Judge skeptical of argument for new trial in Safavian case

A judge who presided over the trial of convicted former Bush administration official David Safavian on Thursday heard arguments on a motion to hold a new trial, but he said it was unlikely he would reverse his decision on a key prosecution point. He confirmed an October sentencing date.

D.C. District Judge Paul Friedman heard arguments by defense attorney Albert Lambert on legal theories to dismiss each of the four counts on which Safavian, former head of the Office of Management and Budget's procurement policy shop, was convicted in June. The charges were related to his dealings with lobbyist Jack Abramoff and participation in a golfing trip to Scotland in 2002, while serving as chief of staff at the General Services Administration.

Lambert argued that Safavian's due process rights were violated because he was not informed, during interviews with the GSA inspector general's office and with an investigator for the Senate Indian Affairs Committee, of the legal implications of his participation. Safavian should have been informed, in a disclosure similar to the reading of Miranda rights, that his words could be used against him in court, Lambert argued.

The defense also argued that the extent of what Safavian was required to disclose was unclear, and that statements he made regarding whether Abramoff had business with the GSA, which led to a false statements charge, were reasonable based on a plausible definition of "doing business."

Throughout the presentation, Friedman posed questions and probed various aspects of the arguments, laid out in a series of motions by both sides over the last two months. But when Lambert presented an argument that a slew of e-mails between Abramoff and Safavian should have been barred from evidence under rules that exclude hearsay, Friedman appeared unconvinced.

The judge pointed out that in first deciding to admit the e-mails he had spent days reading through them and entertaining various distinct legal arguments on the 250 or so messages presented. "I gave it my best shot, and it's a big issue in this case, and it's a great issue on appeal," Friedman said. But he said it would be difficult to convince him to change his mind.

"Some of the calls I made were close calls," he said. "I'll look back to the cases you cite, of course, but that's sort of my reaction."

Nathanial Edmonds, arguing for the prosecution, rebutted Lambert's points and argued that the convictions should stand.

Friedman promised to decide on the motion "very soon," and moved ahead to address scheduling matters related to Safavian's sentencing, tentatively set for Oct. 12.

Each count on which Safavian was convicted carries a certain number of points that corresponds to a recommended sentencing range. The charges he faces carry 14 points, corresponding to a 15- to 21-month recommended sentence, according to his lead defense lawyer, Barbara Van Gelder.

Justice Department lawyer Peter Zeidenberg, in arguments, revealed that the prosecution will argue for a two-point upward adjustment on the grounds that Safavian had obstructed justice by lying under oath, and that his actions represented an abuse of trust.

Friedman observed that the abuse of trust argument could be difficult to make since Safavian was not charged with having a quid pro quo arrangement, and Van Gelder, in a comment following the hearing, said the obstruction argument should not stand because it duplicates a count on which he was convicted.

Friedman decided to keep the sentencing date, but said it could be pushed back if necessary because of motions on sentencing or other logistical barriers.