United States v. Safavian ( 2009 )

UNITED sTATEs DISTRICT coURT F | L E D
FoR THE DISTRICT oF coLUMB1A
JUL 2 '| 2009
UNITED STATES OF AMERICA ) l '
)
v. ) Criminal No. 05-0370 (PLF)
)
DAVID HOSSEIN SAFAVIAN, )
)
Defendant. )
)
OPINION AND ORDER
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.
I. BACKGROUND
From May l6, 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 finn 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 l l, 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. Abrarnoff’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 retumed 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)(l) and two counts of obstruction under 18 U.S.C. § 1505. Specifrcally, 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. § lOOl(a)(l); 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
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U.S.C. § l00l(a)(l); 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. § lOOl(a)(l).
Mr. Safavian’s trial began on May 22, 2006. On June 20, 2006, the jury retumed
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
‘intemational golfing trip provided by lobbyists."’ Retyped Indictment, Dkt. No. 117 11 27;
s_e§ al§c_) Verdict Forrn (2006 Trial), Dkt. No. 119 at l. The jury acquitted Mr. Safavian on Count
Four, which alleged that he had obstructed "the inquiry by Senator John McCain, as Chair1nan of
the Senate Committee on Indian Affairs, into allegations of misconduct by lobbyists for Native
American tribes." Retyped indictment ‘|l 38; g also VerdictFor1n (2006 Trial) at 3.
Mr. Safavian was found guilty on all three counts of false statements and/or
concealment under 18 U.S.C. § lOOl(a)(l). § Verdict Forrn (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 Forrn (2006 Trial) at 2; g a_l_sQ Retyped Indictment 11 29. With
respect to Count Three, the jury found that Mr. Safavian had "concealed his assistance to Mr.
Abramoff in GSA-related activities." Verdict Forrn (2006 Trial) at 3; Y_e_ al_so Retyped
Indictment 11 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
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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 Forrn (2006 Trial) at 4; se_e al:so Retyped
Indictment 11 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 l2, 2006. §e§ 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, _s_e_e
Judgment and Commitment, Dkt. No. 147 at 3; g also United States v. Safavian, 461 F. Supp.
2d 76 (D.D.C. 2006), but permitted him to remain free on bond pending appeal. _S_g§ ll
States v. Safavian, Memorandum Opinion and Order, Dkt. No. 146 at 3 (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. § 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." I;l. at 965. lt therefore concluded that Safavian "had no legal duty to disclose and that
his concealment convictions cannot stand." I_d.
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. § 100l(a)(1)). Each of these
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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. § 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 govemment contracts professionals rather than to lay persons. Lc_l.
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 govemment contracting professionals view
"having business or working with GSA." d 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.
g at 967-68.‘
After remand from the court of appeals, the parties engaged in unsuccessful plea
negotiations. 'l``hereafter, the grand jury retumed a five-count superseding indictment. §
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). lt 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)(l) and (a)(2). Again, because of the court
of appeals’ opinion, there was no concealment allegation. The superseding indictment also
Ironically, at the second trial, the defendant chose not to call the expert witness.
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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. § l001(a)(2). Count Five
charged Mr. Safavian with having made false statements to the F ederal 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 December 1, 2008. The jury retumed its verdict on
December 19, 2008. The jury found the defendant guilty on Counts One, Two, Three and Five,
and not guilty on Count Four (false statements to the Senate Committee on Indian Affairs). §
Verdict Forrn (2008 Trial), Dkt. No. 233. With respect to Count Five, the jury had been
instructed that it must be unanimous, beyond a reasonable doubt, as to whether the defendant
made one of three specific false statements. lt found him guilty of Specification (C), which
charged that Mr. Safavian falsely stated to the FBI that "at the time Abramoff invited him on the
August 2, 2002 Trip, defendant Safavian would not have been able to help Abramoff with GSA-
related activities if he wanted to since defendant Safavian was new at GSA" when, in fact,
Safavian knew at the time of the invitation that he had assisted Abramoff "with his efforts to
lease, purchase, acquire and redevelop GSA-controlled property." Superseding1ndictment
11 53(C); § ali Verdict Forrn (2008 Trial) at 3.2
2 Specification (C) of the superseding indictment is referenced as Specification (B) in both
the jury instructions and the jury verdict form because before submitting the case to the jury, the
Court granted the defendant’s motion for judgment of acquittal as to Specification (A) of Count
Five, _s;e_ Transcript of Trial at 82 (Dec. 15, 2008 -- afternoon session), and re-lettered the
remaining specifications in the jury instructions and jury verdict form. §_e_e Transcript of Trial at
12 (Dec. 16, 2008 -- afternoon session).
II. MOTIONS FOR JUDGMENT OF ACQUITTAL AND FOR NEW TRIAL
Under Rule 29 of the Federal Rules of Criminal Procedure, the Court must enter a
judgment of acquittal on any offense charged for which the evidence is insufficient to sustain a
conviction. In ruling on a motion for judgment of acquittal, the Court must "consider[] the
evidence in the light most favorable to the govemment and detennin[e] whether, so read, it is
sufficient to permit a rational trier of fact to find all of the essential elements of the crime beyond
a reasonable doubt." United States v. Kayode, 254 F.3d 204, 212-13 (D.C. Cir. 2001) (quoting
United States v. Harrington, 108 F.3d 1460, 1464 (D.C. Cir. 1997)). The Court must "accord[]
the govemment the benefit of all legitimate inferences," United States v. Weisz, 718 F.2d 413,
437 (D.C. Cir. 1983) (citations omitted), and accept the jury’s verdict of guilt if "any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt."
United States v. Arrington, 309 F.3d 40, 48 (D.C. Cir. 2002) (emphasis in original) (citations
omitted). Put another way, the Court may grant a motion for judgment of acquittal only where
"a reasonable juror must necessarily have had a reasonable doubt as to the defendant[’s] guilt."
United States v. Weisz, 718 F.2d at 437 (emphasis in original) (citations omitted).
Rule 33(a) of the Federal Rules of Criminal Procedure provides, in relevant part,
that "the court may vacate any judgment and grant a new trial if the interest of justice so
requires." FED. R. CRIM. P. 33(a). "Any error of sufficient magnitude to require reversal on
appeal is an adequate ground for granting a new trial." 3 WRlGHT, KING & KLEIN, FEDERAL
PRACTICE AND PROCEDURE § 556 (3d ed. 2004). Grounds for granting such a motion can
include a wide variety of errors, including where the Court finds that the weight of the evidence
is such that the verdict constitutes a miscarriage of justice. § 3 WRIGHT, KING & KLEIN,
FEDERAL PRACT!CE AND PRoCEDuRI-; § 553 (3d ed. 2004); _s_e._e all Tibbs v. Florida, 457 U.S. 31,
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38 n.11 (1982). A new trial should be granted only if the defendant has shown that "the error
was substantial, not harrnless, and that the error ‘affected the defendant’s substantial rights."’
