                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 07a0167p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________



                                                    X
                                Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                     -
                                                     -
                                                     -
                                                                         No. 06-1187
           v.
                                                     ,
                                                      >
 STEVE SAFA, formerly known as Mahmoud               -
                                                     -
                             Defendant-Appellant. -
 Mustapha Safa,

                                                    N

                              Appeal from the United States District Court
                             for the Eastern District of Michigan at Detroit.
                            No. 05-80131—Arthur J. Tarnow, District Judge.
                                           Argued: March 9, 2007
                                    Decided and Filed: March 30, 2007*
    Before: DAUGHTREY and ROGERS, Circuit Judges; OBERDORFER, District Judge.**
                                             _________________
                                                  COUNSEL
ARGUED: Margaret Sind Raben, GUREWITZ & RABEN, Detroit, Michigan, for Appellant.
J. Michael Buckley, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for
Appellee. ON BRIEF: Margaret Sind Raben, GUREWIT & RABEN, Detroit, Michigan, for
Appellant. J. Michael Buckley, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan,
for Appellee.




        *
         This decision was originally issued as an “unpublished decision” filed on March 30, 2007. The court has now
designated the opinion as one recommended for full-text publication.
        **
          The Honorable Louis F. Oberdorfer, United States District Judge for the District of Columbia, sitting by
designation.


                                                         1
No. 06-1187               United States v. Safa                                                               Page 2


                                              _________________
                                                  OPINION
                                              _________________
         MARTHA CRAIG DAUGHTREY, Circuit Judge. The defendant, Steve Safa,1 was found
guilty by a jury on one count of making a false declaration before a grand jury and was sentenced
to serve 15 months in prison and pay a fine of $10,000. On appeal, the defendant contends that the
district court admitted into evidence improper lay opinion testimony and failed to consider the
necessary factors in imposing sentence. For the reasons set out below, we find no reversible error
and affirm the judgment of the district court in its entirety.
                           FACTUAL AND PROCEDURAL BACKGROUND
         The events giving rise to this prosecution began in September 2001, when Chief Deputy
Sheriff Ronald Jones stopped a sport utility vehicle pulling a U-Haul trailer that was drifting from
one lane of traffic to the other on northbound I-71 in Oldham County, Kentucky. Investigation
revealed that the vehicle was en route to Detroit, Michigan. Its driver, Mohamad El-Harake, later
gave Jones consent to search the trailer, in which the law enforcement officer found chewing
tobacco, pipe tobacco, and 1,500 cartons of Marlboro cigarettes, some with Kentucky tax stamps
affixed to them, others with no tax stamps at all. According to Deputy Jones, the passenger in the
vehicle, Steve Safa, admitted knowing there were cigarettes in the trailer, although Safa later
testified at trial that he never made such an admission to the deputy.
         Because El-Harake and Safa appeared to be engaged in the illegal transportation of
contraband cigarettes, Jones detained both men and eventually involved federal agents and agencies
in the investigation. Subsequently, Safa was summoned before a federal grand jury looking into a
possible conspiracy between El-Harake and other individuals that involved cigarette-trafficking and
other federal crimes. While the defendant was under oath before the grand jury, Assistant United
States Attorney Robert Cares asked him a number of questions, including the following:
         Do you have any reason to believe that there were cigarettes in that U-Haul van?
         Do you know Ali Farhat?
         Have you ever talked with Ali Farhat?
         Do you know somebody by the name of Fadi or Fadi Haydous? Let me spell that.
         F-a-d-i H-a-y-d-o-u-s.
Safa responded “no” or “no, sir” to each inquiry. Alleging those answers to be false, however, the
government obtained a three-count indictment against the defendant charging three instances of false
statements before the grand jury in violation of 18 U.S.C. § 1623.
        At trial, the government offered testimony that Safa actually helped load the contraband
cigarettes into the U-Haul trailer rented by El-Harake; that the defendant and Ali Farhat seemed to

