of 188-months' imprisonment on both counts of conviction.

3. Direct Appeal

Mr. Burstein, with the assistance of Soares's present counsel, Kim Bonstrom, appealed Soares's conviction to the Court of Appeals. Counsel urged reversal on the grounds (1) that the jury selection process had violated Soares's Sixth Amendment rights, and (2) that the trial court had erred in (a) prohibiting the introduction of co-conspirator Mark Bahna's post-arrest statement exculpating Soares, (b) excluding a tape recorded conversation between Bahna and Bencivengo that made reference to Soares, and (c) refusing to instruct the jury that it could draw an adverse inference against the prosecution for its failure to call Bahna as a witness. The Second Circuit rejected these arguments in a published opinion. See United States v. Bahna, 68 F.3d 19 (2d Cir. 1995).

4. § 2255 Petition

On May 13, 1997, Soares, now represented only by Mr. Bonstrom, moved this court to vacate his conviction pursuant to § 2255.


I. Procedural Default

The government submits that most if not all of Soares's arguments could have been raised on direct appeal. Accordingly, it asserts that he is barred from seeking collateral review in this court unless he can show good cause to excuse his default and ensuing prejudice. See, e.g., United States v. Perez, 129 F.3d 255, 260-61 (2d Cir. 1997). As cause for his failure to challenge the ineffective assistance of his trial counsel, Soares cites the fact that the same attorney represented him on direct appeal. See Billy-Eko v. United States, 8 F.3d 111, 114 (2d Cir. 1993) (superceded by statute on other grounds as noted in Triestman v. United States, 124 F.3d 361, 369 n. 8 (2d Cir. 1997)). As cause for his failure to raise other, issues on direct appeal, Soares submits that counsel was as ineffective on appeal as at trial. For the reasons stated infra, the court rejects these arguments. It finds that Soares was not denied effective assistance, of counsel either at trial or on appeal. In any event, it finds that he was not prejudiced by the alleged deficiencies in counsel's performance since none of the claims now raised has any merit.

II. Ineffective Assistance of Counsel

A prisoner asserting a claim of ineffective assistance of counsel must demonstrate both (1) that counsel's performance was so unreasonable under prevailing professional norms that "counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment," Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and (2) that counsel's ineffectiveness prejudiced the defendant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694, 104 S.Ct. 2052. Accord United States v. Trzaska, 111 F.3d 1019, 1029 (2d Cir. 1997).

When applied to a challenge to the representation afforded by appellate counsel, Strickland requires a prisoner to show that "counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994), and that "there was a `reasonable probability' that [the omitted claim] would have been successful before the [appellate court]," id. at 534 (quoting Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992)). In considering the first prong of this test, a reviewing court must bear in mind that appellate counsel is not required to raise every colorable claim of error, even if requested to do so by a client. See Jones v. Barnes, 463 U.S. 745, 754, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).

Furthermore, whether Strickland is applied to trial or appellate counsel, a reviewing court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound [legal] strategy.'" Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). Paramount to the court's consideration of any claim of ineffectiveness is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial [or appeal] cannot be relied on as having produced a just result." Id. at 686, 104 S.Ct. 2052.

Soares's complaints about his counsel's performance at trial and on appeal do not satisfy the strict criteria of Strickland. Judd Burstein is a talented and conscientious advocate who appears regularly in the federal courts of this circuit. He enjoys a particularly high reputation for his thorough preparation of cases and careful analysis of difficult legal issues. The likelihood of his rendering objectively inadequate representation appears remote. Nevertheless, this court has carefully reviewed the trial and appellate records in this case. Indeed, the court had already reviewed the trial record once before when it considered Mr. Burstein's detailed motion to grant Soares a new trial. The court concludes that Mr. Burstein provided Soares with a high level of representation throughout the proceedings. See generally Kimmelman v. Morrison, 477 U.S. 365, 386, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) (court may consider counsel's overall performance in assessing a Sixth Amendment challenge). At trial, he vigorously cross examined prosecution witnesses, made cogent legal arguments to the court, and argued forcefully to the jury. Similarly on appeal, Mr. Burstein presented four carefully briefed issues to urge reversal of Soares's conviction. The fact that co-counsel on appeal — now counsel on this motion — might have raised other challenges as well, is not evidence of constitutional ineffectiveness. Indeed, one of the crucial tasks that must be performed by an effective appellate advocate is to isolate out of a voluminous trial record the few key issues most likely to persuade a reviewing court to reverser and not to bury these "in a verbal mound made up of strong and weak contentions." Jones v. Barnes, 463 U.S. at 753, 103 S.Ct. 3308.*fn3

In sum, Soares has totally failed to demonstrate that any action taken or choice made by Mr. Burstein at trial or on appeal was objectively unreasonable. Furthermore, it is apparent for the reasons stated infra that none of the challenges raised in this ยง 2255 motion has any merit. Thus, Soares cannot ...

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