United States v. Simels

09-5117-cr
U.S. v. Simels

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2010

Heard: April 29, 2011 Decided: August 12, 2011

Docket Nos. 09-5117-cr(L), 10-152-cr(XAP)

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UNITED STATES OF AMERICA,
Appellee-Cross-Appellant,

v.

ROBERT SIMELS,
Defendant-Appellant,

ARIENNE IRVING,
Defendant-Cross-Appellee.
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Before: NEWMAN, CALABRESI, and HALL, Circuit Judges.
Appeal from the December 8, 2009, judgment of the United States

District Court for the Eastern District of New York (John Gleeson,

District Judge), sentencing a lawyer for attempted obstruction of

justice and bribery and for importing electronic surveillance devices.

Appellant challenges, among other things, the Government’s use of a

confidential informant to meet with the lawyer and discuss the defense

of the lawyer’s client. These meetings, which were recorded, revealed

the lawyer’s plans for the bribery and intimidation of potential trial

witnesses against his client, who subsequently pled guilty.

Convictions on counts relating to attempted obstruction of

justice and bribery affirmed; counts relating to electronic

surveillance devices vacated; and case remanded for entry of a

corrected judgment.
 Barry A. Bohrer, New York, N.Y. (Elkan
Abramowitz, James R. Stovall, Morvillo,
Abramowitz, Grand, Iason, Anello &
Bohrer, P.C., New York, N.Y., on the
brief), for Defendant-Appellant.

Daniel D. Brownell, Asst. U.S. Atty.,
Brooklyn, N.Y. (Loretta E. Lynch, U.S.
Atty. Eastern District of New York,
David C. James, Asst. U.S. Atty.,
Brooklyn, N.Y., on the brief), for
Appellee-Cross-Appellant.

JON O. NEWMAN, Circuit Judge.

This appeal by a lawyer convicted of offenses involving attempted

obstruction of justice implicates issues concerning the Government’s

use of a confidential informant to pursue an investigation of the

lawyer’s conduct during his preparation of the defense of his client.

Robert Simels appeals the December 12, 2009, judgment of the United

States District Court for the Eastern District of New York (John

Gleeson, District Judge), sentencing him principally to fourteen

years’ imprisonment after a jury trial. Simels was convicted of one

count of conspiracy to obstruct justice, in violation of 18 U.S.C.

§ 1512(b)(1), (b)(2)(A); eight counts of attempted obstruction of

justice, in violation of 18 U.S.C. § 1512(b)(1), (b)(2)(A); one count

of bribery, in violation of 18 U.S.C. § 201(c)(2); and one count each

of importation and possession of electronic surveillance equipment, in

violation of 18 U.S.C. § 2512(1)(a), (b).

We conclude that, in the circumstances of this case, the

Government’s use of the informant was entirely proper, that the

convictions concerning the surveillance equipment should be vacated,

and that the convictions on all other counts should be affirmed. We

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therefore affirm in part, vacate in part, and remand for entry of a

corrected judgment.

Background

The case against Simels concerned his representation of Shaheed

Khan, also known as Roger Khan (and occasionally referred to as

Shaheed Roger Khan). In June 2006, Khan, a citizen of Guyana, was

arrested in Suriname and transported to the United States to face

narcotics trafficking charges. Khan was accused of being the leader

of a criminal enterprise importing large amounts of cocaine into the

United States. He was detained at the Manhattan Correctional Center

(“MCC”). Khan hired Simels, a well known defense attorney, agreeing

to pay him a retainer of $1.4 million.

The evidence against Simels came primarily from the testimony of

Selwyn Vaughn and recorded conversations of meetings between Simels

and Vaughn. Vaughn had worked for Khan’s paramilitary organization in

Guyana, known as the “Phantom Squad,” and became an informant working

for the Drug Enforcement Administration (“DEA”) in September 2006.

Vaughn’s first contact with Simels occurred in March 2007 as a

result of a conversation Vaughn had with Glen Hanoman, a lawyer in

Guyana, whom Judge Gleeson found was a member of the conspiracy to

obstruct justice. Hanoman told Vaughn that Khan “had” a guard in the

prison where Khan was incarcerated and that the guard was prepared to

help Khan escape. Vaughn brought this information to the DEA. The

DEA instructed Vaughn to contact Khan. Vaughn called Hanoman in

Guyana and asked for “contacting information” for Khan’s attorney.

Apparently receiving Simels’s phone number, Vaughn telephoned Simels

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and said he was a friend of Khan’s and hoped to visit him. Simels

told Vaughn that Khan was in isolation and that only certain persons

could visit him. According to a DEA agent’s debriefing report of

Vaughn’s account of this phone call with Simels, Vaughn informed

Simels that “maybe” he “could assist with the defense” of Khan.

In March 2008, federal agents learned that Simels had attempted

to speak with David Clarke, a federal prison inmate and potential

Government witness against Khan. Simels falsely told prison

authorities that he was Clarke’s attorney.

In April 2008, Vaughn learned in phone calls with members of

Khan’s gang in Guyana that Khan wanted Vaughn to speak with Simels.