United States v.Walker, 899 F. Supp. 14, 15 (D.D.C. 1995), affd 99 F.3d 439 (D.C. Cir. 1996)
(quoting United States v. Johnson, 769 F. Supp. 389, 395-96 (D.D.C. 1991)). Whether to grant
a motion for a new trial is "a decision committed to the Court’s sound discretion." United States
v.Nei11,964 F. Supp. 438, 441 (D.D.C. 1997).
III. MATERIALITY
The defendant argues that a judgment of acquittal should be entered on Count
Two because the statements made to the ethics officer in obtaining an ethics opinion could not
be material as a matter of law since the ethics officer, Eugenia Ellison, was not a decision-maker,
her decisions were advisory only, and the statements Mr. Safavian made to her therefore could
not have affected any governmental decision. S_e_e Defendant’s Motion for a Judgment of
Acquittal and for a New Trial ("Mot."), Dkt. No. 239 at 2-4. He argues that a judgment of
acquittal should be entered on Count Five because the conviction on that count was based on a
single statement made to FBI Agent Jeffrey Reising (as set forth in Specification (C)) that could
not be material since it conveyed information that the agent already knew and therefore could
not have influenced him in any decision he made. _S_§§ i_d. at 5-6. As the Court instructed the
jury with respect to the false statements charged in these counts under 18 U.S.C. § 1001(a)(l)
and (a)(2): "A statement, representation or fact is material if it had the effect of influencing the
particular decisions, actions or activities of an agency or committee, or was capable of, or had
the potential to do so. lt is not necessary that the statement, representation or fact actually have
had that influence or be relied on by the agency or committee, so long as it had the potential or
capability to do so." Transcript of Trial at 76 (Dec. 16, 2008 -- morning session).3 Defendant
argues that each of the two statements on which he was convicted fails to meet this test.
A. Count Two
With respect to Count Two, the defendant argues that a false statement made in a
request for an ethics opinion cannot be "material" as a matter of law. He reasons as follows:
First, to be material, a statement "must have ‘a natural tendency to influence, or [be] capable of
influencing, the decision of the decisionmaking body to which it was addressed."’ Mot. at 2
(quoting United States v. Gaudin, 515 U.S. 506, 509 (1995)) (internal quotation marks and
citation omitted). Second, the GSA ethics officer’s opinion was "purely advisory" in the sense
that it "did not determine, or even influence, whether the defendant’s behavior was lawful or
unlawful [in the eyes of the govemment] under the relevant ethics rules." Mot. at 3; g al_so §
(arguing that the "substance of the ethics opinion [was] a matter of indifference to the
government"). Third, because the GSA ethics officer’s opinion was advisory, it was not a
decision (and the GSA ethics officer was not acting as a "decisionmaking body") for purposes of
the materiality analysis. g § ("An ethics official who provides an advisory opinion is not a
957
‘decisionmaking body’ and does not provide an ‘official decision. ). The ethics opinion
therefore was "immaterial as a matter of law." M. Fourth and finally, because the "substance of
the [GSA ethics officer’s] advice was immaterial, then [so too were] the defendant’s statements
[to the GSA ethics officer], even if they influenced the [GSA ethics officer’s] advice." M. In
3 The only substantive difference between this instruction and the one requested by the
defendant is that instead of the words "had the effect of influencing . . . or was capable of
[influencing]," the defendant requested the language: "To be material, a statement must have a
natural tendency to influence, or be capable of influencing . . . ." S_ee Proposed Joint Jury
instructions Pursuant to Court Order Dated November l8, 2008, Dkt. No. 209 at 64.
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other words, in the defendant’s view, because he "was requesting an ethics opinion that was
immaterial, the false statement charged in Count Two was not material." ld. at 4. The Court
disagrees with the defendant’s reasoning.
The defendant’s argument seems to hinge on the notion that the GSA ethics
officer’s opinion is immaterial because it was "purely advisory" and hence not a “decision."
Mot. at 2-3. That notion is flawed. lt is true that the GSA ethics officer’s role can be
distinguished from the roles of other, more traditional "decisionmaking bodies" because the
GSA ethics officer issues advisory opinions rather than binding decisions. The defendant,
however, has cited no authority for the proposition that this distinction automatically renders
misrepresentations made to an ethics officer immaterial for purposes of Section 1001, and the
Court is not persuaded by that argument.
In any event, the jury was instructed that a statement, representation or fact is
"material" not only if it “had the effect of influencing the particular decision" of the ethics
officer, but also if it "had the effect of influencing . . . actions or activities of an agency . . . or
was capable of, or had the potential to do so." Transcript of Trial at 76 (Dec. 16, 2008 --
moming session) (emphases added). (Notably, the defendant did not object to this instruction.)
ln the Court’s view, there is no doubt that a reasonable jury could have concluded that the
defendant’s statements to the GSA ethics officer either influenced or had the potential to
influence her official actions or activities -- that is, the preparation and issuance of the ethics
opinion. § United States v. Barrett, 111 F.3d 947, 953 (D.C. Cir. 1997) (quoting United States
v. Hansen, 772 F.2d 940, 949 (D.C. Cir. 1985)) ("Proof of actual reliance on the statement is not
required; the Government need only make a reasonable showing of its potential effects."). As
the govemment points out, had Mr. Safavian told the ethics officer that (in the government’s
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words) Mr. Abramoff was "a lobbyist [who was] trying to get two maj or pieces of property
under GSA’s control" and that Mr. Safavian was trying to help Mr. Abramoff obtain those
properties by overruling subordinates, providing Mr. Abramoff with non-public inforrnation,
setting up meetings with key decision-makers at GSA, and not letting anybody know of these
facts and of the relationship between Mr. Abramoff and Mr. Safavian, those statements likely
would have influenced the ethics officer (and the way in which she wrote her ethics opinion) in
at least two ways. S_ec_: Transcript of Motions Hearing at 18-19 (Apr. 20, 2009). First, these
statements likely would have changed Ms. Ellison’s opinion as to whether Mr. Abramoff was a
“prohibited source" under the applicable regulations and thus whether Mr. Safavian could go on
the Scotland trip with Mr. Abramoff at all, or whether Mr. Safavian could accept the trip (or a
portion of it) as a gift. Second, these statements likely would have affected how Ms. Ellison
advised Mr. Safavian with respect to his obligations under the financial disclosure rules.
ln short, even assuming that the ethics opinion did not constitute an official
"decision" because of its advisory nature, the preparation and issuance of the opinion surely
constituted official “actions" or "activities." lt was prepared and issued in the course of the GSA
ethics officer’s official duties, and a reasonable jury could have found that the defendant’s
statements significantly influenced the action and activity of preparing and issuing the ethics
opinion. Thus, the Court cannot conclude that a reasonable jury necessarily must have had a
reasonable doubt as to whether the defendant’s statements to the GSA ethics officer were
"material" under these circumstances. _S§;e_ United States v. Kayode, 254 F.3d at 212-13; LJLit§c_l
States v. Weisz, 718 F.2d at 437.
