United States v. Olson ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
:
:
v. : Case No. 22-cr-144-GMH
:
RICHARD GUSTAVE OLSON, JR., :
:
:
Defendant. :
MEMORANDUM OPINION AND ORDER
Defendant Richard Gustave Olson signed a plea agreement and pleaded guilty to two
misdemeanors. 1 Subsequently, disagreements arose among Defendant, the prosecutors, and the
United States Probation Office for the District of Columbia (the “Probation Office”) as to the
computation of his proper offense level under the Sentencing Guidelines (the “Guidelines” or
“USSG”) of the United States Sentencing Commission (the “Sentencing Commission”) and the
resulting Guidelines-sanctioned sentencing range. To sharpen and narrow the areas of dispute
about the Guidelines calculation, the Court has entertained copious briefing and held a hearing on
those disputes, as well as some subsidiary issues, including Defendant’s request for issuance of a
subpoena to discover communications among the Probation Office, the prosecutors, and the
Sentencing Commission. In this Memorandum Opinion and Order, the Court both sets out the
Guidelines calculation that it will use in sentencing Defendant 2 and addresses the motion for
1
In April 2022, after this case was transferred to this district from the U.S. District Court for the Central District of
California under Rule 20 of the Federal Rules of Criminal Procedure, see ECF No. 1, Defendant consented to proceed
before a magistrate judge for all purposes pursuant to 18 U.S.C. § 3401(b), 28 U.S.C. § 636(a)(3), and Local Criminal
Rule 58(a), see ECF No. 4. The case was then assigned to the undersigned. ECF Nos. 5–6.
2
The Court does not address the sentencing factors of 18 U.S.C. § 3553(a) in this opinion.
issuance of a subpoena. More specifically, the Court determines that the correct offense level is
eight, resulting in a Guidelines range of zero- to six-months incarceration with the possibility of a
non-custodial sentence, and that Defendant’s motion for issuance of a subpoena will be denied. 3
I. BACKGROUND 4
Prior to his retirement from the State Department on November 30, 2016, Defendant served
as U.S. Ambassador to Pakistan from 2012 to November 2015, and U.S. Special Representative
for Afghanistan and Pakistan from November 17, 2015, to his retirement. ECF No. 38 at 63; ECF
No. 20 at 9. 5 Defendant’s first meeting with the FBI in connection with the investigation that led
to his guilty plea occurred in July 2019. See ECF No. 38-1 at 2–5 (Form FD-302 summarizing a
July 17, 2019 interview with Defendant). At his second interview in December 2019, the FBI
informed him that he was the target of a government investigation, after which he retained counsel.
See ECF No. 38 at 6–7; see also ECF No. 38-1 at 7–11 (Form FD-302 summarizing a December
17, 2019 interview with Defendant). According to Defendant, he learned in August 2020 from
Daniel O’Brien, a prosecuting attorney in the Central District of California—the district where this
case was set prior to its Rule 20 transfer here—that he was the target of an investigation arising
from a criminal case alleging that a person known to Defendant (denominated “Person 1” herein,
in conformance with the practice of the prosecution, see infra note 7) had attempted to influence
U.S. government officials on behalf of foreign clients, among other things. See ECF No. 38 at 7;
ECF No. 39 at 20. Defendant here was reportedly under investigation for violations of four
criminal statutes—receiving a gratuity while serving as a public official in violation of 18 U.S.C.
3
Earlier in these proceedings, Defendant requested an evidentiary hearing. See ECF No. 40 at 3. He has since
abandoned that request. See ECF No. 58 at 87, 91.
4
The following section includes an outline of the investigation, plea discussions and agreement, and sentencing
disputes at issue here. Further detail will be added where relevant in the analysis, infra Section III.
5
The page numbers cited herein are those assigned by the Court’s CM/ECF system.
2
§ 201(c)(1)(B); engaging in acts affecting a personal financial interest in violation of 18 U.S.C. §
208(a); representing, aiding, or advising a foreign government with intent to influence decisions
of U.S. officers within one year of his separation from his position as a senior official of the State
Department in violation of 18 U.S.C. § 207(f); and knowingly and willfully concealing a material
fact, making false statements, or using a false document in violation of 18 U.S.C. § 1001(a). See
ECF No. 38 at 7. Violations of Section 201(c)(1)(B) and Section 1001(a) are felonies; violations
of Section 208(a) and Section 207(f) can be charged as either misdemeanors or felonies depending
on whether the violation was willful. See 18 U.S.C. §§ 201(c), 216(a), 1001(a). Thereafter,
Defendant engaged in debriefing sessions with the government in October 2020, November 2020,
and March 2021; each of those sessions was covered by a debriefing agreement (or what is
commonly referred to as a “queen for a day” agreement) that generally prohibited the government
from “offer[ing] in evidence” in a criminal prosecution against Defendant “any statements made
by [Defendant] at the meeting[s],” but permitted the government to make derivative use of
information learned, including in a prosecution of Defendant. 6 ECF No. 56-1 at 3, 8, 12; see also
ECF No. 38 at 8.
Defendant asserts that in in the last months of 2021, the government extended him a plea
offer. See ECF No. 37 at 7; ECF No. 38 at 58; ECF No. 43 at 20. It appears that he was offered a
cooperation plea agreement in which he would plead guilty to a felony count of using false
document in violation of 18 U.S.C. § 1001(a)(3) and a misdemeanor count of aiding and assisting
a foreign government with intent to influence decisions of U.S. officers in violation of 18 U.S.C.
§§ 207(f)(1)(B) and 216(a)(1). ECF No. 38-1 at 194 (unexecuted cooperation plea agreement).
6
Specifically, the agreements allowed the government to “use . . . information derived directly or indirectly from the
meeting for the purpose of obtaining and pursuing leads to other evidence, which evidence may be used for any
purpose, including any prosecution of [Defendant].” ECF No. 56-1 at 3, 8, 12.
3
That agreement also required Defendant to cooperate with the government’s investigation and
required the government to seek a downward departure under USSG § 5K1.1 from the Guidelines
range otherwise applicable to Defendant if the government “determine[d], in its exclusive
judgment,” that he had provided “substantial assistance . . . in the prosecution or investigation of
another.” Id. at 194–95, 198.
Defendant ultimately chose not to enter into that plea agreement. ECF No. 43 at 20; see
also ECF No. 58 at 93–94, 96. Rather, in January 2022 he signed a plea agreement that required
him to plead guilty to two misdemeanors: (1) making a false writing in violation of 18 U.S.C. §
1018 (the “false writing violation”) and (2) aiding and advising a foreign government with intent
to influence decisions of U.S. officers within one year of his separation from government service
in violation of 18 U.S.C. §§ 207(f)(1)(B) and 216(a)(1) (the “cooling-off period violation”). ECF
No. 20 at 4. That plea agreement did not include a cooperation agreement or offer the possibility
of a § 5K1.1 letter but did indicate that a deduction of two levels for acceptance of responsibility
could be applied to the Guidelines calculation “[i]f appropriate under [the Guidelines].” ECF No.
20 at 12. It calculated Defendant’s combined Guidelines offense level as eight—a base offense
level of six for both the Section 1018 charge and the Section 207(f) charge and a grouping
enhancement of two. Id. at 12. The agreement further provided that the prosecution “reserve[d]
the right to argue that additional offense characteristics, adjustments, and departures under the
Sentencing Guidelines are appropriate,” but promised to “[r]ecommend that [D]efendant be
sentenced to a term of imprisonment within the applicable Sentencing Guidelines range.” Id. at 6,
12.
Pursuant to the plea agreement, Defendant pleaded guilty to both the false writing violation
and the cooling-off period violation on June 3, 2022. See Minute Order (June 3, 2022); ECF No.
4
20 (plea agreement); ECF No. 21 (statement of offenses); ECF No. 35 (transcript of plea hearing).
As set out in the papers and at the hearing, to prove a violation of Section 1018, the government
would have to establish that (a) Defendant was a public officer in the State Department authorized
to make a writing, namely an Office of Government Ethics Public Financial Disclosure Report,
Form 278; (b) Defendant knowingly made and delivered the Form 278 as true, knowing that it
contained a false statement; and (c) the Form 278 had a natural tendency to influence, or was
capable of influencing, the decision or activities of the State Department and Office of Government
Ethics. ECF No. 20 at 6; ECF No. 35 at 36–37. In connection with that count, Defendant admitted
in the plea agreement, the statement of offenses, and the allocution that, on January 27, 2015, while
serving as U.S. Ambassador to Pakistan, he received from a third party, first-class round-trip
airfare from New Mexico to London and hotel accommodations in London in late January and
early February 2015. 7 ECF No. 20 at 9; ECF No. 21 at 1; ECF No. 35 at 38, 50 (transcript of plea
allocution). The value of the airfare exceeded $18,000 and the value of the accommodations
exceeded $1,000. ECF No. 20 at 9; ECF No. 21 at 1; ECF No. 35 at 38, 50. Knowing he was
required to annually file a Form 278 disclosing, among other things, gifts and travel expenses, on
May 12, 2016, Defendant certified as true and submitted a Form 278 for the 2015 calendar year
that failed to disclose the air fare or accommodations received from the third party. ECF No. 20
at 9; ECF No. 21 at 1–2; ECF No. 35 at 38–39, 50. The Form 278 was signed by a Designated
Ethics Official for the State Department on September 1, 2016, who concluded, based on the
information in the form, that Defendant had complied with the applicable laws and regulations.
