United States v. Saffarinia ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
Plaintiff,
v. Crim. Action No. 19-216 (EGS)
EGHBAL SAFFARINIA (a/k/a
“EDDIE SAFFARINIA”),
Defendant.
MEMORANDUM OPINION
Defendant Eghbal Saffarinia (“Mr. Saffarinia”), a former
Assistant Inspector General for the United States Department of
Housing and Urban Development’s Office of Inspector General
(“HUD-OIG”), faces criminal charges arising from alleged
falsifications and omissions in his annual public financial
disclosure reports pursuant to the Ethics in Government Act of
1978, 5 U.S.C. App. 4 §§ 101-11. Mr. Saffarinia has been charged
in a seven-count indictment for engaging in a scheme to conceal
material facts, making false statements, and falsifying records.
Following the government’s production of approximately 3.5
million pages with detailed production logs, Mr. Saffarinia
moves for a bill of particulars. Upon careful consideration of
the motion, the response, the reply thereto, the applicable law,
and for the reasons explained below, the Court DENIES
Defendant’s Motion for Bill of Particulars.
I. Background
The following allegations, which Mr. Saffarinia accepts as
true for this motion and intends to disprove at trial, are drawn
from the indictment. See Def.’s Mem. of Law in Supp. of Def.’s
Mot. for Bill of Particulars (“Def.’s Mem.”), ECF No. 14-1 at 3
n.1. 1 Between 2012 and 2017, Mr. Saffarinia served as the
Assistant Inspector General for Information Technology in HUD-
OIG, and then as the Assistant Inspector General for Management
and Technology. Indictment, ECF No. 1 at 2 ¶ 3. Mr. Saffarinia
oversaw HUD-OIG’s Office of Management and Technology, which was
reorganized as HUD-OIG’s Office of Information Technology
(“IT”). Id. As a member of the Senior Executive Service (“SES”),
Mr. Saffarinia had a “legal duty” to annually submit public
financial disclosure reports pursuant to the Ethics in
Government Act. 2 Id. at 2 ¶ 4. Such disclosures were filed using
1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
2 The Ethics in Government Act “requires government officials,
including Members of Congress, to file annual disclosure
statements detailing, with certain exceptions, their income,
gifts, assets, financial liabilities and securities and
commercial real estate transactions.” United States v. Oakar,
111 F.3d 146, 148 (D.C. Cir. 1997) (citing 5 U.S.C. App. 4 §
102; United States v. Rose, 28 F.3d 181, 183 (D.C. Cir. 1994)).
The Act created the Office of Government Ethics (“OGE”) as a
separate office within the Executive Branch. 5 U.S.C. App. 4 §
401(a). OGE provides “overall direction of executive branch
policies related to preventing conflicts of interest on the part
of officers and employees of any executive agency[.]” Id. §
402(a).
2
the Office of Government Ethics Form 278 (“OGE Form 278”). Id.
Mr. Saffarinia also served as HUD-OIG’s Head of Contracting
Activity, overseeing “procurement review and approval processes,
including IT contracts[.]” Id. at 2 ¶ 5. He was given “access to
contractor proposal information and source selection
information[.]” Id. In that position, Mr. Saffarinia had a
“legal duty under governing regulations,” requiring him to take
the following actions:
[1] to disclose actual and potential conflicts
of interest and [2] to not solicit and accept
anything of monetary value, including loans,
from anyone who (a) has or is seeking to obtain
government business from HUD-OIG, (b) conducts
activities that are regulated by HUD-OIG, and
(c) has interests that may be substantially
affected by the performance or nonperformance
of [his] official duties.
Id. at 2-3 ¶ 5.
Mr. Saffarinia, however, did not disclose the nature of his
relationship with Person A. Id. at 3-4 ¶ 11-12. Neither did Mr.
Saffarinia disclose his loans and payments in excess of $10,000
from Person A and his neighbor. Id. 17 ¶ 75. Mr. Saffarinia,
Person A, and Person B were friends from college who emigrated
to the United States from the same country. Id. at 3 ¶ 9. From
2012 to 2016, Mr. Saffarinia concealed his financial
relationship with Person A, who was the owner of an IT company
that contracted with HUD-OIG (“Company A”). See id. at 3 ¶ 6; 3-
4 ¶¶ 11-12. Mr. Saffarinia “steer[ed] government business and
3
disclos[ed] confidential government information” to Person A and
Company A. Id. at 4 ¶ 12. Mr. Saffarinia omitted an $80,000
promissory note that he owed to Person A in his OGE Forms 278,
failing to report all liabilities in excess of $10,000 in those
forms. See id. at 2 ¶ 4; 4 ¶ 12.
