The nexus requirement is easily met because Defendant’s actions led directly to the closure of the GSA-OIG investigation into the propriety of Defendant’s attendance on the trip funded by Abramoff. CONCLUSION For the foregoing reasons, Defendant’s Motion for Acquittal should be denied, and the Court should affirm the jury’s convictions of violations of 18 U.S.C. § 1001 and 1505. Respectfully submitted, /s/ Nathaniel B. Edmonds /s/ Peter R. 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 Phone: 202-307-0629 Phone: 202-514-2042 Case 1:05-cr-00370-PLF Document 124 Filed 07/31/2006 Page 35 of 36 CERTIFICATE OF SERVICE I hereby certify that on this 31st day of July, 2006, a copy of the foregoing was served on the following counsel by electronic service: Barbara Van Gelder, Esq.

See Hubbell, 177 F.3d at 14 (agreeing to defer multiplicity claims until after trial in order to develop factual issues about statements and acts of concealment); Cisneros, 26 F. Supp 2d at 44–45 (within the court’s discretion to defer judgment on multiplicity until after trial and to do so where factual development was required); United States v. Cook, 2007 WL 3020081 (D.D.C. 2007, memorandum opinion). To prove his argument, the defendant relies on two cases which say merely that the separate sections of 18 U.S.C. § 1001 are only different means of committing the same offense, and not separate offenses. However, those cases used that analysis for the purpose of finding that single counts charging both means are not duplicitous, and not for the purpose of finding that multiple counts charging the different means are multiplicitous, as the defendant seeks here.

. Consequently,thelackof specific transcribedquestionsandanswersis not fatal to a 18 U.S.C. § 1001(a)(1)prosecution. In Dale, 782 F. Supp. at 627, theCourt revieweda motion to dismissbaseduponthe ambiguityofquestionsforchargesoffalsestatementson anapplicationfor securityclearance.Dale heldthat thequestionofambiguityshouldnotbe determinedby a motionto dismissindictmentpre- trial, butby amotionmadeat thecloseof theGovernment’scase, Id.

759, 800 (1920). The majority claims that the “purpose of Article 107, UCMJ, is also derived from a parallel understanding of its civilian counterpart, 18 U.S.C. § 1001 (2006).” Spicer, 71 M.J. at 474.

The Indictment Alleges No Affirmative Act Even if this Court were to identify a duty to disclose, the government nevertheless fails to assert what Mr. Safavian affirmatively said, let alone that he concealed material information through a “trick, scheme, or device” during the OIG’s investigation. 18 U.S.C. § 1001(a)(1). To prove the falsity element in a charge of concealment, the government must show a non- disclosure of a fact through a “trick, scheme, or device.”

Moreover, “[u]nless there is a clear Congressional intent to provide a civil remedy, a plaintiff cannot recover civil damages for an alleged violation of a criminal statute . . . .” Bardes, 2011 WL 1790816 at 3; quoting Tribble v. Reedy, No. 89–6781, 888 F.2d 1337 (table), 1989 WL 126783, at 1 (4th Cir. 1989). Therefore, because Major Mackall has no authority to initiate a federal criminal prosecution and because no civil action lies under 18 U.S.C. § 1001, this Court should dismiss any claim asserted by Major Mackall under 18 U.S.C. § 1001. With respect to Major Mackall’s claim asserted pursuant to 18 U.S.C. § 1038(b), both the intent of Congress and the courts’ interpretations of section 1038, reveal that the statute was designed to deal with criminal or terrorist hoaxes, and not with the type of issues asserted by Major Mackall.

The Court correctly charged the jury as to only 18 U.S.C. §1001(a)(2) Bekkedam alleges that the Court erred when it refused to give the jury an instruction on the elements needed to convict him under 18 U.S.C. § 1001(a)(1), which prohibits falsifying, concealing, or covering up by trick or scheme any material fact. However, the indictment in this case charged only a violation of 18 U.S.C. § 1001(a)(2), which prohibits making any false, 11 Even if the Counts were multiplicitous, which they are not, the time to raise the issue is at sentencing, not in a motion for a new trial. United States v. Kennedy, 682 F.3d 244, 253 (3d Cir. 2012) (“concerns over multiplicity may be addressed at sentencing.”)

Case 3:13-cv-00446-MOC-DSC Document 29 Filed 12/23/13 Page 26 of 35 19 The plain text of § 1001 prohibits the making of a false statement “in any matter within the jurisdiction of any department or agency of the United States.” 18 U.S.C. § 1001. The Supreme Court has “stressed that the term ‘jurisdiction’ should not be given a narrow or technical meaning for purposes of § 1001.”

The AC-1‘s failure to comply with Rule 9(b) with respect to its § 1014 claim is fatal. C. The AC-1 Fails to State a FIRREA Claim Based on 18 U.S.C. §§ 1001, 1341, and 1343 The AC-1 also seeks to impose FIRREA liability predicated on alleged violations of 18 U.S.C. §§ 1001 (false statements to the government), 1341 (mail fraud), and 1343 (wire fraud). But these predicate offenses are expressly limited ―to a violation[] of, or a conspiracy to violate‖ these sections ―affecting a federally insured financial institution ….

at 22. The government is asking this court to disregard the Guidelines instructions in §§ 1B1.1(a) and (b), which require this Court to apply § 2B1.1 for a conviction of 18 U.S.C. § 1001, and instead apply an entirely different guideline, namely § 2J1.2. The government offers no stated reason for the application of a different guideline than the one specified in the Statutory Index, other than their assertion that they proved the elements of Count Four by a preponderance of the evidence.11 However, as noted above, the Guidelines 11 Before Dorcely, this Court recognized that a heightened scrutiny was necessary to apply acquitted conduct to sentencing enhancements.