Case 1:10-cr-00223-RBW Document 105

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, v. WILLIAM R. CLEMENS, Defendant.

: : : Criminal No. 10-223 (RBW) : : : :

GOVERNMENTS SUPPLEMENTAL TRIAL MEMORANDUM The United States of America, by and through its attorney, the United States Attorney for the District of Columbia, hereby submits the following supplemental memorandum to the governments trial memorandum filed on June 21, 2011 (Dkt. No. 52) to outline additional evidentiary matters and other matters to be considered pretrial. Trial is scheduled to commence with jury selection on Monday, April 16, 2012. The government directs the Courts attention to the following additional legal or evidentiary matters: Stipulations In order to conserve resources, as well as the jurys time, the government is prepared to stipulate with the defense regarding a number of witnesses testimony that do not appear to be contested, including chain-of-custody witnesses and witnesses regarding the results of certain forensic testing. (See 7/13/2011 AM Tr. 33 (regarding the beer can evidence, [w]ere not going to really argue about it much and were not arguing about [it], so it really doesnt make any difference) and 37 (Were not going to argue that wasnt Rogers DNA through his blood or whatever.)). Exhibits In order to ensure compliance with the Courts Orders, the government has reviewed and redacted its exhibits and a disk containing those exhibits that are portions of recorded

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statements will be turned over to defense counsel for review during the week of March 26, 2012. Jury Instruction Number 2.500 (Redacted Documents and Tapes) For various reasons including the Courts Orders, many of the governments exhibits are selected portions from recorded statements. The government requests that the Court provide a modified version of Jury Instruction Number 2.500 (Redacted Documents and Tapes) at the time the government seeks admission of the majority of those selected portions, which are governments exhibits marked in series 2 (governments 2a to 2ll and 2a-1 to 2ll-1) and series 3 (governments 3a-1 to 3a-8 and 3b-1 to 3b-8). The government proposes the following: The Court has just admitted a number of exhibits. Sometimes only the parts of an exhibit that were relevant to your deliberations were admitted. Where this occurred, I required the irrelevant parts of the statement to be blacked out or deleted. Thus, as you examine the exhibits, and you see or hear a statement where there appear to be omissions, you should consider only the portions that were admitted. You should not guess as to what has been taken out. Judicial Notice The government requests that the Court take judicial notice of Article I, sections 1, 2, 3, 4, 5, 6, and 8 of the U.S. Constitution. See, e.g., Bridge Proprietors v. Hoboken Co., 68 U.S. 116, 142 (1863) (If the courts of this country, and especially this [C]ourt, can be supposed to take judicial notice of anything without pleading it specially, it is the Constitution of the United States.). Performance Enhancing Drug Use In Major League Baseball Prior to the first trial date, defendant moved in limine to preclude (among other things) the government from introducing evidence or making argument about Brian McNamees conduct and discussions with Chuck Knoblauch, Mike Stanton, Anthony Corso, or any other third-party associated with anabolic steroids or human growth hormone other than Andy Pettitte (Dkt. No. 54 at 6). The Court ORDERED that

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the defendants motion in limine to preclude introduction of other-witness evidence concerning their interactions and discussions with Brian McNamee is HELD IN ABEYANCE until such time when the government requests that such evidence be presented to the jury. 7/6/11 Order, Dkt. No. 76, at 2. During the governments opening statement at defendants first trial, the government explained to the jurywithout mentioning McNameethat, as part of the evidence, former players Chuck Knoblauch and Mike Stanton would testify that they had used the drug HGH and about why they had used the drug (7/13/2011 AM Tr. 15-18). The defendant objected and, after a brief discussion at the bench, the Court ruled that the evidence was inadmissible, struck that portion of the governments opening statement, and instructed the jury not to consider it (id. 18). In order to ensure compliance with the Courts Orders, the government raises the following areas of testimony that will touch on the fact that other players used performance enhancing drugs, but that the government does not believe run afoul of the Courts Orders. First, the governments evidence will provide that the House Committee on Oversight and Government Reform (Committee) exercised its broad investigatory authority under the Rules of the House to investigate between 2005 and 2008 the abuse by professional athletes, including (but not limited to) professional baseball players, of steroids and other performance enhancing drugs and the impact of that abuse on Americas youth. Part of that testimony will reveal that the Committee uncovered a culture of performance enhancing drug use by Major League Baseball players. Second and relatedly, the governments evidence will provide that the Committees activities created pressure on Major League Baseball to conduct its own investigation into this culture of performance enhancing drug use and that Senator Mitchells investigation and reportentitled Report to the Commissioner of Baseball of an Independent Investigation into the Illegal Use of 3

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Steroids and Other Performance Enhancing Substances by Players in Major League Baseballreported allegations of illegal use of performance enhancing substances by over 80 Major League Baseball players. Third, Kirk Radomski will testify regarding his interactions with Brian McNamee. He also will testify about his plea agreement with the U.S. Attorneys Office for the Northern District of California and his related cooperation. The government intends to introduce Radomskis

cooperation plea agreement as Exhibit 36a. That agreement, among other things, indicates that Radomski distributed performance enhancing drugs to dozens of Major League Baseball players. These players are not named in the plea agreement and will not be named by Radomski in his testimony. Radomski additionally will testify about his cooperation, which included being

interviewed by Senator Mitchell and describing his distribution to players, who will not be named at trial. Fourth, Andy Pettitte will testify about his own use of human growth hormone, including his use with the assistance of McNamee. Finally, some evidence will be presented (including defendant's statements, Pettitte's testimony, and possibly other evidence) that touches on a 2006 L.A. Times article that discussed the Search Warrant affidavit that supported the search of former major league pitcher Jason Grimsley's home. That article incorrectly alleged that the Grimsley search warrant affidavit had named Roger Clemens and Andy Pettitte as players that had used performance enhancing substances. The affidavit, in fact, did not contain that allegation and the government will make clear through testimony, or through stipulation, that the affidavit did not contain that allegation. This evidence is offered, and is relevant, because of the impact the article had on defendant and his testimony before 4

