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SOARES v. U.S.
August 13, 1999
ARMINDO SOARES, PETITIONER
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Raggi, District Judge.
AMENDED MEMORANDUM AND ORDER
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
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.
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
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.
A brief outline of the procedural history of this case is
necessary to address some of the issues raised in Soares's motion
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.
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.
On May 13, 1997, Soares, now represented only by Mr. Bonstrom,
moved this court to vacate his conviction pursuant to § 2255.
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 §
2255 motion has any merit. Thus, Soares cannot ...