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B. Count Five
With respect to Count Five, the defendant argues that the false statement he made
to FBI Agent jeffrey Reising -- that at the time of the Scotland trip the defendant "would not
have been able to help Abramoff with GSA-related activities if he wanted to since defendant
Safavian was new at GSA," Superseding Indictment 11 53(C) -- could not have influenced Agent
Reising because Agent Reising already knew, from reading certain e-mails and other background
material, that the statement was inaccurate at the time Mr. Safavian uttered it. Thus, reasons the
defendant, because his statement did not influence and could not have influenced Agent
Reising’s view with respect to whether Mr. Safavian could have "help[ed] Abramoff with GSA-
related activities" -- or whether Mr. Safavian was being truthiial on this score -- his statement
therefore was immaterial as a matter of law. _Sg Mot. at 5-6.
This argument fails for two reasons. First, it incorrectly narrows the scope of the
materiality inquiry. The defendant assumes that his statement to Agent Reising could be
material only if it persuaded (or had the potential to persuade) Agent Reising that Mr. Safavian
was not able to help Mr. Abramoff, or that Mr. Safavian was lying with respect to his ability to
help Mr. Abramoff. § Mot. at 5. But nothing about the materiality standard requires that the
defendant’s statements must have influenced or had the potential to influence those specific
decisions. Thus, even if Mr. Safavian’s statement to Agent Reising did not influence and could
not have influenced Agent Reising’s views as to whether Mr. Safavian was able to help Mr.
Abrarnoff (because Agent Reising already knew that Mr. Safavian could have been of assistance)
or whether Mr. Safavian was speaking truthfully about his ability to help Mr. Abramoff (for the
same reason), a reasonable jury could still find that Mr. Safavian’s statement influenced or could
have influenced other decisions, actions or activities by Agent Reising. For example, the jury
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could have found that Mr. Safavian’s statement to Agent Reising was material because it raised
suspicions in Agent Reising’s mind as to whether Mr. Safavian was lying about other matters as
well, and thereby actually or potentially influenced Agent Reising’s decisions as to the
seriousness and scope of the defendant’s wrongdoing, how to pursue the investigation, how to
order his investigative priorities, and whether to recommend prosecution on certain charges. A
reasonable jury therefore could have concluded that Mr. Safavian’s statement was material.
Second, even assuming that only Agent Reising’s decisions about whether Mr.
Safavian was able to help Mr. Abramoff and whether Mr. Safavian was speaking truthfully to
Agent Reising about his ability to help Mr. Abramoff matter in this context, and further
assuming that Agent Reising’s views on those matters were not influenced by Mr. Safavian’s
statement, a reasonable jury still could find the defendant’s statement to be material. The
defendant argues categorically that a statement is material only if it is made "to a listener who
was actually deceived, or could have been deceived, because he did not know facts contradicting
the statement." Mot. at 6. This argument reads much too much into a single bracketed word in a
single sentence from a single court of appeals decision. g ln re Sealed Case, 162 F.3d 670,
673 (D.C. Cir. 1998); g alg Mot. at 6. To satisfy the materiality element, "[i]t is not necessary
that the statement, representation or fact actually have [influenced] the agency . . . , so long as it
had the potential or capability to do so." Transcript of Trial at 76 (Dec. 16, 2008 -- morning
session) (emphasis added). Here, Mr. Safavian’s statement clearly had the "potential or
capability" to influence an FBI agent’s decisions about whether Mr. Safavian was able to help
Mr. Abramoff and whether Mr. Safavian was speaking truthfully about his ability to help Mr.
Abramoff. lndeed, the only reason suggested by Mr. Safavian as to why this statement did not
have that effect is that Agent Reising prepared for his interview with Mr. Safavian by first
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reviewing the evidence at his disposal. Under the defendant’s theory, Agent Reising’s pre-
interview preparation precluded Mr. Safavian’s statements from being considered material. lf,
on the other hand, Agent Reising had not prepared for the interview, the defendant argues, the
statement Mr. Safavian made to the agent may have been material because it could have
influenced or potentially influenced Agent Reising’s decisions, actions or activities. g Mot. at
6. ln this Court’s view, materiality and thus criminality cannot turn on such an arbitrary
distinction. As Judge Posner appropriately noted in a different context, this type of "no harrn-no
foul" argument "usually fare[s] badly in criminal cases." United States v. Black, 530 F.3d 596,
600 (7th Cir. 2008), g_eL granted, 129 S. Ct. 2379 (2009).
lV. VINDICTIVE PROSECUTION
The defendant next argues that by adding new charges in the superseding
indictment arising from the same operative facts already known to the govemment at the time of
the original indictment -- namely, false statements made by Mr. Safavian in his financial
disclosure form (Count Three) and false statements made to the FBI (Count Five) -- the
govemment acted vindictively or is at least subject to a presumption of vindictive prosecution
which the govemment must affirmatively overcome. g United States v. Gary, 291 F.3d 30, 34
(D.C. Cir. 2002); Maddox v. Elzie, 238 F.3d 437, 446 (D.C. Cir. 2001)." A presumption of
vindictiveness may arise where the objective evidence suggests that the prosecutor’s charging
decision "was motivated by a desire to punish [the defendant] for doing something that the law
4 The defendant relies primarily on the presumption of vindictiveness because actual
vindictiveness is "exceedingly difficult" to prove. Maddox v. Elzie, 238 F.3d at 446 (proving
actual vindictiveness requires objective evidence that the prosecutor’s actions were "designed to
punish a defendant for asserting his legal rights").
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plainly allowed him to do." United States v. Goodwin, 457 U.S. 368, 384 (1982); g alg
United States v. Falcon, 347 F.3d 1000, 1004 (7th Cir. 2003) (vindictive prosecution claim arises
"when the government pursues prosecution in retaliation for the exercise of a protected statutory
or constitutional righ "); Maddox v. Elzie, 238 F.3d at 446 (same). And "a change in the
charging decision made after an initial trial is completed is much more likely to be improperly
motivated than is a pretrial decision." United States v. Goodwin, 457 U.S. at 381 (emphasis
added). Mr. Safavian maintains that the addition of the new charges in Counts Three and Five
following the successful exercise of his right of appeal and after unsuccessful plea negotiations
raises a presumption of vindictiveness, g Defendant’s Reply Memorandum in Support of
Motion to Dismiss the Superseding Indictment ("Reply in Support of Mot. to Dismiss"), Dkt.
No. 193 at 4-5.
To invoke the presumption of vindictiveness in this context, the Court must find
that "a reasonable likelihood of vindictiveness exists -- that is, that the second indictment was
‘more likely than not attributable to vindictiveness on the part of’ the Govemment." g
States v. Gagg, 291 F. 3d at 34 (quoting Alabama v. Smith, 490 U.S. 794, 801 (1989)). "The
mere possibility that the second indictment was vindictively motivated does not suffice -- [the
defendant] must show that there is a ‘realistic likelihood’ of vindictive motivation." E. (quoting
United States v. Goodwin, 457 U.S. at 384). When a court finds a sufficient basis to invoke a
presumption of vindictiveness, the prosecution may "overcome the presumption with objective
information in the record justifying the increased . . . charges." United States v. Ga;v_, 291 F.3d
at 34 (quoting Maddox v. Elzie, 238 F.3d at 446); g also United States v. Goodwin, 457 U.S. at
374. Once the presumption is raised, the burden shifts to the govemment to rebut the
presumption of vindictiveness by showing legitimate "obj ective reasons" for the new charges.
