U.S. v. Safavian

• Decision Date: 16 November 2006
• Docket Number: Criminal No. 05-0370 (PLF).
• Citation: 461 F.Supp.2d 76
• Parties: UNITED STATES of America, v. David Hossein SAFAVIAN, Defendant.
• Court: U.S. District Court — District of Columbia

Page 76

461 F.Supp.2d 76

UNITED STATES of America, v. David Hossein SAFAVIAN, Defendant.

Criminal No. 05-0370 (PLF).

United States District Court, District of Columbia.

November 16, 2006.

Nathaniel B. Edmonds, U.S. Department of Justice, Criminal Division, Peter Robert Zeidenberg, U.S. Department of Justice, Washington, DC, for United States of America.

OPINION

PAUL L. FRIEDMAN, District Judge.

I. BACKGROUND

On June 20, 2006, David Hossein Safavian was convicted by a jury of three counts of false statements and concealments pursuant to 18 U.S.C. § 1001(a)(1), and one count of obstruction of a GSA-OIG investigation pursuant to 18 U.S.C. § 1505. He was acquitted of one count of obstructing a Senate Committee investigation pursuant to 18 U.S.C. § 1505. The Court denied the defendant's motions for judgment of acquittal and a new trial on September 12, 2006. Thereafter, the parties filed extensive sentencing memoranda.

On October 27, 2006, the Court held a sentencing hearing, at which time the defendant and the government presented various arguments, many of which related to the proper calculation of Mr. Safavian's offense level under the United States Sentencing Guidelines. After considering the parties' arguments, the Sentencing Guidelines, and the applicable law, the Court calculated Mr.. Safavian's total offense level under the Guidelines at level 14. It was agreed that he was in Criminal History Category I. Thus, Mr. Safavian's Guideline sentencing range was 15 to 21 months. After considering all the relevant factors under 18 U.S.C. § 3553(a) as the Supreme Court mandated in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Court sentenced Mr. Safavian to 18 months in prison for the reasons stated in open court. This Opinion further explains the reasoning underlying the Court's calculation of the defendant's offense level.

On Count One of the Indictment, the jury found that "[f]rom on or about March 27, 2003 to in or about May 2003," Mr. Safavian obstructed "the official investigation being conducted by the GSA-OIG into [Mr.] Safavian's participation in an `international golfing trip provided by lobbyists,'" in violation of 18 U.S.C. § 1505. Amended Indictment ¶ 27; see also Verdict Form at 1. On Count Two of the Indictment, the jury found that "[f]rom in or about May 2002 to in or about August 2002," Mr. Safavian "concealed his assistance to Mr. Abramoff in GSA-related activities" and that he "falsely stated to the GSA ethics officer that Mr. Abramoff did all his work on Capitol Hill, when in truth and fact, Mr. Safavian well knew, prior to the August 2002 Scotland trip that Mr. Abramoff was seeking to lease or purchase GSA-controlled property," in violation of 18 U.S.C. § 1001(a)(1). Verdict Form at 2; see also Amended Indictment ¶ 29. On Count Three of the Indictment, the jury found that "[f]rom on or about March 27, 2003 to in or about May 2003," Mr. Safavian concealed from the GSA-OIG his "assistance to Mr. Abramoff in GSA-related activities," in violation of 18 U.S.C. § 1001(a)(1). Verdict Form at 3; see also Amended Indictment ¶ 31. On Count Five of the Indictment, the jury found that "[f]rom in or about February 2005 to in or about March 2005," Mr. Safavian "falsely stated in a letter to the [Senate] Committee [on Indian Affairs] that Mr. Abramoff did not have any business with GSA at the time Mr. Safavian was invited on the trip to Scotland, when in truth and fact, Mr. Safavian well knew, prior to the August 2002 Scotland trip that Mr. Abramoff was seeking to lease or purchase GSA-controlled property," in violation of 18 U.S.C. § 1001(a)(1). Verdict Form at 4; see also Amended Indictment ¶ 40.

As to Count Four, on which Mr. Safavian was acquitted, the jury found that the government did not prove beyond a reasonable doubt that "[f]rom in or about February 2005 to in or about March 2005," Mr. Safavian obstructed "the inquiry by Senator John McCain, as Chairman of the Senate Committee on Indian Affairs, into allegations of misconduct by lobbyists for Native American tribes." Amended Indictment ¶ 38; see also Verdict Form at 3.

