United States Court of Appeals, District of Columbia Circuit
Argued: December 11, 2013.
Appeal from the United States District Court for the District of Columbia. (No. 1:10-cr-00250-1).
Misha Tseytlin, appointed by the court, argued the cause for appellant. On the briefs were Matthew D. McGill and Erik R. Zimmerman, appointed by the court.
John-Alex Romano, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Mythiili Raman, Acting Assistant Attorney General, and Raymond N. Hulser, Principal Deputy Chief, Public Integrity Section. Kathleen A. Felton and Daniel A. Petalas, Attorneys, U.S. Department of Justice, and Elizabeth Trosman, Assistant U.S. Attorney, entered appearances.
Before: GRIFFITH and SRINIVASAN, Circuit Judges, and SENTELLE, Senior Circuit Judge.
Griffith, Circuit Judge :
A jury convicted appellant Paul Solofa of witness tampering and obstruction of justice, and the district court sentenced him to 35 months in prison. Solofa challenges his conviction on the ground that his trial counsel provided ineffective assistance and his sentence on the ground that the district court improperly applied an enhancement under the Sentencing Guidelines. For the reasons set forth below, we affirm.
In 2008, the FBI undertook an investigation that uncovered a kickback scheme that defrauded the Department of Education (DOE) of American Samoa. The scheme was simple. Gustav Nauer, DOE's head mechanic, ordered school-bus parts from Oscar Mayer, who ran a company called Pacific Products, Inc. Mayer would not ship the parts, but Nauer would submit paperwork to the DOE vouching that he had. Mayer would then funnel to Nauer some of the funds he received from the DOE for the parts he never delivered. All told, between 2003 and 2006 Mayer paid Nauer nearly $300,000 for his involvement in this fraud. It isn't entirely clear, nor is it relevant to this appeal, precisely what role Solofa played in the plot. He was the chief financial officer of DOE during the first year of the scheme and was friends with Mayer. At the very least, Solofa knew about the kickback scheme and accepted hush money from Nauer to keep quiet about it. No bribery or fraud charges were brought against Solofa, and this case is not about his role in defrauding the DOE. This case is about Solofa's role in the FBI investigation of that fraud.
The investigation led to Mayer's door, and he was called into the FBI's office to be interviewed about his role in the scheme. During the interview, the FBI
agents confronted Mayer with evidence of his complicity. Mayer did not respond to the allegations during the interview, but his lawyer, who was present, told the agents that Mayer would " get back" to them. In a private discussion after they left the interview, his lawyer advised Mayer to " tell them everything." The next day, Mayer returned to the FBI office with his lawyer and fully acknowledged his part in the fraud. Mayer also agreed to cooperate with the FBI's ongoing investigation of the scheme in exchange for a recommendation of leniency from the FBI to the prosecutor. The FBI arranged for Mayer to secretly record conversations with Solofa and Nauer that were intended to draw out what they knew about the kickbacks. In his first conversation with Solofa, Mayer did as the FBI instructed and told Solofa that FBI agents had mentioned him by name when explaining that they needed to interview Mayer. Mayer voiced concern about his upcoming interview with the FBI, putting on an air of anxiety, and asked Solofa what he should say and do during the questioning. In response, Solofa told Mayer to deny giving cash to Nauer and suggested that he tell the FBI that he and Solofa had never had any dealings with one another regarding school-bus parts. Solofa added that the FBI could not trace their transactions, because all of them were made in cash.
For the next conversation, the FBI gave Mayer a fake subpoena seeking various documents from Pacific Products and told him to show it to Solofa as if it were genuine. Mayer did so, and asked Solofa how he should respond to the subpoena. Solofa told Mayer not to " hide anything" and to " [j]ust give them copies of everything." Solofa repeated this advice, telling Mayer that he had to produce everything that the FBI asked for. He even explained the best procedures for responding fully. But, significantly, Solofa then changed course and reminded Mayer that " only you know everything.... So don't give them any copy you don't want to give them." More than that, Solofa told Mayer to " burn" the copies of any documents that " you don't want to give them" because that way " they ...