USA v. Safavian

REPLY in Support

D.D.C.May 2, 2006

1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA : Cr. No 05-370 (PLF) : v. : : DAVID HOSSEIN SAFAVIAN : : Defendant : GOVERNMENT’S REPLY IN SUPPORT OF GOVERNMENT’S MOTION (DOCKET # 66) FOR PRE-TRIAL DETERMINATION OF ADMISSIBILITY OF CERTAIN EVIDENCE The United States of America, by and through its undersigned attorneys, hereby respectfully submits this Reply in support of Government’s Motion for Pre-trial Admissibility of Certain Evidence (hereinafter “Docket # 66"). Defendant objects to the very idea of having the Court rule on the admissibility of this evidence pre-trial and, instead, seeks to “reserve[] [his] objection[s] to the admissibility of any proposed exhibit until it is offered at trial.” Def. Opposition to Government’s Motion for Pre- trial Admissibility of Certain Evidence (hereinafter, “Docket # 82"), p. 2. Defendant’s objection has no merit. Permitting defendant to wait until trial to voice his objections to the admission of the proffered evidence would cause enormous delay during the trial. The e-mails will make up the bulk of the government’s case against the defendant. Arguing over the admissibility of each and every e-mail while a witness is on the stand and a jury is in the box will result in innumerable – and otherwise avoidable – time-consuming bench Case 1:05-cr-00370-PLF Document 85 Filed 05/02/2006 Page 1 of 24 Indeed, the government’s previous estimates on the length of trial was premised on the1 assumption that these evidentiary issues would be resolved prior to the jury being sworn. At the scheduled May 5, status hearing the government will provide defense counsel and the2 Court with a binder containing the proffered e-mails (comprising both the government’s initial and supplemental submissions) in chronological order, with exhibit numbers attached. While the government may seek to admit other e-mails at trial, we will not seek to do so under any of these particular legal theories. 2 conferences. Because the Court is already well-aware of what the Indictment alleges and has1 had the opportunity to review the proffered e-mails, and can, through these pleadings, entertain arguments from both sides as to the admissibility of the e-mails, it is in as good a position now to make evidentiary rulings on hearsay or relevance grounds as it will be at trial. In addition, a pre-trial ruling on admissibility, made pursuant to Fed. R. Evid. 104, will better enable the parties to prepare for trial, as both sides will know in advance what evidence will be admitted at trial, and for what purposes. Moreover, defendant’s claim that the government’s request for a “pre-trial determination for every e-mail sent by” defendant is “premature [] [because] [t]he government needs to delineate which e-mails it is referring to meet its evidentiary burden” Docket # 82, p. 20 (emphasis in original) evinces a fundamental misunderstanding of the government’s prior pleadings. The government does not know how it can be more clear: the government will be seeking to introduce all of the proffered e-mails. See (Docket # 66), fn. 2 (“The e-mails the government will be seeking to admit at trial are attached hereto as Exhibits A, B, C, and D.”) Thus, out of the thousands of e-mails provided in pre-trial discovery, we have identified the several hundred e-mails we are seeking to introduce. 2 Defendant also complains that he is being put in a position where he must “guess which Case 1:05-cr-00370-PLF Document 85 Filed 05/02/2006 Page 2 of 24 The government’s argument that the e-mails, in and of themselves, constitute “doing business”3 or “work” is merely a subset of the argument that the e-mails are not hearsay because they are not being introduced to prove the truth of the matter asserted. See Docket 66, pp. 4-5. The government understands that defendant is claiming that none of the e-mails have been4 authenticated. The government argues at some length in its previously filed 902(11) pleading (Docket No. 78), as well as infra, why we believe authentication is not a legitimate bar to the admissibility of these e-mails. We will not repeat those arguments here. For example, on July 2, 2002, Abramoff e-mailed defendant with the following message (DOJ5 DS-007439): “We met on the other project yesterday. can I hook up with you this week to discuss? On the White Oak, that is great. what can we do to get in position? Any sense as to whether there are any buildings not already allocated, in addition to land?” Defendant’s response: “I don’t have 3 of the five reasons for admissibility fits the e-mail.” Def. Oppos., p. 2. No such guesswork is necessary. Every e-mail drafted and sent by defendant is admissible as a statement of a party opponent, pursuant to Rule 801(d)(2)(A). In addition, the e-mails written by Jack Abramoff and sent to defendant are admissible under two distinct legal theories: as a statement of a co- conspirator, or, in the alternative, as non-hearsay statements which are admissible to show their effect on defendant.3 The most efficient way to discuss the precise grounds of admissibility is to group the e- mails by category and to articulate why each category of e-mails should be admitted. 