CA3 — memorandum disposition

Soto v. U.S., No. 05-4493 — This appeal from the denial of a 2255 motion asserts a claim of IAC at trial for failing to challenge the indictment.  Soto had been charged with eleven counts relating to a scheme to rob two banks and an armored car between July 1997 and September 1998.  Soto was convicted and sentenced to 447 months in prison.  His conviction was affirmed on direct appeal, and the U.S. Supreme Court denied certiorari.

In a 2255 motion, Soto argued that trial counsel was ineffective for failing to challenge the indictment as multiplicitous.  Count 1 of the indictment named one conspiracy, he asserted, but the evidence established multiple separate conspiracies.  The district court denied the motion.  The Third Circuit later certified the IAC claim for appeal and appointed counsel to represent Soto.

In fact Soto’s trial counsel did challenge the indictment as duplicitous, as well as the sufficiency of the evidence.  The district court denied both motions.  Counsel did not peform deficiently.  Insofar as counsel should have argued that the evidence impermissibly varied the indictment, the Third Circuit ruled that the evidence in fact established one overarching conspiracy.  Accordingly, trial counsel was not ineffective.  The district court therefore correctly denied the motion.