United States v. Simels
2011 U.S. App. LEXIS 16593
| 2d Cir. | 2011Background
- Simels, a defense attorney, was convicted mainly for obstructing Khan's trial via bribery and witness intimidation, based on DEA informant Vaughn's recordings.
- Vaughn, a former Khan associate, cooperated with DEA; he met Simels multiple times at his office, which were secretly recorded.
- Authorities also recorded a July 2008 meeting between Simels and Khan in MCC, and seized computers and equipment during a 2008 search.
- Counts Twelve and Thirteen (electronic surveillance device offenses) were later vacated; Simels was sentenced to 14 years with time served on some counts.
- The district court admitted the previously suppressed MCC tapes for impeachment, and Simels challenged several evidentiary rulings at trial.
- On appeal, the Second Circuit affirmed counts One–Ten, vacated Twelve–Thirteen, and remanded for a corrected judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sixth Amendment intrusion by informant | Simels argues Vaughn violated Khan's Sixth Amendment rights and tainted defense access. | Government claims no predication or privilege violation; fire wall preserved; no prejudice to Khan. | Assumed standing; no Sixth Amendment violation based on basis for inquiry. |
| Sufficiency and evidentiary support for obstruction counts | Insufficient nexus between conduct and judicial proceeding for several counts. | Evidentiary record supports intent to influence witnesses; safe harbor defense rejected. | Evidence supports most counts; five challenged counts upheld with nexus established. |
| Use of suppressed Title III tape for impeachment | Impeachment with illegally obtained recordings violates Title III. | Walder-style impeachment allowed; circuits permit use for impeachment despite suppression. | Admissible for impeachment consistent with Walder rationale. |
| Electronic surveillance device offenses | Base device inoperable; not a device under 2512(1). | Device could be designed to intercept; mens rea requires design-for-surveillance. | Counts Twelve and Thirteen vacated; remanded for corrected judgment. |
| Sufficiency/severity of sentence | 14-year term excessive given age and lack of prior record. | Judicial reasoning supported by conduct; sentence within guidelines and justified. | Sentence upheld as substantively reasonable within guidelines. |
Key Cases Cited
- United States v. Ginsberg, 758 F.2d 823 (2d Cir. 1985) (Sixth Amendment intrusion into attorney-client relationship considerations)
- Walder v. United States, 347 U.S. 62 (Supreme Court 1954) (impeachment use of illegally obtained evidence under Walder rationale)
- United States v. Mastroianni, 749 F.2d 900 (1st Cir. 1984) (need for predication in obstruction investigations)
- Arthur Andersen LLP v. United States, 544 U.S. 696 (S. Ct. 2005) (nexus between conduct and judicial proceeding in obstruction cases)
- U.S. v. Kaplan, 490 F.3d 110 (2d Cir. 2007) (nexus requirement for obstruction cases)