         1
           The defendant, a naturalized American citizen, was indicted under his Lebanese birth name, Mahmoud
Mustapha Safa, with the additional designation “also known as Steve Safa.” The record establishes, however, that at
the time of naturalization, his name was changed to Steve Safa by order of a federal district court. Although Safa’s
attorney complained at oral argument that, despite repeated requests, the government refused to utilize his legal name,
the record fails to show that a motion to amend the indictment was ever filed on Safa’s behalf. Nevertheless, the
sentencing papers include a copy of the order granting Safa’s “petition for name change” on August 26, 1994, and in
the interest of correcting the record, we have opted to use the defendant’s legal name in the caption of this opinion.
No. 06-1187           United States v. Safa                                                     Page 3


know each other; and that the defendant knew Fadi Haydous, bought contraband cigarettes from
Haydous, and received large money transfers totaling at least $44,000 from Haydous. Assistant
United States Attorney Cares also testified, over defense counsel’s objection, that truthful answers
from Safa during the grand jury proceedings to inquiries concerning the defendant’s knowledge of
cigarettes in the U-Haul trailer and Safa’s acquaintance with Ali Farhat and Fadi Haydous
“would . . . have assisted the Grand Jury’s investigation” and that false answers “had a natural
tendency to influence, impede, or dissuade the Grand Jury’s investigation.”
       Taking the stand in his own defense, Safa testified that he knew that El-Harake was
transporting cigars and chewing tobacco on the date that they were stopped in Kentucky, but that
he was not aware that contraband cigarettes were also in the trailer. Furthermore, Safa denied
knowing Ali Farhat or Fadi Haydous, having any business dealings with Haydous, or being involved
in any money transfers with Haydous. The jury obviously credited some of the defendant’s
testimony because the jurors acquitted Safa of the first two counts of making a false declaration
before the grand jury and convicted him only of falsely denying that he knew Fadi Haydous, a
statement that was material to the government’s investigation of wide-ranging conspiracy charges.
      After a hearing, the district judge sentenced Safa to 15 months in prison and fined him
$10,000. From that judgment, the defendant now appeals.
                                            DISCUSSION
       In his first issue on appeal, Safa challenges the decision of the district judge to admit
testimony from Assistant United States Attorney Cares regarding the effect that statements given
by the defendant before the grand jury had on the government’s investigation into an ongoing
conspiracy. According to the defendant, such testimony amounted to an improper lay opinion
involving a legal conclusion, specifically whether Safa’s grand jury testimony was “material.”
         A district court’s ruling on the admissibility of testimony is reviewed by this court only for
an abuse of discretion. See Trepel v. Roadway Express, Inc., 194 F.3d 708, 716 (6th Cir. 1999)
(citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997)). “An abuse of discretion exists when the
district court applies the wrong legal standard, misapplies the correct legal standard, or relies on
clearly erroneous findings of fact.” First Tech. Safety Sys., Inc. v. Depinet, 11 F.3d 641, 647 (6th
Cir. 1993).
        To convict an individual of a violation of 18 U.S.C. § 1623, the government must prove
beyond a reasonable doubt that the defendant “(1) knowingly made; (2) a materially false
declaration; (3) under oath; (4) in a proceeding before or ancillary to any court of the United States.”
United States v. Lee, 359 F.3d 412, 419 (6th Cir. 2004) (emphasis added). Thus, the materiality of
the declaration is an element of the offense that must be found by the jury. See United States v.
Gaudin, 515 U.S. 506, 511 (1995). Safa submits, consequently, that prosecution witnesses may not
offer their opinions as to whether certain statements made during grand jury proceedings were
indeed “material” because such testimony conveys “the witness’[s] unexpressed, and perhaps
erroneous, legal standards to the jury.” Torres v. County of Oakland, 758 F.2d 147, 150 (6th Cir.
1985).
       The defendant is correct in contending that witness testimony would improperly invade the
province of the court to explain the applicable law to the jury if a witness were permitted to define
“materiality.” However, the district judge in this case properly sustained Safa’s objection to the
question, “Now, can you briefly, sir, explain to the members of the jury what does it mean for a
question to be material before the Grand Jury?” Nevertheless, Assistant United States Attorney
Cares was allowed to testify to facts that the jurors could accept or reject in reaching their
conclusion as to whether Safa’s statements were “material.”
No. 06-1187            United States v. Safa                                                      Page 4


