United States v. Safavian

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 8, 2008 Decided June 17, 2008

No. 06-3139

UNITED STATES OF AMERICA,
APPELLEE

v.

DAVID H. SAFAVIAN,
APPELLANT

Consolidated with
06-3169

Appeals from the United States District Court
for the District of Columbia
(No. 05cr00370-01)

Lawrence S. Robbins argued the cause for appellant.
With him on the briefs were Donald J. Russell, Alice W. Yao,
and Daniel R. Walfish.

Nathaniel B. Edmonds, Trial Attorney, U.S. Department
of Justice, argued the cause and filed the brief for appellee.
Peter R. Zeidenberg and Roy W. McLeese, III, Assistant U.S.
Attorneys, entered appearances.
 2

Before: RANDOLPH and ROGERS, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge: A jury convicted David H.
Safavian of three counts of concealing material facts and making
false statements in violation of 18 U.S.C. § 1001(a)(1) and one
count of obstructing justice in violation of 18 U.S.C. § 1505.1
The prosecution arose from investigations into a golfing trip he
took with lobbyist Jack Abramoff in August 2002 while
Safavian was chief of staff of the General Services
Administration. We reverse on all counts.

I.

The evidence, viewed most favorably to the government,
showed as follows. Safavian and Abramoff met in 1994 when
Safavian joined a law firm in which Abramoff was a partner.
Abramoff became a mentor to Safavian there, and the two
remained close friends after Safavian left the firm. They
continued to play golf and racquetball together and saw each
other socially for drinks and dinner. And when Safavian was
looking to leave the congressman for whom he was working in
2002, Abramoff arranged for Safavian to interview at his new
firm, though he did not receive an offer.

Safavian instead became the General Services
Administration’s (GSA) deputy chief of staff in May 2002 and
was named chief of staff two months later. GSA is responsible
for procurement and property management on behalf of federal
agencies. Shortly after Safavian arrived at GSA, Abramoff
asked him for information about two GSA-controlled properties:

1
He was acquitted of a second count of obstruction.
 3

the White Oak property in Silver Spring, Maryland, a 600-acre
former Naval facility; and the Old Post Office in Washington,
D.C.

Abramoff was interested in having a portion of the White
Oak property serve as a new location for the religious school his
children attended. As to the Old Post Office building, GSA was
considering redeveloping it and had been asking private parties
about that possibility. Abramoff thought opportunities for one
of his clients might develop.2

Safavian and Abramoff exchanged e-mails about these
properties between May and August 2002. Abramoff sent
messages to both Safavian’s work and home accounts,
sometimes e-mailing his work account only to inform him a
message was waiting on his home account. Safavian’s
assistance ranged from simply obtaining information that GSA
had already compiled for distribution to other parties, to more
involved support that Safavian could provide as a GSA insider.
For example, he supplied Abramoff with internal GSA
information, told Abramoff that he had “overruled” a GSA
employee who had “reservations,” reviewed and edited
Abramoff’s letters to GSA, and set up a meeting to discuss the
White Oak property. Nothing ever came of any of this and both
properties remained with GSA through Safavian’s tenure.

2
It is unclear whether Abramoff had a client interested in
this property at the time. Safavian testified that “it’s my
understanding [Abramoff] didn’t have a client at that point, that
he was gathering information in hopes of potentially getting a
client in order to potentially bid.” But one of Abramoff’s
colleagues testified that “we were trying to ensure . . . that one
of our clients could be a part of the team that helped privatize
[the property],” and identified that client as “The Chitimatcha
tribe.”
 4

While these discussions were ongoing, Abramoff invited
Safavian to join him on a five-day golfing trip to Scotland in
August 2002, to which Abramoff later added a weekend in
London. In addition to Abramoff and Safavian, the group
included Abramoff’s son and colleagues, a congressman and his
chief of staff, and the staff director for the House Administration
Committee. Abramoff arranged the schedule and
accommodations and chartered a plane for the group.

On July 25, 2002, Safavian requested an ethics opinion
from GSA’s general counsel about whether he could accept the
air transportation as a gift. His e-mail stated:

I am in need of an ethics opinion. I (along with wto [sic]
members of Congress and a few Congressional staff)
have been invited by a friend and former colleague on a
trip to Scotland to play golf for four days. I will be
paying for all of my hotels, meals, and greens fees. The
issue is airfare.

