United States v. Saffarinia ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
Crim. Action No. 19-216 (EGS)
EGHBAL SAFFARINIA (a/k/a
“EDDIE SAFFARINIA”),
Defendant.
MEMORANDUM OPINION
On June 25, 2019, a federal grand jury returned a seven-
count Indictment against Defendant Eghbal Saffarinia
(“Mr. Saffarinia”), a former Assistant Inspector General for the
United States Department of Housing and Urban Development’s
Office of Inspector General (“HUD-OIG”), charging him with one
count of concealing material facts, in violation of 18 U.S.C.
§§ 1001(a)(1) and 2, three counts of making false statements, in
violation of 18 U.S.C. §§ 1001(a)(2) and 2; and three counts of
falsifying records, in violation of 18 U.S.C. §§ 1519 and 2. See
generally Indictment, ECF No. 1 at 3-18 ¶¶ 10-78. 1
Mr. Saffarinia moves to dismiss the Indictment pursuant to
Federal Rule of Criminal Procedure 12(b). Mr. Saffarinia
separately moves for an Order compelling the government to
1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
identify any known exculpatory information within its voluminous
production, which consists of approximately 3.5 million pages of
documents, pursuant to Brady v. Maryland, 373 U.S. 83 (1963).
Upon careful consideration of the parties’ submissions, the
applicable law, and for the reasons explained below, the Court
GRANTS IN PART and DENIES IN PART Mr. Saffarinia’s Motion to
Dismiss, and GRANTS IN PART and DENIES IN PART Mr. Saffarinia’s
Motion for Brady Material.
I. Background
The Court assumes the parties’ familiarity with the factual
background and the procedural history, which are set forth in
greater detail in the Court’s prior Opinion. See United States
v. Saffarinia, No. CR 19-216 (EGS), 2019 WL 5086913, at *1
(D.D.C. Oct. 10, 2019). The Court will provide an abbreviated
overview of the relevant statutory scheme, and then briefly
summarize the allegations set forth in the Indictment.
A. The Ethics in Government Act
“Enacted in the wake of the Watergate scandal,” Trump v.
Mazars USA, LLP, 940 F.3d 710, 714 (D.C. Cir. 2019), the Ethics
in Government Act of 1978 (“EIGA”), 5 U.S.C. app. 4 §§ 101, et
seq., requires certain government employees to disclose
“detail[s], with certain exceptions, [about] their income,
gifts, assets, financial liabilities and securities and
commercial real estate transactions[,]” United States v. Oakar,
2
111 F.3d 146, 148 (D.C. Cir. 1997) (citing 5 U.S.C. app. 4 §
102; United States v. Rose, 28 F.3d 181, 183 (D.C. Cir. 1994)).
Congress imposed these reporting requirements to “increase
public confidence in the federal government, demonstrate the
integrity of government officials, deter conflicts of interest,
deter unscrupulous persons from entering public service, and
enhance the ability of the citizenry to judge the performance of
public officials.” Id.
To that end, the EIGA established the Office of Government
Ethics (“OGE”) as a separate agency within the Executive Branch,
see 5 U.S.C. app. 4 § 401(a), which provides “overall direction
of executive branch policies related to preventing conflicts of
interest on the part of officers and employees of any executive
agency,” id. § 402(a). An employee covered under the EIGA must
file public financial disclosure reports “with the designated
agency ethics official at the agency by which he [or she] is
employed . . . .” Id. § 103(a). OGE and the employee’s agency
have the authority to “ensure compliance with government ethics
laws and regulations[,]” but the “primary responsibility” lies
with the employee’s agency. 5 C.F.R. § 2638.501; see also Defs.
of Wildlife v. U.S. Dep’t of Interior, 314 F. Supp. 2d 1, 19
(D.D.C. 2004) (“OGE relies upon the agencies to perform these
functions, but the results of the agency’s investigations and
its own conclusions about whether ethics violations actually
3
occurred are not the final word if the OGE finds that more needs
to be done.”).
The EIGA and its implementing regulations, 5 C.F.R. §§ 2634
et seq., require members of the Senior Executive Service (“SES”)
to file public financial disclosure reports. See generally
5 U.S.C. § app. 4 § 101(f)(3). 2 Disclosures for SES members are
made using the “OGE Form 278.” Saffarinia, 2019 WL 5086913, at
*8. Each report “shall include a full and complete statement” of
the required information. 5 U.S.C. app. 4 § 102(a) (emphasis
added). Failure to comply with the EIGA, its regulations, and
the OGE Form 278 may subject the filer to civil penalties and
criminal prosecution. E.g., 5 U.S.C. app. 4 § 104(a)(1)
(outlining civil penalty for knowingly and willfully falsifying
required information); 5 C.F.R. § 2634.701(b) (substantially
similar); id. § 2634.701(c) (“An individual may also be
prosecuted under criminal statutes for supplying false
2 Congress has defined an SES position as “any position in an
agency which is classified above GS-15 pursuant to section 5108
or in level IV or V of the Executive Schedule, or an equivalent
position, which is not required to be filled by an appointment
by the President by and with the advice and consent of the
Senate, and in which an employee” either “(A) directs the work
of an organizational unit; (B) is held accountable for the
success of one or more specific programs or projects;
(C) monitors progress toward organizational goals and
periodically evaluates and makes appropriate adjustments to such
goals; (D) supervises the work of employees other than personal
assistants; or (E) otherwise exercises important policy-making,
policy-determining, or other executive functions.”
5 U.S.C. § 3132(a)(2).
4
information on any financial disclosure report.”);
id. § 2638.501 (stating that “the [OGE] Director will refer
possible criminal violations to an Inspector General or the
Department of Justice”); OGE Form 278 at 12 (“Knowing and
willful falsification of information required to be filed by
section 102 of [the EIGA] may also subject [the filer] to
criminal prosecution.”). 3
B. Factual Background
The criminal charges here stem from Mr. Saffarinia’s
alleged falsifications and omissions in his OGE Forms 278. See
Indictment, ECF No. 1 at 2 ¶ 4. 4 From 2012 until 2017,
Mr. Saffarinia served as HUD-OIG’s Assistant Inspector General
for Information Technology (“IT”), and later as the Assistant
Inspector General for Management and Technology. Id. at 2 ¶ 3.
As an SES member, Mr. Saffarinia had a “legal duty” to submit
the OGE Forms 278 on May 12, 2014, May 16, 2015, and April 26,
2016, respectively. See id. at 2 ¶ 4, 18 ¶ 78. Mr. Saffarinia,
3 OGE Form 278, Sched. C, U.S. Office of Gov’t Ethics,
https://www.oge.gov/Web/OGE.nsf/0/BEB262ED3CE83F1E85257E96006B95
BE/$FILE/8c47512231004e2d98b6966829afebfb4.pdf.[hereinafter “OGE
Form 278”].
4 The Court must presume the facts alleged in the Indictment as
true for purposes of deciding the motion to dismiss. United
States v. Ballestas, 795 F.3d 138, 149 (D.C. Cir. 2015).
Although Mr. Saffarinia’s motion to dismiss accepts the
allegations as true, he “intends to disprove them at trial.”
Def.’s Mem. of Law in Supp. of Def.’s Mot. to Dismiss (“Def.’s
Mem.”), ECF No. 27-1 at 11 n.1.
5
however, failed to disclose his liabilities in excess of $10,000
from “Person A or his neighbor to his supervisors, agency ethics
officials or counsel, or on his [OGE Forms 278].” Id. at 17
¶ 75.
Person A and Mr. Saffarinia were friends from college, and
Person A owned an IT company (“Company A”) in Virginia. Id. at 3
¶¶ 6, 9. In 2013, Mr. Saffarinia received a loan from Person A
in the amount of $80,000, but Mr. Saffarinia did not report it
on his OGE Forms 278. Id. at 9-10 ¶¶ 37-41, 18 ¶ 78. Pursuant to
a promissory note that was executed in 2015, Mr. Saffarinia
received $90,000 from his neighbor, but Mr. Saffarinia did not
disclose that liability on his OGE Forms 278. Id. at 17 ¶ 75.
At HUD-OIG, Mr. Saffarinia also served as Head of
Contracting Activity, overseeing “procurement review and
approval processes, including IT contracts[.]” Id. at 2 ¶ 5.
During the period that Mr. Saffarinia received payments from
Person A, Mr. Saffarinia steered government business, as well as
gave competitive advantages, to Company A, and Mr. Saffarinia
disclosed confidential government information to Person A and
Company A. Id. at 3-4 ¶¶ 11-12, 4 ¶ 12, 14 ¶ 61. In 2012,
Mr. Saffarinia caused Company B to enter into a business
partnership with Person A and Company A, and Company A later
served as Company B’s subcontractor on a multi-year, $30 million
IT services contract for HUD-OIG. Id. at 6 ¶ 18. In 2013, HUD-
6
OIG approved additional funding in the amount of $78,000 for
Company A’s subcontract with Company B. Id. at 10 ¶ 42. Company
A received more than one million dollars as Company B’s
subcontractor from 2012 to 2015. Id. at 9 ¶ 36.
Mr. Saffarinia hired his friend and former business
partner, Person B, as the head of HUD-OIG’s new predictive
analytics department. Id. at 3 ¶¶ 7, 9. And Person B became the
sole member of a technical evaluation panel for a government
contract at Mr. Saffarinia’s direction. Id. at 16 ¶ 72. For that
contract, Person B rejected thirteen bid proposals, and HUD-OIG
awarded it to Person A and Company A. Id. From 2013 to 2014,
Mr. Saffarinia caused HUD-OIG to recompete Company B’s IT
services contract, and he caused Company C to enter into a
business partnership with Company A in order for both companies
to submit a joint bid for the recompete contract. Id. at 11 ¶
47. Mr. Saffarinia directed one of his subordinates to meet with
Person A and Company C’s owner for the formation of the
partnership and the submission of the joint bid. Id. at 12 ¶ 50.
HUD-OIG awarded the recompete contract, which was worth more
than $17 million, to Company C. Id. at 11 ¶ 47. Company A became
a subcontractor for Company C, and Company A was expected to
receive roughly nine million dollars. Id.
7
C. The Indictment
The charges against Mr. Saffarinia fall into three
categories: (1) concealing material facts, in violation of 18
U.S.C. § 1001(a)(1) (“Count I”); (2) making false statements, in
violation of 18 U.S.C. § 1001(a)(2) (“Counts II-IV”); and
(3) falsifying records, in violation of 18 U.S.C. § 1519
(“Counts V-VII”). See generally Indictment, ECF No. 1 at 3-18 ¶¶
10-78. Count I alleges that from “early 2012, and continuing
thereafter until at least in or about mid-2016, in the District
of Columbia and elsewhere, in a manner within the jurisdiction
of the Executive Branch of the Government of the United States,”
Mr. Saffarinia “did knowingly and willfully falsify, conceal,
and cover up by trick, scheme, and device material facts . . .
.” Id. at 3-4 ¶ 11. Count 1 asserts that Mr. Saffarinia violated
§ 1001(a)(1) by concealing four facts: (1) “the nature and
extent of [Mr. Saffarinia’s] financial relationship with Person
A, including payments from Person A to [Mr. Saffarinia] totaling
at least $80,000; (2) Mr. Saffarinia’s “unauthorized disclosure
of confidential government information to Person A”;
(3) Mr. Saffarinia’s “efforts to steer government contracts to
Person A and Company A—by violating his legal duty to disclose a
financial relationship with Person A, including on his annual
OGE Forms 278”; and (4) “an actual and apparent conflict of
interest in overseeing government business in which Person A and
8
Company A had a significant financial interest.” Id. at 3-4 ¶
11, 4 ¶ 12.
Next, Counts II through IV allege that Mr. Saffarinia
violated § 1001(a)(2) by “willfully and knowingly mak[ing] and
caus[ing] to be made material false, fictitious, and fraudulent
statements and representations in a matter within the
jurisdiction of the executive branch of the Government of the
United States, namely, HUD and OGE” when he submitted OGE Forms
278 in 2014, 2015, and 2016 that omitted the loans and payments
from Person A. Id. at 17 ¶ 76. Count IV also alleges that
Mr. Saffarinia made a false statement by not reporting the
payments and loans from his neighbor on his 2016 OGE Form 278.
Id.
Finally, Counts V through VII charge Mr. Saffarinia with
obstruction of justice in violation of § 1519, and those counts
allege that Mr. Saffarinia “with the intent to impede, obstruct,
and influence, and in relation to and contemplation of, the
investigation and proper administration of a matter within the
jurisdiction of a department and agency of the United States,
knowingly concealed, covered up, falsified, and made false
entries in a record, document, and tangible object” when he
caused his OGE Forms 278 to be filed with HUD and OGE. Id. at 18
¶ 78. These obstruction charges list Mr. Saffarinia’s 2014,
2015, and 2016 OGE Forms 278, alleging that he failed to report
9
his payments and loans in excess of $10,000 from Person A and
his neighbor. Id.
D. Mr. Saffarinia’s Motions
On October 17, 2019, Mr. Saffarinia filed a motion to
dismiss, see Def.’s Mot. to Dismiss, ECF No. 27, and a motion
for Brady material, see Def.’s Mot. for Brady Material, ECF No.
28. On October 31, 2019, the government filed its opposition
briefs. See Gov’t’s Opp’n, ECF No. 29; see also Gov’t’s Opp’n,
ECF No. 31. Thereafter, Mr. Saffarinia filed his reply briefs.
See Def.’s Reply, ECF No. 37; see also Def.’s Reply, ECF No. 38.
The motions are ripe and ready for the Court’s adjudication.
II. Legal Standard
A. Motion to Dismiss
A criminal defendant may move to dismiss an indictment
before trial based on a “defect in the indictment,” including
for “lack of specificity” and “failure to state an offense.”
Fed. R. Crim. P. 12(b)(3)(B)(iii), (v). “[A] pretrial motion to
dismiss an indictment allows a district court to review the
sufficiency of the government’s pleadings, but it is not a
permissible vehicle for addressing the sufficiency of the
government’s evidence.” United States v. Mosquera-Murillo, 153
F. Supp. 3d 130, 154 (D.D.C. 2015) (citation and internal
quotation marks omitted). “In ruling on a motion to dismiss for
failure to state an offense, a district court is limited to
10
reviewing the face of the indictment and, more specifically, the
language used to charge the crimes.” United States v. Sunia, 643
F. Supp. 2d 51, 60 (D.D.C. 2009) (citation omitted).
“[A]n indictment is sufficient if it, first, contains the
elements of the offense charged and fairly informs a defendant
of the charge against which he must defend, and, second, enables
him to plead an acquittal or conviction in bar of future
prosecutions for the same offense.” Hamling v. United States,
418 U.S. 87, 117 (1974). The notice requirement “is established
in the Sixth Amendment, which provides that ‘[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
informed of the nature and cause of the accusation[.]’” United
States v. Hillie, 227 F. Supp. 3d 57, 69 (D.D.C. 2017) (quoting
U.S. Const. Amend. VI). “A valid indictment also preserves the
Fifth Amendment’s protections against abusive criminal charging
practices; specifically, its guarantees that a criminal
defendant can only be prosecuted for offenses that a grand jury
has actually passed up on, and that a defendant who is convicted
of a crime so charged cannot be prosecuted again for that same
offense.” Id.
B. Brady and Its Progeny
Pursuant to Brady and its progeny, the government has an
“an affirmative duty to disclose exculpatory evidence to the
defense, even if no request has been made by the accused.”
11
United States v. Borda, 848 F.3d 1044, 1066 (D.C. Cir.), cert.
denied, 137 S. Ct. 2315 (2017). In Brady, the United States
Supreme Court held that “the suppression by the prosecution of
evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution.” 373 U.S. at 87. “Impeachment evidence, . . . as
well as exculpatory evidence, falls within the Brady rule.”
United States v. Bagley, 473 U.S. 667, 676 (1985) (citing United
States v. Giglio, 405 U.S. 150, 154 (1972)). “[C]ourts in this
jurisdiction look with disfavor on narrow readings by
prosecutors of the government’s obligations under Brady.” United
States v. Edwards, 191 F. Supp. 2d 88, 90 (D.D.C. 2002) (citing
United States v. Paxson, 861 F.2d 730, 737 (D.C. Cir. 1988)).
To prove a Brady violation, a movant must establish three
elements: “[1] The evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is
impeaching; [2] that evidence must have been suppressed by the
[government], either willfully or inadvertently; and
[3] prejudice must have ensued.” Strickler v. Greene, 527 U.S.
263, 281-82 (1999). “To satisfy the prejudice component, the
defendant must show that ‘there is a reasonable probability
that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different.’” United States v.
12
Sitzmann, 893 F.3d 811, 826 (D.C. Cir. 2018) (quoting Bagley,
473 U.S. at 682); see also United States v. Gale, 314 F.3d 1, 4
(D.C. Cir. 2003) (“The defendant bears the burden of showing a
reasonable probability of a different outcome.”).
III. Analysis
The Court first analyzes Mr. Saffarinia’s motion to
dismiss, concluding that: (1) the concealment charge under 18
U.S.C. § 1001(a)(1) does not specify the legal duty to disclose
the four allegedly concealed material facts as identified in the
Indictment; (2) the obstruction charges sufficiently allege that
Mr. Saffarinia’s falsifications and omissions in his OGE Forms
278 fall within the reach of 18 U.S.C. § 1519; and (3) the rule
of lenity is inapplicable in this case. The Court then turns to
Mr. Saffarinia’s Brady motion, concluding that the government
must identify any Brady material within its voluminous
production to Mr. Saffarinia to the extent that the government
knows of any such information.
