The opinion of the court was delivered by: John Gleeson, United States District Judge
In the course of investigating suspicions that defendants Robert Simels and Arienne Irving were engaged in a conspiracy with Shaheed "Roger" Khan to obstruct justice while acting as criminal defense attorneys, the government obtained a intercept warrant under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 et seq. ("Title III"). Pursuant to the warrant, federal agents made recordings of consultations between the defendants and Khan at the Metropolitan Correction Center ("the MCC recordings"). In a prior opinion, I found that the warrant's minimization provisions fell afoul of Title III's requirements. United States v. Simels, No. 08-CR-640, 2009 WL 1924746 (E.D.N.Y. July 2, 2009) (Simels II).*fn1 Accordingly, I granted Simels's pre-trial motion to suppress the MCC recordings.
At trial, Simels testified in his own defense. The government contended that his testimony was contradicted by the MCC recordings, and moved to introduce portions of the previously-suppressed tapes. Ruling from the bench, I concluded that there is an impeachment exception to Title III's exclusionary rule, and permitted the government to play the relevant excerpts from the MCC recordings for the purpose of challenging Simels's credibility. I promised that an opinion would follow, and this opinion explains my reasons for allowing the MCC recordings to be used for impeachment.
In June 2006, Shaheed "Roger" Khan was arrested in Suriname and transported to the United States to face narcotics trafficking charges in this district. A major figure in his native Guyana, Khan was accused of being the leader of a criminal enterprise importing large amounts of cocaine to the United States. Once brought to the United States, Khan was detained at the MCC in Manhattan. He hired a team of attorneys to represent him, including Robert Simels and Simels's associate, Arienne Irving.
In the course of the representation, federal agents began to investigatesuspicions that Simels and Irving were conspiring with Khan to influence potential witnesses in Khan's upcoming trial.*fn2 On several occasions in the summer of 2008, Simels met with a member of Khan's Guyanese organization, Selwyn Vaughn, also known as "Fineman." During conversations at Simels's law offices, Simels and Vaughn discussed the possibility that Vaughn would testify at Khan's trial, which was then scheduled to begin on October 27, 2008. In addition, Vaughn also offered to assist Simels's investigations by helping to contact possible witnesses for and against Khan. Unbeknownst to Khan and to the defendants, Vaughn was acting at the behest of federal law enforcement agents and was wearing a recording device during his meetings with Simels.
David Clarke and Leslyn Camacho were among the potential witnesses that Simels and Vaughn discussed. Clarke, a former major in the Guyanese army, was associated with a gang in Guyana aligned against Khan. Clarke claimed to have sold cocaine to Khan, and was slated to be the government's main cooperating witness. Simels told Vaughn: "I think their whole case [against Khan] fall[s] apart if Clarke is either neutralized by us, or neutralized by us on cross-examination." Gov't Ex. 401T10 at 14.*fn3 Clarke, however, was himself incarcerated on federal narcotics charges and hence was difficult for Simels to contact.*fn4
Leslyn Camacho, who apparently lived somewhere in Brooklyn, was Clarke's girlfriend. Simels and Vaughn discussed the possibility that Camacho could be helpful to the defense. Simels said that he hoped Camacho would assist in efforts to impeach Clarke's allegations by testifying that Clarke was lying when he accused Khan of being a drug dealer. Even better, Clarke himself might be persuaded to recant his accusations and to abandon his cooperation agreement. At the direction of law enforcement agents, Vaughn told Simels that Clarke would "rethink his position" once he and Simels started reaching out to Camacho and to Clarke's relatives. More specifically, Vaughn suggested that, once Clarke's relatives got in touch with him, he could "probably suddenly just get amnesia." Gov't Ex. 401T10 at 21. To this last remark, Simels replied: "That's a terrible thing, but if it happens, it happens." Id. Shortly thereafter, Vaughn said: "Neutralize Clarke. We either try to buy them or we gotta drive fear in them, is the only option." Simels's response: "I agree with you. I agree with you."
Id. at 23.*fn5 Simels left it to Vaughn to "figure out what's going to best get to" Clarke. Id. at 35. The two agreed that Vaughn would find Camacho.
