there had been a joint debriefing session attended by Bencivengo
and Bahna before Soares's trial. Soares contends that he was
entitled to this material because the government offered Bahna's
out-of-court statements in furtherance of the charged conspiracy.
See Fed.R.Evid. 801(d)(2)(E). Thus, he was entitled to impeach
Bahna pursuant to Fed.R.Evid. 806 and should have received the
same Brady/Giglio material as if Bahna had testified at trial. He
further submits that if he had known of the government's
misconduct in dealing with Bahna, he could have attacked the
overall integrity of the government's case. Finally, Soares
submits that the government's failure to provide the material at
issue made it impossible for him to make an intelligent choice as
to whether to call Bahna as a defense witness.
None of these arguments has merit. For reasons discussed more
fully infra, the court finds that the government, did not
withhold from Soares information pertaining to Bahna's agreements
with the government. It further determines that there was nothing
in Agent Yoos's conduct toward Bahna nor in Bahna's contact with
Bencivengo that undermines confidence in the outcome of Soares's
trial. See generally Kyles v. Whitley, 514 U.S. 419, 435, 115
S.Ct. 1555, 131 L.Ed.2d 490 (1995); United States v. Orena,
145 F.3d 551, 557 (2d Cir. 1998).
A. Bahna's Agreements with the Government
The record before this court indicates, that Soares's counsel
was provided with all relevant information about Bahna's
agreements with the government before the second trial.
Indeed, even before Soares's first trial, the prosecution had
alerted his then-retained counsel, Robert Kalina, to the fact
that Bahna had made a post-arrest statement exculpating Soares.
Mr. Kalina then interviewed Bahna, who explained that his initial
statement was false. Bahna advised defense counsel that the
government had promised not to call him at Soares's first trial.
Thus, he had felt free to adhere to his initial statement in the
hope that this hearsay could somehow be used to help his
brother-in-law. Now confronted with the possibility that he would
be called as a witness by the defense, Bahna told Kalina that he
would have to testify truthfully as to Soares's knowing
involvement in the charged crimes.*fn4 Mindful of the totality
of these circumstances, the defense made an informed decision not
to call Bahna at Soares's first trial. See generally Letter of
Charles Carnesi (Counsel for Bahna) to the Court, November 9,
Before Soares's second trial, the government did impose a
further cooperation requirement on Bahna, i.e., his agreement to
testify as a prosecution witness against petitioner. Far from
withholding information about the circumstances leading to this
change, the government discussed the matter in open court in the
presence of Soares and his newly-retained counsel, Judd Burstein.
On June 11, 1991, Assistant United States Attorneys Robert Biddle
and David Hattem explained to this court that Bahna had seriously
violated his initial cooperation agreement by failing to advise
DEA agents that his wife had compromised one of their
investigations. Nevertheless, in order to avoid litigation with
Bahna's counsel over the issue of breach, the government agreed
to make a 5K1.1 motion on Bahna's behalf in return for his
expanded cooperation: "that quid, pro quo
was, Mr. Bahna has indicated he would testify against Mr. Soares
at any subsequent hearing." Transcript of June 11, 1991, at 7-11.
In sum, Soares errs in contending that the prosecution withheld
from him the fact that, at least as of 1991, Bahna's receipt of
5K1.1 consideration was dependent on his willingness to testify
for the prosecution against petitioner. Similar meritless is
Soares's claim that he was denied evidence showing that the
government would make § 5K1.1 motions even for individuals who
lied or otherwise breached their plea agreements. The relevant
facts were known to the defense well before Soares's second
B. The Misconduct of Agent Yoos
Soares asserts that Brady/Giglio obliged the prosecution to
disclose a January 7, 1991 tape-recorded conversation between
Mark Bahna and DEA Special Agent Robert Yoos. Soares contends
that the relevancy of this conversation was not limited to
Bahna's credibility. He submits that it calls into question the
overall integrity of the government's case because it reveals
that (1) invidious ethnic bias infected the investigation, (2)
improper attempts were made to interfere with Bahna's
attorney/client relationship, and (3) Bahna's cooperation was
induced by a threat to prosecute his wife. In fact, the tape
recording does not support these claims.