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the Committee regarding that article. Voir Dire As the Court is aware, [v]oir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges. MuMin v. Virginia, 500 U.S. 415, 431 (1991); United States v. Littlejohn, 489 F.3d 1335, 1342 (D.C. Cir. 2007); United States v. Howell, 231 F.3d 615, 62728 (9th Cir.2000) (The fundamental purpose of voir dire is to ferret out prejudices in the venire and to remove partial jurors.). The government requests that the Court preclude references to irrelevant matters by counsel that do not serve those dual purposes and, thus, have no place in the voir dire. Rule of Completeness The government anticipates introducing portions of recorded statements made by defendant, including portions of defendants testimony at the Committee deposition, portions of the defendants testimony at the Committee hearing, and portions of defendants 60 Minutes interview. Where offered by the government, such statements are admissible under Fed. R. Evid. 801(d)(2)(a) as admissions of a party-opponent and are not considered hearsay. The government, for various reasons including the Courts Orders, will not seek to admit the majority of those recorded statements. Generally, defendant should not be permitted to elicit, through testimony or otherwise, his own hearsay statements because out-of-court, exculpatory statements of a defendant are hearsay and are not admissible if offered by a defendant. See Fed. R. Evid. 801; United States v. Wilkerson, 84 F.3d 692, 696 (4th Cir. 1996); United States v. Smith, 490 F.2d 789, 791-92 (D.C. Cir. 1974) (holding that defendant's exculpatory statement properly excluded as hearsay). Indeed, the rules do not provide an exception for self-serving, exculpatory statements made by a party which are being

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sought for admission by that same party. Wilkerson, 84 F.3d at 696 (citing Fed. R. Evid. 803-804).1 While Rule 801(d)(2) clearly forecloses any attempt by the defendant to offer his own out-ofcourt statements, the government anticipates that the defendant may seek to admit the statements under Federal Rule of Evidence 106. That Rule provides that [i]f a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other partor any other writing or recorded statementthat in fairness ought to be considered at the same time. As the D.C. Circuit explained regarding Rule 106: The most sensible course is to allow the prosecution to introduce the inculpatory statements. The defense can then argue to the court that the statements are misleading because of a lack of context, after which the court can, in its discretion, permit such limited portions to be contemporaneously introduced as will remove the distortion that otherwise would accompany the prosecution's evidence. Such a result is more efficient and comprehensible, and is consonant with the requirement that the rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of the law of evidence to the end that the truth may be ascertained and proceedings justly determined. United States v. Sutton, 801 F.2d 1346, 1369 (D.C. Cir. 1986) (quoting Fed. R. Evid. 102). The purpose of the Rule is to prevent a party from misleading the jury by allowing into the record relevant portions of the excluded testimony which clarify or explain the part already received. Wilkerson, 84 F.3d at 696. However, Rule 106 only ought to be applied consistent with its purpose to clarify or explain testimony already received not as a vehicle to allow the defendant to admit otherwise inadmissible exculpatory statements. See United States v. Crosby, 713 F.2d 1066, 1073-74 (5th Cir. 1983) ([Rule 106] restricts a requirement of completeness by the qualification that the portion sought to
1

Of course, defendant has the right to testify on his own behalf at trial and thereby make exculpatory statements in court through his own testimony, subject to cross-examination by government counsel. 6

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be admitted must be relevant to the issues, and only the parts which qualify or explain the subject matter of the portion offered by the opponent need be admitted.); United States v. Marin, 669 F.2d 73, 84 (2d Cir. 1982) (supplemental statements must be necessary to explain the admitted portion, to place it in context, or to avoid misleading the trier of fact, or to ensure a fair and impartial understanding of the admitted portion (citations and internal quotation marks omitted)). While the D.C. Circuit has taken an expansive view of Rule 106, see, e.g., Sutton, 801 F.2d at 1369, it also clearly has required defendants to make a threshold showing that the [admitted] statements are misleading because of a lack of context, id., before allowing the introduction of additional statements under Rule 106. The rule of completeness, therefore, does not confer upon the defendant a broad license to admit otherwise inadmissible statements, and absent a clear showing by the defendant that the portions of the recorded statements offered by the government are misleadingand that the portions defendant offers would remedy any asserted confusionthe court should not allow defendant to introduce exculpatory, self-serving, or otherwise irrelevant portions of those recorded statements. Because the government expects the question of admissibility under Federal Rule of Evidence 106 to be an issue at trial and because defendant has been largely aware of the portions of recorded statements that the government intends to seek to introduce at trial since before the first trial, on February 9, 2012, the government requested that defendant give notice as to which parts of those recorded statements he will seek to introduce at trial pursuant to Federal Rule of Evidence 106 so that the parties may determine whether there will be objections to those portions that, in the interests of efficiency, may be litigated pretrial to minimize delay and in-court objections. The defense has not responded to that request. 7

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Respectfully submitted, RONALD C. MACHEN JR. UNITED STATES ATTORNEY D.C. BAR # 447889 By: /s/ STEVEN J. DURHAM D.C. Bar # 993780 DANIEL P. BUTLER D.C. Bar # 417718 DAVID B. GOODHAND D.C. Bar # 438844 GILBERTO GUERRERO, JR. KS Bar # 19271 COURTNEY G. SALESKI DC Bar # 496744 Assistant United States Attorneys 555 Fourth Street, N.W. Washington, D.C. 20530 (202) 252-7862/(202) 252-7881

March 23, 2012