United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 22, 2010 Decided May 13, 2011 

No. 09-3112 

UNITED STATES OF AMERICA, 

APPELLEE

v. 

DAVID H. SAFAVIAN, 

APPELLANT

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:05-cr-00370) 

Shannen W. Coffin argued the cause for appellant. On 

the briefs were Lawrence S. Robbins, Richard A. Sauber, 

Donald J. Russell, and Lisa K. Helvin. 

Sangita Rao, Attorney, U.S. Department of Justice, 

argued the cause for appellee. With her on the brief were 

Lanny A. Breuer, Assistant Attorney General, and Nathaniel 

B. Edmonds, Attorney. Roy W. McLeese III, Assistant U.S. 

Attorney, entered an appearance. 

Before: GINSBURG and BROWN, Circuit Judges, and 

EDWARDS, Senior Circuit Judge. 
2 

 Opinion for the Court filed PER CURIAM. 

PER CURIAM: A jury found David Safavian guilty on four 

counts of a five-count indictment and acquitted him on one 

count. Safavian moved the district court for a judgment of 

acquittal and a new trial. The district court denied Safavian’s 

motion, United States v. Safavian, 644 F. Supp. 2d 1 (D.D.C. 

2009) (Safavian III), and Safavian appealed. We affirm 

Safavian’s convictions on all four counts. 

I. Background 

Safavian and lobbyist Jack Abramoff were longtime 

colleagues and friends. In 2002, when Safavian was 

appointed Chief of Staff of the General Services 

Administration, Abramoff began asking Safavian for 

information about two properties the GSA owned. Some time 

after Safavian supplied the information, Abramoff invited him 

on a golf trip to Scotland. Knowing certain laws and ethical 

rules governed who could pay for this trip, Safavian e-mailed 

the General Counsel of the GSA seeking ethical advice. 

Safavian’s email explained he intended to pay the costs of his 

greens fees, hotels, and meals, but Abramoff would pay for 

airfare because Abramoff was chartering a private flight for 

all the attendees. Safavian’s email also stated Abramoff “has 

no business before GSA (he does all of his work on Capitol 

Hill).” In response to that email, the ethics officer of the GSA 

(brought into the loop by the General Counsel) responded 

that, under the circumstances described, Safavian could 

accept the gift of free airfare. Before the group left for 

Scotland Safavian gave Abramoff a check for $3,100, the 

amount Abramoff had told him would cover his share of the 

costs of the trip excluding airfare. 
3 

Based upon an anonymous tip, the GSA Office of the 

Inspector General (OIG), the Senate Committee on Indian 

Affairs, and the Federal Bureau of Investigation investigated 

Safavian regarding the trip. He was thereafter indicted on 

five counts: three counts of “falsif[y][ing], conceal[ing] or 

cover[ing] up by any trick, scheme, or device a material fact” 

within the jurisdiction of any branch of the Government in 

violation of 18 U.S.C. § 1001(a)(1) and two counts of 

obstruction of justice in violation of 18 U.S.C. § 1505. 

Specifically, Count One alleged Safavian obstructed the 

investigation of the OIG; Count Two alleged he made a false 

statement and concealed information in the course of seeking 

an ethics opinion; Count Three alleged he made a false 

statement to and concealed information from the OIG; Count 

Four alleged he obstructed a Senate Committee’s 

Investigation; and Count Five alleged he made false 

statements and provided false documents to that Senate 

Committee. Safavian was convicted on Counts One, Two, 

Three, and Five. 

Safavian appealed and we either reversed or remanded 

his convictions on all four counts. United States v. Safavian, 

528 F.3d 957 (2008) (Safavian II). The portion of the court’s 

opinion relevant to this appeal pertains to Safavian’s effort at 

his first trial to present the defense of literal truth to Counts 

One, Two, and Five. Safavian argued he did not make a false 

statement when he told the OIG, the ethics officer, and the 

Senate Abramoff was not “doing business” with the GSA 

because by “doing business” he meant — as any professional 

government contractor would have understood — that at the 

time of the trip Abramoff had no outstanding contracts and 

was not “exchanging property or services for money” with the 

agency. Id. at 962, 965–66. Although Safavian sought to 

introduce expert testimony to show his definition of that 

phrase was not “made up out of whole cloth,” the district 
4 

court ruled Safavian’s expert would not help the jury and 

would in fact confuse them. Id. at 966. On appeal we held 

the district court abused its discretion in excluding the 

expert’s testimony and we remanded for a new trial. Id. at 

966–69. 

