Robert Simels leaving the U.S. courthouse in Cadman Plaza in August 2009. (NYLJ/Rick Kopstein)
Five years after defense attorney Robert Simels was sentenced for his role in a witness intimidation plot built on a cooperator’s secret recordings, he now is trying to overturn the conviction by asserting prosecutors wrongfully delayed disclosure of relevant tapes and that his defense attorney, Gerald Shargel, offered substandard representation.
Maintaining his innocence and looking to set aside his 14-year sentence, Simels attacked the government’s “outrageous” behavior in building the case.
“Simels, a zealous advocate with no prior criminal history, was targeted without a reasonable basis and pursued by means of a murderous thug unleashed by the government,” said the motion in Simels v. United States, 13-cv-1224. “The wholly ambiguous nature of the government’s evidence, susceptible to divergent interpretations, highlights the essential unfairness of the government’s efforts.”
But prosecutors in the Eastern District U.S. Attorney’s office say the challenge is meritless, and that Simels’ guilt was “stark and clear.”
No matter how many more defense witnesses were called, or how many more objections could have been made, of if different experts were called, the government said, “it would not have altered the incriminating nature of the recordings and therefore would not have changed the outcome of the trial.”
Oral arguments are scheduled for June 26 before Eastern District Judge John Gleeson, who presided over Simels’ trial and sentenced him. Simels will be represented by Donald Samuel of Garland, Samuel & Loeb in Atlanta and Richard Klugh of Miami.
As a defense attorney, Simels counted former Jets star Mark Gastineau, drug trafficker Kenneth “Supreme” McGriff and now-deceased mafioso Henry Hill as some of his clients.
His conviction arose from his representation of Shaheed “Roger” Khan. The Guyanese Phantom Gang boss was arrested in 2006 in Suriname and brought to the U.S. on charges of running a criminal enterprise that imported cocaine.
Khan retained Simels for $1.4 million but pleaded guilty in March 2009 to charges including drug trafficking, weapons possession and obstruction of justice.
The government’s case against Simels was built on surreptitious recordings from cooperator Selwyn Vaughn, who had worked for Khan but became a Drug Enforcement Administration informant.
The tapes record Simels speaking of the need to “neutralize” and “eliminate” witnesses. At one point, Simels tells Vaughn not to have a key witness’ mother “kill[ed].”
At trial, Simels testified that tough language like “neutralize,” “eliminate” and “kill” was “part of the vernacular of being a lawyer.”
The jury found Simels guilty of 12 felony counts, including witness bribery, attempted witness tampering and conspiring to commit witness tampering (NYLJ, Aug. 21, 2009). The U.S. Court of Appeals for the Second Circuit upheld 10 of the counts (NYLJ, Aug. 15, 2011).
Simels was disbarred by virtue of his felony convictions.
In the latest motion, Simels’ attorneys challenged the government over a number of recordings Vaughn made. When turning over the tapes before the scheduled trial, the government said they were not material to Simels’ case and a protective order barred Simels from hearing them.
Simels’ current defense team said Shargel did not listen to the recordings. “Because the government furnished the tapes so late, and because the trial lawyers never listened to the tapes, they were never used at trial to impeach Vaughn or to discredit the government’s overarching conspiracy theory,” said the defense, which seeks more information about the number of recordings in the government’s possession.
On the ineffective assistance claim, Simels said Shargel had not called witnesses who could testify to facts demonstrating the “good faith nature of Simels investigation and trial preparation in the Khan case.”
The defense questions the decision to have Anthony Ricco give expert testimony on criminal defense work when other possible experts could have been tapped, such as Murray Richman of the Bronx or Lee Ginsberg of Freeman Nooter & Ginsberg.
Ricco had “significantly prosecution-oriented” views and gave testimony on “practicing in ways at odds with Simels theory of defense,” he claims.
In fact, the government called Ricco’s testimony “devastating” in its closing, the motion said.
Simels said Shargel should have sought Gleeson’s recusal, given the judge’s “extreme and long-standing antagonism” towards Shargel.
Simels pointed to a lengthy 1994 New Yorker article where Gleeson, then a federal prosecutor, was quoted characterizing Shargel as “house counsel” for the mob and saying that “attorneys are as integral a part of the Gambino crime family as any of its other members.”
Shargel, said Simels was conflicted and “effectively hamstrung in his representation … Shargel sought instead to curry favor, dampening his arguments or failing to raise arguments or pursue avenues that he perceived as being counter to his self-interest vis-a-vis the presiding judge, who had made clear his mistrust of Shargel.”
The government scoffed at Simels’ claims. It noted the tapes had been given to Simels’ defense and were not material. Besides, it was unclear why Simels’ “personal access” would have aided the defense.
Moreover, the prosecution said, Shargel offered “vigorous and competent advocacy”—so much so that it pointed to the post-verdict transcript where Gleeson said Simels “got an excellent defense. The best anybody can get in this case.”
The government said any additional witnesses would have been confronted with recordings that showed Simels’ “unmistakable intent to tamper with, bribe or harm witnesses” the outcome could have “disastrous for Simels.”
Besides, their testimony would only have furthered the uncontested point that Simels also represented Khan via legitimate methods.
“However, the fact that he at certain times, or even the majority of the time, represented Khan legitimately, does not speak to the fact that he supplemented such advocacy with illegal behavior,” said the prosecution.
Simels mischaracterized Ricco’s testimony and engaged in speculation when saying other criminal defense experts could have better aided his case, the government said. Furthermore, prosecutors noted that in 1995, a year after The New Yorker article appeared, Gleeson, as a recently-appointed judge, denied a recusal bid in a different case that used the same allegations.
“It stands to reason that if it was proper for the court to preside over a case involving Shargel in 1995 … it surely was proper for it to do so approximately fourteen years later,” said the prosecution.
Samuel, Simel’s counsel, said the ineffective assistance claim was “not a reflection of Jerry Shargel’s expertise. He is a fabulous lawyer. That doesn’t mean he’s perfect.”
Samuel said Simels, 67, is “doing okay. As well as can be expected. He’s patient.”
In an interview, Shargel, now a partner at Winston & Strawn, said, “I am a defense lawyer in every fiber of my body. I take no insult. I have nothing but fond feelings toward my former client and I wish him nothing but the best.”
The prosecution is represented by Assistant U.S. Attorney Una Dean.