Tamper Proof

United States v. Simels, No. 09-5117-cr (2d Cir. August 12, 2011) (Newman, Calabresi, Hall, CJJ)

Former defense attorney Robert Simels appealed his conviction, after a jury trial, of various counts relating to a witness-tampering scheme, and his fourteen-year sentence. The circuit dismissed two minor counts as insufficient but otherwise affirmed.

The case arose from Simels’ representation of one Shaheed Khan, a Guyanese narcotics trafficker, who was detained at the MCC. The case against Simels had three main components. First, he lied to prison officials in an effort to speak to another prisoner, David Clarke, whom he believed to be a witness against Khan, by saying he was Clarke’s attorney. Second, an associate of Khan’s, Selwyn Vaughn, had several conversations with Simels, in which Simels discussed bribing and threatening potential witnesses against Khan. Vaughn had approached the DEA when he learned that Simels was reaching out to him, and wore a wire during these discussions. Third, the government recorded conversations between Simels and Khan in an attorney-client visiting room at the MCC.

Khan ultimately pled guilty and, in doing so, waived any claim that the government violated the Fourth, Fifth and Sixth Amendments in investigating him. He also also waived his work-product and attorney-client privilege claims with respect to the investigation of Simels.

Simels raised a number of significant issues on appeal about the way the evidence against him was gathered, but the circuit affirmed.

Evidentiary Issues

Simels' first argument was based on the Sixth Amendment. The court agreed that the use of an informant to meet with him and discuss his defense of Khan “potentially raise[d] serious issues concerning the Sixth Amendment rights of the lawyer’s client and other issues arising from intrusion into the attorney-client relationship.”

Simels asserted third-party standing over Khan’s Sixth Amendment rights. But the court, having identified the importance of the standing question, did not really resolve it. The court held that the “law is unclear” on the point, but would “assume that Simels can assert a Sixth Amendment right on behalf of his client” for the purposes of his own appeal.

As to the merits of the Sixth Amendment claim, the opinion is similarly inconclusive. It wonders whether investigators who believe that an attorney is attempting to obstruct justice in the course of representing a client “are constitutionally required to have a reasonable basis for their suspicion of possible obstruction before sending an informant to contact the lawyer,” but stops short of holding that the requirement exists. Instead, it concludes only that “the existence of such a basis adequately allays any concern that the attorney-client relationship has been improperly invaded.”

And here, the district court’s finding that the DEA had reasonable basis was adequate. It relied on Simel’s deception so that he could meet with Clarke, and Vaughn’s initial report to the DEA that he believed that Khan and Simels wanted to recruit him to assist in intimidating Clarke and others.

Simels also raised an interesting wiretap issue. The district court had held that the government obtained the recordings of Simels and Khan at the MCC in violation of Title III and suppressed them. But the court allowed the government to use the recordings to impeach Simel on cross-examination. The circuit again affirmed. Although 18 U.S.C. § 2515 provides that illegally obtained wire communications may not be “received in evidence in any trial,” Title III was not meant to provide more protection than the Fourth Amendment, and it has long been recognized that evidence obtained in violation of the Fourth Amendment can be used for impeachment purposes.

Sufficiency Issues

The circuit had no trouble finding that there was sufficient evidence to support the bulk of the counts of conviction - the attempted obstruction of various individual witnesses - but agreed that two counts relating to the importation and possession of certain electronic surveillance devices had to be tossed. The evidence established that the devices were inoperable, and the circuit concluded that the statute - 18 U.S.C. 2512 - which covers devices “which can be used to intercept” communications, excludes inoperable equipment. But, since Simels received time served and no supervised release on these counts, and since there was no “prejudicial spillover" affecting the other counts, all that was necessary was a limited remand for the entry of a corrected judgment reflecting the dismissal of these counts.

Sentencing Issues

Of Simels’ three sentencing claims, one stands out. He received a fourteen-year sentence and, at his request, the judge recommended that he be housed at the camp at FCI Otisville. At the time of sentencing, the judge was unaware that the BOP will not designate a prisoner to a camp, absent a BOP waiver, if the defendant is sentenced to more than ten years’ imprisonment. The judge only learned this after Simels was sentenced. Even so, for reasons unexplained, “the sentence was not imposed under a misunderstanding of facts that would impair the validity of the sentence.”

Our Blips Aren't Sealed

United States v. Amanuel, No. 06-1103-cr (2d Cir. July 29, 2010) (Cabranes, Katzmann, Hall, CJJ)

After a nearly eight-year journey through both the state and federal courts without being tried, the defendants here will finally have to face the music. In this decision, the circuit vacated most of the district court’s order suppressing the evidence against them.

