The opinion of the court was delivered by: Paul L. Friedman United States District Judge
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 of the Federal Rules of Criminal Procedure. The Court heard oral argument on these motions on August 24, 2006. Upon consideration of the motions, oppositions, replies, and arguments of the parties, the Court concludes that both motions must be denied.
From May 16, 2002 until January 2004, 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, including a member of the United States House of Representatives, members of the Representative's staff, and other lobbyists employed at the same law firm as Jack Abramoff, flew by private jet to Scotland to play golf at St. Andrew's golf course. Mr. Safavian, Mr. Abramoff, and the others continued on to London, England. Mr. Safavian and Mr. Abramoff eventually returned to the United States by private jet on August 11, 2002.
Prior to going on the golfing trip, in July 2002, 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. On February 22, 2004, the Washington Post published the first of a series of articles about Mr. Abramoff'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 his involvement in the trip. He responded to each of the inquiries both orally and by providing documents. Mr. Safavian also wrote a letter accompanying the documents he provided to the Senate.
A grand jury thereafter returned a five count indictment against Mr. Safavian, charging him with three counts of making false statements or acts of concealment under 18 U.S.C. § 1001(a)(1) and two counts of obstruction under 18 U.S.C. § 1505. Specifically, Count One of the 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. § 1001(a)(1); 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 U.S.C. § 1001(a)(1); 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. § 1001(a)(1).
Mr. Safavian's trial before this Court began on May 22, 2006. On June 20, 2006, the jury returned 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 'international golfing trip provided by lobbyists.'" Amended Indictment ¶ 27; see also Verdict Form at 1. The jury acquitted Mr. Safavian on Count Four, which alleged that he had obstructed "the inquiry by Senator John McCain as Chairman of the Senate Committee on Indian Affairs, into allegations of misconduct by lobbyists for Native American tribes." Amended Indictment ¶ 38; see also Verdict Form at 3. Mr. Safavian was found guilty on all three counts of false statements under 18 U.S.C. § 1001(a)(1). See Verdict Form at 2-4.
Because each of the false statement/concealment counts under 18 U.S.C. § 1001(a)(1) alleged multiple false statements or acts of concealment, the Court used a special verdict form over the objection of the defendant. With respect to Count Two, the jury found that Mr. Safavian had both "concealed his assistance to Mr. Abramoff in GSA-related activities" and that he 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 Form at 2; see also Amended Indictment ¶ 29. With respect to Count Three, the jury found that Mr. Safavian had "concealed his assistance to Mr. Abramoff in GSA-related activities." Verdict Form at 3; see also Amended Indictment ¶ 31. With respect to Count Five, the jury found that Mr. Safavian had "falsely stated in a letter to the Committee that Mr. Abramoff did not have any business with GSA at 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 Form at 4; see also Amended Indictment ¶ 40.
II. MOTION FOR JUDGMENT OF ACQUITTAL
The defendant moved for judgment of acquittal on all counts pursuant to Rule 29 of the Federal Rules of Criminal Procedure at the close of the government's case. At that time, the Court reserved ruling on the motion. At the close of the defendant's case, the Court ruled in part on the defendant's Rule 29 motion, finding that there was not sufficient evidence to support the allegation in Count Two of the indictment that the defendant had falsely stated to the GSA that Jack Abramoff "did not have any business with and was not seeking to do business with GSA." That portion of Count Two was stricken from the indictment after the close of the defendant's case and prior to jury instructions and closing arguments. The jury was given an amended indictment to reflect that change. Defendant now renews his Rule 29 motion with respect to the four counts on which the jury found him guilty.
In ruling on a motion for judgment of acquittal, the Court must "consider the evidence in the light most favorable to the government and determin[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)). In so doing, the Court must "accord the government the benefit of all legitimate inferences." United States v. Weisz, 718 F.2d 413, 437 (D.C. Cir. 1983) (citations omitted). The question is whether the evidence is sufficient for a rational juror to have found the defendant guilty. See United States v. Kayode, 254 F.3d at 212-13; United States v. Harrington, 108 F.3d at 1464. Put another way, the Court may only grant a motion for judgment of acquittal where "a reasonable juror must necessarily have had a reasonable doubt as to the defendants' guilt." United States v. Weisz, 718 F.2d at 437 (emphasis in original) (citations omitted).
