 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 22, 2010               Decided May 13, 2011

                       No. 09-3112

               UNITED STATES OF AMERICA,
                       APPELLEE

                             v.

                   DAVID H. SAFAVIAN,
                      APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:05-cr-00370)



    Shannen W. Coffin argued the cause for appellant. On
the briefs were Lawrence S. Robbins, Richard A. Sauber,
Donald J. Russell, and Lisa K. Helvin.

    Sangita Rao, Attorney, U.S. Department of Justice,
argued the cause for appellee. With her on the brief were
Lanny A. Breuer, Assistant Attorney General, and Nathaniel
B. Edmonds, Attorney. Roy W. McLeese III, Assistant U.S.
Attorney, entered an appearance.

   Before: GINSBURG and BROWN, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
                               2
    Opinion for the Court filed PER CURIAM.

    PER CURIAM: A jury found David Safavian guilty on four
counts of a five-count indictment and acquitted him on one
count. Safavian moved the district court for a judgment of
acquittal and a new trial. The district court denied Safavian’s
motion, United States v. Safavian, 644 F. Supp. 2d 1 (D.D.C.
2009) (Safavian III), and Safavian appealed. We affirm
Safavian’s convictions on all four counts.

                        I. Background

     Safavian and lobbyist Jack Abramoff were longtime
colleagues and friends. In 2002, when Safavian was
appointed Chief of Staff of the General Services
Administration, Abramoff began asking Safavian for
information about two properties the GSA owned. Some time
after Safavian supplied the information, Abramoff invited him
on a golf trip to Scotland. Knowing certain laws and ethical
rules governed who could pay for this trip, Safavian e-mailed
the General Counsel of the GSA seeking ethical advice.
Safavian’s email explained he intended to pay the costs of his
greens fees, hotels, and meals, but Abramoff would pay for
airfare because Abramoff was chartering a private flight for
all the attendees. Safavian’s email also stated Abramoff “has
no business before GSA (he does all of his work on Capitol
Hill).” In response to that email, the ethics officer of the GSA
(brought into the loop by the General Counsel) responded
that, under the circumstances described, Safavian could
accept the gift of free airfare. Before the group left for
Scotland Safavian gave Abramoff a check for $3,100, the
amount Abramoff had told him would cover his share of the
costs of the trip excluding airfare.
                               3
     Based upon an anonymous tip, the GSA Office of the
Inspector General (OIG), the Senate Committee on Indian
Affairs, and the Federal Bureau of Investigation investigated
Safavian regarding the trip. He was thereafter indicted on
five counts: three counts of “falsif[y][ing], conceal[ing] or
cover[ing] up by any trick, scheme, or device a material fact”
within the jurisdiction of any branch of the Government in
violation of 18 U.S.C. § 1001(a)(1) and two counts of
obstruction of justice in violation of 18 U.S.C. § 1505.
Specifically, Count One alleged Safavian obstructed the
investigation of the OIG; Count Two alleged he made a false
statement and concealed information in the course of seeking
an ethics opinion; Count Three alleged he made a false
statement to and concealed information from the OIG; Count
Four alleged he obstructed a Senate Committee’s
Investigation; and Count Five alleged he made false
statements and provided false documents to that Senate
Committee. Safavian was convicted on Counts One, Two,
Three, and Five.

     Safavian appealed and we either reversed or remanded
his convictions on all four counts. United States v. Safavian,
528 F.3d 957 (2008) (Safavian II). The portion of the court’s
opinion relevant to this appeal pertains to Safavian’s effort at
his first trial to present the defense of literal truth to Counts
One, Two, and Five. Safavian argued he did not make a false
statement when he told the OIG, the ethics officer, and the
Senate Abramoff was not “doing business” with the GSA
because by “doing business” he meant — as any professional
government contractor would have understood — that at the
time of the trip Abramoff had no outstanding contracts and
was not “exchanging property or services for money” with the
agency. Id. at 962, 965–66. Although Safavian sought to
introduce expert testimony to show his definition of that
phrase was not “made up out of whole cloth,” the district
                               4
court ruled Safavian’s expert would not help the jury and
would in fact confuse them. Id. at 966. On appeal we held
the district court abused its discretion in excluding the
expert’s testimony and we remanded for a new trial. Id. at
966–69.