Following failed plea negotiations, the Government 

sought a second indictment against Safavian. The 

superseding indictment again charged Safavian with five 

counts. Three of the counts — Count One, obstructing the 

OIG’s investigation; Count Two, making false statements in 

the course of seeking an ethics opinion; and Count Four, 

obstructing the Senate’s investigation — mirrored charges in 

the original indictment. Counts Three and Five were based 

upon previously uncharged conduct. Pursuant to federal 

statute, certain governmental employees are required to report 

any gifts they receive in excess of a specified value. Ethics in 

Government Act of 1978, Pub. L. No. 95-521, Title I, § 102, 

92 Stat. 1824, 1825 (codified as amended at 5 U.S.C. App.4 § 

102(2)(A)); see 5 C.F.R. § 2634.304. In 2002, that disclosure 

threshold was set at $260. 65 Fed. Reg. 69,655, 69,655 

(2000). Count Three alleged Safavian made a false statement 

on the Financial Disclosure form he submitted to the GSA in 

2002 because he knew the portions of the trip Abramoff paid 

for exceeded that amount and, therefore, he falsely stated he 

received only one gift worth more than $260 in that year, to 

wit, an excursion paid for by a national political committee. 

Count Five charged Safavian with making false statements to 

an FBI agent during the course of the agency’s investigation. 

The Government alleged Safavian falsely told the FBI that: (i) 

none of Abramoff’s requests for information about two 

properties owned by GSA occurred prior to the trip to 

Scotland; (ii) at the time Abramoff invited Safavian to 

Scotland, Safavian was too new at the GSA to help Abramoff 

in his dealings with the agency; and (iii) Safavian paid in 
5 

advance for his share of the cost of the trip with the $3,100 

check he gave Abramoff. 

The jury convicted Safavian on Counts One, Two, Three, 

and Five, and again acquitted him on Count Four. After trial 

Safavian moved for an acquittal on Counts Three and Five on 

the ground they were added to the second indictment due to 

prosecutorial vindictiveness. He also moved for acquittal on 

Counts Two and Five, arguing the Government failed to 

prove his false statements to the ethics officer and to the FBI 

were material within the meaning of § 1001(a)(1). Finally, 

Safavian moved in the alternative for a new trial on Counts 

One and Three because, he argued, the district court 

improperly admitted evidence regarding the cost of the 

private plane Abramoff had chartered for the trip to Scotland 

and such evidence was prejudicial. The district court denied 

Safavian’s motions and Safavian appealed. 

We affirm the judgment of the district court. Our reasons 

for rejecting Safavian’s arguments pertaining to Counts One, 

Two, and Three are the same as those set out in the opinion of 

the district court and we need not repeat them here. See 

Safavian III, 644 F. Supp. 2d at 8–10, 12–14, 19–23. Our 

reasons for rejecting Safavian’s arguments pertaining to 

Count Five are set out below. 

II. Analysis 

Count Five of the superseding indictment charged 

Safavian with making false statements to the FBI. As an 

initial matter, Safavian argues his conviction on that count 

must be reversed because the statements he made to the FBI 

were not material within the meaning of § 1001(a)(1). 

Safavian maintains that a statement is material only if it is 

actually capable of influencing a government action. Because 
6 

it is undisputed the agent who interviewed Safavian knew, 

based upon his knowledge of the case file, that the 

incriminating statements were false when Safavian uttered 

them, Safavian argues those statements were not capable of 

influencing the FBI’s actions and were therefore not 

“material.” As the Government points out, however, we 

rejected the same argument last term in United States v. 

Moore, 612 F.3d 698 (2010). In Moore we held “a statement 

need not actually influence an agency in order to be material; 

it need only have a natural tendency to influence or be 

capable of influencing an agency function or decision.” Id. at 

701–02 (internal quotation marks and alteration omitted). It 

follows that so long as Safavian’s false statements were 

capable of influencing the course of the FBI’s investigation 

 and we agree with the district court that but for the fortuity 

of the agent’s preparation they could have done  those 

statements were material within the meaning of § 1001(a)(1). 

That leaves only Safavian’s argument Count Five should be 

vacated under the doctrine of prosecutorial vindictiveness. 

“The doctrine of prosecutorial vindictiveness developed 

as a corollary to the vindictiveness doctrine that precludes, as 

a matter of due process, imposition by a judge of a more 

severe sentence upon retrial after a defendant has successfully 

exercised a constitutional right or pursued a statutory right of 

appeal or collateral attack. In the prosecutorial context, the 

doctrine precludes action by a prosecutor that is designed to 

penalize a defendant for invoking any legally protected right 

available to a defendant during a criminal prosecution.” 

