United States v. Olson
| Docket Number | 22-cr-144-GMH |
| Decision Date | 03 August 2023 |
| Parties | UNITED STATES OF AMERICA v. RICHARD GUSTAVE OLSON, JR., Defendant. |
| Court | U.S. District Court — District of Columbia |
The Honorable G. Michael Harvey, United States Magistrate Judge.
Defendant Richard Gustave Olson signed a plea agreement and pleaded guilty to two misdemeanors.[1] Subsequently, disagreements arose among Defendant, the prosecutors, and the United States Probation Office for the District of Columbia (the “Probation Office”) as to the computation of his proper offense level under the Sentencing Guidelines (the “Guidelines” or “USSG”) of the United States Sentencing Commission (the “Sentencing Commission”) and the resulting Guidelines-sanctioned sentencing range. To sharpen and narrow the areas of dispute about the Guidelines calculation, the Court has entertained copious briefing and held a hearing on those disputes, as well as some subsidiary issues, including Defendant's request for issuance of a subpoena to discover communications among the Probation Office, the prosecutors, and the Sentencing Commission. In this Memorandum Opinion and Order the Court both sets out the Guidelines calculation that it will use in sentencing Defendant[2] and addresses the motion for issuance of a subpoena. More specifically, the Court determines that the correct offense level is eight, resulting in a Guidelines range of zero- to six-months incarceration with the possibility of a non-custodial sentence, and that Defendant's motion for issuance of a subpoena will be denied.[3]
Prior to his retirement from the State Department on November 30 2016, Defendant served as U.S. Ambassador to Pakistan from 2012 to November 2015, and U.S. Special Representative for Afghanistan and Pakistan from November 17, 2015, to his retirement. ECF No. 38 at 63; ECF No. 20 at 9.[5] Defendant's first meeting with the FBI in connection with the investigation that led to his guilty plea occurred in July 2019. See ECF No. 38-1 at 2-5 (). At his second interview in December 2019, the FBI informed him that he was the target of a government investigation, after which he retained counsel. See ECF No. 38 at 6-7; see also ECF No. 38-1 at 7-11 (). According to Defendant, he learned in August 2020 from Daniel O'Brien, a prosecuting attorney in the Central District of California-the district where this case was set prior to its Rule 20 transfer here-that he was the target of an investigation arising from a criminal case alleging that a person known to Defendant (denominated “Person 1” herein, in conformance with the practice of the prosecution, see infra note 7) had attempted to influence U.S. government officials on behalf of foreign clients, among other things. See ECF No. 38 at 7; ECF No. 39 at 20. Defendant here was reportedly under investigation for violations of four criminal statutes-receiving a gratuity while serving as a public official in violation of 18 U.S.C. § 201(c)(1)(B); engaging in acts affecting a personal financial interest in violation of 18 U.S.C. § 208(a); representing, aiding, or advising a foreign government with intent to influence decisions of U.S. officers within one year of his separation from his position as a senior official of the State Department in violation of 18 U.S.C. § 207(f); and knowingly and willfully concealing a material fact, making false statements, or using a false document in violation of 18 U.S.C. § 1001(a). See ECF No. 38 at 7. Violations of Section 201(c)(1)(B) and Section 1001(a) are felonies; violations of Section 208(a) and Section 207(f) can be charged as either misdemeanors or felonies depending on whether the violation was willful. See 18 U.S.C. §§ 201(c), 216(a), 1001(a). Thereafter, Defendant engaged in debriefing sessions with the government in October 2020, November 2020, and March 2021; each of those sessions was covered by a debriefing agreement (or what is commonly referred to as a “queen for a day” agreement) that generally prohibited the government from “offer[ing] in evidence” in a criminal prosecution against Defendant “any statements made by [Defendant] at the meeting[s],” but permitted the government to make derivative use of information learned, including in a prosecution of Defendant.[6] ECF No. 56-1 at 3, 8, 12; see also ECF No. 38 at 8.
Defendant asserts that in in the last months of 2021, the government extended him a plea offer. See ECF No. 37 at 7; ECF No. 38 at 58; ECF No. 43 at 20. It appears that he was offered a cooperation plea agreement in which he would plead guilty to a felony count of using false document in violation of 18 U.S.C. § 1001(a)(3) and a misdemeanor count of aiding and assisting a foreign government with intent to influence decisions of U.S. officers in violation of 18 U.S.C. §§ 207(f)(1)(B) and 216(a)(1). ECF No. 38-1 at 194 ().