4 I. E-Mails Written and Sent by Defendant A. Admissions of Party Opponent Pursuant to Fed.R.Evid. 801(d)(2) The government will be seeking to admit all of the proffered e-mails written by defendant as admissions of a party opponent (Fed. R. Evid. 801(d)(2)). Defendant appears to concede this theory of admissibility. Docket # 82, p. 19 - 20. To the extent that defendant’s e-mail responses can only be understood when read in conjunction with the questions that spurred them, the questions must also be admitted. See United States v. Lemonakis, 485 F.2d 941, 948 (D.C. Cir.5 Case 1:05-cr-00370-PLF Document 85 Filed 05/02/2006 Page 3 of 24 the answers to these questions. But I will come Thursday night. Dhs” Obviously, defendant’s response is meaningless without knowing the questions to wich he is referring. Another example occurs on July 21, 2002 (DOJ-DS-000990), where Abramoff e-mails defendant: “The facility is secured, as I understand. Any thoughts on how we could get a tour there without giving a heads up to too many folks?” and defendant responds, “Let me make a couple of calls on Monday from Utah. I will get back to you either way.” Defendant’s response is nonsensical without the antecedent e- mail from Abramoff. For example, on July 23, 2002 (DOJ-DS-000996), defendant requested information from6 someone in the GSA administration, and then forwarded the information on to Abramoff with the message: “Fyi.” Later that same day, defendant again forwards an update with the same e-mail chain (DOJ-DS-001002 - 1003), this time with the message, “Havent [sic] seen the paperwork yet. I assume I wil [sic] get something tomorrow morning. Sorry. Bureaucracy strikes again.” On July 26, 2002, defendant forwarded an e-mail chain (DOJ-DS-001034-1035) to defendant with the message, “This is the type of bureaucracy I’m dealing with. I am still running the traps on the I [sic] year lease. Dhs.” 4 1973) (statements of non-defendant admissible not for the truth of what was being asserted, “but, to the extent to which the [defendant’s] responses constituted incriminating admissions of his own, to make those responses intelligible to the jury and recognizable as admissions.”) B. Adoptive Admissions Pursuant to Fed.R.Evid. 801(d)(2)(D) The government also seeks admission of a number of e-mails as adoptive admissions pursuant to Fed.R.Evid. 801(d)(2)(D). Defendant objects to the admission into evidence of the e- mail chains that defendant forwarded on to Abramoff as adoptive admissions (Docket # 82, p. 20) because, he claims, there is insufficient indication that defendant adopted these particular e- mails. This argument is baseless, and these e-mails should also be admitted. On a number of occasions, defendant forwarded to Abramoff internal GSA e-mail traffic that had been sent to defendant by his GSA colleagues. Generally, defendant would forward these e-mail chains with a message of some sort, although on some occasions defendant simply6 Case 1:05-cr-00370-PLF Document 85 Filed 05/02/2006 Page 4 of 24 E.g., July 26, 2002 (DOJ-DS-001025). 7 5 forwarded to Abramoff the e-mail chain without comment.7 Defendant argues that e-mail chains forwarded by defendant – be they with or without comment – lack sufficient indication to “indicate unambiguous assent to every statement contained therein,” and that “the mere act of forwarding [a] document to another person provides no assurance that [defendant] adopted every detail as his own” (Def. Oppos., p. 21, (emphasis supplied)). This argument is groundless. Read literally, it would mean that a statement could not be deemed an adoptive admission under Fed.R.Evid. 801(d)(2)(D) unless the putative adoptee explicitly endorsed each and every factual assertion sought to be introduced. Such a requirement would eviscerate the rule: there would be no need for the doctrine of adoptive admissions if it were required that the adoptee spell out the fact that he believes the information to be introduced is true and accurate; such a statement would be admissible simply as a statement of a party opponent pursuant to Rule 801(d)(2). Defendant’s argument goes to the weight these statements should be accorded by the jury, not to their admissibility. Clearly, what is happening in these particular e-mails is that defendant is sharing with Abramoff the answers to relevant questions that Abramoff has asked defendant. Forwarding these e-mails on with just a brief – or even no – comment is simply a shorthand method of conveying that information to Abramoff, rather than paraphrasing the information in defendant’s own e-mail. Defendant would not have forwarded this information had he thought the information was false, incorrect or misleading. Indeed, the editorial comments to the attachments, although often expressing frustration with the bureaucratic process, in no way indicate that defendant has any misgivings about the accuracy of the information he was Case 1:05-cr-00370-PLF Document 85 Filed 05/02/2006 Page 5 of 24 Moreover, the e-mail chains are also admissible not to prove the truth of the matters asserted8 therein but as non-verbal conduct that demonstrates that defendant provided internal GSA information to Abramoff. An analogy would be if there were evidence that defendant hand-delivered GSA documents to Abramoff, and the government later recovered these documents from Abramoff. The government would then introduce those documents at trial, not to prove what was stated therein, but to demonstrate the fact that defendant was providing GSA materials to Abramoff. 6 forwarding. Given the obviously close relationship between defendant and Abramoff, it seems almost inconceivable that defendant would deliberately forward to him information that defendant knew was inaccurate or misleading. See advisory committee notes, Fed. R. Evid. 801(d)(2)(B) (“Under established principles an admission may be made by adopting or acquiescing in the statement of another. While knowledge of contents would ordinarily be essential, this is not inevitably so ....Adoption or acquiescence may be manifested in any appropriate manner. When silence is relied upon, the theory is that the person would, under the circumstances, protest the statement made in his presence, if untrue. The decision in each case calls for an evaluation in terms of probable human behavior.”) In this case, “probable human behavior” supports the notion that defendant would not have silently forwarded on to Abramoff e-mails he believed to be untrue; rather, he would have not sent them at all or sent them with a note indicating his disbelief in the attached message.8 II. E-Mails Written and Sent by Jack Abramoff A. Co-Conspirator Statements The government has argued that all of Abramoff’s e-mails can be admitted as a coconspirator’s statement made in