Vaughn notified DEA agents of the messages he had received to contact

Simels, and, according to Vaughn’s testimony, the agents “directed”

him to speak with Simels. On five occasions between May and September

2008, Vaughn met with Simels at Simels’s law offices. Vaughn

surreptitiously recorded all five meetings. In these meetings, Simels

made the statements that formed the basis for his convictions for the

obstruction of justice offenses. In brief, he proposed bribing and

threatening potential witnesses against his client, Khan. We detail

this evidence below in considering Simels’s challenge to the

sufficiency of the evidence.

In addition to the recordings of Simels’s conversations with

Vaughn, the Government obtained court authorization to record

communications between Simels and Khan in the attorney’s visiting room

at the MCC. The Government recorded a July 29, 2008, meeting between

Simels and Khan. On September 10, DEA agents executed a warrant to

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search Simels’s office and seized records, money, and computers. That

same day, Simels was arrested along with his co-defendant Arienne

Irving, an associate in his office.

On September 18, 2008, the grand jury indicted Simels and Irving

for various offenses and returned a superseding indictment on July 10,

2009. Count One charged a conspiracy to influence and prevent the

testimony of witnesses in Khan’s upcoming trial and to cause and

induce witnesses to withhold testimony from that trial, in violation

of 18 U.S.C. §§ 1512(b)(1), 1512(b)(2)(A), 1512(i), 1512(j), 1512(k),

and 3551 et seq. Counts Two through Nine charged attempts to obstruct

justice with respect to each of eight potential witnesses in Khan’s

trial, in violation of 18 U.S.C. §§ 1512(b)(1), 1512(b)(2)(A),

1512(i), 1512(j), 2, and 3551 et seq.1 Count Ten charged bribery of

a potential witness. in violation of 18 U.S.C. §§ 201(c)(2), 2, and

3551 et seq. Count Eleven charged Simels alone with making a false

statement, in violation of 18 U.S.C. §§ 1001(a)(2) and 3551 et seq. by

falsely claiming to prison officials that he represented a prison

inmate, later identified as David Clarke. Count Twelve charged

sending in foreign commerce electronic devices designed to intercept

electronic communications, in violation of 18 U.S.C. §§ 2512(1)(a), 2,

and 3551 et seq., and Count Thirteen charged possession of such

devices, in violation of 18 U.S.C. §§ 2512(1)(b), 2, and 3551 et seq.

On March 16, 2009, Khan, Simels’s client, pled guilty to

1
Although worded the same as Counts Two through Four and Six

through Nine, which were captioned “Attempt to Obstruct Justice,”

Count Five was captioned “Attempted Witness Tampering.”

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narcotics, weapons, and obstruction of justice offenses. In his plea

agreement he waived any claims that the Government’s investigation

violated his rights under the Fourth, Fifth, and Sixth Amendments and

also waived all work-product and attorney-client privilege claims with

respect to the investigation of Simels.

Before Simels’s trial, he moved to suppress the MCC recordings

for failure to comply with the minimization requirements of Title III

of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.

§§ 2510 et seq. (“Title III”). The District Court granted the

suppression motion. See United States v. Simels, No. 08-CR-640, 2009

WL 1924746 (E.D.N.Y. July 2, 2009) (“Simels I”).

At trial, Simels’s counsel told the jury in his opening statement

that Simels would testify in his own defense, which he did. The

Government moved in limine to use portions of the previously-

suppressed MCC tapes to impeach Simels on cross-examination, and the

District Court granted that motion. See United States v. Simels, No.

08-CR-640, 2009 WL 4730232, at *5-*11 (E.D.N.Y. Dec. 4, 2009) (“Simels

II”).

Simels was found guilty on all counts except Count Eleven,

charging a false statement at a prison. Irving was found guilty on

the conspiracy count, two attempted obstruction counts, and the two

counts relating to electronic surveillance devices. The District

Court granted her post-trial motion for a judgment of acquittal on

these counts. See United States v. Irving, 682 F. Supp. 2d 243, 249

(E.D.N.Y. 2010). The Government’s cross-appeal, No. 10-152, which

sought to challenge that ruling, was dismissed by stipulation.

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 Simels was sentenced primarily to a prison term of 14 years’

imprisonment.

Discussion

Simels makes several arguments on appeal: (1) the Government’s

use of Vaughn invaded Simels’s attorney-client relationship with Khan

in violation of the Sixth Amendment, (2) the evidence was insufficient

to support conviction on five of the eight substantive attempted

obstruction of justice counts, (3) several of the District Court’s

evidentiary rulings deprived Simels of a fair trial, (4) the District

Court erred in permitting use of the suppressed recorded conversation

to impeach Simels, (5) the electronic surveillance device counts

should have been dismissed, and (6) the sentence was procedurally and

substantively unreasonable.

I. Sixth Amendment Claim

The use of a 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. “Unquestionably,

government interference in the relationship between attorney and

defendant may violate the latter’s right to effective assistance of

counsel.” United States v. Ginsberg, 758 F.2d 823, 833 (2d Cir. 1985).