The host of the trip is chartering a private jet to take the
eight of us from BWI to Scottland [sic] and back. He is
paying the cost for the aircraft regardless of whether I go
or not. In fact, none of the other guest [sic] will be
paying a proportional share of the aircraft costs. I need
to know how to treat this activity.

One other point of relevance: the host is a lawyer and
lobbyist, but one that has no business before GSA (he
does all of his work on Capitol Hill).

The GSA ethics officer responded in part:

This is in response to your inquiry on whether you can
accept a gift of free air transportation from a friend to
 5

attend an [sic] golf trip. You stated that a friend and
former colleague, Jack Abramhoff [sic], invited you,
along with several members of Congress and a few
Congressional staff, to Scotland to play golf for four
days. You stated that you will be paying for all of your
hotel expenses, meals and greens fees. You noted,
however, that your friend would be providing the air
transportation at no cost to you and the other guests
attending the event. You stated that your friend, who is
a lawyer and lobbyist with Greenberg and Traurig, is
chartering a private jet to take you and the other
participants from BWI to Scotland and back. You stated
that neither Mr. Abramhoff [sic] nor his firm does
business with or is seeking to do business with GSA.
Based upon the information you have provided, you may
accept the gift of free transportation from your friend.

The ethics opinion recited information not provided in
Safavian’s e-mail request, such as Abramoff’s name and firm,
so it appears that further communications must have occurred.
Notably, the response also suggests that Safavian said Abramoff
is not “seeking to do business with GSA.” At trial the
government presented no evidence that Safavian had ever told
this to an ethics officer and the district judge therefore struck the
“seeking to do business” language from the indictment.

After receiving the ethics advice, Safavian forwarded a
copy to Abramoff, indicating that he would go on the trip.
Abramoff sent Safavian an itinerary showing the travel
schedule, hotels, golfing times, a dinner and a lunch with the
notation “included in package,” and several other scheduled
meals. Safavian told Abramoff he wanted to pay for his share
of the trip. On the evening of the departure date – August 3,
2002 – Safavian gave Abramoff a check for $3,100, the amount
Abramoff said would cover the costs.
 6

The chartered plane landed the morning of August 4th at
a small airport adjacent to the St. Andrews Links Old Course,
where the group’s hotel also was located. Most of their five
days in Scotland were spent golfing. They played at several
different courses and smoked cigars and drank while playing.
Some, including Safavian, played golf more than once per day
at various courses. At the Old Course greens fees and caddy tips
for one person totaled $400. The group also ate and had drinks
together. Meals – some at the hotel, some elsewhere – ranged
from $20-$100 a person, and sometimes a round of drinks
reached $100. The trip also provided an opportunity for the
congressman and his staff to meet with Scottish politicians; a
dinner with the Conservative Party and a military parade were
scheduled one evening.

The group flew from Scotland to London on Thursday
the 9th, using the same chartered plane. Upon landing, they
were driven to their hotel, the Mandarin Oriental. They had
drinks in the hotel bar that night and some planned on having
dinner and drinks together Friday night. However, they spent
less time as a group in London than they did in Scotland. For
instance, one participant testified that he spent Friday with
friends who lived there. At least four group members departed
Saturday morning, while Safavian and Abramoff remained.
Abramoff had meetings scheduled in London, so Safavian had
some time to himself. On Sunday, Safavian and Abramoff flew
back to the United States on the chartered jet.

Both Safavian and another participant testified that they
believed the trip was prepaid. Safavian also paid for some costs
himself. He withdrew $500 from his bank account before
leaving and $150 on the trip’s second day. He tipped the
caddies once for two people and bought a few rounds of drinks.
Safavian also used his credit card to buy some gifts, a few
meals, and some other goods.
 7

In March 2003, acting on an anonymous tip, the GSA
Office of Inspector General (GSA-OIG) began investigating the
trip. GSA agent Gregory Rowe interviewed Safavian twice.
Rowe testified that Safavian told him that he “paid for the trip,”
including airfare, and that Abramoff did not have any business
with GSA. Safavian also provided Rowe with a copy of the
$3,100 check he had given to Abramoff on the day they had left
and a work attendance sheet showing that he took five days of
leave. Safavian did not mention the weekend in London or
Abramoff’s interest in the two GSA properties. Rowe closed the
investigation. Rowe did not review the ethics opinion Safavian
had received about the trip.