Maddox v. Elzie, 238 F.3d 437, 446 (D.C. Cir. 2001) (internal 

citation omitted). A defendant may prove prosecutorial 

vindictiveness by submitting either (i) evidence of the 

prosecutor’s actual vindictiveness or (ii) evidence sufficient 

to establish a “realistic likelihood of vindictiveness,” thereby 

raising a presumption the Government must rebut with 
7 

objective evidence justifying its action. United States v. 

Meyer, 810 F.2d 1242, 1245 (D.C. Cir. 1987) (internal 

quotation marks and alteration omitted), reh’g granted and 

opinion vacated, 816 F.2d 695 (D.C. Cir.), reh’g denied and 

opinion reinstated, 824 F.2d 1240 (D.C. Cir. 1987). If the 

Government can produce objective evidence that its motive in 

prosecuting the defendant was not vindictive, then “the 

defendant’s only hope is to prove that the justification is 

pretextual and that actual vindictiveness has occurred.” Id.

The district court held Safavian submitted evidence 

sufficient to raise a “presumption” the Government acted 

vindictively in adding Count Five. Because the Government 

offered two reasons the addition of Count Five was not 

vindictive, the district court found that presumption was 

nonetheless overcome. “This court reviews the District 

Court's finding regarding vindictiveness for clear error.” 

United States v. Gary, 291 F.3d 30, 34 (D.C. Cir. 2002); see 

also Meyer, 810 F.2d at 1244–46, 1248–49. According the 

district court the deference it is due under this standard, we 

agree with Safavian that, upon the facts of this case, the 

district court did not clearly err in presuming vindictiveness 

on the part of the prosecution. Nor, however, did the district 

court clearly err in holding the Government overcame that 

presumption. 

A. Establishing the Presumption 

To get the benefit of the presumption, a defendant must 

show the prosecutor’s action was “more likely than not” 

attributable to vindictiveness. See Gary, 291 F.3d at 34 

(quoting Alabama v. Smith, 490 U.S. 794, 801 (1989)). We 

have held “a prosecutorial decision to increase charges after a 

defendant has exercised a legal right does not alone give rise 

to a presumption in the pretrial context,” Meyer, 810 F.2d at 
8 

1246, but it is surely a fact relevant to the analysis, see id. It 

is also a fundamental assumption of the doctrine of 

prosecutorial vindictiveness that a prosecutor, like a judge, 

being but human “may have a personal stake in [a] prior 

conviction and a motivation to engage in self-vindication,” 

United States v. Stanfield, 360 F.3d 1346, 1362 (D.C. Cir. 

2004) (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 27 

(1973)), and it follows that a decision to add charges after a 

defendant’s conviction has been reversed risks violating the 

defendant’s right to due process. Accordingly, while it 

appears the only relevant fact the district court considered in 

erecting the presumption of vindictiveness was that the 

prosecutor added new charges after Safavian had successfully 

exercised his right to appeal,*

 we cannot say the district court 

clearly erred in presuming the Government was being 

vindictive in adding Counts Three and Five, regardless 

whether we would reach that conclusion were we making the 

decision in the first instance. 

B. Overcoming the Presumption 

In concluding the Government offered objective evidence 

sufficient to rebut the presumption of vindictiveness, the 

district court relied upon both of the Government’s proffered 

reasons for adding Count Five: The prosecution needed to 

change its trial strategy in the wake of this court’s ruling in 

Safavian’s first appeal by (1) ensuring Safavian’s statements 

to the FBI were admissible so as to meet the defense of literal 

truth and any expert testimony concerning the meaning of the 

 

* See Safavian III, 644 F. Supp. 2d at 13; see also Transcript of 

Motions Hearing at 7, Safavian III (Nov. 26, 2008) (contrasting the 

facts in Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978), with the 

facts at bar and noting that in Safavian’s case “the threat of greater 

charges in the context of plea discussions ... was really a threat of 

greater charges post-successful appeal”). 
9 

phrase “doing business” Safavian might offer; and (2) 

expanding the scope of the indictment so as to include 

unlawful actions lying outside that defense and beyond the 

scope of the defense expert’s testimony. Safavian III, 644 F. 

Supp. 2d at 15–17. 

The Government reiterates these arguments on appeal. 

First, the Government maintains it needed to add Count Five 

in order to undermine Safavian’s defense of literal truth and 

the supportive expert testimony he planned to introduce 

concerning the meaning of the phrase “doing business.” The 

Government maintains Safavian’s statements to the FBI show 

he did not have the literal definition of the phrase “doing 

business” in mind when he spoke to the ethics officer about 

Abramoff’s business dealings and, therefore, Safavian’s 

statements to the FBI are crucial to its case. The Government 

contends its prosecutors were concerned, prior to the second 

trial, that the district court would hold Safavian’s statements 

to the FBI were nonetheless inadmissible. To ensure the 

statements to the FBI would be admitted, the Government 

argues it was necessary to charge Safavian made them with 

the knowledge they were false, in violation of § 1001(a)(1). 