In 2012, Mr. Saffarinia caused Company B to enter into a
business partnership with Person A and Company A, and Company A
eventually served as one of Company B’s subcontractors on a
multi-year, $30 million IT services contract for HUD-OIG. Id. at
6 ¶ 18. HUD-OIG approved additional funding in the amount of
$78,000 for Company A’s subcontract with Company B in 2013. Id.
at 10 ¶ 42. Between 2012 to 2015, Company A received more than
one million dollars as Company B’s subcontractor. Id. at 9 ¶ 36.
Mr. Saffarinia gave competitive advantages to Person A and
Company A for a certain government contract between 2013 and
2014. Id. at 14 ¶ 61.
Mr. Saffarinia hired his friend and former business
partner, Person B, as the head of HUD-OIG’s new predictive
analytics department. Id. at 3 ¶¶ 7, 9. At Mr. Saffarinia’s
direction, Person B became the sole member of a technical
evaluation panel for a government contract. Id. at 16 ¶ 72. For
that contract, Person B rejected thirteen bid proposals, and
HUD-OIG awarded it to Person A and Company A. Id.
From 2013 to 2014, Mr. Saffarinia caused HUD-OIG to
4
recompete Company B’s IT service contract, and he caused Company
C to enter into a business partnership with Company A in order
for both companies to submit a joint bid for the recompete
contract. Id. at 11 ¶ 47. Mr. Saffarinia directed his
subordinate to meet with Person A and the owner of Company C for
the formation of the partnership and the submission of the joint
bid. Id. at 12 ¶ 50. HUD-OIG awarded the recompete contract,
which was worth more than $17 million, to Company C. Id. at 11 ¶
47. Company A became a subcontractor for Company C, and Company
A was expected to receive roughly nine million dollars. Id.
On June 25, 2019, a federal grand jury returned a 19-page,
78-paragraph, seven-count indictment charging Mr. Saffarinia
with concealing material facts, in violation of 18 U.S.C. §§
1001(a)(1) and 2 (“Count I”); making false statements, in
violation of 18 U.S.C. §§ 1001(a)(2) and 2 (“Counts II-IV”); and
falsifying records, in violation of 18 U.S.C. §§ 1519 and 2
(“Counts V-VII”). Id. 3-18 ¶¶ 10-78. Count I asserts that Mr.
Saffarinia “did knowingly and willfully falsify, conceal, and
cover up by trick, scheme, and device material facts . . . by
violating his legal duty to disclose a financial relationship
with Person A, including on his annual OGE Forms 278.” Id. at 4
¶ 11. Listing Mr. Saffarinia’s 2014, 2015, and 2016 publicly-
filed OGE Forms 278, Counts II through IV assert that Mr.
Saffarinia “did willfully and knowingly make and caused to be
5
made material false, fictitious, and fraudulent statements and
representations in a matter within the jurisdiction of the
executive branch of the Government of the United States, namely,
HUD and OGE[.]” Id. at 17 ¶ 76. Finally, Counts V through VII
list the same three separate OGE forms, alleging that Mr.
Saffarinia “knowingly concealed, covered up, falsified, and made
false entries in a record, document, and tangible object” when
he caused those forms to be filed “with HUD and OGE.” Id. at 18
¶ 78.
On June 28, 2019, this Court issued a Standing Order
requiring the government to produce any evidence in its
possession that is favorable to Mr. Saffarinia and material to
either his guilt or punishment. See generally Standing Order,
ECF No. 11 at 1 (citing Brady v. Maryland, 373 U.S. 83, 87
(1963); Giglio v. United States, 405 U.S. 150, 153-55 (1972)).
On the same day, the Court granted the parties’ consent motion
for a Protective Order governing discovery. See Min. Order of
June 28, 2019. As early as June 2019, the government produced
more than one million records to Mr. Saffarinia’s counsel. Gov’t
Opp’n, ECF No. 15 at 2. That production included, among other
things, virtually all of the investigative case file from the
Federal Bureau of Investigation (“FBI”), interview reports,
agent notes, and witnesses’ statements pursuant to the Jencks
Act, 18 U.S.C. § 3500. Id. at 2-3. The government’s production,
6
while voluminous, was sent to defense counsel in an “organized
and navigable digital format (specifically, in an electronic,
‘load ready’ format), with bates-stamping and detailed discovery
production logs that include[d] all of the metadata for the
records.” Id. at 3. The government gave Mr. Saffarinia an
“explicit roadmap” during two reverse proffer sessions in
February 2018 and June 2019, 3 and the parties engaged in further
discussions and telephone conversations about the charges. Id.
at 11. Given its continuing discovery obligations, the
government has provided Mr. Saffarinia with nearly 3.5 million
pages of discovery. Def.’s Mem., ECF No. 14-1 at 10.
