U.S. v. Safavian

Decision Date17 June 2008
Docket NumberNo. 06-3169.,No. 06-3139.,06-3139.,06-3169.
Citation528 F.3d 957
PartiesUNITED STATES of America, Appellee v. David H. SAFAVIAN, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeals from the United States District Court for the District of Columbia (No. 05cr00370-01).

Lawrence S. Robbins argued the cause for appellant. With him on the briefs were Donald J. Russell, Alice W. Yao, and Daniel R. Walfish.

Nathaniel B. Edmonds, Trial Attorney, U.S. Department of Justice, argued the cause and filed the brief for appellee. Peter R. Zeidenberg and Roy W. McLeese, III, Assistant U.S. Attorneys, entered appearances.

Before: RANDOLPH and ROGERS, Circuit Judges, and EDWARDS, Senior Circuit Judge.

RANDOLPH, Circuit Judge:

A jury convicted David H. Safavian of three counts of concealing material facts and making false statements in violation of 18 U.S.C. § 1001(a)(1) and one count of obstructing justice in violation of 18 U.S.C. § 1505.1 The prosecution arose from investigations into a golfing trip he took with lobbyist Jack Abramoff in August 2002 while Safavian was chief of staff of the General Services Administration. We reverse on all counts.

I.

The evidence, viewed most favorably to the government, showed as follows. Safavian and Abramoff met in 1994 when Safavian joined a law firm in which Abramoff was a partner. Abramoff became a mentor to Safavian there, and the two remained close friends after Safavian left the firm. They continued to play golf and racquetball together and saw each other socially for drinks and dinner. And when Safavian was looking to leave the congressman for whom he was working in 2002, Abramoff arranged for Safavian to interview at his new firm, though he did not receive an offer.

Safavian instead became the General Services Administration's (GSA) deputy chief of staff in May 2002 and was named chief of staff two months later. GSA is responsible for procurement and property management on behalf of federal agencies. Shortly after Safavian arrived at GSA, Abramoff asked him for information about two GSA-controlled properties: the White Oak property in Silver Spring, Maryland, a 600-acre former Naval facility; and the Old Post Office in Washington, D.C.

Abramoff was interested in having a portion of the White Oak property serve as a new location for the religious school his children attended. As to the Old Post Office building, GSA was considering redeveloping it and had been asking private parties about that possibility. Abramoff thought opportunities for one of his clients might develop.2

Safavian and Abramoff exchanged e-mails about these properties between May and August 2002. Abramoff sent messages to both Safavian's work and home accounts, sometimes e-mailing his work account only to inform him a message was waiting on his home account. Safavian's assistance ranged from simply obtaining information that GSA had already compiled for distribution to other parties, to more involved support that Safavian could provide as a GSA insider. For example, he supplied Abramoff with internal GSA information, told Abramoff that he had "overruled" a GSA employee who had "reservations," reviewed and edited Abramoff's letters to GSA, and set up a meeting to discuss the White Oak property. Nothing ever came of any of this and both properties remained with GSA through Safavian's tenure.

While these discussions were ongoing, Abramoff invited Safavian to join him on a five-day golfing trip to Scotland in August 2002, to which Abramoff later added a weekend in London. In addition to Abramoff and Safavian, the group included Abramoff's son and colleagues, a congressman and his chief of staff, and the staff director for the House Administration Committee. Abramoff arranged the schedule and accommodations and chartered a plane for the group.

On July 25, 2002, Safavian requested an ethics opinion from GSA's general counsel about whether he could accept the air transportation as a gift. His e-mail stated:

I am in need of an ethics opinion. I (along with wto [sic] members of Congress and a few Congressional staff) have been invited by a friend and former colleague on a trip to Scotland to play golf for four days. I will be paying for all of my hotels, meals, and greens fees. The issue is airfare.

The host of the trip is chartering a private jet to take the eight of us from BWI to Scottland [sic] and back. He is paying the cost for the aircraft regardless of whether I go or not. In fact, none of the other guest [sic] will be paying a proportional share of the aircraft costs. I need to know how to treat this activity.

One other point of relevance: the host is a lawyer and lobbyist, but one that has no business before GSA (he does all of his work on Capitol Hill).