A year later, in March 2004, the Senate Committee on
Indian Affairs began investigating Abramoff. The Committee
asked Safavian to produce “all records reflecting, referring, or
relating to the 2002 Scotland golf trip.” Safavian’s letter
responded in part:

When the invitation was made, I was the chief of staff to
the U.S. General Services Administration (“GSA”). Mr.
Abramoff did not have any business before the agency
at that time. Prior to departure, I consulted the GSA
Office of General Counsel to obtain guidance on the
propriety of this trip. Counsel determined that I could
accept the value of the trip gratis; it did not meet the
definition of a ‘gift from a prohibited source’ under the
applicable regulations, nor was it considered a gift
because of my official position. Nevertheless, in the
exercise of discretion, I gave Mr. Abramoff a check for
the value of the trip prior to departure. In addition, I
took leave without pay to travel.
 8

Safavian also provided, among other things, his July 25 request
for the ethics opinion, the opinion, and a copy of the $3,100
check.

A grand jury indicted Safavian on October 5, 2005, on
three counts of “falsify[ing], conceal[ing] and cover[ing] up by
a trick, scheme, and device material facts” in violation of 18
U.S.C. § 1001(a)(1) (Counts 2, 3, and 5) and two counts of
obstruction in violation of 18 U.S.C. § 1505 (Counts 1 and 4).
Counts 1 and 3 were based on Safavian’s interviews with GSA
inspector Rowe. Count 2 was based on Safavian’s request for
the ethics opinion. And Counts 4 and 5 related to his letter to
the Senate Committee.

The trial began May 22, 2006, and included testimony
from Rowe, the ethics officer, the investigative counsel for the
Committee, and one of Abramoff’s colleagues who went on the
Scotland trip, among others. Safavian, testifying in his defense,
discussed the golf trip, his work at GSA, and his interactions
with Abramoff. Safavian testified that in his view, Abramoff
was “not doing business with GSA” because Abramoff “is not
a contractor, he is not exchanging property or services for
money, he does not have a business relationship with GSA.” As
to the golf trip, Safavian claimed that he thought it was a prepaid
package and that he was reimbursing Abramoff fully with the
$3,100 check. Cross examination covered a wide range of
subjects. With respect to the trip, for instance, the prosecutor
tried to show that Safavian must have known $3,100 was
inadequate and that Abramoff’s $3,100 estimate obviously
undercut the trip’s true value. In one exchange, the prosecutor
asked Safavian to compare greens fees at St. Andrews to the
Queens Harbor course he played in Maryland. When Safavian
responded, “That’s one of the top 20 golf courses in the country
. . . [but] I think they could have been in the ballpark,” the
prosecutor continued, “So you’re thinking the birthplace of golf,
 9

where people fly overseas from all over the world to go golfing,
is going to charge you about what they cost over in Maryland?”
The prosecutor also asked, “back in 2002 . . . how much did you
think a cost of an airline ticket from Baltimore to Scotland
would have cost you if you had bought it yourself?” Safavian
continually maintained that he never saw and thus did not know
specific costs of items but that the $3,100 was reasonable for
him to believe.

On June 20, the jury convicted Safavian on Counts 1, 2,
3, and 5, and acquitted him on Count 4, the count charging
obstruction of the Senate Committee investigation. Count 1,
obstruction of the GSA-OIG investigation, was a general
verdict, based on the indictment’s charges that Safavian “falsely
stated . . . that [Abramoff] had no business with GSA” and “that
he had paid [Abramoff] for the total cost of the trip.” Count 2
was based on the exchange with the ethics officer. On a special
verdict form, the jury found that Safavian “concealed his
assistance to Mr. Abramoff in GSA-related activities”
(Specification A) and “falsely stated to the GSA ethics officer
that Mr. Abramoff did all his work on Capitol Hill”
(Specification C). Count 3 was based on Safavian’s statements
and omissions during his interviews with GSA-OIG agent Rowe.
The jury found that Safavian “concealed his assistance to Mr.
Abramoff in GSA-related activities” (Specification A). Count
5 was based on Safavian’s letter to the Committee. The jury
found that he “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” (Specification C).