        Although Rule 704 of the Federal Rules of Evidence provides that “testimony in the form
of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate
issue to be decided by the trier of fact,” we have consistently recognized that “opinions phrased in
terms of inadequately explored legal criteria” should be excluded from evidence. See Torres, 758
F.2d at 150 (quoting Advisory Committee Notes to Federal Rule of Evidence 704). As explained
in those Notes:
        Thus the question, “Did T have capacity to make a will?” would be excluded, while
        the question, “Did T have sufficient mental capacity to know the nature and extent
        of his property and the natural objects of his bounty and to formulate a rational
        scheme of distribution?” would be allowed.
Id. Explained differently, “if the [witness] expresses an opinion using legal terms that follow the
statutes . . ., it is more likely to be held that the [witness] is giving a legal conclusion. In contrast,
. . . testimony that uses words that do not have specialized legal meaning is more likely to be
admissible.” 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence, § 704.04[1]
(Joseph M. McLaughlin, ed., Matthew Bender 2d ed. 2006) (citations and footnotes omitted).
         In this case, the jury was charged with the responsibility to determine whether the alleged
false statements made by Safa before the grand jury were so “material” as to affect the government’s
investigation into a possible conspiracy to distribute contraband goods. In order to provide evidence
upon which the jurors could base their conclusion with regard to such an inquiry, the prosecution
was allowed to ask an Assistant United States Attorney whether Safa’s answers, “if false, would . . .
have influenced, impeded, or dissuaded the Grand Jury’s investigation” and, if true, “would . . . have
assisted the Grand Jury’s investigation.” Although those questions paraphrased the definition of
“material” that the district judge later charged to the jury, they did not ask the witness to reach the
very legal and factual conclusions for which the jury was responsible. Indeed, without the
information provided by the witness in response to the challenged questions, the jurors would have
had no information on which to base their verdict because they could not have intuitively ascertained
the relevance of Safa’s testimony to the larger conspiracy investigation. The district judge,
therefore, properly forbade the prosecution witness from explaining the concept of a “material
question,” but he properly allowed that same witness to testify that Safa’s responses to inquiries
before the grand jury did indeed have an impact upon the government’s investigatory strategies. We
find no abuse of discretion in this regard.
         In his second issue, Safa contends that the district judge imposed a procedurally
unreasonable sentence upon him because the court failed to acknowledge its authority, other than
under a sentencing guidelines scheme, to impose punishment that varied from the range of
imprisonment envisioned by those now-advisory guidelines. According to the defendant, had the
district judge taken into account the various factors listed in 18 U.S.C. § 3553(a), he would have
imposed a sentence calling for probation, home detention, or some other alternative to incarceration
for this first offense.
        As has now been well-documented, the United States Supreme Court in United States v.
Booker, 543 U.S. 220 (2005), “invalidated the mandatory use of the Sentencing Guidelines and held
they are now ‘effectively advisory.’” United States v. Collington, 461 F.3d 805, 807 (6th Cir. 2006).
Consequently, we now review any sentence imposed by a district judge to determine whether that
sentence is “reasonable,” both procedurally and substantively. As we explained in Collington:
        A sentence may be procedurally unreasonable if “the district judge fails to ‘consider’
        the applicable Guidelines range or neglects to ‘consider’ the other factors listed in
        18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate
        sentence without such required consideration.” A sentence may be considered
No. 06-1187           United States v. Safa                                                      Page 5