Dissatisfied, Mr. Saffarinia filed a motion for bill of
particulars on July 5, 2019. See Def.’s Mot. for Bill of
Particulars (“Def.’s Mot.”), ECF No. 14 at 1. Mr. Saffarinia
seeks an order compelling the government to produce a bill of
particulars addressing three points: (1) the legal duties that
form the basis of the concealment of material facts charged
under 18 U.S.C. § 1001 with respect to Count I; (2) the
“governing regulations” that required Mr. Saffarinia to disclose
3 A “reverse proffer” has been described as a session with the
government where “the defendant remains silent” and “the
prosecutor explains how the government would convict the
defendant at trial and may choose to reveal more information
than required by the discovery rules.” Stephanos Bibas,
Incompetent Plea Bargaining & Extrajudicial Reforms, 126 Harv.
L. Rev. 150, 167 (2012).
7
his conflicts of interest as to Count I; and (3) the
investigation or matter Mr. Saffarinia allegedly impeded,
impaired, or obstructed under 18 U.S.C. § 1519 with respect to
Counts V through VII. Id. The government filed its opposition
brief on July 7, 2019, see Gov’t Opp’n, ECF No. 15 at 1-13, and
Mr. Saffarinia filed his reply brief on July 11, 2019, see
Def.’s Reply, ECF No. 16 at 1-10. The motion is ripe and ready
for the Court’s adjudication.
II. Legal Standard
Federal Rule of Criminal Procedure 7(c) requires an
indictment to “be a plain, concise and definite written
statement of the essential facts constituting the offense
charged[.]” Fed. R. Crim. P. 7(c)(1); see also United States v.
Edmond, 924 F.2d 261, 269 (D.C. Cir. 1991) (“[T]he function of a
federal indictment is . . . not how the government plans to go
about proving [those essential facts].”). Under Rule 7(f), a
“court may direct the government to file a bill of particulars.”
Fed. R. Crim. P. 7(f). “A bill of particulars can be used to
ensure that the charges brought against a defendant are stated
with enough precision to allow the defendant to understand the
charges, to prepare a defense, and perhaps also to be protected
against retrial on the same charges.” United States v. Butler,
822 F.2d 1191, 1193 (D.C. Cir. 1987). “Yet if the indictment is
sufficiently specific, or if the requested information is
8
available in some other form, then a bill of particulars is not
required.” Id.
“The determination of whether a bill of particulars is
necessary ‘rests within the sound discretion of the trial court’
and will not be disturbed absent an abuse of that discretion.”
United States v. Mejia, 448 F.3d 436, 445 (D.C. Cir. 2006)
(quoting Butler, 822 F.2d at 1194). “[A] bill of particulars is
not a discovery tool or a device for allowing the defense to
preview the government’s evidence.” United States v. Brodie, 326
F. Supp. 2d 83, 91 (D.D.C. 2004); see also United States v.
Smith, 776 F.2d 1104, 1111 (3d Cir. 1985) (“A bill of
particulars, unlike discovery, is not intended to provide the
defendant with the fruits of the government’s investigation.”).
III. Analysis
In moving for a bill of particulars, Mr. Saffarinia makes
four primary arguments. First, Mr. Saffarinia contends that a
bill of particulars is necessary for him to prepare his defense
and to prevent unfair surprises at trial. Def.’s Mem., ECF No.
14-1 at 6. Mr. Saffarinia’s next argument is that the
obstruction allegations in Counts V through VII are “threadbare”
and “multiplicitous” because the indictment fails to describe
the “investigation” or “matter” that he allegedly intended to
impede, influence, or obstruct. Id. at 7. Mr. Saffarinia points
out that he is left guessing “whether the ‘matter’ supporting
9
the false statements charges differs from the ‘matter’
supporting the obstruction charges.” Id. at 8. Next, Mr.
Saffarinia argues that Count I of the indictment fails to
explain what “legal duty” triggered his alleged failure to
disclose information in violation of 18 U.S.C. § 1001(a)(1). Id.
at 9. Mr. Saffarinia’s fourth argument is that the “massive
discovery” in this case underscores the need for a bill of
particulars because he will be “left to spend months of valuable
trial preparation time sifting through millions of pages of
documents trying to figure out what, exactly, he stands accused
of.” Id. at 11.
