Conviction Reversed Based On Exclusion Of Defense Expert Testimony On Meaning Of Word "Business"

Expert testimony on whether lobbyist had pending “business” with a government agency at the time government official accepted travel for a golfing trip to Scotland was not harmless requiring reversal, in United States v. Safavian,528 F.3d 957 (D.C. Cir. 2008)

A D.C. Circuit case shows how an expert may be used to explain the meaning of words in a particular context. The term “business” had a unique meaning in the government contracts setting.

Defendant Safavian served as the General Services Administration’s (GSA) deputy chief of staff. His friend and lobbyist Jack Abramoff contacted him concerning two properties controlled by the federal government. Around the same time that the defendant provided internal and other information to the lobbyist and arranged a meeting, the lobbyist invited the defendant on a golf trip to Scotland and London along with a congressman, congressional staff, and others. Before going on the trip, the defendant requested an ethics opinion from the GSA general counsel on whether he could receive complimentary air transportation (a private chartered jet) as a gift from his friend, the lobbyist. The ethics officer approved the trip with the understanding that neither the lobbyist “nor his firm does business with or is seeking to do business with GSA.” Safavian, 528 F.3d at 966. The defendant provided a copy of a check for $3,100 which he gave the lobbyist to cover costs during the trip. Questions arose whether the $3,100 was sufficient to cover the true costs of the trip. The defendant was interviewed twice concerning the trip by an agent. After further investigation, defendant Safavian was charged with three counts of concealing and providing false statements to the agent and in requesting an ethics opinion and two obstruction counts based on his response to the Senate Committee.

At trial, the defendant testified that based on his understanding the lobbyist was “not doing business with GSA” because the lobbyist was “not a contractor, he is not exchanging property or services for money, he does not have a business relationship with GSA.” Safavian, 528 F.3d at 962. The defense asked to admit expert testimony concerning how government contracting professionals viewed having business with the government agency. The defense expert “would have testified that an individual is not doing business with GSA until a contract is awarded and that getting information from GSA is simply that, getting information.” Safavian, 528 F.3d at 966. The trial court excluded the expert testimony after concluding it would be unhelpful to the jury and would be confusing since the meaning of the term “business” was “is within the common parlance of the jury,” and thus “the layman’s definition of these terms are the best guide for the jury. There’s no need for expert testimony.” Safavian, 528 F.3d at 966. The jury convicted the defendant on four counts and acquitted on one obstruction count.

On appeal, the circuit reversed the convictions after concluding the exclusion of the expert testimony was erroneous and was not harmless error. The trial presented the central issue on the defendant’s intended meaning of the term “business,” which involved either a lay meaning or professional contracting meaning. The excluded expert testimony supported the defendant’s “contention that, as a government contracts professional himself, he had this meaning in mind when he communicated with the GSA ethics official, [investigating agent] Rowe, and with the Senate Committee” and “usurped the jury’s role by deciding that the lay meaning of ‘business’ is what Safavian meant to convey.” Safavian, 528 F.3d at 966. The error was not harmless as the expert testimony provided context on a key issue.

On October 8, 2008, a new indictment was recently filed against the defendant, and a new trial is anticipated. It remains to be seen whether and how the defense expert will testify at a new trial.

Federal Rules of Evidence