Safavian moved for a judgment of acquittal on all four
counts. See United States v. Safavian, 451 F. Supp. 2d 232, 238
(D.D.C. 2006). His motion set forth several arguments that he
renews on appeal. Safavian contended that Specification A of
Count 2 and Count 3 should be vacated “because he had no legal
 10

duty to disclose the information concealed.” Id. at 240. He
argued that all the § 1001(a)(1) convictions should be vacated
because there was insufficient evidence that his statements were
not true as he meant them (i.e., that they were literally true). Id.
at 242. Also regarding § 1001(a)(1) he claimed that there was
insufficient evidence for the jury to determine that he had the
requisite specific intent to commit the false statement offenses.
Id. at 244. As to the obstruction conviction, Safavian argued
that his statements were fundamentally ambiguous. Id. at 248.
The district judge rejected all these arguments, as well as a
number of others not raised on appeal.

The court sentenced Safavian to concurrent terms of 18
months imprisonment on each count, followed by two years of
supervised release. He was released on bond pending appeal
pursuant to 18 U.S.C. § 3143(b).

II.

We will begin with Safavian’s convictions on Counts 2
and 3. Each of these counts, and Count 5, charged violations of
18 U.S.C. § 1001(a)(1): a person “in any matter within the
jurisdiction of the executive, legislative, or judicial branch of the
Government of the United States,” commits an offense if he
“knowingly and willfully falsifies, conceals, or covers up by any
trick, scheme, or device a material fact.” Id.3 On Count 2,

3
Section 1001(a) in its entirety provides:
Except as otherwise provided in this section, whoever,
in any matter within the jurisdiction of the executive,
legislative, or judicial branch of the Government of the
United States, knowingly and willfully –
(1) falsifies, conceals, or covers up by any trick, scheme,
or device a material fact;
(2) makes any materially false, fictitious, or fraudulent
 11

which dealt with Safavian’s request for a GSA ethics opinion,
the jury found that he violated § 1001(a)(1) when he “concealed
his assistance to [Abramoff] in official GSA-related activities.”4
On Count 3, which dealt with the GSA Inspector General’s
investigation, the jury found that Safavian violated § 1001(a)(1)
when he “concealed his assistance to [Abramoff] in official
GSA-related activities,” the same concealment allegation
contained in Count 2.

Safavian raises several serious objections to his
convictions on the concealment charges, though we only reach
the question whether he had a duty to disclose his assistance. As
to Count 2, he points out that officers and employees of the
executive, judicial, and legislative branches regularly seek
advice from their respective ethics committees. They are
encouraged to do so. The value of the advice they receive
depends upon the accuracy and fullness of the information they

statement or representation; or
(3) makes or uses any false writing or document
knowing the same to contain any materially false,
fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than
5 years or, if the offense involves international or
domestic terrorism (as defined in section 2331),
imprisoned not more than 8 years, or both. If the matter
relates to an offense under chapter 109A, 109B, 110, or
117, or section 1591, then the term of imprisonment
imposed under this section shall be not more than 8
years.
4
The jury also found, under what the parties term
specification C of Count 2, that Safavian violated § 1001(a)(1)
when he “falsely stated” that Abramoff “did all his work on
Capitol Hill.”
 12

provide. At GSA, as elsewhere in the federal government, the
officer or employee making the inquiry may or may not follow
the advice of the ethics committee. That he did not follow that
advice does not in itself constitute an ethical transgression. The
prosecutors in this case are mistaken when they write that the
GSA “ethics opinion . . . permitted [Safavian] to engage in
behavior that would be prohibited if he had disclosed all relevant
information.” Gov’t Br. 28–29. The ethics opinion did no such
thing. It was not up to the GSA ethics officers to permit or
forbid; their function was to offer advice. It is not apparent how
this voluntary system, replicated throughout the government,
imposes a duty on those seeking ethical advice to disclose – in
the government’s words – “all relevant information” upon pain
of prosecution for violating § 1001(a)(1).5 As Safavian argues
and as the government agrees, there must be a legal duty to
disclose in order for there to be a concealment offense in
violation of § 1001(a)(1),6 yet the government failed to identify
a legal disclosure duty except by reference to vague standards of
conduct for government employees.