The State Court Proceedings

In 2002, New York state police officers obtained a warrant to intercept a digital pager used by the defendants, who were suspected of drug trafficking. The officers were supposed to record the intercepted communications electronically, but did not do so. Instead, they visually monitored a clone pager and entered the intercepted information in a handwritten log. When the warrant expired, they gave 84 pages of this material to a state judge for sealing. Based on the contents of the logs, state prosecutors then obtained a warrant to monitor and record the defendants’ cell phones; information from those wiretaps provided probable cause for the issuance of search warrants, through which physical evidence was obtained.

Once the defendants were charged in state court, however, they successfully moved to suppress the evidence against them. Under state law, all electronic interceptions are supposed to be recorded electronically. Since the pager intercepts were not, the state court suppressed all evidence that derived both directly and indirectly from the pager interception warrant. Since that was all of the evidence against the defendants, the court dismissed the indictment.

The District Court Proceedings

The feds took up the case in 2005, and charged the defendants with a cocaine conspiracy. The defendants again moved to suppress, and the district court granted the motion. Like the state court, it suppressed all of the evidence. Although the court held that federal law, not state law, governed, it concluded that the handwritten logs were not “sealed” as required by the applicable wiretap statute, 18 U.S.C. § 2518(8)(a). Finding that this was a Fourth Amendment violation, the district court suppressed all the evidence - the pager intercepts as well as the wiretap and physical evidence that derived from them.

On this, the government’s appeal, the circuit held that only the pager intercepts should have been suppressed. It accordingly vacated the remainder of the suppression ruling.

The Circuit’s Rationale

The circuit began by agreeing with the district court that federal law, not state law governs, even though the eavesdropping warrant was issued by a state judge.

The court also agreed that the police had not complied with the relevant federal statute. Section 2518(8)(a) requires that intercepted electronic communications “shall, if possible,” be recorded electronically and in “such a way” that will protect the recordings from “editing or other alterations.” Immediately after expiration of the warrant authorization, the recordings are to be provided to the judge who issued the warrant and “sealed.”

The circuit held that the recording method here - handwritten transcription - did not satisfy § 2518(8)(a). The statute requires mechanical recording that “minimize[s] human involvement and limit[s] the opportunity for intentional alteration and human error.” The court also held that it would have been possible for the state police to record the intercepts properly. A recording device was available, and the state offered no explanation for why it was not used.

Next, the circuit agreed that the sealing requirement of the statute was not met. The state investigators did promptly give the handwritten log to the state judge for sealing. But the sealing requirement flows directly from the electronic recording requirement; records “that do not comply with the recording requirements ... are not susceptible to sealing.” Accordingly, the “sealing contemplated by the statue simply was not possible” here. The sealing is supposed to protect the integrity of the recordings; since the handwritten logs already were of suspect integrity, their sealing would be “of little purpose.”

But the circuit disagreed with the district court’s remedy. The statute expressly provides that its own remedies are the only ones available for non-constitutional violations, and the district court erred in finding a constitutional violation. The sealing and recording requirements of § 2518(8)(a) are “evidentiary in nature” and were “enacted to ensure that the communications are admissible under the rules of evidence,” not to safeguard a constitutionally protected privacy right. While the failure to properly record and seal might in some cases “implicate a privacy right,” by itself it does not. And here, since there was a warrant and the defendants made no other privacy claim, there was no constitutional violation.

Thus, the district court erred in suppressing both the intercepted communications and all evidence derived from them. The defendants were entitled only to the statute’s more limited exclusionary remedy: the statute provides only that, absent a seal or a “satisfactory explanation,” the contents of the intercept cannot be used or disclosed in the ways prescribed by 18 U.S.C. § 2517(3). But that subsection discusses only the testimonial use and disclosure of the material. Subsections (1) and (2) are the ones that permit the disclosure use of intercepted communications for investigative purposes, and they are not covered by the remedial language. Accordingly, the exclusionary remedy here only applies to the unsealed pager intercepts themselves - the government cannot offer testimony regarding their contents. But the government is not precluded from offering evidence obtained through the warrants that were based on the pager interceptions.

Tapped Out

United States v. Concepcion, No. 08-3785-cr (2d Cir. August 31, 2009) McLaughlin, Calabresi, Sack, CJJ)

On this government appeal, the court reversed a district court order suppressing evidence obtained pursuant to a wiretap.

