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United States v. Khan

October 30, 2007


The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge


Before the court is a motion by Defendant Shaheed Khan ("Defendant" or "Khan") requesting, pursuant to 28 U.S.C. § 455(a), to disqualify the court. For the reasons described below, Defendant's motion is denied.

I. Background

Khan is a Guyanese national charged with multiple counts of distribution, importation, and possession of cocaine and engaging as a principal administrator, organizer, and leader of a continuing criminal enterprise in the Eastern District of New York and elsewhere. Khan was charged by indictment on April 13, 2006 and by superseding indictment on February 23, 2007. His arraignment was held on June 30, 2006 before United States Magistrate Judge Roanne L. Mann. Khan first appeared before this judge for a status conference held on August 4, 2006. To date, proceedings before the court have involved pretrial, collateral matters, including a bail application,*fn1 prison condition matters, possible conflict and recusal issues, and a violation of Eastern District of New York Local Criminal Rule 23.1 ("Rule 23.1").

A. Attorney Withdrawal Order

At a status conference held on May 21, 2007, attorney Telesforo Del Valle ("Del Valle") appeared for the first time on behalf of Defendant. The court informed the parties that Del Valle was on its conflict list, as the court is godmother to his youngest child and has a close relationship with his family. Simels stated that he would remain as lead counsel, that Del Valle would not be replacing either of the two existing defense attorneys but would serve as additional counsel, along with one, possibly two other attorneys also joining the defense. The court gave the parties three days, until May 24, 2007 when a status conference would be held, to consider whether they would waive the conflict ("May 24 conference").

At the May 24 conference, the court informed the parties that, upon conducting its own research and further reflection on the matter, it had determined that the appropriate course of action under the law was to address the conflict issue on its own, without input from the parties. See United States v. Kelly, 888 F.2d 732, 745 (11th Cir. 1989) ("We hold that, as a general rule, a federal judge should reach his own determination [on recusal], without calling upon counsel to express their views . . . . The too frequent practice of advising counsel of a possible conflict, and asking counsel to indicate their approval of a judge's remaining in a particular case is fraught with potential coercive elements which make this practice undesirable.") (internal quotation marks and citation omitted). Relying on binding Second Circuit precedent, the court directed Del Valle to withdraw as counsel. See In re FCC, 208 F.3d 137, 139 (2d Cir. 2000) ("As between a judge already assigned to a panel, and a lawyer who thereafter appears in circumstances where the appearance might cause an assigned judge to be recused, the lawyer will go and the judge will stay.")

B. Rule 23.1 Order

On June 13, 2007, plaintiff United States of America (the "Government") submitted a letter to the court, informing the court of an alleged violation of Rule 23.1 by defense counsel Robert Simels ("Simels"). Specifically, the Government charged Simels with identifying potential Government witnesses against Khan to the Guyanese press, thereby jeopardizing the safety of these individuals, as well as their friends and family. In addition, the Government alleged that Simels further violated Rule 23.1 by making statements in an attempt to publicly smear the identified individuals and by commenting on the merits of the case, the Government's motives, and the evidence in the case. The Government thus requested an order, pursuant to Rule 23.1(h), prohibiting Defendant's attorneys from making statements to the press in violation of Rule 23.1. In support of its request, the Government submitted a compact disc recording of a press conference Simels held before the Guyanese press on April 25, 2007 (the "press conference"), as well as a redacted and unredacted transcript of the recording, and Internet news articles reporting on Simels' comments at the press conference.

Simels submitted a response letter on June 19, 2007, opposing the Government's request. In his letter, Simels denied that he intended to violate Rule 23.1, asserting that the jury pool for this case could not have been tainted by statements made to the local press in Guyana and that the individuals whose names he had mentioned were independently known to the Guyanese press.

On July 13, 2007, the court held a hearing on the matter. At the hearing, the court imposed a gag order, stating that a written order would follow. On July 19, 2007, the court issued a Memorandum and Order ("July 19 Order"), finding that Simels' statements to the Guyanese press likely put numerous people and their families and friends in danger, thereby violating Rule 23.1's prohibition against the release of information or opinion reasonably likely to interfere with the due administration of justice. In addition, the court noted that it was conceivable for statements made to the local press in Guyana to taint the prospective jury pool in New York City. In considering the Government's motion, the court visited the Internet and ran a "Google" search for Defendant's name. The purpose of the "Google" search was to help assess whether Simels' comments made to the local press in Guyana could taint the jury pool here in New York City via the Internet.*fn2 The court found that they could, and the court further found that Simels' own statements reflected that he was attempting to "educate" potential jury members. However, the court declined to address whether it was reasonably likely that Simels' comments actually interfered with a fair trial in light of the fact that a trial date had not yet been set.

The court then issued a prohibition enjoining all counsel of record from making statements to the press in violation of Rule 23.1.*fn3 In addition, the court put all counsel on notice that any violation of the court's prohibition or of Rule 23.1 would result in a finding of contempt, the imposition of sanctions, and/or possible action by this court's grievance committee.*fn4

Finally, in response to a press member's comment at the press conference that Simels' Internet web site contained misleading information, the court visited the web site. As a result of what it observed on Simels' site, the court, in its July 19 Order, cautioned Simels to ensure that the content of his web site adheres to New York's Disciplinary ...

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