Motion Opposing Simels Bail Reduction

U.S. Department of Justice

United States Attorney Eastern District of New York RF:SLD/MJF F.#2008RO1522

271 Cadman Plaza East

Brooklyn, New York 11201

February 5, 2009 The Honorable John Gleeson United States District Court Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201 Re: United States v. Robert Simels, et al. Criminal Docket No. 08-640 (JG) Dear Judge Gleeson: The government respectfully submits this letter in opposition to the defendant Robert Simels’ request for a modification of his bond. At present, the defendant is released on a bond in the amount of $3.5 million, secured by his personal residence and the signatures of three financially responsible persons. By letter dated, February 2, 2009, the defendant seeks to continue his release on an unsecured personal recognizance bond. In making his request, the defendant notes that the present bond was imposed without Magistrate Judge Pollak making any findings regarding his risk of flight or danger to the community. (Defendant’s Letter, p. 1). However, as the record reflects, the absence of those findings was not because of a lack of evidence, but simply a lack of need. Indeed, the defendant consented to having the present bond imposed upon him without a hearing. In any event, for the reasons discussed below, the current conditions of the defendant’s release are wholly warranted and the Court should deny the defendant’s request for modification. As an initial matter, the defendant’s application is based upon a misunderstanding of the Bail Reform Act (18 U.S.C. § 3141, et seq.). In relevant part, the defendant argues that unless the government demonstrates either a serious risk of flight by a preponderance of the evidence or danger to the community by clear and convincing evidence, the judicial officer must order an individual released pending trial on either a personal recognizance bond or unsecured appearance bond.

2 (Defendant’s Letter, p. 1).

This is incorrect.

Title 18 of the United States Code, Section 3142(f)(2) permits the government to seek a detention hearing when there is a “serious risk” that the defendant will flee or “obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror.” Once called upon to conduct a detention hearing on that basis, the judicial officer must first determine by a preponderance of the evidence “that the defendant presents a risk of flight or obstruction of justice.” United States v. Friedman, 837 F.2d 48, 49 (2d Cir. 1988)(per curiam)(citations omitted). “Once this determination has been made, the court turns to whether any condition or combinations of conditions of release will protect the safety of the community and reasonably assure the defendant’s appearance.” Id., citing United States v. Berrios-Berrios, 791 F.2d 246, 250 (2d Cir.), cert. dismissed, 479 U.S. 978 (1986); 18 U.S.C. § 3142(f). In the instant matter, the defendant is charged with obstructing justice, a violation of 18 U.S.C. § 1512. As detailed more fully in the Affidavit in Support of Arrest Warrants that was filed in this matter (the “Arrest Affidavit”), the defendant sought to eliminate those individuals he perceived to be witnesses against his client, Shaheed Khan, in Khan’s pending criminal matter captioned, United States v. Shaheed Khan, 06-CR-255 (DLI). In furtherance of this plan, the defendant discussed a variety of options with a confidential source (“CS”), a former member of Khan’s Guyanese para-military squad that would murder, threaten, and intimidate others at Khan’s direction. (Arrest Affidavit at ¶¶ 7 and 9). Those options included counseling witnesses to lie (id. at ¶ 11), paying them to provide false testimony (id. at ¶ 27) and committing acts of violence against them or their family members (id. at ¶ 26). All of these options were developed by the defendant in his capacity as an attorney and discussed with the CW, among other places, at his law office, over his office’s telephone and through his office’s email. Accordingly, there exists a serious risk that the defendant will obstruct or attempt to obstruct justice. 18 U.S.C. § 3142(f)(2). Indeed, “[a]ll bail decisions rest on predictions of a defendant’s future behavior. It would be anomalous to hold that such predictions cannot rest on a defendant’s recent conduct in another proceeding, which may shed considerable light on his motive, capacity and propensity to commit certain acts.” United States v. Gotti, 794 F.2d 773, 779 (1986), citing United States v. Martir, 782 F.2d 1141, 1146 (2d Cir. 1986). Given the

3 relative ease with which the defendant conspired to obstruct justice in his client’s case, there is a serious risk that the defendant would commit similar acts in his own. His career, financial well-being and personal liberty are at stake. For all these reasons, the government respectfully submits that it has demonstrated by a preponderance of the evidence that the defendant “will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror.” 18 U.S.C. § 3142(f)(2). What is left for the Court is a determination “whether any condition or combination of conditions set forth in [18 U.S.C. § 3142(c)] will reasonably assure the appearance of [the defendant] and the safety of any person and the community.” 18 U.S.C. § 3142(f). Consistent with the parties’ agreement at the initial appearance, the present bond contains a sufficient combination of conditions to overcome the need for detention.1 See 18 U.S.C. § 3142(g). That bond is in the amount of $3.5 million, secured by the defendant’s home (18 U.S.C. § 3142(c)(xi)) and the signature of three financially responsible people (18 U.S.C. § 3142(c)(xii)). In comparison, the requested unsecured personal recognizance bond, when considered in light of the factors enumerated in 18 U.S.C. § 3142(g), is woefully inadequate. First, the nature and circumstances of the offense charged are particularly disturbing. 18 U.S.C. § 3142(g)(1).

1

The

Accordingly, the government is not required to demonstrate, as the defendant suggests, that the defendant poses a risk of flight or danger to the community. Such burden is shouldered by the government only if it were to maintain that there was no condition nor combination of conditions that would reasonably assure the appearance of the defendant as required and protect the safety of the community. 18 U.S.C. § 3142(e) (“If, after a hearing pursuant to the provisions of subsection (f) of this section, the judicial officer finds that no condition or combination of conditions will reasonable assure the appearance of the person as required and the safety of any other person and the community, such judicial officer shall order the detention of the person before trial.”); 18 U.S.C. § 3142(f) (“The facts the judicial officer uses to support a finding pursuant to subsection (e) that no condition or combination of conditions will reasonably assure the safety of any other person and the community shall be supported by clear and convincing evidence.”)(emphasis added)).

4 defendant, in his capacity as an attorney, sought to undermine the criminal justice system by tampering with witnesses. Among the methods the defendant discussed were paying witnesses bribes and committing acts of violence against them or their family members. Left to his own devices and without the threat of any economic sanctions against himself or those close to him, as the defendant requests, the Court can have little confidence that the defendant will not obstruct or attempt to obstruct justice. This is especially true now that he, as opposed simply to a client, would benefit from the commission of such a crime. Second, as the evidence against the defendant includes his recorded conversations with the CW, the weight of the evidence against the defendant is very strong. 18 U.S.C. § 3142(g)(2). Third, the fact that the defendant committed his crimes while an officer of the Court factors strongly against his character. 18 U.S.C. § 3142(g)(3). Moreover, his substantial financial resources and solvency require both a substantial bond and one that is secured. Id. Finally, for the reasons discussed above, there exists a palpable danger were the defendant released without significant pre-trial conditions. 18 U.S.C. § 3142(g)(4). For all these reasons, the government respectfully submits that the present bond represents a sufficient combination of conditions to reasonably assure the appearance of the defendant as required and the safety of any other person and the community. Accordingly, we respectfully request that the Court deny the defendant’s request to continue his release on an unsecured personal recognizance bond. Respectfully submitted, BENTON J. CAMPBELL United States Attorney By:

/s/ Steven L. D’Alessandro Morris J. Fodeman Assistant U.S. Attorneys

cc: Gerald Shargel, Esq. (Via ECF) Clerk of the Court (JG) (Via ECF)