Recognizing the potential issues, the Government sought to create what

it calls a “fire wall” between the agents investigating obstruction

offenses by Simels and the team of prosecutors and agents involved in

the criminal case against Simels’s client, Khan. The resulting

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procedures were designed to prohibit disclosure of information

collected during the investigation of Simels to the Khan prosecution

team. On this appeal, Simels makes no claim that the fire wall was

breached. Instead, he contends that the Government violates the Sixth

Amendment right to counsel “when it deliberately directs an informant

to pose as part of the defense and the invasion prejudices the

defendant.” Brief for Appellant at 98. Because of this intrusion, he

argues, all of Vaughn’s testimony and his recorded conversations with

Simels should have been suppressed.

The District Court rejected this claim on several grounds in an

oral ruling. First, the Court ruled that Simels was not protected by

the Sixth Amendment at the time his conversations with Vaughn were

recorded because the recordings were made before Simels was either

arrested or indicted. Second, the Court ruled that, to the extent

Simels was claiming that the Government must have some basis to

suspect wrongdoing before it can intrude into an attorney-client

relationship, there was no constitutional requirement of such a prior

basis (what the Court called a “predication”), and, if there were such

a requirement, it was met in this case. Third, the Court ruled that

any claim of work-product privilege belonged to Simels’s client, Khan,

and that Khan had waived such a claim in his plea agreement.

On appeal, Simels asserts violation of the Sixth Amendment right

of his client (who had been indicted prior to the recordings), and

contends that he should be accorded third-party standing to assert

Khan’s rights. Compare U.S. Dept. of Labor v. Triplett, 494 U.S. 715,

720-21 (1990) (attorney granted third-party standing to challenge

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restrictions on attorney’s fee), and Caplin & Drysdale, Chartered v.

United States, 491 U.S. 617, 623 n.3 (1989) (attorney granted third-

party standing to assert that forfeiture of property violated client’s

Sixth Amendment rights), with Conn v. Gabbert, 526 U.S. 286, 292

(1999) (the attorney “clearly had no standing to raise the alleged

infringement of the rights of his client”).

Because the law is unclear as to an attorney’s third-party

standing in the context of a Government investigation of the attorney

while preparing his client’s defense and the issue is rendered further

in doubt by the fact that the client has pled guilty, we will assume

that Simels can assert a Sixth Amendment right on behalf of his client

and consider the merits of the claim.

The possibility that an attorney is attempting to obstruct

justice in the course of representing a client presents Government

investigators with a sensitive choice. If they act precipitously to

determine whether obstruction is being attempted, they risk an

unwarranted intrusion into the attorney-client relationship, an

intrusion that may well jeopardize their case against the client. On

the other hand, if they unduly delay an inquiry, they risk serious

harm to witnesses. Whether or not investigators facing this choice

are constitutionally required to have a reasonable basis for their

suspicion of possible obstruction before sending an informant to

contact the lawyer, the existence of such a basis adequately allays

any concern that the attorney-client relationship has been improperly

invaded.

In the pending case, Judge Gleeson found a sufficient basis in

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the averments set forth in the affidavit of DEA agent Cassandra

Jackson, submitted in her application for an order permitting the

Government to intercept and record conversations between Simels and

Khan at the detention facility where Khan was detained pretrial. See

18 U.S.C. § 2518. Agent Jackson stated the following:

In or about March 2008, prosecutors for the government
learned that Simels had lied to prison officials in an
attempt to meet with [David Clarke], whom Simels and Khan
suspected would be an important government witness in Khan’s
upcoming trial. Specifically, on or about March 27, 2008,
Simels went to the Queens Private Correctional Facility and
asked to speak with [Clarke]. There was no publicly
available information that [Clarke] was incarcerated at the
Queens facility. At that time, a corrections officer asked,
consistent with the policy of the institution, whether
Simels was [Clarke’s] attorney of record. Although Simels
does not represent [Clarke], Simels responded that he did
represent [Clarke]. Based upon Simels’ representation,
[Clarke] was removed from his cell and brought to the
visitor’s room for a legal visit. When the door was opened,
Simels introduced himself to [Clarke], saying, “I am Robert
Simels.” When [Clarke] responded that he did not know who
he was, Simels replied, “Well I know all about you,
[Clarke].”

. . .

In or about May 2008, investigators met with [Vaughn].
[Vaughn] was a former associate of Khan’s who would provide
information to Khan regarding the whereabouts of individuals
who were sometimes subsequently murdered, threatened, and
intimidated by members of Khan’s para-military organization
at Khan’s direction. [Vaughn] reported to investigators that
[Vaughn] had been notified by Khan’s associates and others
that Khan’s attorney wanted to speak with [Vaughn]. Based
on the communications that [Vaughn] received, as well as the
nature of his prior relationship with Khan, [Vaughn] told
the investigators that [Vaughn] believed Khan and his
attorney wanted [Vaughn] to assist them in intimidating
suspected government witness [Clarke], and possibly others.