Background

One of Concepcion’s former cellmates (the "CI") went to the FBI claiming that Concepcion planned to assist foreign terrorists in attacking the United States. Based on this, the government applied for and received authorization from Judge Marrero to tap Concepcion’s cell phone for 30 days. The wiretap uncovered no evidence of terrorism, but Concepcion’s telephone conversations led the FBI to believe that he was involved in drug trafficking.

After 30 days, the government submitted a second wiretap application to Judge Marrero that focused on this new evidence. As required under 18 U.S.C. § 2518(1)(c), the supporting affidavit detailed investigative techniques other than wiretaps that had either failed or were likely to fail. It alleged that the government could not use the original CI, because he was incarcerated. The FBI had tried to introduce an undercover agent through the CI, but Concepcion would not take the bait. And, since the government did not know any of Concepcion’s other associates, it could not investigate his activities through the use of other informants. The affidavit next reviewed the FBI’s "limited surveillance" of Concepcion; since none of his associates had been identified, the affidavit indicated that surveillance would be of "limited utility."

Based on this affidavit, Judge Marrero authorized a second wiretap. During the following month, the wiretap picked up additional conversations indicating that Concepcion was involved in a drug conspiracy. A few months later, Concepcion was arrested, and the case was assigned to Judge Scheindlin.

Judge Scheindlin granted Concepcion’s motion to suppress the wiretap evidence, holding that the government had failed to establish that alternative investigative techniques had failed or were likely to fail.

The Circuit’s Decision

The appellate standard of review is highly deferential, limited only to whether the "facts set forth in the application were minimally adequate to support the determination that was made." In this case, however, the court had to decide to which district judge this deference was owed, since Judge Marrero found the wiretap application sufficient, while Judge Scheindlin did not. The court did not definitively settle the question, because here the parties agreed during oral argument that the decision to be reviewed was that of Judge Marrero, and the court accepted the concession.

Next the court reviewed the wiretap statutes themselves, pausing to note the important privacy considerations that are incorporated into those rules. "[T]he question is not whether a wiretap provides the simplest, most efficient means of conducting an investigation; telephone surveillance may only be used when it is necessary to assist in law enforcement."

The facts here were unusual; the FBI "stumbled across" the drug activity during its fruitless terrorism investigation, leaving it with only two means of investigation other than wiretaps - the CI or physical surveillance. While characterizing the case as "exceptionally close," the court disagreed with Judge Scheindlin’s conclusion that the wiretap application was insufficient with respect to those investigative techniques.

The court agreed with the FBI that there was no reasonable way that the CI could be used to investigate Concepcion - Concepcion would not work with him because he was still incarcerated. This left the government only with "traditional surveillance."

As to this consideration, the court noted with displeasure that the supporting affidavit was "less than thorough." Many of the affidavit’s statements about surveillance - such as a claim that drug traffickers are "extremely surveillance conscious" - apply "to all drug cases." Moreover the affidavit did not detail the government’s specific attempts at surveillance. It simply alleged that they had been "numerous." "These general explanations leave a reviewing court to wonder how many times the [FBI] attempted surveillance, at what time, where exactly, and why the [FBI] could not ‘definitively identify’ any of Concepcion’s associates." It is not true that a wiretap is necessary "simply because other unknown individuals" are involved in a conspiracy. "[P]art of the reason law enforcement performs physical surveillance is to identify co-conspirators."

However, despite its defects, here the affidavit was "at least ‘minimally adequate to support’" Judge Marrero’s decision to grant the wiretap. It contained "just enough" facts to indicate that other techniques were not working and that, because of the unusual origins of the case, the FBI could not develop new leads in any other way.

The court accordingly reversed the suppression order, although it ended with a fairly strong admonishment to the government: "we do not endorse the effort put forth by the Government in its affidavit. A first read leaves the impression that the Government chose to reapply for the wiretap not because it was necessary, but because it was easier than beginning a new investigation." In the future, the government "would do well to spell out in more detail its investigative efforts" if it wishes to avoid "future suppression orders."

All of which is, of course, a cold comfort for Mr. Concepcion.

A Family Affair

United States v. Yannotti, No. 06-5571-cr (2d Cir. September 4, 2008) (Katzmann, Parker, Raggi, CJJ)

Michael Yannotti was one of several Gambino crime family members accused of multiple violent acts - including extortion, loansharking and murder. After a jury trial, he was convicted of a RICO conspiracy, although the only predicates that the jury could agree that he committed were loansharking activities that had taken place eight years or more before he was indicted. The jury did not reach a verdict on a substantive RICO count, which the district court then dismissed on the ground that the government had failed to prove that Yannotti committed any predicate within the five-year statute of limitations. But the court did not dismiss the conspiracy count and, when it sentenced him, based its findings on conduct that the jury had not agreed that the government had proven. Yannotti received twenty years in prison, the statutory maximum.