A. Motion to Dismiss
Mr. Saffarinia advances several arguments for dismissal.
First, Mr. Saffarinia moves to dismiss Count I and Counts V
through VIII on three grounds: (1) the Indictment does not
allege a “trick, scheme, or device” under 18 U.S.C. § 1001(a)(1)
as to Count I, Def.’s Mem., ECF No. 27-1 at 18-21; (2) the
Indictment fails to allege that he had no legal duty to disclose
13
at least three of the allegedly four concealed facts in Count I,
id. at 14-18; and (3) the Indictment fails to allege an
“investigation” or the “proper administration of any matter”
within the meaning of 18 U.S.C. § 1519 as to Counts V through
VII, id. at 22-24. Finally, Mr. Saffarinia argues that the
Indictment should be dismissed because the charge to the grand
jury “appears” to have been improper. Id. at 34. The Court will
address each argument in turn.
1. Concealment Charge under 18 U.S.C. § 1001(a)(1)
Count I of the Indictment charges Mr. Saffarinia with a
scheme to conceal material facts. See Indictment, ECF No. 1 at
3-4 ¶ 11. Under Section 1001(a)(1), it is a crime to “conceal[],
or cover[] up by any trick, scheme, or device a material fact.”
18 U.S.C. § 1001(a)(1). A violation under Section 1001(a)(1)
predicated on concealment has five elements: (1) the defendant
had a duty to disclose the material information imposed by
statute, regulation, or government form; (2) the defendant
concealed or covered up the facts using a trick, scheme, or
device; (3) the concealed facts were material; (4) the defendant
concealed those facts knowingly and willfully; and (5) the
concealed information concerned a matter within the jurisdiction
of the Executive Branch. E.g., United States v. Bowser, 318 F.
Supp. 3d 154, 168 (D.D.C. 2018) (Sullivan, J.) (listing the
§ 1001(a)(1) elements); United States v. White Eagle, 721 F.3d
14
1108, 1116 (9th Cir. 2013) (same).
Here, Mr. Saffarinia only challenges the first two
elements. See Def.’s Mem., ECF No. 27-1 at 14-21. Before turning
to those elements, the Court will address the parties’
disagreement as to the applicable statute of limitations.
a. Count One Is Not Time-Barred
Section 1001 is governed by the five-year statute of
limitations. See 18 U.S.C. § 3282(a) (“[N]o person shall be
prosecuted, tried, or punished for any offense, not capital,
unless the indictment is found . . . within five years next
after such offense shall have been committed.”). In this case,
the grand jury returned the Indictment against Mr. Saffarinia on
June 25, 2019. See generally Indictment, ECF No. 1 at 1.
Typically, any criminal conduct before June 25, 2014 would fall
outside of the applicable limitations period. See 18 U.S.C.
§ 3282(a). With the execution of the tolling agreements,
however, the parties agree that the date for the statute of
limitations is May 6, 2014. See Def.’s Mem., ECF No. 27-1 at 19
n.4; see also Gov’t’s Opp’n, ECF No. 31 at 9-10.
Mr. Saffarinia contends that “any conduct charged prior to
May 6, 2014 falls outside the limitations period.” Def.’s Mem.,
ECF No. 27-1 at 19 n.4. Mr. Saffarinia goes on to argue that the
government must show that “‘on least one occasion after’ the
applicable statute of limitations date, the defendant ‘concealed
15
or covered up’ a material fact.” Id. (quoting Gov’t’s Proposed
Jury Instructions, United States v. Craig, Crim. Action No. 19-
125 (D.D.C. July 22, 2019), ECF No. 72-2 at 11); Def.’s Reply,
ECF No. 38 at 20 n.5 (noting that “the jury cannot convict if
the government has not proven at least one act of concealment
within the limitations period”). The government responds that
Mr. Saffarinia has been charged with a single concealment
scheme, and “numerous courts, including this [Court], have held
that a scheme to conceal material facts is not complete for
statute of limitations purposes until the final affirmative act
in furtherance of the scheme is taken.” Gov’t’s Opp’n, ECF No.
31 at 9 (collecting cases). Mr. Saffarinia does not attempt to
distinguish the government’s cited cases. See Def.’s Reply, ECF
No. 38 at 19 n.5.
To begin, “[s]tatutes of limitations normally begin to run
when the crime is complete.” Toussie v. United States, 397 U.S.
112, 115 (1970) (quoting Pendergast v. United States, 317 U.S.
412, 418 (1943)). As the United States Court of Appeals for the
District of Columbia Circuit (“D.C. Circuit”) has recognized,
“first-year law students (presumably) learn [that] a criminal
offense is typically completed as soon as each element of the
crime has occurred.” United States v. McGoff, 831 F.2d 1071,
1078 (D.C. Cir. 1987). “A ‘continuing offense,’ . . ., is an
unlawful course of conduct that does perdure.” Id. And “the
16
statute of limitations as to prosecutions for continuing
offenses runs from the last day of the continuing offense.” Id.
at 1079 (citation omitted).
The D.C. Circuit has held that § 1001 is a continuing
offense for purposes of the statute of limitations. Bramblett v.
United States, 231 F.2d 489, 490-91 (D.C. Cir. 1956). In
Bramblett, a member of Congress was charged with engaging in a
scheme to falsify material facts under § 1001 by submitting a
form with false information to a Congressional office. Id. at
490. The D.C. Circuit rejected the defendant’s argument that the
§ 1001 charge was time-barred as a result of the crime being
completed when he filed the false form because the defendant
repeatedly benefited from the falsification over the course of
the scheme. Id. at 490-91. “By ‘falsifying a material fact, and
in leaving it on file, thereby continuing the falsification in
order repeatedly to partake of the fruits of the scheme,’ the
defendant committed a continuing crime of falsification by
scheme that ‘fairly falls within the terms of section 1001.’”
United States v. Hubbell, 177 F.3d 11, 13 (D.C. Cir. 1999)
(quoting Bramblett, 231 F.2d at 491). Thus, “the conduct of the
defendant which constituted the scheme did not terminate until
the scheme itself ended.” Bramblett, 231 F.2d at 492. 5
5 Neither party disputes that Bramblett is binding on this Court,
and courts in this Circuit still recognize Bramblett as
17
The Court agrees with the government that the Indictment
alleges a “single scheme to conceal that involved multiple false
statements, omissions, and other acts, much of which occurred
within the statutory period.” Gov’t’s Opp’n, ECF No. 31 at 9.
According to the Indictment, the alleged scheme began in 2012
and ended in 2016. Indictment, ECF No. 1 at 4 ¶ 13.
Mr. Saffarinia committed a continuing crime of concealment by
scheme, see Bramblett, 231 F.2d at 491, because Mr. Saffarinia
allegedly left on file in his OGE Forms 278, among other things,
the concealed material facts, including payments from Person A
and the $80,000 loan, during the alleged scheme, see Indictment,
ECF No. 1 at 4-5 ¶ 13. What is more, the Indictment alleges that
Mr. Saffarinia committed certain acts in furtherance of the
alleged scheme through 2016. See Indictment, ECF No. 1 at 16 ¶
73. Mr. Saffarinia’s last-filed OGE Form 278 was submitted on
April 26, 2016. Id. at 17 ¶ 76. And the Indictment asserts that
Mr. Saffarinia failed to report his liabilities in his OGE Forms
278 that were submitted through HUD. Id. at 4-5 ¶ 13. Although
controlling precedent. E.g., United States v. Michel, No. CR 19-
148-1 (CKK), 2019 WL 5797669, at *7 (D.D.C. Nov. 6, 2019)
(observing that “Hubbell’s discussion and affirmation
of Bramblett demonstrates that the case is still binding on this
Court”); United States v. Craig, 401 F. Supp. 3d 49, 76 (D.D.C.
2019) (same); Hr’g Tr., United States v. Stevens, Crim. Action
No. 08-231 (D.D.C. Sept. 10, 2008), ECF No. 64 at (finding that
“defendant’s contention that Bramblett no longer is good law is
unavailing”).
18
some of the alleged conduct fell outside of the limitations
period, see id. at 6-16 ¶¶ 18-73, Mr. Saffarinia is charged with
a single concealment scheme that allegedly ended in 2016, id. at
3-4 ¶ 11. The Court therefore finds that the allegations in
Count I are timely.
b. Scheme, Trick, or Device
The Court next considers whether the Indictment alleges a
“scheme, trick, or device” within the meaning of § 1001(a)(1).
See United States v. Woodward, 469 U.S. 105, 108 (1985)
(“Section 1001 proscribes the nondisclosure of a material fact
only if the fact is ‘conceal[ed] . . . by any trick, scheme, or
device[.]’”); see also United States v. Safavian, 528 F.3d 957,
965 n.8 (D.C. Cir. 2008) (“[C]oncealment must be accomplished in
a particular way: by a ‘trick, scheme, or device.’”).
Mr. Saffarinia argues that the Indictment “fails to allege
concealment of [the] fact [that he had a duty to disclose the
$80,000 loan from Person A on his OGE Forms 278] by means of a
‘trick, scheme, or device’” because “[a] trick, scheme, or
device requires an affirmative act of concealment; a mere false
statement is not enough.” Def.’s Mem., ECF No. 27-1 at 18. The
government responds that the Indictment sufficiently alleges a
scheme, trick, or device, and that Mr. Saffarinia’s “specific
argument deals with trial proof, not the sufficiency of the
indictment’s allegations.” Gov’t’s Opp., ECF No. 31 at 7.
19
Mr. Saffarinia is correct that an affirmative act by which
a material fact is concealed is necessary to prove a violation
of the concealment prong of § 1001. Bowser, 318 F. Supp. 3d at
169 (citing United States v. London, 550 F.2d 206, 213 (5th Cir.
1977). “The case law is clear that the deliberate failure to
disclose material facts in the face of a specific duty to
disclose such information constitutes a violation of the
concealment provision of § 1001.” United States v. Dale, 782 F.
Supp. 615, 626 (D.D.C. 1991), aff’d, 991 F.2d 819 (D.C. Cir.
1993). A defendant’s “nondisclosure [must be] distinguishable
from a ‘passive failure to disclose’ or ‘mere silence in the
face of an unasked question.’” Dale, 782 F. Supp. at 626. And
“the government bears the burden of demonstrating more than a
mere passive failure to disclose something; it must show that
the defendant ‘committed affirmative acts constituting a trick,
scheme, or device.’” Craig, 401 F. Supp. 3d at 63 (quoting
London, 550 F.2d at 213).
Here, Mr. Saffarinia does not suggest that the Indictment
is based on a passive failure to disclose information. See
Def.’s Mem., ECF No. 27-1 at 18-21; see also Def.’s Reply, ECF
No. 38 at 18-19. Rather, Mr. Saffarinia argues that the
Indictment fails to allege a trick, scheme, or device based on
the allegation that he “concealed the existence of the [$80,000]
loan by falsely stating that his OGE Forms 278 were truthful and
20
complete.” Def.’s Mem., ECF No. 27-1 at 21. Mr. Saffarinia seeks
to impose temporal limitations on the alleged acts of
concealment, arguing that the Indictment points to actions taken
before he incurred the $80,000 debt to “suggest improper
concealment.” Id. at 19. According to the Indictment,
Mr. Saffarinia received his first payment from Person A on or
about June 25, 2013. Indictment, ECF No. 1 at 9 ¶ 37. The
Indictment lists more than eight separate amounts of cash
payments from Person A to Mr. Saffarinia from July 2013 to
November 2013. Id. at 9-10 ¶¶ 38-39. Mr. Saffarinia contends
that the pre-June 2013 allegations—his failure to sign a
“Conflict of Interest Acknowledgment and Nondisclosure
Agreement” from GSA’s contracting officer, id. at 6 ¶ 21, and
his e-mails to Person A in June 2012 and July 2012 attaching
certain HUD-OIG documents, id. at 7 ¶¶ 26-27—cannot constitute
affirmative acts to conceal the $80,000 loan. See Def.’s Mem.,
ECF No. 27-1 at 19.
The post-June 2013 allegations in the Indictment include
Mr. Saffarinia’s efforts to increase Person A’s work hours under
Company B’s IT contract and cause HUD-OIG to recompete the IT
services contract and encourage Company C to partner with Person
A and Company A on the contract. Id. at 20 (citing Indictment,
ECF No. 1 at 10-14 ¶¶ 42-60). The remaining allegations also
include Mr. Saffarinia’s actions that gave a competitive
21
advantage to Person A for a certain contract, and his disregard
of directives from his supervisors to terminate Person A as a
government contractor. Id. (citing Indictment, ECF No. 1 at 11 ¶
44, 14-16 ¶¶ 61-73). According to Mr. Saffarinia, the post-June
2013 allegations do not amount to concealment of the $80,000
loan from Person A. Id. at 20.
The government disagrees with Mr. Saffarinia’s suggestion
that “the affirmative acts of concealment ‘predate’ his duty to
disclose.” Gov’t’s Opp’n, ECF No. 31 at 8. According to the
government, Mr. Saffarinia took affirmative acts to conceal
“hundreds of thousands of dollars from Person A over a multi-
year period, including the payments made pursuant to the
promissory note in 2013.” Id.
The Court is not persuaded by Mr. Saffarinia’s arguments
because the Court “must give full effect to the ‘trick, scheme,
or device’ language in [the concealment] prong of section 1001 .
. . .” Craig, 401 F. Supp. 3d at 63 (quoting London, 550 F.2d at
213). The government argues—and the Court agrees—that the
Indictment alleges “a single scheme to conceal that involved
multiple false statements, omissions, and other acts.” Gov’t’s
Opp’n, ECF No. 31 at 9. This alleged scheme occurred between
2012 and 2016. Indictment, ECF No. 1 at 4 ¶ 13. And the
Indictment sets forth allegations within the relevant time
period (from 2012 through 2016) that Mr. Saffarinia concealed,
22
among other things, his payments and the $80,000 loan from
Person A. See id. at 6-16 ¶¶ 18-73. The Indictment charges that
a purpose of Mr. Saffarinia’s scheme was to conceal, inter alia,
“tens of thousands of dollars in payments from Person A and an
outstanding $80,000 promissory note on which payment was owed to
Person A.” Id. at 4 ¶ 12. Under the “SAFFARINIA Received $80,000
from Person A” heading, the Indictment provides the loan and a
list of Mr. Saffarinia’s payments from Person A. Id. at 9-10 ¶¶
37-41.
Mr. Saffarinia’s other argument—that his alleged
falsifications or omissions alone do not constitute a trick,
scheme, or device within the meaning of § 1001(a)(1)—is
unavailing. See Def.’s Mem., ECF No. 27-1 at 21. To support his
position, Mr. Saffarinia cites to Safavian and two out-of-
Circuit decisions. Id. (citing Safavian, 528 F.3d at 967 n.12;
London, 550 F.2d at 212-14; United States v. St. Michael’s
Credit Union, 880 F.2d 579, 589 (1st Cir. 1989)); see also
Def.’s Reply, ECF No. 38 at 19. Mr. Saffarinia’s assertion—that
a false statement alone cannot constitute a trick, scheme, or
device—is not settled law. See Craig, 401 F. Supp. 3d at 73. In
Safavian, the D.C. Circuit noted, in dicta, the defendant was
“correct on the law” that “a false statement alone cannot
constitute a ‘trick, scheme, or device’,” 528 F.3d at 967 n.12
(collecting cases), but that the defendant there waived the
23
argument on appeal, as acknowledged by Mr. Saffarinia, see
Def.’s Mem., ECF No. 27-1 at 18-19. In London, the Fifth Circuit
did not hold that false statements could not state an offense
under Section 1001. 550 F.2d at 212-14; see also Craig, 401 F.
Supp. 3d at 73.
In St. Michael’s Credit Union, the defendants’ convictions
under § 1001 arose from the financial institution’s failure to
file Currency Transaction Reports (“CTRs”) with the Internal
Revenue Service (“IRS”). 880 F.2d at 581. The First Circuit
vacated the convictions because the trial judge did not instruct
the jury that the government had to prove “some ‘affirmative
act’ of concealment beyond the failure to file CTRs.” Id. at
589. The First Circuit held that “[a]bsent other acts that might
form part of a scheme to affirmatively conceal facts from a
federal agency, we do not believe the failure to file CTRs—
standing alone—can support a conviction under § 1001.” Id. at
591. More than twenty-two years after deciding St. Michael’s
Credit Union, the First Circuit clarified that “simple omissions
fall short of constituting affirmative acts of concealment,
which are required to prove a ‘scheme, trick, or device.’”
United States v. Mubayyid, 658 F.3d 35, 69-71 (1st Cir. 2011)
(citing St. Michael’s Credit Union, 880 F.2d at 589).