       substantively unreasonable when the district court “select[s] the sentence arbitrarily,
       bas[es] the sentence on impermissible factors, fail[s] to consider pertinent § 3553(a)
       factors or giv[es] an unreasonable amount of weight to any pertinent factor.”
Id. at 808 (citations omitted).
         Unlike other cases that have found their way before us on appellate review, in this case the
district judge did not allow a simple recitation of the § 3553(a) factors to substitute for a reasoned
discussion and analysis of those considerations. Rather, Judge Tarnow took the time necessary to
honor the spirit, as well as the letter, of our post-Booker decisions with an extended explanation, as
follows:
       Now, it’s my understanding that under Booker I start with that guideline range,
       which is 15 to 21 months. And that’s almost presumptively presumed, to be
       redundant, is presumed to be reasonable. I understand I have the discretion to find
       that it’s either too high or too low and I can depart in either direction.
       And having said that and having considered the fact that Mr. Safa is not a physical
       threat, and understanding the importance of family, but also understanding and
       agreeing with the Government that lying to a Grand Jury is a very serious offense
       and it is a threat to the entire system – and while the lying was not as serious as it
       could have been if the jury had convicted him of all three counts – and I certainly
       remember that the jury acquitted him of two counts. And those two counts are not
       being used to compute or to aggravate his sentence or to change his sentence upward
       – I’m still faced with a conviction on Count 3 of perjury, and the statute calls for a
       maximum of five years.
       And I agree with you, Mr. Safa, I don’t think you will do this again. So, in terms of
       deterrence to you, just going through the process, facing the pressures of a trial and
       the negative publicity of being accused of lying to a Grand Jury, having to face your
       family and friends with that hanging over your head, are serious deterrents to you
       doing this again. However, there has to be some deterrence to other people.
       And while I understand you have four small children and a family that needs your
       presence, I also understand that almost everyone who stands where you’re standing
       could say that. And it has already been taken into consideration in terms of the
       guidelines, but I’m also taking it into consideration as a basis of going below the
       guidelines.
       I am not persuaded that your relationship to your family is much different than
       hopefully anyone’s relationship to their family. Your responsibilities to your family
       are very important, but not irreplaceable.
       And the advantage perhaps of having some assets is that if any of them – and I’m
       looking at a financial statement that shows a net worth of approximately $6 million.
       If any of those assets are sellable, people can be hired to either run your businesses
       or to help with your family in terms of getting them to their doctor appointments and
       grocery shopping and the other things that are involved in being a husband and a
       father.
       Having taken into consideration the factors of 18 U.S.C. 3553(a) and the guidelines,
       pursuant to the Sentencing Reform Act of 1984, as to Count 3, it is the sentence of
       the Court that you, Mr. Safa, will serve a period of 15 months, which is the bottom
No. 06-1187           United States v. Safa                                                    Page 6


       of the guideline range, and you shall be placed on supervised release for a period of
       two years.
       A fine is ordered in the amount of $10,000, payable immediately. There’s an
       assessment of $100, which is also payable immediately.
        Without question, the district judge fully considered the factors listed in § 3553(a) before
imposing sentence upon the defendant. Furthermore, he engaged in a reasoned analysis of how
those factors related to other concerns expressed by Safa during the sentencing hearing. The district
court thus clearly met the standards set for establishing procedural reasonableness.
       When reviewing a sentence to determine whether it is substantively reasonable, we start with
a presumption of reasonableness “[w]hen the district court issues a within-guidelines sentence.”
United States v. Davis, 458 F.3d 491, 496 (6th Cir. 2006), petition for cert. filed, (U.S. Nov. 13,
2006) (No. 06-7784). The presumptive reasonableness of the 15-month sentence in this case has not
been rebutted by any evidence or argument advanced by Safa. Although the defendant requested
imposition of a sentence that did not include incarceration, the district judge felt that a prison term
was appropriate, even in a case in which the likelihood that the defendant would commit additional
crimes was extremely low, simply to emphasize to the public at-large the seriousness of lying under
oath and the drastic consequences that will result from such disrespect for the judicial system as a
whole.
        The district judge in this matter recognized the advisory nature of the sentencing guidelines
and his authority to impose any reasonable sentence justified by a consideration of the applicable
statutory sentencing factors. We conclude that the court adequately justified the sentence imposed.
                                          CONCLUSION
       For the reasons set out above, we AFFIRM the judgment of the district court in its entirety.
