Simon Wasn’t Gangbusters as Prosecutor

During the 1980s, the U.S. attorney’s office in New York mounted a huge legal assault on organized crime. Bill Simon Jr.’s campaign for governor has marketed him as a pivotal figure in that effort.

From the start, Simon has emphasized his role as a prosecutor, his experience as a businessman and his charitable activities as the three cornerstones of his candidacy. His campaign spots accent his work with Rudolph W. Giuliani, who as the U.S. attorney in New York was Simon’s boss.

Simon’s campaign Web site emphasized that his work had “facilitated the convictions of the heads of all five New York crime families -- and successfully diminished their infrastructure so they no longer could function as a viable criminal enterprise.” Simon made a similar claim in a speech at the Richard Nixon Library & Birthplace.

He was described at one rally as the man who “broke the back of the Mafia.” Giuliani has frequently heralded Simon’s work in organized crime cases, particularly his successes in seizing the assets of mob families.

Though no one has questioned that Simon was an earnest lawyer during his tenure as an assistant U.S. attorney from 1985 to 1988, records and interviews show that he was hardly the major crime-buster that he has claimed: * Simon can recall trying only one criminal case from start to finish -- the successful prosecution of a marijuana dealer who received a two-year sentence.

* Although Giuliani’s office won a number of major organized crime cases, the heads of all five Mafia families were not convicted in Manhattan during his tenure. All five were indicted in 1985 in what came to be known as “The Commission Case” -- the first federal prosecution of Mafia chieftains for running a crime syndicate, utilizing the Racketeer Influenced and Corrupt Organizations Act.

But one of the lead defendants, Paul Castellano, who headed the Gambino crime family, was gunned down in front of a Manhattan steakhouse before the trial started. Another, Philip Rastelli, head of the Bonanno family, was dropped from the case before testimony began.

And there is no evidence in the massive court record housed in a federal archive in Missouri that Simon had any involvement in the case. Among the tens of thousands of pages in 14 boxes of material from the case, not one paper has Simon’s name on it.

* The Republican candidate was involved in an earlier, separate effort to keep Rastelli, the head of the Bonanno organized crime family, from getting out of prison after his parole was revoked. But Simon lost that case in 1985, and during the process a judge ruled that evidence he submitted was unreliable.

* Records also show -- and Simon can recall -- only one instance in which he actually seized the assets of a criminal. After another federal prosecutor secured the conviction and a 30-year sentence for drug dealer Philip Vasta, Simon was easily able to convince a judge in a civil proceeding that the government should be able to keep $5.8 million of Vasta’s cash that federal agents found along with 6 kilograms of heroin, 9 kilograms of cocaine and several weapons during a January 1986 raid.

* Simon has boasted in the campaign that he “took on corporate wrongdoers,” while a prosecutor, and Giuliani has said Simon went after “the worst polluters.” But when questioned, Simon could cite only one civil case against an asbestos removal firm and just one instance in which he indicted a corporation -- a Staten Island construction company charged with using unsafe methods to remove asbestos from a Sanitation Department garage in Manhattan. Simon left the U.S. attorney’s office before the criminal case went to trial.

Giuliani did not return calls seeking comment.

Simon does not have a complete record of his cases, nor does the U.S. attorney’s office in New York. The Times researched his record by interviewing Simon, his campaign aides and numerous former colleagues from the U.S. attorney’s office, as well as reviewing records at the U.S. attorney’s office in New York, the U.S. District Court in New York, the U.S. 2nd Circuit Court of Appeals in New York, the federal archive in Lee’s Summit, Mo., and a database assembled by the Transactional Records Access Clearinghouse, a Syracuse University institute that compiles records on federal agencies.

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Simon speaks with near reverence about the terrific experience he had at the U.S. attorney’s office in Manhattan, the oldest in the nation.

“It was just a great chapter for me and a real stimulus toward being interested in additional public service,” he said in an interview.

After graduating from Williams College in Massachusetts and working on Wall Street, Simon enrolled at Boston College Law School. After graduation, he spent three years at a small New York firm that specialized in corporate work. There, he met Whitney North Seymour Jr., the former U.S. attorney in Manhattan, who prompted him to seek a job as a federal prosecutor.

Like other applicants, Simon had to agree to stay a minimum of three years if he was hired. And, like other applicants, he was personally interviewed by Giuliani, who had been appointed U.S. attorney for the southern district of New York by President Reagan.

Simon got an office on the fifth floor at 1 St. Andrew’s Plaza, next to the downtown Foley Square Courthouse. He was assigned to the civil division, the smaller and less prestigious wing of the office. Civil lawyers in the office have a dual role. They bring cases on behalf of the government, such as suing a polluter, and defend cases on behalf of the government, such as when an FBI agent is accused of using excessive force.