In Mubayyid, the defendant-treasurer of a tax-exempt
organization signed and filed IRS Forms 990 in three different
24
tax years that contained materially false information about the
organization’s non-charitable activities. Id. at 58. The First
Circuit affirmed the defendant’s § 1001(a)(1) conviction for
scheming to conceal material facts from the IRS, rejecting his
arguments that the government’s evidence was insufficient and
that the government failed to prove a specific scheme. Id. at
69-71. In doing so, the First Circuit reasoned that the
defendant had a legal duty to disclose and “by filing the false
Form 990s, which he signed under penalty of perjury, [the
defendant] did not passively fail to disclose material facts; he
engaged in an affirmative act of concealment.” Id. at 70 (citing
St. Michael’s Credit Union, 880 F.2d at 590-91).
Here, Mr. Saffarinia’s alleged false OGE Forms 278 closely
resemble the defendant’s false IRS forms in Mubayyid. The
Indictment alleges that Mr. Saffarinia concealed certain
liabilities in his OGE Forms 278—his payments and loan from
Person A. Indictment, ECF No. 1 at 4 ¶ 11. Mr. Saffarinia
concedes that the OGE Forms 278 may have imposed a duty to
disclose the $80,000 loan from Person A. See Def.’s Mem., ECF
No. 27-1 at 18-21. Mr. Saffarinia does not challenge that the
loan and the details about the loan are material facts that he
did not disclose on his OGE Forms 278. See id. In his own words,
“the Indictment alleges that Mr. Saffarinia concealed the
existence of the loan by falsely stating that his OGE Forms 278
25
were truthful and complete.” Id. at 21. The Court therefore
finds that the Indictment sufficiently alleges a scheme to
conceal because it contains allegations that Mr. Saffarinia
engaged in affirmative acts of concealment by actively filing
the OGE Forms 278 that allegedly contained false statements. The
Court concludes that the Indictment alleges a “scheme, trick, or
device” within the meaning of § 1001(a)(1). Accordingly, the
Court DENIES IN PART Mr. Saffarinia’s motion to dismiss.
c. Legal Duty to Disclose
The Court next considers whether the Indictment alleges
that Mr. Saffarinia had a legal duty to disclose the concealed
material facts. The parties disagree as to whether
Mr. Saffarinia had a legal duty to disclose the following four
allegedly concealed facts:
(1) Mr. Saffarinia’s unauthorized disclosure
of confidential information to Person A;
(2) Mr. Saffarinia’s alleged efforts to steer
government contracts to Person A and Company
A; (3) the existence of an actual or potential
conflict of interest; and (4) the nature and
extent of Mr. [Saffarinia’s] financial
relationship with Person A.
Def.’s Mem., ECF No. 27-1 at 16 (citing Indictment, ECF No. 1 at
2-3 ¶ 5, 3-4 ¶ 11, 5 ¶ 16).
Neither party disputes that a “conviction under
§ 1001(a)(1) requires a legal obligation—imposed by statute,
regulation, or form—to disclose material facts.” Id. (citing
26
Safavian, 528 F.3d at 964); see also Gov’t’s Opp’n, ECF No. 31
at 4. The parties agree that Mr. Saffarinia’s legal duties arose
from three sources: (1) the EIGA; (2) the OGE regulations,
5 C.F.R. §§ 2634, et seq.; and (3) the OGE Form 278. See, e.g.,
Saffarinia, 2019 WL 5086913, at *8; Gov’t’s Opp’n, ECF No. 31 at
5; Def.’s Reply, ECF No. 38 at 11. Mr. Saffarinia’s primary
argument is that the Indictment fails to identify a legal duty
to disclose the four allegedly concealed facts, and that the
three sources—the EIGA, the OGE regulations, and the OGE Form
278—do not require the disclosure of those facts. See Def.’s
Mem., ECF No. 27-1 at 16; see also Def.’s Reply, ECF No. 38 at
11.
“[T]he Court must first decide, as a matter of law, whether
[a legal] duty [to disclose] existed.” United States v. Crop
Growers Corp., 954 F. Supp. 335, 345 (D.D.C. 1997). “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.” Safavian, 528 F.3d at 964
(emphasis added). The D.C. Circuit has explained that this
specificity is rooted in the Due Process Clause of the Fifth
Amendment to the United States Constitution, which requires a
criminal defendant to have “fair notice . . . of what conduct is
forbidden.” Id. (quoting United States v. Kanchanalak, 192 F.3d
1037, 1046 (D.C. Cir. 1999)). “[T]his ‘fair warning’ requirement
27
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. Vague standards and the “ethical principles” embodied
in them did not impose a clear duty to disclose information.
Safavian, 528 F.3d at 964–65; see also Saffarinia, 2019 WL
5086913, at *8 (discussing the holding in Safavian).
Consistent with Safavian, courts have recognized that a
defendant’s duty to disclose specific information must be found
in statutes, regulations, or government forms. See, e.g., White
Eagle, 721 F.3d at 1117 (“[A] conviction under § 1001(a)(1) is
proper where a statute or government regulation requires the
defendant to disclose specific information to a particular
person or entity.”); Craig, 401 F. Supp. 3d at 64-68 (holding
that defendant had a legal duty to disclose under the Foreign
Agents Registration Act (“FARA”) and the FARA registration
form); Crop Growers Corp., 954 F. Supp. at 346–48 (holding that
defendants did not have a duty to disclose whether they violated
campaign finance laws in mandatory filings to the Securities and
Exchange Commission).
In this case, Mr. Saffarinia does not dispute—and the Court
agrees—that he had a legal duty to disclose the $80,000 loan
from Person A and “certain ancillary details, such as the
interest rate, the date of maturity, etc.” on his OGE Forms 278.
28
Def.’s Mem., ECF No. 27-1 at 17. Indeed, Section 102(a)(4) of
the EIGA provides, in relevant part, that “[e]ach report filed .
. . shall include a full and complete statement with respect to
. . . [t]he identity and category of value of the total
liabilities owed to any creditor other than a spouse, or a
parent, brother, sister, or child of the reporting individual or
of the reporting individual’s spouse which exceed $10,000 at any
time during the preceding calendar year,” subject to certain
exclusions. 5 U.S.C. app. 4 § 102(a)(4). Section 2634.305 of the
OGE regulations contains nearly identical language. See 5 C.F.R.
§ 2634.305(a) (“[E]ach financial disclosure report filed
pursuant to this subpart must identify and include a brief
description of the filer’s liabilities exceeding $10,000 owed to
any creditor at any time during the reporting period, and the
name of the creditors to whom such liabilities are owed.”). And
the OGE Form 278 unambiguously provides that “[the EIGA]
requires [the filer] to disclose certain of [his or her]
financial liabilities,” including to “[i]dentify and give the
category of amount of the liabilities which [the filer], [his or
her] spouse or dependent child owed to any creditor which
exceeded $10,000 at any time during the reporting period.” OGE
Form 278 at 10.
The Indictment makes clear that Mr. Saffarinia’s legal duty
was imposed by the EIGA, the OGE regulations, and the OGE Form
29
278. See Indictment, ECF No. 1 at 2 ¶ 4. On its face, the
Indictment alleges that Mr. Saffarinia had a legal duty to
disclose the specific information of the $80,000 loan from
Person A. See Indictment, ECF No. 1 at 2 ¶ 4, 4 ¶¶ 11-12. And
Mr. Saffarinia concedes that he had a “duty to disclose
liabilities over $10,000 owed to any one creditor at a time
within the annual reporting period (along with ancillary details
concerning the debt) . . . .” Def.’s Reply, ECF No. 38 at 11.
The Court therefore finds that the Indictment sufficiently
alleges that Mr. Saffarinia had a legal duty to disclose this
specific information in his OGE Forms 278. See Safavian, 528
F.3d at 964.
The question remains whether Mr. Saffarinia had a legal
duty to disclose “anything else about his relationship with
Person A.” Def.’s Mem., ECF No. 27-1 at 17. According to
Mr. Saffarinia, “[the OGE Form 278] did not require [him] to
disclose that Person A and Company A had a financial interest in
HUD-OIG business, the nature and extent of his ‘personal
relationship’ with Person A, or his alleged efforts to steer
lucrative governmental business to Person A,” id. (citing
Indictment, No. 1 at 4 ¶ 12, 5 ¶ 16). Mr. Saffarinia notes that
“the Indictment does not identify any statute, regulation, or
form (other than OGE Form 278 . . .) that would have imposed a
legal obligation to make [the] disclosures” about his financial
30
relationship with Person A to “other contracting officials and
agency ethics officials and counsel.” Id. at 17 n.3.
The government responds that Mr. Saffarinia “failed to
disclose [his] longstanding and substantial financial
relationship [with Person A] (and another large promissory note
from his neighbor) on his public financial disclosure forms
(‘OGE Forms 278’) and to agency ethics officials and
supervisors.” Gov’t’s Opp’n, ECF No. 31 at 2 (emphasis added).
According to the government, the Indictment alleges that
Mr. Saffarinia’s “unambiguous” legal duties to disclose his
longstanding financial relationship with Person A arose from his
positions as a “high-ranking HUD-OIG official,” a member of the
SES, and the Head of Contracting Activity, as well as his role
“supervis[ing], review[ing], approv[ing], and participat[ing] in
HUD-OIG’s procurement activity.” Id. at 5 (citing Indictment,
No. 1 at 2 ¶¶ 3-5). The government notes that Mr. Saffarinia’s
legal duties to disclose included “his obligations under [the
EIGA], which, among other things, requires the disclosure of
noninvestment income, gifts, and liabilities over $10,000
through the filing of the OGE Form 278.” Id. at 5 n.2.
Mr. Saffarinia argues—and the Court agrees—that the
government “points to nothing in the text of [the EIGA], its
implementing regulations, or OGE Form 278 that would suggest a
duty to disclose, in general terms, a ‘longstanding financial
31
relationship.’” Def.’s Reply, ECF No. 38 at 11. The government
does not deny that the three sources of Mr. Saffarinia’s legal
duty to disclose are the EIGA, the OGE’s regulations, and the
OGE Form 278. See Gov’t’s Opp’n, ECF No. 31 at 5-6 (citing
Saffarinia, 2019 WL 5086913, at *8); see also Def.’s Reply, ECF
No. 38 at 13. In a footnote, however, the government asserts
that Mr. Saffarinia’s duties to disclose included:
[H]is responsibility under acquisition
regulations to safeguard confidential or
source sensitive procurement information and
use it only for appropriate purposes; to avoid
strictly, and disclose, any conflict of
interest or even the appearance of a conflict
of interest; and to not solicit or accept
anything of monetary value, including loans
from anyone who has or is seeking to obtain
government business with the employee’s
agency, conducts activities that are regulated
by the employee’s agency, or has interests
that may be substantially affected by the
performance or nonperformance of the
employee’s official duties.
Gov’t’s Opp’n, ECF No. 31 at 5 n.2 (emphasis added). In its
opposition brief, the government identifies for the first time
other sources that purportedly imposed a legal duty on
Mr. Saffarinia to disclose his longstanding financial
relationship with Person A and other information. Id.
Specifically, the government cites the following five sources:
1. Federal Acquisition Regulations (“FAR”),
48 C.F.R. ch. 3 and § 3.101-2;
2. General Service Administration Regulations
(“GSAR”), 48 C.F.R. ch. 5;
32
3. General Service Administration Acquisition
Manual (“GSAM”), part 503;
4. Housing & Urban Development Acquisition
Regulations (“HUDAR”), 48 C.F.R. ch. 24, pt.
2403; and
5. HUD’s Office of the Chief Procurement
Officer Guidance and Handbook 2210.3 (“OCPO
Handbook”), ch. 2403.
Id. The government relies on these sources to support its
argument that Mr. Saffarinia’s legal duties to disclose arose
from his “various positions and responsibilities” and his
“substantial participation and involvement in HUD-OIG’s
procurements.” Id. Courts “generally decline[] to consider an
argument if a party buries it in a footnote and raises it in
only a conclusory fashion.” Nat’l Oilseed Processors Ass’n v.
OSHA, 769 F.3d 1173, 1184 (D.C. Cir. 2014). Nonetheless,
Mr. Saffarinia raises various arguments as to the additional
sources identified in the government’s opposition brief. See
Def.’s Reply, ECF No. 38 at 12-18.
Turning to those sources, the government does not explain
how the additional sources indicate the specific information
that Mr. Saffarinia was required to disclose. See Gov’t’s Opp’n,
ECF No. 31 at 5-6. Furthermore, the Indictment does not mention
or cite the “acquisition regulations,” other regulations,
policies, GSAM, and OCPO Handbook. See generally Indictment, ECF
No. 1 at 2-3 ¶ 5 (“[Mr. Saffarinia] therefore had a legal duty
33
under governing regulations to disclose actual and potential
conflicts of interest and to not solicit and accept anything of
monetary value . . . .”); see also Def.’s Reply, ECF No. 38 at
14. The parties, however, agree that any legal duty arose from
the EIGA, the OGE regulations, and the OGE Form 278.
Mr. Saffarinia contends that Chapter 3, title 48 of the
Code of Federal Regulations, see 48 C.F.R. §§ 301.101-370.701,
applies to the United States Department of Health and Human
Services, see id. § 301.101(a). Def.’s Reply, ECF No. 38 at 14
(“It imposes no duties at all on HUD-OIG employees like Mr.
Saffarinia.”). And Mr. Saffarinia argues that 48 C.F.R. § 3.101-
2 bars “government employees from soliciting or accepting
anything of monetary value from anyone who has business before
that employee’s agency, who conducts activities regulated by
that agency, or whose interests may be substantially affected by
that employee’s performance of his duties.” Id. at 15. 6 A fair
reading of Section 3.101-2, which falls within the “Standards of
Conduct” section, does not unambiguously impose a legal duty to
6 Section 3.101-2 provides that “[a]s a rule, no Government
employee may solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of
monetary value from anyone who (a) has or is seeking to obtain
Government business with the employee’s agency, (b) conducts
activities that are regulated by the employee’s agency, or
(c) has interests that may be substantially affected by the
performance or nonperformance of the employee’s official duties.
Certain limited exceptions are authorized in agency
regulations.” 48 C.F.R. § 3.101-2.
34
disclose. See 48 C.F.R. § 3.101-2; see also Safavian, 528 F.3d
at 964 (holding that there is no legal duty to disclose where
“the government failed to identify a legal disclosure duty
except by reference to vague standards of conduct for government
employees”).
Next, the government cites Chapter 5, title 48 of the Code
of Federal Regulations, see 48 C.F.R. §§ 501.101-570.802. See
Gov’t’s Opp’n, ECF No. 31 at 5 n.2. The government points out
that Mr. Saffarinia “received and was asked to sign a ‘Conflict
of Interest Acknowledgement and Nondisclosure Agreement’ from
GSA’s contracting officer,” id. at 6 (citing Indictment, ECF No.
1 at 6 ¶ 21), and that agreement required him to “safeguard and
use proposal information for appropriate purposes, not disclose
proposal information improperly, and acknowledge that he was
conflict-free, with an on-going duty to report any actual or
apparent conflicts[,] id. at 7. The government argues that
Mr. Saffarinia is “mistaken” in suggesting that he had no legal
duty to disclose “his efforts to steer contracts and work to
Person A and to engage in covert communications with Person A,”
id. at 6, because “the governing acquisition regulations . . .
required him to disclose his improper relationship with Person A
on his OGE Form 278 and to agency ethics officials and counsel
as part of the procurement process[,]” id. at 7 (emphasis
added). As previously noted, the Indictment does not reference
35
these “acquisition regulations.” See generally Indictment, ECF
No. 1 at 2 ¶ 5.
Mr. Saffarinia’s next argument is that “[a] disclosure
requirement is similarly absent from Part 503 of the GSAM and
the GSAR.” Def.’s Reply, ECF No. 38 at 16. According to
Mr. Saffarinia, “Part 503 requires the contracting officer to
‘use the Conflict of Interest Acknowledgment and Nondisclosure
Agreement . . . to maintain the identity of individuals’ who
have access to certain contract information.” Id. (citation
omitted). Mr. Saffarinia points out that he was not a
contracting officer, and that the Indictment alleges that he
never signed the agreement. Id.; see also Indictment, ECF No. 1
at 6 ¶ 21. Had he signed the “Conflict of Interest
Acknowledgement and Nondisclosure Agreement,” Mr. Saffarinia
does not dispute that he would have had a legal duty to disclose
any actual or apparent conflicts of interest as HUD-OIG’s Head
of Contracting Activity. See Def.’s Reply, ECF No. 38 at 16. But
Mr. Saffarinia points out that “[a]n agreement to which [he] has
never acquiesced imposes no legal duty at all.” Id. (citing
Bowser, 318 F. Supp. 3d at 170).
Bowser is illustrative of this point. In that case, this
Court found that the evidence adduced in the government’s case-
in-chief at trial was sufficient to support the defendant’s
concealment conviction under § 1001(a)(1) because, inter alia,
36
“although [the defendant] may not have had any preexisting duty
to disclose documents or information to the [Office of
Congressional Ethics (“OCE”)], a duty was imposed upon him after
he signed forms agreeing that he would not ‘falsif[y],
[conceal], or cover[] up by any trick, scheme, or device’ a
‘material fact’ within the purview of the OCE’s investigation.”
Bowser, 318 F. Supp. 3d at 170 (emphasis added). Similarly, in
United States v. Moore, 446 F.3d 671, 678 (7th Cir. 2006), the
Seventh Circuit held that the defendant’s duty to disclose her
conflicts of interest to municipal officials arose when she
signed contracts to receive HUD block grant funds, and the
contracts incorporated the applicable HUD conflicts-of-interest
regulation.