We agree with Judge Gleeson that this information provided the

Government with a sufficient basis, after Vaughn’s report to the

investigators, to send him to speak with Simels, assuming that such a

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basis was needed. Simels lied to prison officials, which resulted in

his visit with a potential witness in Khan’s trial. More

significantly, a reliable informant notified the Government that

Khan’s associates had told him that Simels wanted to speak with him

and that Vaughn believed, from his prior activities on behalf of Khan,

that Khan and Simels wanted Vaughn to assist in intimidating

witnesses. 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. 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. In this case, the Government had a substantial

basis to determine whether Simels was attempting to commit obstruction

offenses, far more than a “mere recitation” of a need to investigate

future criminal activity, see United States v. Mastroianni, 749 F.2d

900, 905 (1st Cir. 1984).2 The need to discover and prevent potential

intimidation of witnesses was a stronger basis for sending Vaughn to

meet with Simels than protection of an informant’s identity, which we

ruled a sufficient justification for the more intrusive step of

2
As Judge Gleeson told Simels at sentencing, “[I]t was not only

not overreaching to investigate you, but it would have been a

dereliction of duty not to, given the facts available to the

government . . . before Selwyn Vaughn was wired up and sent into your

office.”

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allowing a cooperating witness to sit at counsel table, see Ginsberg,

758 F.2d at 832-33. Moreover, 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, see id. at

833.

II. Evidentiary Claims

We review a district court’s evidentiary rulings for abuse of

discretion. See United States v. Kelley, 551 F.3d 171, 174-75 (2d

Cir. 2009). However, if a defendant fails to make a sufficient

objection in the district court, the evidentiary claim is reviewed on

appeal under the plain error standard. See Fed. R. Crim. P. 52(b).

Simels first complains that the District Court improperly

permitted Vaughn to give his opinion about what Simels’s recorded

statements meant, in violation of Federal Rule of Evidence 701.

Simels asserts that the defense objected to the admission of this

testimony, but he concedes that his counsel did not specifically

mention Rule 701. Whether or not counsel’s objection was inadequate,

as the government contends, the admission of Vaughn’s opinions was not

error. See United States v. Tsekhanovich, 507 F.3d 127, 129-30 (2d

Cir. 2007); cf. United States v. Brown, 352 F.3d 654, 665 n.10 (2d

Cir. 2003).

The District Court also properly permitted Vaughn to testify

about threats made to him and about gang-related acts of intimidation

in Guyana. In his opening statement, Simels’s counsel argued that, in

exchange for his testimony, Vaughn had been paid more than $50,000 by

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the Government and had received visas for himself and his family.

Vaughn then testified that he and his family had been relocated to the

United States for security reasons and that he could not return to

Guyana because he would be killed. The District Court did not exceed

its discretion in ruling that the threat evidence was admissible,

because it was relevant to rebut the defense attack on Vaughn’s

credibility. Moreover, the court limited any possible prejudice by

instructing the jurors that there was no suggestion that Simels had

any role in the threats to Vaughn or his family. The Court also did

not err in admitting evidence about violence committed by gang

members, evidence relevant to Vaughn’s fear of reprisal. To the

extent that Vaughn testified about his own witness intimidation

activities in Guyana at Khan’s direction, activities of which Simels

was likely aware, this evidence was admissible to provide a basis for

Vaughn (and the jury) to understand the full import of many of

Simels’s statements to him.

The Defendant next argues that, by repeatedly admonishing Simels

to limit his answers to a “yes” or “no,” the Court “conveyed to the

jury that it did not believe Simels’[s] testimony.” Appellant’s Br.

at 39, 42-43. The facts of this case, however, are clearly

distinguishable from those in United States v. Filani, 74 F.3d 378 (2d

Cir. 1996), in which the trial judge “inappropriately intruded as an

advocate during trial and thereby prejudiced defendant.” Id. at 387.

Here, the Court did not conduct its own adversarial questioning of the

Defendant but merely interjected, when necessary, to defuse the

obvious tension between the prosecutor and Simels.

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 The Defendant also claims that the Court violated his right to

present a meaningful defense by precluding the introduction of a

chapter that Simels had written in a 2006 book about cross-

examination. Before trial, the Government objected to this evidence,

asserting that it was irrelevant to Simels’s state of mind,

inadmissible hearsay, and its probative value was substantially

outweighed by the danger of prejudice or confusion of the issues.

After granting the Government’s motion in limine, the Court advised

Simels’s counsel that he could renew his request to introduce the

chapter during Simels’s testimony. Counsel did not do so. Under

these circumstances, although it might have been permissible to admit

the chapter into evidence, the Court’s decision to preclude such

evidence did not exceed the Court’s discretion.

None of the District Court’s evidentiary rulings was erroneous.

III. Use of Suppressed Wiretap Evidence to Impeach

In response to the Government’s mid-trial motion to admit

portions of the previously suppressed MCC tapes, the District Court

ruled that evidence obtained in violation of Title III could be

admitted to impeach Simels’s testimony. See Simels II, 2009 WL

4730232, at *5-*11. Simels contends that this decision “disregarded

the language, structure, and purpose of Title III.” Appellant’s Brief

at 56. As this Court recently acknowledged, Simels’s Title III claim

is one of first impression in this Circuit. See SEC v. Rajaratnam,

622 F.3d 159, 172 n.9 (2d Cir. 2010).

Although 18 U.S.C. § 2515 states that illegally obtained wire or

oral communications may not be “received in evidence in any trial,”

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the Government contends that we should nonetheless approve use of such

communications for impeachment purposes, following the Supreme Court’s

use for impeachment purposes of evidence obtained in violation of the

Fourth Amendment, see Walder v. United States, 347 U.S. 62, 65 (1954).