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g United States v. Thomas, 410 F.3d 1235, 1247 (10th Cir. 2005); United States v. Suarez, 263
F.3d 468, 479-80 (6th Cir. 2001); United States v. King, 126 F.3d 394, 399 (2d Cir. 1997);
United States v. Tobin, 598 F. Supp. 2d 125, 128 (D. Me. 2009); United States v. Frankel, 739 F.
Supp. 629, 631 (D.D.C. 1990).
ln denying the defense motion to dismiss before trial, the Court assumed but did
not decide that there was a presumption of vindictiveness, §c_z_e_ Transcript of Motions Hearing at
11 (Nov. 26, 2008). The Court now concludes that the defendant has said enough for the Court
to invoke the presumption, thus shifting the burden to the govemment to rebut the presumption
of vindictiveness by proffering legitimate objective reasons for adding the new charges to the
superseding indictment. ln this case, the government points to the following justifications for
the two new charges: First, since the original indictment, the govemment received additional
evidence from the United Kingdom regarding the actual costs of the August 2002 trip, which
then made it possible to prove the new charge contained in Count Three. Second, the addition of
Count Five was a strategic response to the court of appeals’ earlier decision that the defendant
must be permitted to present testimony from an expert witness regarding the technical meaning
of "doing business." The govemment argues that introducing the statements made to the FBI
agent (the subject of Count Five) would undermine the defense that Mr. Safavian relied on the
technical meaning of doing business in his earlier statements because Mr. Safavian did not raise
the issue of the technical definition in his interview with the FBI agent. Count Five was added,
in part, to attempt to ensure that these alleged statements would not be excluded as related to
uncharged conduct. _S_e@ Opposition to Defendant’s Motion to Dismiss ("Opp. to Mot. to
Dismiss"), Dkt. No. 187 at 15-16.
16
A. Count Three
As noted above, the government argues that the addition of Count Three is not
evidence of vindictive prosecution because it is based on substantial new and additional evidence
that the govemment did not have at the time of the first trial and only obtained after that trial and
before the retum of the superseding indictment. g Opp. to Mot. to Dismiss at 15, 17. The
relevant case law makes clear that a presumption of vindictiveness can be overcome when the
evidence supporting the new charges in a superseding indictment was demonstrably unavailable
to the govemment at the time of the first trial. See, gg;, United States v. Suarez, 263 F.3d at 480
("lf the prosecution can show that the additional charges were not brought earlier because they
were based on new evidence, it will successfully rebut a showing of vindictiveness."); g alg
United States v. Campbell, 410 F.3d 456, 462 (8th Cir. 2005) ("'l``here can be no prosecutorial
vindictiveness if the prosecutor revised the charge because of newly discovered evidence or
some objective reason other than to punish the defendant for exercising his legal rights."). The
defense does not dispute this principle of law but simply does not believe the govemment’s
representations as to what evidence was and was not available at the time of the original trial.
g Reply in Support of Mot. to Dismiss at 10-11.
The govemment represents that the testimony of Laura van Zyl, a Scottish travel
agent who participated in arranging the 2002 golf trip, only became available to it after the first
trial. Ms. van Zyl described the Scottish leg of the trip and provided the jury with a detailed
analysis of the costs of the trip. This evidence was relevant to a number of the charges in the
indictment but particularly supported the new Count Three. The govemment represented that
Ms. van Zyl was not available to it until after the first trial because her testimony and the
interview itself were secured through the Mutual Legal Assistance Treaty ("MLAT") between
17
the United States and the United Kingdom, g Transcript of Motions Hearing at 23-24 (Apr. 20,
2009), and that the MLAT process had not been completed at the time of the first trial. g Opp.
to Mot. to Dismiss at 15, 17-20.5 The govemment also represented that at least some of the
invoices, proofs of payment and other records to which Ms. van Zyl referred during her trial
testimony were produced pursuant to the MLAT process. §§ i_d.; g a_l§c_) Govemment’s
Opposition to Defendant’s Motion for a Judgment of Acquittal and for a New Trial ("Opp. to
Mot."), Dkt. No. 241 at 13. The Court has no reason to disbelieve govemment counsel’s
representations, and "[i]n light of the prosecution’s reasonable explanation, [the defendant’s]
claim of vindictiveness fails." United States v. O’Hara, 301 F.3d 563, 571 (7th Cir. 2002).
Another new piece of evidence on which the govemment relied in support of
Count Three (as well as other counts) was the testimony of Will Heaton, who at the time of the
first trial had not yet pled guilty to the charges pending against him and had asserted -- or had
advised the govemment of his intent to assert -- his Fifth Amendment privilege. g Transcript
of Motions Hearing at 24, 40 (Apr. 20, 2009). He thus was unavailable at the time of the first
trial but was available at the second. Mr. Heaton’s testimony was important to support the false
statement charge in Count Three as it related to the cost of the trip to Scotland, Furthermore, as
the Court noted at oral argument on this motion, Mr. Heaton was a much more credible witness
than the other congressional staffer, Neil Volz, who was available and did testify at both the first
and second trials. _S_e_e i_d. at 34-35. Thus, Mr. Heaton’s availability for the second trial after he
5 The length of time that frequently is required to acquire evidence by way of an MLAT
request is reflected in 18 U.S.C. § 3292, which provides for the suspension of the statute of
limitations for the United States to retum an indictment for a particular offense for up to three
years when the govemment makes a showing that evidence of the offense is likely in a foreign
country and that an MLAT request has been made.
18
had entered his own guilty plea was an additional objective reason for the addition of Count
Three. ln sum, the government has demonstrated to the Court’s satisfaction that much of the
evidence in support of Count Three was not available to it at the time of the first trial. g supra
at 17-19.6
B. Count Five
The govemment’s argument as to why it has overcome the presumption of
vindictiveness with respect to Count Five is different. That count charged Mr. Safavian with
making a series of false statements to the FBI. The govemment seeks to justify the addition of
this new charge not on the basis of the acquisition of new evidence after the first trial but on a
change in trial strategy that it says was required by the opinion of the court of appeals,
Specifically, the govemment argues that once the court of appeals held that Mr. Safavian’s
procurement expert must be permitted to testify about the technical definition of the phrase
"doing business" with GSA, it was appropriate to add the charge relating to false statements to
the FBI because this charge and the evidence relating to it would undermine the expected
testimony of the expert witness and thus Mr. Safavian’s key defense to a number of the charges
against him. _S_gg Opp. to Mot. at 14-15. As Agent Reising testified, when Mr. Safavian talked
6 The cases primarily relied upon by the defendant with respect to Count Three therefore
are unavailing. g United States v. Tobin, 598 F. Supp. 2d at 129 (noting that "the government
has not identified any newly discovered evidence that might justify its charging decisions . . . . lt
possesses the same evidence today as four years ago, and could have readily brought the false
statements charges before the initial indictment . . ."); United States v. Williams, 7 F. Supp. 40,
47 (D.D.C. 1998) (the prosecution "knew, and admits that it knew, every fact necessary to every
charge that has been brought against defendant Williams before the original indictment was
filed, and indeed, the [prosecutor] fonned the intent before proceeding to trial on the false
statements charges alone that he would later charge Williams with all of the charges he now
faces").