The Seventh Circuit also held that the duty to disclose was
triggered “in the course of [the defendant’s] communications
with City officials who were investigating the conflict-of-
interest problem.” Id. The Seventh Circuit reasoned that “even
if [the defendant] did not—as she argue[d]—read the contract and
thus was ignorant for a time of her legal obligation, the
continued inquiries from City officials about the relationships
. . . and the concerns expressed by City officials about
conflicts of interest repeatedly triggered a duty to disclose.”
Id. The Seventh Circuit explained that “[o]nce the City
explicitly asked for the information, the failure to respond
37
honestly is something far greater than a failure to volunteer
information.” Id.
Unlike the defendants in Moore and Bowser who signed
documents imposing legal duties to disclose certain information,
Mr. Saffarinia never signed the “Conflict of Interest
Acknowledgement and Nondisclosure Agreement” that purportedly
required him to disclose his actual and apparent conflicts of
interest. See Def.’s Reply, ECF No. 38 at 16; see also Gov’t’s
Opp’n, ECF No. 31 at 6-7. In some respects, Mr. Saffarinia’s
situation is similar to the defendant’s situation in Moore
because the defendant there had a legal duty to disclose
conflicts of interest when she was explicitly asked about them
by the City officials. See id. at 678. The Indictment alleges
that Mr. Saffarinia did not disclose his relationship with
Person A to his supervisors. See Indictment, ECF No. 1 at 11 ¶
44.
According to the Indictment, “[o]n or about December 6,
2013, when Person A attended a large meeting that included
[Mr. Saffarinia] and his supervisors, [Mr. Saffarinia]
misrepresented to his supervisors the nature of his relationship
with Person A and Person A’s role on Company B’s IT services
contract.” Indictment, ECF No. 1 at 11 ¶ 44. The Indictment
alleges that Mr. Saffarinia’s “supervisors directed [him] to
remove Person A as a government contractor as soon as Person A
38
finished an existing project[,]” but Mr. Saffarinia “ignored the
directive.” Id. Unlike in Moore where the defendant’s duty to
disclose the conflict of interest arose based on the City
officials’ inquiries during an investigation, the Indictment
here does not allege that Mr. Saffarinia’s supervisors were
specifically investigating a conflict-of-interest problem to
trigger a duty to disclose when Mr. Saffarinia allegedly
misrepresented to his supervisors his relationship with Person
A. Compare Indictment, ECF No. 1 at 11 ¶ 44, with Moore, 446
F.3d at 678. Furthermore, the Indictment neither alleges that
Mr. Saffarinia was the contracting officer, nor asserts that
Mr. Saffarinia signed the “Conflict of Interest Acknowledgement
and Nondisclosure Agreement.” See id. On balance, the Court
cannot find that Mr. Saffarinia had a legal duty to disclose any
“actual or apparent conflicts of interest” given the lack of
specificity in the Indictment. 7
With respect to the fourth source—HUDAR—cited in the
government’s opposition brief, see 48 C.F.R. §§ 2403.101-
2403.670, Section 2403.101 expressly provides that “[d]etailed
rules which apply to the conduct of HUD employees are set forth
7 The Court need not address Mr. Saffarinia’s argument—that
“[r]eliance upon a duty to disclose ‘actual or apparent
conflicts’ renders 18 U.S.C. § 1001(a)(1) impermissibly
vague[,]” Def.’s Reply, ECF No. 38 at 16—because the Court
agrees with Mr. Saffarinia that the Indictment fails to allege a
legal duty to disclose actual or apparent conflicts of interest.
39
in 5 CFR part 2635 and 5 CFR part 7501[,]” 48 C.F.R. § 2403.101;
see also 5 C.F.R. § 7501.101 (“Employees are required to comply
with 5 CFR part 2635, this part, and any additional rules of
conduct that the Department is authorized to issue.”). Pursuant
to Section 2635.101, “[e]mployees shall disclose waste, fraud,
abuse, and corruption to appropriate authorities.” 5 C.F.R.
§ 2635.101(b)(11); see id. § 2635.107. It is undisputed that
federal employees have this general duty to disclose. See Def.’s
Mem., ECF No. 27-1 at 16. That being said, this general federal
regulation to report wrongdoing and the general principles
embodied in 5 C.F.R. § 2635.101(b) are insufficient to impose a
legal duty to disclose. E.g., Safavian, 528 F.3d at 964 (The
“relationship [of the strictures in 5 C.F.R. § 2635.101(b)] to
[the defendant’s] duty under § 1001(a)(1) is tenuous at best.”);
White Eagle, 721 F.3d at 1116–17 (holding that defendant’s
failure to “disclose waste, fraud, and corruption” did not
support a concealment conviction under § 1001(a)(1) where the
defendant was “not charged with breaching the public trust or
failing to perform her duties as a public servant or government
employee.”).
Finally, the government cites Chapter 2403 of the OCPO
Handbook—the fifth source—as further support for
Mr. Saffarinia’s alleged legal duty to disclose. Gov’t’s Opp’n,
40
ECF No. 31 at 5 n.2. 8 But the government does not cite specific
sections within that chapter. See id. Acknowledging that “the
chapter cross-references and incorporates the financial
disclosure requirements of OGE Form 278[,]” Mr. Saffarinia
contends that “Chapter 2403 of the OCPO Handbook does not
require disclosure of any longstanding financial relationships.”
Def.’s Reply, ECF No. 38 at 15.
Section 2403.101-3(a) of the OCPO Handbook provides, in
relevant part, that “[a]ll HUD employees, including contracting,
technical, and program personnel who have or will have access to
source selection and/or contractor proposal information, must
comply with the government-wide standards of ethical conduct
rules published at 5 CFR Part 2635 and the HUD supplemental
rules published at 5 CFR Part 7501.” Def.’s Ex. A, ECF No. 38-2
at 48. Section 2403.101-3(b) of the OCPO Handbook states that
“certain individuals with involvement in the acquisition process
(e.g., contracting personnel, [Contracting Officer’s
8 Mr. Saffarinia’s contention—that certain versions of the OCPO
Handbook located in the government’s production “post-date” the
alleged scheme to conceal from 2012 to 2016—is moot. See Def.’s
Reply, ECF No. 38 at 14-15, 14 n.3. After filing his reply
brief, Mr. Saffarinia informed the Court that his review of the
voluminous discovery yielded excerpts of prior versions of the
OCPO Handbook that were embedded in e-mails among HUD-OIG
employees. E.g., Def.’s Suppl. Decl. of Eric R. Nitz in Supp. of
Def.’s Mot. to Dismiss, ECF No. 41 at 1-2; Def.’s Notice of
Compliance, ECF No. 42 at 1; Def.’s Ex. 1, ECF No. 42-1 at 1-25;
Def.’s Ex. 2, ECF No. 42-2 at 1-50; Def.’s Ex. 3, ECF No. 42-3
at 1-6.
41
Representative], [Source Selection Authority], and individuals
serving on [Technical Evaluation Panels]) are required to
disclose their financial interests[,]” and those disclosures
must be made on OGE Form 278. Id.; see also Def.’s Ex. 1, ECF
No. 42-1 at 24 (requiring “individuals involved in the
procurement process” to “disclose their financial interests” on
OGE Form 278). And Section 2403.101-70(c) of the OCPO Handbook,
in relevant part, provides:
All individuals who will have access to source
selection information and/or proposals
([Individual Acquisition Plan] members with
access to such information; [Technical
Evaluation Panel] or other evaluation panel
members) must complete [certain] disclosures
and certifications . . . . [A]nnual filers
must provide an update to their report if
there have been any changes in their financial
interests and/or liabilities as reported on
their most recent financial disclosure report.
Def.’s Ex. A, ECF No. 38-2 at 49. The OCPO Handbook directed HUD
employees, like Mr. Saffarinia, to the OGE Form 278. See, e.g.,
Def.’s Ex. 1, ECF No. 42-1 at 24; Def.’s Ex. A, ECF No. 38-2 at
48. Having reviewed the sources and the OGE Form 278, the Court
agrees with Mr. Saffarinia that the Indictment does not allege
that OGE Form 278 unambiguously requires the disclosure of the
alleged “longstanding financial relationship” with Person A. See
Def.’s Reply, ECF No. 38 at 15.
Mr. Saffarinia relies on Safavian to support his argument
that HUDRA’s cross reference to 5 C.F.R. part 2635 does not
42
unambiguously require the disclosure of a longstanding financial
relationship. Id. As Mr. Saffarinia correctly notes, the D.C.
Circuit in Safavian rejected the government’s argument that the
standards of conduct in 5 C.F.R. part 2635 created a duty to
disclose under § 1001(a)(1) where the defendant there availed
himself of the voluntary system to seek ethics advice from the
designated agency official. 528 F.3d at 964 (citing 5 C.F.R.
§ 2635.101); id. at 964 n.6 (5 C.F.R. § 2635.107); see also
Def.’s Reply, ECF No. 38 at 15-16. The D.C. Circuit explained
that “[i]t [was] not apparent how [the] voluntary system [of
seeking advice from an agency ethics official], replicated
throughout the government, impose[d] 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).” Safavian, 528 F.3d at 964 (quoting 5 C.F.R.
§ 2635.107(b)). The government is correct that this Court’s
prior ruling explained that Mr. Saffarinia’s reliance on
Safavian was misplaced because the alleged duty to disclose in
this case arose from the EIGA, the OGE’s regulations, and the
OFE Form 278 rather than from the vague or general principles as
in Safavian. See Gov’t’s Opp’n, ECF No. 31 at 5 (citing
Saffarinia, 2019 WL 5086913, at *8).
As this Memorandum Opinion makes clear, however, the
government’s reliance on the sources in its opposition brief
43
other than the EIGA, the OGE’s regulations, and the OFE Form 278
moves Mr. Saffarinia’s situation closer to the vague, ill-
defined situation in Safavian. See Gov’t’s Opp’n, ECF No. 31 at
5 n.2. Mr. Saffarinia correctly points out that this Court’s
prior ruling “said nothing of whether [the] allegations [in the
Indictment] meet the elements of the crimes charged or, as a
matter of law, require disclosure of allegedly concealed facts.”
Def.’s Reply, ECF No. 38 at 11. In denying Mr. Saffarinia’s
motion for a bill of particulars, this Court found that
“Mr. Saffarinia has sufficient information through the
voluminous discovery to permit him to conduct his own
investigation . . . .” Saffarinia, 2019 WL 5086913, at *7
(citation and internal quotation marks omitted). While a
defendant may challenge an indictment’s specificity under
Federal Rule of Criminal Procedure 7, see United States v.
Akinyoyenu, 201 F. Supp. 3d 82, 85 (D.D.C. 2016), this Court did
not reach the issue of whether the Indictment is sufficiently
specific under Rule 12(b)(3)(B)(iii), or the question of whether
the Indictment fails to state an offense. See Saffarinia, 2019
WL 5086913, at *7-*9.
A defendant can challenge an indictment on the grounds that
it lacks specificity, see Fed. R. Crim. P. 12(b)(3)(B)(iii), but
“the defendant must apprise the District Court of those
particular portions of the indictment that are lacking in the
44
requisite specificity, and explain why, in the circumstances,
greater specificity is required[,]” United States v. Crowley,
236 F.3d 104, 109 (2d Cir. 2000). Here, the Indictment alleges
that Mr. Saffarinia “had a financial relationship with Person A
that included tens of thousands of dollars in payments from
Person A and an outstanding $80,000 promissory note on which
payment was owed to Person A[.]” Indictment, ECF No. 1 at 4 ¶ 12
(emphasis added). The legal duty to disclose the $80,000 loan is
specific information that meets the level of specificity as set
forth in Safavain. See 528 F.3d at 964. The Indictment, however,
does not specify the meaning of the phrase “financial
relationship” other than alleging that it “include[s] payments
from Person A to [Mr. Saffarinia] totaling at least $80,000.”
Indictment, ECF No. 1 at 4 ¶ 11. And the Indictment does not
specify the legal duties to disclose the other concealed
material facts: (1) Mr. Saffarinia’s unauthorized disclosure of
confidential information to Person A; (2) his efforts to steer
government contracts to Person A and Company A; and (3) the
existence of his actual or potential conflicts of interest.
Mr. Saffarinia has made the requisite showing for greater
specificity in the Indictment. See Crowley, 236 F.3d at 106.
The Court is bound by the language in the Indictment.
United States v. Hitt, 249 F.3d 1010, 1015 (D.C. Cir. 2001).
“Adherence to the language of the indictment is essential
45
because the Fifth Amendment requires that criminal prosecutions
be limited to the unique allegations of the indictments returned
by the grand jury.” Id. at 1016. “[B]ut that language must be
supplemented with enough detail to apprise the accused of the
particular offense with which he is charged.” United States v.
Conlon, 628 F.2d 150, 155 (D.C. Cir. 1980) (footnote omitted).
Contrary to the government’s assertion that Mr. Saffarinia had
“unambiguous legal duties” to disclose his “longstanding
financial relationship” with Person A, see Gov’t’s Opp’n, ECF
No. 31 at 5, the Court cannot discern from the phrase—“financial
relationship”—whether the EIGA, the OGE’s regulations, and the
OGE Form 278 unambiguously require disclosure of such
information. Cf. Crop Growers Corp., 954 F. Supp. at 347. Apart
from Mr. Saffarinia’s payments and loan from Person A, the Court
cannot find that the Indictment sufficiently alleges that
Mr. Saffarinia had a legal duty to disclose the nature and
extent of his financial relationship with Person A, see
Indictment, ECF No. 1 at 4 ¶ 11, or the other allegedly
concealed facts, see id. at 2-3 ¶ 5, 3-4 ¶ 11, 4 ¶ 12, 5 ¶ 16.
Because of the lack of specificity as to the legal duty to
disclose the four allegedly concealed facts in the Indictment,
see Fed. R. Crim. P. 12(b)(3)(B)(iii), Count I is DISMISSED
WITHOUT PREJUDICE. Accordingly, the Court GRANTS IN PART
46
Mr. Saffarinia’s motion to dismiss. 9
2. Obstruction Charges (Counts V – VII)
The Court next considers Mr. Saffarinia’s arguments that
Counts V through VII should be dismissed because the Indictment
fails to allege that HUD and OGE’s “review” of his completed OGE
Forms 278 constitutes an “investigation” or “matter” within the
meaning of § 1519. Def.’s Mem., ECF No. 27-1 at 22-30. Counts V
through VII charge that Mr. Saffarinia “with the intent to
impede, obstruct, and influence, and in relation to and
contemplation of, the investigation and proper administration of
a matter within the jurisdiction of a department and agency of
the United States, knowingly concealed, covered up, falsified,
and made false entries in a record, document, and tangible
object.” Indictment, ECF No. 1 at 18 ¶ 78 (emphasis added).
These obstruction counts specifically allege that Mr. Saffarinia
caused his three separate OGE Forms 278 to be submitted with OGE
and HUD, and Mr. Saffarinia falsely stated in each form that he
had no reportable liabilities in excess of $10,000. Id.
According to the Indictment, however, Mr. Saffarinia received
payments and loans from Person A and his neighbor in excess of
9 Pursuant to Federal Rule of Criminal Procedure 7(d),
Mr. Saffarinia moves to strike as surplusage certain “irrelevant
and prejudicial” allegations in Count I. Def.’s Mem., ECF No.
27-1 at 21 (citing Fed. R. Crim. P. 7(d)). In light of the
dismissal of Count I, the Court DENIES AS MOOT Mr. Saffarinia’s
request.
47
$10,000. Id.
Chapter 73 of Title 18 of the United States Code,
entitled “Obstruction of Justice,” covers criminal liability for
obstruction of justice. See 18 U.S.C. § 1519. Specifically,
Section 1519 of that chapter, entitled “Destruction, alteration,
or falsification of records in Federal investigations and
bankruptcy,” provides:
Whoever knowingly alters, destroys,
mutilates, conceals, covers up, falsifies, or
makes a false entry in any record, document,
or tangible object with the intent to impede,
obstruct, or influence the investigation or
proper administration of any matter within the
jurisdiction of any department or agency of
the United States or any case filed under
title 11, or in relation to or contemplation
of any such matter or case, shall be fined
under this title, imprisoned not more than 20
years, or both.
Id. This criminal statute has been applied in different
contexts. See, e.g., Michel, 2019 WL 5797669, at *11 (defendant
charged with making a false entry in violation of 18 U.S.C.
§ 1519 by causing a political committee to make false statements
in a form submitted to the Federal Election Commission); United
States v. Sanford Ltd., 841 F. Supp. 2d 309, 319 (D.D.C. 2012)
(defendants allegedly made false entries in the oil record book
of certain waste disposals in violation of 18 U.S.C. § 1519). 10
10“The Court notes that 18 U.S.C. § 1001 is substantially
similar to 18 U.S.C. § 1519.” United States v. Sanford Ltd., 880
48
According to Mr. Saffarinia, “[Section] 1519 does not
unambiguously criminalize the alleged conduct” at issue and that
he “lacked fair notice that the alleged conduct would be
subsumed by § 1519.” Def.’s Mem., ECF No. 27-1 at 10.
