American Bar Association Media Alert on Federal Courts of Appeals: Court affirms conviction of Bush's GSA Chief for lying re: Abramoff golf trip

Media Alerts on Federal Courts of Appeals

Case Name: United States v. Safavian

Headline: D.C. Circuit affirms four-count conviction of former GSA Chief of Staff for lying about Abramoff golf trip

Area of Law: Prosecutorial Vindictiveness

Issue(s) Presented: Whether the district court erred in rejecting Safavian’s claim that a new charge added by the government on reindictment was marred by prosecutorial vindictiveness.

Brief Summary: Shortly after his 2002 appointment as Chief of Staff for the General Services Administration (GSA), David Safavian went on a golf trip to Scotland with lobbyist Jack Abramoff, his longtime colleague and friend. Safavian had emailed the GSA General Counsel to seek ethical advice and in his email represented that Abramoff had “no business before GSA (he does all his work on Capitol Hill).” Safavian did not disclose that Abramoff had asked him about two GSA-owned properties beforehand. After an investigation of the circumstances of the trip, the government indicted Safavian on five counts related to falsifying or concealing a material fact and obstruction of justice. Safavian was convicted on four counts, and he appealed to the D.C. Circuit. The D.C. Circuit reversed or remanded the convictions on all four counts. The government sought a superseding indictment that again charged Safavian with five counts, two of which were based on previously uncharged conduct – failing to report gifts and making false statements to the FBI in connection with its investigation. The jury convicted Safavian on four of five counts. Safavian moved for an acquittal on the new counts because of prosecutorial vindictiveness. The district court denied Safavian’s motion, and the D.C. Circuit affirmed.

Extended Summary (if applicable): A defendant can establish prosecutorial vindictiveness in two ways. First, a defendant can produce evidence of actual vindictiveness. Safavian did not do that. Second, a defendant can create a rebuttable presumption of vindictiveness by producing evidence sufficient to establish a realistic likelihood of vindictiveness. Once a defendant has made this showing, the government must rebut the charge with objective evidence showing that its motive in prosecuting the defendant was not vindictive. The district court determined that Safavian had raised the “presumption” as to count five, but that the government had offered two non-pretextual reasons that overcame it. Reviewing the district court’s determinations for “clear error,” the D.C. Circuit found that the district court’s reliance on the government’s second argument – that it had changed its trial strategy given the court’s ruling on appeal – was not clearly erroneous.

Panel (if known): Ginsburg, Brown, and Edwards

Argument Date: 10/22/2010

Argument Location: Washington, D.C.

Date of Issued Opinion: 05/13/2011

Docket Number: No. 09-3112

Decided: Affirmed

Counsel: Shannen W. Coffin, Lawrence S. Robbins, Richard A. Sauber, Donald J. Russell, and Lisa K. Helvin for appellant Safavian. Sangita Rao, Lanny A. Breuer, and Nathaniel B. Edmonds for appellee the United States

Author: Per Curiam

Circuit: D.C. Circuit