furtherance of a conspiracy, pursuant to Fed.R.Evid. 801(d)(2)(E), because defendant and Abramoff were engaged in an uncharged conspiracy to Case 1:05-cr-00370-PLF Document 85 Filed 05/02/2006 Page 6 of 24 Given that the government has argued that defendant and Abramoff were engaged in a criminal9 conspiracy to commit honest services fraud (see, Docket # 66, pp. 5-11), the government is puzzled by defendant’s statement that “[n]otably, the government does not claim that the [defendant- Abramoff] relationship violated any governing standards or codes.” Def. Oppos., p. 1. On the contrary, the government has clearly argued that the relationship violated the United States criminal code. 7 commit honest services fraud. See, Docket # 66, pp. 5-11. Defendant argues against this9 theory, claiming that there is insufficient independent evidence to support the conspiracy argument (Def. Oppos., p. 8); that the e-mails cannot be shown to have been made “in furtherance” of the alleged conspiracy; and because the coconspirator theory fails where, as here, the alleged conspiracy is not a conspiracy to commit the charged offenses, i.e., the government has alleged defendant conspired to commit honest services fraud, but defendant has been charged substantively only with making false statements and obstruction of justice (Docket 82). None of these arguments are meritorious. 1. There is Sufficient Independent Evidence to Establish to Establish a Conspiracy to Commit Honest Services Fraud While the government agrees that there must be some independent evidence separate and apart from the co-conspirator’s statements to establish the existence of a conspiracy, the government strongly disagrees that such independent evidence is lacking in this case. At the outset, is should be emphasized that this Court, when determining whether or not a conspiracy existed, can consider the putative coconspirator’s statements. United States v. Beckham, 968 F.2d 47, 51 (D.C. Cir. 1992) (“The hearsay statement may be considered in finding that a conspiracy existed, but the statement may not be the sole basis for such a ruling....there must be independent evidence of a conspiracy as well.”) (citation omitted.) “The court must consider in addition to the circumstances surrounding the statement, such as the Case 1:05-cr-00370-PLF Document 85 Filed 05/02/2006 Page 7 of 24 8 identity of the speaker, the context in which the statement was made, or evidence corroborating the contents of the statement in making its determination as to each preliminary question.” Advisory Committee notes to Rule 801(d)(2). Thus, in determining whether or not defendant and Abramoff were engaged in a conspiracy to defraud the public of defendant’s honest services, the Court may properly consider all of Abramoff’s e-mails. Coupled with this evidence is a wealth of independent evidence that the Court can consider. First, the Court may properly consider all of defendant’s e-mails to Abramoff, which, as demonstrated above, are substantive evidence against defendant as statements of a party opponent (Fed. R. Evid. 801(d)(2)). Therefore, for example, the Court may properly consider as independent evidence the e-mail defendant sent to Abramoff on July 23, 2002 (DOJ-DS- 0015102), in which, in response to Abramoff’s query, “David, can you push this guy, or what else should we do?”, defendant responds, “I spoke with our Congressional Affairs guy. He has reservations, but i have overruled him. What I am trying to get a hold of is an actual map of the land and facilities. I hope to have something this afternoon for you...uh...I mean...for Ms. Capito. Dhs.” A review of the preceding e-mails reveals that defendant was trying to assist Abramoff by using the name of Ms. Capito, a West Virginia congresswoman, to help pry information from defendant’s colleagues at GSA. It is also clear from this e-mail, which, although sent on a Tuesday afternoon, was sent from defendant’s home e-mail account rather than his GSA e-mail account, that defendant used his official position to “overrule” a subordinate in order to get Abramoff the information he requested. Additional compelling and independent evidence of the conspiracy can be found in the e- Case 1:05-cr-00370-PLF Document 85 Filed 05/02/2006 Page 8 of 24 9 mails sent by defendant in which he assisted Abramoff in drafting letters which were obviously to be used in lobbying defendant’s his own agency. For example, in an e-mail dated July 28, 2002 (DOJ-DS-001043), defendant helped Abramoff draft a letter that was addressed to the GSA Commissioner of Public Buildings (with a cc to defendant), seeking to acquire GSA land. In defendant’s response, he spells out for Abramoff the precise arguments and language that should be used and pointing out what language should be avoided in order to accomplish Abramoff’s goals. Moreover, on June 19, 2002, Abramoff forwarded to defendant (DOJ-DS-0015091) an e- mail from Jon van Horne which stated in part: Recently the General Post Office Building, also known as the US Tariff Commission Building was leased to a developer for conversion into a luxury hotel under the authority of section 111 of the National Historic Preservation Act (NHPA). It would be very helpful if we could obtain a copy of the solicitation that was used in that case (without any full size architectural drawings) to select the developer. Abramoff attached to the van Horne e-mail the following query: “David, can you get us this stuff so we can put together the bid specs?” Defendant responded later that same day (June 19): “Jack – I have some materials in my office that i will get over to you. David” As exemplified in that and other e-mail exchanges, defendant provided to Abramoff GSA materials in order to assist Abramoff in his efforts to obtain control over the Old Post Office Building. In addition, as pointed out in our prior submission, Docket # 66, the Court can and should consider the fact that even during normal business hours defendant and Abramoff e-mailed one