Mr. Saffarinia makes three primary arguments. First, the
“pertinent matter”—OGE’s and HUD’s review of his OGE Forms 278—
falls outside of the purview of § 1519 because OGE’s and HUD’s
“consideration” of the forms is not an “investigation . . . of
any matter within the jurisdiction of any” federal department or
agency. Id. at 23. In Mr. Saffarinia’s view, his actions did not
impede, obstruct, or influence an investigation by OGE because:
(1) OGE did not review his forms, id. at 25; and (2) the United
States Department of Justice (“DOJ”) and a non-HUD Office of the
F. Supp. 2d 9, 17 (D.D.C. 2012). Section 1001, in relevant part,
provides:
(a) 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 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.
18 U.S.C. § 1001(a) (emphasis added).
49
Inspector General never initiated a formal investigation based
on his OGE Forms 278, id. at 26. Next, OGE’s and HUD’s
“consideration” of those forms does not qualify as the “proper
administration of any matter within the jurisdiction of any”
federal department or agency because the term “matter” is
limited to “adversarial or adjudicative proceedings.” Id. at 27.
Finally, the text of § 1519 is ambiguous as to whether an
agency’s review of personnel forms can form the basis of the
obstruction counts, and such ambiguity should be resolved in his
favor under the rule of lenity. Id. at 30-34.
The government disagrees, arguing that: (1) Mr. Saffarinia
urges this Court to “narrow artificially the scope of the
statutory language [in § 1519] in a way that Congress did not,”
Gov’t’s Opp’n, ECF No. 31 at 14; (2) the legislative history
supports a broad interpretation § 1519 that covers
Mr. Saffarinia’s acts, id. at 14-15, and several courts have
applied § 1519 in cases involving reporting requirements as part
of a federal agency’s administrative functions, id. at 15-16;
(3) § 1519 does not require an existing investigation and a
defendant engages in obstructive conduct in the absence of an
investigation, id. at 16-18; (4) case law and the statutory text
make clear that receipt and review by HUD and OGE of the forms
constitutes the proper administration of a matter within their
jurisdiction, id. at 19-20; and (5) the rule of lenity does not
50
apply in this case because “there is no ambiguity in the plain
text of the statute,” id. at 23. The Court will address, in
turn, each of these arguments.
a. The Plain Language of 18 U.S.C. § 1519
The Court begins its analysis with the plain language of
the statute. United States v. Cordova, 806 F.3d 1085, 1099 (D.C.
Cir. 2015) (“In determining the ‘plainness or ambiguity of
statutory language’ we refer to ‘the language itself, the
specific context in which that language is used, and the broader
context of the statute as a whole.’” (quoting United States v.
Wilson, 290 F.3d 347, 353 (D.C. Cir. 2002))). The Court’s task
here is to “first ‘determine whether the language at issue has a
plain and unambiguous meaning with regard to the particular
dispute in the case.’” United States v. Villanueva-Sotelo, 515
F.3d 1234, 1237 (D.C. Cir. 2008) (quoting Robinson v. Shell Oil
Co., 519 U.S. 337, 340 (1997)). If so, then the “inquiry ends
and [the Court must] apply the statute’s plain language.” Id.
If, however, the Court “find[s] the statutory language
ambiguous, [the Court must] look beyond the text for other
indicia of congressional intent.” Id.
The rule of lenity “teach[es] that ambiguities about the
breadth of a criminal statute should be resolved in the
defendant’s favor.” United States v. Davis, 139 S. Ct. 2319,
2333 (2019). “But to invoke the rule of lenity, a court must
51
conclude that ‘there is a grievous ambiguity or uncertainty in
the statute.’” United States v. Burwell, 690 F.3d 500, 515 (D.C.
Cir. 2012) (quoting Muscarello v. United States, 524 U.S. 125,
139 (1998)). “The simple existence of some statutory ambiguity,
however, is not sufficient to warrant application of [the] rule
[of lenity], for most statutes are ambiguous to some degree.”
Muscarello, 524 U.S. at 138 (emphasis added).
The Court is not persuaded by Mr. Saffarinia’s arguments
because his alleged obstructive conduct of submitting his false
OGE Forms 278 to the relevant federal agencies is covered under
the statute. See 18 U.S.C. § 1519. Indeed, the Supreme Court has
held that § 1519 “covers conduct intended to impede any federal
investigation or proceeding, including one not even on the verge
of commencement.” Yates v. United States, 135 S. Ct. 1074, 1087
(2015) (emphasis added); see also United States v. Gray, 642
F.3d 371, 379 (2d Cir. 2011) (“[Section] 1519 does not require
the existence or likelihood of a federal investigation.”). “By
the plain terms of § 1519, knowledge of a pending federal
investigation or proceeding is not an element of the obstruction
crime.” Gray, 642 F.3d at 378. And the Third Circuit has
explained that “[t]he text of § 1519 requires only proof that
[the defendant] knowingly falsified documents and did so with
the intent to ‘impede, obstruct, or influence the investigation
or proper administration of any matter’ that happens to be
52
within federal jurisdiction.” United States v. Moyer, 674 F.3d
192, 209 (3d Cir. 2012). The Court rejects Mr. Saffarinia’s
argument that he did not act “‘in contemplation of’ a true
investigation” by HUD and OGE, Def.’s Mem., ECF No. 27-1 at 26,
because it goes against the weight of the authority.
Next, Mr. Saffarinia’s argument—that HUD’s and OGE’s
review of his OGE Forms 278 does not qualify as an
“investigation” or the “proper administration of a matter within
the jurisdiction of an agency or department,” Def.’s Mem., ECF
No. 27-1 at 24-30—is unavailing. While it is true that § 1519
does not define the word “investigation” or the phrase “proper
administration of any matter,” id. at 31, “Congress is presumed
to use words in the common, ordinary meaning absent contrary
indication,” United States v. Hite, 769 F.3d 1154, 1161 (D.C.
Cir. 2014) (relying on Black’s Law Dictionary definitions). With
respect to the term “investigation,” Mr. Saffarinia asserts that
HUD’s and OGE’s consideration of his OGE Forms 278 does not meet
the “threshold” as defined in Black’s Law Dictionary: “An
‘investigation’ is the ‘activity of trying to find out the truth
about something, such as a crime, accident, or historical
issue.’” Def.’s Mem., ECF No. 27-1 at 24 (quoting Black’s Law
Dictionary 953 (10th ed. 2014)).
The term “investigation” has a broad meaning. It has been
commonly defined as:
53
The activity of trying to find out the truth
about something, such as a crime, accident, or
historical issue; esp[ecially], either an
authoritative inquiry into certain facts, as
by a legislative committee, or a systematic
examination of some intellectual problem or
empirical question, as by mathematical
treatment or use of the scientific method.
Investigation, Black’s Law Dictionary (11th ed. 2019). 11 The word
“especially” indicates that the list of examples in the
definition is non-exhaustive. See In re Foothills Texas, Inc.,
408 B.R. 573, 579 n.18 (Bankr. D. Del. 2009) (“The use of the
word especially makes the list of examples illustrative rather
than exclusive.”). Here, Mr. Saffarinia’s reliance on one of the
examples in the definition of investigation—that an
“investigation” involves “authoritative inquiry into certain
facts,” Def.’s Mem., ECF No. 24 at 24 (emphasis added)—undercuts
his argument that the agency’s “limited review” is not akin to
an investigation, see id. Like the term “investigation,” the
term “inquiry” has been broadly defined. See Inquiry, Black’s
Law Dictionary (11th ed. 2019) (defining “inquiry” as “[a]
question someone asks to elicit information”). And the term
“review” means “[c]onsideration, inspection, or reexamination of
11The word “investigation” has also been defined as “[t]he
action or process of investigating a person or thing (in various
senses of the verb); examination; inquiry; research; spec.
scientific examination, academic research; formal inquiry into a
crime, allegation, someone’s conduct, etc.” Investigation,
Oxford English Dictionary (3d ed. 2019).
54
a subject or thing.” Review, Black’s Law Dictionary (11th ed.
2019). It, too, has a broad meaning. See id.
It follows that OGE could have conducted an authoritative
inquiry into certain facts. See Def.’s Mem., ECF No. 24 at 24.
It is undisputed that OGE has the authority to “monitor[] and
investigat[e] compliance with the public financial disclosure
requirements,” 5 U.S.C. app. § 402(b)(3), and “conduct
investigations” arising from that compliance or noncompliance,
id. § 402(f)(1)(B)(i). Acknowledging that HUD’s designated
agency ethics official or the Secretary “must ensure the [OGE
Forms 278] are ‘reviewed’ within sixty days after they are
filed,” Def.’s Mem., ECF No. 27-1 at 24 (citing 5. U.S.C. app.
§ 106(a)(1); 5 C.F.R. § 2634.605(a)), Mr. Saffarinia contends
that the agency’s reviewer may request additional information
from the federal employee, but the reviewer lacks the authority
to conduct an investigation, such as issuing “subpoenas,
tak[ing] interviews, compel[ling] testimony, or otherwise
gather[ing] information through other means,” id. The Court
agrees with the government that Mr. Saffarinia’s attempt to draw
a distinction between an agency’s “review” and a “formal
investigation” is inconsequential. See Def.’s Mem., ECF No. 27-1
at 24; see also Gov’t’s Opp’n, ECF No. 31 at 16 (arguing that
“[t]he defendant’s argument is a distinction without a
difference”). The ordinary meaning of the word “investigation”
55
supports the government’s interpretation that OGE’s and HUD’s
review or consideration of his OGE Forms 278 constitutes an
investigation within the meaning of § 1519. See Gov’t’s Opp’n,
ECF No. 31 at 16.
Mr. Saffarinia contends that OGE did not review his OGE
Forms 278. See Def.’s Mem., ECF No. 27-1 at 25-26. The
government disputes Mr. Saffarinia’s contention. Gov’t’s Opp’n,
ECF No. 31 at 19. It is possible that HUD could have referred to
OGE Mr. Saffarinia’s OGE Forms 278 following HUD’s initial
review of those forms. See 5 C.F.R. § 2638.501 (agency has the
“primary responsibility to ensure compliance with the ethics law
and regulations”); see also 5 U.S.C. § app. 4 § 402(b)(5) (OGE
Director’s responsibilities include “monitoring and
investigating individual and agency compliance with any
additional financial reporting and internal review requirements
established by law for the executive branch”). Indeed, “the
results of the agency’s investigations and its own conclusions
about whether ethics violations actually occurred are not the
final word if the OGE finds that more needs to be done.” Defs.
of Wildlife, 314 F. Supp. 2d at 19. “[T]he OGE Director may
initiate an investigation to determine whether a violation has
occurred and ‘[o]rdinarily a determination to proceed will be
based upon an agency report of investigation[.]’” Id. at 20
(citation omitted). And Mr. Saffarinia’s assertion—that HUD had
56
to refer any investigation to the Integrity Committee for the
Council of the Inspector General on Integrity and Efficiency for
an investigation by another inspector general, see Def.’s Mem.,
ECF No. 27-1 at 26—does not eliminate the possibility that HUD
either conducted a review of his forms in the first instance or
reviewed those forms to refer him to the appropriate officials,
see 5 U.S.C. § app. 3 § 11(d)(5) (stating that “allegation[s] of
wrongdoing [against a staff member of the agency’s Office of
Inspector General] shall be reviewed and referred to [DOJ] or
the Office of Special Counsel for investigation, or to the
Integrity Committee for review”). The Court therefore finds that
the Indictment sufficiently alleges the review of his OGE Forms
278 falls within the meaning of § 1519.
As to the issue of whether the review of Mr. Saffarinia’s
OGE Forms 278 qualifies as the “proper administration of any
matter with the jurisdiction” of a federal agency or department,
Mr. Saffarinia narrowly interprets that phrase to mean that the
“‘matter’ whose proper administration a defendant intends to
impede, obstruct, or influence is limited to adversarial or
adjudicative proceedings.” Def.’s Mem., ECF No. 27-1 at 27
(emphasis added). The government responds that Mr. Saffarinia’s
interpretation is unsupported because Congress placed no such
limits in § 1519’s language. Gov’t’s Opp’n, ECF No. 31 at 19-20.
57
To recap, a defendant violates § 1519 when he “knowingly .
. . conceals, covers up, falsifies, or makes a false entry in
any record, document, or tangible object” and the defendant does
so “with the intent to impede, obstruct, or influence the
investigation or proper administration of any matter within the
jurisdiction of any department or agency of the United States or
any case filed under title 11, or in relation to or
contemplation of any such matter or case.” 18 U.S.C. § 1519
(emphasis added). The term “matter” commonly means “[a] subject
under consideration, esp[ecially] involving a dispute or
litigation.” Matter, Black’s Law Dictionary (11th ed. 2019); see
also Matter, Oxford English Dictionary (3d ed. 1991) (defining
“matter” as “[a] subject of contention, dispute, litigation,
etc.”).
Relying on the example provided in Black’s Law Dictionary,
Mr. Saffarinia argues that the Court should narrowly interpret
the word “matter” in § 1519. See Def.’s Mem., ECF No. 27-1 at 28
(citing Black’s Law Dictionary 1126 (10th ed. 2014)); see also
Def.’s Reply, ECF No. 38 at 24 (“The final clause of that
definition . . . therefore is consistent with Mr. Saffarinia’s
proposed construction limiting § 1519’s ‘any matter’ clause to a
specific adjudicative or adversarial adjudication.”). As
previously noted, however, Mr. Saffarinia ignores that the word
“especially” after a “subject under consideration” in the
58
definition of “matter,” which provides a non-exhaustive list of
examples. See Def.’s Mem., ECF No. 27-1 at 28. The government
argues—and the Court agrees—that “[t]he receipt and review of
[Mr. Saffarinia’s] Forms 278 clearly constitute ‘a subject under
consideration’ by HUD and OGE” given the common meaning of the
word “matter.” Gov’t’s Opp’n, ECF No. 31 at 21.
Mr. Saffarinia’s next argument—that the word “matter”
should be limited to adversarial proceedings based on § 1519’s
placement of the word “matter” between “a prohibition on
obstructing the investigation of any matter and a prohibition on
obstructing any case filed under the bankruptcy code,” Def.’s
Reply, ECF No. 38 at 23—is unavailing. In Mr. Saffarinia’s view,
the application of noscitur a sociis, a canon of statutory
construction, should result in the phrase “proper administration
of any matter” being “cabined to specific adversarial
adjudicative proceedings, such as formal administrative
proceedings before an agency.” Def.’s Mem., ECF No. 27-1 at 28.
Mr. Saffarinia contends that the words surrounding “proper
administration of any matter”—“[1] investigation . . . [2] any
case filed under title 11 [Bankruptcy Code],” 18 U.S.C. § 1519—
should be “cabin[ed]” to only those proceedings. Def.’s Mem.,
ECF No. 27-1 at 27 (quoting Yates, 135 S. Ct. at 1085).
Mr. Saffarinia relies on the title of § 1519 that includes
“Federal investigations” and “bankruptcy” to support his
59
position that “matter” relates to “efforts to interfere with
specific investigative or adjudicative proceeding involving a
court, an agency, or Congress.” Id. at 28 (footnote omitted). In
response, the government contends that Mr. Saffarinia’s
arguments are an attempt to introduce ambiguity into § 1519’s
plain language, Gov’t’s Opp’n, ECF No. 31 at 20, and the
government argues that “[t]he receipt and review of
[Mr. Saffarinia’s] Forms 278 clearly constitute ‘a subject under
consideration’ by HUD and OGE,” id. at 21.
In Latin, noscitur a sociis means “a word is known by the
company it keeps.” Yates, 135 S. Ct. at 1085. The Supreme Court
has recognized that “[t]o choose between [the] competing
definitions, [the Court should] look to the context in which the
words appear.” McDonnell v. United States, 136 S. Ct. 2355, 2368
(2016). Courts employ “the familiar interpretive canon noscitur
a sociis” to “avoid the giving of unintended breadth to the Acts
of Congress.” Id. (citation omitted). In applying this canon to
a statute that made it unlawful to “make a harangue or oration”
in the Supreme Court’s building and grounds, the D.C. Circuit
explained that “we are interpreting a statute, not restating a
dictionary. Our search here is not for every facet of ‘harangue’
or ‘oration,’ but their meaning within the statute at issue.”
United States v. Bronstein, 849 F.3d 1101, 1108 (D.C. Cir.
2017).
60
In this case, the parties agree with the main clause in the
definition of “matter,” as defined by Black’s Law Dictionary: “a
subject under consideration.” E.g., Matter, Black’s Law
Dictionary (11th ed. 2019); Def.’s Mem., ECF No. 27-1 at 28
(quoting Black’s Law Dictionary 1126 (10th ed. 2014)); Gov’t’s
Opp’n, ECF No. 31 at 21 (same). The Court will assume, however,
that Mr. Saffarinia’s reliance on the example of “matter”—
“involving a dispute or litigation; case”—is the narrower
definition that competes with the broader definition of “subject
under consideration.” See Def.’s Mem., ECF No. 27-1 at 28. Given
the broad meaning of the word “matter,” however, the use of
“matter” in § 1519 suggests that an individual is criminally
liable if he knowingly falsifies any record, document, or
tangible object with the intent to impede, obstruct, or
influence the proper administration of any matter within the
jurisdiction of any federal department or agency. See 18 U.S.C.
§ 1519.
To support its position, the government relies on the
Eleventh Circuit’s decision in United States v. Hunt, 526 F.3d
739, 743 (11th Cir. 2008). Gov’t’s Opp’n, ECF No. 31 at 15.