ECF No. 20 at 9; ECF No. 21 at 2; ECF No. 35 at 39, 50.
7
The third party is not identified in the plea agreement or the statement of offenses. In later submissions, the
prosecution denominates the individual as “Person 1.” See, e.g., ECF No. 39 at 1; see also ECF No. 58 at 4–5
(explaining that it is the policy of the Department of Justice to refer to uncharged people and entities in a particular
case by pseudonyms in submissions and proceedings in that case). The Court follows that practice here.
5
As to the second count, to prove a violation of Section 207(f)(1)(B), the government would
have to establish that (a) during Defendant’s last year of employment with the federal government,
his pay was over $160,112 (thereby making him a covered person under 18 U.S.C. § 207(c)); (b)
Defendant knowingly aided or advised a foreign entity, namely, the government of Qatar; (c)
Defendant intended to influence one or more U.S. governmental decisions through the aid or
advice; and (d) Defendant’s prohibited activities occurred within one year after leaving his
government job. ECF No. 20 at 6–7; ECF No. 35 at 37. In connection with this count, Defendant
admitted that he served as U.S. Special Representative for Afghanistan from November 17, 2015,
through November 30, 2016 (when he retired from federal government service) and met the
requirements subjecting him to a one-year “cooling-off” period during which he was prohibited
from representing any foreign entity before any employee of any U.S. agency or from providing
aid or advice to any foreign entity with the intent to influence a decision of any federal employee.
ECF No. 20 at 9–10; ECF No. 21 at 2; ECF No. 35 at 39, 50. During the one-year cooling-off
period, Defendant admitted that he provided aid and advice to the government of Qatar with the
intent to influence U.S. government officials in connection with two efforts: a plan to establish
U.S. Customs and Border Patrol pre-clearance facilities at Doha International Airport in Qatar and
a plan to convince the U.S. to support Qatar in resolving the Gulf Diplomatic Crisis. 8 Specifically,
Defendant admitted that:
(1) Beginning on February 14, 2017, he participated in the lobbying effort involving
establishing pre-clearance facilities. He helped draft a proposal that was sent to the
Qatar government which explained how preclearance facilities could be achieved,
recommending that the Qataris leverage their close military partnership with the
United States and emphasize the positive experience the United States experienced
8
The “Gulf Diplomatic Crisis” or the “Qatar Diplomatic Crisis” refers to the severance of diplomatic and trade ties
with Qatar by Saudi Arabia, the United Arab Emirates, Bahrain, and Egypt in June 2017. As part of that crisis, Qatar’s
only land border was closed, Qatari ships were banned from docking at many ports, and much of the region’s airspace
was closed to Qatari aircraft. Diplomatic ties were restored and the embargo lifted in January 2021. Frank Gardner,
Qatar Crisis: Saudi Arabia and allies restore diplomatic ties with emirate, B.B.C. News (Jan. 5, 2021), available at
https://perma.cc/8X3E-6UYV.
6
with respect to the establishment of similar preclearance facilities in Abu Dhabi.
ECF No. 20 at 10; ECF No. 21 at 2–3; ECF No. 35 at 40, 50.
(2) On or about June 6, 2017, Defendant participated in a lobbying effort to convince
the U.S. Government to support Qatar in its efforts to oppose a blockade imposed
upon it by its neighbors during the Gulf Diplomatic Crisis. His aid included
recruiting a retired U.S. General (“the “General”) to help provide aid and advice to
Qatari government officials with the intent to influence U.S. foreign policy with
respect to the Gulf Diplomatic Crisis. ECF No. 20 at 10; ECF No. 21 at 3; ECF
No. 35 at 40–41, 51.
On June 7, 2017, Defendant met with the General, a third party, and others at a
hotel in Washington, D.C., at which time the General explained how he would
conduct the lobbying and public relations campaign. On June 8, 2017, the third
party agreed to pay for the expenses of Defendant and the General to travel to Doha
to meet with the Emir and representatives of the Qatar Government. At the time,
Defendant was being paid $20,000 per month to provide services to the third party.
The third party agreed to pay the General a fee for his efforts. ECF No. 20 at 10;
ECF No. 21 at 3; ECF No. 35 at 41, 51.
On June 10, 2017, Defendant and the General met with the Qatar Emir and other
representatives of his government. Defendant and the General told the government
officials that they had traveled to Qatar as private citizens but noted that they had
connections with U.S. government officials that placed them in a position to help
Qatar. During the meetings, the General advised the officials to embrace U.S.
involvement in resolving the crisis, accept the President’s offer to mediate, sign a
pending deal to purchase U.S. F-15 fighter jets, and use a U.S. air base in Qatar as
leverage to exert influence over U.S. government officials. The Qatari officials
were further advised to compete with Saudi Arabia’s lobbying campaign in the U.S.
and to use a full spectrum of information operations to control the political narrative
in the United States. The General informed the officials that he and his colleagues
would use the U.S. National Security Advisor to further their efforts. ECF No. 20
at 10–11; ECF No. 21 at 3–4; ECF No. 35 at 41–42, 51.
From June 9 through June 15, 2017, with Defendant’s knowledge, the General
solicited the help of the National Security Advisor and his staff to support Qatar’s
position with respect to the crisis. On June 15, 2017, the General informed
Defendant that the U.S. National Security Advisor and another senior U.S.
Government official had been briefed on their efforts to convince the United States
to support Qatar’s cause. ECF No. 35 at 49. On June 16, 2017, the General reported
to Defendant, the third party, and a senior Qatar Government Official that he
personally asked the National Security Advisor to meet with senior Qatar officials.
On June 23, 2017, the General stated that two senior Qatari officials would be
visiting Washington, D.C., the next week and asked the National Security Advisor
to meet with them. ECF No. 20 at 11; ECF No. 21 at 4; ECF No. 35 at 42–43, 49,
51.
7
On June 28, 2017, Defendant attended a dinner with the General, representatives of
the Qatar government, and members of Congress to try to enlist Congress to support
the Qatari cause. ECF No. 20 at 11; ECF No. 21 at 4; ECF No. 35 at 43, 51.
Subsequently, the Probation Office filed its Final Presentence Investigation Report
(“PSR”). ECF No. 32. That document includes an offense-level calculation substantially different
from the one in the plea agreement. 9 As relevant here, relying on uncharged alleged conduct
(which is generally permitted, see, e.g., United States v. Abu Khatallah, 314 F. Supp. 3d 179, 185
(D.D.C. 2018)) and guidance from the Sentencing Commission, the PSR utilized a cross reference
in the guideline for the Section 207(f) cooling-off period violation; that cross reference, which
pointed to the guideline applicable to a crime involving a gratuity, resulted in a base offense level
of eleven. See ECF No. 32 at 20, 45; see also USSG §§ 2C1.2, 2C1.3. Additional offense
characteristics related to the alleged number and amount of the gratuities and to Defendant’s
employment in a high-level decision-making or sensitive position increased the offense level by
eighteen points. See ECF No. 32 at 20–21; see also USSG §§ 2B1.1(b)(1)(G), 2C1.2(b). Including
a two-point enhancement for obstruction of justice, a three-point reduction for acceptance of
responsibility, and the multiple count adjustment, the PSR computed Defendant’s total offense
level as 28. ECF No. 32 at 21–22; see also USSG §§ 3C1.1, 3D1.4, 3E1.1(a), (b). With a criminal
history category of I, Defendant’s Guidelines range under the PSR computation was the statutory
maximum of two-years of incarceration for his convictions. ECF No. 32 at 22, 33; see also USSG
Chapter 5, Part A & §§ 5C1.1(f), 5G1.2. Under the calculation in the plea agreement, even without
an acceptance of responsibility reduction, Defendant’s offense level would be eight—twenty levels
lower than the PSR’s calculation—and the sentencing range would be zero to six months
imprisonment, with the possibility of a non-custodial sentence of between one and five years. See
9
The Probation Office, like the Court, is not bound by the plea agreement. See ECF No. 20 at 17–18.
8
USSG Chapter 5, Part A & §§ 5B1.1, 5B1.2(a)(1).
Unsurprisingly, Defendant objects to that calculation. In recent months, he has filed
voluminous submissions explaining his position and suggesting that the government has either
acted in bad faith or breached the plea agreement by feeding information to the Probation Office
that resulted in the PSR’s significantly higher offense level calculation. See ECF No. 38 at 52, 57
& n.13, 58 (suggesting the government acted in bad faith); id. at 61 (stating that “[t]he conduct of
[AUSA] O’Brien in improperly influencing the PSR Writer to increase the offense level almost
four-fold to that agreed upon is a violation of the plea agreement” and that if the current prosecutors
“endorse [that] conduct . . . they too are acting in contravention of the plea agreement”); ECF No.
43 at 21 (arguing the government breached the plea agreement); ECF No. 46 at 2 (characterizing
as “utterly pretextual” the government’s contention that the two misdemeanor plea offer that
Defendant ultimately signed was not a cooperation plea agreement because “the government
expected that any testimony the defendant gave would be riddled with self-serving, provable lies”);
see generally ECF No. 37. More, he has sought the Court’s permission to issue a subpoena to the
Probation Office seeking production of communications involving the Probation Office, three of
the attorneys who have prosecuted this case—AUSA O’Brien, AUSA Stuart Allen, DOJ Trial
Attorney Evan Turgeon—and/or the U.S. Sentencing Commission. See generally ECF No. 46.