That agreement also required Defendant to cooperate with the government's investigation and required the government to seek a downward departure under USSG § 5K1.1 from the Guidelines range otherwise applicable to Defendant if the government “determine[d], in its exclusive judgment,” that he had provided “substantial assistance . . . in the prosecution or investigation of another.” Id. at 194-95, 198.
Defendant ultimately chose not to enter into that plea agreement. ECF No. 43 at 20; see also ECF No. 58 at 93-94, 96. Rather, in January 2022 he signed a plea agreement that required him to plead guilty to two misdemeanors: (1) making a false writing in violation of 18 U.S.C. § 1018 (the “false writing violation”) and (2) aiding and advising a foreign government with intent to influence decisions of U.S. officers within one year of his separation from government service in violation of 18 U.S.C. §§ 207(f)(1)(B) and 216(a)(1) (the “cooling-off period violation”). ECF No. 20 at 4. That plea agreement did not include a cooperation agreement or offer the possibility of a § 5K1.1 letter but did indicate that a deduction of two levels for acceptance of responsibility could be applied to the Guidelines calculation “[i]f appropriate under [the Guidelines].” ECF No. 20 at 12. It calculated Defendant's combined Guidelines offense level as eight-a base offense level of six for both the Section 1018 charge and the Section 207(f) charge and a grouping enhancement of two. Id. at 12. The agreement further provided that the prosecution “reserve[d] the right to argue that additional offense characteristics, adjustments, and departures under the Sentencing Guidelines are appropriate,” but promised to “[r]ecommend that [D]efendant be sentenced to a term of imprisonment within the applicable Sentencing Guidelines range.” Id. at 6, 12.
Pursuant to the plea agreement, Defendant pleaded guilty to both the false writing violation and the cooling-off period violation on June 3, 2022. See Minute Order (June 3, 2022); ECF No. 20 (plea agreement); ECF No. 21 (statement of offenses); ECF No. 35 (). As set out in the papers and at the hearing, to prove a violation of Section 1018, the government would have to establish that (a) Defendant was a public officer in the State Department authorized to make a writing, namely an Office of Government Ethics Public Financial Disclosure Report, Form 278; (b) Defendant knowingly made and delivered the Form 278 as true, knowing that it contained a false statement; and (c) the Form 278 had a natural tendency to influence, or was capable of influencing, the decision or activities of the State Department and Office of Government Ethics. ECF No. 20 at 6; ECF No. 35 at 36-37. In connection with that count, Defendant admitted in the plea agreement, the statement of offenses, and the allocution that, on January 27, 2015, while serving as U.S. Ambassador to Pakistan, he received from a third party, first-class round-trip airfare from New Mexico to London and hotel accommodations in London in late January and early February 2015.[7] ECF No. 20 at 9; ECF No. 21 at 1; ECF No. 35 at 38, 50 (). The value of the airfare exceeded $18,000 and the value of the accommodations exceeded $1,000. ECF No. 20 at 9; ECF No. 21 at 1; ECF No. 35 at 38, 50. Knowing he was required to annually file a Form 278 disclosing, among other things, gifts and travel expenses, on May 12, 2016, Defendant certified as true and submitted a Form 278 for the 2015 calendar year that failed to disclose the air fare or accommodations received from the third party. ECF No. 20 at 9; ECF No. 21 at 1-2; ECF No. 35 at 38-39, 50. The Form 278 was signed by a Designated Ethics Official for the State Department on September 1, 2016, who concluded, based on the information in the form, that Defendant had complied with the applicable laws and regulations. ECF No. 20 at 9; ECF No. 21 at 2; ECF No. 35 at 39, 50.
As to the second count, to prove a violation of Section 207(f)(1)(B), the government would have to establish that (a) during Defendant's last year of employment with the federal government, his pay was over $160,112 (thereby making him a covered person under 18 U.S.C. § 207(c)); (b) Defendant knowingly aided or advised a foreign entity namely, the government of Qatar; (c) Defendant intended to influence one or more U.S. governmental decisions through the aid or advice; and (d) Defendant's prohibited activities occurred within one year after leaving his government job. ECF No. 20 at 6-7; ECF No. 35 at 37. In connection with this count, Defendant admitted that he served as U.S. Special Representative for Afghanistan from November 17, 2015, through November 30, 2016 (when he retired...
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