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U.S.

Department of Justice

United States Attorney


Eastern District of New York
271 Cadman Plaza East
RF:SLD/MJF
F.#2008RO1522 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
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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). The

1
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)

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