U.S. v. Bahna

• Citation: 68 F.3d 19
• Decision Date: 05 October 1995
• Docket Number: D,No. 1369,1369
• Parties: UNITED STATES of America, Appellee, v. Mark BAHNA and Armindo Soares, Defendants-Appellants. ocket 94-1566.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 19

68 F.3d 19

UNITED STATES of America, Appellee, v. Mark BAHNA and Armindo Soares, Defendants-Appellants.

No. 1369, Docket 94-1566.

United States Court of Appeals, Second Circuit.

Argued June 29, 1995.

Decided Oct. 5, 1995.

Barbara D. Underwood, Chief Assistant United States Attorney, Eastern District of New York, Brooklyn, New York (Zachary W. Carter, United States Attorney, Peter A. Norling, Joseph Nocella, Assistant United States Attorneys, Eastern District of New York, Brooklyn, New York, of counsel), for Appellee.

Judd Burstein, New York City (Kim P. Bonstrom, New York City, of counsel), for Defendant-Appellant Soares.

Before: VAN GRAAFEILAND, MINER, Circuit Judges, and COTE, District Judge. ^*

VAN GRAAFEILAND, Circuit Judge:

In June 1990, Armindo Soares was convicted after a jury trial in Brooklyn of conspiring and attempting to possess cocaine with intent to distribute. On July 31, 1991, Judge Raggi, before whom the case was tried, ordered a new trial because of what Judge Raggi concluded was an erroneous ruling concerning character evidence. In March 1994, Soares was retried before Chief Judge Platt in Uniondale and again was convicted. Once more, Soares contends that the verdict was tainted. However, this time his contention is without merit.

Although Soares describes the case against him as a close one, he does not, and reasonably cannot, argue that the evidence viewed in the light most favorable to the Government was insufficient to support the verdict. The Government established, largely through the testimony of coconspirators, that Soares and his brother-in-law, Mark Bahna, were involved in a large-scale cocaine trafficking network. One witness testified that he had seen Soares buying cocaine and had been asked repeatedly by Soares whether he had heard anything about a cocaine shipment. The witness also had been told by another coconspirator that Soares was in the business of selling cocaine and that a local organized crime figure, Rocco Arena, was attempting to extort "tribute" from Soares for encroaching on Arena's territory. Another witness testified that he had discussed prices, quality and brands of cocaine with defendant and Bahna, and that he had seen defendant purchase cocaine from Bahna and once return about 800 grams of cocaine to Bahna, stating that his customers were complaining about the quality. The witness also testified that he and Bahna were stopped by Arena, who told Bahna that Soares had to pay tribute, and that Soares had refused to do so. The witness later learned that one of Soares' employees had been pistol-whipped because of Soares' refusal. A third witness testified that Bahna once warned him not to mention prices in front of Bahna's wife, Soares' sister, because Bahna sold cocaine to Soares at a higher price. He also testified that Bahna once mentioned that some of the cocaine he was purchasing was for Soares. In addition, the Government introduced several incriminating tape recordings of conversations between Bahna and one of his coconspirators.

In January 1990, the Drug Enforcement Administration, acting on information furnished by an informant, Ralph Bencivengo, decided to organize a sting operation involving Bahna. With Bencivengo's assistance, the DEA set up a sale of ten kilograms of sham cocaine to Bahna. On January 4, 1990, the DEA conducted surveillance at the site of the planned sale, a shopping center in Brooklyn. At 8:00 p.m., Bahna arrived at the parking lot in Soares' car, driven by Soares. Bahna temporarily left the car to meet with Bencivengo. Then they both entered the car and continued negotiating the cocaine sale. After Bahna and Bencivengo placed a call at a pay telephone, the deal was postponed.

Bencivengo told the DEA agents that during these incidents Soares brandished a gun and threatened Bencivengo's life if he was wired. Bencivengo stated further that the deal fell through because Bahna insisted upon seeing a sample of the cocaine to determine its quality, while Bencivengo insisted upon seeing the $145,000 purchase money first.

On January 9, the sham deal was consummated. However, defendant was not present at that time. Instead, William Lombard was with Bahna. Both Lombard and Bahna were arrested, and defendant was arrested thereafter.

The Government did not call Bahna as a witness. Defendant's first claim of error is addressed to the district court's "absent witness" instruction relating to Bahna's nonappearance. At the conclusion of the Government's case, Soares' counsel called as his sole witness a DEA agent, who already had testified, and counsel then rested. He thereafter submitted among others the following request to charge:

If you find that a witness was either equally available or unavailable to both sides, you may infer that the testimony of the uncalled witness might have been unfavorable to the Government or to the defendant or to both. Alternatively, if the witness was unavailable to both the prosecution and the defense, you may simply disregard his possible testimony as a factor in this case.