As noted by the District Court in its written decision, see Simels II,

2009 WL 4730232, at *10, the Senate Judiciary Committee report on the

bill that became Title III states that Congress did not intend to

"press the scope of the suppression [rule] beyond present search and

seizure law.” S. Rep. No. 1097, 90th Cong., 2d Sess., at 68 (1968),

reprinted in 1968 U.S.C.C.A.N. 2112, 2184-85. The report explicitly

cites Walder.

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. See United States v. Baftiri, 263

F.3d 856, 857-58 (8th Cir. 2001); United States v. Echavarria-Olarte,

904 F.2d 1391, 1397 (9th Cir. 1990); United States v. Vest, 813 F.2d

477, 484 (1st Cir. 1987); United States v. Caron, 474 F.2d 506, 508-

09 (5th Cir. 1973); see also Culbertson v. Culbertson, 143 F.3d 825,

827-28 (4th Cir. 1998) (approving use of evidence obtained by

unauthorized wiretapping for impeachment of party’s affidavit in civil

case); Jacks v. Duckworth, 651 F.2d 480, 483-85 (7th Cir. 1981)

(permitting prosecution’s use of evidence obtained by unauthorized

wiretapping for impeachment as rebuttal evidence in criminal case).

The Tenth Circuit has prohibited discovery of illegally obtained

wiretap evidence in a civil case, distinguishing the cases permitting

prosecution use for impeachment purposes in a criminal case on the

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ground that the exclusionary rule, which Walder declined to apply to

Fourth Amendment violations, did not apply to private individuals. See

Anthony v. United States, 667 F.2d 870, 879 (10th Cir. 1982).

We agree with the courts applying the Walder rationale to

evidence obtained in violation of Title III. As the First Circuit has

pointed out, section 2515 cannot always be applied literally because

doing so would preclude the use of illegally obtained wiretap evidence

in a prosecution for violating Title III itself. See Vest, 813 F.2d at

480. And, as the Eighth Circuit has stated, “It makes no sense for

evidence obtained in violation of a mere statute to be more severely

restricted than evidence obtained in violation of the Constitution.

At the time the statute was enacted, evidence obtained in violation of

the Fourth Amendment could be used for impeachment purposes. It is

reasonable to assume that Congress had this background in mind when

the statute was passed, and that, in the absence of an express

statement, it did not intend to draw the line of exclusion in a

different place.” Baftiri, 263 F.3d at 857.

IV. Electronic Surveillance Device Offenses

Simels seeks reversal of his convictions on Counts Twelve and

Thirteen, contending that the relevant statutes punishing importation

and possession of certain electronic surveillance devices do not apply

to inoperable equipment.

The equipment that formed the basis of Counts Twelve and Thirteen

consisted primarily of a device referred to at trial as a “base” (or

sometimes a “chaise”) and also two laptop computers. Peter Myers, a

co-director of the company that manufactured the base, testified, on

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questioning by the prosecutor, that the base permits surreptitious

interception of radio signals between phones and cell towers and

decodes the signals so that their content can be stored on a computer.

Referring to the base seized from Simels’s office, the prosecutor

asked Myers, “It wouldn’t work as it sits here today?” to which Myers

answered “No.” The reason, he explained, “could be a blown fuse” or

“a component broken” or “something doesn’t work.” He also stated

that, even if operational, it was “[u]nlikely” that the base would

work in the United States without the cellular system that the base

requires, a system that he said is “no where [ sic] in America.”

Simels testified that the head of Guyana Telephone and Telegraph had

told him that the company changed from analog to digital signals in

2004 or 2005.

With respect to the two laptops seized from Simels’s office,

Simels testified that the Guyanese government had given them to Khan

to be used to store intercepted conversations and that a conversation

involving David Clarke, a potential witness against Khan, was on one

of the laptops. Simels also stated that he had the laptops shipped

from Guyana and, in response to Government requests, turned over

compact disks containing recorded conversations that he anticipated

introducing into evidence at Khan’s trial. With respect to the base,

he testified that after the Government requested information as to how

the recordings were made, he arranged for the base to be shipped from

Guyana to his office “because we would have to produce it for

inspection for the prosecutors.”

The issue is whether importation and possession of an inoperable

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device violates section 2512. The Government contends that the

statute covers such a device because it punishes importation and

possession of “any electronic, mechanical, or other device, knowing or

having reason to know that the design of such device renders it

primarily useful for the purpose of the surreptitious interception of

wire, oral, or electronic communications.” 18 U.S.C. § 2512(1)(a), (b)

(emphasis added). However, as the Appellant contends, even if the

“design” of a device would render it useful for surreptitious

interception of communications, the statutory definition of

“electronic, mechanical, or other device” is “any device or apparatus

which can be used to intercept a wire, oral, or electronic

communication [with exceptions not relevant to this case].” 18 U.S.C.

§ 2510(5) (emphasis added). Because the base was inoperable, which

the Government does not dispute, it was not a “device” within the

meaning of section 2512(1)(a), (b).

