Mark Hamblett, New York Law Journal, On Monday August 15, 2011, 3:04 am EDT
Robert Simels failed to persuade a federal appeals court to overturn his convictions for conspiracy, attempted obstruction of justice and bribery, thus ensuring that the criminal defense attorney will serve a 14-year prison term for conspiring to intimidate and corrupt witnesses against his drug smuggling client.
The U.S. Court of Appeals for the Second Circuit on Friday upheld 10 of 12 felony convictions secured in 2009 by Eastern District prosecutors who proved that Mr. Simels tried to prevent potential witnesses from testifying against his client, Guyanese drug smuggler Shaheed "Roger" Khan.
Single counts of importation of electronic surveillance equipment and possession of electronic surveillance equipment were vacated by Judges Jon O. Newman, Guido Calabresi and Peter W. Hall, who heard oral arguments in United States v. Simels, 09-5117-cr, on April 29.
Mr. Khan was arrested in Suriname in 2006 and brought to the United States for trial as the accused leader of a criminal enterprise importing large amounts of cocaine. He hired the brash Mr. Simels for a retainer of $1.4 million, but ultimately pleaded guilty in the drug conspiracy.
Prosecutors went after Mr. Simels using a cooperating witness and Drug Enforcement Administration informant, Selwyn Vaughn.
At trial, the government presented five recorded conversations between Mr. Vaughn and Mr. Simels in the attorney's office between May and September 2008. In the conversations, Mr. Simels was heard proposing to bribe and threaten potential witnesses against Mr. Khan.
The government also produced incriminating conversations between Mr. Simels and Mr. Khan in the attorney visiting room at the Metropolitan Correctional Center.
Mr. Simels, who testified at his 10-day trial, was convicted on one count of conspiracy to obstruct justice, eight counts of attempted obstruction of justice, a single count of bribery and the two surveillance equipment counts before Eastern District Judge John Gleeson (NYLJ, Aug. 21, 2009). He was acquitted of a single count of making a false statement at a prison.
An associate of Mr. Simels, Arienne Irving, also was convicted of six felonies, but those convictions were later thrown out by Judge Gleeson, who found Ms. Irving was not present for interactions between Mr. Simels and Mr. Vaughn. Last year, the Eastern District U.S. Attorney's Office announced without explanation that it was withdrawing its appeal of Judge Gleeson's ruling (NYLJ, Sept. 28, 2010).
On appeal, Mr. Simels argued that the government invaded his attorney-client relationship with Mr. Khan, that evidence on five counts was insufficient, and that several of Judge Gleeson's rulings deprived him of a fair trial, including his decision allowing a suppressed recorded conversation between Mr. Simels and Mr. Khan that the judge allowed as impeachment evidence against Mr. Simels.
But he prevailed only on the electronic surveillance equipment counts, 18 U.S.C. �2512(1)(a) and (b), which concerned a "base" that allegedly could be used to surreptitiously intercept radio signals between phones and cell towers as well as two laptop computers.
The laptops, Mr. Simels testified, were given to Mr. Khan by Guyanese government officials to store intercepted conversations, and one of them contained a conversation involving David Clarke, a potential witness against Mr. Khan.
Writing for the Second Circuit, Judge Newman said the evidence showed the equipment was inoperable.
With respect to electronic devices, he said, "Congress covered only those 'which can be used' to intercept communications and added, as a mens rea requirement, that the device be known to have been designed for the purpose of surreptitious interception."
The ruling was of little help to Mr. Simels, however, because Judge Gleeson had sentenced him on the surveillance equipment counts to time served and no supervised release, making it unnecessary for the court to resentence him.
Mr. Simels' Sixth Amendment claim drew the concern of the Second Circuit, but not enough to make a difference.
"The use of the government informant to meet with a defense lawyer and discuss the defense of a pending criminal case against the lawyer's client potentially raises serious issues concerning the Sixth Amendment rights of the lawyer's client and other issues arising from intrusion into the attorney-client relationship," Judge Newman said.
Judge Gleeson had suppressed the tape-recorded conversations between Mr. Simels and Mr. Khan at the detention center even though prosecutors had obtained court approval to use a special minimization procedure? or "fire wall"?to separate agents investigating the Simels obstruction offenses from those prosecutors and agents pursuing the criminal case against Mr. Khan.
Judge Gleeson said that, despite the erection of a fire wall and the establishment of a "taint team" to ensure that evidence against Mr. Simels did notcompromise the rights of Mr. Kahn or his case, the terms of the special minimization procedure "called for the interception of all communications."
An "agent cannot minimize the interception of communications that should not be intercepted by intercepting all communications and sorting them out later," Judge Gleeson said.
Despite the suppression of the detention center tapes, Judge Gleeson allowed them to be used against Mr. Simels once he took the witness stand, a ruling endorsed by the Second Circuit yesterday.
"All of the circuits that have considered the issue have held that unlawfully obtained wiretap evidence may be used by the prosecution for impeachment in a criminal case," Judge Newman said.
In his appeal, Mr. Simels did not argue that the fire wall had been breached. Instead, he argued the Vaughn testimony and recorded conversations should have been suppressed, including one conversation where Mr. Vaughn discussed witnesses, saying, "We either try to buy them or we gotta drive fear in them," and Mr. Simels responds, "I agree with you."
Mr. Simels said the reason the Vaughn testimony and conversations should have been kept out of evidence was that the government had "deliberately" directed an informant "to pose as part of the defense and the invasion prejudices the defendant."
Judge Newman said that the possibility that a defense attorney attempted to obstruct justice presented the government with a "sensitive choice" between intruding on the attorney-client relationship?and in so doing, wrecking its case against the defendant?and risking "serious harm to witnesses."
Here, however, he said the government had a "substantial basis" to determine whether Mr. Simels was attempting to obstruct justice, in part because he visited the potential government witness, Mr. Clarke, in prison, claiming he was Mr. Clarke's lawyer.
"Simels discounts the significance of his false statement to prison authorities because, he contends, he was not required to be counsel for Clarke in order to visit him," Judge Newman said. "Nevertheless, the fact remains that he lied about his role as Clarke's attorney, and, at least in the context of assessing the government's basis for investigating an attorney, a lie to criminal justice officials does not lose its capacity to arouse suspicion just because the lie might have been unnecessary."
Moreover, Judge Newman said, "there is no claim that privileged information was passed to the government or that prejudice to Khan's defense resulted from Vaughn's contacts with Simels, circumstances we have indicated would establish a Sixth Amendment violation."
Mr. Simels, a 1974 graduate of New York Law School, began his career as a special assistant attorney general investigating public corruption. He eventually became one of New York's more prominent defense attorneys, representing such clients as Henry Hill, the gangster made famous by the film "Goodfellas"; drug-trafficker Kenneth "Supreme" McGriff; and former New York Jet Mark Gastineau.
Mr. Simels was represented at trial by Gerald Shargel, and on appeal by Barry Bohrer of Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, along with Elkan Abramowitz and James R. Stovall of that firm.
Handling the prosecution's case at trial were Eastern District Assistant U.S. Attorneys Steven D'Alessandro and Morris Fodeman, now in private practice, and Daniel Brownell. Mr. Brownell also handled the appeal.
@|Mark Hamblett can be contacted at mhamblett@alm.com.
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