II. ANALYSIS

A. Appropriate Edition of Guidelines Manual/Ex Post Facto Concerns

The government argued that the language of Section 1B1.11(b)(3) of the Guidelines requires application of the 2005 edition of the Guidelines Manual because Mr. Safavian was convicted of multiple offenses, the last of which took place in February and March of 2005. Government's Sentencing Memorandum ("Gov't Mem.") at 3.¹ The defendant argued that the 2002 Manual should be applied because of the 2005 Manual would violate the ex post facto clause of the United States Constitution. David H. Safavian's Reply to the Government's Sentencing Memorandum ("Def.Reply") at 14-17.² Specifically, the defendant argued that he would be disadvantaged by the change in base offense levels between the two editions of the Manual. Id. The base offense level for obstruction would be 12 under the 2002 edition of the Manual, which was the edition in force at the time of the obstruction charged in Count One, between March 27, 2003 and May 2003. See USSG § 2J1.2 (2002). Under the 2005 edition of the Manual, the base offense level would be 14, two levels higher. See USSG § 2J1.2 (2005). This Court agreed with the defendant that use of the 2005 Manual and the accompanying two-level increase in the obstruction base offense level would put Mr. Safavian at a serious disadvantage, in violation of the ex post facto clause of the Constitution. The Court therefore applied the 2002 Manual, and applied it in its entirety under the one-book rule.³

Section 1B1.11(a) of the United States Sentencing Guidelines directs the Court to "use the Guidelines Manual in effect on the date that the defendant is sentenced." USSG § 1B1.11(a) (2005). If, however, use of such Manual would violate the ex post facto clause of the Constitution, the Court must use "the Guidelines Manual in effect on the date that the offense of conviction was committed." USSG § 1B1.11(b)(1) (2005). The Guidelines instruct, however, that TN the defendant is convicted of two offenses, the first committed before, and the second after, a revised edition of the Guidelines Manual became effective, the revised edition of the Guidelines Manual is to be applied to both offenses." USSG § 1B1.11(b)(3) (2005). Even though it recognizes that use of the later Manual may result "in an increased penalty for the first offense," the commentary with respect to Section 1B1.11(b)(3) attempts to justify this provision as being consistent with the ex post facto clause by positing an example involving the consideration of "relevant conduct" that occurred before the revision of the Guideline that applies both to the offense of conviction and to relevant conduct for which the defendant was not convicted. USSG § 1B1.11, comment. (backg'd.) (2005). It is significant that the prior "relevant conduct" in the commentary's example involves the same offense as the offense of conviction — an uncharged embezzlement before the revision and a conviction for embezzlement after the revision. The commentary then analogizes that situation to one involving two convictions for embezzlement, one occurring before and one after the revision. Id. The commentary states: "In this example, the ex post facto clause would not bar application of the amended guideline to the first conviction; a contrary conclusion would mean that such defendant was subject to a lower guideline range than if convicted only of the second offense." Id. The commentary's other attempt to justify Section 1B1.11(b)(3) is an example involving two bank robberies, one committed before and one after the revision of a guideline, and the statement that "[u]nder the guideline sentencing system, a single sentencing range is determined based on the defendant's overall conduct, even if there are multiple counts of conviction." Id.

What the Commission never addresses in the commentary, however, is the case of the habitual embezzler or bank robber who once, years earlier, had trafficked in cocaine, and now finds himself facing a harsher sentence because the offense level for cocaine trafficking — not the one for embezzlement or bank robbery — has been increased since his cocaine offense occurred. Yet Section 1B1.11(b)(3) applies equally to this situation as to the ones posited in the examples in the commentary. The commentary's cryptic and curious observations and the examples that accompany them simply are not persuasive in demonstrating that, at least in some cases, Section 1B1.11(b)(3) does not violate the ex post facto clause, as embodied in Section 1B1.11(b)(1). This is particularly true where the earlier and later committed offenses are not similar. Consistent with the duty of this Court and the dictates of the Constitution, the Court must conclude that because Section 1B1.11(b)(1) implicates a constitutional right, it necessarily trumps any other Guideline directives in Section 1B1.11.

Under traditional ex post facto law principles, for the application of a specific statute or Sentencing Guideline to violate the ex post facto clause, the application (1) must be "retrospective," that is, it must "apply to events occurring before [that statute's or that Guideline's] enactment"; and (2) must "disadvantage the offender affected by it." Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) (quoting Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981)). An application is "retrospective" if it "changes the legal consequences of acts completed before its effective date." Id. A defendant is "disadvantaged" if the new or amended law or Guideline "alter[s] the definition of criminal conduct or increas[es] the punishment for the crime." Lynce v. Mathis, 519 U .S. 433, 441, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997). Indeed, most ex post facto claims involve increases in punishment. Id. (the...