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United States v. Safavian - 381 U.S. App. D.C. 339, 528 F.3d 957 (2008)


There must be a legal duty to disclose in order for there to be a concealment offense in violation of 18 U.S.C.S. § 1001(a)(1).


The prosecution arose from defendant David H. Safavian's overseas golf trip with a high profile lobbyist, Jack Abramoff, while defendant was the General Services Administration (GSA) chief of staff. Defendant checked with the GSA's general counsel about whether he could accept airfare for the trip, stating that he was paying all other expenses out of his own pocket. Based on the information he provided, he was advised he could accept airfare. Defendant paid the lobbyist what he claimed to believe was full reimbursement for the trip. A grand jury indicted Safavian on Oct. 5, 2005, on numerous counts, including three counts of "falsify[ing], conceal[ing] and cover[ing] up by a trick, scheme, and device material facts" in violation of 18 U.S.C.S. § 1001(a)(1). A jury in federal district court later convicted him on those counts. 


Did defendant have a legal duty to disclose under 18 U.S.C.S. § 1001(a)(1)?




A federal appellate court held that the government failed to identify a legal disclosure duty as was necessary for a § 1001(a)(1) concealment offense, so those convictions could not stand. Concealment cases have found a duty to disclose material facts on the basis of specific requirements for disclosure of specific information. There was good reason for demanding such specificity: To comply with Fifth Amendment due process, a defendant must have "fair notice . . . of what conduct is forbidden. This 'fair warning' requirement prohibits application of a criminal statute to a defendant unless it was reasonably clear at the time of the alleged action that defendant's actions were criminal." The applicable ethical principles gave no indication of the particular facts or information an executive employee was required to disclose. Nor did they suggest that they had any bearing on conduct during a GSA investigation or a request for an ethics opinion.

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