United States v. Safa ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0238n.06
Filed: March 30, 2007
06-1187
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
STEVE SAFA, formerly known as ) EASTERN DISTRICT OF MICHIGAN
Mahmoud Mustapha Safa, )
)
Defendant-Appellant. )
Before: DAUGHTREY and ROGERS, Circuit Judges, and OBERDORFER, District
Judge.*
PER CURIAM. The defendant, Steve Safa,1 was found guilty by a jury on one count
of making a false declaration before a grand jury and was sentenced to serve 15 months
in prison and pay a fine of $10,000. On appeal, the defendant contends that the district
court admitted into evidence improper lay opinion testimony and failed to consider the
*
The Hon. Louis F. Oberdorfer, U nited States District Judge for the District of Colum bia, sitting by
designation.
1
The defendant, a naturalized Am erican citizen, was indicted under his Lebanese birth nam e,
M ahm oud M ustapha Safa, with the additional designation “also known as Steve Safa.” The record
establishes, however, that at the tim e of naturalization, his nam e was changed to Steve Safa by order of a
federal district court. Although Safa’s attorney com plained at oral argum ent that, despite repeated requests,
the governm ent refused to utilize his legal nam e, the record fails to show that a m otion to am end the
indictm ent was ever filed on Safa’s behalf. Nevertheless, the sentencing papers include a copy of the order
granting Safa’s “petition for nam e change” on August 26, 1994, and in the interest of correcting the record,
we have opted to use the defendant’s legal nam e in the caption of this opinion.
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United States v. Safa
necessary factors in imposing sentence. For the reasons set out below, we find no
reversible error and affirm the judgment of the district court in its entirety.
FACTUAL AND PROCEDURAL BACKGROUND
The events giving rise to this prosecution began in September 2001, when Chief
Deputy Sheriff Ronald Jones stopped a sport utility vehicle pulling a U-Haul trailer that was
drifting from one lane of traffic to the other on northbound I-71 in Oldham County,
Kentucky. Investigation revealed that the vehicle was en route to Detroit, Michigan. Its
driver, Mohamad El-Harake, later gave Jones consent to search the trailer, in which the law
enforcement officer found chewing tobacco, pipe tobacco, and 1,500 cartons of Marlboro
cigarettes, some with Kentucky tax stamps affixed to them, others with no tax stamps at
all. According to Deputy Jones, the passenger in the vehicle, Steve Safa, admitted
knowing there were cigarettes in the trailer, although Safa later testified at trial that he
never made such an admission to the deputy.
Because El-Harake and Safa appeared to be engaged in the illegal transportation
of contraband cigarettes, Jones detained both men and eventually involved federal agents
and agencies in the investigation. Subsequently, Safa was summoned before a federal
grand jury looking into a possible conspiracy between El-Harake and other individuals that
involved cigarette-trafficking and other federal crimes. While the defendant was under oath
before the grand jury, Assistant United States Attorney Robert Cares asked him a number
of questions, including the following:
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United States v. Safa
Do you have any reason to believe that there were cigarettes in that U-Haul
van?
Do you know Ali Farhat?
Have you ever talked with Ali Farhat?
Do you know somebody by the name of Fadi or Fadi Haydous? Let me spell
that. F-a-d-i H-a-y-d-o-u-s.
Safa responded “no” or “no, sir” to each inquiry. Alleging those answers to be false,
however, the government obtained a three-count indictment against the defendant
charging three instances of false statements before the grand jury in violation of 18 U.S.C.
§ 1623.
At trial, the government offered testimony that Safa actually helped load the
contraband cigarettes into the U-Haul trailer rented by El-Harake; that the defendant and
Ali Farhat seemed to know each other; and that the defendant knew Fadi Haydous, bought
contraband cigarettes from Haydous, and received large money transfers totaling at least
$44,000 from Haydous. Assistant United States Attorney Cares also testified, over
defense counsel’s objection, that truthful answers from Safa during the grand jury
proceedings to inquiries concerning the defendant’s knowledge of cigarettes in the U-Haul
trailer and Safa’s acquaintance with Ali Farhat and Fadi Haydous “would . . . have assisted
the Grand Jury’s investigation” and that false answers “had a natural tendency to influence,
impede, or dissuade the Grand Jury’s investigation.”
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Taking the stand in his own defense, Safa testified that he knew that El-Harake was
transporting cigars and chewing tobacco on the date that they were stopped in Kentucky,
but that he was not aware that contraband cigarettes were also in the trailer. Furthermore,
Safa denied knowing Ali Farhat or Fadi Haydous, having any business dealings with
Haydous, or being involved in any money transfers with Haydous. The jury obviously
credited some of the defendant’s testimony because the jurors acquitted Safa of the first
two counts of making a false declaration before the grand jury and convicted him only of
falsely denying that he knew Fadi Haydous, a statement that was material to the
government’s investigation of wide-ranging conspiracy charges.
After a hearing, the district judge sentenced Safa to 15 months in prison and fined
him $10,000. From that judgment, the defendant now appeals.