The government responds that the indictment supplies Mr.
Saffarinia with the essential facts and elements of the crimes
charged, and that Mr. Saffarinia’s motion “improperly seeks the
disclosure of the government’s legal theory and the specific
acts it will prove at trial in support thereof.” Gov’t Opp’n,
ECF No. 15 at 4. The government argues that “[t]he indictment’s
specificity, coupled with the substantial discovery already
provided (including an early production of Jencks material), is
more than sufficient to place [Mr. Saffarinia] in a position
where he understands the charges and can prepare a defense to
them.” Id. at 5. The government contends that the indictment
provides Mr. Saffarinia with notice of the matters and
investigations that he obstructed for the § 1519 charges because
10
it names both HUD and OGE as the relevant agencies, it describes
the OGE forms that he allegedly falsified, and those allegations
are incorporated in Counts V through VII. Id. at 6. With respect
to the § 1001 charge, the government contends that the
indictment indicates that Mr. Saffarinia had a legal duty to
disclose his relationship with Person A because Mr. Saffarinia
was a high-ranking HUD-OIG official, the Head of Contracting
Activity, and an SES member. Id. at 7. The government’s next
argument is that Mr. Saffarinia’s motion is an attempt to “use a
bill of particulars as a discovery device and to preview the
government’s trial theories[.]” Id. at 9. Finally, the
government argues that Mr. Saffarinia’s requested information
“is available to [him] through the indictment itself, the
discovery provided by the government, and the information
previously furnished to [him] and his counsel[.]” Id. at 12.
Before turning to the parties’ arguments as to Mr.
Saffarinia’s three requests, the Court first addresses the
substantial discovery in this case.
A. The Government Has Produced Substantial Discovery
It is undisputed that the discovery in this case is
voluminous. See, e.g., Def.’s Mem., ECF No. 14-1 at 10-11; Gov’t
Opp’n, ECF No. 15 at 2-3. The government has produced more than
one million records and 3.5 million pages to Mr. Saffarinia. See
Def.’s Mem., ECF No. 14-1 at 10; see also Gov’t Opp’n, ECF No.
11
15 at 2. In the government’s view, Mr. Saffarinia “will [not] be
forced to find a proverbial needle in a haystack” because the
government has provided him with organized and detailed
discovery production logs, Bates-stamping, and digital
formatting. Gov’t Opp’n, ECF No. 15 at 2. The government further
provided Mr. Saffarinia with seven specific categories of
documents to assist defense counsel with the discovery review.
Id. at 2-3. 4 Mr. Saffarinia neither challenges the government’s
production nor disputes the government’s efforts to make defense
counsel’s discovery review manageable. See generally Def.’s
Reply, ECF No. 16.
Notwithstanding the pre-indictment negotiations, voluminous
discovery, and subsequent discussions between the parties in
this case, the parties had two separate and lengthy reverse
proffer sessions, Mr. Saffarinia attended one of them, and the
4 The government has produced the following seven categories of
documents: (1) “Nearly all of the FBI’s investigative case file,
including interview reports, agent notes, and an early
production of Jencks material”; (2) “A voluminous amount of
material from HUD-OIG, including the e-mail accounts for the
defendant and Persons A and B for the relevant period”; (3) “The
subpoena returns (with supplements)”; (4) “The defendant’s tax
returns and financial records”; (5) “A portion of the
defendant’s administrative records (including ethics training
and financial disclosure forms and certifications)”;
(6) “Business and financial records for Person A and Company A,
and business records for two other vendors (referred to as
Companies B and C in the indictment)”; and (7) “HUD-OIG contract
information for the contracts at issue.” Gov’t Opp’n, ECF No. 15
at 2-3.
12
government explained its theory of the case to Mr. Saffarinia’s
counsel in each session. See Gov’t Opp’n, ECF No. 15 at 3; see
also Def.’s Reply, ECF No. 16 at 8. It is uncontested that both
sessions and the negotiations covered the following information:
[1] discussions of key interview reports and
documents (including references to
exculpatory information); [2] an analysis of
the interactions between [Mr. Saffarinia] and
his associates (Persons A and B); [3] a
discussion of [Mr. Saffarinia’s] legal
obligations to disclose information on his
public financial disclosure forms (OGE Forms
278); and [4] a summary of the HUD-OIG
procurement process and the contracts at
issue. Prior to [the] indictment, the
government also disclosed its proposed charges
pursuant to 18 U.S.C. § 1519 and, during that
discussion with [defense] counsel, explained
how the [Mr. Saffarinia’s] conduct impeded and
impaired the proper administration of HUD-OIG
and OGE.