The conversation must be placed in context. Mark Bahna was a
major drug trafficker. Although he had signed a cooperation
agreement obliging him to disclose fully his knowledge of
criminal activities, by January 1991 it was plain that he had not
been candid with the authorities. Not only had he tried to ration
out information on low-level targets on a piecemeal basis, he had
compromised an investigation and possibly even threatened the
safety of an uncover agent. Mindful of how seriously he had
blundered, Bahna called Agent Yoos on January 7, 1991, and,
between sobs, implored the agent to "try to work something out
with me, I'll work for you for the rest of my life, please just
give me a chance. . . . I'm begging now, I'll do anything." In
short, this conversation was initiated by Bahna to beg the
government to allow him to continue to cooperate, not by
government agents to intimidate Bahna.
Agent Yoos had, of course, heard Bahna's self-serving pleas and
promises all too often, and admonished him, "You know, you don't
understand. That, that type of stuff that you pulled last time,
it could cost me my life, it could cost another agent his life."
Bahna tried desperately to redeem himself: "I want to tell you
about something big that I got for you." The skeptical agent
asked for a name. Bahna hedged, "It's, it's, it's a, it's a
Colombian name. I don't. I got the name, my wife got the
name. . . ." Unimpressed by Bahna's ambiguous stalling, Yoos
asked, "What about Italians?"
Soares, who is not Italian, argues that this inquiry evidences
invidious ethnic bias. He submits that if he had known of this
conversation, he would have used it to impeach Agent Yoos and
attack the overall integrity of the government's case. In fact,
any inquiry into the government's investigative goals in 1991
appears of little relevance to a jury's assessment of Soares's
alleged criminal conduct in 1990. In any event, a review of the
total conversation makes plain that the ethnic references provide
no evidence that invidious bias infected Soares's prosecution. At
worst, these were insensitive shorthand references to members of
organized crime. Yoos bluntly told Bahna, "I want a mafia guy.
You got mafia guys?" The government knew that Bahna had paid
organized crime members to be allowed to run his
drug operation, and yet Bahna had not been forthcoming about
The last time you told me, you gave me a list of people who you
heard about from this guy, Michael Cardito, and you heard about
this, and you heard about that, but you really don't know any
of them. You know. And I know you know some of these guys, and
I know you've dealt with some of these guys.
Later references to "Italians" are similarly linked to organized
crime activities. After Bahna assured Yoos that the agent "won't
be dissatisfied" with the information he will provide, Yoos
responded, "bottom line is that you know a lot of Italian
guys . . . . like Vinnie Nasso, and all of his people. I know you
know these people."
The court rejects Soares's contention that the government
withheld relevant evidence of ethnic bias.
Neither does the taped conversation support Soares's claim that
the government was attempting impermissibly to interfere with
Bahna's relationship with his attorney. Agent Yoos simply asked
Bahna to think about whether he could speak candidly about
organized crime figures in front of his lawyer.
Well, you know the people that he associates with. . . .
Everybody knows, you know, he handles a lot of questionable
types. Which is fine, there's nothing wrong with it. Do you
have enough confidence — and I'm not trying to steer you away
from the guy — I'm just saying I don't want that to inhibit you
When Bahna expressed no concern, Agent Yoos did not pursue the
matter further. Instead, he instructed Bahna to have his attorney
call the prosecutor to set up a meeting the following Wednesday.
Nothing in this scenario indicates improper interference with
Bahna's Sixth Amendment rights so as to undermine confidence in
the outcome of Soares's trial.
Finally, although Agent Yoos did discuss with Bahna his wife's
involvement in drug trafficking, he did not threaten to prosecute
her if Bahna did not provide further cooperation against Soares.
What he told Bahna was that based on the information known to the
authorities, "your wife could probably be charged too with
conspiracy to distribute narcotics." This was certainly true.
Nevertheless, Yoos also told Bahna that no such action was
contemplated: "I'm not gonna. We're not in the business of, uh, I
don't think we, we're even contemplating that, but I'm just
saying. There's a whole bunch of things that I heard that I just
couldn't believe." This exchange must be viewed in light of fact
that it was Elizabeth Soares Bahna who had recently compromised
the government's investigation into another target.
Understandably, Yoos was concerned about her conduct, but he said
nothing to suggest to Bahna that the government's decision not to
prosecute his wife was in any way linked to what he said about
Armindo Soares. Indeed, Bahna had inculpated Soares months
earlier, before petitioner's first trial.