On July 18, 2008, Vaughn falsely told Simels that he had been in touch with Camacho, and that Clarke was "willing to play," but that Clarke and Camacho wanted to know what was in it for them. Gov't Ex. 401T18 at 4. Simels and Vaughn discussed possible amounts that Clarke and Camacho might be paid. Simels wanted Camacho to corroborate damaging rumors Simels had heard about Clarke. In Vaughn's presence, Simels typed up a rough draft of an affidavit that Camacho might ultimately sign regarding Clarke's alleged affairs, drug use, and anti-American bias. Vaughn left the office with a copy of the draft. Tr. 454-55.
On July 21 and July 22, 2009, Vaughn called Simels to tell him -- again, falsely -- that Camacho was "prepared to do. what we want" and that "she wants ten for herself." Gov't Ex. 401T21 at 1. Vaughn said that Camacho wanted money up front before signing the affidavit. Simels told Vaughn that she would get only paid once she signed the document. Gov't Ex. 401T22 at 2-3.
On July 29, 2008, Simels visited Khan at the MCC. The next day, Vaughn returned to Simels's office. Again, the two men discussed the amount that Camacho would be paid for her help. Simels asked: "What does she want to just meet with me? $500?. I'm serious. $250? $500? Just to meet with me. And then, upon the signing of the document, she gets X more?" Gov't Ex. 401T26 at 7. Simels also told Vaughn that Khan wanted Vaughn to "get the numbers down," and that Khan would "make up" to Vaughn for whatever he could save on the $10,000. Id. at 11.
On August 5, 2008, Vaughn called Simels to tell him that Camacho was "playing hardball," and that she wanted half the money up front. Gov't Ex. 401T28 at 1. Simels replied that he was "the guy with the money" and that if Camacho wanted "witness fees" she had to play by his rules, rather than her own. Id. at 3.
Eventually, Vaughn told Simels that Camacho was willing to come to Simels's office to sign an affidavit and discuss her testimony. Vaughn agreed to bring her to the office on September 10, 2008. Instead, federal agents came to the office on that day and arrested Simels and Irving.
In addition to the consensual recordings of Vaughn's conversations with Simels, the investigators sought to gather evidence using nonconsensual electronic surveillance. The government obtained court authorization to intercept communications between Khan and Simels or Irving in the attorneys' visiting room at the MCC.*fn6
Title III requires that electronic surveillance "be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter." 18 U.S.C. § 2518(5). In an attempt to comply with this minimization requirement, the government proposed two provisions, both of which were ultimately contained in the court order. The first of these was a standard minimization provision, under which the surveillance was required to be conducted in such a way as to minimize the interception of non-pertinent and privileged communications. The second minimization provision authorized an "additional" post-interception procedure, whereby the investigating agents would record -- but not listen to -- entire meetings, before turning the tapes over to a special segregated group of agents and Assistant United States Attorneys who would minimize non-pertinent communications and excise privileged material from the tapes. These "Wall Agents" and "Wall AUSAs" would then give the minimized recordings back to the investigative team.
After receiving the court order, the government recorded two meetings: one between Irving and Khan on July 24, 2008, and another between Simels and Khan on July 29, 2008. The government followed only the second of the two minimization directives, and thus the meetings were recorded in their entirety and not contemporaneously monitored.
C. The Successful Pre-Trial Motion to Suppress the MCC Recordings
Simels and Irving were indicted on various charges relating to their representation of Khan. Before the trial, the defendants moved on various grounds to preclude the government from introducing the Title III recordings. On July 2, 2009, I granted Simels's motion to suppress. Simels II, 2009 WL 1924746. I ruled that the government's post-interception minimization procedure was improper under Title III's minimization requirements. Id. at *9. Moreover, I found that the warrant was self-contradictory, because it required the government to engage in contemporaneous minimization but also purported to allow post-interception minimization. The government's violation of Title III warranted suppression of the recordings under each of the three grounds contained in 18 U.S.C. § 2518(10)(a), because (i) the communications were unlawfully intercepted; (ii) the order of authorization was insufficient on its face; and (iii) the interception was not made in conformity with the order of authorization. Simels II, 2009 WL 1924746, at *9-13.
In its final form, the superseding indictment charged Simels with thirteen counts and Irving with twelve.*fn7 Particularly relevant to this opinion are the counts that charged both defendants with conspiring to obstruct justice by influencing witnesses (Count One), attempting to obstruct justice by influencing David Clarke's testimony in the Khan trial (Count Three), attempting to obstruct justice by influencing ...