As for the prosecution, it has become clear through similarly voluminous submissions, as well as
the initial sentencing hearing in this case, that it is not entirely on board with the PSR’s calculation,
either. And so, to provide guidance to the parties prior to the final sentencing, this opinion resolves
disputes among the stakeholders and sets out the proper Guidelines calculation, addressing the
application of (1) the cross reference noted above, (2) the obstruction of justice enhancement, and
(3) the acceptance of responsibility reduction. It also denies Defendant’s request for a subpoena,
9
which seeks information irrelevant to any issue that will be before the Court at final sentencing.
II. GUIDELINES CALCULATIONS GENERALLY
In any sentencing proceeding, the sentencing court must first “correctly calculate[e] the
applicable . . . range” under the Guidelines. Gall v. United States, 552 U.S. 38, 49 (2007). To do
so, the court
first decides which particular guideline (as set forth in Chapter 2 [of the
Guidelines]) corresponds to the offense of conviction. It chooses a “base offense
level” among those provided in the applicable guideline and modifies that level
based on any “specific offense characteristics.” Next, it considers whether any
adjustments apply (as described in Chapter 3) and computes the defendant’s
“criminal history category” (Chapter 4). With the total offense level and criminal
history category in hand, the Court determines the applicable sentencing range
using the Guidelines’ table (in Chapter 5). Finally, the Court considers whether a
departure from that range—either upward or downward—is warranted (using a
process also laid out in Chapter 5).
Abu Khatallah, 314 F. Supp. 3d at 184–85; see also USSG § 1B1.1. In the Guidelines calculation
process, the court may consider “relevant conduct”—including uncharged conduct and conduct
for which the defendant has been acquitted—that is established by a preponderance of the
evidence. See Abu Khatallah, 314 F. Supp. 3d at 185. The Guidelines define relevant conduct as
“all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or
willfully caused by the defendant . . . that occurred during the commission of the offense of
conviction, in preparation for that offense, or in the course of attempting to avoid detection or
responsibility for that offense.” USSG § 1B1.3(a)(1). “Relevant conduct also includes ‘all harm
that resulted from’ or ‘was the object of’ those acts and omissions,” Abu Kattallah, 314 F. Supp.
3d at 188 (quoting USSG § 1B1.3(a)(3)), and “any other information specified in the applicable
guideline,” USSG § 1B1.3(a)(4). Where multiple counts of conviction are “group[ed]” because
they “involve substantially the same harm,” USSG § 3D1.2, relevant conduct includes “acts and
omissions ‘that were part of the same course of conduct or common scheme or plan as the offense
10
of conviction,’” Abu Khatallah, 314 F. Supp. 3d at 188 n.6 (quoting USSG § 1B1.3(a)(2)).
Although the Guidelines are merely advisory, it is a procedural error for a sentencing court
to “fail[] to calculate (or improperly calculate[e]) the Guidelines range.” 10 Gall, 552 U.S. at 51.
“When any factor important to the sentencing determination is reasonably in dispute, the parties
shall be given an adequate opportunity to present information to the court regarding that factor.”
USSG § 6A1.3. That opportunity can include, at the discretion of the sentencing court, an
evidentiary hearing, see Fed. R. Crim. P. 32(i)(2); see also, e.g., United States v. Jones, 43 F.3d
712, 1994 WL 665103, at *3 (D.C. Cir. 1994), but “[w]ritten statements of counsel or affidavits
of witnesses may be adequate under many circumstances,” USSG § 6A1.3 cmt. In connection
with the sentencing, the court “must—for any disputed portion of the presentence report or other
controverted matter—rule on the dispute or determine that a ruling is unnecessary either because
the matter will not affect sentencing, or because the court will not consider the matter in
sentencing[.]” Fed. R. Crim. P. 32(i)(3)(B).
III. DISCUSSION
This section addresses the offense level calculation that will be used to determine
Defendant’s Guidelines sentencing range and sentencing options and then moves on to
Defendant’s request for issuance of a subpoena.
A. Sentencing Guidelines Calculation
The Court here determines whether the cross reference used in the PSR should apply,
whether Defendant’s offense level should be increased by two levels for obstruction of justice, and
whether the offense level should be decreased by two levels for acceptance of responsibility. At
10
That is true even if the miscalculation does not affect the Guidelines range, although in such cases the error is
generally deemed harmless. See, e.g., United States v. Sweeney, No. 21-2982, 2022 WL 2903442, at *4 (6th Cir. July
22, 2022) (“[W]hen an error in the calculation of the guidelines does not affect the defendant's guidelines range[,]
[w]e routinely find the[] . . . error[] harmless.”).
11
the outset, to anchor the ensuing discussion, it will be helpful to understand in more detail how the
PSR arrived at its offense level calculation, especially as to those areas in dispute.
One area where there is no disagreement is over the grouping of Defendant’s counts of
conviction. The PSR found—and all parties agree—that each count comprises its own “group”
pursuant to USSG § 3D1.2. 11 See ECF No. 32 at 20 (mis-citing USSG § 3D1.2 as USSG § 2D1.2).
Appendix A of the Guidelines identifies the offense guideline applicable to the statute of
conviction. For “Count Group 1,” ECF No. 32 at 20, the false writing violation, that statute is 18
U.S.C. § 1018 and the corresponding guideline is § 2B1.1, which covers offenses involving fraud
and deceit, among others. USSG § 2B1.1 & App. A. As the PSR found, the base offense level
under that guideline is six; it applied no cross references, victim-related adjustments, or
adjustments for specific offense characteristics or Defendant’s role in the crime. ECF No. 32 at
20; see also USSG § 2B1.1(a)(2). The PSR did, however, apply a two-point enhancement for
obstruction of justice under USSG § 3C1.1 based on Defendant’s alleged concealment of his
relationship with Person 1, the individual who paid for the travel and lodging at issue, resulting in
an adjusted offense level of eight. ECF No. 32 at 20.
The statute of conviction for “Count Group 2,” id., the cooling-off period violation, is 18
U.S.C. § 207 and the corresponding guideline is USSG § 2C1.3. See USSG App. A. The base
level for this offense is also six. USSG § 2C1.3(a). However, the cross reference of
USSG § 2C1.3(c)(1) states that, if the offense “involved a . . . gratuity,” the court should apply
USSG § 2C1.2, the guideline for crimes involving the offering, giving, soliciting, or receiving a
gratuity, if that guideline would result in a higher offense level. USSG § 2C1.3(c)(1). Under that
guideline, the base offense level is eleven if the defendant was a public official. USSG §
11
The specifics of the grouping analysis are discussed in detail at the end of Section III.
12
2C1.2(a)(1). The PSR applied that cross reference. ECF No. 32 at 20. Specifically, it alleged that
Person 1, who paid for Defendant’s London trip in early 2015 (the basis for the false writing
violation), also arranged for Defendant to receive a job offer in February 2015 compensated at
over $300,000 per year and, in February 2016, a limousine ride worth over $400; and provided
Defendant’s close friend (and now wife) $25,000 in tuition and other assistance in September 2015
to allow her to enroll at the Columbia University School of Journalism. ECF No. 32 at 8–10, 21.
The PSR then increased the base offense level by two on the basis that the “offense involved more
than one gratuity” pursuant to USSG § 2C1.2(b)(1); by twelve more levels pursuant to USSG
§ 2C1.2(b)(2) (which refers to the table at USSG § 2B1.1(b)(1)), because it calculated the amount
of the gratuities to be between $250,000 and $500,000; and finally by four additional levels under
USSG § 2C1.2(b)(3) because Defendant was a “public official in a high-level decision-making or
sensitive position.” ECF No. 32 at 21. With a two-level obstruction of justice enhancement (again
for concealing his relationship with Person 1), the adjusted offense level for the Count 2 Group
was 31. Id. at 21.
Under USSG § 3D1.4, to determine the combined offense level, a court assigns a “unit”
value to each of the count groups. One unit is assigned to the group with the highest offense level
and to any group at an equal level or from one to four levels less serious. USSG §3D1.4(a). One-
half unit is assigned to any group that is five to eight levels less serious than the group with the
highest offense level. USSG § 3D1.4(b). Any group that is nine or more levels less serious than
the highest-offense-level group is disregarded for the purpose of calculating the applicable offense
level but may provide a reason to sentence the defendant at the high end of the sentencing range.
USSG §3D1.4(c). The table in USSG § 3D1.4 delineates the appropriate increase in offense level
for the number of units calculated. Using those rules, the cooling-off period violation is valued at
13
one unit and the false writing violation is disregarded. Where the number of units calculated is
one, there is no increase in the offense level. Therefore, the PSR calculated the combined offense
level as 31. ECF No. 32 at 21.
