U.S. v. Safavian
| Decision Date | 21 July 2009 |
| Docket Number | Criminal No. 05-0370 (PLF). |
| Citation | 644 F.Supp.2d 1 |
| Parties | UNITED STATES of America v. David Hossein SAFAVIAN, Defendant. |
| Court | U.S. District Court — District of Columbia |
Lawrence Saul Robbins, Robbins, Russell, Englert, Orseck & Untereiner & Sauber LLP, Washington, DC, for Defendant.
This matter is before the Court on defendant David Safavian's motion for judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure and his motion for a new trial pursuant to Rule 33. The Court heard oral argument on these motions on April 20, 2009. Upon consideration of the motions papers, oppositions, replies, supplemental filings, oral arguments of counsel, and the entire record in this case, the Court concludes that the defendant's motions should be denied.
From May 16, 2002 until January 2004, David Safavian was the Chief of Staff for the Administrator of the General Services Administration ("GSA"). On August 3, 2002, Mr. Safavian, the lobbyist Jack Abramoff, and seven other individuals—including a member of the United States House of Representatives, members of the Representative's staff, and other lobbyists employed at the same law firm as Jack Abramoff— flew by private jet to Scotland to play golf at St. Andrew's golf course. Mr. Safavian, Mr. Abramoff and some of the others continued on to London, England. Mr. Safavian and Mr. Abramoff eventually returned to the United States by private jet on August 11, 2002.
In July 2002, prior to going on the golfing trip, Mr. Safavian sought and received an ethics opinion from a GSA ethics officer, Eugenia Ellison, regarding whether he could participate in the trip, and, more specifically, whether he could accept a gift of free air transportation on a private jet from Mr. Abramoff. Both the GSA Office of the Inspector General ("GSA-OIG") and the Senate Committee on Indian Affairs subsequently conducted investigations into the Scotland trip. The GSA-OIG's investigation was opened in March 2003 after the receipt of an anonymous tip. On February 22, 2004, the Washington Post published the first of a series of articles about Mr. Abramoff's dealings with several Indian tribes, triggering the Senate Committee's investigation. In the course of each of these investigations, Mr. Safavian was questioned about the trip, his relationship to Mr. Abramoff, and how the trip was financed. He responded to each of the inquiries both orally and by providing documents, including a copy of the ethics opinion to the Senate. Mr. Safavian also wrote a letter accompanying the documents he provided to the Senate.
A grand jury returned a five count indictment against Mr. Safavian, charging him with three counts of making false statements or engaging in acts of concealment under 18 U.S.C. § 1001(a)(1) and two counts of obstruction under 18 U.S.C. § 1505. Specifically, Count One of the original indictment alleged that the defendant obstructed the GSA-OIG investigation, in violation of 18 U.S.C. § 1505; Count Two alleged that he made a false statement and committed acts of concealment in connection with seeking the GSA ethics opinion prior to the trip, in violation of 18 U.S.C. § 1001(a)(1); Count Three alleged that he made a false statement and committed acts of concealment in the course of the GSA-OIG investigation, in violation of 18 U.S.C. § 1001(a)(1); Count Four alleged that he obstructed the Senate Committee investigation, in violation of 18 U.S.C. § 1505; and Count Five alleged that he made a false statement, committed acts of concealment, and provided false documentation in the course of the Senate Committee investigation, in violation of 18 U.S.C. § 1001(a)(1).
Mr. Safavian's trial began on May 22, 2006. On June 20, 2006, the jury returned a verdict finding him guilty on Count One, which alleged that he had obstructed "the official investigation being conducted by the GSA-OIG into [Mr.] Safavian's participation in an `international golfing trip provided by lobbyists.'" Retyped Indictment, Dkt. No. 117 ¶ 27; see also Verdict Form (2006 Trial), Dkt. No. 119 at 1. The jury acquitted Mr. Safavian on Count Four, which alleged that he had 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." Retyped Indictment ¶ 38; see also Verdict Form (2006 Trial) at 3.