Gov’t Opp’n, ECF No. 15 at 3. According to the government,
“[t]he elements of the crimes that the government anticipated
charging, and the accompanying jurisdictional and legal issues,
were matters of prolonged oral and written communications
between the parties.” Id. at 3 n.2. Although Mr. Saffarinia
takes issue with the government’s statements about the parties’
discussions, he argues that the parties’ disagreement is
“irrelevant.” Def.’s Reply, ECF No. 16 at 8. Without citing to
any authority, Mr. Saffarinia contends that “if the government
did communicate the particulars that Mr. Saffarinia seeks, it
will suffer no prejudice from repeating its prior disclosures
13
here.” Id. at 9 (emphasis in original).
Contrary to Mr. Saffarinia’s contention, the government
does not have an obligation to repeat its previous disclosures.
“A bill of particulars is meant to allow [Mr. Saffarinia] to
properly prepare for trial, not provide a method to force the
prosecution to connect every dot in its case.” United States v.
Han, 280 F. Supp. 3d 144, 149 (D.D.C. 2017) (citing Butler, 822
F.2d at 1193-94). While Mr. Saffarinia may request additional
information through a bill of particulars, see Fed. R. Crim. P.
7(f), he may not use it as a discovery mechanism, see United
States v. Ramirez, 54 F. Supp. 2d 25, 29 (D.D.C. 1999). As Judge
Huvelle observed in United States v. Brodie, “a bill of
particulars is not a discovery tool or a device” and the
government is not “required to prove how or when the [alleged
crime] was formed, the details of any meeting or when the
defendant [engaged in the alleged crime].” 326 F. Supp. 2d at
91. Furthermore, the United States Court of Appeals for the
District of Columbia Circuit (“D.C. Circuit”) has made clear
that a bill of particulars is unwarranted where, as here, “the
requested information is available in some other form.” Butler,
822 F.2d at 1193; see also United States v. Sanford Ltd., 841 F.
Supp. 2d 309, 316 (D.D.C. 2012) (finding that “no bill of
particulars [was] warranted [there] because the superseding
indictment and other information available to the defendants
14
through discovery provide[d] sufficient detail regarding the
nature and the details of the offenses charged to afford the
defendants a full and fair opportunity to prepare for and avoid
surprise at trial”).
In this case, Mr. Saffarinia’s request for additional
details about the charges in the indictment—details of which the
government has already provided to him—is improper. An
“indictment’s failure to detail the government’s case against
the defendants alone does not trigger a requirement for the
government to produce a bill of particulars so long as the
information requested by the defendants has been made available
in another form[.]” United States v. Mosquera-Murillo, 153 F.
Supp. 3d 130, 147–48 (D.D.C. 2015) (denying motion for bill of
particulars where there were reverse proffers and the government
provided voluminous discovery to defendants). 5 The government
argues—and the Court agrees—that the information Mr. Saffarinia
seeks is available in other forms through the discovery in this
5 Mr. Saffarinia attempts to distinguish Mosquera-Murillo from
this case, arguing that “the defendant in that case had moved
for the bill [of particulars] a year after the indictment and
after the government had provided ‘additional clarity as to
[the] government’s specific allegations.’” Def.’s Reply, ECF No.
16 at 7 n.2 (quoting Mosquera-Murillo, 153 F. Supp. 3d at 148).
Those facts, however, are of no consequence. In finding that
there was voluminous discovery, the court in Mosquera-Murillo
relied on the guiding principle in Butler that a bill of
particular is not required if the requested information is
available in another form. Mosquera-Murillo, 153 F. Supp. 3d at
148 (citing Butler, 822 F.2d at 1193-94).
15
case. See Gov’t Opp’n, ECF No. 15 at 9. Given the substantial
discovery here, the Court therefore finds that Mr. Saffarinia is
not entitled to a bill of particulars to prepare his defense and
to avoid any surprises at trial. See Mejia, 448 F.3d at 446
(concluding that “if the defendants felt ambushed, it was not
because the government was lying in wait, but because the
defendants were not looking” at the pretrial witness statements
provided by the government).