The GSA ethics officer responded in part:

This is in response to your inquiry on whether you can accept a gift of free air transportation from a friend to attend an [sic] golf trip. You stated that a friend and former colleague, Jack Abramhoff [sic], invited you, along with several members of Congress and a few Congressional staff, to Scotland to play golf for four days. You stated that you will be paying for all of your hotel expenses, meals and greens fees. You noted, however, that your friend would be providing the air transportation at no cost to you and the other guests attending the event. You stated that your friend, who is a lawyer and lobbyist with Greenberg and Traurig, is chartering a private jet to take you and the other participants from BWI to Scotland and back. You stated that neither Mr. Abramhoff [sic] nor his firm does business with or is seeking to do business with GSA. Based upon the information you have provided, you may accept the gift of free transportation from your friend.

The ethics opinion recited information not provided in Safavian's e-mail request, such as Abramoff's name and firm, so it appears that further communications must have occurred. Notably, the response also suggests that Safavian said Abramoff is not "seeking to do business with GSA." At trial the government presented no evidence that Safavian had ever told this to an ethics officer and the district judge therefore struck the "seeking to do business" language from the indictment.

After receiving the ethics advice, Safavian forwarded a copy to Abramoff, indicating that he would go on the trip. Abramoff sent Safavian an itinerary showing the travel schedule, hotels, golfing times, a dinner and a lunch with the notation "included in package," and several other scheduled meals. Safavian told Abramoff he wanted to pay for his share of the trip. On the evening of the departure date — August 3, 2002 — Safavian gave Abramoff a check for $3,100, the amount Abramoff said would cover the costs.

The chartered plane landed the morning of August 4th at a small airport adjacent to the St. Andrews Links Old Course, where the group's hotel also was located. Most of their five days in Scotland were spent golfing. They played at several different courses and smoked cigars and drank while playing. Some, including Safavian, played golf more than once per day at various courses. At the Old Course greens fees and caddy tips for one person totaled $400. The group also ate and had drinks together. Meals — some at the hotel, some elsewhere — ranged from $20-$100 a person, and sometimes a round of drinks reached $100. The trip also provided an opportunity for the congressman and his staff to meet with Scottish politicians; a dinner with the Conservative Party and a military parade were scheduled one evening.

The group flew from Scotland to London on Thursday the 9th, using the same chartered plane. Upon landing, they were driven to their hotel, the Mandarin Oriental. They had drinks in the hotel bar that night and some planned on having dinner and drinks together Friday night. However, they spent less time as a group in London than they did in Scotland. For instance, one participant testified that he spent Friday with friends who lived there. At least four group members departed Saturday morning, while Safavian and Abramoff remained. Abramoff had meetings scheduled in London, so Safavian had some time to himself. On Sunday, Safavian and Abramoff flew back to the United States on the chartered jet.

Both Safavian and another participant testified that they believed the trip was prepaid. Safavian also paid for some costs himself. He withdrew $500 from his bank account before leaving and $150 on the trip's second day. He tipped the caddies once for two people and bought a few rounds of drinks. Safavian also used his credit card to buy some gifts, a few meals, and some other goods.

In March 2003, acting on an anonymous tip, the GSA Office of Inspector General (GSA-OIG) began investigating the trip. GSA agent Gregory Rowe interviewed Safavian twice. Rowe testified that Safavian told him that he "paid for the trip," including airfare, and that Abramoff did not have any business with GSA. Safavian also provided Rowe with a copy of the $3,100 check he had given to Abramoff on the day they had left and a work attendance sheet showing that he took five days of leave. Safavian did not mention the weekend in London or Abramoff's interest in the two GSA properties. Rowe closed the investigation. Rowe did not review the ethics opinion Safavian had received about the trip.

A year later, in March 2004, the Senate Committee on Indian Affairs began investigating Abramoff. The Committee asked Safavian to produce "all records reflecting, referring, or relating to the 2002 Scotland golf trip." Safavian's letter responded in part:

When the invitation was made, I was the chief of staff to the U.S. General Services Administration ("GSA"). Mr. Abramoff did not have any business before the agency at that time. Prior to departure, I consulted the GSA Office of General Counsel to obtain guidance on the propriety of this trip. Counsel determined that I...

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