The Government resists this textual argument by analogizing to

cases that have sustained convictions for firearms offenses despite

the fact that a firearm was inoperable. See United States v. Rivera,

415 F.3d 284, 286 (2d Cir. 2005) (inoperable firearm qualifies as

firearm because it is “designed to fire a projectile”); United States

v. York, 830 F.2d 885, 891 (8th Cir. 1987) (same). The analogy fails

because a firearm is statutorily defined as any weapon “which will or

is designed to or may readily be converted to expel a projectile by

the action of an explosive.” 18 U.S.C. § 921(a)(3) (emphases added).

Apparently concerned with the dangers that might arise from any gun

that is “designed” to expel projectiles, Congress included such a gun

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in the statutory definition in addition to a gun that “will” do so.

However, with respect to electronic devices, 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.

For these reasons the convictions on Counts Twelve and Thirteen

must be vacated. Because the District Court sentenced Simels to time
3
served and no subsequent supervised release on these two counts,

their vacation does not require a remand for resentencing. Nor is a

retrial on the remaining counts required, as Simels contends, on a

theory of retroactive misjoinder because of prejudicial spillover from

evidence introduced on the vacated counts. The Appellant has not met

the “extremely heavy burden” of demonstrating that there was

prejudicial spillover necessitating a new trial. See United States v.

Griffith, 284 F.3d 338, 351 (2d Cir. 2002). It will suffice to remand

for entry of a corrected judgment reflecting the dismissal of Counts

Twelve and Thirteen.4

3
At sentencing Judge Gleeson said he was sentencing Simels to time

served and “unsupervised supervised release.” The judgment recites

time served and “No supervision on Counts Twelve and Thirteen.”
4
We note Judge Gleeson’s comments to the prosecutor concerning

Counts Twelve and Thirteen:

Those counts shouldn’t have been brought. The reason I

think they shouldn’t have been brought is Mr. Simels, I have

no doubt, was endeavoring to get his hands on that equipment

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V. Sufficiency of Evidence

Of the eight substantive counts charging attempted obstruction of

justice through intimidation of eight potential witnesses against

Khan, Simels challenges on appeal the sufficiency of the evidence to

support his convictions on five counts. These relate to Vijay

Jainarine, Ryan Pemberton, Alicia Jagnarain, Farrah Singh, and Vaughn,

the confidential informant. Simels apparently concedes that the

evidence was sufficient to support his conviction for attempted

obstruction with respect to potential witnesses Clarke, Leslyn

Camacho, and George Allison. Applying the well established standards

for considering claims of insufficiency of evidence, see, e.g.,Jackson

v. Virginia, 443 U.S. 307, 319 (1979) ; United States v. Jones, 393

F.3d 107, 111 (2d Cir. 2004), we reject the Appellant’s contentions.

At the outset, we note two considerations that apply to all five

of the challenged counts. First, because the totality of the

evidence, quite properly, was admitted without limitation to any

particular count, the sufficiency of the evidence as to each potential

witness need not be assessed, as Simels appears to contend, solely

with respect to the evidence naming or referring to that witness. The

jury was entitled to infer what Simels meant and what action he

intended with respect to each witness not only from what was said

about that witness but also from what he said about all the witnesses.

in preparation for the trial of Roger Khan, and the

government wanted him to provide information about the

nature of that equipment. For the life of me, I can’t

figure out why you indicted him, but that’s your judgment.”

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An explicit instruction to intimidate or bribe one witness lends

considerable color to what, in isolation, might be considered a

somewhat ambiguous statement said with respect to another witness.

Second, the statements made by Simels to Vaughn must be assessed

against the background knowledge Simels likely had about Vaughn’s

previous actions taken in Guyana on the instructions of Khan and

members of the “Phantom Squad.” Vaughn testified that on one occasion

Khan asked him to verify the location of Donald Allison, an enemy of

Khan’s. Donald Allison was the brother of George Allison and a

relative of David Clarke, both potential witnesses against Khan. Just

after Vaughn informed Khan of Donald Allison’s location, gunmen drove

up and murdered him. On another occasion Khan instructed Vaughn to

report the location of Ronald Waddelle, a talk show host who regularly

criticized Khan. Vaughn did so, and gunmen drove up and murdered

Waddelle. The jury was entitled to infer that Simels would not have

trusted Vaughn sufficiently to give him instructions about bribing and

intimidating potential witnesses against Khan unless he was aware of

the type of assignments Vaughn had previously carried out for Khan.

We assess the sufficiency of the evidence with these considerations in

mind.

Vaughn testified that Simels and the co-defendant Irving made

clear to him that, with respect to several of the potential witnesses

against Khan, the attorneys wanted him “[t]o persuade the witness

either not testify or to change their testimony” and that if he could

not reach the witness directly “I can go through either their family

members or friends.” The key evidence against Simels was contained in

-21-
the recorded conversations between him and Vaughn. Among the most

damning portions of those conversations are the following:

•When Vaughn said to Simels, “We either try to buy them or we

gotta drive fear in them,” Simels replied, “I agree with you. I agree

with you.”

•Simels handed Vaughn a memorandum summarizing expected testimony

from several witnesses including Vaughn and said, “[H]e [Khan] really

wants you to testify to all this shit.” The memorandum contained

several facts that Vaughn knew were false.

