U.S. v. Simels

• Citation: 654 F.3d 161
• Decision Date: 12 August 2011
• Docket Number: 10–152–cr(XAP).,Docket Nos. 09–5117–cr(L)
• Parties: UNITED STATES of America, Appellee–Cross–Appellant,v.Robert SIMELS, Defendant–Appellant,Arienne Irving, Defendant–Cross–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

654 F.3d 161

UNITED STATES of America, Appellee–Cross–Appellant,

v.Robert SIMELS, Defendant–Appellant,Arienne Irving, Defendant–Cross–Appellee.

Docket Nos. 09–5117–cr(L)

10–152–cr(XAP).

United States Court of Appeals, Second Circuit.

Heard: April 29, 2011.Decided: Aug. 12, 2011.

Barry A. Bohrer, New York, N.Y. (Elkan Abramowitz, James R. Stovall, Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, P.C., New York, N.Y., on the brief), for Defendant–Appellant.Daniel D. Brownell, Asst. U.S. Atty., Brooklyn, N.Y. (Loretta E. Lynch, U.S. Atty. Eastern District of New York, David C. James, Asst. U.S. Atty., Brooklyn, N.Y., on the brief), for Appellee–Cross–Appellant.Before: NEWMAN, CALABRESI, and HALL, Circuit Judges.JON O. NEWMAN, Circuit Judge.

This appeal by a lawyer convicted of offenses involving attempted obstruction of justice implicates issues concerning the Government's use of a confidential informant to pursue an investigation of the lawyer's conduct during his preparation of the defense of his client. Robert Simels appeals the December 12, 2009, judgment of the United States District Court for the Eastern District of New York (John Gleeson, District Judge), sentencing him principally to fourteen years' imprisonment after a jury trial. Simels was convicted of one count of conspiracy to obstruct justice, in violation of 18 U.S.C. § 1512(b)(1), (b)(2)(A); eight counts of attempted obstruction of justice, in violation of 18 U.S.C. § 1512(b)(1), (b)(2)(A); one count of bribery, in violation of 18 U.S.C. § 201(c)(2); and one count each of importation and possession of electronic surveillance equipment, in violation of 18 U.S.C. § 2512(1)(a), (b).

We conclude that, in the circumstances of this case, the Government's use of the informant was entirely proper, that the convictions concerning the surveillance equipment should be vacated, and that the convictions on all other counts should be affirmed. We therefore affirm in part, vacate in part, and remand for entry of a corrected judgment.

Background

The case against Simels concerned his representation of Shaheed Khan, also known as Roger Khan (and occasionally referred to as Shaheed Roger Khan). In June 2006, Khan, a citizen of Guyana, was arrested in Suriname and transported to the United States to face narcotics trafficking charges. Khan was accused of being the leader of a criminal enterprise importing large amounts of cocaine into the United States. He was detained at the Manhattan Correctional Center (“MCC”). Khan hired Simels, a well known defense attorney, agreeing to pay him a retainer of $1.4 million.

The evidence against Simels came primarily from the testimony of Selwyn Vaughn and recorded conversations of meetings between Simels and Vaughn. Vaughn had worked for Khan's paramilitary organization in Guyana, known as the “Phantom Squad,” and became an informant working for the Drug Enforcement Administration (“DEA”) in September 2006.

Vaughn's first contact with Simels occurred in March 2007 as a result of a conversation Vaughn had with Glen Hanoman, a lawyer in Guyana, whom Judge Gleeson found was a member of the conspiracy to obstruct justice. Hanoman told Vaughn that Khan “had” a guard in the prison where Khan was incarcerated and that the guard was prepared to help Khan escape. Vaughn brought this information to the DEA. The DEA instructed Vaughn to contact Khan. Vaughn called Hanoman in Guyana and asked for “contacting information” for Khan's attorney. Apparently receiving Simels's phone number, Vaughn telephoned Simels and said he was a friend of Khan's and hoped to visit him. Simels told Vaughn that Khan was in isolation and that only certain persons could visit him. According to a DEA agent's debriefing report of Vaughn's account of this phone call with Simels, Vaughn informed Simels that “maybe” he “could assist with the defense” of Khan.

In March 2008, federal agents learned that Simels had attempted to speak with David Clarke, a federal prison inmate and potential Government witness against Khan. Simels falsely told prison authorities that he was Clarke's attorney.

In April 2008, Vaughn learned in phone calls with members of Khan's gang in Guyana that Khan wanted Vaughn to speak with Simels. Vaughn notified DEA agents of the messages he had received to contact Simels, and, according to Vaughn's testimony, the agents “directed” him to speak with Simels. On five occasions between May and September 2008, Vaughn met with Simels at Simels's law offices. Vaughn surreptitiously recorded all five meetings. In these meetings, Simels made the statements that formed the basis for his convictions for the obstruction of justice offenses. In brief, he proposed bribing and threatening potential witnesses against his client, Khan. We detail this evidence below in considering Simels's challenge to the sufficiency of the evidence.