The PSR also recommended a decrease of 2 levels for acceptance of responsibility under
USSG § 3E1.1(a). ECF No. 32 at 22. Pursuant to the plea agreement, the PSR recommended an
additional one-level decrease pursuant to USSG § 3E1.1(b), which provides that, upon motion of
the government, a defendant with an offense level of 16 or greater (prior to application of any
decrease for acceptance of responsibility), will have the offense level decreased by one additional
level. Applying those adjustments, the PSR calculated the total offense level as 28. ECF No. 32
at 22. With a Criminal History Category of I, see id. at 22, Defendant’s resulting range from the
Sentencing Table would be 78 to 97 months imprisonment based on the calculation in the PSR.
See USSG Ch. 5, Pt. A. However, because each of the offenses to which Defendant pleaded guilty
is a class A misdemeanor carrying a maximum term of imprisonment of one year, the Guidelines
term of imprisonment under the calculation in the PSR is 24 months. See 18 U.S.C. § 1018; 18
U.S.C. 216(a)(1); USSG § 5G1.1(a); see also ECF No. 32 at 33.
1. Application of the Cross Reference
Both the prosecution and Defendant argue that the cross reference that the PSR applied to
the cooling off period violation is not applicable in this case. The Court agrees.
Recall that USSG § 2C1.3(a) sets six as the base offense level for a conflict-of-interest
offense (such as the cooling-off period violation related to Defendant’s provision of assistance to
Qatar in 2017), but USSG § 2C1.3(c) provides that if the offense involves a gratuity, the offense
level should be that found in USSG § 2C1.2, which governs gratuity-related offenses. The
Probation Office applied the cross reference, with a resulting base offense level of eleven (for a
14
public official) and additional increases found in USSG § 2C1.2 based on the number of gratuities
allegedly received, the amount, and the official position Defendant held. See
USSG § 2C1.2(a), (b).
The statute criminalizing bribes and gratuities involving public officials found in 18 U.S.C.
§ 201(c)(1)(B) prohibits, in relevant part, “a public official, former public official, or person
selected to be a public official,” from “directly or indirectly demand[ing], seek[ing], receiv[ing],
accept[ing], or agree[ing] to receive or accept anything of value personally for or because of any
official act performed or to be performed by such official or person,” unless “provided by law for
the proper discharge of official duty.” 18 U.S.C. § 201(c)(1)(B). An “official act” is defined as
“any decision or action on any question, matter, cause, suit, proceeding or controversy, which may
at any time be pending, or which may by law be brought before any public official, in such
official’s official capacity, or in such official’s place of trust or profit.” Id., § 201(a)(3). More,
the government “must prove a link between a thing of value and a specific ‘official act’ for or
because of which it was given.” United States v. Sun-Diamond Growers of Cal., 526 U.S. 398,
414 (1999).
Here, it is sufficient to say that the prosecution concedes that there is “an insufficient
nexus” between the benefits Person 1 allegedly gave Defendant and the conduct to which
Defendant admitted in pleading guilty to aiding and advising Qatar during the cooling-off period
between his retirement of November 30, 2016, and November 30, 2017. ECF No. 45 at 2. Indeed,
it points out that “[D]efendant’s aid and assistance to Qatar did not occur until after [his] retirement
from government service, and therefore cannot constitute an official act.” Id. At the initial
sentencing hearing, the prosecution confirmed its position and asserted that it would be “error” for
the Court to apply the cross reference. ECF No. 58 at 8. Defendant agrees, asserting that the
15
cooling-off period offense cannot have involved a gratuity under the governing standards because
Defendant “was not a public official at the time of the . . . offense” and, as the prosecution has
stated, “a ‘nexus’ cannot be drawn between the things of value and an official act of [Defendant].”
ECF No. 43 at 8.
The Court agrees and, therefore, will not apply USSG § 2C1.3(c)(1)’s cross reference to
USSG § 2C1.2 or any of the offense-level increases attributable to the specific offense
characteristic adjustments (for number of gratuities, total amount of gratuities, or Defendant’s
position when he received the alleged gratuities) associated with that guideline.
2. Obstruction of Justice Adjustment
The obstruction of justice adjustment is applicable to either count of conviction if the
government shows by a preponderance of the evidence that
(1) the defendant willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice with respect to the investigation, prosecution,
or sentencing of the instant offense of conviction, and (2) the obstructive conduct
related to (A) the defendant’s offense of conviction and any relevant conduct; or
(B) a closely related offense.
USSG § 3C1.1; see also United States v. Dozier, 162 F.3d 120, 123–24 (D.C. Cir. 1998). The
commentary cautions that “the court should be cognizant that inaccurate testimony or statements
sometimes may result from confusion, mistake, or faulty memory and, thus, not all inaccurate
testimony or statements necessarily reflect a willful attempt to obstruct justice.” USSG § 3C1.1
cmt. n.2.
Given that USSG § 3C1.1 also applies to attempted obstruction, courts have held that,
generally, the government need not show that the alleged obstructive conduct actually impeded
the relevant investigation. See, e.g., United States v. Ewing, 129 F.3d 430, 435 (7th Cir. 1997)
(noting that USSG § 3C1.1 applies when a defendant attempts to obstruct justice and generally
16
“does not require the prosecution to provide evidence of any actual prejudice or impact”); United
States v. Patterson, 890 F.2d 69, 72 (8th Cir. 1989) (“Section 3C1.1 . . . encompasses ‘attempted’
obstruction, which we construe as not requiring success in actual obstruction.”). There is at least
one situation, however, in which the government must establish that allegedly obstructive conduct
hampered the investigation in some manner. According to the Guidelines, “[m]aking false
statements, not under oath, to law enforcement officers” is ordinarily not sufficient to trigger
application of the adjustment unless the information provided was both “materially false” and it
“significantly obstructed or impeded the official investigation of the instant offense.” USSG
§ 3C1.1 cmt. nn. 4(G), 5(C). Information that is “material” is information that, “if believed, would
tend to influence or affect the issue under determination.” Id. § 3C1.1 cmt. n. 6.
The PSR applied a two-level enhancement for obstruction of justice on each count of
conviction, alleging that, during his interviews with the FBI on July 17, 2019, and December 17,
2019, Defendant concealed information regarding his relationship with Person 1 and the benefits
he received from that person. See ECF No. 32 at 12–13. The prosecution takes a somewhat
different approach. It asserts that the obstruction of justice adjustment is appropriate on the false
writing violation because “defendant misled the FBI with respect to several material facts during
his interviews in July and December 2019” when he was questioned in connection with the
investigation of Person 1’s “attempts to influence U.S. government officials on behalf of foreign
clients.” ECF No. 39 at 20. As to the cooling-off period violation, the prosecution asserts
Defendant obstructed justice by (1) destroying incriminating emails relevant to its investigation of
the lobbying efforts by Defendant, Person 1, and others “on behalf of the Qatari Government to
end a blockade imposed by is neighbors” and by (2) encouraging Person 1 “to conceal their joint
efforts on behalf of Qatar in connection with the diplomatic crisis” by concocting an exculpatory
17
cover story. ECF No. 39 at 15–16. Defendant objects to both adjustments. See ECF No. 38 at
36–44, 48–52; ECF No. 43 at 4–5, 9–11. The Court addresses each in turn.
a. False Writing Violation
According to the government, Defendant made five materially false statements related to
the false writing conviction:
(1) that he did not know Person 1 paid for his travel to London, ECF No. 39 at 21–22;
see also ECF No. 32 at 12;
(2) that he did not receive an explicit job offer from a company whose owner he met
through Person 1 (i.e., the $300,000 per year offer that the PSR alleged was a
gratuity related to the cooling-off period violation), ECF No. 39 at 22–23; see also
ECF No. 32 at 12; ECF No. 38-1 at 3–4;
(3) that he did not know that Person 1 helped pay Columbia Journalism School tuition
for Defendant’s friend, now wife, ECF No. 39 at 23; ECF No. 38-1 at 5; see also
ECF No. 32 at 12;
(4) that he did not know about Person 1’s business interests in military sales to
Pakistan, ECF No. 39 at 24–25; see also ECF No. 32 at 12;
(5) that talking points he provided to Person 1 were public information, rather than
confidential information, as he represented to Person 1, ECF No. 39 at 25; see also
ECF No. 32 at 12; ECF No. 38-1 at 4, 251.
As noted, for the obstruction of justice adjustment to apply here, the government must show
by a preponderance of the evidence that (1) these statements were “materially false,” (2) in making
them, Defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice with respect to the investigation, prosecution, or sentencing” of the false
writing violation, (3) the false statements related to the false writing violation and any relevant
conduct or to a closely related offense, and (4) they “significantly obstructed or impeded the
official investigation of the instant offense.” USSG § 3C1.1 & cmt. nn.4(G), 5(C).
As was made clear at the initial sentencing hearing, the Court has some doubts as to
whether most of these allegedly false statements relate to the false writing violation or a closely
18
related offense. See ECF No. 58 at 20–21. To be sure, the first statement—that Defendant did not
know Person 1 paid for his travel to London—is connected to the false writing violation. Indeed,
Defendant’s failure to report that a third party paid for his London trip is the basis for that
conviction. See ECF No. 20 at 9; ECF No. 21 at 1–2; ECF No. 35 at 38–39, 50. However, the
other four statements have little if anything to do with the false writing violation and the
prosecution has not offered a “closely related offense” to which they are applicable. 12 The Court
need not determine that issue, however, because the prosecution fails to show that any of the
misstatements “significantly obstructed or impeded the official investigation of the instant offense”
as required for the obstruction of justice adjustment to apply. USSG § 3C1.1 cmt. nn. 4(G).
