New York Federal Criminal Practice Blog
March 17, 2010

Lawyers in the Dock: EDNY Judge Acquits Law Associate of Witness Tampering

Throwing out the convictions of Robert Simels’ associate for witness tampering among other charges, EDNY Judge Gleeson found in United States v. Irving, 2010 WL 430952 (E.D.N.Y. February 8, 2010), that there was insufficient evidence to support the “sizable inferential leap[s]” necessary to find the associate knew of Simels’ “hair-raisingly criminal” plans.  The case, previously discussed here and here, is notable because of what it says (and doesn’t say) about “mere association” in a criminal case, and for its discussion of the standards applicable to sufficiency challenges.  

Mere Association Not Enough

Irving may have been Simels’ law associate, but that fact does not dilute or alter the well-established principle that “mere association with those implicated in an unlawful undertaking is not enough to prove knowing involvement.”  Notably (and rightly) absent from the decision is any suggestion that Irving, by virtue of her training, status and professional responsibilities as a lawyer, should be held to a different standard of criminal liability:

Specifically, Irving’s association with Simels and her presence in his law offices were insufficient to establish that she aided and abetted his crimes, even if her actions assisted him and indeed even if she were aware that he was committing a crime. As I instructed the jury at trial, the government was required to prove beyond a reasonable doubt that Irving herself acted with the specific intent to influence or prevent the testimony of the witnesses through intimidation, threats or corrupt persuasion.

Government’s Case Less than the Sum of its Parts

In a lesson on effective summation, the decision deconstructs the government’s case against Irving in painstaking detail, showing how she was simply not present for any of the crucial meetings in which Simels was charged with plotting to intimidate witnesses, and how her various emails and memoranda did not establish, as the government claimed, that she knew of any plan to “neutralize” witnesses by illegal means.  The court goes on:

It often happens that the whole of the government’s case is greater than the sum of its parts . . . However, that is not the case here.  Indeed, when the evidence against Irving is viewed from a broader perspective, it is arguably less than the sum of its parts, for the theory that Simels implicated Irving in his crimes made no sense. Simels had been a criminal defense attorney for more than 30 years.  Irving was a young, inexperienced attorney. When she began working for him in December 2006, Simels had already begun defending Khan.  Simels had numerous reasons to involve Irving in his many legitimate lawyering functions but none to involve her in his illegal activity.  

Competing Inferences of Guilt and Innocence

How should a court assess a sufficiency challenge where the evidence gives equal circumstantial support to a theory of guilt and a theory of innocence?  Not clear under Second Circuit law, Judge Gleeson points out, noting decisions that give opposing answers.  So he applies the more stringent formulation, “which requires deference to the jury’s verdict even where a verdict of not guilty would have been equally supported by the evidence at trial.”  But even under this standard, he notes that

[T]he Second Circuit has emphasized that where a fact to be proved is also an element of the offense, “it is not enough that the inferences in the government’s favor are permissible.”  The court “must also be satisfied that the inferences are sufficiently supported to permit a rational juror to find that the element, like all elements, is established beyond a reasonable doubt.”


This was a case where Judge Gleeson had a “very real concern that an innocent person may have been convicted’ – a concern, I would argue, that is heightened in cases involving prosecutions of lawyers for acts of advocacy, because jurors may not fully appreciate the dictates and ethics of zealous advocacy.  Processes at the core of advocacy – withholding judgment, demanding the development of additional facts, and embracing the concept that memory and personal narratives can be fluid – are often viewed by non-lawyers as manipulative and relativistic.  For example, as Judge Gleeson points out (but a non-lawyer may not immediately grasp): “There is nothing remotely criminal about a defense attorney telling a defense investigator that a particular witness could offer damaging testimony against the defendant at trial.  And Irving’s act of giving [a witness’s] address to a person acting as an investigator for the defense is innocuous.”  Luckily for Irving, her trial judge knows the difference between lawyering on the edge of ethics and lawyering that spills over into criminal conduct.

Lawyers: Javier Solano, Lawrence Berg, Law Offices of Javier A. Solano, PLLC (Defendant); AUSAs Daniel Brownell, Steven D'Alessandro, Morris Fodeman.

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