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Saturday, August 13, 2011

Federal Appeals Court Upholds Lawyer's Guilt in Witness Threat Plot

Circuit Upholds Convictions Against Defense Attorney Simels
The New York Law Journal by Mark Hamblett  -  August 15, 2011

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.

SEE BACKGROUND/RELATED STORIES:

Revisited Legal Strategy: Just Have Witness Killed 

19 comments:

Anonymous said...

All gangsters are not lawyers but all lawyers are gangsters!!!

Anonymous said...

in order for half of the lawyers to survive they had to become part of the CBC

I didn't know you were not allowed to threaten or intimidate witnesses....
where do I call to file a complaint and have them shot!

Anonymous said...

it is not actually about the law, it is about using the law, for whom and what they want and deal making.......

Anonymous said...

can I have the Sheriff Department put under surveilance to find the crook? I want them and their friends wire tapped!
bullying lying sob's

Anonymous said...

I have a question:

Many politicians have to provide financial statements as a requirement of their elected position.

Does anyone know if judges are required to do this also?

It would be really interesting to see just how poor these guys are and if they do, in fact, get poorer while they are serving.

Just want to throw this idea out there.

Anyone know the answer?

Anonymous said...

Judges do and so do their chief and deputy chief clerks etc...but I don't know how diligent OCA IS about accuracy.

I know for a fact that a certain chief clerk, who was also a deputy clerk for 30 yrs..recieved gifts from bail bondsmen,attys and judges wives....and was also participating in purchasing stolen clothes from a well known booster the entire time she was working in both jobs...and still works there.
I bet she continues to rack up the gifts as she is one of the most selfish, entitled people I have ever encountered...and that includes criminals that come to court.

The AG'S office, when Governor Cuomo was the MAN... is well aware of this chief clerk's criminal conduct,with a certified affidavit, and a 2nd witness statement attached to him in his file....but he has ignored it for 3 yrs. As a matter of fact...Cuomo's politics seem to have condoned this behavior, all the while those with the same conduct or less, are seeing convictions and prison time...and the Governor appears to say....that is all ok by him!

I guess GOVERNOR CUOMO has misguided standards for ethics that exist only for the paper he writes it on, the people in politics he likes or what he reports to the media...who all seem to believe his alleged ethical behind!

Does that answer your question...as you are better off not knowing how corrupt OCA really is... as it only creates anger that you cannot find a release for in the form of Judicial Government accountability.

Anonymous said...

If a release is needed, then there is no way it will be publicly available. If you have to use FOIL, they will just say that can't be released because of privacy or some other made up reason.

It would be interesting to see the property and business interests.

Why do candidates release it to the media? At least that makes it public and makes them accountable.

Anonymous said...

RELEASE THRU SHOOTING !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Anonymous said...

@4:18 Cuomo doesn't have misguided ethics. Cuomo has no ethics, no honor and no decency. Cuomo was aware of all the ethics and corruption charges filed in federal and Sate courts and defended the crooks. Cuomo acts the same as the anti-gay politician found soliciting gay sex. Cuomo is publicly prancing against corruption and crime while privately is the primary cog covering up the corruption and crime in NY State both in the courts and elsewhere. Cuomo goes beyond hypocrite to being the Devil in sheep's clothing as Governor.

Anonymous said...

Let us see Cuomo's "Ethics " now he was just notified of another false arrest, this time with bruises, by the wonderful Niagara County Sheriff's and their friends and since they love to file false instruments around here, and never get charged.....let us see what he does!

Anonymous said...

Let us see Cuomo's "Ethics " now he was just notified of another false arrest, this time with bruises, by the wonderful Niagara County Sheriff's and their friends and since they love to file false instruments around here, and never get charged.....let us see what he does!

Anonymous said...

bite me you fat fuk insurance cheat you are going under Federal Investigaton!

Anonymous said...

bite me you fat fuk insurance cheat you are going under Federal Investigaton!

Anonymous said...

Sedita arrest Violante for allowing this gang of liars to continue to file false insurnace claims while they lie at the Town, Sheriff's,DA to harm whomever they want!

Anonymous said...

this is the reason these Judges, Sheriff's cover things up, and violate people's rights........
Because they realize they have been had by a bunch of liars!

Anonymous said...

next time you want to sit on your front porch, prance around your front yard planning your next attack by your bro's down there at the Sheriff's Department, don't be so obvious.....you are predicatble and absolute trash!

Anonymous said...

sorry sheriffs and DA that your bro's lied to you but that is your problem not mine! it is time the law is changed so that pieces of shit like this never use the system again! what is this guy running an extortion ring...
does he do this to get something on someone else so he can get favors done! backstabbing, bloodsucking, double crossing piece of garbage!

Anonymous said...

sorry sheriffs and DA that your bro's lied to you but that is your problem not mine! it is time the law is changed so that pieces of shit like this never use the system again! what is this guy running an extortion ring...
does he do this to get something on someone else so he can get favors done! backstabbing, bloodsucking, double crossing piece of garbage!

Anonymous said...

sorry sheriffs and DA that your bro's lied to you but that is your problem not mine! it is time the law is changed so that pieces of shit like this never use the system again! what is this guy running an extortion ring...
does he do this to get something on someone else so he can get favors done! backstabbing, bloodsucking, double crossing piece of garbage!

Blog Archive

See Video of Senator John L. Sampson's 1st Hearing on Court 'Ethics' Corruption

The first hearing, held in Albany on June 8, 2009 hearing is on two videos:


               Video of 1st Hearing on Court 'Ethics' Corruption
               The June 8, 2009 hearing is on two videos:
         
               CLICK HERE TO SEE Part 1
               CLICK HERE TO SEE Part 2