There, a jury convicted the defendant for knowingly making a
false statement in a police incident report with the intent to
impede, obstruct, or influence an investigation by the Federal
Bureau of Investigation (“FBI”), in violation of § 1519. Hunt,
61
526 F.3d at 741. The Eleventh Circuit held that § 1519 was not
vague and “[b]y its plain text, the statute placed [the
defendant] on notice his conduct was unlawful” because “[a]
person of ordinary intelligence would understand a police report
to be a ‘record’ or ‘document,’ and would also read the language
‘any matter within the jurisdiction of [a] department . . . of
the United States’ to include an FBI investigation.” Id. at 743.
Here, the plain text of § 1519 put Mr. Saffarinia on notice that
his alleged obstructive conduct was unlawful. See id.
Mr. Saffarinia argues that Hunt is distinguishable because
the Eleventh Circuit did not “consider[] whether the statutory
meaning of ‘proper administration of any matter’ was limited to
specific adjudicative or adversarial proceedings under the
applicable canons of statutory construction.” Def.’s Reply, ECF
No. 38 at 25. But Mr. Saffarinia does not dispute that the
Eleventh Circuit has expressly recognized that the plain
language in § 1519 is “broad.” See Hunt, 526 F.3d at 744. The
government correctly points out that the Eleventh Circuit noted
that “the statute’s text ‘bears no hint of any limiting
principle cabining § 1519 to [the] corporate fraud cases’ that
prompted its passage.” Gov’t’s Opp’n, ECF No. 31 at 15 (quoting
Hunt, 526 F.3d at 744). Indeed, the Eleventh Circuit explained
that “Congress is free to pass laws with language covering areas
well beyond the particular crisis du jour that initially
62
prompted legislative action.” Hunt, 526 F.3d at 744 (“When the
text of a statute is plain, . . . [the Court] need not concern
[itself] with contrary intent or purpose revealed by the
legislative history.”). 12
Mr. Saffarinia correctly notes that Hunt did not address
the issue of whether the phrase “proper administration of any
matter” was limited to adjudicative or adversarial proceedings.
See Def.’s Reply, ECF No. 38 at 25. And Mr. Saffarinia argues
that “Congress in § 1519 defined a crime of much more narrow
scope than in § 1001” because the “language in § 1001—which
unlike § 1519 is not cabined by any surrounding text—reaches
12Mr. Saffarinia relies on Marinello v. United States,
138 S. Ct. 1101, 1107, 1110 (2018), for the proposition that the
falsification of public disclosure forms should not constitute
obstruction of justice under 18. U.S.C. § 1519 because the
Supreme Court in Marinello rejected the “notion that the
‘routine processing’ of [tax returns] ‘carried out in the
ordinary course’ can be the types of ‘matters’ that fall within
the scope of the statute.” Def.’s Mem., ECF No. 27-1 at 32. In
Marinello, the Supreme Court held that “to secure a conviction
under [26 U.S.C. § 7212(a)’s] Omnibus Clause, the Government
must show (among other things) that there is a ‘nexus’ between
the defendant’s conduct and a particular administrative
proceeding, such as an investigation, an audit, or other
targeted administrative action. That nexus requires a
‘relationship in time, causation, or logic with the
[administrative] proceeding.’” 138 S. Ct. at 1109 (citation
omitted). Marinello is inapposite. See United States v.
Luminaire Envtl. & Techs., Inc., 358 F. Supp. 3d 829, 833–34 (D.
Minn. 2018) (denying defendant’s argument that Marinello
warrants dismissal of § 1519 charges because “[t]he language of
the statute in Marinello, 26 U.S.C. § 7212(a), employs much
broader language than that of 18 U.S.C. § 1519”). “Marinello
simply does not plow new ground.” Id. at 834.
63
every conceivable aspect of government operations.” Def.’s Mem.,
ECF No. 27-1 at 29. By not responding to this argument, see
Gov’t’s Opp’n, ECF No. 31 at 13-26, the government has conceded
it, see Def.’s Reply, ECF No. 38 at 24. Assuming, without
deciding, that there exists some ambiguity in § 1519 with
respect to the phrase “proper administration of any matter,” see
Muscarello, 524 U.S. at 138, the Court will look beyond the
statutory language, see Villanueva-Sotelo, 515 F.3d at 1237.
b. Legislative History of 18 U.S.C. § 1519
The Court next considers the legislative history to discern
the meaning of “proper administration of any matter” in § 1519.
See id. Congress enacted § 1519 “as part of the Sarbanes–Oxley
Act, which was targeted at corporate fraud and executive
malfeasance.” Hunt, 526 F.3d at 744. The report from the Senate
Judiciary Committee, in pertinent part, provides:
Section 1519 is meant to apply broadly to any
acts to destroy or fabricate physical evidence
so long as they are done with the intent to
obstruct, impede or influence the
investigation or proper administration of any
matter, and such matter is within the
jurisdiction of an agency of the United
States, or such acts done either in relation
to or in contemplation of such a matter or
investigation. This statute is specifically
meant not to include any technical
requirement, which some courts have read into
other obstruction of justice statutes, to tie
the obstructive conduct to a pending or
imminent proceeding or matter. It is also
sufficient that the act is done “in
contemplation” of or in relation to a matter
64
or investigation. It is also meant to do away
with the distinctions, which some courts have
read into obstruction statutes, between court
proceedings, investigations, regulatory or
administrative proceedings (whether formal or
not), and less formal government inquiries,
regardless of their title. Destroying or
falsifying documents to obstruct any of these
types of matters or investigations, which in
fact are proved to be within the jurisdiction
of any federal agency are covered by this
statute.
S. Rep. No. 107-146, 14-15 (2002) (footnote omitted). In the
“Additional Views” section, eight U.S. Senators “clarif[ied]
[their] intent and understanding with regard to specific
provisions of [the “Corporate and Criminal Fraud Accountability
Act of 2002,”] S. 2010,” including § 1519. Id. at 27. Those
senators explained:
We recognize that section 1519 overlaps with
a number of existing obstruction of justice
statutes, but we also believe it captures a
small category of criminal acts which are not
currently covered under existing laws–for
example, acts of destruction committed by an
individual acting alone and with the intent to
obstruct a future criminal investigation.
We have voiced our concern that section 1519,
and in particular, the phrase “or proper
administration of any matter within the
jurisdiction of any department or agency of
the United States” could be interpreted more
broadly than we intend. In our view, section
1519 should be used to prosecute only those
individuals who destroy evidence with the
specific intent to impede or obstruct a
pending or future criminal investigation, a
formal administrative proceeding, or
bankruptcy case. It should not cover the
destruction of documents in the ordinary
65
course of business, even where the individual
may have reason to believe that the documents
may tangentially relate to some future matter
within the conceivable jurisdiction of an arm
of the federal bureaucracy.
Id.
Here, it is undisputed that the Senate Judiciary
Committee’s report “asserts that § 1519 reaches ‘less formal
government inquiries’ as well as ‘destroying, altering, or
falsifying documents to obstruct any government function.’”
Def.’s Mem., ECF No. 27-1 at 31 (quoting S. Rep. No. 107-146, at
15). Nonetheless, Mr. Saffarinia argues that the legislative
history demonstrates there is ambiguity in § 1519 due to the
submission of the “Additional Views,” id. (citing S. Rep. No.
107-146, at 26-31), even though those senators agreed that
§ 1519 “captures a small category of criminal acts which are not
currently covered under existing laws,” id. (quoting S. Rep. No.
107-146, at 27). Mr. Saffarinia emphasizes the view of the eight
senators that Section 1519 “should be used to prosecute only
those individuals who destroy evidence with the specific intent
to impede or obstruct a pending or future criminal
investigation, a formal administrative proceeding, or bankruptcy
case.” Id. (quoting S. Rep. No. 107-146, at 27).
The Court is not persuaded by Mr. Saffarinia’s arguments.
The government contends—and the Court agrees—that “Congress
referred to the ‘proper administration of any matter’ and
66
supplied a legislative history that indicated a contemplation of
the broad meaning of that phrase, and its adoption.” Gov’t’s
Opp’n, ECF No. 31 at 22. Mr. Saffarinia’s proposed construction
of § 1519 is inconsistent with the Senate Judiciary Committee’s
report because the report makes clear that Section 1519 is
“meant to do away with the distinctions, which some courts have
read into obstruction statutes, between court proceedings,
investigations, regulatory or administrative proceedings
(whether formal or not), and less formal government inquiries,
regardless of their title.” S. Rep. No. 107-146, 14-15 (emphasis
added). In other words, the Senate Judiciary Committee’s report
indicates that Section 1519 does not draw a distinction between
a formal proceeding and a less formal government inquiry. See
id.
Mr. Saffarinia’s narrow interpretation of § 1519 is
supported, in part, by the “Additional Views” of the eight
senators. See S. Rep. 107-146, at 27. But a defendant “cannot
avoid the result compelled by the plain language by selectively
citing legislative history.” Hunt, 526 F.3d at 744. The Supreme
Court has accorded weight to sponsoring legislators’ “Additional
Views.” See Garrett v. United States, 471 U.S. 773, 783-85
(1985). None of the eight senators were the original co-sponsors
of S. 2010. Compare S. Rep. 107-146, at 2 (stating that Senator
Patrick Leahy, with Senators Daschle, Durbin, and Harkin were
67
the original co-sponsors), with id. at 26 (“Additional Views of
Senators Hatch, Thurmond, Grassley, Kyl, DeWine, Sessions,
Brownback, and McConnell”). Furthermore, “[i]t is the business
of Congress to sum up its own debates in its legislation, and
once it enacts a statute [the Court] do[es] not inquire what the
legislature meant; [the Court] ask[s] only what the statute
means.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1631 (2018)
(citation and internal quotation marks omitted).
Having carefully reviewed the plain language of § 1519, the
contextual meaning of the word “matter,” and the legislative
history, the Court declines to adopt Mr. Saffarinia’s
interpretation of “proper administration of any matter” in
§ 1519 even when the phrase is interpreted using the
“fundamental canon of statutory construction that the words of a
statute must be read in their context and with a view to their
place in the overall statutory scheme.” Food & Drug Admin. v.
Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)
(citation omitted). The Court concludes that the statutory text
is broad enough to cover Mr. Saffarinia’s alleged obstructive
conduct, see 18 U.S.C. § 1519, and “imposing a requirement that
the matter develop into a formal investigation ignores the plain
meaning of the statute,” United States v. Kun Yun Jho, 465 F.
Supp. 2d 618, 636 (E.D. Tex. 2006) (emphasis added), rev’d on
other grounds, 534 F.3d 398 (5th Cir. 2008). Because the Court
68
is not persuaded that Mr. Saffarinia’s proposed construction of
§ 1519 renders the statute grievously ambiguous, see Def.’s
Mem., ECF No. 27-1 at 23-30, and the plain language of § 1519
supports a broad interpretation of the words “investigation” and
“matter,” the Court therefore finds that the rule of lenity is
inapplicable in this case, see Burwell, 690 F.3d at 515.
Accordingly, the Court DENIES Mr. Saffarinia’s motion to dismiss
with respect to Counts V through VII.
3. Whether the Grand Jury Was Improperly Charged
Mr. Saffarinia seeks dismissal of the Indictment in its
entirety on the ground that there is a “likelihood that the
grand jury proceedings were infected by legal error.” Def.’s
Mem., ECF No. 27-1 at 34 (citing Fed. R. Crim. P. 12(b)). In the
alternative, Mr. Saffarinia requests that “the Court order the
government to produce the grand jury minutes so that the
adequacy of the government’s instruction can be assessed.” Id.
at 35. The government disagrees, arguing that Mr. Saffarinia’s
“incorrect assumption that the grand jury received improper
instructions is pure conjecture and is insufficient to warrant
dismissal of the [I]ndictment.” Gov’t’s Opp’n, ECF No. 31 at 27.
A criminal defendant may move to dismiss an indictment
prior to trial based on “an error in the grand-jury proceeding,”
Fed. R. Crim. P. 12(b)(3)(A)(v), but the defendant seeking such
relief “faces a very heavy burden,” United States v. Trie, 23 F.
69
Supp. 2d 55, 61 (D.D.C. 1998). Grand jury proceedings are
“accorded a presumption of regularity, which generally may be
dispelled only upon particularized proof of irregularities in
the grand jury process.” United States v. Mechanik, 475 U.S. 66,
75 (1986).
“[A]s a general matter, a district court may not dismiss an
indictment for errors in grand jury proceedings unless such
errors prejudiced the defendants.” Bank of Nova Scotia v. United
States, 487 U.S. 250, 254 (1988). In other words, “dismissal of
the indictment is appropriate only if it is established that the
violation substantially influenced the grand jury’s decision to
indict, or if there is grave doubt that the decision to indict
was free from the substantial influence of such violations.” Id.
at 256 (citation and internal quotation marks omitted). “A great
deal more than mere speculation that a grand jury has been
improperly instructed is required to satisfy this standard.”
Trie, 23 F. Supp. 2d at 61.
Here, dismissal of the entire Indictment is unwarranted.
Because the Court has already dismissed without prejudice Count
I, the Court will consider Mr. Saffarinia’s arguments as to
Counts V through VII. Mr. Saffarinia contends that the grand
jury was likely not properly charged with the “specific ‘matter’
or ‘investigation’ at issue” for the obstruction charges under
§ 1519, which “underscores that the instructions concerning this
70
element may have been defective . . . .” Def.’s Mem., ECF No.
27-1 at 35 (emphasis added). Mr. Saffarinia argues that “the
government likely put before the grand jury the same faulty
argument concerning the breadth of § 1519 that it now advances
in opposing Mr. Saffarinia’s motion to dismiss.” Def.’s Reply,
ECF No. 38 at 30-31. The government responds that the Indictment
“contains sufficient and proper allegations regarding the
essential elements,” and Mr. Saffarinia’s “incorrect assumption”
is “pure conjecture.” Gov’t’s Opp’n, ECF No. 31 at 27.
The Court agrees with the government that Counts V through
VII sufficiently allege the essential elements. See Costello v.
United States, 350 U.S. 359, 363 (1956) (“[A]n indictment
returned by a legally constituted and unbiased grand jury . . .
if valid on its face, is sufficient to call for trial on the
merits.”). Mr. Saffarinia does not explain how any errors, if
proven, would not have been harmless, see United States v.
Akinyoyenu, 199 F. Supp. 3d 34, 36 (D.D.C. 2016) (noting that
“the age-old rule of harmless error applies” in the context of
errors in the grand-jury proceeding), and Mr. Saffarinia fails
to demonstrate that he was prejudiced by the alleged errors, see
Bank of Nova Scotia, 487 U.S. at 254. The Court therefore finds
that none of the alleged deficiencies “may have had ‘substantial
influence’ on the outcome of the proceeding,” id. at 256
(quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)).
71
Mr. Saffarinia fails to demonstrate a “particularized need”
for the grand jury minutes. United States v. Espy, 23 F. Supp.
2d 1, 10 (D.D.C. 1998). Under Federal Rule of Criminal Procedure
6(e)(3)(E)(ii), the Court may authorize disclosure of grand jury
materials to a defendant “who shows that a ground may exist to
dismiss the indictment because of a matter that occurred before
the grand jury. Fed. R. Crim. P. 6(e)(3)(E)(ii); see also United
States v. Naegele, 474 F. Supp. 2d 9, 10 (D.D.C. 2007). The
defendant must “demonstrate[ ] a ‘particularized need’ or
‘compelling necessity’ for the [material].” United States v.
Wilkerson, 656 F. Supp. 2d 22, 34 (D.D.C. 2009) (quoting Smith
v. United States, 423 U.S. 1303, 1304 (1975)). Mr. Saffarinia
has failed to do so.
Mr. Saffarinia’s speculation that the government may have
improperly instructed the grand jury on the specific
“investigation” and “matter” does not warrant disclosure of the
grand jury minutes. See Def.’s Mem., ECF No. 27-1 at 35; see
also Trie, 23 F. Supp. 2d at 62 (“But the mere suspicion that
the grand jury may not have been properly instructed with
respect to the legal definition of contribution is insufficient
to establish that [the defendant] is entitled either to
dismissal of the indictment or to disclosure of grand jury
materials.”). Neither does mere suspicion warrant the Court’s in
camera review of the charge. See Def.’s Reply, ECF No. 38 at 31.
72
Accordingly, the Court DENIES Mr. Saffarinia’s motion to
dismiss the Indictment in its entirety for an alleged error in
the grand jury proceedings, or in the alternative, for
disclosure of the grand jury minutes and the Court’s in camera
review of the charge.
B. Motion for Brady Material
Mr. Saffarinia seeks an Order directing the government to:
(1) identify the Brady material in its voluminous production;
and (2) disclose whether it possesses certain categories of
information and whether such information has been reviewed for
Brady material. Def.’s Brady Mem., ECF No. 28-1 at 6, 11.
Mr. Saffarinia requests that the government identify any known
Brady material “based on its existing knowledge of the documents
collected during the course of its three-year investigation.”
Def.’s Reply, ECF No. 37 at 2. The government opposes
Mr. Saffarinia’s Brady motion, arguing that “there is no support
for such a request, nor is there justification to expand the
government’s discovery obligations beyond what this Court has
already articulated in its Standing [Brady] Order.” Gov’t’s
Opp’n, ECF No. 29 at 5. For the reasons articulated below, the
government must specifically identify any known Brady material
in its production.