For all these reasons, the court concludes that the
government's failure to disclose the January 7, 1991 conversation
between Yoos and Bahna did not deny Soares due process of law.
C. Bahna's Statement Regarding Soares's Assets
Equally meritless is Soares's complaint that the prosecution
withheld a false statement by Bahna regarding petitioner's hidden
assets. Apparently, sometime in 1991, Bahna had advised
authorities of a conversation in which Soares had told him that
he had withdrawn $40,000 in cash from a safe deposit box to pay
his attorney's fee. Since this amount was at odds with the modest
earnings testified to by Soares as his first trial, the
government subpoenaed Mr. Kalina for information about his fee. A
motion to quash by Soares's new counsel, Mr. Burstein, was denied
by Chief Judge Platt. Mr. Kalina thereafter reviewed his check
entries — apparently the only records he had of client payments —
and concluded that he had received payment of approximately
$26,000 in cash in cash and cashier's checks to represent Soares.
Petitioner errs in his contention that Bahna's statement about
Soares's payment of his attorney's fees constituted Brady/Giglio
material. Certainly, the statement does not exculpate Soares.
Neither has Soares established that the statement could have been
used under Fed. R.Evid. 806 to impeach Bahna's co-conspirator
declarations. That rule provides in pertinent part:
When a hearsay statement, or a statement defined in Rule 801
(d)(2)(C), (D), or (E), has been admitted in evidence, the
credibility of the declarant may be attacked, and if attacked
may be supported, by any evidence which would be admissible for
those purposes if declarant had testified as a witness.
Evidence of a statement or conduct by the declarant at any
time, inconsistent with the declarant's hearsay statement, is not
subject to any requirement that the declarant may have been
afforded on opportunity to deny or explain.
The latter provision is plainly inapplicable here since nothing
in Bahna's repetition to the authorities of Soares's explanation
for the payment of his attorney's fee is inconsistent with any of
his co-conspirator statements admitted at trial. As to the first
part of Rule 806, not every false statement by a co-conspirator
declarant is relevant to credibility. See United States v.
Friedman, 854 F.2d 535, 569-70 (2d Cir. 1988). In that official
corruption case, there was undisputed evidence that Queens
Borough President Donald Manes had made a false statement to
authorities about being abducted and assaulted. Subsequently,
Manes admitted that his injuries were self-inflicted. The trial
court rejected defendant Stanley Friedman's argument that Manes's
false statement was admissible under Rule 806 to impeach his
co-conspirator declarations. The Court of Appeals affirmed,
ruling that "Manes's false abduction story had no conceivable
bearing upon the credibility of his statements . . . in
furtherance of the conspiracy." Id. at 570.
So in this case, Soares has failed to show that Bahna's report
of what petitioner had told him sheds any light on the
credibility of Bahna's statements made in the course of his
conspiratorial activities.*fn6 Indeed, in stark contrast to the
scenario in Friedman, Soares cannot even establish that Bahna's
statement about paying the attorney's fee is false. Certainly
Soares has not provided an affidavit contradicting the
conversation reported by Bahna, and nothing in Mr. Kalina's
sketchy financial records proves that Soares did not make the
statements attributed to him by Bahna.
Under these circumstances, the government's failure to disclose
Bahna's statement about Soares's payment of his attorney's fees
does not evidence a denial of due process so as to warrant a new
D. The Joint Meeting with Bahna and Bencivengo
Soares faults the government for failing to disclose a joint
debriefing meeting attended by Mark Bahna and Ralph Bencivengo.
He submits that, as a result of this meeting, Bencivengo changed
his account on one key point: Bahna's presence in the car when.
Soares displayed a firearm. The relevant chronology, however,
does not support this argument.
The joint meeting attended by Bahna and Bencivengo occurred on
April 17, 1990. It was after that meeting that Bencivengo gave
inconsistent accounts of the meeting in the car. At the May 2,
1990 suppression hearing, Bencivengo testified that Bahna was
present when the gun was displayed.
