– Khan refuses to waive privilege
Robert Simels, who is facing witnessing tampering charges, has moved for an order to allow his defence team to inspect and use at trial materials that potentially contain communications that fall within the attorney-client privilege between him and his ex-client, Guyanese drug-trafficking accused Roger Khan.
Simels was forced to move to the court through his lawyer Gerald L. Shargel as Khan has refused to waive his attorney-client privilege. Simels, in a motion, said that his defence of the witness tampering charge is “unavoidably dependent on exposing large elements of his former client’s attorney-client privileged communications and attorney product. The nature of the charge makes it so.”
Simels, his assistant Arianne Irving and Khan are facing witnessing tampering charges. The three are charged with conspiracy to tamper with witnesses scheduled to testify in the drug trial. Among other things, Simels is accused of paying US$1,000 and discussing “eliminating and neutralizing” witnesses. He and his assistant allegedly had numerous discussions with a US government informant, to locate certain individuals close to the cases and to get them to rescind statements, not to testify against Khan, and even be “eliminated.” The US informant with whom the two had discussions, and who was listed as reliable in court documents as information from him has led to drug busts in the past, was also asked to testify for Khan during the trial.
In a motion on Simels behalf, Shargel said the order was being sought on two grounds–his client’s constitutional right to present evidence in his defence and the exception to the common law attorney-client privilege that permits attorneys to disclose confidential information and work product to the extent that the attorney reasonably believes such disclosure is necessary to defend himself against a charge of criminal wrongdoing.
The lawyer said the materials are highly relevant and necessary to Simels preparation of his defence. He said because the government has based its charge against Simels on a few recorded conversations between its informant and Simels and Irving, the voluminous files that Simels’ law firm prepared in anticipation of Khan’s trial become highly relevant to rebut the government’s charge. “Mr Simels intends to show at trial the substantial and legitimate work performed by his law firm in preparation of Mr Khan’s trial. This context is necessary for the jury to understand the government’s limited recordings. The presentation of this evidence at trial is, therefore, necessary to Mr Simels’ defence,” the lawyer said.
It was noted that the case presents a troublesome conflict since on the one hand it would be prejudicial and constitutionally infirm to deprive Simels of the evidence of his legitimate and substantial preparation of Khan’s case, including critical information to contextualise the government’s few recorded conversations by its informant. While on the other hand, the lawyer said it would also be unfair to disregard Khan’s privilege and admit the evidence at trial in this case, while Khan still awaits trial on his underlying narcotics case for which he can receive a mandatory life sentence.
But it was noted that in the recordings on which the government has brought the indictment against Simels are no more than a few hours in length in total and span an approximately four month period– although the substantive conversations at issue include no more than three or four visits by the informant at Simels’ law offices. The motion pointed out that Simels had represented Khan for more than two years and he had conducted dozens of interviews with potential witnesses, hired several private investigators, litigated a number of pre-trial issues and prepared many defence strategy memoranda and outlines in preparation for trial. “Much of this information is likely necessary to present at trial to place in context the few lines of overheard conversation on which the government seeks to condemn Mr Simels. It is expected that the portions of this information will directly contradict the inference the government seeks to make based on its informant’s recordings,” the motion said.
It was stated that it would be a perversion of the truth-seeking function of the court to allow the government to present snippets of recorded conversations with a government informant and preclude Simels from presenting the volumes of context in which those snippets must be viewed.
And according to Simels’ lawyer, it is not inconceivable that Khan’s drug case maybe delayed until 2010 and that the witness tampering case would be tried before. He pointed out that since his client withdrew as Khan’s lawyer, the Guyanese has not retained a new counsel and the court has declined to appoint a new counsel. And once the issue of the counsel is resolved, the new counsel must learn and prepare a case involving extremely voluminous discovery which Simels had been reviewing over the last two years. “Moreover, the narcotics case involves still unresolved complex pre-trial motion litigation regarding obscure issues of international law… [and] litigation involving the admissibility of significant amounts of foreign source evidence and the government’s attempt to introduce… ‘other acts’ evidence, including murders,” the motion said. In contrast, the case against Simels involves a single count, a small amount of discovery, and conduct encompassing only a few months.
