U.S.A v. Irving

• Decision Date: 08 February 2010
• Docket Number: No. 08-CR-640 (JG),08-CR-640 (JG)
• Citation: 682 F.Supp.2d 243
• Parties: UNITED STATES of America, v. Arienne IRVING, Defendant
• Court: U.S. District Court — Eastern District of New York

682 F.Supp.2d 243

UNITED STATES of America,

v.Arienne IRVING, Defendant

No. 08-CR-640 (JG)

United States District Court E.D. New York

Decided: Feb. 8, 2010

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Benton J. Campbell, United States Attorney, by Daniel D. Brownell, Steven L. DAlessandro, Morris J. Fodeman, Brooklyn, NY, for the United States of America,

Law Offices of Javier A. Solano, PLLC, by Javier A. Solano, Lawrence K.W. Berg, New York, NY, for Defendant Arienne Irving.

MEMORANDUM AND ORDER

JOHN GLEESON, District Judge:

PRELIMINARY STATEMENT

On August 20, 2009, a jury found defendant Arienne Irving guilty of five of the twelve counts charged in the indictment against her. Irving was convicted of conspiracy to obstruct justice (Count One), two counts of attempted witness tampering (Counts Three and Five, pertaining to David Clarke and Vijai Jaignarine, respectively), and importation and possession of eavesdropping equipment (Counts Twelve and Thirteen, respectively). The jury acquitted Irving of six additional witness tampering counts (Counts Two, Four, Seven, Eight and Nine, pertaining to Selwyn Vaughn, George Allison, Leslyn Camacho, Alicia Jagnarain and Farrah Singh, respectively) and of bribing Leslyn Camacho (Count Ten) ¹. Irving moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, or, in the alternative, for a new trial pursuant to Federal Rule of Criminal Procedure 33. On December 4, 2009, I granted the motion for a judgment of acquittal, with a promise that this opinion would follow.

Though the details of the evidence are important, and they are discussed below, the overview of the case is simply stated. Irving, an attorney, worked for her co-defendant, prominent criminal defense attorney Robert Simels. The charges in the case arose out of their representation of Roger "Shaheed" Khan in United States v. Shaheed Khan, 06-CR-255 (DLIVVP) ("Khan "). Khan, a citizen of Guyana with ties to high-ranking government officials in that country, was indicted on narcotics trafficking charges in April of 2006. He was arrested in June 2006 in Suriname and transported to the United States to face those charges before the Honorable Dora L. Irizarry. Simels first appeared as counsel for Khan in August of 2006.

Slightly more than two years later, while the Khan case was still awaiting trial, Simels, Khan and Irving were arrested in this case and charged with conspiring to obstruct justice in the Khan case.

The evidence at trial showed that Simels, who is now 62 years old, was a gifted criminal defense lawyer. In exchange for the $1.4 million retainer Khan gave Simels, Khan got a lawyer who immersed himself completely in the case and did all the things top-flight lawyers are supposed to do. Simels's encyclopedic knowledge of every aspect of the Khan case was apparent from the evidence at trial. He made multiple visits to Guyana, where most of the events giving rise to the charges against Khan occurred and where much of Simels's investigative work needed to be done. Simels sought to learn every detail he could, not only about the prospective witnesses against Khan, but about anyone who knew those witnesses as well, as they could potentially become sources of impeachment material. Because the information net was cast so widely by Simels, his work was labor intensive and required both organizational skills and record-keeping assistance.

Unfortunately, another thing the evidence proved—just as convincingly as the first—was that Simels supplemented his arsenal of investigative and forensic skills with illegal tactics. The opportunity to do so in the Khan case presented itself in May of 2008 in the person of Selwyn Vaughn. In less than four months' time, Simels and Irving would be arrested in this case.

Simels believed that Vaughn was still a loyal member of Khan's Guyanese paramilitary organization, when in fact Vaughn was a paid informant working with the Drug Enforcement Administration ("DEA"). Believing incorrectly that Vaughn would assist his corrupt efforts to undermine the Khan case, Simels, among

other things:

—made it clear that he would pay money to ensure that David Clarke, the key witness against Khan, "suddenly just g[o]t amnesia";

—regarded the neutralization of Clarke by cross-examination as but one option, another being the illegal neutralization of him by bribery or intimidation;

—authorized Vaughn to use all violent means necessary to silence Clarke, except murdering Clarke's mother;

—authorized Vaughn to use all violent means necessary, without limitation, to silence or obtain the cooperation of George Allison;

—agreed to bribe Clarke's girlfriend, Leslyn Camacho, to induce her to give false testimony, and had the bribe money and a false affidavit waiting for her on the day he was arrested.