Mr. Safavian was found guilty on all three counts of false statements and/or concealment under 18 U.S.C. § 1001(a)(1). See Verdict Form (2006 Trial) at 2-4. With respect to Count Two, the jury found that Mr. Safavian had both "concealed his assistance to Mr. Abramoff in GSA-related activities" and had "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." Verdict Form (2006 Trial) at 2; see also Retyped Indictment ¶ 29. With respect to Count Three, the jury found that Mr. Safavian had "concealed his assistance to Mr. Abramoff in GSA-related activities." Verdict Form (2006 Trial) at 3; see also Retyped Indictment ¶ 31. With respect to Count Five, the jury found that Mr. Safavian had "falsely stated in a letter to the [Senate] Committee 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." Verdict Form (2006 Trial) at 4; see also Retyped Indictment ¶ 40.
Mr. Safavian moved for a judgment of acquittal and for a new trial on all four counts of which he was convicted. After oral argument, the Court denied the motion in its entirety by opinion of September 12, 2006. See United States v. Safavian, 451 F.Supp.2d 232 (D.D.C.2006). The Court sentenced the defendant to a period of eighteen months in prison, see Judgment and Commitment, Dkt. No. 147 at 3; see also United States v. Safavian, 461 F.Supp.2d 76 (D.D.C.2006), but permitted him to remain free on bond pending appeal. See United States v. Safavian, Memorandum Opinion and Order, Dkt. No. 146 at 3, 2006 WL 3378479 (D.D.C. Nov. 16, 2006).
On appeal, the court of appeals reversed Mr. Safavian's conviction with respect to the concealment portion of Count Two and the entirety of Count Three of the indictment, where the jury found Mr. Safavian guilty only of concealment. See United States v. Safavian, 528 F.3d 957, 963-65 (D.C.Cir.2008). The court of appeals concluded that, in order for there to be a concealment in violation of 18 U.S.C. § 1001(a)(1), there must be a "legal duty" to disclose and that the government had failed to identify any such legal duty. The court held that Section 1001(a) does not demand "that individuals choose between saying everything and saying nothing." Id. at 965. It therefore concluded that Safavian "had no legal duty to disclose and that his concealment convictions cannot stand." Id.
The remaining charges related to the alleged false statements Mr. Safavian had made as specified in Count One (obstruction of justice under 18 U.S.C. § 1505), the remainder of Count Two, and Count Five (false statements under 18 U.S.C. § 1001(a)(1)). Each of these statements was to the effect that Mr. Abramoff had "no business" with GSA and "did all of his work on Capitol Hill" at the time of the golf trip. See United States v. Safavian, 528 F.3d at 965 & n. 10. Mr. Safavian testified at trial that he intended his "no business with GSA" statements to have the meaning common to government contracts professionals rather than to lay persons. Id. at 965-66. The court of appeals concluded that this Court had abused its discretion in excluding the defendant's proffered expert testimony on how government contracting professionals view "having business or working with GSA." Id. at 966. The court therefore vacated Mr. Safavian's convictions on Count One, the false statement portion of Count Two, and Count Five and remanded those counts for a new trial at which the excluded expert would be permitted to testify. Id. at 967-68.1
After remand from the court of appeals, the parties engaged in unsuccessful plea negotiations. Thereafter, the grand jury returned a five-count superseding indictment. See Superseding Indictment, Dkt. No. 167. Count One again charged obstruction of the GSA Inspector General's investigation, in violation of 18 U.S.C. § 1505. Count Two charged false statements to the GSA ethics officer, in violation of 18 U.S.C. § 1001(a)(1) and (a)(2). It again focused on the making of false statements in connection with whether Mr. Abramoff "did all of his work on Capitol Hill" or rather was seeking to acquire GSA-controlled property. Because of the court of appeals' decision, this time there was no concealment charge in Count Two. Count Four charged Mr. Safavian with making false statements to the Committee on Indian Affairs of the United States Senate, under 18 U.S.C. § 1001(a)(1) and (a)(2). Again, because of the court of appeals' opinion, there was no concealment allegation. The superseding indictment also contained two entirely new counts. Count Three charged Mr. Safavian with having made false statements on his financial disclosure form in violation of 18 U.S.C. § 1001(a)(2). Count Five charged Mr. Safavian with having made false statements to the Federal Bureau of Investigation, also in violation of 18 U.S.C. § 1001(a)(2).
Following the resolution of numerous pretrial motions and motions in limine, the case went to trial for the second time on ...
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