5
Disclosing all relevant circumstances merely offers the
employee protection from disciplinary action: “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.” 5 C.F.R. § 2635.107(b).
6
See, e.g., United States v. Blackley, 167 F.3d 543, 550
(D.C. Cir. 1999); United States v. Calhoon, 97 F.3d 518, 526
(11th Cir. 1996); United States v. Irwin, 654 F.2d 671, 679 (10th
Cir. 1981).
 13

These standards are formulated as fourteen “general
principles” that executive branch “employees shall apply . . . in
determining whether their conduct is proper.” 5 C.F.R.
§ 2635.101(b). They range from exceedingly vague –
“Employees shall put forth honest effort in the performance of
their duties,” § 2635.101(b)(5) – to somewhat more descriptive
– “Employees shall not use public office for private gain.”
§ 2635.101(b)(7). Only one has anything to do with disclosure.
See § 2635.101(b)(11) (“Employees shall disclose waste, fraud,
abuse, and corruption to appropriate authorities.”). These
strictures are of no more help to the government’s argument than
the regulation on seeking ethics advice. Their relationship to
Safavian’s duty under § 1001(a)(1) is tenuous at best. If an
employee violates a standard of conduct, he may be subject to
disciplinary action. § 2635.106(a). We cannot see how this
translates into criminal liability under 18 U.S.C. § 1001(a)(1)
whenever someone seeking ethical advice or being interviewed
by a GSA investigator omits “relevant information.”

Concealment cases in this circuit and others have found
a duty to disclose material facts on the basis of specific
requirements for disclosure of specific information. See, e.g.,
United States v. Moore, 446 F.3d 671, 678 (7th Cir. 2006);
United States v. Kanchanalak, 192 F.3d 1037, 1046 (D.C. Cir.
1999); Blackley, 167 F.3d at 550 (D.C. Cir. 1999); United States
v. Dale, 140 F.3d 1054, 1056 (D.C. Cir. 1998); Calhoon, 97
F.3d at 526. There is good reason for demanding such
specificity: to comply with Fifth Amendment due process, the
defendant must have “fair notice . . . of what conduct is
forbidden. . . . [T]his ‘fair warning’ requirement prohibits
application of a criminal statute to a defendant unless it was
reasonably clear at the time of the alleged action that
defendants’ actions were criminal.” Kanchanalak, 192 F.3d at
1046 (citing United States v. Lanier, 520 U.S. 259, 266 (1997)).
The ethical principles give no indication of the particular facts
 14

or information an executive employee must disclose. Nor do
they suggest that they have any bearing on conduct during a
GSA investigation or a request for an ethics opinion.

The government also invoked, in support of the verdict
on the concealment charges in Count 2 and Count 3, “the
principle that once one begins speaking when seeking
government action or in response to questioning, one must
disclose all relevant facts.” Gov’t Br. 23. The government cites
no regulation or form or statute to this effect and the defense
maintains that no such general principle exists. Attorneys
commonly advise their clients to answer questions truthfully but
not to volunteer information. Are we to suppose that once the
client starts answering a government agent’s questions, in a
deposition or during an investigation, the client must disregard
his attorney’s advice or risk prosecution under § 1001(a)(1)?
The government essentially asks us to hold that once an
individual starts talking, he cannot stop. We do not think § 1001
demands that individuals choose between saying everything and
saying nothing. No case stands for that proposition.7 We

7
The government cites United States v. Moore, 446 F.3d
671 (7th Cir. 2006), and United States v. Cisneros, 26 F. Supp.
2d 25 (D.D.C. 1998), as supporting its position. Gov’t Br. 24.
However, the jury instructions in Moore stated, “The duty to
disclose a particular fact to the executive branch of the federal
government or its agent arises from requirements in federal
statutes, regulations, or government forms.” 446 F.3d at 680;
see also id. at 678. In Cisneros, the questions posed to the
defendant by the FBI agent were rooted in a government form
that the defendant had filled out. See 26 F. Supp. 2d at 32.
 15

therefore conclude that Safavian had no legal duty to disclose
and that his concealment convictions cannot stand.8

III.