•Simels handed Vaughn a draft of an affidavit he had prepared,

which he wanted Leslyn Camacho, a girlfriend of Clarke, to sign. The

draft made assertions designed to impeach the credibility of Clarke,

who was expected to be a prosecution witness against Khan. Simels

told Vaughn to deliver the affidavit to Camacho and tell her that she

would be paid $10,000 if she testified as indicated in the affidavit.

Simels stated, “She’s gotta meet with me. If she does it and she

signs the document, she gets half then and she gets half when she

finishes testifying.” When Simels was arrested at his office, agents

found a draft affidavit in the name of Leslyn Camacho.

•With respect to Clarke and Clarke’s mother, Simels told Vaughn:

Listen. Whatever we gotta do, we gotta put Clarke in a bad
setting is what we need to do.
. . .
[A]ll he [Khan] says is be careful. He says “Don’t kill the
mother.”
. . .
Well, he’d like as much pressure being put on Clarke as
possible, but he thinks if Clarke’s mother gets killed, that
the government will go crazy.

-22-
 •Simels told Vaughn, “Clarke is the guy we need to nail. . . .

[W]e need to have him desire not to testify . . . .”

•Simels told Vaughn, “Clarke is either neutralized by us, or

neutralized by us on cross-examination.”

•Simels told Vaughn (regarding Clarke), “David’s gonna want some

money. . . . He’s got that piece of property in Guyana, right, the

hotel? . . . We could buy the hotel from him . . . so we said that the

hotel was worth five thousand dollars, US, and you paid him fourteen

thousand US. . . . Because nobody can say what the price of real

estate is worth.”

•Simels told Vaughn that he (Simels) needed to get in touch with

Sean Bellfield so that Bellfield could find the brother of Vijay

Jainarine, an expected prosecution witness against Khan, in Guyana

“[s]o that [Bellfield] can convince Vijay to back off.”

•The Government recorded conversations between Simels and Khan,

in one of which Simels tells Khan, “I think you better get yourself

. . . money. Money, money, money. We need money to sling at anything

that [Vaughn] tells me is true.”

In addition to these statements, Simels said other things to

Vaughn specifically with respect to Vaughn’s testimony. Simels told

Vaughn that, in order to undermine the identification of Khan as

“Shortman,” “we want to be able to put ourselves in the position of

saying . . . anybody who is a short man [in Guyana] is Shortman . . .

.” Simels also told Vaughn to falsely identify himself as a

“laborer,” not to refer to Khan as the “boss” or connect Khan to drug

trafficking, and to deny any business relationship between Khan and

-23-
Ricardo Rodrigues, whom Vaughn knew to be Khan’s partner in the

narcotics business. When Vaughn expressed concern about how he would

respond on cross-examination when he testified to matters allegedly

occurring in Guyana that he knew were false, Simels told him not to

worry because “none of these prosecutors have ever been to Georgetown

or Guyana.” Simels also told Vaughn that he had heard many stories

relating to Khan from “people . . . trying to help Roger” adding

“whether they’re true or they’re not true. Frankly, I, I, I actually

don’t care.”

With respect to Vijay Jainarine, Simels told Vaughn, “We need

[Jainarine’s] brother to cooperate. We need the brother to get his

brother [Jainarine] to back off.” Simels gave instructions to send a

copy of the Government’s wiretap transcripts involving Jainarine to

members of the Phantom Squad “and tell them to find this guy’s

brother.” He further instructed, “[T]hen tell Sean [Bellfield], when

he locates him, to speak with me personally and I’ll tell him what I

want done . . . .”

With respect to Ryan Pemberton, after members of the Phantom

Squad failed in an attempt to detain him and make him available to

Simels on a trip to Guyana, Simels recounted to Vaughn what he had

told members of the Phantom Squad: “I said to them, ‘Do you think you

could tell Roger to his face what you’re telling me, that you can’t

find this guy, that you can’t bring him to me? If he told you to

bring somebody to him, ah, you bring him.’” When a squad member

apparently suggested that Simels leave Pemberton to the squad, Simels

told Vaughn, “I said, ‘If I leave him to you, he may be on the witness

-24-
stand in New York.’” Simels later told Vaughn that, after learning

that Pemberton was willing to help Khan, “I said to Paul [Rodrigues],

‘Good. If that’s the situation, then he should be willing to fill out

an affidavit from me. . . . I’ll prepare the affidavit. You . . .

have him sign it.’” A draft affidavit for Pemberton was found in

Simels’s office. Although Simels had never spoken with Pemberton, the

draft affidavit stated, “I have no knowledge that Mr. Khan . . . ever

committed any crimes of violence” and “I have over the course of many

years made up stories about a number of people . . . claiming to have

been involved in some illegal activities.”

With respect to Alicia Jagnarain, Simels told Vaughn to find her

and stated, “[I]f she didn’t testify, refused to testify, uh, that

would be good.” He later said, “Alicia, obviously is somebody that,

that we’d like to put pressure on” and “If we could persuade Alicia

that she oughta talk to me and, ah, she, she has it in the back of her

mind, that her, her, ah, involvement is not a good thing, great.”

