An attorney for David Safavian, the former chief of the Office of Federal Procurement Policy who was convicted of obstruction of justice and other charges in June, filed a motion for a new trial last month. Government lawyers have responded with a 27-page document opposing the motion. A judge will hear arguments for both sides in court next Thursday.
Safavian's lawyer, Barbara Van Gelder, argues that the admission of e-mails between lobbyist Jack Abramoff and Safavian as evidence was improper and unfairly prejudiced jurors. In the e-mails, Abramoff and Safavian discussed their 2002 golf trip to Scotland and property owned by the General Services Administration, where Safavian served as chief of staff at the time.
Van Gelder claims the e-mails constitute hearsay, which should not be considered as evidence, because Abramoff was not available for cross-examination. Federal Rules of Evidence, which govern federal courts, prevent hearsay, or second-hand information, from being used in court except under certain circumstances. Van Gelder argues that although the judge instructed the jury to consider the e-mails only for a limited purpose, such as the fact that the communication occurred, jurors would likely consider the statements in the e-mails as facts.
In an interview Thursday, Van Gelder said she could have called Abramoff to testify herself, but the burden was on the prosecutors to make their own case.
In response, Justice Department prosecutors Nathaniel Edmonds and Peter Zeidenberg say the e-mails were properly admitted as evidence to show the effect they may have had on Safavian's state of mind. They also point out that the judge repeatedly warned jurors to consider the e-mails only in a limited way.
Van Gelder also makes the case that a 2002 GSA ethics opinion regarding Safavian's golf trip to Scotland with Abramoff contained hearsay, because it claimed that Safavian made statements that he did not necessarily make. The prosecutors counter that the jury was free to believe Safavian's argument that he did not make the statements in the ethics opinion.
In addition, Van Gelder says that GSA Inspector General Gregory Rowe did not tell Safavian that statements he made could later be used against him in court. She adds that she was not allowed to raise the issue of due process in court.
That argument, prosecutors say, is "frivolous and misleading." The GSA inspector general was not required to warn Safavian about the consequences of his statements, and to suggest he was could wrongly imply that the government acted improperly.
Safavian was convicted of obstruction of justice of an investigation by the GSA inspector general's office, which carries a recommended 15 to 21 months in prison and is the most serious of the four charges on which he was convicted.
Van Gelder also argues that a new trial is needed because during Safavian's trial the government's witnesses were allowed to offer speculative testimony, which is generally not allowed. GSA officials were asked how they would have responded if they had known that Abramoff had expressed an interest in GSA properties. One official testified that it would have prompted further inquiry.
But prosecutors say that argument is groundless and that the testimony was directly relevant to the case.
Van Gelder also says changed wording in the verdict form and the removal of a juror thought to be sympathetic to Safavian unfairly affected the outcome of the case.
Peter Henning, professor of law at Wayne State University Law School and author of a blog about white-collar crime, said it is very common for defense lawyers to seek to have convictions overturned or to submit motions for new trials because of legal errors. "While it is asked for in a large majority of cases, it is granted infrequently," he said.