DISCUSSION
In his first issue on appeal, Safa challenges the decision of the district judge to
admit testimony from Assistant United States Attorney Cares regarding the effect that
statements given by the defendant before the grand jury had on the government’s
investigation into an ongoing conspiracy. According to the defendant, such testimony
amounted to an improper lay opinion involving a legal conclusion, specifically whether
Safa’s grand jury testimony was “material.”
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A district court’s ruling on the admissibility of testimony is reviewed by this court only
for an abuse of discretion. See Trepel v. Roadway Express, Inc., 194 F.3d 708, 716 (6th
Cir. 1999) (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997)). “An abuse of
discretion exists when the district court applies the wrong legal standard, misapplies the
correct legal standard, or relies on clearly erroneous findings of fact.” First Tech. Safety
Sys., Inc. v. Depinet, 11 F.3d 641, 647 (6th Cir. 1993).
To convict an individual of a violation of 18 U.S.C. § 1623, the government must
prove beyond a reasonable doubt that the defendant “(1) knowingly made; (2) a materially
false declaration; (3) under oath; (4) in a proceeding before or ancillary to any court of the
United States.” United States v. Lee, 359 F.3d 412, 419 (6th Cir. 2004) (emphasis added).
Thus, the materiality of the declaration is an element of the offense that must be found by
the jury. See United States v. Gaudin, 515 U.S. 506, 511 (1995). Safa submits,
consequently, that prosecution witnesses may not offer their opinions as to whether certain
statements made during grand jury proceedings were indeed “material” because such
testimony conveys “the witness’[s] unexpressed, and perhaps erroneous, legal standards
to the jury.” Torres v. County of Oakland, 758 F.2d 147, 150 (6th Cir. 1985).
The defendant is correct in contending that witness testimony would improperly
invade the province of the court to explain the applicable law to the jury if a witness were
permitted to define “materiality.” However, the district judge in this case properly sustained
Safa’s objection to the question, “Now, can you briefly, sir, explain to the members of the
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United States v. Safa
jury what does it mean for a question to be material before the Grand Jury?” Nevertheless,
Assistant United States Attorney Cares was allowed to testify to facts that the jurors could
accept or reject in reaching their conclusion as to whether Safa’s statements were
“material.”
Although Rule 704 of the Federal Rules of Evidence provides that “testimony in the
form of an opinion or inference otherwise admissible is not objectionable because it
embraces an ultimate issue to be decided by the trier of fact,” we have consistently
recognized that “opinions phrased in terms of inadequately explored legal criteria” should
be excluded from evidence. See Torres, 758 F.2d at 150 (quoting Advisory Committee
Notes to Federal Rule of Evidence 704). As explained in those Notes:
Thus the question, “Did T have capacity to make a will?” would be excluded,
while the question, “Did T have sufficient mental capacity to know the nature
and extent of his property and the natural objects of his bounty and to
formulate a rational scheme of distribution?” would be allowed.
Id. Explained differently, “if the [witness] expresses an opinion using legal terms that follow
the statutes . . ., it is more likely to be held that the [witness] is giving a legal conclusion.
In contrast, . . . testimony that uses words that do not have specialized legal meaning is
more likely to be admissible.” 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s
Federal Evidence, § 704.04[1] (Joseph M. McLaughlin, ed., Matthew Bender 2d ed. 2006)
(citations and footnotes omitted).
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In this case, the jury was charged with the responsibility to determine whether the
alleged false statements made by Safa before the grand jury were so “material” as to affect
the government’s investigation into a possible conspiracy to distribute contraband goods.
In order to provide evidence upon which the jurors could base their conclusion with regard
to such an inquiry, the prosecution was allowed to ask an Assistant United States Attorney
whether Safa’s answers, “if false, would . . . have influenced, impeded, or dissuaded the
Grand Jury’s investigation” and, if true, “would . . . have assisted the Grand Jury’s
investigation.” Although those questions paraphrased the definition of “material” that the
district judge later charged to the jury, they did not ask the witness to reach the very legal
and factual conclusions for which the jury was responsible. Indeed, without the information
provided by the witness in response to the challenged questions, the jurors would have had
no information on which to base their verdict because they could not have intuitively
ascertained the relevance of Safa’s testimony to the larger conspiracy investigation. The
district judge, therefore, properly forbade the prosecution witness from explaining the
concept of a “material question,” but he properly allowed that same witness to testify that
Safa’s responses to inquiries before the grand jury did indeed have an impact upon the
government’s investigatory strategies. We find no abuse of discretion in this regard.
In his second issue, Safa contends that the district judge imposed a procedurally
unreasonable sentence upon him because the court failed to acknowledge its authority,
other than under a sentencing guidelines scheme, to impose punishment that varied from
the range of imprisonment envisioned by those now-advisory guidelines. According to the
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United States v. Safa
defendant, had the district judge taken into account the various factors listed in 18 U.S.C.