Found on Simels’s computer was a scanned letter from Khan to Paul

Rodrigues giving instructions about bribing or threatening Jagnarain’s

parents in Guyana to a means of preventing her from testifying.

With respect to Farrah Singh, Simels instructed Vaughn to find

her and said, “[S]he should be interested in whatever it takes to, a,

say what we need her to say.” Although this statement is not as

probative as the other evidence in the case, assessed in conjunction

with Simels’s instructions to bribe and intimidate other witnesses, as

the jury was entitled to do, it suffices to support the conviction on

the count relating to her. And the evidence fully supports

-25-
convictions on the counts relating to the other witnesses. As to each

potential witness, Simels took a “substantial step” toward threatening

or intimidating them with the intent to improperly influence their

testimony in an official proceeding. See 18 U.S.C. § 1512(b)(1),

(2)(A).

Simels challenges his conviction on the five obstruction counts

on two additional grounds. He contends that the evidence was

insufficient to satisfy the so-called “nexus requirement,” United

States v. Kaplan , 490 F.3d 110, 125 (2d Cir. 2007), a relationship

between the obstructive conduct and a judicial proceeding, see Arthur

Anderson LLP v. United States, 544 U.S. 696, 707-08 (2005); United

States v. Aguilar, 515 U.S. 593, 599-600 (1995). However, the

evidence fully entitled the jury to find that Simels attempted to

intimidate or bribe witnesses whom he expected would be witnesses at

Khan’s trial. And the evidence was equally persuasive that Simels was

not entitled to the safe harbor defense of “the providing of lawful,

bona fide, legal representation services.” 18 U.S.C. § 1515(c).

VI. Sentencing Issues

Simels challenges his sentence on three grounds. First, he

contends that the District Court erroneously applied an aggravating

three-level role adjustment for being a supervisor of a criminal

activity involving five or more participants, see U.S.S.G. § 3B1.1(b).

However, the District Court properly identified Khan, Irving, Hanoman,

Colin Moore, and Conrad Sanmoogan as members of the conspiracy to

obstruct Khan’s trial, and Simels’s contention that this finding is

clearly erroneous is without merit.

-26-
 Second, Simels contends that the District Court imposed the 14-

year sentence under the misapprehension that the sentence could be

served at a minimum security institution, whereas the Bureau of

Prisons (“BOP”) will not designate such a facility for a prisoner

sentenced to more than 10 years, unless the Bureau waives this

provision. See BOP Program Statement 5100.08, ch. 5, p. 9 ¶I(A),

http://www.bop.gov/DataSource/execute/dsPolicyLoc (5000 Series)

(5100.08 Inmate Security Designation and Custody Classification, ch 5,

p. 9) (last visited July 29, 2011). After Judge Gleeson completed

imposition of sentence, defense counsel requested that the Judge

recommend incarceration at the Otisville Federal Prison Camp, a

minimum security institution near Simels’s home. Judge Gleeson agreed

to make the recommendation. Three days later, defense counsel wrote

the District Court to point out that a BOP waiver was needed to permit

incarceration at Otisville and to request that Judge Gleeson recommend

a BOP waiver. The record discloses no action on this request. Two

weeks later, after the BOP had selected a federal prison in Texas for

incarceration of Simels, defense counsel wrote the District Court to

request a recommendation that the BOP imprison Simels in the Northeast

Region. Judge Gleeson denied this request.

It is clear from this sequence of events that Judge Gleeson did

not become aware until after imposition of sentence that incarceration

at Otisville, which he recommended, required a BOP waiver. Thus,

contrary to Simels’s contention, the sentence was not imposed under a

misunderstanding of facts that would impair the validity of the

sentence. Cf. King v. Hoke , 825 F.2d 720, 724-25 (2d Cir. 1987)

-27-
(misunderstanding of minimum period of incarceration required

resentencing).

Finally, Simels contends that the length of his sentence was

unreasonable. The applicable Guidelines range was 168 to 210 months.

Judge Gleeson imposed concurrent sentences of imprisonment for 168

months, the bottom of the applicable range, on the conspiracy count

and the eight obstruction of justice counts; a concurrent sentence of

24 months on the bribery count; and time served on the electronic

device counts. He also fined Simels $25,000 and imposed a three-year

term of supervised release.

We review a sentence for substantive reasonableness, see United

States v. Cavera , 550 F.3d 180, 187 (2d Cir. 2008) (in banc), and a

sentence within the applicable Guidelines range will generally be

considered reasonable, see Rita v. United States, 551 U.S. 338, 350

(2007); United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006).

A 14-year sentence for a 62-year-old man with no prior record is

doubtless a severe sentence, but, as Judge Gleeson carefully

explained,

[A]n important goal of sentencing is just punishment, is the
way we express our condemnation of conduct that must be
condemned, and anybody who takes the time to look at the
facts of the case knows that you’re being punished for your
efforts to suborn perjury, to bribe witnesses, to otherwise
influence witnesses, and for your own perjury at your trial.

We cannot say that the sentence is unreasonable.

Conclusion

We affirm the convictions and sentences on Counts One through

Ten, vacate the convictions and sentences on Counts Twelve and

Thirteen, and remand for entry of a judgment corrected to reflect

these rulings.

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