                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 07a0238n.06
                              Filed: March 30, 2007

                                                  06-1187

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                              )
                                                       )
        Plaintiff-Appellee,                            )
                                                       )
v.                                                     )    ON APPEAL FROM THE UNITED
                                                       )    STATES DISTRICT COURT FOR THE
STEVE SAFA, formerly                 known      as     )    EASTERN DISTRICT OF MICHIGAN
Mahmoud Mustapha Safa,                                 )
                                                       )
        Defendant-Appellant.                           )



      Before: DAUGHTREY and ROGERS, Circuit Judges, and OBERDORFER, District
Judge.*


        PER CURIAM. 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



        *
         The Hon. Louis F. Oberdorfer, U nited States District Judge for the District of Colum bia, sitting by
designation.

        1
          The defendant, a naturalized Am erican citizen, was indicted under his Lebanese birth nam e,
M ahm oud M ustapha Safa, with the additional designation “also known as Steve Safa.” The record
establishes, however, that at the tim e of naturalization, his nam e was changed to Steve Safa by order of a
federal district court. Although Safa’s attorney com plained at oral argum ent that, despite repeated requests,
the governm ent refused to utilize his legal nam e, the record fails to show that a m otion to am end the
indictm ent was ever filed on Safa’s behalf. Nevertheless, the sentencing papers include a copy of the order
granting Safa’s “petition for nam e change” on August 26, 1994, and in the interest of correcting the record,
we have opted to use the defendant’s legal nam e in the caption of this opinion.
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United States v. Safa

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:

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United States v. Safa

       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 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.”




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United States v. Safa

       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.”




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United States v. Safa

       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


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United States v. Safa

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.”


       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).




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United States v. Safa

       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

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United States v. Safa

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 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:

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United States v. Safa

       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,

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       it is the sentence of the Court that you, Mr. Safa, will serve a period of 15
       months, which is the bottom 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.




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       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.




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