In addition to the recordings of Simels's conversations with Vaughn, the Government obtained court authorization to record communications between Simels and Khan in the attorney's visiting room at the MCC. The Government recorded a July 29, 2008, meeting between Simels and Khan. On September 10, DEA agents executed a warrant to search Simels's office and seized records, money, and computers. That same day, Simels was arrested along with his co-defendant Arienne Irving, an associate in his office.

On September 18, 2008, the grand jury indicted Simels and Irving for various offenses and returned a superseding indictment on July 10, 2009. Count One charged a conspiracy to influence and prevent the testimony of witnesses in Khan's upcoming trial and to cause and induce witnesses to withhold testimony from that trial, in violation of 18 U.S.C. §§ 1512(b)(1), 1512(b)(2)(A), 1512(i), 1512(j), 1512(k), and 3551 et seq. Counts Two through Nine charged attempts to obstruct justice with respect to each of eight potential witnesses in Khan's trial, in violation of 18 U.S.C. §§ 1512(b)(1), 1512(b)(2)(A), 1512(i), 1512(j), 2, and 3551 et seq.¹ Count Ten charged bribery of a potential witness in violation of 18 U.S.C. §§ 201(c)(2), 2, and 3551 et seq. Count Eleven charged Simels alone with making a false statement, in violation of 18 U.S.C. §§ 1001(a)(2) and 3551 et seq. by falsely claiming to prison officials that he represented a prison inmate, later identified as David Clarke. Count Twelve charged sending in foreign commerce electronic devices designed to intercept electronic communications, in violation of 18 U.S.C. §§ 2512(1)(a), 2, and 3551 et seq., and Count Thirteen charged possession of such devices, in violation of 18 U.S.C. §§ 2512(1)(b), 2, and 3551 et seq.

On March 16, 2009, Khan, Simels's client, pled guilty to narcotics, weapons, and obstruction of justice offenses. In his plea agreement he waived any claims that the Government's investigation violated his rights under the Fourth, Fifth, and Sixth Amendments and also waived all work-product and attorney-client privilege claims with respect to the investigation of Simels.

Before Simels's trial, he moved to suppress the MCC recordings for failure to comply with the minimization requirements of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 et seq. (“Title III”). The District Court granted the suppression motion. See United States v. Simels, No. 08–CR–640, 2009 WL 1924746 (E.D.N.Y. July 2, 2009) (“ Simels I ”).

At trial, Simels's counsel told the jury in his opening statement that Simels would testify in his own defense, which he did. The Government moved in limine to use portions of the previously-suppressed MCC tapes to impeach Simels on cross-examination, and the District Court granted that motion. See United States v. Simels, No. 08–CR–640, 2009 WL 4730232, at *5–*11 (E.D.N.Y. Dec. 4, 2009) (“ Simels II ”).

Simels was found guilty on all counts except Count Eleven, charging a false statement at a prison. Irving was found guilty on the conspiracy count, two attempted obstruction counts, and the two counts relating to electronic surveillance devices. The District Court granted her post-trial motion for a judgment of acquittal on these counts. See United States v. Irving, 682 F.Supp.2d 243, 249 (E.D.N.Y.2010). The Government's cross-appeal, No. 10–152, which sought to challenge that ruling, was dismissed by stipulation.

Simels was sentenced primarily to a prison term of 14 years' imprisonment.

Discussion

Simels makes several arguments on appeal: (1) the Government's use of Vaughn invaded Simels's attorney-client relationship with Khan in violation of the Sixth Amendment, (2) the evidence was insufficient to support conviction on five of the eight substantive attempted obstruction of justice counts, (3) several of the District Court's evidentiary rulings deprived Simels of a fair trial, (4) the District Court erred in permitting use of the suppressed recorded conversation to impeach Simels, (5) the electronic surveillance device counts should have been dismissed, and (6) the sentence was procedurally and substantively unreasonable.

I. Sixth Amendment Claim

The use of a 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. “Unquestionably, government interference in the relationship between attorney and defendant may violate the latter's right to effective assistance of counsel.” United States v. Ginsberg, 758 F.2d 823, 833 (2d Cir.1985). Recognizing the potential issues, the Government sought to create what it calls a “fire wall” between the agents investigating obstruction offenses by Simels and the team of prosecutors and agents involved in the criminal case against Simels's client, Khan. The resulting procedures were designed to prohibit disclosure of information collected...