United States v. Saffarinia

• Court: District Court, District of Columbia
• Decided: January 15, 2020
• Docket: Criminal No. 2019-0216
• Status: Published

Opinion

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.

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

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).

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.

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

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.

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

97 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

98 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