New York Court rules use of informant to nail defense attorney constitutional High-profile attorney defended drug kingpins

by Pat Murphy

The Daily Record Newswire

BOSTON, MA -- Nothing excites prosecutors like getting a flamboyant defense attorney in the crosshairs.

But investigating a criminal defense lawyer raises all sorts of constitutional concerns.

Last week, the 2nd Circuit decided that the feds didn't go too far when they used a confidential informant to convict Robert Simels, the high-profile defender of New York City's drug kingpins.

The downfall of Simels began in 2006 when he accepted a $1.4 million retainer to defend Shaheed Khan, a citizen of Guyana who was brought to Manhattan to face charges that he headed a criminal enterprise that imported large amounts of cocaine into the United States.

Key to the drug trafficking investigation was one Selwyn Vaughn, who worked for Khan's paramilitary organization in Guyana and became an informant working for the Drug Enforcement Administration.

Attorney Simels became a target of a criminal investigation in March 2008 when federal agents learned that he had attempted to speak with David Clarke, a federal prison inmate and potential government witness against Khan. According to the government, Simels falsely told prison authorities that he was Clarke's attorney.

This was significant because of the suspicion that Simels was conspiring to intimidate the witnesses in the Khan drug trafficking case.

The feds accordingly began to use their confidential informant, Vaughn, to build a case against Simels.

On five occasions between May and September 2008, Vaughn met with Simels at Simels' law offices. The attorney thought that Vaughn was helping him prepare a defense for Khan.

In reality, Vaughn was surreptitiously recording his conversations with Simels. The attorney during these meetings allegedly made the mistake of proposing to bribe and threaten the potential witnesses against his client, Khan.

The recordings were later introduced as evidence when Simels was charged with attempted obstruction of justice and bribery. A federal jury convicted Simels in August 2009 and he was sentenced to prison for 14 years.

Before the 2nd Circuit, Simels argued that the feds violated the Sixth Amendment by inserting an informant into his preparations for the defense of a client.

The court agreed that the use of a government informant under these circumstances "raises serious issues concerning the Sixth Amendment rights of the lawyer's client and other issues arising from intrusion into the attorney-client relationship."

But ultimately the court decided that there was no constitutional violation, sidestepping the issue of whether Simels had third-party standing to assert a violation of his client's Sixth Amendment right to counsel.

In upholding the constitutionality of the government's actions, the court first underscored the fact that federal agents created a "fire wall" between the agents investigating obstruction offenses by Simels and the team of prosecutors and agents involved in the drug-trafficking case against Simels' client, Khan.

Second, the court rejected Simels' argument that a Sixth Amendment violation occurs whenever the government directs an informant to pose as part of a criminal defense.

The court concluded that Simels provided the justification for the extraordinary use of a government informant when he lied to prison officials in an apparent effort to gain access to a witness in the Khan drug trafficking case.

It explained that "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."

Published: Mon, Aug 22, 2011