First, it may be difficult to show that a factual misstatement significantly obstructed or
impede an investigation when, at the time the falsehood was uttered, law enforcement already
knew the truth. See, e.g., United States v. Yaniro, 303 F. App’x 100, 103 (3rd Cir. 2008) (rejecting
the application of an obstruction of justice adjustment where “[the defendant’s] false statements
[to investigators] were largely irrelevant to the investigation and the prosecution because they were
quickly refuted by evidence already in the government’s possession”); United States v. Surasky,
976 F.2d 242, 247 (5th Cir. 1992) (finding that a statement by an inmate that he was not involved
in an escape attempt did not significantly impede the investigation of that attempt where
12
United States v. Ring is instructive as to what can constitute a relationship to the offense of conviction or a closely
related offense. There, the defendant was convicted of, among other things, three counts of honest services fraud in
connection with the Jack Abramoff lobbying scandal. United States v. Ring, 811 F. Supp. 2d 359, 361–62, 364, 371
(D.D.C. 2011). The government sought to apply the obstruction of justice adjustment, pointing to the defendant’s
“false and misleading statements about his knowledge of and participation in the [Michael] Scanlon–Abramoff
kickback scheme, his receipt of $135,000 related to the Sandia Pueblo [tribe], as well as his knowledge [of] the
corruption scheme involving payments to Julie Doolittle for a little-work job.” Id. at 383 (alterations in original)
(quoting the record). Judge Huvelle found that any false statements regarding the Scanlon-Abramoff kickback scheme
or the Sando Pueblo payment were not sufficiently related to the schemes for which he was convicted even though
they were connected to the Abramoff scandal writ large. See id. Thus, to the extent that the prosecution suggests that
any misstatement about any alleged wrong—be it an ethical lapse or even acceptance of a gratuity—uncovered during
the investigation of Person 1 or of Person 1’s dealings with Defendant is related to the offense of conviction, the Court
does not agree.
19
investigators had other evidence of his guilt). The evidence here shows that, as to at least some of
these statements, the FBI already knew the answers when they asked Defendant the questions. The
FD-302 for Defendant’s July 2019 interview with the FBI reflects that, when the agents asked
whether Person 1 “offered [Defendant] anything like flights or hotels,” they had “records” showing
that the January 2015 London trip “was paid for by [Person 1].” ECF No. 38-1 at 3–4. Similarly,
when Defendant asserted to agents in that same interview that any talking points he provided
Person 1 were public information, the FBI had—and showed to Defendant—the email in which
Defendant provided those talking points and indicated that some information included in them was
“not cleared” or could not be “discuss[ed] publicly.” 13 See ECF No. 38-1 at 4, 251; see also ECF
No. 58 at 27. For the rest of the statements, the prosecution was unable to represent at the initial
sentencing hearing that law enforcement did not already have evidence to show that Defendant
was misstating facts when he made the misstatements. See ECF No. 58 at 23–24, 25–27.
Second, and more decisively, it is not enough for the prosecution to say, as it has here, that
it “believe[s] the false statements on these points were material to the government’s investigation
and impeded it.” Id. at 22. To establish that an investigation was “significantly obstructed or
impeded,” the government must show “a causal relationship between the materially false statement
given and a resulting impediment upon the instant investigation or prosecution.” United States v.
Griffin, 310 F.3d 1017, 1023 (7th Cir. 2002). Indeed, “[w]ithout evidence that the official
investigation was [significantly] impeded,” even a material misstatement “cannot support the
obstruction enhancement.” Id. Rather, “[t]he government must prove ‘a detrimental effect upon
[its] efforts to investigate or prosecute the instant offense.’” United States v. Selvie, 684 F.3d 679,
684 (7th Cir. 2012) (quoting Griffin, 310 F.3d at 1023) (second alteration in original); see also,
13
Defendant’s own statement in the email, by the way, is the only evidence the prosecution has presented that
information communicated in those talking points was actually confidential.
20
e.g., United States v. Banks, 347 F.3d 1266, 1271 (11th Cir. 2003) (“To show that [a defendant’s]
conduct actually resulted in a hindrance, the government must demonstrate how it fruitlessly spent
investigation or prosecution resources due to [his or her] untruthfulness.”). The burden may not
be high, but neither is it non-existent: “Material misinformation that exerts any impact on the
government’s resources”—such as when it “burden[s] law enforcement and precipitate[s]
‘expended resources to track down . . . false leads’”—“may elicit an obstruction enhancement.”
Selvie, 684 F.3d at 684 (ellipses in original) (quoting Griffin, 310 F.3d at 1023); see also, e.g.,
Banks, 347 F.3d at 1271 (“[T]he government must present evidence of what action it took that it
would not have taken [in the absence of the false statement to investigators].”). Here the
prosecution provided no evidence of any impact on the false writing violation investigation.
Indeed, at the hearing, it conceded that it had no information about any detrimental effect that these
statements had on the investigation. See ECF No. 58 at 25–27. The Court therefore will not apply
the obstruction of justice adjustment to the false writing violation. See, e.g., United States v.
Adejumo, 772 F.3d 513, 529 (8th Cir. 2014) (finding application of an obstruction of justice
adjustment to be “clear error” where “[t]he government chose not to offer any evidence on th[e]
issue at sentencing” and rejecting the argument that a court may rely on the representation of a
prosecuting attorney that the defendant’s false statements to investigators impeded the
investigation because a “prosecutor’s statement to the court [is] not evidence”).
b. Cooling-Off Period Violation
The prosecution seeks application of the obstruction of justice adjustment on this count
based on two theories. It contends first that Defendant obstructed justice by deleting emails related
to his lobbying; second, that he attempted to concoct a cover story for Person 1 to parrot. The
prosecution has established that Defendant deleted emails relevant to his aid and advice to the
21
Qatari government with respect to the Gulf Diplomatic Crisis, and that alone is sufficient to apply
the obstruction of justice enhancement to the cooling-off period violation. It has not sufficiently
shown that Defendant attempted to create an exculpatory cover story as to that lobbying of the
Qataris. 14
The prosecution asserts that it discovered that Defendant selectively deleted emails by
“comparing email productions in response to subpoenas and search warrant returns.” ECF No. 45
at 11. Specifically, “[D]efendant produced emails in response to a subpoena on July 23, 2019[;]
Person 1 produced emails in response to a subpoena on July 2, 2020[;] the General produced emails
in response to a subpoena on July 16, 2020[;] and . . . [D]efendant produced documents in response
to a subpoena on October 9, 2020.” Id. A comparison of those productions “reveal[ed]
that . . . [D]efendant failed to produce responsive documents.” Id. at 12. A search warrant for
Defendant’s Yahoo account “confirmed that the emails no longer existed on the provider’s
servers”—that is, that they had likely been deleted. Id.; see also ECF No. 58 at 59–60 (describing
the government’s investigation on this issue). The prosecution has provided the Court with copies
of certain emails that were found in the document production of either Person 1 or the General but
not in Defendant’s and that were not found on Yahoo’s servers. See ECF No. 45-1 at 12–13, 32;
ECF No. 57-1 at 2–3; see also ECF No. 55 at 4–5, 12. These missing emails appear to relate to
the Qatar lobbying effort. For example, one of them, from the General to Person 1 and Defendant,
discusses plans for the trip to Doha in June 2017, see ECF No. 45-1 at 12–13; ECF No. 57-1 at 2–
3. Defendant admitted in the plea agreement, the Statement of Offenses, and at the plea hearing
that the 2017 Doha trip was a part of the cooling-off period violation’s offense conduct. See ECF
14
That makes no practical difference to the Guidelines calculation because there can be only one obstruction of justice
enhancement for any one offense. See USSG § 3C1.1 (tying a single two-level increase to a single offense of
conviction). The Court nonetheless addresses both theories, as they may both be relevant at final sentencing under
the Section 3553(a) factors.
22
No. 20 at 10–11; ECF No. 21 at 3–4; ECF No. 35 at 41–42, 51. Another of the emails missing
from Defendant’s production was among those same people and discusses a note from the National
Security Advisor suggesting that the Secretary of State should see the Qataris. See ECF No. 55 at
12. Again, the offense conduct related to this count includes the attempt to solicit the help of the
National Security Advisor to support Qatar’s position with regard to the Gulf Diplomatic Crisis.
See ECF No. 20 at 11; ECF No. 21 at 4; ECF No. 35 at 42–43, 49, 51. Defendant’s counsel
acknowledged as much at the initial sentencing hearing. 15 See ECF No. 58 at 57. Together, the
Court finds this evidence sufficient to demonstrate by a preponderance of the evidence that
Defendant destroyed, attempted to destroy, or, at the very least, withheld these relevant emails
from the government in response to its subpoena.