Irving began her employment with Simels in December 2006, several months after he was retained by Khan. She was 28 years old at the time. Irving was the last of a series of relatively inexperienced associates hired by Simels to assist him in his practice. The trial evidence shed enough light on her functions and salary to support the conclusion that she was more of a paralegal than a law associate. In any event, despite her close physical proximity to Simels in his small law offices, and despite her close working relationship with him on the Khan case, Irving was not present for the criminal interactions between Simels and Vaughn. Rather, the government sought to connect her to them through a handful of her actions during the relevant time period. Those actions are discussed in detail below. They support an inference that Irving was present at various times while Simels's criminal conduct was under way, and even that Irving's own actions assisted Simels's crimes. But the evidence fell considerably short of proving beyond a reasonable doubt that Irving had the knowledge and intent necessary to establish her participation in any of the attempted witness tampering offenses or in the conspiracy to tamper with witnesses.

Counts Twelve and Thirteen were unusual. They charged Irving with importing and possessing eavesdropping equipment Khan had owned in Guyana. Khan had used it in Guyana to intercept the telephone conversations of others. The recorded conversations were stored on a laptop Khan had previously provided to Simels. When Simels told the Khan prosecutors of his intention to offer the recorded conversations, they naturally wanted to inspect the original recordings, and they inquired about the equipment that was used to make them. Simels and Irving thus undertook to locate the equipment in Guyana and have it sent to them in New York so it would be available in the event they needed it to offer the recordings in the Khan case. The government did not allege in this case that the equipment was obtained for any purpose other than to ensure that Khan could successfully offer at trial in the Khan case the tape recordings he intercepted in Guyana. Nevertheless, the government charged Simels and Irving with unlawfully importing and possessing the equipment that the prosecutors in Khan, in effect, caused them to import and possess. The evidence against Irving at trial was insufficient to prove beyond a reasonable doubt all of the elements of these offenses.

Finally, Rule 29(d) requires me to determine whether a motion for a new trial should be granted if the judgment of acquittal explained here is later vacated or reversed. I conclude that the alternative relief of a new trial is appropriate in this case, and conditionally grant Irving's Rule 33 motion.

FACTUAL BACKGROUND

As mentioned above, Irving began her employment as an associate at the Robert Simels Law Firm in December 2006. The law firm's offices were housed in a converted three-bedroom apartment in the Upper East Side of Manhattan. At the time of Irving's arrest, two attorneys—Simels and Irving—worked at the office in addition to Simels's secretary Juanita Singh. Simels's and Irving's offices were next to each other.

Selwyn Vaughn, who is also known as "Fineman," approached Simels in the spring of 2008 and offered his assistance in preparing for Khan's trial. Vaughn recorded five meetings with Simels between May 13, 2008 and September 10, 2008. The first occurred in the conference room in Simels's offices and the rest were held in Simels's personal office. Irving attended the first meeting and portions of the third. In addition to those personal contacts with Vaughn, during the same period, Irving communicated with him electronically and telephonically.

There is an important and fairly distinctive aspect of the government's case against Irving that is obscured by the chronological description of the evidence set forth below. The case did not turn on witness credibility in any meaningful way. Neither of the two witnesses to the events giving rise to the charges—Vaughn and Simels himself—implicated Irving in Simels's crimes. Nor did the tape recordings of the meetings between Vaughn and Simels (and, at times, Irving) establish her participation in those crimes. Indeed, after hearing Vaughn's direct examination and all of the tapes, I asked the government if it had more evidence against Irving. Tr. 496. The following day, as the government's case was winding down, the obvious dearth of evidence against Irving caused me to ask the government again whether there would be more evidence against her. Tr. 804-05. The government's response to my inquiry accurately stated that there would be computer records and documents offered toward the end of its case from which it would argue that Irving knowingly, and with the requisite intent to obstruct the Khan case, as-sisted Simels and Khan in their crimes.

Thus, there is no danger here of intruding on a jury's credibility determinations. And though there are a few instances in which the government contends...