     Following failed plea negotiations, the Government
sought a second indictment against Safavian.                The
superseding indictment again charged Safavian with five
counts. Three of the counts — Count One, obstructing the
OIG’s investigation; Count Two, making false statements in
the course of seeking an ethics opinion; and Count Four,
obstructing the Senate’s investigation — mirrored charges in
the original indictment. Counts Three and Five were based
upon previously uncharged conduct. Pursuant to federal
statute, certain governmental employees are required to report
any gifts they receive in excess of a specified value. Ethics in
Government Act of 1978, Pub. L. No. 95-521, Title I, § 102,
92 Stat. 1824, 1825 (codified as amended at 5 U.S.C. App.4 §
102(2)(A)); see 5 C.F.R. § 2634.304. In 2002, that disclosure
threshold was set at $260. 65 Fed. Reg. 69,655, 69,655
(2000). Count Three alleged Safavian made a false statement
on the Financial Disclosure form he submitted to the GSA in
2002 because he knew the portions of the trip Abramoff paid
for exceeded that amount and, therefore, he falsely stated he
received only one gift worth more than $260 in that year, to
wit, an excursion paid for by a national political committee.
Count Five charged Safavian with making false statements to
an FBI agent during the course of the agency’s investigation.
The Government alleged Safavian falsely told the FBI that: (i)
none of Abramoff’s requests for information about two
properties owned by GSA occurred prior to the trip to
Scotland; (ii) at the time Abramoff invited Safavian to
Scotland, Safavian was too new at the GSA to help Abramoff
in his dealings with the agency; and (iii) Safavian paid in
                              5
advance for his share of the cost of the trip with the $3,100
check he gave Abramoff.

    The jury convicted Safavian on Counts One, Two, Three,
and Five, and again acquitted him on Count Four. After trial
Safavian moved for an acquittal on Counts Three and Five on
the ground they were added to the second indictment due to
prosecutorial vindictiveness. He also moved for acquittal on
Counts Two and Five, arguing the Government failed to
prove his false statements to the ethics officer and to the FBI
were material within the meaning of § 1001(a)(1). Finally,
Safavian moved in the alternative for a new trial on Counts
One and Three because, he argued, the district court
improperly admitted evidence regarding the cost of the
private plane Abramoff had chartered for the trip to Scotland
and such evidence was prejudicial. The district court denied
Safavian’s motions and Safavian appealed.

     We affirm the judgment of the district court. Our reasons
for rejecting Safavian’s arguments pertaining to Counts One,
Two, and Three are the same as those set out in the opinion of
the district court and we need not repeat them here. See
Safavian III, 644 F. Supp. 2d at 8–10, 12–14, 19–23. Our
reasons for rejecting Safavian’s arguments pertaining to
Count Five are set out below.

                         II. Analysis

     Count Five of the superseding indictment charged
Safavian with making false statements to the FBI. As an
initial matter, Safavian argues his conviction on that count
must be reversed because the statements he made to the FBI
were not material within the meaning of § 1001(a)(1).
Safavian maintains that a statement is material only if it is
actually capable of influencing a government action. Because
                               6
it is undisputed the agent who interviewed Safavian knew,
based upon his knowledge of the case file, that the
incriminating statements were false when Safavian uttered
them, Safavian argues those statements were not capable of
influencing the FBI’s actions and were therefore not
“material.” As the Government points out, however, we
rejected the same argument last term in United States v.
Moore, 612 F.3d 698 (2010). In Moore we held “a statement
need not actually influence an agency in order to be material;
it need only have a natural tendency to influence or be
capable of influencing an agency function or decision.” Id. at
701–02 (internal quotation marks and alteration omitted). It
follows that so long as Safavian’s false statements were
capable of influencing the course of the FBI’s investigation
 and we agree with the district court that but for the fortuity
of the agent’s preparation they could have done  those
statements were material within the meaning of § 1001(a)(1).
That leaves only Safavian’s argument Count Five should be
vacated under the doctrine of prosecutorial vindictiveness.