73
Before turning to the parties’ arguments, the Court will
summarize the government’s productions and Mr. Saffarinia’s
Brady requests.
1. The Government’s Productions
On June 28, 2019, this Court issued its Standing Brady
Order directing the government to produce to Mr. Saffarinia in a
timely manner any evidence in its possession that is favorable
to Mr. Saffarinia and material either to his guilt or
punishment. Order, ECF No. 11 at 2. The Court then granted the
parties’ consent motion for a Protective Order governing
discovery pursuant to Federal Rule of Criminal Procedure 16(d).
See Min. Order of June 28, 2019. Between June and August 2019,
the government made five productions of documents to
Mr. Saffarinia, which included, among other things, nearly all
of the FBI’s investigative case file, interview reports (i.e.
FD-302s), agent notes, and witnesses’ statements pursuant to the
Jencks Act, 18 U.S.C. § 3500. See, e.g., Saffarinia, 2019 WL
5086913, at *3-*5; Gov’t’s Opp’n, ECF No. 29 at 2. A large
portion of the electronic data consists of electronic
communications, including 264,800 e-mails and over 223,000
documents from the FBI’s case file, that span roughly a four-
year period. Def.’s Brady Mem., ECF No. 28-1 at 2. And the
government’s production includes hard drives from two different
computers allegedly owned by Person B, which contain 394
74
gigabytes of data. Id. 13 The discovery here, consisting of more
than one million records and 3.5 million pages of documents, is
massive. Saffarinia, 2019 WL 5086913, at *4.
The government produced the documents to Mr. Saffarinia
with production logs, Bates-stamping, and metadata in an
electronic and searchable format that is accessible through
“Relativity,” an electronic database. See Def.’s Brady Mem., ECF
No. 28-1 at 2; see also Gov’t’s Opp’n, ECF No. 29 at 2. The
government included a cover letter with each production and “a
basic, one to two page chart” summarizing the Bates-stamped
numbers covered in each production. Gov’t’s Opp’n, ECF No. 29 at
2. And the government represents that it explained its theory of
the case to Mr. Saffarinia and defense counsel at two reverse
proffer sessions. Id.
According to the government, it “remains aware of its
obligations under applicable case law, and cognizant of the
Court’s Standing [Brady] Order on Discovery, and will continue
to comply with these obligations.” Gov’t’s Opp’n, ECF No. 29 at
13Computers and smartphones can store warehouses of information.
See, e.g., Riley v. California, 573 U.S. 373, 394 (2014) (“The
current top-selling smart phone has a standard capacity of 16
gigabytes (and is available with up to 64 gigabytes). Sixteen
gigabytes translates to millions of pages of text, thousands of
pictures, or hundreds of videos.”); United States v. Cotterman,
709 F.3d 952, 964 (9th Cir. 2013) (“The average 400–gigabyte
laptop hard drive can store over 200 million pages—the
equivalent of five floors of a typical academic library.”).
75
11. The government maintains that it “has assisted and will
continue to assist defense counsel with discovery-related
issues, but it is not the government’s obligation to also
independently comb through the discovery to identify materials
that [Mr. Saffarinia] may find valuable in building his case.”
Id. The government notes that Mr. Saffarinia can conduct
searches for certain information using the Relativity platform,
and those searches will yield the requested information and
documents. Id. at 4-5; see also id at 2 n.1. The government
points out that “[t]he electronic indices containing the
metadata for the entire electronic production can be searched
and sorted by document type, e-mail senders and receivers, date,
and subject line, and can be keyword searched in either the
searchable, load-ready format, or in the [Microsoft] Excel
format, both of which have been provided to [Mr. Saffarinia].”
Id. at 8. The government highlights a “hot documents” binder
containing e-mails, forms, and records that it provided to
Mr. Saffarinia, which purportedly outlines the government’s
case. Id. at 7. And the government notes that the production
logs are “the loadable, electronic .dat files that contain all
of the metadata and underlying information.” Id. at 2 n.1.
Characterizing the government’s efforts as “simply dumping
millions of pages on Mr. Saffarinia along with barebones
production logs,” Mr. Saffarinia contends that “[n]owhere in the
76
metadata or production logs does the government designate
anything as Brady material, much less direct the defense to
locations where Brady might be found.” Def.’s Brady Mem., ECF
No. 28-1 at 2. Mr. Saffarinia does not dispute that the
government has turned over “electronic data totaling
approximately 3.5 million pages.” Id. Mr. Saffarinia, however,
takes issue with the government’s characterizations of its
productions. See id. at 2-3.
Mr. Saffarinia contends that the government’s production
logs are “skeletal” because those “logs only identify the agency
from which the documents originated—e.g., ‘Relativity Production
of documents from HUD—OIG’ or ‘FBI Case File’—the date produced,
and the beginning and ending Bates number.” Id. at 3.
Mr. Saffarinia points out that the “Relativity Production of
documents from HUD—OIG” has a “Bates range containing over two
million pages.” Id. After the government provided defense
counsel with “automatically populated metadata for each document
which includes information such as filepaths and filenames,”
Mr. Saffarinia acknowledges that the government exported the
metadata to Microsoft Excel spreadsheets, but the government
provided the spreadsheets to him after he requested “more
detailed production logs.” Id. Mr. Saffarinia notes that “those
spreadsheets are themselves voluminous, spanning nine separate
[E]xcel workbooks and collectively consisting of over 324
77
columns of data and 1,247,039 rows.” Id. With respect to the
“hot documents” binder of key documents which the government
referred to during a reverse proffer, Mr. Saffarinia points out
that the government provided the binder to him after five
requests for it. Id. Mr. Saffarinia argues that the government
has never represented that the binder includes any Brady
material. Id. at 4.
2. Mr. Saffarinia’s Brady Requests
Given the voluminous discovery in this case, Mr. Saffarinia
made specific requests to the government for Brady material on
June 26, 2019. Id.; see generally Letter from Justin Shur,
MoloLamken LLP, to Edward Sullivan, U.S. Dep’t of Justice (June
26, 2019), Def.’s Ex. 3, ECF No. 28-5 at 2-6. 14 On July 8, 2019,
the parties appeared before the Court for a status hearing, and
Mr. Saffarinia requested that the Court order the government to
specifically identify Brady information: “[T]o the extent that
there is Brady information that has been identified,
14Mr. Saffarinia requested: “agreements/deals with government
witnesses, payments to witnesses, criminal history of witnesses,
personnel files of testifying law enforcement agents or other
agents of the government; evidence of misconduct by government
witnesses, contradictory inconsistent statements, inconsistent
notes from prosecutors or agents, and expert reports
inconsistent with the government’s theory of the case.” Def.’s
Brady Mem., ECF No. 28-1 at 4. Mr. Saffarinia also requested
“all statements, interviews, and/or testimony, written or oral,
of certain government witnesses as well as the substance of
attorney proffers concerning the same.” Id.
78
[Mr. Saffarinia] just ask[s] that that be sort of specifically
identified within the volume of discovery that’s been produced.”
Status Hr’g Tr. (July 8, 2019), ECF No. 17 at 6. In response to
the Court’s question if the government had any problems with
Mr. Saffarinia’s Brady request, the government stated that
“[b]ecause it is a very voluminous production . . . I think I am
hesitant to say [we will] identify all the Brady by going
through 1.2 million documents.” Id. The government also stated
that “we will do our best to identify in 302 reports” and “we
have tried to identify exculpatory information with respect to
some of the interviews and inculpatory information.” Id. at 6-7.
According to Mr. Saffarinia, “the government has not identified
a single instance of exculpatory information from among the
302s.” Def.’s Reply, ECF No. 37 at 8.
On October 11, 2019, Mr. Saffarinia sent the government an
e-mail to follow up on his initial request for the government to
specifically identify Brady material, and the government
responded that it “has fully met its obligations.” Def.’s Brady
Mem., ECF No. 28-1 at 5. On October 15, 2019, Mr. Saffarinia
asked the government to: (1) identify the Bates numbers for any
notes or summaries of material, exculpatory information learned
from the attorney proffers for its witnesses; and (2) “to
clarify whether the government had no such materials or whether
the government possessed them but viewed them as non-Brady.” Id.
79
When asked by the government to provide case law supporting the
propositions that the material from the attorney proffers was
both admissible and discoverable, Mr. Saffarinia cited United
States v. Blankenship, No. 5:14-CR-00244, 2015 WL 3687864, at *7
(S.D. W. Va. June 12, 2015), in which the court found that
attorney proffers fall under Brady. Id. The government responded
that Blankenship was “anomalous and distinguishable,” and that
it had already provided Mr. Saffarinia with searchable indices
containing information regarding that topic. Def.’s Ex. 4, ECF
No. 28-6 at 2. Thereafter, the government confirmed in its
opposition brief that the “MOIs and 302s relating to attorney
proffers have already been produced” in the voluminous
discovery. Gov’t’s Opp’n, ECF No. 29 at 10.
3. The Use of Open-File Discovery
The Supreme Court has “recognize[d] that [the use of an
open file policy] may increase the efficiency and the fairness
of the criminal process,” Strickler, 527 U.S. at 283 n.23, but
the Supreme Court has “never held that the Constitution demands
an open file policy,” Kyles v. Whitley, 514 U.S. 419, 437
(1995). “[O]pen-file discovery does not relieve the government
of its Brady obligations.” United States v. Hsia, 24 F. Supp. 2d
14, 29 (D.D.C. 1998) (Friedman, J.); see also Smith v. Sec’y of
New Mexico Dep’t of Corr., 50 F.3d 801, 828 (10th Cir. 1995)
(“While an ‘open file’ policy may suffice to discharge the
80
prosecution’s Brady obligations in a particular case, it often
will not be dispositive of the issue.”).
Depending on the facts and circumstances of a case, “it
[may be] appropriate to require the government to identify the
Brady material in the discovery that has been produced.” United
States v. Cutting, No. 14-CR-00139-SI-1, 2017 WL 132403, at *9
(N.D. Cal. Jan. 12, 2017); see also United States v.
Rubin/Chambers, Dunhill Ins. Servs., 825 F. Supp. 2d 451, 454
(S.D.N.Y. 2011) (“In certain circumstances and acting under
their discretionary authority to manage the cases before them,
some courts have required prosecutors to identify Brady material
contained in a previously disclosed but ‘voluminous’ production
of documents and data.”). 15 “[T]he Government cannot hide Brady
material as an exculpatory needle in a haystack of discovery
materials.” United States v. Thomas, 981 F. Supp. 2d 229, 239
(S.D.N.Y. 2013) (citing Skilling, 554 F.3d at 577); cf. United
15Persuasive authority has articulated a “general rule” that
“the government is under no duty to direct a defendant to
exculpatory evidence within a larger mass of disclosed
evidence.” United States v. Skilling, 554 F.3d 529, 576 (5th
Cir. 2009), aff’d in part, vacated in part, remanded, 561 U.S.
358 (2010); see also Dukes v. Pappas, 405 F. App’x 666, 669 (3d
Cir. 2010) (“Brady does not require the government ‘to
facilitate the compilation of exculpatory material that, with
some industry, defense counsel could marshal on their own.”).
“However, that case law does not preclude the [Court] as a
matter of case management (and fairness) in ordering
identification [of Brady material] to be done.” United States v.
Salyer, No. CR. S-10-0061 LKK (GGH), 2010 WL 3036444, at *2
(E.D. Cal. Aug. 2, 2010).
81
States v. Bortnovsky, 820 F.2d 572, 575 (2d Cir. 1987) (“The
Government did not fulfill its obligation merely by providing
mountains of documents to defense counsel who were left unguided
. . . .”).
In this case, it is undisputed that there are voluminous
case files, see Def.’s Ex. 1, ECF No. 28-3 at 2, and the
government has provided Mr. Saffarinia with millions of pages of
documents, see Gov’t’s Opp’n, ECF No. 29 at 3, 10.
Mr. Saffarinia argues that the government’s obligations under
Brady require it to identify any known Brady material, “where it
has produced 3.5 million pages of documents and nowhere
identified the location of Brady material within that massive
production.” Def.’s Brady Mem., ECF No. 28-1 at 7 (emphasis
added). Mr. Saffarinia relies on United States v. Hsia, 24 F.
Supp. 2d 14 (D.D.C. 1998), in which Judge Paul L. Friedman
ordered that “[t]o the extent that the government knows of any
documents or statements that constitute Brady material, it must
identify that material to [the defendant],” id. at 29-30. In
reaching that decision, Judge Friedman explained that “[t]he
government cannot meet its Brady obligations by providing [the
defendant] with access to 600,000 documents and then claiming
that [the defendant] should have been able to find the
exculpatory information in the haystack.” Id. at 29.
82
In Hsia, the defendant was indicted on various criminal
charges arising from a scheme to solicit illegal political
contributions through straw donors. 24 F. Supp. 2d at 19-20. The
defendant claimed that she “received literally no Brady material
from the government and maintain[ed] that it [was] virtually
impossible that there would be no Brady material in a case
involving an in-depth investigation of [that] magnitude with
presumably extensive grand jury testimony, FBI interviews, and
testimony and interviews on Capitol Hill.” Id. at 29. The
defendant argued that it “was literally impossible for her
counsel to cull through the 600,000 documents and identify the
potentially relevant documents from [that] mass of paper.” Id.
at 28. The government responded by providing the defendant with
“three notebooks of information that it claim[ed] contain[ed]
the relevant documents.” Id. Judge Friedman shared the
defendant’s “skepticism” about whether the government understood
its Brady obligations, id. at 29, and “accept[ed] the
government’s representation that it will immediately disclose
any and all Brady material that it has, or discovers that it
has, in its possession,” id. at 30.
Here, the Court agrees with Mr. Saffarinia that the
government’s Brady obligations require it to identify any known
Brady material to the extent that the government knows of any
such material in its production of approximately 3.5 million
83
pages of documents. See Def.’s Brady Mem., ECF No. 28-1 at 7;
see also Def.’s Reply, ECF No. 37 at 4. The government attempts
to distinguish Hsia from this case. See Gov’t’s Opp’n, ECF No.
29 at 6. First, the government argues that Judge Friedman’s
order to the government in Hsia to identify Brady material
within its open-file discovery, “to the extent that it knew of
any such documents or statements,” did not require the
government to “sift through the evidence in search of anything
that could help the defense, as is requested here.” Id. (citing
Hsia, 24 F. Supp. 2d at 29). But the Court agrees with
Mr. Saffarinia that he “simply asks the government to identify
Brady material already known to it based on its existing
knowledge of the documents it collected and reviewed in the
first instance.” Def.’s Reply, ECF No. 37 at 3. Indeed, one of
Judge Friedman’s “several basic propositions of Brady
jurisprudence” and “general warnings” includes “it is the
government’s responsibility in the first instance to determine
whether information in its possession is Brady material.” Hsia,
24 F. Supp. 2d at 30.
Next, the government contends that Hsia “held that ‘it is
not the court’s role to referee . . . disagreements about
materiality and supervise the exchange of information.’” Gov’t’s
Opp’n, ECF No. 29 at 6 (quoting United States v. McVeigh, 954 F.
84
Supp. 1441, 1451 (D. Colo. 1997)). 16 In making that observation,
Judge Friedman accepted the government’s representation that it
would disclose all Brady material in its possession. Hsia, 24 F.
Supp. 2d at 30. Nine years later, however, Judge Friedman could
“no longer endorse [that] view” after later discovering that the
government’s view of Brady and the court’s view were
inconsistent for many years. United States v. Naegele, 468 F.
Supp. 2d 150, 152 n.2 (D.D.C. 2007) (Friedman, J.). Judge
Friedman noted that the court “no longer accepts conclusory
assertions by [DOJ] that it ‘understands’ its Brady obligations
and ‘will comply’ or ‘has complied’ with them.” Id.
Mr. Saffarinia correctly points out that other courts have
adopted the approach taken in Hsia. See Def.’s Brady Mem., ECF
No. 28-1 at 7. In United States v. Blankenship, No. 5:14-CR-
00244, 2015 WL 3687864, *3 (S.D. W. Va. June 12, 2015), the
defendant sought an order compelling the government to identify
in its discovery production, inter alia, all Brady material. The
defendant argued that the government was “hiding” exculpatory
evidence in “four million pages of discovery,” and that the
16Consistent with Hsia, the court in McVeigh made clear that
prosecutors “must inform themselves about everything that is
known in all of the archives and all of the data banks of all of
the agencies collecting information” and “disclose that which
may be exculpatory under the materiality standard of Kyles”
regardless of the government’s burden objections. McVeigh, 954
F. Supp. at 1450 (emphasis added)).
85
“unorganized production” resulted in prejudice because the
defendant would not have had time to review the massive
production before trial. Id. The government responded that:
(1) Brady does not “require the [government] to do the job
traditionally performed by defense counsel”; (2) the government
fulfilled its Brady obligations by providing the defense with “a
searchable, indexed, digital database of documents”; and (3) the
database was “capable of electronic search and [was] rich with
metadata and indexed by a variety of different characteristics
that allow[ed] Defendant to search, sort, and categorize them
however he please[d].” Id. at *4 (citation and internal
quotation marks omitted). The court disagreed. Id. at *8.
