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U.S. Department of Justice
United States Attorney Eastern District of New York 
RF:SLD/MJF
271 Cadman Plaza East 
F.#2008RO1522
 Brooklyn, New York 11201
February 5, 2009The Honorable John GleesonUnited States District CourtEastern District of New York225 Cadman Plaza EastBrooklyn, New York 11201Re: United States v. Robert Simels, et al.Criminal Docket No. 08-640 (JG)Dear Judge Gleeson:The government respectfully submits this letter inopposition to the defendant Robert Simels’ request for amodification of his bond. At present, the defendant is releasedon a bond in the amount of $3.5 million, secured by his personalresidence and the signatures of three financially responsiblepersons. By letter dated, February 2, 2009, the defendant seeksto continue his release on an unsecured personal recognizancebond.In making his request, the defendant notes that thepresent bond was imposed without Magistrate Judge Pollak makingany findings regarding his risk of flight or danger to thecommunity. (Defendant’s Letter, p. 1). However, as the recordreflects, the absence of those findings was not because of a lackof evidence, but simply a lack of need. Indeed, the defendantconsented to having the present bond imposed upon him without ahearing. In any event, for the reasons discussed below, thecurrent conditions of the defendant’s release are whollywarranted and the Court should deny the defendant’s request formodification.As an initial matter, the defendant’s application isbased upon a misunderstanding of the Bail Reform Act (18 U.S.C. §3141, et seq.). In relevant part, the defendant argues thatunless the government demonstrates either a serious risk offlight by a preponderance of the evidence or danger to thecommunity by clear and convincing evidence, the judicial officermust order an individual released pending trial on either apersonal recognizance bond or unsecured appearance bond.
 
2(Defendant’s Letter, p. 1). This is incorrect.Title 18 of the United States Code, Section 3142(f)(2)permits the government to seek a detention hearing when there isa “serious risk” that the defendant will flee or “obstruct orattempt to obstruct justice, or threaten, injure, or intimidate,or attempt to threaten, injure, or intimidate, a prospectivewitness or juror.” Once called upon to conduct a detentionhearing on that basis, the judicial officer must first determineby a preponderance of the evidence “that the defendant presents arisk of flight or obstruction of justice.” United States v.Friedman, 837 F.2d 48, 49 (2d Cir. 1988)(per curiam)(citationsomitted). “Once this determination has been made, the courtturns to whether any condition or combinations of conditions ofrelease will protect the safety of the community and reasonablyassure the defendant’s appearance.” Id., citing United States v.Berrios-Berrios, 791 F.2d 246, 250 (2d Cir.), cert. dismissed,479 U.S. 978 (1986); 18 U.S.C. § 3142(f).In the instant matter, the defendant is charged withobstructing justice, a violation of 18 U.S.C. § 1512. Asdetailed more fully in the Affidavit in Support of ArrestWarrants that was filed in this matter (the “Arrest Affidavit”),the defendant sought to eliminate those individuals he perceivedto be witnesses against his client, Shaheed Khan, in Khan’spending criminal matter captioned, United States v. Shaheed Khan,06-CR-255 (DLI). In furtherance of this plan, the defendantdiscussed a variety of options with a confidential source (“CS”),a former member of Khan’s Guyanese para-military squad that wouldmurder, threaten, and intimidate others at Khan’s direction.(Arrest Affidavit at ¶¶ 7 and 9). Those options includedcounseling witnesses to lie (id. at ¶ 11), paying them to providefalse testimony (id. at ¶ 27) and committing acts of violenceagainst them or their family members (id. at ¶ 26). All of theseoptions were developed by the defendant in his capacity as anattorney and discussed with the CW, among other places, at hislaw office, over his office’s telephone and through his office’semail. Accordingly, there exists a serious risk that thedefendant will obstruct or attempt to obstruct justice. 18 U.S.C.§ 3142(f)(2).Indeed, “[a]ll bail decisions rest on predictions of adefendant’s future behavior. It would be anomalous to hold thatsuch predictions cannot rest on a defendant’s recent conduct inanother proceeding, which may shed considerable light on hismotive, capacity and propensity to commit certain acts.” UnitedStates v. Gotti, 794 F.2d 773, 779 (1986), citing United Statesv. Martir, 782 F.2d 1141, 1146 (2d Cir. 1986). Given the
 
3Accordingly, the government is not required to
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demonstrate, as the defendant suggests, that the defendant posesa risk of flight or danger to the community. Such burden isshouldered by the government only if it were to maintain thatthere was no condition nor combination of conditions that wouldreasonably assure the appearance of the defendant as required andprotect the safety of the community. 18 U.S.C. § 3142(e) (“If,after a hearing pursuant to the provisions of subsection (f) ofthis section, the judicial officer finds that no condition orcombination of conditions will reasonable assure the appearanceof the person as required and the safety of any other person andthe community, such judicial officer shall order the detention ofthe person before trial.”); 18 U.S.C. § 3142(f) (“The facts thejudicial officer uses to support a finding pursuant to subsection(e) that no condition or combination of conditions willreasonably assure the safety of any other person and thecommunity shall be supported by clear and convincingevidence.”)(emphasis added)).relative ease with which the defendant conspired to obstructjustice in his client’s case, there is a serious risk that thedefendant would commit similar acts in his own. His career,financial well-being and personal liberty are at stake. For allthese reasons, the government respectfully submits that it hasdemonstrated by a preponderance of the evidence that thedefendant “will obstruct or attempt to obstruct justice, orthreaten, injure, or intimidate, or attempt to threaten, injure,or intimidate, a prospective witness or juror.” 18 U.S.C. §3142(f)(2).What is left for the Court is a determination “whetherany condition or combination of conditions set forth in [18U.S.C. § 3142(c)] will reasonably assure the appearance of [thedefendant] and the safety of any person and the community.” 18U.S.C. § 3142(f). Consistent with the parties’ agreement at theinitial appearance, the present bond contains a sufficientcombination of conditions to overcome the need for detention.
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See 18 U.S.C. § 3142(g). That bond is in the amount of $3.5million, secured by the defendant’s home (18 U.S.C. §3142(c)(xi)) and the signature of three financially responsiblepeople (18 U.S.C. § 3142(c)(xii)). In comparison, the requestedunsecured personal recognizance bond, when considered in light ofthe factors enumerated in 18 U.S.C. § 3142(g), is woefullyinadequate.First, the nature and circumstances of the offensecharged are particularly disturbing. 18 U.S.C. § 3142(g)(1). The
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