Case 1:05-cr-00370-PLF Document 85 Filed 05/02/2006 Page 9 of 24 In a July 23, 2003 e-mail (DOJ-DS-0015014), defendant wrote: “Feel free to share this10 information – but of course, not the email directly.” On January 13, 2003 (DOJ-DS-0015213) defendant wrote: “Please don’t forward the email onward. Rather if you can let them know via phone, or put it into a separate email as though it came from you, that would be more appropriate. David.” The GSA Administrator was out of the office and did not attend this meeting.11 The Court can permit the statements in at trial “subject to connection.” United States v. Gantt,12 617 F.2d 831, 845 (D.C. Cir. 1980) (“[a]s a practical matter, to avoid what otherwise would become a separate trial on the issue of admissibility, the court may admit declarations of coconspirators 10 another primarily via defendant’s home e-mail account rather than his GSA account, and that defendant made explicit to Abramoff the fact that it was important that the non-public GSA information defendant provided to Abramoff not be traced back to defendant. It would be hard10 to imagine more clear evidence of consciousness of guilt. If defendant was providing this information in the normal course of his duties as a public servant, there obviously would have been no need to insist on such secrecy. There will also be independent evidence that on August 2, 2002, defendant arranged a meeting between high-ranking GSA officials representatives of the Eshkol Academy, including Mrs. Abramoff. Defendant chaired the meeting, which took place in the GSA Administrator’s office. At this meeting, there were discussions about the White Oak facility and its suitability11 as a location for a school. Finally, there will be introduced at trial independent evidence of the fact that defendant was invited by Abramoff to go on the Scotland golf trip, and that the trip cost many times more than what defendant paid for it. The government will also introduce direct and independent evidence that defendant attempted to lie about the circumstances surrounding his trip to Scotland.12 Case 1:05-cr-00370-PLF Document 85 Filed 05/02/2006 Page 10 of 24 ‘subject to connection.’”) 11 Thus, the Court will have before it independent evidence that defendant provided to Abramoff a wealth of information, advice and assistance and received a week’s vacation, including four days of golf in Scotland, capped off by three nights in London at a luxury hotel. For this trip, defendant paid a fraction of the true cost. When coupled with the Abramoff statements, the government has clearly met its burden of establishing, by a preponderance of the evidence, that defendant and Abramoff were engaged in a conspiracy and that the statements were made in furtherance thereof.” United States v. Bourjaily, 483 U.S. 171, 175 (1987). 2. The Statements Were Made In Furtherance of the Conspiracy By definition, a statement of a coconspirator can only be admitted as substantive evidence if it is made in furtherance of the conspiracy. Fed.R.Evid. 801(d)(2)(E). See United States v. Edmond, 52 F.3d 1080, 1110-1111 (D.C. Cir. 1995) (“a statement is admissible under Rule 801(d)(2)(E) if it ‘can reasonably be interpreted as encouraging a co-conspirator or other person to advance the conspiracy, or as enhancing a co-conspirator or other person’s usefulness to the conspiracy.’” (citations omitted). Under this definition, all of the e-mails written by Abramoff to defendant were made in furtherance of the conspiracy. Whether Abramoff wrote seeking advice, information or assistance from defendant, or whether Abramoff was offering defendant invitations for golf, racquetball, dinner or sporting events, all of these e-mails were designed to “encourage” or “advance” the conspiracy between defendant and Abramoff whereby defendant provided Abramoff assistance on GSA issues and Abramoff provided Safavian with things of value. In addition to the e-mails between defendant and Abramoff, the government is seeking to Case 1:05-cr-00370-PLF Document 85 Filed 05/02/2006 Page 11 of 24 12 introduce eight e-mails (attached at Ex. “A”) between Abramoff and third-parties, which also constitute statements made in furtherance of the conspiracy. For example, on July 30, 2002, (DOJ-DS-007050) when Abramoff tells his wife, “When you are in the room with David and the other GSA folks, identify yourself as Pam Alexander or Pam Clarke. David does not want Abramoff used in the meeting ... David and I don’t want to take a chance.” he is conveying this information so that the scheme to defraud the public can more likely succeed; Abramoff and defendant did not want Abramoff’s involvement in the White Oak property to become known, as it would cause too much attention. The same arguments apply to all of this subset of e-mails; they were written by Abramoff to third-parties in order to advance and further the ends of the conspiracy. 3. Coconspirator’s Statements Admissible Where Alleged, Uncharged Conspiracy Differs From Charged Offenses Finally, defendant argues that the government may only seek to admit coconspirator statements pursuant to Federal Rule of Evidence 801(d)(2)(E) where the statements were made in furtherance of a conspiracy to commit the charged offenses. This is not an accurate statement of the law. No federal Court of Appeals has held that the conspiracy in furtherance of which the statements are made need be one to commit the crime or crimes charged in the indictment. “[T]he objective of the joint venture need not be the crime charged in the indictment.” United States v. Russo, 302 F.3d 37, 45 (2d Cir. 2002). Indeed, several circuits, including the D.C. Circuit, have held that the conspiracy need not even have an illegal objective. See United States v. Weisz, 718 F.2d 413, 433 (D.C. Cir. 1983) (“Although Rule 801(d)(2)(E) refers to Case 1:05-cr-00370-PLF Document 85 Filed 05/02/2006 Page 12 of 24 13 ‘conspiracy’ and statements of a ‘coconspirator,’ its use of those terms is not intended to limit