“[W]here a defendant willfully engages in behavior that is inherently obstructive—that is,
behavior that a rational person would expect to obstruct justice—[the D.C. Circuit] has not
required a separate finding of specific intent to obstruct justice.” United States v. Henry, 557 F.3d
642, 646 (D.C. Cir. 2009). Destruction or withholding of relevant emails in response to a subpoena
would fit into that category, and the fact that the Guidelines specifically list destruction or
concealment of evidence as an example of obstructive behavior supports an inference that the
Sentencing Commission has determined that such behavior is generally inherently obstructive. See
15
It is undisputed that Defendant admitted that he deleted emails during his protected debriefing session in November
2020 and that the document productions upon which the prosecution relies occurred prior to that debriefing, but the
search warrant return occurred after it. See ECF No. 58 at 32–33, 49, 59–60. It is also undisputed that pursuant to the
protections in Defendant’s debriefing (or “queen-for-a-day”) agreement, the prosecution is prohibited from using
Defendant’s statement against him for any purpose, but that it can make derivative use of those statements to develop
evidence against Defendant. See ECF No. 38 at 55–56; ECF No. 43 at 9; ECF No. 45 at 11–12; ECF No. 58 at 42,
52; see also note 6, supra. Finally, all parties agree (and the Court finds) that Defendant himself, rather than the
government, disclosed his statements to the Court, that the government has not relied on those statements to make its
case that Defendant obstructed justice, and that the other evidence the government has developed is properly before
the Court and not in violation of his debriefing agreement. See ECF No. 58 at 49–50 (Defendant’s counsel
acknowledging that they “interjected the issue about the plea agreement and [the prosecution] not being able to use
what [Defendant] said [at the debriefing session]”), 52 (Defendant’s counsel acknowledging that the only evidence
related to the deletion of emails that the Court cannot rely on is Defendant’s statements during the debriefing session).
23
id. at 647; see also USSG § 3C1.1 cmt. n.4(D) (listing “destroying or concealing . . . evidence that
is material to an official investigation” as conduct covered under the obstruction of justice
adjustment guideline). Moreover, unlike with a claim that a defendant made material
misrepresentations to investigators (discussed in Section III.A.2.a above), where the government
has shown that a defendant destroyed material evidence, there is no need to establish that the
obstruction actually impeded the investigation. See, e.g. United States v. Mason, 168 F. App’x
905, 908 (11th Cir. 2006) (noting that the Guidelines do not require the government to show that
an attempt to destroy evidence actually impeded the investigation); Ewing, 129 F.3d at 435 (noting
that application of the obstruction of justice adjustment generally “does not require the prosecution
to provide evidence of any actual prejudice or impact”); Patterson, 890 F.2d at 72 (“Section
3C1.1 . . . encompasses ‘attempted’ obstruction, which we construe as not requiring success in
actual obstruction.”).
The government is not so successful in its argument that Defendant attempted to concoct
an exculpatory cover story and influence Person 1 to use it if asked by law enforcement about aid
and advice provided to Qatar in connection with the Gulf Diplomatic Crisis. The prosecution’s
theory is based on an exchange of two emails between Person 1 and Defendant. Specifically, in
an email dated July 16, 2020—the subject line of which was the General’s name—Person 1
forwarded to Defendant a June 2017 email from the General to Person 1 stating, in relevant part,
“thank you again for facilitating what I think were very important talks with the Qataris. They
couldn’t have taken place without your [i.e. Person 1’s] leadership.” ECF No. 39-1 at 173; see
also ECF No. 39 at 16. Defendant is not mentioned in that email. Defendant responded to the
forwarded email with an email to Person 1 that states:
24
[Person 1]:
I’m puzzled by the message you sent me last week. I’ve reviewed my records
(including notes I took at the time) and they do not accord with your recollections:
• We had been discussing a Qatari defense project in the spring of 2017
(April & May).
• After the announcement of the blockade (5 June), you asked me if I knew
any generals who might be interested in helping with the effort. I
suggested [the General].
• On 6 June I introduced you by email to [the General].
• We traveled to Doha 9–11 June.
• We continued working on the defense project through the summer,
although at some point [the General] dropped out.
• I did not have any interaction with [the National Security Advisor]. I met
him once, socially, I believe on 27 September 2017, but never discussed
Qatar with him.
I suggest you review your chronology of events in light of the above. Let me know
if I can help.
ECF No. 39-1 at 172; see also ECF No. 39 at 17. The government reads that later email as
Defendant “suggest[ing] to Person 1 that they coordinate their stories to present a false portrayal
of events.” ECF No. 39 at 17. The prosecution argues that the email was “extremely carefully
drafted” to nudge Person 1 into asserting (presumably in connection with any questioning by the
government) that the events of the summer of 2017—the recruitment of the General and trip to
Doha, etc.—were not connected to lobbying about the Gulf Diplomatic Crisis, but, rather to a
military advisory board that Defendant and Person 1 were attempting to set up to aid Qatar. See
ECF No. 58 at 71–72, 79–80.
If this is an effort to orchestrate an exculpatory cover story, it is both subtly done and
somewhat awkward. Awkward because, although Defendant’s email follows in the email chain
the forwarded email between Person 1 and the General, Defendant’s email does not appear to be a
response to Person 1’s forwarded email. Defendant’s response indicates that the “message that
25
[Person 1] sent [Defendant] last week” included some “recollections” and a “chronology of events”
in 2017; but Person 1’s July 16, 2020 email between Person 1 and the General reflects no such
information. See ECF No. 39-1 at 172–73. The Court is left to imagine either that there was some
other “message” from Person 1 to Defendant between July 16 and July 20, or that Defendant’s
response is a glaring non-sequitur. The government seems to think the fact that the July 20, 2017
email is “not responsive to what Person No. 1 emailed previously” weighs in favor of its theory
that Defendant was hatching a false cover story. ECF No. 58 at 81. The Court is not so sure,
especially given the subtlety with which that alleged cover story is assembled. As discussed at the
initial sentencing hearing, none of the statements in that email, taken individually, are false. It
appears that Defendant and Person 1 did discuss a Qatari defense project in Spring 2017; Person
1 did ask Defendant about generals who might be “interested in helping” with some effort
involving the Qataris; Defendant did introduce Person 1 to the General; they all did travel to Doha
in June 2017; and Defendant did not have any interaction with the National Security Advisor about
Qatar. See ECF No. 58 at 73–79. More, the government acknowledged that the discussions about
the military advisory board occurred in the run-up to and during the Gulf Diplomatic Crisis and
that at some point the General was recruited to participate in the advisory board. See id. at 76–77.
And Defendant has submitted emails that are not inconsistent with the narrative that in June 2017
Person 1 and Defendant were recruiting the General not only in connection with the Gulf
Diplomatic Crisis lobbying, but also with the advisory board. See ECF No. 55 at 36 (email of
Person 1 dated May 13, 2017, proposing the names of four U.S. generals (not including the General
discussed herein) to provide advice to Qatar, apparently in connection with the military advisory
board); id. at 38 (email from Defendant dated June 6, 2017 (admittedly not in the same email chain
as the email cited above) stating that the General “is interested in helping out with Qatar”). That
26
is, the prosecution contends that Defendant sent an email “extremely carefully drafted” to include
only truthful statements designed to fabricate a story that might help to exonerate him as a response
to an email that has almost nothing to do with the cover story Defendant allegedly concocted. The
Court’s best guess here is that there is some important context missing—perhaps contemporaneous
communications between Defendant and Person 1—without which it is left adrift.
More importantly, Defendant’s June 20, 2017 email is not especially exculpatory.
Defendant’s recruitment of the General and the Doha trip are centerpieces of his offense conduct,
see ECF No. 20 at 10; ECF No. 21 at 3–4; ECF No. 35 at 40–42—and they are admitted in the
alleged cover story email—which, moreover, specifically mentions the Gulf Diplomatic Crisis in
the same breath as it speaks of recruiting the General. And the initial sentencing hearing, the
prosecution acknowledged it was possible thatDefendant’s involvement in establishing a military
advisory board for Qatar—which, again, was according to the prosecution the “cover story” that
Defendant was offering Person 1—might, itself, have violated 18 U.S.C. § 207(f)(1)(B). ECF No.
58 at 80. The prosecution has not offered—nor has the Court found—a case in which a similarly
inscrutable “cover story” communication has formed the basis for an obstruction of justice
adjustment. Cf., e.g., United States v. Heckard, 238 F.3d 1222, 1227, 1232–33 (10th Cir. 2001)
(affirming the application of an obstruction of justice enhancement where the Defendant prepared
a false affidavit for a potential witness stating that the witness “had no knowledge of any illegal
activity conducted by Defendant”); Ewing, 129 F.3d at 433–35 (affirming the application of an
obstruction of justice enhancement where the defendant directed his co-defendant to “write that
[the defendant] had no knowledge of any of that [illegal] activity until the night we were arrested”
and to make sure that the co-defendant’s stories to the judge and to pretrial services “matche[d] up
together”); United States v. Cherif, 943 F.2d 692, 703 (7th Cir. 1991) (affirming the application of
27
an obstruction of justice enhancement where the defendant wrote a letter to his girlfriend, whom
he had involved in his crime and who was a potential witness against him, stating that she “could
not know anything about deals or stock” and that she knew she was “innocent and there [was] no
conceivable way that [she] could have known anything about anything”). The Court recognizes
that the communication at issue is susceptible to the interpretation the prosecution urges. But it is
the government’s burden to show obstruction by a preponderance of the evidence, and it has fallen
short of that standard as to this theory.
In sum, the Court will apply the obstruction of judgment enhancement to this charge based
only on Defendant’s destruction of emails relevant to cooling-off period conviction.
