The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on defendant's motion to dismiss all five counts of the indictment filed against him. The Court heard oral argument on the motion on March 24, 2006. The government opposes the motion to dismiss, maintaining that the indictment is sufficient as a matter of law because it is specific enough to protect the defendant against future jeopardy and places him on fair notice of the charges against him. The government argues that all of the defendant's arguments go primarily to the sufficiency of the evidence, a matter which the Court cannot properly consider at this stage in the proceedings. The Court agrees and therefore denies the defendant's motion to dismiss for the reasons given below.
Defendant David Safavian has been indicted on three counts of making false statements, pursuant to 18 U.S.C. § 1001, and two counts of obstructing justice pursuant to 18 U.S.C. § 1505, and aiding and abetting in the obstruction of justice pursuant to 18 U.S.C. § 2. Each of the false statement counts is brought under subsection (a)(1) of 18 U.S.C. § 1001, which encompasses "any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, [wherein the defendant] knowingly and willfully - (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact." The facts alleged in each count of the indictment relate to the defendant's involvement with "Lobbyist A," since identified as Jack Abramoff, and a golfing trip to Scotland.
The indictment alleges that from May 16, 2002 until January 2004, defendant David Safavian was the Chief of Staff for the Administrator of the General Services Administration ("GSA"). On August 3, 2002, the defendant, lobbyist Jack Abramoff, and seven other individuals flew to Scotland to play golf. Mr. Safavian, Mr. Abramoff, and others continued on to London, England, eventually returning to the United States on August 11, 2002. Prior to going on the golfing trip, Mr. Safavian sought and received an ethics opinion from a GSA ethics officer regarding whether he could participate in the trip. 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. The Senate Committee investigation began in March 2004 after several Native American tribes made allegations of misconduct against Mr. Abramoff. In the course of each of these investigations, Mr. Safavian was questioned about his involvement in the trip. He responded to each of the inquiries both orally and with documents.
Count One of the indictment alleges that the defendant obstructed the GSA-OIG investigation; Count Two alleges that he made a false statement in connection with seeking the GSA ethics opinion prior to the trip; Count Three alleges that he made a false statement in the course of the GSA-OIG investigation; Count Four alleges that he obstructed the Senate Committee investigation; and Count Five alleges that he made a false statement in the course of the Senate Committee Investigation.
An indictment need only contain a "plain, concise and definite statement of the essential facts constituting the offense charged." FED. R.CRIM.P. 7(c). It is sufficiently specific where it (1) contains the elements of the offense charged and fairly informs the defendant of those charges so that he may defend against them, and (2) enables him "to plead acquittal or conviction in bar of future prosecutions for the same offense," Hamling v. United States, 418 U.S. 87, 117-18 (1974), that is, "to protect against future jeopardy for the same offense." United States v. Haldeman, 559 F.2d 31, 123 (D.C. Cir. 1976), cert. denied, 454 U.S. 1149 (1977). "An indictment returned by a legally constituted and unbiased grand jury, . . . if valid on its face, is enough to call for trial of the charge on the merits." Costello v. United States, 350 U.S. 359, 363 (1956); see United States v. Conlon, 628 F.2d 150, 155-56 (D.C. Cir.), cert. denied, 454 U.S. 1149 (1982). The government therefore "is usually entitled to present its evidence at trial and have its sufficiency tested by a motion for acquittal under Rule 29." United States v. Yakou, 428 F.3d 241, 247 (D.C. Cir. 2005). Only in "unusual circumstances" is pretrial dismissal of the indictment possible on sufficiency-of-the-evidence grounds, and that is "where there are material facts that are undisputed and only an issue of law is presented." Id. (discussing case law in sister circuits, some of which have upheld the pretrial dismissal of an indictment based on sufficiency of the evidence "where the government has made a full proffer of evidence or where there is a stipulated record").
Mr. Safavian's motion, while purporting to address matters of law only, in fact argues for dismissal almost entirely on sufficiency-of-the-evidence grounds. Such a determination is improper in this case because there has been no full proffer of the evidence by the government, there is no stipulated record, and numerous material facts remain in dispute. Indeed, the defendant states explicitly that his motion relies on taking "the government's allegations, documents and witness statements as true," Memorandum of Points and Authorities in Support of Defendant's Motion to Dismiss the Indictment ("Mot. to Dism.") at 4 (emphasis added), and he relies heavily on documents that have been produced in discovery, including e-mails, interview notes, and witness statements taken by the FBI (known as "302's"). The Court cannot properly consider such matters in evaluating a motion to dismiss the indictment.
Even were the Court able or willing to consider matters outside the four corners of the indictment, the defendant's arguments throughout his motion are almost wholly predicated on the assumption that the documents in his possession are the totality of the evidence and represent what the government actually will present at trial. Frequently his assertions regarding the government's "evidence" are interpretations of the documents produced in discovery and assumptions about what the government's theory of the case will be. The defendant ignores the fact that the witness testimony cannot possibly be encompassed by the brief notes of interviews and summaries made by other individuals of witness interviews (although when those summaries relate to the defendant's statements, the defendant has been at great pains to point out that it is mere hearsay), or that additional documents may be produced pursuant to the Jencks Act.
Mr. Safavian's motion is replete with statements about how the government cannot "demonstrate," "show," or "establish" various of the elements of the alleged crimes. See, e.g., Mot. to Dism. at 4. It is not, however, the government's burden to demonstrate, show, or establish anything at this point; that is what trials are for. Many of the defendant's arguments in this motion no doubt will be re-raised in a Rule 29 motion at the close of the government's case, and may be well appropriate at that stage. Many other of the defendant's arguments concerning the weight, probative value, and sufficiency of the evidence are best left for a jury to decide. At this stage of the proceedings, the Court is not concerned with the sufficiency of the evidence, but only with the sufficiency of the indictment. The motion to dismiss the indictment must be denied with respect to each count.
A. Count Two (False Statement - GSA Ethics Opinion)*fn1
Defendant moves to dismiss Count Two arguing that: (1) the defendant did not have fair notice of the potential consequences of his conduct; (2) the government cannot demonstrate the falsity of defendant's statement; (3) the indictment does not allege the requisite affirmative act of concealment, only a failure to ...