Simon said he handled a wide range of civil cases, including defending postal drivers who had been in auto accidents, and doctors working at Veterans Affairs hospitals.

One small case stuck out in Simon’s memory. A federal postal inspector was accused of assault when he tried to subdue a man who was “creating a big disturbance” at a Harlem post office.

Simon, whose mother came to watch him try the case, said he was initially nervous about his adversary, who was representing himself.

“He was very articulate. Our office had never lost a case like this to a pro se [someone representing himself],” Simon recalled.

“Then, two-thirds of the way through his argument, he says, ‘I see the moon outside is at a level where I am going to win this case.’ At that point, the case started going downhill for him. He started putting on his evidence, and he called all my witnesses.... I moved for a directed verdict and got it.”

Although Simon was in the civil division, he volunteered to work on criminal cases and won the admiration of K. Chris Todd, who headed the office’s general crimes unit.

‘One of the Guys’

One of the hallmarks of Giuliani’s regime was an anti-drug initiative called “Federal Days.” Once a week, federal agents would arrest people in small drug cases that normally would have been handled by local officials. But a federal prosecution meant that the defendant could get a much stiffer sentence.

“Rudy wanted to put more teeth into law enforcement on ‘crack’ by taking them federal,” said Todd, who is now in private practice in Washington. At the same time, however, there were not enough lawyers in the criminal division to handle all the arraignments.

“Bill helped us with that effort, even though he was in the civil division,” Todd said. “Bill was just one of the guys.”

Simon also won the admiration of the attorneys whose offices adjoined his -- Susan Millington Campbell, now a corporate lawyer in New York, and Bernard W. Bell, a former Supreme Court law clerk who is a professor at Rutgers Law School.

“He struck me then as being a very decent guy,” said Bell, who like Simon was in the civil division.

Campbell, who headed the office’s environmental division, said she became -- and remains -- a friend of Simon. For that division, she said, Simon filed one major civil case on behalf of the Environmental Protection Agency. The suit alleged that Benjamin Kurzban and Son Inc. had violated the federal Clean Air Act and EPA regulations on asbestos removal, potentially endangering the health of people in two Manhattan buildings.

Simon said it was one of the first cases filed under new federal regulations governing removal of the dangerous substance. Eventually, Kurzban, while denying liability, agreed to comply with the EPA regulations and paid a $5,000 fine.

Taking On the Mob

However, it is not Simon’s environmental work but his purported connection with organized crime cases that the Republican candidate and his backers have most often trumpeted. Particularly noteworthy is the claim that he played an integral role in the commission case, which sought to lock up the leaders of all five New York organized crime families.

Simon denied that his campaign made exaggerated claims. Still, when asked about the way he was introduced at the campaign rally, he readily conceded that “I did not break the back of the Mafia.” He attributed the description to over-exuberance on the part of a supporter.

But he also said that he was entitled to claim a role in the commission prosecution because of work he did on another case involving Bonanno crime family leader Rastelli, who was one of the original defendants in the commission case.

Rastelli, who had a long criminal record, was released on parole in April 1983 after serving seven years of a 10-year federal term for extortion and other charges.

In August 1984, Rastelli was arrested on charges that he had violated parole by associating with criminals. By that point, government agents had been building the commission case for four years.

Rastelli filed a federal lawsuit Jan. 23, 1985, alleging that he was being confined in violation of his constitutional rights.

Simon joined the U.S. attorney’s office less than three weeks later, on Feb. 10, and was assigned to the case -- a high-profile matter for a new lawyer. (The indictment in the massive commission case was unsealed two weeks later.)

The Rastelli parole case did not go well for Simon. Two federal judges -- including one who gave up the case when he joined the Reagan administration -- ruled against the government.

After the first judge ruled in Rastelli’s favor, the federal parole board held a second hearing and added new charges. Relying on a secretly taped telephone call, the government alleged that Rastelli had asked two Mafia leaders, Anthony “Fat Tony” Salerno, the Genovese family crime boss, and one of his key lieutenants, Matthew “Matty the Horse” Ianniello, for permission to formally enroll some men as “made members” in the Bonanno crime family.

In the hearing, Simon, again citing the taped conversation, also contended that Rastelli had told Lucchese family boss “Tony Ducks” Corallo that he wanted “to be on the commission.” The claim was secondhand; Rastelli was not on the tape.

In front of Edward Weinfeld, the second judge, Rastelli’s attorney challenged the parole board’s reliance on a transcript of the taped call.

Eventually, Weinfeld ordered the government to produce the tape and found it unintelligible. Simon said he reported that to Giuliani and Michael Chertoff, the lead prosecutor in the commission case. “We got the tape enhanced,” Simon said.