A. Fifth Amendment Due Process
Defendant argues that the Court must set aside the jury's verdict on all four counts because he did not receive adequate notice of his right not to speak and the potential criminal implications of making false statements if he did choose to speak, thereby violating his Fifth Amendment due process rights. See Defendant David H. Safavian's Motion for a Judgment of Acquittal ("Def. MJA") at 11-17. The government responds that this argument should have been made before trial in a motion to suppress the defendant's statements pursuant to Rule 12(b)(3) of the Federal Rules of Criminal Procedure, and it therefore is waived under Rule 12(e). See Government's Opposition to Defendant's Motion for Acquittal ("Gov't Opp. to MJA") at 3-4. The government further argues that even if the Court were to consider this new argument, it fails on the merits. See id. at 4-5. The Court agrees with the government.
The proper remedy for a due process violation under the Fifth Amendment would have been for the defendant to move to suppress his various statements to the government officials with whom he spoke. Mr. Safavian was well aware of what statements he was alleged to have made to GSA ethics officers, a GSA-OIG agent, and a Senate Committee investigator, as they were charged in the indictment itself. He did not at any time prior to trial move to suppress these statements on the ground that his constitutional rights had been violated. During the direct examination of the defendant at trial, defense counsel attempted to explore the issue of whether Agent Rowe gave any warnings to Mr. Safavian prior to interviewing him. 6/2/06 (p.m.) Tr. 29:12-14. The government objected and counsel argued the issue at a bench conference. Id. 29:15-31:11. During that bench conference, defense counsel did not indicate that she was seeking to suppress particular statements at that point in the trial, but rather wished to explore the issue of warnings before the jury. The Court sustained the government's objection, as this issue was a legal matter clearly outside the purview of the jury as factfinder and could only have been prejudicial to the government. The defendant has not ever moved to suppress the statements he made to the GSA ethics officers, to the GSA-OIG agent, or to the Senate Committee investigator. He therefore waived any ability to raise this argument post-trial under Rule 29.
Even if Mr. Safavian had raised this argument prior to trial, he would not have succeeded in view of the Supreme Court's decision in United States v. Brogan, 522 U.S. 398 (1998). In that case, the Court upheld the conviction under 18 U.S.C. § 1001 of an individual who was questioned by Internal Revenue Service and Department of Labor agents, and was informed only after he had given false statements to them that those false statements could constitute a crime. United States v. Brogan, 522 U.S. at 399-400. The Court held that although the false statements that the individual was convicted of making consisted of merely denying that he had committed certain illegal acts, such a denial nevertheless could result in criminal liability under the statute. In concluding that the plain language of 18 U.S.C. § 1001 admits of no exception for an "exculpatory no," the majority opinion stated that while the dissenters appeared to object to the harshness of the result, they could have equally sought to mitigate the asserted harshness of the statute as applied under the rationale that "§ 1001 has no application unless the defendant has been warned of the consequences of lying, or indeed unless the defendant has been put under oath." Id. at 407. Clearly, the majority considered and dismissed such an argument in upholding the conviction of the defendant in that case, who received no warning prior to making his false statement. Justice Ginsburg, in a concurring opinion, further noted the breadth of the statute (albeit somewhat disapprovingly):
Because the questioning occurs in a non-custodial setting, the suspect is not informed of the right to remain silent. Unlike proceedings in which a false statement can be prosecuted as perjury, there may be no oath, no pause to concentrate the speaker's mind on the importance of his or her answers.
Id. at 411. Justice Ginsburg, nevertheless, concurred in the outcome, which upheld the defendant's conviction. Clearly, no prior warning is required under 18 U.S.C. § 1001.
Defendant also argues that his statements could not be the predicate for a prosecution because he should have received an administrative warning under Garrity v. New Jersey, 385 U.S. 493 (1967), because he was threatened with the prospect of discipline. See Def. MJA at 14. But there is absolutely no evidence that such a threat existed. To invoke the protection of Garrity, this Circuit has held that the defendant "must have in fact believed his . . . statements to be compelled on threat of loss of job and this belief must have been objectively reasonable." United States v. Friedrick, 842 F.2d 382, 395 (D.C. Cir. 1988). That is simply not the case here.
Mr. Safavian initiated contact with the GSA ethics officers. He himself testified that he voluntarily went to the GSA-OIG agent's office after receiving a phone call, describing the meeting as "not tense" and "informal." 6/2/06 (p.m.) Tr. 27:23-28:6, 28:13. As for his communications with Deputy Chief Investigative Counsel for the Senate Committee on Indian Affairs Bryan Parker, Mr. Safavian and Mr. Parker both testified that after responding to the Senate request for documents, Mr. Safavian was the one to initiate a phone call to Mr. Parker following up on his response, and eventually sending to the Committee a letter and documentation. Mr. Safavian may have cooperated with the GSA-OIG and Senate Committee investigations out of a well-founded belief that for him to do otherwise might be a poor reflection on him as a public official. Nevertheless, his own testimony shows that he was not coerced or threatened and that there was not any immediate or direct threat of harm to his job when he chose to speak with either GSA-OIG Agent Gregory Rowe or Senate Investigator Bryan Parker. The fact that certain government investigators give warnings as a matter of policy in no way affects the analysis of whether such a warning is constitutionally required. The Court finds that under the circumstances presented here it was not.
