Simels fails in appeal bid
– claimed his attorney/client relationship with Roger Khan was invaded
(New York Law Journal) 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 yesterday upheld 10 of 12 felony convictions secured in 2009 by prosecutors in the Eastern District U.S. Attorney’s Office who proved that 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 on April 29.
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 Simels for a retainer of $1.4 million, but ultimately pleaded guilty in the drug conspiracy.
Prosecutors went after Simels using a cooperating witness and Drug Enforcement Administration informant, Selwyn Vaughn.
At trial, the government presented five recorded conversations between Vaughn and Simels in the attorney’s office between May and September 2008. In the conversations, Simels could be heard proposing to bribe and threaten potential witnesses against Khan.
The government also produced incriminating conversations between Simels and Khan in the attorney visiting room at the Metropolitan Correctional Center.
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. He was acquitted of a single count of making a false statement at a prison.
An associate of Simels, Arienne Irving, was also convicted of six felonies, but those convictions were later thrown out by Judge Gleeson, who found Irving was not present for interactions between Simels and 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.
On appeal, Simels argued the government invaded his attorney-client relationship with 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 Simels and Khan that the judge allowed as impeachment evidence against Simels.
But he prevailed only on the electronic surveillance equipment counts 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, 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 Khan.
Writing for the Second Circuit, Judge Newman said the evidence showed the equipment was inoperable.
With respect to electronic devices, Judge Newman 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 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.
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.
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. Brownell also handled the appeal.