     “The doctrine of prosecutorial vindictiveness developed
as a corollary to the vindictiveness doctrine that precludes, as
a matter of due process, imposition by a judge of a more
severe sentence upon retrial after a defendant has successfully
exercised a constitutional right or pursued a statutory right of
appeal or collateral attack. In the prosecutorial context, the
doctrine precludes action by a prosecutor that is designed to
penalize a defendant for invoking any legally protected right
available to a defendant during a criminal prosecution.”
Maddox v. Elzie, 238 F.3d 437, 446 (D.C. Cir. 2001) (internal
citation omitted). A defendant may prove prosecutorial
vindictiveness by submitting either (i) evidence of the
prosecutor’s actual vindictiveness or (ii) evidence sufficient
to establish a “realistic likelihood of vindictiveness,” thereby
raising a presumption the Government must rebut with
                              7
objective evidence justifying its action. United States v.
Meyer, 810 F.2d 1242, 1245 (D.C. Cir. 1987) (internal
quotation marks and alteration omitted), reh’g granted and
opinion vacated, 816 F.2d 695 (D.C. Cir.), reh’g denied and
opinion reinstated, 824 F.2d 1240 (D.C. Cir. 1987). If the
Government can produce objective evidence that its motive in
prosecuting the defendant was not vindictive, then “the
defendant’s only hope is to prove that the justification is
pretextual and that actual vindictiveness has occurred.” Id.

     The district court held Safavian submitted evidence
sufficient to raise a “presumption” the Government acted
vindictively in adding Count Five. Because the Government
offered two reasons the addition of Count Five was not
vindictive, the district court found that presumption was
nonetheless overcome. “This court reviews the District
Court's finding regarding vindictiveness for clear error.”
United States v. Gary, 291 F.3d 30, 34 (D.C. Cir. 2002); see
also Meyer, 810 F.2d at 1244–46, 1248–49. According the
district court the deference it is due under this standard, we
agree with Safavian that, upon the facts of this case, the
district court did not clearly err in presuming vindictiveness
on the part of the prosecution. Nor, however, did the district
court clearly err in holding the Government overcame that
presumption.

A. Establishing the Presumption

     To get the benefit of the presumption, a defendant must
show the prosecutor’s action was “more likely than not”
attributable to vindictiveness. See Gary, 291 F.3d at 34
(quoting Alabama v. Smith, 490 U.S. 794, 801 (1989)). We
have held “a prosecutorial decision to increase charges after a
defendant has exercised a legal right does not alone give rise
to a presumption in the pretrial context,” Meyer, 810 F.2d at
                                  8
1246, but it is surely a fact relevant to the analysis, see id. It
is also a fundamental assumption of the doctrine of
prosecutorial vindictiveness that a prosecutor, like a judge,
being but human “may have a personal stake in [a] prior
conviction and a motivation to engage in self-vindication,”
United States v. Stanfield, 360 F.3d 1346, 1362 (D.C. Cir.
2004) (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 27
(1973)), and it follows that a decision to add charges after a
defendant’s conviction has been reversed risks violating the
defendant’s right to due process. Accordingly, while it
appears the only relevant fact the district court considered in
erecting the presumption of vindictiveness was that the
prosecutor added new charges after Safavian had successfully
exercised his right to appeal,* we cannot say the district court
clearly erred in presuming the Government was being
vindictive in adding Counts Three and Five, regardless
whether we would reach that conclusion were we making the
decision in the first instance.

B. Overcoming the Presumption

     In concluding the Government offered objective evidence
sufficient to rebut the presumption of vindictiveness, the
district court relied upon both of the Government’s proffered
reasons for adding Count Five: The prosecution needed to
change its trial strategy in the wake of this court’s ruling in
Safavian’s first appeal by (1) ensuring Safavian’s statements
to the FBI were admissible so as to meet the defense of literal
truth and any expert testimony concerning the meaning of the
*
  See Safavian III, 644 F. Supp. 2d at 13; see also Transcript of
Motions Hearing at 7, Safavian III (Nov. 26, 2008) (contrasting the
facts in Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978), with the
facts at bar and noting that in Safavian’s case “the threat of greater
charges in the context of plea discussions ... was really a threat of
greater charges post-successful appeal”).
                              9
phrase “doing business” Safavian might offer; and (2)
expanding the scope of the indictment so as to include
unlawful actions lying outside that defense and beyond the
scope of the defense expert’s testimony. Safavian III, 644 F.
Supp. 2d at 15–17.