During a hearing into the matter, there was a particularly sharp exchange between the young prosecutor and the veteran jurist. Simon told the court that during the hearing before the first judge, the parole board had not had information about a meeting Rastelli had with James Napoli, who allegedly was a member of an organized crime family. Weinfeld said the board certainly did have the information and told Simon his statement was “almost absurd.”

A month later, after listening to the tape a second time with earphones, Weinfeld wrote that “with the exception of half a dozen words scattered throughout the five-minute conversation, the tape is utterly unintelligible and consists of blurred sounds and voices.”

Weinfeld’s decision emphasized that an FBI agent -- and a government witness -- who listened to the tape could identify only one of three voices on it and failed to substantiate the allegations about Rastelli in any other way. The judge concluded that the government’s case, presented by Simon, was “hearsay run riot” and that Rastelli’s right to due process of law had been violated. Weinfeld ordered him released.

By the time the huge commission case went to trial in September 1986, Rastelli had been dismissed from it because he was engaged in another trial and because Weinfeld had found the evidence cited by Simon unreliable. A month later, Rastelli was convicted on separate labor racketeering charges by another U.S. attorney’s office and got a 12-year sentence. He died in 1991.

Even though Simon lost Rastelli’s suit, he said the work he did on it showed that he was “part of the team” in the commission case and therefore entitled to claim some credit for the successful prosecution in it.

Simon said the evidence the government attempted to use -- unsuccessfully -- in his Rastelli case showed that there was a functioning Mafia commission. In fact, nearly five years before Simon joined the U.S. attorney’s office, 200 government agents had started gathering mountains of evidence on the commission. Simon also said other information uncovered in Rastelli’s parole revocation proceeding was used in the commission case, but he offered no specifics.

Chertoff, the lead commission prosecutor, and now the head of the Justice Department’s criminal division, declined to comment on whether Simon did any work on the case, as did co-counsel John Savarese, who is now in private practice in New York. John Gilmore Childers, the third member of the prosecution trial team who said he had known Simon since they went to Boston College Law School in the early 1980s, said he was not offended at Simon’s claim, but he could not recall any work Simon did on the case.

The defense lawyers who tried that case also said they have no recollection of ever meeting Simon in or out of court.

Rastelli’s attorney, Stanley Teitler, said he was shocked that Simon had taken credit for helping to “facilitate the convictions” of Mafia leaders, particularly because the judge ruled the tape inadmissible. “That’s outrageous. ‘Facilitate’ is a weak word for a guy who did a weak job,” Teitler said.

Robert Garcia, who was a federal prosecutor in the Manhattan U.S. attorney’s office from 1983 to 1987, overlapping with Simon, also scoffs at the Republican candidate’s claim.

“For Bill Simon to say he facilitated a conviction [in the commission case] is meaningless,” Garcia said. “It’s not like he brought those people in and urged them to plead guilty or seized their assets,” said Garcia, who is now a civil rights lawyer in Los Angeles. “That’s like claiming you got all A’s if you got a B average.”

After The Times asked about the Simon campaign’s Web site contention that he had “facilitated the convictions” of the five Mafia families, the campaign toned down the language about his crime-fighting record by deleting any reference to organized crime cases.

Simon said in an interview that he did not know why the language had been altered. “I have not been involved in deciding what goes on the Web site,” he said.

However, at a state Republican Party convention in late September, after the Web site had been altered, Simon’s team passed out campaign literature contending that “Bill worked with then-U.S. Atty. Rudy Giuliani to convict all five New York crime families. He is the only candidate who has actually put criminals behind bars.”

Simon closed his tenure as a federal prosecutor with his sole indictment of a corporation -- a Staten Island construction company charged with using unsafe methods to remove asbestos from a Sanitation Department garage in Manhattan.

The January 1988 indictment charged DAR Construction and foreman Maurice Dieyette with six counts of improper asbestos removal. Simon aides said it was the first time criminal charges had been lodged anywhere in the country based on improper asbestos removal.

Less than two weeks after Simon secured the indictment, he left to join his father and brother in business.

He had spent three years and one day in government, a single day over the three-year commitment he made when he joined the office.

Another attorney took over the case. A year later, the corporation pleaded guilty and paid a fine of $75,000.

The foreman was convicted after a trial and got a 90-day jail sentence and three years’ probation.

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The complete series of gubernatorial candidate profiles is available on the Web at: latimes.com/profiles.

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Series on Bill Simon Jr. Continues:

This week, The Times is publishing a series on the life of Republican gubernatorial nominee Bill Simon Jr.

Tuesday: Simon’s upbringing.

Today: His tenure as a federal prosecutor.

Next: His charitable endeavors and how he came to be the Republican nominee.

Last week, The Times published a parallel series of articles on the life of Democratic incumbent Gray Davis. The complete series is available on the Web at www.latimes.com/profiles.

State elections will be held Nov. 5.