applicability of the doctrine to unlawful combinations . . . .”); United States v. Layton, 855 F.2d 1388, 1398 (9th Cir. 1988) (“[T]he common enterprise need not have an illegal objective.”), overruled in part on other grounds by United States v. George, 960 F.2d 97 (9th Cir. 1992); United States v. Coe, 718 F.2d 830, 835-36 & n.3 (7th Cir. 1983). The general rule, contorted by defendant in his response, “requires only that the conspiracy introduced into evidence by the Government be factually intertwined with the offense for which the defendant is being tried.” United States v. Kendall, 665 F.2d 126, 131 (7th Cir. 1981) (quotation marks omitted); accord United States v. Stratton, 779 F.2d 820, 829 (2d Cir. 1985). The “factually intertwined” language “is essentially a restatement of ordinary relevancy principles.” United States v. Ellis, 156 F.3d 493, 497 (3d Cir. 1998). Here, defendant and Abramoff conspired to deprive the public of defendant’s honest services. This conspiracy is factually intertwined with the obstruction and false statement charges because, as the government contends, defendant lied and obstructed justice so that his boss and the public would not learn of the existence of the conspiracy to commit honest services fraud. For theses reasons, defendant’s contention is meritless, and Abramoff’s emails are admissible under Rule 801(d)(2)(E). B. Admissible Because Not Hearsay Defendant claims that the e-mails written and sent by Abramoff to defendant are barred by the rule against hearsay. Defendant’s argument is incorrect. The e-mails sent by Abramoff are not hearsay because they are not factual assertions being introduced to prove the truth of the matter asserted. Therefore, they are admissible. Case 1:05-cr-00370-PLF Document 85 Filed 05/02/2006 Page 13 of 24 14 This Circuit has previously considered, and rejected, hearsay arguments strikingly similar to those advanced here by defendant. In United States v. (Keith) Long, 905 F.2d 1572 (D.C. Cir. 1990), police officers were executing a search warrant at defendant’s apartment when the telephone rang. Id. at 1579. When a police officer answered the phone, an unidentified female voice asked to speak to “Keith.” Id. When told that he was busy, the caller “asked if Keith ‘still had any stuff.’ The officer asked the caller what she meant, and the caller responded ‘a fifty.’ The officer said ‘yeah.’ The caller then asked whether ‘Mike’ could come around to pick up the ‘fifty.’ Again, the officer answered yes.’” Id. In his ensuing trial on narcotics charges, Long sought pre-trial to preclude admission of the telephone conversation, making virtually the identical arguments as defendant in this case: Although Long concedes the caller did not expressly assert that he was involved in drug distribution, he argues that her questions contain implicit assertions about his involvement. Long contends that it is irrelevant that these alleged assertions were couched in question form, since the questions plainly revealed assumptions that are the functional equivalent of direct assertions. Long maintains that the caller, through her questions, in effect asserted that ‘Keith has crack and sells it out of Mayfield’s apartment.’ He argues that the government introduced this testimony to prove the truth of precisely these assertions, and that the testimony, thus, should have been excluded as hearsay. Id. (emphasis in original). In rejecting this argument, the Court noted that the hearsay prohibition applies only to “assertions” and that “‘nothing is an assertion unless intended to be one.’” Id., quoting Fed. R. Evid. 801 advisory committee note (emphasis in original). Under this analysis, the unknown caller’s words “cannot be characterized as an ‘assertion,’ even an implied one, unless the caller intended to make such an assertion.” Id. “When a declarant does not intend to communicate anything, [] his sincerity is not in question and the need for cross-examination is Case 1:05-cr-00370-PLF Document 85 Filed 05/02/2006 Page 14 of 24 See also, United States v. Oguns, 921 F.2d 442, 448-449 (2d. Cir. 1990) (call to apartment by13 an unknown caller during police search asking “have the apples arrived there” admissible as non- hearsay circumstantial evidence of defendant’s ‘knowledge and intent regarding the importation and distribution charges;” “Because a question cannot be used to show the truth of the matter asserted, the dangers necessitating the hearsay rule are not present.”); United States v. Daniels, 48 Fed.Appx. 409, 412 (3 Cir. 2002) (unpublished) 2002 WL 31255451, (“the federal courts of appeal are inrd agreement that interrogative statements cannot constitute hearsay because they do not assert the existence of facts and thus cannot be used to ‘prove the truth’ of any matter.”); Inc. Pub. Corp. v. Manhattan Magazine, Inc., 616 F. Supp. 370, 388 (S.D.N.Y. 1985) (“An inquiry is not an ‘assertion,’ and accordingly is not and cannot be a hearsay statement.”). 15 sharply diminished. Thus, an unintentional message is presumptively more reliable. ... Evidence of unintended implicit assertions is ‘[a]dmittedly ... untested with respect to the perception, memory, and narration (or their equivalents) of the actor,’ but ‘these dangers are minimal in the absence of an intent to assert and do not justify the loss of the evidence on hearsay grounds.’” Id. at 1580, quoting Fed. R. Evid. 801 advisory committee note. The Long Court’s analysis of the telephone caller’s intent is equally apt when considering Abramoff’s intent when he sent the proffered e-mails to defendant: With our inquiry focused on the intent of the caller, we have little trouble disposing of Long’s theory about implied assertions. Long has not provided any evidence to suggest that the caller, thorough her questions, intended to assert that he was involved in drug dealing. The caller may indeed have conveyed messages about Long through her questions, but any such messages were merely incidental and not intentional. ... Long thus fails to satisfy the intent component of rule 801, which ‘places[s] the burden upon the party claiming that the intention existed.’ Fed.R.Evid. 801 advisory committee note; accord United States v. Hensel, 699 F.2d 18, 31 (1 Cir.), cert. denied, 461 U.S. 958 (1983). Because the caller’sst questions were nonassertive, they fall outside the scope of the hearsay rule, and the trial judge did not err in admitting the testimony concerning the questions. Id. at 1580 (emphasis in original). 13 Using this analytical framework, a review of the e-mails sent by Abramoff to defendant makes clear that the e-mails are not barred by the hearsay rule because the government is not Case 1:05-cr-00370-PLF Document 85 Filed 05/02/2006 Page 15 of 24 July 25, 2002 (DOJ-DS-001009).14 16 seeking to admit these statements to prove the truth of the matters asserted therein. Thus, when Abramoff asks, “Do you guys have the ability to give a short term (one year) lease on property at your discretion? We are in a real bind on the school and I was wondering if there was a way to lease part of the White Oak site for a year?” , the government is not admitting this e-mail to14 prove that Abramoff is truly “in a real bind on the school.” It does not matter why Abramoff is seeking this particular information. The relevance is simply to explain defendant’s subsequent conduct and to show defendant’s state of mind. An analysis of the Abramoff e-mails reveal that they fall into a number of broad categories. A significant number are invitations to defendant for golf, racquetball, sporting events or meals. For example, on September 29, 2002, Abramoff e-mails (DOJ-DS-001104) defendant: “Unfortunately, I have plans already for that day. are you out of town all week? How about a meal at least? I miss our fun!” These e-mails are not hearsay because, once again, they are not being admitted to prove the truth of the matter asserted; that is, it is irrelevant that Abramoff truly wants to share defendant’s company at a meal or sporting event, or that he truly misses defendant or enjoys his company. It may be the case that the opposite is true, and that Abramoff did not like defendant at all and was only giving him an invitation because of defendant’s position at GSA. These e-mails are non-hearsay because they are not offered for their truth, but are relevant simply to show that these invitations were offered to defendant, a fact that cannot be disputed. See advisory committee notes to Fed.R.Evid. 801. A second broad category of e-mails are requests from Abramoff to defendant in which Abramoff specifically asks defendant for advice, help or information on GSA operations. For Case 1:05-cr-00370-PLF Document 85 Filed 05/02/2006 Page 16 of 24 Factual information about the relevant GSA properties will be established by witness testimony.15 The same is true for a large number of other e-mails. For example, the June 18, 2002 e-mail16 (DOJ-DS-0015093) (“Let me know if you want me to send someone over to get the materials on our favorite building. We are working away at that one.”); June 19, 2002 (DOJ-DS-000927), (“David, can you get us this stuff so we can put together the bid specs?”); June 30, 2002 (DOJ-DS- 000954)(“Can you find out if you guys have control of any part of a huge federal property called the White Oak Federal Research Center ...? I want to try to get 40 acres of that tract if possible for a non-profit. Is it doable?”); June 30, 2002 (DOJ-DS007437) (“Thanks David. Yes, that is the one.... Let me know if you think we can do it. thanks so much!!”); July 2, 2002 (DOJ-DS-007544), (in which Abramoff forwards to defendant a message from Jon van Horne with the one-word message, “Possible?”); July 17, 2002 (DOJ-DS-000969) (“How about we bring him [GSA Administrator Steve Perry] with us?”); July 21, 2002 (DOJ-DS-000989) (“If you can get me any info as to which land is still available at White Oak, and whether there are buildings there, that would be huge. Thanks so much.”); July 21, 2002 (DOJ-DS-000991), (“I think we can move the legislation. I have some quick questions.); July 22, 2002 (DOJ-DS-000993) (“Does this work, or do you want it to be longer? It’s the letter from Young, Latourette et al to Steve Perry.”); July 24, 2002 (DOJ-DS- 001006) (What do you advise?”); July 25, 2002 (DOJ-DS-001017) (“Any word on the possibility of a quick short term rental as we discussed this morning? How can I thank you for all you do for me!”); July 25, 2002 (DOJ-DS-001020) (“Any thoughts on the short term rental at White Oak? Thanks David.”); July 26, 2002 (DOJ-DS-001022) (“Does this work? I put in 3 years just to be safe. 17 example, on May 24, 2002 (DOJ-DS-00907 ), Abramoff wrote: “I have a gsa question. There is a facility which is under the control of the GSA in silver Spring Maryland, which was the former Naval Surface Weapons center (off New Hampshire Avenue). They are now going to put the FDA there. it is a huge property. I was wondering if it is possible get some of that property for a school. Do you know if that is doable and how? Thanks.” None of the factual assertions in this particular e-mail are being admitted for the truth of the matter asserted. The government will not be using this e-mail to establish that “there is a facility under the control of the GSA in Silver Spring;” that this property was “former[ly] the Naval Surface Weapons center;” that the FDA was going to build there; or that “it is a huge property.” The e-mail is relevant because it15 explains defendant’s subsequent conduct, i.e., why defendant was motivated to find out about the property and provide the information he acquired to Abramoff. There are, obviously, many16 Case 1:05-cr-00370-PLF Document 85 Filed 05/02/2006 Page 17 of 24 Once we are set on the draft of the letter, should I courier it over today, or wait until Monday (I don’t want it lost in the mix)?”); January 12, 2003 (DOJ-DS-001211) (“We are moving forward fast, but in order to get around the need for the 8a company to be in business