The remaining charges are the alleged false statements
Safavian made, as specified in Count 1 (obstruction of justice,
18 U.S.C. § 1505) and Counts 2 and 5 (§ 1001(a)(1)).9 Each of

8
The district court’s instructions permitted the jury to
find Safavian guilty of violating § 1001(a)(1) if he committed
“any knowing omission designed to deceive others by
preventing or delaying the discovery of information.” As a
result, Safavian’s concealment convictions on Counts 2 and 3
could have rested simply on his nondisclosure of material facts.
Yet concealment must be accomplished in a particular way: by
a “trick, scheme, or device.” United States v. Woodward, 469
U.S. 105, 108 (1985) (per curiam), so holds, as does United
States v. London, 550 F.2d 206, 213 (5th Cir. 1977), which the
Supreme Court cited with approval. 469 U.S. at 108 n.5.
Because Safavian’s concealment convictions must be reversed
for lack of a duty to disclose, we place our decision on that
ground and do not address whether, as the government argues,
the erroneous jury instruction was harmless.
9
Safavian argues that his statements should not have
been submitted to the jury because they were fundamentally
ambiguous and thus the jurors “could only guess what he may
have meant.” Safavian Br. 33. Assuming arguendo that the
doctrine of fundamental ambiguity applies to false statements
such as these, it was well within the province of the jury to
determine what Safavian meant. Likewise, we reject Safavian’s
argument that there was insufficient evidence for the jury to
conclude that the statements were false as Safavian intended
them. See, e.g., United States v. Milton, 8 F.3d 39, 45–46 (D.C.
 16

the statements was to the effect that Abramoff had no business
with GSA at the time of the golf trip.10 In defense of these
charges, Safavian maintained that when he made the statements
he intended the meaning common to government contracts
professionals – that is, someone who does not have a contract
with GSA is not doing business or working with GSA. Safavian
contended that his statements were truthful because Abramoff
never secured any GSA contract. With respect to the White Oak
property, the headmaster of the school never requested a lease
and GSA never transferred the property to the school. As to the
Old Post Office, GSA issued no proposal during the tenure of
the GSA Administrator for whom Safavian worked.

Cir. 1993).
10
The false statement charge in Count 2 was worded a bit
differently than the charge in Counts 1 and 5: it alleged that
Safavian falsely told the GSA ethics official that Abramoff “did
all his work on Capitol Hill.” Safavian’s written request for an
ethics opinion did state that the “host” of the golfing trip to
Scotland, “a friend and former colleague,” “is a lawyer and
lobbyist, but one that has no business before GSA (he does all
of his work on Capitol Hill).” The GSA ethics officer, in
rendering the opinion, took this as meaning that “neither Mr.
Abramoff nor his firm does business” with GSA. That of course
was the material question. If, for instance, it turned out that
Abramoff transacted business with other parts of the Executive
Branch and not just on Capitol Hill, Safavian’s parenthetical
statement would have been inaccurate, but we cannot see how
the inaccuracy would have been material. Safavian maintained
that he meant the same thing when he wrote to the ethics officer
that Abramoff had no business before GSA and when he implied
that Abramoff did no work with or at GSA.
 17

We agree with Safavian that the district court abused its
discretion in excluding favorable expert testimony on how
government contracting professionals view having business or
working with GSA. See United States v. Washington, 106 F.3d
983, 1009 (D.C. Cir. 1997). Federal Rule of Evidence 702
permits an expert to “assist the trier of fact to understand the
evidence or to determine a fact in issue.” The court may refuse
to admit testimony whose “probative value is substantially
outweighed by the danger of . . . confusion of the issues[] or
misleading the jury.” FED. R. EVID. 403. Safavian’s expert
would have testified that an individual is not doing business with
GSA until a contract is awarded and that getting information
from GSA is simply that, getting information. Defense counsel
offered this testimony to show that Safavian’s definition “isn’t
made up out of whole cloth.” The testimony would have
bolstered Safavian’s contention that, as a government contracts
professional himself, he had this meaning in mind when he
communicated with the GSA ethics official, Rowe, and with the
Senate Committee.