3. Acceptance of Responsibility
USSG § 3E1.1(a) provides a two-level decrease in offense level “[i]f the defendant clearly
demonstrates acceptance of responsibility for his offense.” In determining whether to apply the
adjustment, a court should consider, among other things, whether the defendant “truthfully
admitt[ed] the conduct comprising the offense(s) of conviction, and truthfully admit[ed] or [did]
not falsely deny[] any additional relevant conduct for which the defendant is accountable under §
1B1.3”—which includes “all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the defendant” and all harm caused by those
acts or omissions or was the object of those acts or omissions. USSG §§ 1B1.3(a)(1)(A), 3E1.1
cmt. n.1(A). “A defendant who falsely denies, or frivolously contests, relevant conduct that the
court determines to be true has acted in a manner inconsistent with acceptance of responsibility,
but the fact that a defendant’s challenge is unsuccessful does not necessarily establish that it was
either a false denial or frivolous[.]” USSG § 3E1.1 cmt. n.1(A). Pleading guilty before trial,
truthfully admitting the conduct comprising the offense, and not falsely denying any additional
28
relevant conduct “constitute[s] significant evidence of acceptance of responsibility for the
purposes of subsection (a).” Id. § 3E1.1 cmt. n.3. Conduct resulting in an obstruction of justice
adjustment can co-exist with acceptance of responsibility “in extraordinary cases.” Id. § 3E1.1
cmt n.4.
Defendant, of course, believes that the reduction should apply. See ECF No. 54 at 6; ECF
No. 58 at 84. More, both the Probation Office and the prosecution agree that this is an
extraordinary case where both obstruction and acceptance of responsibility adjustments should
apply (thus canceling each other out). See ECF No. 58 at 83; ECF No. 32 at 19. The timeline
supports such a finding. Courts have held that, “[i]n evaluating whether [a defendant’s] case was
an ‘extraordinary’ one, [the court] must look at the relationship between his obstructive conduct
and his acceptance of responsibility.” United States v. Gregory, 315 F.3d 637, 640 (6th Cir. 2003).
Where the obstructive conduct pre-dated the acceptance of responsibility, the acceptance
adjustment may apply. See id. (“All of his obstructive conduct predated the indictment and the
guilty plea. He has fully cooperated subsequently.”); United States v. Hopper, 27 F.3d 378, 383
(9th Cir. 1994) (“Cases in which obstruction is not inconsistent with an acceptance of
responsibility arise when a defendant, although initially attempting to conceal the crime,
eventually accepts responsibility for the crime and abandons all attempts to obstruct justice.”).
Here, the obstructive conduct all predates the plea agreement in January 2022 and guilty plea in
June 2022. More, even before the plea agreement and guilty plea, Defendant admitted to the
conduct that provides the basis for the obstruction of justice enhancement when debriefing with
the government. Finally, he has largely cooperated with the government’s investigation.
The Court will therefore apply a two-level reduction in the total offense level for
acceptance of responsibility.
29
* * * * * *
Given the analyses and findings above, the Court lays out the Guidelines calculation that
will be considered at final sentencing. Pursuant to USSG § 3D1.1, where, as here, a defendant has
been convicted of more than one count, the court must, first, group closely related counts together
using the rules in USSG § 3D1.2; second, determine the offense level applicable to each group
using the rules in USSG § 3D1.3; and third, determine the combined offense level applicable to
all groups taken together using the rules in USSG § 3D1.4. USSG § 3D1.1. Under USSG § 3D1.2,
counts involve “substantially the same harm” and therefore are grouped together if (1) they
“involve the same victim and the same act or transaction,” (2) they involve the same victim and
two or more acts or transactions with a common criminal objective or constituting part of a
common scheme, (3) “one of the counts embodies conduct that is treated as a specific offense
characteristic in, or other adjustment to, the guideline applicable to another of the counts,” or (4)
the offense level is largely determined by some “measure of aggregate harm”—such as total
amount of loss or the quantity of substance involved—or “the offense behavior is ongoing or
continuous in nature and the offense guideline is written to cover such behavior.” The two crimes
here do not fit into any of those categories and thus, as the PSR found, each is in its own group.
ECF No. 32 at 20.
Offense Level Computation
The False Writing Violation—18 U.S.C. § 1018Base Offense Level, see USSG § 2B1.1(a)(2) & App. A: 6
Specific Offense Characteristics, see id. § 2B1.1(b): None
Cross References, see id. § 2B1.1(c): None
Adjustments (Victim-Related, Role, Obstruction), see id. Ch. 3: None
30
Adjusted Offense Level: 6
The Cooling-Off Period Violation—18 U.S.C. § 207(f)(1)(B)
Base Offense Level, see USSG § 2C1.3(a) & App. A: 6
Specific Offense Characteristics, see id. § 2C1.3(b): None
Cross References, see id. § 2C1.3(c): None
Adjustments—Obstruction of Justice, see id. § 3C1.1: +2
Adjusted Offense Level: 8
Multiple Count Adjustment
Under USSG § 3D1.4, the Court takes as a base the count group with the highest offense
level. That group counts as one Unit. Id. § 3D1.4(a). Any group with a level “that is
equally serious or from 1 to 4 levels less serious also counts as one Unit. Id. To calculate
the combined offense level, the highest offense level (here, eight) is increased by, in this
case, two units (pursuant to the table in § 3D1.4). Thus:
Count Adjusted Offense Level Units
False Writing Violation 6 1
Coolin-Off Period Violation 8 1
Total Number of Units: 2
Higher Adjusted Offense Level: 8
Increase in Offense Level: 2
Combined Adjusted Offense Level: 10
USSG Ch. 4 Enhancement (Criminal History/Career Offender) None
Acceptance of Responsibility Adjustment, see USSG § 3E1.1(a) -2
Total Offense Level: 8
B. Motion for Issuance of Subpoena
Finally, Defendant has filed a motion seeking the Court’s permission to issue a subpoena
duces tecum on the Probation Office seeking documents “evidencing communications between
31
any person in the U.S. Probation Office and AUSA Daniel O’Brien, AUSA Stuart Allen, DOJ
Trial Attorney Evan Turgeon, and the U.S. Sentencing Commission in connection with preparation
of the Presentence Investigation Report.” ECF No. 46 at 5. The motion asserts that he seeks the
evidence in connection with arguments that (1) the government’s reasons for refusing to offer him
a cooperation plea agreement are pretextual and (2) the government “implicitly breached the plea
agreement through the distorted representations [to the Probation Office] created by [AUSA]
O’Brien.” Id. at 2–3. At the initial sentencing hearing, Defendant floated a couple of additional
theories—that it required the evidence (1) to show that the government fraudulently induced him
to sign the plea agreement by orally representing that he would receive a non-custodial sentence if
he did so and (2) to determine what information the prosecution provided to the Probation Office
to include in the PSR. ECF No. 58 at 92, 94. The motion is denied because the information it
seeks is not relevant to any issue before this Court. 16
“[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor,
so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”
Santobello v. New York, 404 U.S. 257, 262 (1971). However, “[w]hile the government is obligated
to fulfill the promises it made in a plea agreement, defendants are not entitled to have promises
read into their plea agreements because they claim that they believed the agreement included such
promises.” Feliciano v. United States, 914 F. Supp. 776, 780 (D.P.R. 1996) (internal citation
16
Defendant asserts that the communications he seeks are Brady material, see ECF No. 58 at 95, referring to Brady v.
Maryland, in which the Supreme Court held “that the suppression by the prosecution of evidence favorable to an
accused upon request violated due process where the evidence is material either to guilt or punishment, irrespective
of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87 (1963). Brady and its progeny apply only to
evidence that is “material,” which means that “there must be a ‘reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.’” United States v. Wilson, 605 F.3d
985, 1005 (D.C. Cir. 2010) (quoting Strickler v. Greene, 527 U.S. 263, 280 (1999)). Leaving aside the question of
whether communications among the Probation Office, the prosecutors, and the Sentencing Commission can ever be
considered Brady material, the information requested here cannot be, because it is irrelevant to the issues before the
Court and therefore not “material.”
32
omitted), aff’d sub nom. Rivera-Feliciano v. United States, 107 F.3d 1 (1st Cir. 1997).
“In interpreting the terms of a plea agreement, [courts] look to principles of contract law.”
United States v. Henry, 758 F.3d 427, 431 (D.C. Cir. 2014). The mere presence of an integration
clause in a plea agreement is “strong evidence that no implied promises existed—after all,
integration clauses ‘establish that the written plea bargain was adopted by the parties as a complete
and exclusive statement of the terms of the agreement.’” United States v. Ahn, 231 F.3d 26, 36
(D.C. Cir. 2000) (some internal quotation marks omitted) (quoting United States v. Fentress, 792
F.2d 461, 464 (4th Cir. 1986)). Where the defendant also assents to the terms of the agreement in
open court, “inferring [unwritten] promises is virtually foreclosed.” United States v. West, 392
F.3d 450, 456 (D.C. Cir. 2004).