19
to the FBI in May of 2005, Mr. Safavian did not mention the technical definition he relied upon
during his testimony at the first trial. Nor did he state that he had this definition in mind when
talking to the GSA ethics officer, the OIG, and representatives of the Senate Committee. lt was
Mr. Safavian’s 2006 trial testimony and the technical definition of "doing business" it supported
that persuaded the court of appeals of Mr. Safavian’s entitlement to an expert witness with
respect to that technical definition. ln the govemment’s view, the court of appeals’ decision,
which could not have been fully anticipated, made its change of strategy reasonable.
The defendant argues that this strategic decision by the govemment to add the
additional false statement charge contained in Count Five cannot overcome the presumption of
vindictiveness when all of the evidence relevant to that new charge was known to the
government at the time of the original indictment and the first trial: "[T]he government’s
subjective assessment of sound trial strategy is wholly inadequate to rebut the presumption of
vindictiveness which can only be ‘overcome by objective evidence justifying the prosecutor’s
action.’ . . . To allow the govemment to rely upon its own subjective judgment would do little to
dispel a defendant’s legitimate fear of vindictiveness, for virtually any prosecutorial decision
339
could be justified in terms of ‘trial strategy. Reply in Support of Mot. to Dismiss at 11
(quoting United States v. Goodwin, 457 U.S. at 376 n.8).
The Court agrees that the govemment cannot always overcome a presumption of
vindictiveness simply by claiming to have developed a preferable trial strategy after a mistrial or
reversal. Nevertheless, the presumption of vindictiveness may be overcome if the court is
persuaded that the govemment has embraced a new strategy not devised or intended to punish
the defendant for being successful on appeal or for exercising some legally protected right, but to
overcome evidentiary or other procedural problems that have become apparent as a result of an
20
appellate decision in the case, or of rulings by the trial court itself, or even through conversations
with the jury after a mistrial. g United States v. Thomas, 410 F.3d at 1247 (presumption of
vindictiveness overcome where mistrial declared for neutral reason and not because defendant
exercised constitutional right, and jury then suggested in discussions with counsel that uncharged
conduct was more egregious than conduct originally charged); United States v. Poole, 407 F.3d
767, 776-77 (6th Cir. 2005) (not vindictive to re-indict and add new charge after mistrial in order
to ensure introduction of evidence ruled inadmissible at first trial); United States. v. Davis, 108
Fed. Appx. 131, 135-36 (5th Cir. 2004) ("plausible explanation” for the superseding indictment
that adding conspiracy charge would overcome issue of admissibility as to certain testimony,
allowing the govemment "greater flexibility in introducing witness testimony"); United States v.
@, 93 Fed. Appx. 540, 546 (4th Cir. 2004) (perrnissible for govemment to charge overt acts of
conspiracy as separate counts in superseding indictment in order to overcome evidentiary rulings
in first trial that contributed to mistrial; this was a "wholly neutral, and rational, reason for the
additional charges [which] defeats the presumption of vindictiveness").
This is not a case in which the govemment has failed to identify “any relevant
change in circumstances or any other rational reason for charging" Mr. Safavian as it did in the
superseding indictment, United States v. Wood, 36 F.3d 945, 947 (10th Cir. 1994); g alg
United States v. Tobin, 598 F. Supp. 2d at 131. Rather, as in the cases cited in the previous
paragraph, the government has justified its change of trial strategy (that is, adding Count Five to
the superseding indictment) by setting forth neutral, rational reasons related to evidentiary and
other procedural problems that became apparent only after the first trial and the decision of the
court of appeals. In short, the asserted objective basis for the addition of Count Five was that the
testimony needed to support it would also undermine the prospective testimony of Mr.
21
Safavian’s expert witnesses. Objective evidence in the record renders that asserted basis
plausible. Expecting that the jury at the second trial would hear expert testimony on the
technical meaning of "doing business" because of the court of appeals’ decision, it was a
perfectly rational (and neutral) decision for the govemment to add the charge of false statements
to the FBI in order to ensure that this Court would permit testimony from Agent Reising that
during an interview of the defendant in May of 2005 Mr. Safavian did not mention the technical
definition of "doing business." The govemment persuasively argues that its strategic decision to
add Count Five was not intended to increase the potential punishment that Mr. Safavian might
face but to counter a defense -- now to be supported by the expert testimony required by the
court of appeals -- that was relevant to at least four counts of the superseding indictment: Counts
One, Two, Four and Five. While in some cases it may be difficult to distinguish between a
subjective reason for a change in strategy and an objective one, in this case "the govemment has
adequately rebutted any presumption of vindictiveness by showing that its decision to re-indict
was not motivated by a vindictive desire to punish the defendant for exercising his right[s]," but
rather by a reasonable reevaluation of trial strategy in light of the court of appeals’ decision.
United States v. Poole, 407 F.3d at 777.
The defendant further argues that the government’s argument on this point must
fail because the jury only convicted Mr. Safavian on Specification (C) of Count Five, charging
that Mr. Safavian falsely stated to the FBI agent that he "would not have been able to help
Abramoff with GSA-related activities if he wanted to since [he] was new at GSA." Superseding
Indictment 1[ 53(C). As the defendant correctly notes, this particular specification has nothing to
do with the expert’s anticipated testimony and therefore its addition is not independently
justified by the prosecution’s change in trial strategy. g Mot. at 8-9. The defendant argues
22
that the rationale articulated by the government -- and now accepted by the Court -- justified at
most the addition of Specifications (A) and (B), specifications as to which the jury made no
findings.7 The defendant further argues that a finding that the govemment had objective reasons
for adding Specifications (A) and (B) does not give the govemment carte blanche to add any
other specifications it chooses, while still overcoming the presumption of vindictiveness.
Because Specification (C) is unrelated to the govemment’s objective reason for adding
Specifications (A) and (B), defendant’s argument goes, its addition does not overcome the
presumption of vindictiveness and a judgment of acquittal therefore is required on Count Five.
While the Court agrees with the defendant that a finding that the govemment has
overcome the presumption of vindictiveness with regard to certain additional charges does not
permit the addition of wholly unrelated charges, such a concern does not apply here. The
conduct alleged in Specification (C) is directly related to the conduct alleged in Specifications
(A) and (B) -- all concem allegedly false statements made by Mr. Safavian to an individual FBI
agent in the course of a single interview. They are so closely related that it would border on the
illogical for the govemment to charge the conduct in Specifications (A) and (B) as false
statements and not include additional palpably material false statements made to the same FBI
agent at the same time. Once the government made the legitimate decision to add a charge that
the defendant made false statements in his interview with Agent Reising, it was reasonable to
7 The Court granted the defendant’s motion for judgment of acquittal on Specification (A)
prior to submitting the case to the jury; thus the jury never considered it. g Transcript of Trial
at 82 (Dec. 15, 2008 -- afternoon session). The jury verdict form makes plain that the jury only
found guilt beyond a reasonable doubt on Specification (C) of the superseding indictment, g
note 2, Lg, and not on Specifications (B) or (D).