In excluding this testimony, the district court reasoned
that it would not help the jury and would be confusing. The
court asserted that the meaning of “business” “is within the
common parlance of the jury,” and thus “the layman’s definition
of these terms are the best guide for the jury. There’s no need
for expert testimony.” This ruling usurped the jury’s role by
deciding that the lay meaning of “business” is what Safavian
meant to convey. The court at one point recognized that “[w]hat
was in the defendant’s mind is at issue in this case.” But
excluding the expert testimony effectively preempted the jury’s
conclusion on this issue.

In support of the district court’s ruling the government
takes inconsistent positions. On the one hand, it tells us that
“the meaning of ‘business’ and ‘work’ were properly left for the
 18

jury’s determination in assessing Safavian’s criminal intent.”
Gov’t Br. 41. If the meanings of these terms were appropriate
“for the jury’s determination” – as we believe they were – then
they are not legal terms to be defined by the court. Yet the
government also claims that the district court’s exclusion of the
expert testimony was proper because the expert would have
opined on the meaning of specific legal terms.11 Gov’t Br.
47–48. The phrases “does business” and “seeks to do business”
do appear in the regulations regarding gifts from prohibited
sources. See 5 C.F.R. § 2635.203. But whether Abramoff was
or was not a prohibited source misses the point. The question
for the jury was what Safavian meant when he communicated
with government officials. The expert would not have
expounded on how § 2635.203 operates or should operate, but
rather on the common usage of the terms in the government
contracts industry.

We do not find the exclusion of the expert’s testimony
harmless. With respect to Counts 2 and 5, which charged
violations of § 1001(a)(1), literal truth would have been a
complete defense. See Milton v. United States, 8 F.3d 39, 45
(D.C. Cir. 1993).12 If Safavian intended having business or

11
It is unclear from the transcript whether the district
court also relied on this ground. The court cited and discussed
cases precluding experts from “offering an impermissible legal
conclusion” but later stated that here “we have the converse or
the inverse of that situation” because business and work “are not
defined terms.”
12
Not until his reply brief did Safavian argue that under
§ 1001(a)(1) a false statement alone cannot constitute a “trick,
scheme, or device.” While he is doubtless correct on the law,
see Woodward, 469 U.S. at 108 n.4 (1985); United States v. St.
Michael’s Credit Union, 880 F.2d 579, 589-90 (1st Cir. 1989);
 19

working with GSA to have the meaning used by government
contract professionals, then he did not knowingly and willfully
make a false statement to the GSA ethics officer (Count 2) or the
Senate Committee (Count 5). See, e.g., United States v.
Gahagan, 881 F.2d 1380, 1384 (6th Cir. 1989); United States v.
Anderson, 579 F.2d 455, 460 (8th Cir. 1978). The jury’s duty
was to decide which meaning Safavian intended – the
contracting meaning or the “lay” meaning – “by considering the
term in context, taking into account the setting in which it
appeared and the purpose for which it was used.” Milton, 8 F.3d
at 45. Evidence showed that Safavian had substantial
experience in the field of government contracts. The expert’s
testimony would have supplied crucial context and support for
Safavian’s proposed meaning. This testimony would have been
especially important in light of the fact that two government
witnesses, though not appearing as experts, testified regarding
their own interpretations of the phrase “doing business.”
Excluding the expert’s testimony thus was not harmless.

Count 1, the obstruction of justice charge, presents a
closer question. The jury rendered a general verdict of guilty on

London, 550 F.2d at 212; United States v. Diogo, 320 F.2d 898,
902 (2d Cir. 1963), his argument comes too late and was
apparently not made in his motion for judgment of acquittal.
See, e.g., Students Against Genocide v. Dep’t of State, 257 F.3d
828, 835 (D.C. Cir. 2001); Bd. of Regents of the Univ. of Wash.
v. EPA, 86 F.3d 1214, 1221 (D.C. Cir. 1996). (Safavian was not
charged with violating § 1001(a)(2), the subsection proscribing
the making of “any materially false, fictitious, or fraudulent
statement or representation” within the jurisdiction of the three
branches of government. Nor was he charged with violating
§ 1001(a)(3), under which it is a criminal offense to make or use
“any false writing or document knowing the same to contain any
materially false, fictitious, or fraudulent statement or entry.”)
 20