Here, Defendant seeks evidence to support a claim that the government was obligated to
make the plea agreement he signed a cooperation plea agreement with the possibility of a USSG
§ 5K1.1 motion; that claim, however, is doomed. The plea agreement—which includes an
integration clause, see ECF No. 20 at 18–19 (“Defendant understands that, except as set forth
herein, there are no promises, understandings, or agreements between the USAO and defendant or
defendant’s attorney, and that no additional promise, understanding, or agreement may be entered
into unless in a writing signed by all parties or on the record in court.”)—does not mention
cooperation or a USSG § 5K1.1 motion. More, in a hearing on May 27, 2022 (prior to Defendant’s
guilty plea), Defendant’s counsel suggested that Defendant was induced to enter into the plea
agreement he signed by the “promise of an opportunity” for a USSG § 5K1.1 motion. ECF No.
17 at 30. At the continued plea hearing on June 3, 2023, the Court revisited that issue with
Defendant’s counsel:
THE COURT: [T]here was some suggestion last week . . . that perhaps
there was further promises that were made that were not
33
reflected in the plea agreement and should be. Are you going
to make any of those assertions here today, Mr. Hannon?
MR. HANNON: No, Your Honor.
THE COURT: I will ask Mr. Olson, are there any side agreements, whether
or not the plea agreement reflects the entirety of the
agreement between himself and the government. He will be
asked that question.
MR. HANNON: Yes, sir.
THE COURT: If he responds no, then we’re not going to go forward with
the plea.
MR. HANNON: Understood.
THE COURT: That includes as well any promises allegedly made with
respect to 5K disagreements. It does not reflect any promises
with respect to 5K. You understand that, Mr. Hannon?
MR. HANNON: Absolutely.
THE COURT: And your client does as well?
MR. HANNON: He does.
ECF No. 35 at 6–7. When Defendant allocuted, the Court did as it said it would:
THE COURT: Mr. Olson, have you read that entire plea agreement?
DEFENDANT: Yes, sir.
THE COURT: Every word of it?
DEFENDANT: Yes, sir.
THE COURT: Does that agreement represent in its entirety the
understanding that you have with the government with
respect to your plea?
DEFENDANT: Yes, it does.
THE COURT: Have you been promised anything else in return for your plea
of guilty other than what’s reflected in that document?
34
DEFEDNANT: No, sir.
THE COURT: Then there are no side agreements, correct?
DEFENDANT: That is correct, sir.
....
THE COURT: The certification also states that no promises, inducements,
or representations of any kind have been made to you other
than those contained in the plea agreement; is that correct,
sir?
DEFENDANT: Yes, that is correct, sir.
THE COURT: It also states that no one has threatened or forced you in any
way to enter into the agreement; is that correct?
DEFENDANT: Yes, it is correct, Your Honor.
Id. at 15, 16–17. Having admitted that the plea agreement he signed embodies the full agreement
between the parties, Defendant cannot now argue that he was induced to enter into it by some prior
unwritten promise regarding a USSG § 5K1.1 motion or that the government has breached it by
failing to file such a motion. As the D.C. Circuit stated in West, addressing a plea agreement with
a similar integration clause:
By itself, this language argues strongly against the existence of any unwritten
promises by either party to the agreement. Inferring such promises is virtually
foreclosed where, as here, the district court has also conducted a flawless plea
proceeding at which the defendant was made fully aware of, and assented to, the
important terms of the agreement. At the plea hearing, the court reviewed all the
relevant aspects of the agreement with West, including the integration clause and
the disclaimer of promises with regard to sentencing. West, represented by counsel
at the hearing, was then asked whether any other promises induced him to plead
guilty; he replied “no.” If the government had made any unwritten promises to
West about his sentence, this was the time for West (or his counsel) to say
something. Neither did.
392 F.3d at 456; see also, e.g., United States v. Buchanan, No. 02-cr-85, 2007 WL 1748919, at *5
(D.D.C. June 18, 2007) (similar). Because those arguments are foreclosed, Defendant has no need
35
for evidence that might support them.
For that same reason, it is irrelevant whether the government’s reasons for not offering a
cooperation plea agreement are pretextual. Defendant agreed to the terms of a plea agreement that
did not include a cooperation agreement or representations about a Section 5K1.1 motion. And he
did so knowing the reason that the government provided for not offering one. Defendant admits
that the government—through AUSA O’Brien—informed Defendant prior to offering the plea
agreement that was ultimately signed that he would not be offered a cooperation plea agreement
because the government believed any testimony he would give would be tainted by untruths
designed to distance himself from Person 1. See ECF No. 46 at 2. Defendant nevertheless agreed
to the terms of the plea agreement he signed.
A similar analysis applies to the argument that Defendant is entitled to evidence that the
government induced him to enter into the plea agreement by promising it would advocate for a
non-custodial sentence. He appears to rely on pre-plea discussions in which prosecutors indicated
that pleading guilty was “the path to no jail time.” ECF No. 43 at 20. But Defendant acknowledges
that those discussions related to the agreement that Defendant rejected because it required that he
plead guilty to a felony. See ECF No. 38 at 60 (“When O’Brien proposed the December 16, 2021,
plea agreement that included a felony, he represented that the agreement would enable [Defendant]
to achieve a non-custodial sentence[.]”); see also ECF No. 43 at 20 (“On October 25, 2021, the
government extended a plea offer to [Defendant] that required him to plead guilty to a felony and
a misdemeanor. . . . On December 9, 2021, attorneys for [Defendant] had a phone call
with . . . [Turgeon] regarding the potential terms of a plea agreement. . . . He stated that in his
view, ‘this is the path to no jail time.’ [Defendant] subsequently refused any plea agreement that
required a felony.”). The plea agreement he signed does not require him to plead guilty to a felony,
36
but to two misdemeanors. Moreover, the plea agreement states explicitly that the government will
“[r]ecommend that [D]efendant be sentenced to a term of imprisonment within the applicable
Sentencing Guidelines range.” ECF No. 20 at 6 (emphasis added). That is, Defendant seeks
evidence to support an argument that is foreclosed by the explicit language of the plea agreement
he signed and acknowledged in open court.
During the initial sentencing hearing, counsel for Defendant asserted that he was also
seeking communications between the prosecuting attorneys and the Probation Office because the
prosecutors “sen[t] things to the presentence report writer that we know nothing about.” ECF No.
58 at 94. There is no mystery here—or at least no mystery that could be relevant to sentencing.
The PSR says what it says. It is clear to the Court that the information Defendant objects to—
information that formed the foundation of the PSR’s application of the cross reference and of the
obstruction of government adjustments—were provided to the Probation Office by the prosecutors.
Defendant has made that point over and over in his submissions. See, e.g., ECF No. 38 at 61 (“The
conduct of Mr. O’Brien in improperly influencing the PSR Writer to increase the offense level
almost four-fold to that agreed upon is a violation of the plea agreement.”). And the Court has
found (and the prosecution agrees) that the cross reference should not be applied 17 and has
independently evaluated the evidence as to obstruction of justice. There is nothing to be gained
from the communications sought. Faced with a similar situation, the First Circuit made a similar
decision. In United States v. Nelson-Rodriguez, the defendant argued that the prosecution violated
the Federal Rules of Criminal Procedure “by having ex parte communications with the probation
officer who wrote the presentence report” and asked the court “to eliminate the two enhancements
17
The Probation Office apparently relied on guidance from the Sentencing Commission regarding application of the
cross reference. See ECF No. 32 at 45. Because the Court will not apply that cross reference, communications
between the Probation Office and the Sentencing Commission are immaterial.
37
added to his offense level and remand the case to the district judge for re-sentencing.” 319 F.3d
12, 61 (1st Cir. 2003). Before the district court, he “demand[ed] disclosure of all documents that
the probation officer used in preparing the presentence report” and “asked to be able to call the
probation officer as a witness at the sentencing hearing to examine the extent of the
communications.” Id. at 62. The First Circuit affirmed the district court’s denial of the request
because, even if the contact violated the rules, the defendant “failed to show that he . . . suffered
any harm as a result.” Id. The presentence report included all the evidence the probation officer
relied on in making her recommendations, so it was unclear what would be accomplished by
additional discovery or the testimony of the probation officer. See id. More, the court noted that
“the report is only a recommendation to the court; the court is not bound to accept these
recommendations” and that the defendant had ample opportunity to dispute the report’s
recommendations. Id. at 62–63. The same is true here.
Defendant’s motion for issuance of the requested subpoena is denied.
CONCLUSION
For the foregoing reasons, the Court finds that Defendant’s total offense level under the
Guidelines is eight. With a criminal history category of I, his Guidelines sentencing range is zero
to six months imprisonment. See USSG Ch. 5, Pt. A. Under USSG §§ 5B1.1 and 5B1.2(a)(1),
Defendant is eligible for a sentence of probation lasting at least one and up to five years in lieu of
imprisonment.
The Court further finds that, because of the decisions made herein leading to that offense
level calculation and because Defendant’s arguments in support of its motion for issuance of the
subpoena are otherwise legally unsound, the communications he seeks from the Probation Office
are not relevant to the final sentencing in this case. Accordingly, it is hereby
38
ORDERED that Defendant’s motion for issuance of a subpoena (ECF No. 46) is
DENIED. It is further
ORDERED that Defendant’s request for an evidentiary hearing, which he has since
abandoned, see note 3, supra, is DENIED.
The Court will communicate with the parties to schedule a final sentencing hearing.
SO ORDERED. Digitally signed by
G. Michael Harvey
Date: 2023.08.03
Date: August 3, 2023 08:19:30 -04'00'
The Honorable G. Michael Harvey
United States Magistrate Judge
39