B. The Indictment and Discovery Provide Mr. Saffarinia
With Notice of the Matters and Investigations at Issue
Mr. Saffarinia’s argument—that the government fails to
identify the investigation or matter underlying the three
obstruction counts—is unavailing. See Def.’s Mem., ECF No. 14-1
at 7. With respect to Counts V through VII, “[t]he plain
language of 18 U.S.C. § 1519 criminalizes a defendant’s efforts
to obstruct ‘the investigation or proper administration of any
matter’ within the jurisdiction of [any department or agency of
the United States, including] the FBI, ‘or in relation to or
contemplation of any such matter.’” United States v. Moyer, 674
F.3d 192, 206 (3d Cir. 2012) (quoting 18 U.S.C. § 1519). “By the
plain terms of § 1519, knowledge of a pending federal
investigation or proceeding is not an element of the obstruction
crime.” United States v. Gray, 642 F.3d 371, 378 (2d Cir. 2011)
(emphasis added). And “[Section] 1519 does not require the
16
existence or likelihood of a federal investigation.” Id. at 379.
To support its position, the government relies on United
States v. Knight, No. 12-cr-0367, 2013 WL 3367259, at *4 (E.D.
Pa. July 3, 2013). See Gov’t Opp’n, ECF No. 15 at 6. Knight, a
decision left unaddressed by Mr. Saffarinia, is persuasive. See
Def.’s Reply, ECF No. 16 at 6-7. In that case, the defendants
sought additional information about their alleged obstructive
conduct under § 1519 beyond the allegations in the indictment.
Knight, 2013 WL 3367259, at *4 (emphasis added). The court found
that the indictment tracked the language of § 1519. Id. at *5.
The court explained that “the Government need not provide
specifics on how the obstructive conduct was intended to impede
the grand jury or any investigation.” Id. at *4. Because the
indictment set forth which documents the defendants had
allegedly falsified and fabricated, the court reasoned that the
defendants were not entitled to “information regarding
obstructive conduct beyond what [was] alleged in the
Indictment[.]” Id. The court found that “[r]eading the
Indictment as a whole, Defendants [could] reasonably infer how
their allegedly obstructive conduct impeded the grand jury or an
investigation into their activities.” Id.
The same is true here. As the government correctly points
out, the indictment provides Mr. Saffarinia with notice of the
matters and investigations at issue, and it incorporates by
17
reference the allegations that describe the OGE Forms 278 that
Mr. Saffarinia allegedly falsified when he submitted those forms
to the two agencies—HUD and OGE. See Gov’t Opp’n, ECF No. 15 at
6. Counts V through VII explicitly set forth the alleged false
statements and a description of each statement in Mr.
Saffarinia’s OGE Forms 278 that were submitted on May 12, 2014,
May 16, 2015, and April 26, 2016, respectively. See Indictment,
ECF No. 1 at 18 ¶ 78. Furthermore, the government provided Mr.
Saffarinia with “[n]early all of the FBI’s investigative case
file, including interview reports, agent notes, and an early
production of Jencks material.” Gov’t Opp’n, ECF No. 15 at 2.
Putting aside the discovery and reverse proffer sessions, the
indictment itself informs Mr. Saffarinia that the three alleged
false statements in the OGE Forms 278 were the matters that HUD,
OGE, and the FBI had jurisdiction to investigate. See
Indictment, ECF No. 1 at 18 ¶ 78. The Court therefore finds that
Mr. Saffarinia has sufficient information through discovery “to
permit [him] to conduct his own investigation” regarding any
additional information about the matters and investigations at
issue. Smith, 776 F.2d at 1111. 6
6 Mr. Saffarinia relies on United States v. Jackson, 926 F. Supp.
2d 691, 717 (E.D.N.C. 2013) for the proposition that an
indictment is deficient if it fails to identify the
investigation or matter that forms the basis of the obstruction
charges. See Def.’s Mem., ECF No. 14-1 at 8. Jackson is readily
distinguishable from this case. In that case, the court
18
C. The Indictment Sufficiently Apprises Mr. Saffarinia of
the False Statement Counts
Mr. Saffarinia’s other argument—that the government fails
to identify the legal duty and governing regulations underlying
Count I—is equally unavailing. See Def.’s Mem., ECF No. 14-1 at
9-10. A violation under 18 U.S.C. § 1001(a)(1) predicated on
concealment, as alleged in the indictment here, requires the
government to prove that the defendant had a legal duty to
disclose the concealed information. E.g., United States v.
Safavian, 528 F.3d 957, 964 (D.C. Cir. 2008) (“Concealment cases
in this circuit and others have found a duty to disclose
material facts on the basis of specific requirements for
disclosure of specific information.”); United States v. Calhoon,
dismissed two counts under 18 U.S.C. § 1512 and 18 U.S.C. §
1519, finding that “even considering the allegations in the
indictment as a whole, the government ha[d] failed to
sufficiently apprise [the defendants] of the [anticipated]
investigation and official proceeding they [were] alleged to
have obstructed.” Jackson, 926 F. Supp. 2d at 718. The court
found that the defendants were provided with “no details as to
the times and places of the [Alcohol, Tobacco, and Firearms]
inspection and investigation, and the nature of the matters
under inquiry.” Id. at 719. Unlike in Jackson, the government
here has provided Mr. Saffarinia with details—the FBI’s
investigative case file and the witnesses’ statements. Gov’t
Opp’n, ECF No. 15 at 2-3. Counts V through VII provide Mr.