that count. The indictment charged that Safavian obstructed
GSA’s investigation in two ways: by “falsely stat[ing] in
substance and in part that [Abramoff] had no business with
GSA” and by stating “in substance that he had paid [Abramoff]
for the total cost of the trip . . ..” The excluded testimony related
to only one of these allegations, but reversal is still required
unless the court’s ruling constituted harmless error. See Griffin
v. United States, 502 U.S. 46, 59 (1991); Yates v. United States,
354 U.S. 298 (1957). One is guilty of obstruction if he
“corruptly . . . influences, obstructs, or impedes or endeavors to
influence, obstruct, or impede” an investigation. 18 U.S.C.
§ 1505. Section 1515 defines “corruptly” as “acting with an
improper purpose . . . including making a false or misleading
statement, or withholding, [or] concealing” information. Even
a literally true statement may be misleading and so, unlike
§ 1001(a)(1), literal truth may not be a complete defense to
obstruction. See United States v. Browning, 630 F.2d 694, 699
(10th Cir. 1980). Even so, if Safavian’s expert witness had
convinced the jury of the truth of his statements, this would have
gone at least part of the way to convincing the jury that he had
not obstructed justice. We therefore believe that excluding the
expert’s testimony had “a substantial and injurious effect or
influence in determining the jury’s verdict” on Count 1,
particularly since the audience for his statement about
Abramoff’s lack of “business” at GSA was a GSA official
presumably versed in the technical meaning of the term.
Kotteakos v. United States, 328 U.S. 750, 776 (1946).13

13
The government, in arguing generally that exclusion of
the expert’s testimony was harmless because the jury learned of
Safavian’s “understanding of the terms ‘business’ and ‘work’,”
does not direct its contentions specifically to Count 1. Gov’t Br.
50.
 21

IV.

Safavian claims that there was insufficient evidence to
support the jury’s verdict on Count 1’s alternative allegation that
he obstructed justice by telling GSA investigator Rowe “in
substance” that he paid for the full cost of the trip including
airfare.14 Safavian’s argument is that the evidence shows only
that he said he paid the amount Abramoff specified, not that he
paid the total cost of the trip. At trial, however, Safavian
equated the two, admitting that he “said that [his] $3,100
covered [his] full share.” Safavian also conceded that he “told
Special Agent Rowe that [he] paid for all the costs associated
with the trip.” There was more than enough evidence that
Safavian caused Rowe to believe that he had paid for all his
costs.

There was also sufficient evidence for the jury to
conclude that Safavian knew the true cost of his share was
greater than $3,100. For instance, another trip participant
testified at length about the group’s activities. He stated that the
total cost for a round of golf on the St. Andrews Old Course was
$400 per person and that Safavian played golf at least six times
(though did not specify on which of the courses). He also
discussed the expensive meals and drinks the group had. There
was additional evidence of specific costs for certain members of
the group: testimony indicated that the two nights in the London
Mandarin Oriental hotel cost $1,000 and that the commercial
value of a return flight was $850 or $900. The government also
introduced invoices showing costs of the hotel in Scotland. All

14
Though we have already ordered a new trial on Count
1, we address this issue to determine whether the government
may include this charge if it chooses to retry Safavian for
obstruction.
 22

of this provides circumstantial evidence of Safavian’s
knowledge.

Safavian responds that there was no evidence that his
costs were comparable to the other travelers or that he ever saw
the invoices or knew what the costs were. But that only shows
that he did not know the precise cost of his share. There was
sufficient evidence for the jury to conclude that Safavian knew
$3,100 was too low but that he told Rowe $3,100 was enough.
The jury did not need to address Safavian’s knowledge of
exactly how low $3,100 was. Moreover, the jury could have
credited Rowe’s testimony that Safavian said he paid for his
share of the cost of the flight, which is conceded to be false.15

* * *

For the foregoing reasons, we reverse Safavian’s
convictions on Counts 2A and 3, and vacate his convictions on
Counts 1, 2C, and 5 and remand for a new trial.

So ordered.

15
Safavian told the Senate Committee that he did not pay for
the flight, and the jury acquitted him of obstructing that
investigation.