The court of appeals affirmed both the conviction and the sentence.

1. Sufficiency of the Evidence

Yannotti first claimed that the evidence that he participated in a RICO conspiracy was insufficient. He specifically argued that the government did not prove that he was a member of the charged RICO conspiracy, which he maintained was defined by the pattern of racketeering acts charged in the indictment and not merely by his membership in the Gambino family.

The circuit held that its precedents “undermine[d]” Yannotti’s “core argument,” even as it agreed that there was no proof of his personal involvement in a predicate act that occurred within the statute of limitations. Specifically, the agreement proscribed by the racketeering conspiracy statute is the agreement “to participate in a charged enterprise’s affairs” and not one to “commit predicate acts.” Moreover, a conspirator need not be fully informed about his co-conspirators’ specific criminal acts, as long as he agreed to participate in the broader criminal conspiracy and the acts evincing his participation were within the scope of the illegal agreement.

Accordingly, here, the evidence was sufficient. The Gambino family was an enterprise whose members “routinely conducted its affairs through a nearly limitless range of racketeering activities.” Moreover, Yannotti had been formally inducted as a “solder” in the family, and had pledged to use any means necessary to further its objectives. Thus a jury could reasonably find that he agreed to participate in the family’s affairs.

Nor was there any time bar. A RICO conspiracy is only complete for statute of limitations purposes when its purposes have either been accomplished or abandoned. Thus, even if all of Yannotti’s own conduct occurred outside the statute of limitations, he was still liable, absent proof that the conspiracy concluded or that he withdrew.

2. Evidentiary Issues

Yannotti challenged two evidentiary rulings, both relating to two 1996 phone calls in which he discussed loansharking.

a. The Wiretap

First, he challenged the admission of the calls themselves because the conversations were obtained via a court-ordered wiretap, but Yannotti himself was not named in the wiretap application.

The circuit found no error. The application did not limit the request to conversations made to and by the owner of the target telephone. It included him, six associates, and “others as yet unknown,” and there is no legal requirement that the government specify in the application “each individual whose conversations may be intercepted.” Here, in authorizing the interceptions, the court properly found probable cause to believe that other unnamed targets would use that phone. Moreover, the intercepts were appropriately limited to conversations that addressed the conspiracy’s affairs. This and the order’s temporal limitations were adequate safeguards to prevent it from being transformed into a “general warrant.”

b. Lay Witness Opinion Testimony

Over objection, the district court permitted a Gambino family member to interpret comments that Yannotti made during the two conversations. Under Rule 701, a lay witness can only give opinion testimony if the opinion is (1) rationally based on his perceptions, (2) helpful to the determination of a fact in issue and (3) not based on scientific, or other specialized knowledge. Yannotti argued that this third prong was not satisfied, because the witness based his testimony on his specialized knowledge of the Gambino family’s operations.

The circuit disagreed. The first two prongs of the rule were clearly met here. The witness had been personally involved in the loansharking activities of the Gambino family, and his testimony was unquestionably helpful to the jury.

Thus, the court held, “where a witness derives his opinion solely from insider perceptions of a conspiracy of which he was a member, he may share his perspective as to aspects of the scheme about which he has gained knowledge,” and may do so as a lay witness under Rule 701. This is so despite the third prong of the rule. Here, the witness’s opinions came from his own loansharking experience and hence “derived from a reasoning process familiar to average persons,” and did not “depend on the sort of specialized training that” expert witnesses rely on “when interpreting the results of their own experiments or investigations.”

3. The Sentencing

When the court sentenced Yannotti, it took into account, for guidelines purposes, an attempted murder that the government had not proven beyond a reasonable doubt, but that the court concluded had been proven by a preponderance of the evidence.

Yannotti argued that the court violated U.S.S.G. §1B1.2(d), which provides that a “conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense that the defendant conspired to commit.” He asserted that this means that the guideline range for participation in a RICO conspiracy can be calculated based only on those predicate acts of which the defendant was actually convicted.

The circuit disagreed. The charged conspiracy, although it involved multiple racketeering predicates, was not the kind of “multi-object conspiracy” referenced in § 1B1.2(d). Rather, the sole object of the conspiracy was to further the affairs of the Gambino family. Despite all of the various acts that made up this pattern of activity, the underlying objective was this singular one. “Because overt acts are not distinct offenses that must be proven to sustain a RICO conspiracy conviction, and the RICO conspiracy charged in this case is appropriately viewed as a single-object conspiracy ... U.S.S.G. § 1B1.2(d) is inapplicable.”