At the June 1990 trial, he testified that Bahna was not present
in the car. Thus, when Bencivengo testified at the 1994 trial
that Bahna was not present when the gun was displayed, trial
counsel knew that he could impeach Bencivengo with his
inconsistent statement from the suppression hearing.*fn7 The
fact of a joint meeting with Bahna and Bencivengo in April 1990
adds nothing that undermines confidence in the outcome of
IV. Prosecutorial Misconduct
Soares asserts that misconduct by the prosecutor violated his
due process right to a fair trial. Specifically, he complains
that the prosecutor misled both the trial judge and the jury as
to the status of Mark Bahna's cooperation at the time of the
second trial. He further submits that the prosecutor intimidated
potential defense witness Mark Bahna by insisting that he recant
his statement exculpating Soares in return for 5K1.1
consideration. Neither of these claims has merit.
A. The Prosecutor's Misleading Statements
1. To the Court
To the extent petitioner complains that the prosecution misled
the court, this claim would warrant habeas relief only if he
could show that he was thereby prejudiced. Soares cannot do that
since the exchange of which he complains had no effect on the
evidence adduced at trial.
The challenged statements to the court were prompted by defense
counsel's cross-examination of Charles Costa, who testified that
he believed his own arrest was prompted by Mark Bahna's
cooperation with the authorities. The prosecutor sought leave to
ask the witness what he knew about the present status of Bahna's
cooperation. In colloquy with the court, the prosecutor explained
that "[i]n the view of the U.S. Attorney's Office, Mr. Bahna is
not any longer cooperating because of the way he double crossed
us." Trial Transcript at 804. The defense objected, specifically
challenging the government's assertion that Bahna was no longer
cooperating: "I don't think it is true. . . . The reality is they
had a big fight over a 5K1 letter. But the government eventually
capitulated and gave the 5K1 letter." Id. at 805. The prosecutor
replied that the circumstances were more complicated: "[T]he 5K
letter was written, and it was withdrawn. Mr. Bahna hired Mr.
Lefcourt and went ahead and had a big argument making accusations
against Agent Yoos and [AUSA] Biddle. And then, the fact is he
will get back the letter but Judge Raggi will know everything."
Id. Once again, defense counsel demurred: "I think [the
prosecutor] is not intentionally, but I don't think it is an
accurate characterization of the facts." Id. at 805-06.*fn8
The government does concede that, at the time of Soares's
second trial, Bahna was obliged to testify on behalf of the
prosecution if called. Thus, it was inappropriate for the
prosecutor to suggest otherwise when he asked Costa, "Did you
learn that Mark Bahna was not cooperating with the government any
longer after you were incarcerated?" Id. at 816. Soares was not
prejudiced, however, because this question was not answered.
Judge Platt promptly sustained a defense objection on the ground
that Costa lacked first-hand knowledge of the facts. Id. at
816-17. Ultimately, the jury heard no evidence
as to the status of Bahna's cooperation at the time of trial.
Thus, whether the prosecution statements to the court about
Bahna's cooperation were accurate or not, they did not deny
Soares a fair trial.*fn9
2. To the Jury
In rebuttal summation, the prosecutor made the following
statement that, while unobjected to at trial, is now challenged
You know, ladies and gentlemen, do not be deceived. You did hear
Charles Costa give you his view that Mark Bahna set him up and
Mark Bahna was cooperating. There is no evidence before you.
There is nothing to suggest that Mark Bahna is cooperating with
the government right now.
Trial Transcript at 963. While the statement was technically
correct — there was no evidence before the jury as to Bahna's
current status as a cooperator — it is undisputed that Bahna was
obliged to provide assistance to the prosecution at the time of
Soares's second trial. Indeed, he would have had to testify if
called as a prosecution witness. To the extent the prosecutor's
remarks could be interpreted otherwise, the statement was
misleading. Nevertheless, "a criminal conviction is not to be
lightly overturned on the basis of a prosecutor's comments
standing alone." United States v. Young, 470 U.S. 1, 11, 105
S.Ct. 1038, 84 L.Ed.2d 1 (1985). To secure relief, a petitioner
must show that the challenged remarks, when viewed in context;
were "so egregious" as to cause "actual prejudice," specifically,
"a substantial and injurious effect or influence in determining
the jury's verdict." Tankleff v. Senkowski, 135 F.3d 235, 252 (2d
Cir. 1998) (and cases cited therein).
In applying this standard, a reviewing court must consider that
"`the Government is ordinarily permitted to respond to arguments
impugning the integrity of its case, and to reply with rebutting
language suitable to the occasion.'" United States v. Myerson,