Second, the Government argues it added Count Five as a 

matter of trial strategy: Because this court had held Safavian 

should have been permitted to introduce expert testimony 

about the meaning of the phrase “doing business,” the 

Government wanted to expand the focus of the prosecution 

beyond that of the original indictment; it sought to include 

other false statements Safavian made, unrelated to “doing 

business,” as a way of hedging its risk. 

Safavian argues these reasons are objectively 

unreasonable and the district court clearly erred in holding 

they were sufficient to overcome the presumption. As to the 

former, Safavian argues that if the Government “believed 
10 

[his] statements to [the FBI] were inconsistent with or 

negated his defense,” then the Government “could have 

responded by introducing evidence of those statements, 

without charging an additional offense”; as to the latter, 

Safavian argues that because a “trial strategy is inherently 

subjective in nature,” a prosecutor’s “personal assessment” of 

the need to change a trial strategy after appeal cannot provide 

the “objective” justification necessary for overcoming the 

presumption of vindictiveness. 

We agree with Safavian that the first of the 

Government’s reasons is entirely unpersuasive. At his first 

trial, Safavian presented the defense of literal truth. This 

court’s ruling the district court had erred in refusing to allow 

Safavian to present expert testimony in support of that 

defense could not reasonably have led the Government to 

doubt its ability, if it did not add Count Five, to introduce at 

the second trial Safavian’s statements to the FBI. As the 

district judge recognized in a pretrial oral ruling addressing 

the same issue, Safavian’s statements to the FBI were 

evidence of his state of mind and as such “would have come 

in with or without [Count Five] as a way to counter the 

proffered defense.” Transcript of Motions Hearing at 10, 

Safavian III (Nov. 26, 2008). The showing required to 

overcome the presumption of vindictiveness is admittedly 

minimal  any objective evidence justifying the prosecutor’s 

actions will suffice  but the Government’s claimed inability 

to introduce Safavian’s statements into evidence does not 

meet even that low standard.* 

 

*

 The cases the Government cites in support of its position are not 

inapposite; in those cases the Government had objective reason to 

believe the evidence it sought to introduce would be excluded if a 

new charge was not added. See United States v. Poole, 407 F.3d 

767, 776–77 (6th Cir. 2005) (not vindictive to add new charge to a 
11 

The district court’s reliance upon the Government’s 

second argument, however, was not clearly erroneous. The 

Government was objectively reasonable in responding to this 

court’s ruling on appeal by changing its trial strategy and 

refocusing the indictment to include conduct lying outside the 

scope of the defendant’s defense of literal truth and of his 

expert’s testimony. Safavian’s argument that a prosecutor’s 

change in strategy is not an “objective” justification subject to 

judicial review is unpersuasive where, as here, the 

Government changed its trial strategy in response to an 

adverse ruling of the court; in this circumstance, the court’s 

ruling provides a basis for assessing the objective 

reasonableness of the Government’s adding a new charge. 

For example, if, instead of charging Safavian in the new count 

with conduct falling outside the scope of the defense of literal 

truth, the Government had charged Safavian with falsely 

telling the IRS (instead of a Senate Committee) that Abramoff 

did not “do business” with GSA, then it could not reasonably 

invoke our decision in Safavian II to justify its decision 

because the new charge would be as vulnerable to Safavian’s 

defense of literal truth as was the old. 

In this case the addition of Count Five was objectively 

reasonable and the presumption of vindictiveness was 

 

superseding indictment to ensure introduction of evidence ruled 

inadmissible at first trial); United States v. Hill, 93 F. App’x 540, 

546 (4th Cir. 2004) (not vindictive to charge overt acts of 

conspiracy as separate counts in superseding indictment to reflect 

evidentiary rulings in first trial); cf. United States v. Davis, 108 F. 

App’x 131, 135–36 (5th Cir.2004) (Government’s explanation it 

added a conspiracy charge to a superseding indictment “as a way to 

‘overcome’ issues of admissibility as to certain testimony” was 

“reasonable because the added ... charge allowed the [G]overnment 

greater flexibility in introducing witness testimony”). 
12 

dispelled. Inasmuch as Safavian offered neither argument nor 

evidence the Government acted with actual vindictiveness, his 

conviction must be 

Affirmed.