Saffarinia with the OGE Forms 278 that he allegedly falsified,
the dates when he submitted them, and the agencies that reviewed
those forms. See Indictment, ECF No. 1 at 18 ¶ 78. In
considering the indictment as a whole, it is clear that the
matters and the agencies’ investigations at issue stemmed from
Mr. Saffarinia’s alleged failures to disclose all of his
payments and loans in the OGE Forms 278, forming the basis of
the obstruction allegations. See id. at 4-5 ¶ 13; 18 ¶¶ 77-78.
19
97 F.3d 518, 526 (11th Cir. 1996) (“Falsity through concealment
exists where disclosure of the concealed information is required
by a statute, government regulation, or form.”).
Mr. Saffarinia argues that “the government must prove that
[he] had a ‘duty to disclose material facts on the basis of
specific requirements for disclosure of specific information.’”
Def.’s Mem., ECF No. 14-1 at 9 (quoting Safavian, 528 F.3d at
964). The government does not dispute this statement of the law.
See Gov’t Opp’n, ECF No. 15 at 7-8; see also Def.’s Reply, ECF
No. 16 at 4. Rather, the government argues that a “plain reading
of the indictment” indicates that Mr. Saffarinia’s legal duty to
disclose his financial relationship with Person A arose from his
position as a high-ranking HUD-OIG official and as an SES
member. Gov’t Opp’n, ECF No. 15 at 7. The government points out
that Mr. Saffarinia’s legal duties to disclose derived from his
role as the Head of Contracting Activity. Id.; see also
Indictment, ECF No. 1 at 2-3 ¶ 5 (alleging that Mr. Saffarinia
had a “legal duty under governing regulations to disclose actual
and potential conflicts of interest and to not solicit and
accept anything of monetary value”).
In Safavian, a jury found the defendant guilty of
concealing relevant information from: (1) an ethics officer in
the course of seeking an ethics opinion; and (2) the General
Services Administration in the course of that agency’s
20
investigation. 528 F.3d at 962-63. Specifically, the defendant
had requested advice from the ethics officer, but the defendant
purportedly failed to provide all the information that would
have been relevant to the officer in rendering his opinion. Id.
at 964. The defendant also purportedly failed to provide
complete information to the agency’s investigator with whom he
voluntarily met. Id.
On appeal, the D.C. Circuit reversed the defendant’s
convictions on the concealment counts, holding that the
government had failed to identify a duty to disclose. Id. at
965. With respect to the defendant’s failure to provide complete
information to the ethics officer, the D.C. Circuit noted that
it was not clear “how th[e] voluntary system” of seeking ethical
advice – which the defendant was ultimately free to follow or
disregard – “impose[d] a duty on those seeking ethical advise to
disclose . . . ‘all relevant information’ upon pain of
prosecution for violating § 1001(a)(1).” Id. at 964. Instead,
any duty to disclose must arise from “specific requirements for
disclosure of specific information” so that the defendant has
“fair notice . . . of what conduct is forbidden.” Id. (citation
omitted). The D.C. Circuit also rejected the government’s
argument that “once one begins speaking when seeking government
action or in response to questioning, one must disclose all
relevant facts.” Id. at 965. Noting that there was no
21
“regulation or form or statute” that contained such a
requirement, the D.C. Circuit made clear that nothing in
“[section] 1001 demands that individuals choose between saying
everything and saying nothing.” Id.
Mr. Saffarinia’s reliance on Safavian is misplaced. The
government in Safavian argued that the defendant’s duty to
disclose information was imposed upon him not by statute,
regulation, or government form, but by “standards of conduct for
government employees,” which provided fourteen “general
principles” of behavior. Id. at 964. The D.C. Circuit concluded
that those standards were “vague” and that the “ethical
principles” embodied in them did not impose a clear duty on an
executive employee to disclose information. Id. at 964–65. The
opposite is true here.