23
include as a part of that count all of the statements made during that interview that the
government had reason to believe were false.
Ultimately, of course, the jury only convicted the defendant on Specification (C).
At the time that the govemment requested the grand jury to add Count Five, however, the
govemment could not have predicted how the trial would proceed; it did not even leam that the
defense would not call the expert witness relating to the technical definition of "doing business"
until the beginning of the defense case, And certainly the govemment could not have known at
the time of the indictment on which specifications the jury would find proof beyond a reasonable
doubt. The govemment made the judgment that this new charge would help prove that Mr.
Safavian did not intend the technical definition of "doing business" when he asked for the ethics
opinion, spoke with the OIG, communicated with the Senate Committee, or was interviewed by
the FBI. The govemment therefore believed the new Count Five would undermine the
centerpiece of the defense as to the old counts -- Counts One, Two and Four -- as well as to
Count Five itself``. ln determining whether the govemment acted vindictively, the Court must
consider the facts and circumstances that existed when the superseding indictment was retumed.
Having done so, it finds that the govemment has overcome the presumption of vindictiveness.
V. COST OF THE CHARTER FLIGHT
The defendant argues that he is entitled to a new trial under Rule 33 of the Federal
Rules of Criminal Procedure on Counts One and Three because evidence regarding the cost of
the charter flight was erroneously admitted, was crucial to both counts, and was extremely
prejudicial -- indeed, he maintains that it was "devastating to the defense." Mot. at 9. Count
One alleged that Mr. Safavian obstructed justice, in part by falsely telling the GSA Office of the
24
Inspector General that he had paid the full cost of the Scotland trip by writing a check to Mr.
Abramoff for $3,100. Count Three charged that Mr. Safavian made a false statement by failing
to disclose the trip as a gift on his financial disclosure forrn. The defense argues that evidence of
the cost of the charter flight, $90,000, necessarily affected the jury’s decisions with respect to
both counts in an impermissible way. Specifically, the defense claims that the admission of this
evidence allowed the jury to speculate -- without any basis in the evidence and with no guidance
from any statute, regulation or policy as to how to value airfare -- in determining Mr. Safavian’s
guilt on Counts One and Three.
A. The Xgt_e@§Argument
Before directly addressing this argument, which applies to both Count One and
Count Three, the Court must first consider defendant’s predicate argument that the jury’s verdict
on Count One is infirm in light of the admission of the charter flight evidence because of the
Supreme Court’s decision in Yates v. United States, 354 U.S. 298 (1957). Count One alleged
that Mr. Safavian obstructed the Office of Inspector General lnvestigation by falsely stating to
the investigator (1) that "Abramoff had no business with GSA" at the time of the August 2002
trip; and (2) that he had "paid Abramoff for the total cost of his share of the August 2002 trip,
including airfare, hotels and golf green fees." Superseding Indictment 1| 25. The jury returned a
general verdict of guilty on this count. The defendant argues that this general verdict may have
rested on a "legally infirrn" basis because one cannot know whether the jury based its general
verdict on the first alleged false statement or the second; and if the jury found Mr. Safavian
guilty based on the second, such a finding necessarily resulted from the impermissible admission
25
of the charter flight evidence. g Mot. at 12-13.8 Relying on g, the defendant argues that
"when the jury is given two possible grounds for conviction, but one of those grounds is legally
invalid, ‘and it is impossible to tell which ground the jury selected,’ then ‘the proper rule to be
applied is that which requires a verdict to be set aside.’ . . . Et_e_§ requires vacatur of convictions
that ‘may have relied’ on invalid theories of guilt." §;c_e i_d. at 12 (quoting Yates v. United States,
354 U.S. at 312); g al_sg Defendant’s Reply Memorandum in Support of Motion for Judgment
of Acquittal and for a New Trial, Dkt. No. 242 at 12-13.
The govemment replies that Mr. Safavian’s reliance on X_a_t_@§ is misplaced
because g addressed a situation in which there was a "fatal error in the prosecution’s theory
as a matter of law, not [as here] a claim that certain evidence was irrelevant or unduly
prejudicial." _S_eg Opp. to Mot. at 20. The govemment is correct that the defendant misreads or
overreads X;a_‘@_s. As the Supreme Court pointed out in Griffin v. United States, 502 U.S. 46(1991), a host of Supreme Court decisions both before and after Y_a;g§ recognized that
sometimes general verdict convictions must be set aside but only when they rest "on an
unconstitutional ground." M. at 55 (citing Stromberg v. Califomia, 283 U.S. 359 (1931)).
According to the Supreme Court, g "was the first and only case of ours to apply Stromberg
to a general verdict in which one of the possible bases of conviction did not violate any provision
of the Constitution" but was legally inadequate for other reasons. l_d_. at 55. Describing X_at_t_e_s as
"an unexplained extension" of prior (and subsequent) law, the Supreme Court in g declined
to extend §Q‘Qs_ even further. § at 55-56. As the Court said, there simply is no support in the
case law for setting aside a general verdict "because one of the possible bases of conviction was
3 The Court notes that defense counsel actually requested that the general verdict form be
used. g Transcript of Trial at 34-39 (Dec. 16, 2008 -- morning session).
26
neither unconstitutional as in Stromberg, nor even illegal as in Lit_es, but merely unsupported by
sufficient evidence." lg. at 56.
lf g does not provide support for the proposition that a general verdict should
be set aside merely because of insufficient evidence supporting one of two altemative theories,
surely it is not a basis for setting aside a general verdict that arguably is "tainted" by prejudicial
or irrelevant evidence that should not have been admitted as to one of two altemative theories
when, as here, there was an altemative basis on which the jury fairly could have found guilt. As
the Supreme Court said in Griffin, "legal error," as that tenn was used in Yates, "means a
mistake about the law, as opposed to a mistake conceming the weight or the factual import of the
evidence." Griffin v. United States, 502 U.S. at 59; g also United States v. Black, 530 F.3d at
602 (when two correct theories are presented in the instructions and there is sufficient evidence
to convict on one, "the jury is assumed to have followed the instruction on the government’s
burden of proof and therefore to have rejected the insufficiently supported theory"). ln short, the
defendant’s Yates argument must fail.
B. Admission of the Charter F light Cost
The defendant argues that he is entitled to a new trial on both Counts One and
Three because the jury’s verdict necessarily was based on evidence that the charter flight cost
$90,000, which evidence, according to the defendant, was improperly admitted, was prejudicial,
and required the jury to speculate as to how to value Mr. Safavian’s airfare to Scotland.