B. Legal Duty to Disclose
Defendant argues that the conviction on Count Three, which was predicated on the jury's finding that Mr. Safavian had committed an act of concealment, and the jury's verdict with respect to the concealment portion of Count Two must be set aside because he had no legal duty to disclose the information concealed. See Def. MJA at 18-25. He argues first, that the Court should have determined as a matter of law whether he was under a duty to disclose the facts in question, and, second, that no such duty existed. See id. The Court already has concluded that the issue of a legal duty to disclose was a matter for the jury, and therefore included the legal duty as an element of 18 U.S.C. § 1001(a)(1) in the jury instructions. See Jury Instructions for Count Two, Count Three, Count Five.*fn1 The Court sees no reason to revisit the question now. The Court further finds that there was more than sufficient evidence for the jury to find that such a duty existed. Finally, even had it decided this question itself as a matter of law, the Court would have reached the same conclusion as the jury apparently did: that under the circumstances presented in all three of the counts brought under 18 U.S.C. § 1001(a)(1), Mr. Safavian was under a legal duty to disclose material facts to the GSA ethics officers, to the GSAOIG agent, and to the Senate Committee investigator.
The evidence presented at trial supported the jury's finding that such a duty existed. In United States v. Cisneros, 26 F.Supp.2d 24 (D.D.C. 1998), the court found that Mr. Cisneros, at the time under consideration for a position in the cabinet of the President of the United States, was under a legal duty to disclose based on an Executive Order requiring that applicants for government employment "possess such traits as reliability, trustworthiness, and loyalty." Id. at 42. In this case, the government presented to the jury evidence that Mr. Safavian owed a duty as a public servant based on the fourteen principles from the "Standards of Ethical Conduct" that were issued in a January 20, 2001 Executive Order, and were later codified in the Code of Federal Regulations as the "General Principles" that make up the "Basic obligation of public service." 5 C.F.R. § 2635.101(b); Gov't Trial Exhibit 46, January 20, 2001 Executive Order. Mr. Safavian was trained on these principles of public service when he became the GSA Chief of Staff. 5/31/06 (p.m.) Tr. 18:9-17. Among this list of obligations of a public servant that the jury could have found formed the basis for Mr. Safavian's legal duty to disclose were the following principles:
(4) An employee shall not, except as permitted by applicable law or regulation, solicit or accept any gift or other item of monetary value from any person or other item of monetary value from any person or entity seeking official action from, doing business with, or conducting activities regulated by the employee's agency, or whose interests may be substantially affected by the performance or nonperformance of the employee's duties . . .
(7) Employees shall not use public office for private gain.
(8) Employees shall act impartially and not give preferential treatment to any private organization or individual . . .
(11) Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities . . .
(14) Employees shall endeavor to avoid any actions creating the appearance that they are violating applicable law or the ethical standards in applicable regulations.
Gov't Trial Exhibit 46, January 20, 2001 Executive Order; see also 5 C.F.R. § 2635.101(b)(4), (7), (8), (11), (14) (identical to Executive Order except with respect to (4), which states that "An employee shall not, except as permitted by subpart B of this part . . . ").
With respect to Count Two, which related to Mr. Safavian's request for an ethics opinion, the jury could have reasonably found an additional duty under the federal regulation dealing with the seeking of ethics advice. That regulation states, in relevant part:
Employees who have questions about the application of this part or any supplemental agency regulations to particular situations should seek advice from an agency ethics official. Disciplinary action for violating this part or any supplemental agency regulations will not be taken against an employee who has engaged in conduct in good faith reliance upon the advice of an agency ethics official, provided that the employee, in seeking such advice, has made full disclosure of all relevant circumstances . . . Disclosures made by an employee to an agency ethics official are not protected by an attorney-client privilege. An agency ethics official is required by 28 U.S.C. 535 to report any information he receives relating to a violation of the criminal code.
5 C.F.R. § 2635.202. This language makes clear that full disclosure is a requirement underlying any reliable ethics advice. The jury could reasonably have found that this requirement also fulfilled the legal duty to disclose element in Count Two. The Court will not upset the ...