As the indictment makes clear, Mr. Saffarinia’s duty to
disclose the required information in the OGE Forms 278 is not
the result of vague or general principles. See Indictment, ECF
No. 1 at 4 ¶ 11. Unlike in Safavian, this case involves a
statute, regulations, and a government form. The statute is the
Ethics in Government Act; the regulations are the OGE’s
regulations, 5 C.F.R. § 2634, et seq.; and the government form
is the OGE Form 278. See id. 7 HUD’s website provides that the
7 “The Court takes judicial notice of the official government
documents and other sources from [HUD’s] government website as
22
Ethics in Government Act “requires senior officials in the
executive, legislative, and judicial branches to file public
reports of their finances and other interests outside the
Government.” Financial Disclosure Reports, HUD,
https://www.hud.gov/program offices/general counsel/Financial Di
sclosure Reports (last visited Oct. 7, 2019). It further
provides that certain HUD employees, including SES members, must
file the OGE Forms 278. Id. The OGE Form 278’s instructions
direct filers to the Ethics in Government Act and 5 C.F.R. §
2634 to determine what information must be disclosed. See OGE
Form 278 at 3 § V (“General Instructions”). This form expressly
provides that “Title I of the Ethics in Government Act of 1978,
as amended (the Act), 5 U.S.C. app. § 101 et seq., and 5 C.F.R.
Part 2634 of the [OGE] regulations require the reporting of this
information.” Id. at 11.
Next, Mr. Saffarinia argues that the government fails to
identify the “governing regulations” in the indictment. Def.’s
Mem., ECF No. 14-1 at 10. To support his argument, Mr.
Saffarinia relies on United States v. Madeoy, 652 F. Supp. 371,
‘sources whose accuracy cannot reasonably be questioned.’”
Humane Soc’y of United States v. Animal & Plant Health
Inspection Serv., 386 F. Supp. 3d 34, 40 n.2 (D.D.C. 2019)
(quoting Fed. R. Evid. 201(b)(2)). The OGE Form 278, of which
the Court takes judicial notice, is publicly available on HUD’s
website. See OGE Form 278, Executive Branch Personnel Public
Financial Disclosure Report, HUD,
https://www.hud.gov/sites/documents/OGE_FORM_278_AUTOMATED.PDF.
23
374 (D.D.C. 1987), but his reliance on that case is also
misplaced. In Madeoy, the defendants were charged with 121
counts, including conspiracy, racketeering, false statements,
and fraud. Id. at 374. The indictment referenced “more than 700
pages of the Code of Federal Regulations without specifying
which regulations [were] at issue.” Id. The court held that
“[t]here [was] no reason whatever why [those] laws and
regulations should not [have been] specified by way of a bill of
particulars—a specification which may well [have been] vital to
defendants’ abilities to answer [the] charges.” Id. Madeoy,
however, is factually distinguishable. The holding in that case
does not require a bill of particulars in every case where an
indictment does not provide a specific citation to a governing
regulation. Unlike in the present case, there is no indication
whether the government in Madeoy provided the defendants with
substantial discovery or whether the parties participated in
extensive reverse proffer sessions. See id. at 380 (granting
defendants’ motion for pretrial discovery).
It is undisputed that the government has produced
voluminous discovery in this case. The indictment expressly
refers to Mr. Saffarinia’s positions as a high-level HUD-OIG
official and the Head of Contracting Activity, as well as his
SES membership, which all gave rise to his legal duty to
disclose the required information in the OGE Form 278. See
24
Indictment, ECF No. 1 at 2-3 ¶¶ 3-5. The OGE Form 278 itself
provides specific information about the reporting requirements.
See OGE Form 278 at 1 § I (“Scope of Disclosure”). Furthermore,
the indictment tracks the language of § 1001(a), and it provides
specific information about the three alleged false statements.
See Indictment, ECF No. 1 at 17 ¶¶ 74-76. The Court therefore
finds that the indictment provides Mr. Saffarinia with adequate
notice of the charges against him. See United States v.
Cisneros, 26 F. Supp. 2d 24, 50 (D.D.C. 1998) (denying motion
for bill of particulars where “[t]he lengthy [i]ndictment
include[d] not only a recitation of the statute but specific
information, including the times, places and activities which
constitute the unlawful activity”). 8
IV. Conclusion
For the reasons set forth above, the Court DENIES
Defendant’s Motion for Bill of Particulars. A separate Order
accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
October 10, 2019
8 Having found that Mr. Saffarinia is not entitled to a bill of
particulars, the Court need not address the government’s
argument that Mr. Saffarinia’s motion seeks to “lock the
government in on its legal theory, well in advance of trial, and
obtain a road map or laundry list of the documents and evidence
the government intend to introduce at trial.” Gov’t Opp’n, ECF
No. 15 at 9.
25