According to the defendant, the jury was left to speculate because the government never offered
any legal authority with respect to how a GSA employee such as Mr. Safavian should have
valued the airfare portion of the putative gift from Mr. Abramoff to Mr. Safavian. This error
27
requires a new trial, argues the defendant, because the govemment invited the jury to use Mr.
Safavian’s pro rata share of the $90,000 cost of the private charter in calculating the cost of the
trip, while pointing to no legal rule, statute, regulation or policy in support of this interpretation.
In addition, the defendant points out, none of the government’s witnesses could cite any rule,
regulation or policy supporting this basis on which to value the cost of a gift of airfare. g Mot.
at 10 & n. 1 .° On the record before it, the defendant argues, no jury could reasonably find that the
defendant was obligated to value the air transportation by using a pro rata share of the charter
flight. Rather, the jury was left to speculate on how to "incorporate that potentially devastating
evidence into its deliberations." g Mot. at 11; g alg Defendant’s Motion for a Judgment of
Acquittal, Dkt. No. 230 at 5-6. The govemment has three answers to this argument.
First, the government responds that there was in fact evidence at trial to support
the pro rata share theory of valuation. The ethics training or briefing materials with which Mr.
Safavian was familiar were admitted in evidence without objection as Govemment Exhibit 111.
9 Stephen Perry, the Administrator of GSA, testified that he had no specific understanding
of GSA’s practice for valuing a seat on a chartered flight, g Transcript of Trial at 14 (Dec. 9,
2008 -- afternoon session). Raymond McKenna, the General Counsel of GSA, stated that he was
unaware of any GSA regulation, statute or law governing the valuation of charter flights or of a
gift of air transportation. g Transcript of Trial at 45, 51 (Dec. l2, 2008 -- afternoon session).
The ethics officer, Eugenia Ellison, testified that she had never had to deal with that question and
that, should it arise, she would have to ask the Office of Government Ethics for an opinion. g
Transcript of Trial at 53 (Dec. 10, 2008 -- af``temoon session). She said there is no single GSA
regulation, guidance or policy that provides the answer. §e_e Q. Danny Ross, a Senior Assistant
General Counsel at GSA, testified that there was no GSA policy or regulation that addressed
how to value travel aboard a charter flight or to determine the "fair market value" of such a gift.
g Transcript of Trial at 126-27 (Dec. l2, 2008 -- af``temoon session). He testified that there
were three altemative methods for valuing the fair market value of a gift of air travel on a charter
fligh -- namely, first class commercial airfare for the same route, one’s pro-rata share of the cost
of the charter, or, if the destination were not well served by commercial flights, the cost of the
charter itself. _S_;e_§ ig. at 127. He said that if confronted with the question he would seek advice
from the Justice Department or the Office of Govemment Ethics to clarify which of the three
altemative methods would be sufficient for valuing the cost. g i_d. at 128.
28
§§ Transcript of Trial at 21-22 (Dec. 10, 2008 -- afternoon session). 'l``hese materials --
including particularly 5 C.F.R. § 2635.203(c) -- the government maintains, do support the
valuation of airfare at market value and the view that market value means pro rata share. The
govemment argues that under the regulations "market value means the retail cost," 5 C.F.R.
§ 2635.203(c), of the flight and that a "reasonable interpretation " of the market value of Mr.
Safavian’s airfare is a pro rata share of the actual cost of the charter flight. S_eq Notice of
Evidence, Dkt. No. 210 at 3 (emphasis added); g als_o Opp. to Mot at 16. lt relies on the
definition of "market value" in the regulation, of which it says Mr. Safavian was well aware, and
on Example 2 following that definition for its view that the "market value" or "fair market
value" of Mr. Safavian’s airfare to Scotland should be his pro rata share of the "retail cost" that
he "would incur to purchase the gift." 5 C.F.R. § 2635.203(c).'°
Furtherrnore, the govemment says, the trial testimony of Eugenia Ellison, the
GSA ethics officer, supports this theory. Ms. Ellison testified that when David Safavian joined
GSA in 2002 he attended the ethics training class that is given to all new employees at GSA,
g Transcript of Trial at 18-20 (Dec. 10, 2008 -- afternoon session). She further testified that a
year or so later, in 2003, Mr. Safavian attended another ethics training course required annually
of all employees. §§ § at 20-21. Ms. Ellison then identified the training materials that were
Example 2 reads as follows:
Example 2: A prohibited source has offered an employee a ticket
to a charitable event consisting of a cocktail reception to be
followed by an evening of chamber music. Even though the food,
refreshments, and entertainment provided at the event may be
worth only $20, the market value of the ticket is its $250 face
value.
5 C.F.R. § 2635.203(¢).
29
provided to Mr. Safavian (and presumably to others) at the June 2002 new employee ethics
training program. §e_e_ Government Exhibit 111. She also identified the ethics training
attendance sheets from June 2002 and September 2003 (Government Exhibits 105 and 106)
confirming Mr. Safavian’s attendance at both trainings. g Transcript of Trial at 18-22 (Dec.
10, 2008 -- afternoon session). During the course of her testimony, Ms. Ellison was directed to
the portion of the training materials containing 5 C.F.R. § 2635.203, the regulation conceming
gifts from outside sources. _S_Q § at 25. Ms. Ellison then read from the portion of the
regulation that defines the tenn "market value," as follows:
Market value means the retail cost the employee would incur to
purchase the gift. An employee who cannot ascertain the market
value of a gift may estimate its market value by reference to the
retail cost of similar items of like quality. The market value of a
gift of a ticket entitling the holder to food, refreshments,
entertainment, or any other benefit shall be the face value of the
ticket.
_S_@§§ at 31; g alg 5 C.F.R. §2635.203(c).
On the basis of the foregoing, the Court concludes that there was some evidence
provided to the jury in the fonn of the ethics training materials and Ms. Ellison’s testimony to
support the government’s pro rata share theory. Thus -- contrary to the defendant’s argument --
the jury was not left to speculate impermissibly because there was an evidentiary foundation for
the pro rata share theory. The jury could consider this evidence along with all of the other
evidence (and any legitimate inferences therefrom) in detennining Mr. Safavian’s guilt or
innocence.
Second, in view of all of the evidence that the jury heard on cost and valuation
from the various witnesses -- inconsistent though it may have been -- the defendant cannot
succeed in his argument that the jury necessarily relied upon the evidence concerning Mr.
30
Safavian’s pro rata share of the $90,000 cost of the charter flight in reaching its verdicts on
Count One and Count Three. Nor did the government ask the jury to do so. lndeed, in its
closing argument, the govemment offered the jury several altemative theories of valuation based
on the evidence before it. g Transcript of Trial at 111-12 (Dec. 16, 2008 -- morning session).
The prosecutor certainly mentioned that the defendant’s pro rata share of the $90,000 charter
flight was approximately $11,000, and asked the jury to infer that the tenn "market value" in the
regulations meant "actual cost." § at 111. But the prosecutor also suggested, in the altemative,
that the jury could look at the cost of a commercial flight "first class ticket," i_d. at 111, or that it
could use for comparison purposes the $1,000 that the witness, Will Heaton, testified he paid for
a round-trip coach ticket to Scotland on a prior occasion. g i_d. at 112. Thus, the govemment
acknowledged that there were altemative ways to value the cost of the airfare to Scotland.