a few years, we need to involve in the company those with relevant skill sets and government experience. Consequently, my guys are asking me to find out the first four or five contracts we might be competing for. Can you get me that info really fast? Thanks David. Rb this week?”) 18 more examples of these types of queries. But in all of these instances, the e-mails are admissible because they are not being admitted for the truth of the matter asserted. In his queries to defendant, it was not Abramoff intention to express a factual assertion about the history or status of the Old Post Office or White Oak. Abramoff’s intention was simply to get information, advice and assistance out of defendant. While Abramoff’s questions “may indeed have conveyed messages about [himself] through [his] questions, [] any such messages were merely incidental and not intentional.” United States v. Long, 905 F.2d at 1580. And it is the opponent of the proffered statements that bears the burden of establishing that the speaker intended to make the factual assertion at issue. Id. at 1579. Thus, these statements are not barred by the hearsay rule. This same rationale applies to a series of e-mails between defendant and Abramoff that pertain to the possibility of defendant joining Abramoff’s firm. For example, on February 7, 2002 (DOJ-DS-000851), defendant forwards Abramoff an e-mail that originally came from Neil Volz, indicating that Volz was leaving his job on Capitol Hill and joining Abramoff’s firm, Greenberg Traurig, and Abramoff responds, “You’re next!!!” Abramoff’s response is not being introduced to literally prove that defendant is the next person who will join Greenberg Traurig. It is being introduced to show that defendant and Abramoff communicated with one another about Case 1:05-cr-00370-PLF Document 85 Filed 05/02/2006 Page 18 of 24 This same rationale applies to the following e-mails: February 26, 2002 (DOJ-DS-000858)17 (“You need to meet with Bagett, who is primed. He’ll be here next week. I’ll get some times from him for you”); April 9, 2002 (DOJ-DS-00880) (“Let me know what I need to do to make this move forward.”); April 17, 2002 (DOJ-DS-00881) (“Oy vey! Where/when should I call u?”); April 30, 2002 (DOJ-DS-00893) (“OK, but please tell me what I can do to help. I don’t want this to slip.”). All of these e-mails are probative of the fact that defendant and Abramoff repeatedly discussed defendant coming to work at Greenberg Traurig. In his recitation of the facts, defendant omits the fact that the government has alleged defendant18 falsely claimed to his ethics officer that Abramoff was “not seeking to do business with GSA.” Def. Oppos., p. 5. 19 the subject of future employment at Greenberg Traurig. Whether or not Abramoff truthfully17 wanted defendant to join the firm is not the point; indeed, it may have been the case that Abramoff did not actually want Safavian to join him at Greenberg Traurig, and that he really saw major advantages to having defendant ensconced as GSA Chief of Staff. What is relevant is that Abramoff indicated to defendant Abramoff’s interest in having him join the firm. Thus, the e- mails are relevant to show defendant’s state of mind and his motivation for wanting to please Abramoff. III. The E-Mails Are, In and Of Themselves, Non-Hearsay Evidence of “Doing Business,” “Seeking to Do Business” or “Work” The government has alleged that defendant made a false statement when he informed his ethics officer that Abramoff “did not have any business with and was not seeking to do business18 with GSA and that [Abramoff] did all his work on Capitol Hill.” Ind., ¶ 29. The proffered e- mails establish the falsity of defendant’s claim, in that their very existence establish that defendant and Abramoff were in fact engaged in business at the very time defendant was denying the same. The proffered e-mail traffic can be viewed as non-verbal conduct that is not barred by the hearsay rule. See advisory committee notes to Rule 801 (“If the significance of an offered Case 1:05-cr-00370-PLF Document 85 Filed 05/02/2006 Page 19 of 24 20 statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay.”) The advisory committee notes to Rule 801 point out that [n]o class of evidence is free of the possibility of fabrication, but the likelihood is less with nonverbal than with assertive verbal conduct. The situations giving rise to the nonverbal conduct are such as virtually to eliminate questions of sincerity. Motivation, the nature of the conduct, and the presence or absence of reliance will bear heavily upon the weight to be given the evidence. [] Similar considerations govern nonassertive verbal conduct and verbal conduct which is assertive but offered as a basis for inferring something other than the matter asserted, also excluded from the definition of hearsay by the language of subdivision (c). Thus, putting aside the true reasons why Abramoff wanted the White Oak or Old Post Office properties; whether Abramoff was truly under severe pressure or time constraints; or what his true intentions were for the ultimate dispensation of the property, the fact that Abramoff was asking the questions he was asking and seeking the advice and information he was seeking is evidence of “work” and of “business” and, as such, is relevant, probative and non-assertive conduct that should not be barred by the hearsay rule. IV. E-Mails Written and Received After the 2002 Scotland Trip Are Relevant and Admissible The government seeks to admit e-mails through March, 2004. Defendant wants to exclude from evidence the e-mails written between himself and Abramoff in the time frame after the 2002 Scotland trip because, he claims, “[t]he scope of the OIG’s investigation focused on [defendant’s] relationship with Abramoff prior to the Scotland trip.” Defendant fails to explain why the original OIG investigation, as opposed to the Indictment, should define what is relevant at trial. The Indictment alleges that defendant obstructed the Senate “[f]rom in or