The court in Blankenship found that “the [government]
should specifically designate any known Brady material as such
and disclose the same to defense counsel.” Id. at *6. The court
also found that “the [government] does not comply with the
requirement of Brady by merely including all known Brady
material within the four million plus pages of discovery.” Id.
The court observed that “the [government], having determined the
nature of the charges and having knowledge of the evidence and
witnesses it intends to produce to prove those charges, is in a
far better position than the [d]efendant to know what evidence
might be exculpatory and/or impeachment material under Brady.”
Id. at *7.
86
In this case, the government does not deny that the court
in Blankenship “did order the government to identify Brady
material separately,” but the government argues that Blankenship
is distinguishable from this case because “the defense claimed
that a large portion of the voluminous discovery was
disorganized and unsearchable, it did not receive certain
categories of documents, and it claimed the government was
burying exculpatory evidence with an imminent trial date
looming.” Gov’t’s Opp’n, ECF No. 29 at 6. Those distinctions are
inconsequential. The government does not address the Blankenship
Court’s rejection of the the government’s argument that merely
providing a “searchable, indexed, digital database of documents”
to the defendant was sufficient under Brady. Blankenship, 2015
WL 3687864, at *4; see also Def.’s Reply, ECF No. 37 at 4.
To support his position, Mr. Saffarinia cites United States
v. Salyer, No. CR. S-10-0061, 2010 WL 3036444 (E.D. Cal. Aug. 2,
2010). See Def.’s Brady Mem., ECF No. 28-1 at 7. Salyer, a
decision left unaddressed by the government, see Gov’t’s Opp’n,
ECF No. 29 at 1-11, is persuasive. In that case, the court
directed the government to identify previously-disclosed
Brady/Giglio material to the defendant where the government
collected documentary information during a five-year
investigation, and the government’s massive production consisted
of electronic information with multiple gigabytes and millions
87
of pages. Salyer, 2010 WL 3036444, at *1, *3. The court reached
that conclusion based on the circumstances of that case, which
included: (1) there was a “singular, individual defendant, who
[was] detained in jail pending trial, and who [was] represented
by a relatively small defense team[;]” and (2) “[t]here [was] no
parallel civil litigation, and [the defendant] [did] not have
access to voluntary corporate assistance in attempting to find
the documents needed by the defense.” Id. at *7.
The court in Salyer rejected the government’s argument
that it would have been a burden to identify Brady/Giglio
information in the voluminous production. Id. at *3-*5. The
court noted that “[d]uring the course of the years long
investigation . . ., the government personnel seemed to be able
to segregate that evidence which would be useful in the
prosecution in terms of guilt, but apparently made no efforts to
segregate that evidence which runs counter to the charges.” Id.
at *4. The court explained that “[i]f the government professes
[the] inability to identify the required information
after five years of pre-indictment investigation, its argument
that the defense can ‘easily’ identify the materials buried
within the mass of documents within months of post-indictment
activity is meritless.” Id. at *5. The court observed that “the
Supreme Court has placed the initial Brady/Giglio duty on the
government, and the [court] is not free to assign it to [the
88
defendant],” id., and “the duty of the defendant to exercise
diligence does not negate the duties of the prosecution in the
first instance to affirmatively look for and disclose
Brady/Giglio,” id. at *5 n.6.
As the present case closely resembles Salyer, the Court
reaches the same outcome. Like the defendant in Salyer,
Mr. Saffarinia is an individual defendant who neither has the
benefit of parallel civil litigation, nor access to voluntary
corporate assistance to sift through the massive amounts of
documents within the government’s voluminous production. See
Def.’s Brady Mem., ECF No. 28-1 at 10-11. The defendant in
Salyer was represented by “a relatively small defense team,”
Salyer, 2010 WL 3036444, at *7, and Mr. Saffarinia’s “counsel is
handling this matter pro bono” with “time constraints” and
“limited financial resources,” Def.’s Brady Mem., ECF No. 28-1
at 10. As in Salyer where the prosecutors and government
personnel collected and reviewed the voluminous documentary
information over the course of a five-year investigation, see
Salyer, 2010 WL 3036444, at *3-*5, Mr. Saffarinia points out—and
the government does not dispute—that “the government—assisted by
at least two federal prosecutors and several federal agents from
at least two law enforcement agencies—has had the luxury of
reviewing this material on a rolling basis over the course of
its three-year investigation,” Def.’s Brady Mem., ECF No. 28-1
89
at 10. Thus, the government’s argument—that it does not have an
independent obligation to “comb through the discovery to
identify materials that [Mr. Saffarinia] may find valuable in
building his case,” Gov’t’s Opp’n, ECF No. 29 at 11, is
unavailing. The government has an affirmative duty to disclose
Brady material, it has presumably reviewed the discovery in this
case, and “the prosecution knows, as any litigator would know,
what evidence, on its face, significantly detracts from the
factual elements which must be proven in a particular case.”
Salyer, 2010 WL 3036444, at *5.
Both parties rely on the Fifth Circuit’s decision in United
States v. Skilling, 554 F.3d 529, 576 (5th Cir. 2009), see
Def.’s Brady Mem., ECF No. 28-1 at 7-8, 10; see also Gov’t’s
Opp’n, ECF No. 29 at 6-8, but the Court finds the reasoning in
Skilling unpersuasive. In that case, the defendant, Enron’s
former chief executive officer (“CEO”), argued that the
government suppressed Brady evidence because it never directed
him to a single Brady document in the open file. Skilling, 554
F.3d at 576. The defendant asserted that he could not have
reviewed several hundred million pages of documents in the
government’s voluminous production to find all of the
exculpatory and potentially exculpatory information. Id. The
Fifth Circuit rejected the defendant’s argument that “the
government’s use of an open file to satisfy its Brady disclosure
90
obligation was legally insufficient.” Id. at 574.
The Fifth Circuit held that the government did not violate
Brady by providing the defendant with access to its voluminous
open file for four reasons: (1) “[t]he open file was electronic
and searchable”; (2) “[t]he government produced a set of ‘hot
documents’ that it thought were important to its case or were
potentially relevant to [the defendant’s] defense”; (3) “[t]he
government created indices to these and other documents”; and
(4) “[t]he government also provided [the defendant] with access
to various databases concerning prior Enron litigation.” Id. at
577. The Fifth Circuit determined that the government was not
required to “scour[] the open file in search of exculpatory
information” because “the government was in no better position
to locate any potentially exculpatory evidence than was [the
defendant].” Id. The Fifth Circuit reached this outcome by
explaining that the government’s “additional steps” went “beyond
merely providing [the defendant] with the open file,” the
defendant had “equal access” to the open file, the case was
complex, and there was no evidence that the government hid
exculpatory information in bad faith. Id. The Fifth Circuit,
however, “[did] not hold that the use of a voluminous open file
can never violate Brady.” Id.
The Fifth Circuit laid out three scenarios where the
government’s use of a voluminous open file could constitute bad-
91
faith suppression of exculpatory evidence in violation of Brady:
(1) “evidence that the government ‘padded’ an open file with
pointless or superfluous information to frustrate a defendant’s
review of the file might raise serious Brady issues”;
(2) “[c]reating a voluminous file that is unduly onerous to
access”; and (3) “hid[ing] Brady material of which [the
government] is actually aware in a huge open file in the hope
that the defendant will never find it.” Id.
Skilling is distinguishable from this case because the
government in that case provided Enron’s former CEO with “access
to various databases concerning prior Enron litigation,”
Skilling, 554 F.3d at 577 (emphasis added), whereas
Mr. Saffarinia does not have the advantage of information and
documents from prior litigation or parallel civil litigation,
see Def.’s Brady Mem., ECF No. 28-1 at 8. Furthermore, the
government in Skilling “produced a set of ‘hot documents’ that
it thought were important to its case or were potentially
relevant to [the defendant’s] defense,” Skilling, 554 F.3d at
577, but the government in this case “provided [Mr. Saffarinia]
with a large binder of ‘hot documents’ used during a reverse
proffer session that outline[d] the government’s case,” Gov’t’s
Opp’n, ECF No. 29 at 7 (emphasis added). Although the government
“discussed with the defense both the inculpatory material and
the possible legal and evidentiary weaknesses in the
92
government’s case” against Mr. Saffarinia during two reverse
proffer sessions, id., Mr. Saffarinia notes—and the government
does not dispute—that “the government has never suggested the
binder contains all the material, exculpatory information within
the government’s files,” Def.’s Brady Mem., ECF No. 28-1 at 5
n.2.
Putting aside the “hot documents” binder and the absence of
prior litigation, the reasoning in Skilling is inconsistent with
guidance from the Supreme Court and the D.C. Circuit. See, e.g.,
United States v. Agurs, 427 U.S. 97, 110, 96 S. Ct. 2392, 2401
n.17 (1976) (noting that the Supreme Court has “expressly
rejected the good faith or the bad faith of the prosecutor as
the controlling consideration”); United States v. Pasha, 797
F.3d 1122, 1141 (D.C. Cir. 2015) (“There is . . . no way around
the fact that ‘the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the
prosecution.’” (quoting Brady, 373 U.S. at 87)). “Thus, if there
is a non-disclosure occasioned by the massiveness of the
document production to which the defense is given access, it
should make no difference whether such was accompanied by good
or bad faith—a non-disclosure is a non-disclosure no matter what
the motivation.” Salyer, 2010 WL 3036444, at *7.
93
Suppression by the prosecution of exculpatory evidence
violates Brady “irrespective of the good faith or bad faith of
the prosecution.” Brady, 373 U.S. at 87. For that reason, the
non-binding, out-of-Circuit authorities relied upon by the
government are not persuasive. See, e.g., United States v.
Stanford, 805 F.3d 557, 572 (5th Cir. 2015) (finding no Brady
violation “absent some showing that the government acted in bad
faith or used the file to obscure exculpatory material”); United
States v. Richards, 659 F.3d 527, 545 (6th Cir. 2011) (finding
“no abuse of discretion in the district court’s denial of
[defendant’s] motion to compel identification of evidence under
Rule 16” where there was no evidence that the government acted
in bad faith); United States v. Warshak, 631 F.3d 266, 297-98
(6th Cir. 2010) (holding that “the government did not engage in
any conduct indicating that it performed its Brady obligations
in bad faith” and “there [was] no indication that the government
deliberately concealed any exculpatory evidence in the
information it turned over to the defense”); Rubin/Chambers,
Dunhill Ins. Servs., 825 F. Supp. 2d at 455 (finding that “there
[was] no allegation of prosecutorial bad faith or that the
Government ha[d] deliberately hid what it knowingly identified
as Brady needles in the evidentiary haystacks of its disclosures
to Defendants”); United States v. Ohle, No. S3 08 CR 1109 JSR,
2011 WL 651849, at *4 (S.D.N.Y. Feb. 7, 2011) (finding “there
94
[was] no evidence of bad faith that ha[d] been proffered in
[that] case”), aff’d, 441 F. App’x 798 (2d Cir. 2011). 17
Under the circumstances of this case, this Court adopts the
approach taken in Hsia and other decisions, as discussed above,
directing the government to identify exculpatory information
within its voluminous production. This Court exercises its
discretion, in the interest of fundamental fairness and as a
matter of case management, to grant Mr. Saffarinia’s request
that the government specifically identify any known Brady
material contained in its previously-disclosed production of
approximately 3.5 million pages of documents.
4. Attorney Proffers
Finally, Mr. Saffarinia argues that “[t]he government
appears to misunderstand its Brady obligations” because the
17The Court observes that the government relies on other cases
involving voluminous case files that are readily distinguishable
from this case. See, e.g., United States v. Gray, 648 F.3d 562,
567 (7th Cir. 2011) (holding that the government did not
suppress Brady material where a private company had records
relevant to the case, but the private company was not part of
the prosecutorial team and the defense had access to the private
company’s records); Dukes, 405 F. App’x at 669 (holding that
Brady does not require the government to provide defendant with
government’s “more convenient” spreadsheet of financial
transactions); United States v. W. R. Grace, 401 F. Supp. 2d
1069, 1080-81 (D. Mont. 2005) (individual defendants and
corporate defendant had access to relevant documents from a
parallel civil litigation and “there [was] every reason to
expect that the individual Defendants [would] have [had] access
to and benefit[ted] from [the corporation’s] institutional
understanding of its own documents”).
95
government requested from defense counsel case law supporting
the proposition that “information proffered by a defense
attorney is both discoverable and admissible.” Def.’s Brady
Mem., ECF No. 28-1 at 11; see also Def.’s Ex. 4, ECF No. 28-6 at
2. Disagreeing with Mr. Saffarinia’s description of the
government’s position and legal obligations regarding this
topic, the government contends that Mr. Saffarinia’s request for
attorney proffer materials is moot because the government
instructed defense counsel to review the production logs that
contain certain information regarding the attorney proffers.
Gov’t’s Opp’n, ECF No. 29 at 10. Mr. Saffarinia argues that his
request is not moot because the government has failed to produce
all of the attorney proffer materials. See Def.’s Reply, ECF No.
37 at 8-9.
According to Mr. Saffarinia, the government’s “demand that
Brady [material] be ‘admissible’ is a standard wholly of its own
invention.” Def.’s Brady Mem., ECF No. 28-1 at 13. Indeed,
“items may still be material and favorable under Brady if not
admissible themselves so long as they ‘could lead to admissible
evidence.’” United States v. Mahaffy, 693 F.3d 113, 131 (2d Cir.
2012) (quoting United States v. Gil, 297 F.3d 93, 104 (2d Cir.
2002); see also United States v. Sitzmann, 74 F. Supp. 3d 128,
135 (D.D.C. 2014) (observing that Brady evidence “includes
favorable evidence that is itself admissible, or which could be
96
used to impeach a prosecution witness”), aff’d, 893 F.3d 811
(D.C. Cir. 2018). By not responding to Mr. Saffarinia’s
argument, the government has conceded it. See Gov’t’s Opp’n, ECF
No. 29 at 10.
Neither does the government respond to Mr. Saffarinia’s
contention that attorney proffer materials are discoverable. See
id. As an initial matter, this Court’s Standing Brady Order
directs the government to “produce all discoverable evidence in
a readily usable form.” Order, ECF No. 11 at 3. In Blankenship,
the court found that handwritten notes and attorney proffers
fell under Brady, and “the substance of the same should, of
course, be produced.” 2015 WL 3687864, at *7; see also United
States v. Triumph Capital Grp., Inc., 544 F.3d 149, 162 (2d Cir.
2008) (“By suppressing [FBI agent’s] notes of [a] proffer, the
government deprived [defendant] of exculpatory evidence going to
the core of its bribery case against him.”). Mr. Saffarinia
relies on the United States Attorney’s Manual that “outlines
‘where to look’ and ‘what to review’ in order to meet the
government’s Brady obligations.” Def.’s Brady Mem., ECF No. 28-1
at 13 n.3 (quoting U.S.A.M. § 9-5.002). According to
Mr. Saffarinia, the United States Attorney’s Manual “directs
that ‘prosecutors [should review agency files for testifying
witnesses] . . . for discoverable information’ which ‘includ[es]
all proffer, immunity and other agreements.’” Id. (quoting
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U.S.A.M. § 9-5.002). By not responding to Mr. Saffarinia’s
argument, the government has conceded that attorney proffer
materials are discoverable. See Gov’t’s Opp’n, ECF No. 29 at 10.
The Court agrees with Mr. Saffarinia that the issue of
attorney proffer materials is not moot. See Def.’s Reply, ECF
No. 37 at 8; see also Gov’t’s Opp’n, ECF No. 29 at 10. In
response to Mr. Saffarinia’s request for the attorney proffer
materials, “[t]he government instructed defense counsel to
review the detailed discovery logs because those logs reflect
that MOIs and 302s relating to attorney proffers have already
been produced.” Gov’t’s Opp’n, ECF No. 29 at 10. In its
opposition brief, the government identified attorney proffer
statements for Person A, but the government did not identify
attorney proffer statements for other individuals, such as
counsel for Person B, Company B, and Company B’s employees.
Def.’s Reply, ECF No. 37 at 8. Mr. Saffarinia notes that the
interview memoranda and FD-302s include references to counsel
for Person B, Company B, and Company B’s employees. Id. The
Court therefore finds that Mr. Saffarinia’s request for attorney
proffer materials is not moot.
* * *
Upon careful consideration of the facts and circumstances
of this case, the Court directs the government to identify the
Brady material, including the attorney proffer materials, within
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its production. The Court declines to order the government to
disclose whether it possesses Brady material for each category
of the requested information and whether it has conducted a
review for Brady information. See Hsia, 24 F. Supp. 2d at 30
(“[I]t is the government’s responsibility in the first instance
to determine whether information in its possession is Brady
material.”). Accordingly, the Court GRANTS IN PART and DENIES IN
PART Mr. Saffarinia’s Brady motion.
IV. Conclusion
For the reasons set forth above, the Court GRANTS IN PART
and DENIES IN PART Mr. Saffarinia’s Motion to Dismiss, the Court
DISMISSES WITHOUT PREJUDICE Count I of the Indictment, and
GRANTS IN PART and DENIES IN PART Mr. Saffarinia’s Motion for
Brady Material. The government shall identify any known
exculpatory information within its production and file a notice
of compliance on the public docket by no later than forty-five
(45) days from the date of this Memorandum Opinion. A separate
Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
January 15, 2020
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