United States v. Simels, No. 09-5117-cr (2d Cir. August 12, 2011) (Newman, Calabresi, Hall, CJJ)
Former defense attorney Robert Simels appealed his conviction, after a jury trial, of various counts relating to a witness-tampering scheme, and his fourteen-year sentence. The circuit dismissed two minor counts as insufficient but otherwise affirmed.
The case arose from Simels’ representation of one Shaheed Khan, a Guyanese narcotics trafficker, who was detained at the MCC. The case against Simels had three main components. First, he lied to prison officials in an effort to speak to another prisoner, David Clarke, whom he believed to be a witness against Khan, by saying he was Clarke’s attorney. Second, an associate of Khan’s, Selwyn Vaughn, had several conversations with Simels, in which Simels discussed bribing and threatening potential witnesses against Khan. Vaughn had approached the DEA when he learned that Simels was reaching out to him, and wore a wire during these discussions. Third, the government recorded conversations between Simels and Khan in an attorney-client visiting room at the MCC.
Khan ultimately pled guilty and, in doing so, waived any claim that the government violated the Fourth, Fifth and Sixth Amendments in investigating him. He also also waived his work-product and attorney-client privilege claims with respect to the investigation of Simels.
Simels raised a number of significant issues on appeal about the way the evidence against him was gathered, but the circuit affirmed.
Simels’ first argument was based on the Sixth Amendment. The court agreed that the use of an informant to meet with him and discuss his defense of Khan “potentially raise[d] serious issues concerning the Sixth Amendment rights of the lawyer’s client and other issues arising from intrusion into the attorney-client relationship.”
Simels asserted third-party standing over Khan’s Sixth Amendment rights. But the court, having identified the importance of the standing question, did not really resolve it. The court held that the “law is unclear” on the point, but would “assume that Simels can assert a Sixth Amendment right on behalf of his client” for the purposes of his own appeal.
As to the merits of the Sixth Amendment claim, the opinion is similarly inconclusive. It wonders whether investigators who believe that an attorney is attempting to obstruct justice in the course of representing a client “are constitutionally required to have a reasonable basis for their suspicion of possible obstruction before sending an informant to contact the lawyer,” but stops short of holding that the requirement exists. Instead, it concludes only that “the existence of such a basis adequately allays any concern that the attorney-client relationship has been improperly invaded.”
And here, the district court’s finding that the DEA had reasonable basis was adequate. It relied on Simel’s deception so that he could meet with Clarke, and Vaughn’s initial report to the DEA that he believed that Khan and Simels wanted to recruit him to assist in intimidating Clarke and others.
Simels also raised an interesting wiretap issue. The district court had held that the government obtained the recordings of Simels and Khan at the MCC in violation of Title III and suppressed them. But the court allowed the government to use the recordings to impeach Simel on cross-examination. The circuit again affirmed. Although 18 U.S.C. § 2515 provides that illegally obtained wire communications may not be “received in evidence in any trial,” Title III was not meant to provide more protection than the Fourth Amendment, and it has long been recognized that evidence obtained in violation of the Fourth Amendment can be used for impeachment purposes.
The circuit had no trouble finding that there was sufficient evidence to support the bulk of the counts of conviction – the attempted obstruction of various individual witnesses – but agreed that two counts relating to the importation and possession of certain electronic surveillance devices had to be tossed. The evidence established that the devices were inoperable, and the circuit concluded that the statute – 18 U.S.C. 2512 – which covers devices “which can be used to intercept” communications, excludes inoperable equipment. But, since Simels received time served and no supervised release on these counts, and since there was no “prejudicial spillover” affecting the other counts, all that was necessary was a limited remand for the entry of a corrected judgment reflecting the dismissal of these counts.
Of Simels’ three sentencing claims, one stands out. He received a fourteen-year sentence and, at his request, the judge recommended that he be housed at the camp at FCI Otisville. At the time of sentencing, the judge was unaware that the BOP will not designate a prisoner to a camp, absent a BOP waiver, if the defendant is sentenced to more than ten years’ imprisonment. The judge only learned this after Simels was sentenced. Even so, for reasons unexplained, “the sentence was not imposed under a misunderstanding of facts that would impair the validity of the sentence.”