You should, however, remember that there is no duty on either side to call a witness whose testimony would merely repeat or duplicate testimony already in evidence. You should also recall my earlier instruction that the law never compels a defendant in a criminal case to call any witnesses or produce any evidence in his behalf.

This requested instruction was taken verbatim from an accepted treatise on federal jury instructions. However, insofar as it refers to equally unavailable witnesses in the leading sentence, it does not jibe with the "available witness" rationale and we find no case law to support it. Indeed, the only pertinent Second Circuit authority we have uncovered is directly to the contrary. See United States v. Brown, 511 F.2d 920, 925-26 (2d Cir.1975); United States v. Super, 492 F.2d 319, 323 (2d Cir.), cert. denied sub nom. Burns v. United States, 419 U.S. 876, 95 S.Ct. 139, 42 L.Ed.2d 115 (1974). Moreover, there was no factual basis for an instruction concerning "equally unavailable" witnesses and "[o]rdinarily it is a mistake to give instructions on subjects not directly in issue in a case." Clark v. Pennsylvania R.R., 328 F.2d 591, 595 (2d Cir.) (quoted with approval in De Chico v. Metro-North Commuter R.R., 758 F.2d 856, 861 (2d Cir.1985) and O'Connell v. National R.R. Passenger Corp., 922 F.2d 1039, 1044 (2d Cir.1991)), cert. denied, 377 U.S. 1006, 84 S.Ct. 1943, 12 L.Ed.2d 1054 (1964). Assuming for the sake of argument that the form instruction concerning equally unavailable witnesses might be appropriate in some cases, this was not such a case. Here, the charge could only be confusing and misleading. See 9A Wright & Miller, Federal Practice and Procedure Sec. 2556 (1995). "[A] failure to grant a request for instructions that are in any respect incorrect and unsound does not constitute error." Clark, supra, 328 F.2d at 595. In short, we think it would have been error for the district court to have charged the jury that it could draw an inference against either party for failing to call a witness who was not available to be called. As stated by Judge Friendly in United States v. Leonard, 524 F.2d 1076, 1084 (2d Cir.1975), cert. denied, 425 U.S. 958, 96 S.Ct. 1737, 48 L.Ed.2d 202 (1976), "[I]t is elementary that to put a trial court in error for declining to grant a requested charge, the proffered instructions must be accurate in every respect." The proposed charge herein did not satisfy this criterion.

In any event, the district court told defense counsel, "If you wish I will give an uncalled witness equally available charge, my charge on that." Thereafter, the court charged the jury as follows:

There are several other persons whose names you have heard during [the] course of this trial and one or more of the attorneys have referred to their absence from this trial. Neither the defendant nor the government could benefit from the absence of such witnesses ... because each side has an equal opportunity, or lack of opportunity, to have them testify. If either side had wanted any of them here, so far as the record shows, they had equal opportunity to get them and absence should not affect your judgment in passing on this case or in determining the guilt or innocence of the defendant.

Bear in mind, of course, that the law never imposes upon the defendant in a criminal case the burden of producing or calling any witnesses or producing any evidence.

Defense counsel argues that this was reversible error. We disagree. When a witness equally available to both sides is not called by either, the trial court may in its discretion give one of two charges: (1) the court may instruct the jury that no unfavorable inference can be drawn against either side; or (2) the court may instruct the jury that under the circumstances the jury may draw an unfavorable inference against both sides. See United States v. Erb, 543 F.2d 438, 444-45 (2d Cir.), cert. denied, 429 U.S. 981, 97 S.Ct. 493, 50 L.Ed.2d 590 (1976). A review of decisions from other circuits discloses that the majority of them favor the first alternative, i.e., no unfavorable inference against either side. See, e.g., United States v. Currier, 454 F.2d 835, 839 (1st Cir.1972); United States v. Busic, 587 F.2d 577, 586 (3d Cir.1978), rev'd and remanded on other grounds, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980); United States v. Fisher, 484 F.2d 868, 870 (4th Cir.1973), cert. denied, 415 U.S. 924, 94 S.Ct. 1428, 39 L.Ed.2d 480 (1974); United States v. Chapman, 435 F.2d 1245, 1247 (5th Cir.1970), cert. denied, 402 U.S. 912, 91 S.Ct. 1392, 28 L.Ed.2d 654 (1971); Rostello v. United States, 36 F.2d 899, 902 (7th Cir.1929); Johnson v. United States, 291 F.2d 150, 155 (8th Cir.), cert. denied, 368 U.S. 880, 82 S.Ct. 130, 7 L.Ed.2d 80 (1961); Wagner v. United States, 264 F.2d 524, 531 (9th Cir.), cert. denied, 360 U.S. 936, 79 S.Ct. 1459, 3 L.Ed.2d 1548...