§ 3553(a), he would have imposed a sentence calling for probation, home detention, or
some other alternative to incarceration for this first offense.
As has now been well-documented, the United States Supreme Court in United
States v. Booker, 543 U.S. 220 (2005), “invalidated the mandatory use of the Sentencing
Guidelines and held they are now ‘effectively advisory.’” United States v. Collington, 461
F.3d 805, 807 (6th Cir. 2006). Consequently, we now review any sentence imposed by a
district judge to determine whether that sentence is “reasonable,” both procedurally and
substantively. As we explained in Collington:
A sentence may be procedurally unreasonable if “the district judge fails to
‘consider’ the applicable Guidelines range or neglects to ‘consider’ the other
factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the
judge deems an appropriate sentence without such required consideration.”
A sentence may be considered substantively unreasonable when the district
court “select[s] the sentence arbitrarily, bas[es] the sentence on
impermissible factors, fail[s] to consider pertinent § 3553(a) factors or giv[es]
an unreasonable amount of weight to any pertinent factor.”
Id. at 808 (citations omitted).
Unlike other cases that have found their way before us on appellate review, in this
case the district judge did not allow a simple recitation of the § 3553(a) factors to substitute
for a reasoned discussion and analysis of those considerations. Rather, Judge Tarnow
took the time necessary to honor the spirit, as well as the letter, of our post-Booker
decisions with an extended explanation, as follows:
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Now, it’s my understanding that under Booker I start with that guideline
range, which is 15 to 21 months. And that’s almost presumptively presumed,
to be redundant, is presumed to be reasonable. I understand I have the
discretion to find that it’s either too high or too low and I can depart in either
direction.
And having said that and having considered the fact that Mr. Safa is not a
physical threat, and understanding the importance of family, but also
understanding and agreeing with the Government that lying to a Grand Jury
is a very serious offense and it is a threat to the entire system – and while
the lying was not as serious as it could have been if the jury had convicted
him of all three counts – and I certainly remember that the jury acquitted him
of two counts. And those two counts are not being used to compute or to
aggravate his sentence or to change his sentence upward – I’m still faced
with a conviction on Count 3 of perjury, and the statute calls for a maximum
of five years.
And I agree with you, Mr. Safa, I don’t think you will do this again. So, in
terms of deterrence to you, just going through the process, facing the
pressures of a trial and the negative publicity of being accused of lying to a
Grand Jury, having to face your family and friends with that hanging over
your head, are serious deterrents to you doing this again. However, there
has to be some deterrence to other people.
And while I understand you have four small children and a family that needs
your presence, I also understand that almost everyone who stands where
you’re standing could say that. And it has already been taken into
consideration in terms of the guidelines, but I’m also taking it into
consideration as a basis of going below the guidelines.
I am not persuaded that your relationship to your family is much different
than hopefully anyone’s relationship to their family. Your responsibilities to
your family are very important, but not irreplaceable.
And the advantage perhaps of having some assets is that if any of them –
and I’m looking at a financial statement that shows a net worth of
approximately $6 million. If any of those assets are sellable, people can be
hired to either run your businesses or to help with your family in terms of
getting them to their doctor appointments and grocery shopping and the
other things that are involved in being a husband and a father.
Having taken into consideration the factors of 18 U.S.C. 3553(a) and the
guidelines, pursuant to the Sentencing Reform Act of 1984, as to Count 3,
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it is the sentence of the Court that you, Mr. Safa, will serve a period of 15
months, which is the bottom of the guideline range, and you shall be placed
on supervised release for a period of two years.
A fine is ordered in the amount of $10,000, payable immediately. There’s an
assessment of $100, which is also payable immediately.
Without question, the district judge fully considered the factors listed in § 3553(a)
before imposing sentence upon the defendant. Furthermore, he engaged in a reasoned
analysis of how those factors related to other concerns expressed by Safa during the
sentencing hearing. The district court thus clearly met the standards set for establishing
procedural reasonableness.
When reviewing a sentence to determine whether it is substantively reasonable, we
start with a presumption of reasonableness “[w]hen the district court issues a within-
guidelines sentence.” United States v. Davis, 458 F.3d 491, 496 (6th Cir. 2006), petition
for cert. filed, (U.S. Nov. 13, 2006) (No. 06-7784). The presumptive reasonableness of the
15-month sentence in this case has not been rebutted by any evidence or argument
advanced by Safa. Although the defendant requested imposition of a sentence that did
not include incarceration, the district judge felt that a prison term was appropriate, even in
a case in which the likelihood that the defendant would commit additional crimes was
extremely low, simply to emphasize to the public at-large the seriousness of lying under
oath and the drastic consequences that will result from such disrespect for the judicial
system as a whole.
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The district judge in this matter recognized the advisory nature of the sentencing
guidelines and his authority to impose any reasonable sentence justified by a consideration
of the applicable statutory sentencing factors. We conclude that the court adequately
justified the sentence imposed.
CONCLUSION
For the reasons set out above, we AFFIRM the judgment of the district court in its
entirety.
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