      The Government reiterates these arguments on appeal.
First, the Government maintains it needed to add Count Five
in order to undermine Safavian’s defense of literal truth and
the supportive expert testimony he planned to introduce
concerning the meaning of the phrase “doing business.” The
Government maintains Safavian’s statements to the FBI show
he did not have the literal definition of the phrase “doing
business” in mind when he spoke to the ethics officer about
Abramoff’s business dealings and, therefore, Safavian’s
statements to the FBI are crucial to its case. The Government
contends its prosecutors were concerned, prior to the second
trial, that the district court would hold Safavian’s statements
to the FBI were nonetheless inadmissible. To ensure the
statements to the FBI would be admitted, the Government
argues it was necessary to charge Safavian made them with
the knowledge they were false, in violation of § 1001(a)(1).
Second, the Government argues it added Count Five as a
matter of trial strategy: Because this court had held Safavian
should have been permitted to introduce expert testimony
about the meaning of the phrase “doing business,” the
Government wanted to expand the focus of the prosecution
beyond that of the original indictment; it sought to include
other false statements Safavian made, unrelated to “doing
business,” as a way of hedging its risk.

    Safavian argues these reasons are objectively
unreasonable and the district court clearly erred in holding
they were sufficient to overcome the presumption. As to the
former, Safavian argues that if the Government “believed
                                10
[his] statements to [the FBI] were inconsistent with or
negated his defense,” then the Government “could have
responded by introducing evidence of those statements,
without charging an additional offense”; as to the latter,
Safavian argues that because a “trial strategy is inherently
subjective in nature,” a prosecutor’s “personal assessment” of
the need to change a trial strategy after appeal cannot provide
the “objective” justification necessary for overcoming the
presumption of vindictiveness.

      We agree with Safavian that the first of the
Government’s reasons is entirely unpersuasive. At his first
trial, Safavian presented the defense of literal truth. This
court’s ruling the district court had erred in refusing to allow
Safavian to present expert testimony in support of that
defense could not reasonably have led the Government to
doubt its ability, if it did not add Count Five, to introduce at
the second trial Safavian’s statements to the FBI. As the
district judge recognized in a pretrial oral ruling addressing
the same issue, Safavian’s statements to the FBI were
evidence of his state of mind and as such “would have come
in with or without [Count Five] as a way to counter the
proffered defense.” Transcript of Motions Hearing at 10,
Safavian III (Nov. 26, 2008). The showing required to
overcome the presumption of vindictiveness is admittedly
minimal  any objective evidence justifying the prosecutor’s
actions will suffice  but the Government’s claimed inability
to introduce Safavian’s statements into evidence does not
meet even that low standard.*

*
  The cases the Government cites in support of its position are not
inapposite; in those cases the Government had objective reason to
believe the evidence it sought to introduce would be excluded if a
new charge was not added. See United States v. Poole, 407 F.3d
767, 776–77 (6th Cir. 2005) (not vindictive to add new charge to a
                                  11

     The district court’s reliance upon the Government’s
second argument, however, was not clearly erroneous. The
Government was objectively reasonable in responding to this
court’s ruling on appeal by changing its trial strategy and
refocusing the indictment to include conduct lying outside the
scope of the defendant’s defense of literal truth and of his
expert’s testimony. Safavian’s argument that a prosecutor’s
change in strategy is not an “objective” justification subject to
judicial review is unpersuasive where, as here, the
Government changed its trial strategy in response to an
adverse ruling of the court; in this circumstance, the court’s
ruling provides a basis for assessing the objective
reasonableness of the Government’s adding a new charge.
For example, if, instead of charging Safavian in the new count
with conduct falling outside the scope of the defense of literal
truth, the Government had charged Safavian with falsely
telling the IRS (instead of a Senate Committee) that Abramoff
did not “do business” with GSA, then it could not reasonably
invoke our decision in Safavian II to justify its decision
because the new charge would be as vulnerable to Safavian’s
defense of literal truth as was the old.

    In this case the addition of Count Five was objectively
reasonable and the presumption of vindictiveness was

superseding indictment to ensure introduction of evidence ruled
inadmissible at first trial); United States v. Hill, 93 F. App’x 540,
546 (4th Cir. 2004) (not vindictive to charge overt acts of
conspiracy as separate counts in superseding indictment to reflect
evidentiary rulings in first trial); cf. United States v. Davis, 108 F.
App’x 131, 135–36 (5th Cir.2004) (Government’s explanation it
added a conspiracy charge to a superseding indictment “as a way to
‘overcome’ issues of admissibility as to certain testimony” was
“reasonable because the added ... charge allowed the [G]overnment
greater flexibility in introducing witness testimony”).
                             12
dispelled. Inasmuch as Safavian offered neither argument nor
evidence the Government acted with actual vindictiveness, his
conviction must be

                                                   Affirmed.