about February Case 1:05-cr-00370-PLF Document 85 Filed 05/02/2006 Page 20 of 24 Defendant’s claim that the government is being “disingenuous” (Def. Oppos., pp. 3-4) because19 it is now seeking to introduce e-mails written between he and Abramoff long after the 2002 Scotland trip where we previously objected to discovery requests for e-mails sent “‘in the three years after [defendant] allegedly lied to the GSA’” because such e-mails were irrelevant is baseless. Defendant only partially quotes from the government’s pleading and thereby distorts its meaning. The government previously argued that it should not be compelled to disclose “emails, reports, documents and correspondence ‘sent to or emanating from GSA Commissioner Joseph Moravec’ [] regardless of whether or not they were ever seen by Defendant Safavian.” Docket 11, p. 19 (emphasis supplied). We have never suggested to defendant or the Court that any e-mails between defendant and Abramoff were non-discoverable. Indeed, we have turned over to the defense e-mails between defendant and Abramoff dating back to 1995, regardless of subject matter. Government notes that it misidentified the basis for admission for the foreign business records20 certificates. The proper basis of admission, as explained in Docket 78, is 18 U.S.C. § 3505. The Government provided the certifications to the Defendant on April 12, 2006 and April 14,21 2006. In addition, they were provided to the Court as Attachments A and B to Docket 78 Attachments A and B. The Government is attaching the 902(11) certification from Jay Nogle for the emails produced by Greenberg Traurig to the Government on April 17, 2006. See Attachment “B.” 21 2005 to in or about March 2005.” As the government explained at length in Docket # 77, the e- mails post-dating the Scotland trip are relevant to show motive, intent, and the absence of mistake. The government will not repeat those arguments here. 19 V. Government Properly Requested Admissibility Determinations Based on Sufficient Records Certifications The Government has already responded at length to Defendant’s arguments regarding the admissibility of documents pursuant to business records certifications, including arguments related to Crawford and the confrontation clause. See (Docket 78). As with other parts of20 defendant’s response with respect to e-mails, defendant does not object with particularity to a particular certification, but instead argues on a theoretical basis. When applied to the actual facts of the certifications, which have all been provided to the Defendant and the Court, Defendant’s21 arguments are unpersuasive. Case 1:05-cr-00370-PLF Document 85 Filed 05/02/2006 Page 21 of 24 As discussed previously, the Government will amend the 902(11) certification if the Court22 deems it necessary. See also Docket 78, Attachment A.23 22 Defendant argues that the declarants who signed the 902(11) certificates are not familiar with the record-keeping practices of the business, yet the certification specifically states that the declarant is a “custodian of the records” whose “duties include certifying the authenticity of records which truly and accurately reflect - as a matter of business practice - the information recorded on the corresponding records in the normal course of business.” See Docket 78, Attachment A.22 Moreover, defendant seems to be applying inconsistent positions to the sufficiency of the certifications. On the one hand, defendant claims that “several of the 902(11) certifications are sufficient,” Docket 82, p. 22, and, yet, defendant claims that “others... do not include sufficient facts to ascertain whether the purported records (or duplicates of electronically filed records) meet the requisite indicia of trustworthiness....” Id. When examining the 902(11) certificates,23 however, there is no difference between the “facts” provided in the 902(11) certificates that the Defendant has found “sufficient” and those that defendant contests as “not sufficient.” The language in each of the 902(11) certificates is identical. Defendant’s argument that Greenberg Traurig cannot be used to authenticate emails sent by defendant using the GSA email server is illogical. Obviously a business can certify the documents it receives. For example, checks received by a credit card company or correspondence about why the payment to the credit card company was late, are admissible business records even if the business itself does not possess the computer upon which they were Case 1:05-cr-00370-PLF Document 85 Filed 05/02/2006 Page 22 of 24 prepared. In order to be admissible, the information that originates from entities outside the business, such as e-mails, must fall into another hearsay exception. Docket # 78 provides further analysis on this issue which the government will not reiterate here. CONCLUSION For the foregoing reasons, and the arguments contained in Dockets 77 and 78, Defendant’s the government Motion for Pre-trial Determination of Admissibility of Certain Evidence should be granted. Respectfully submitted, __/s/ Nathaniel Edmonds___ _/s/ Peter Zeidenberg___ NATHANIEL B. EDMONDS PETER R. ZEIDENBERG Trial Attorney, Fraud Section Trial Attorney, Public Integrity Section Criminal Division Criminal Division United States Department of Justice United States Department of Justice Bond Building Bond Building 1400 N.Y. Avenue, N.W. 1400 N.Y. Avenue, N.W. Washington, D.C. 20005 Washington, D.C. 20005 (202)307-0629 (202)514-2042 Case 1:05-cr-00370-PLF Document 85 Filed 05/02/2006 Page 23 of 24 CERTIFICATE OF SERVICE I hereby certify that on this 2d day of May, 2006, a copy of the foregoing was served on the following counsel by electronic service to: Barbara Van Gelder, Esq. Wiley Rein & Fielding 1776 K Street NW Washington, DC 20006 Tel: 202-719-7032 Facsimile: 202-719-7049 Nathaniel Edmonds NATHANIEL B. EDMONDS Trial Attorney Fraud Section, Criminal Division United States Department of Justice Case 1:05-cr-00370-PLF Document 85 Filed 05/02/2006 Page 24 of 24