Mr. Safavian’s lawyer responded in kind. g Transcript of Trial at 143-47
(December 16, 2008 -- moming session). During his closing argument, defense counsel noted
that "during the course of this trial we heard all manner of testimony of how you are supposed to
value -- how you are supposed to decide the fair market value of a charter." §. at 143. He
reminded the jury that Administrator Perry had mentioned the use of a commercial equivalent,
that Mr. McKenna and Ms. Ellison did not know of any particular rule, and that Mr. Ross had
mentioned three possible separate rules. §g_q § at 143. Counsel argued: "We’ve heard all
kinds of numbers, all kinds of rules from Perry and Ellison and others. Nobody knows." § at
144. Finally, as a part of the defense theory of the case instruction, the Court instructed the jury
as follows:
31
As to the airfare component of the trip, the defense
contends that the evidence demonstrates that there is no
established method at GSA for valuing travel on a chartered flight.
The defense also contends that there is no evidence that Mr.
Safavian knew of any policy for valuing the cost of airfare in this
case.
§. at 83. In sum, the jury had a sufficient basis to find the defendant guilty on Count One and
Count Three without necessarily relying on the theory that market value meant the pro rata share
of the charter flight, and the jury was well aware of defendant’s challenges to that method.
Third, there was sufficient evidence for the jury to disregard any and all evidence
relating to the value of the airfare and still convict the defendant on Count One and Count Three.
The undisputed testimony at trial was that Mr. Safavian wrote a check to Mr. Abramoff for
$3,100 for his share of the trip. Count One of the superseding indictment charged that when Mr.
Safavian stated that he had "paid Abramoff for the total cost of his share of the August 2002
Trip, including airfare, hotels and golf green fees," Mr. Safavian knew the true cost of his share
was greater than $3,100. Superseding Indictment 11 25 (emphasis added). Count Three of the
superseding indictment charged the defendant with failing to report his trip to Scotland as a gift
on his 2002 financial disclosure fonn. § 1111 33, 37. At the time he filed the fonn, on or about
May l2, 2003, the applicable law and regulations required the reporting of any gift from a single
source if the aggregate value of the gift or gifts from that source was greater than $260. Mr.
Safavian did not include any infonnation in his 2002 financial disclosure form regarding the
August 2002 trip to Scotland even though the ethics opinion that Ms. Ellison drafted and Mr.
McKenna sent to Mr. Safavian on July 26, 2002 specifically stated: "You are reminded that you
must report the gift of free transportation on Schedule B, Part ll, of your next Public Financial
Disclosure Report if the gift totals more than $260." Govemment Exhibit 116 at 2.
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Thus, while the govemment maintains that evidence regarding the cost of the
charter flight was properly admitted in evidence, it also argues that no "manifest injustice"
justifying a new trial has occurred because a reasonable juror could have found the defendant
guilty on Count One and on Count Three without -- as the defendant puts it -- "incorporat[ing]
that potentially devastating evidence into its deliberations" or considering that evidence at all.
Mot. at ll. Again, Mr. Safavian wrote Mr. Abramoff a check for $3,100, and the financial
disclosure form required Mr. Safavian to disclose gifts totalling more than $260. The defendant
therefore was required to list the August 2002 trip as a gift on his financial disclosure fonn so
long as his share of the trip exceeded $3,360 -- that is, $3,100 plus $260. Based on all of the
evidence presented at trial, the Court concludes that the jury easily could have found that the cost
of the trip exceeded $3,100 for Count One and $3,360 for Count Three without considering the
cost of the airfare at all.
Ms. van Zyl testified about the cost of Mr. Safavian’s hotel rooms in Scotland.
The least expensive of these was about $400 per night, and (the evidence showed) Mr. Safavian
was there for four nights. §g_c; Transcript of Trial at 18-20 (Dec. l2, 2008 -- moming session).
She also testified about the cost of greens fees at the time of the trip, which started at several
hundred dollars for a guaranteed tee time per round of golf. g § at 29. Neil Volz testified
that greens fees were about $300 per round of golf and that the caddy fees for each round were
approximately $100 more. g Transcript of Trial at 96 (Dec. 1 1, 2008 -- moming session). He
also testified that he believed that Mr. Safavian played golf each of the five days, and probably
more than once per day. g §. at 98. Ms. van Zyl told the jury that the average cost of the
Scotland trip per golfer -- not including any airfare, the time spent in London, or any meals or
drinks outside the hotel in Scotland -- was approximately $4,324. §§ Transcript of Trial at 31-
33
32 (Dec. 12, 2008 -- moming session). Both Mr. Volz and Mr. Heaton described the expensive
drinks the group had, including, for example, one round of Scotch that cost more than $100. g
Transcript of Trial at 92, 99 (Dec. l2, 2008 -- moming session) (Heaton); Transcript of Trial at
102 (Dec. 11, 2008 -- moming session) (Volz). Mr. Volz also testified that his room in the
Mandarin Oriental Hotel in London, where Mr. Safavian stayed for three nights, cost about $500
per night, §§§ § at 103-04. A reasonable juror could have considered this testimony along with
the other evidence before it and determined beyond a reasonable doubt that Mr. Safavian knew
that the cost of the Scotland trip was more than $3,100 when he spoke with OlG Inspector Rowe
and that he was untruthful when he represented that the total cost of the trip was $3,3 60 or less
on his financial disclosure forrn.
The Court concludes that the admission of evidence regarding the actual cost of
the charter flight was not error, let alone substantial error. g United States v. Walker, 899 F.
Supp. at 15. And even if it was error to admit that evidence, the error was harmless. Thus, the
interest of justice does not require a new trial for any of the reasons identified by the defendant.
g FED. R. CRIM. P. 33,
Vl. CONCLUSION
For all of these reasons, the Court concludes that the defendant is not entitled to
either a judgment of acquittal or a new trial. As explained above, the Court finds that a
reasonable juror could have found that the statements on which Counts Two and Five were based
were material and therefore could have found the defendant guilty beyond a reasonable doubt on
those counts. The Court also concludes that the govemment has overcome the presumption of
prosecutorial vindictiveness with respect to Counts Three and Five. The defendant therefore is
34
not entitled to a judgment of acquittal. Finally, for the reasons stated, the Court finds that there
was no miscarriage of justice, that no substantial error was committed and that the defendant’s
substantial rights were not affected by the admission of evidence conceming the cost of the
charter flight. The defendant therefore is not entitled to a new trial on Count One or Count
Three. Accordingly, it is hereby
ORDERED that the defendant’s motion for judgment of acquittal under Rule 29
of the Federal Rules of Criminal Procedure, Dkt No. 239, and his motion for a new trial under
Rule 33(a) of the Federal Rules, Dkt. No. 239, are DENIED.
SO ORDERED.
PAUL L. FRIEDMAN
United States District Judge
DATE; Q_/.,_,j°q