roger clemens trial: gov reply to objections

UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA : Criminal No. 10-223 (RBW):

v. : :WILLIAM R. CLEMENS, :

: Defendant. :

GOVERNMENT’S REPLY TO DEFENDANT’S EVIDENTIARY OBJECTIONSTO EXHIBIT 2 SERIES AND EXHIBIT 3 SERIES

The United States of America, by and through its attorney, the United States Attorney for the

District of Columbia, respectfully submits this reply to defendant’s evidentiary objections to the

government’s exhibit 2 series and exhibit 3 series (Docket No. 127). In support of the government’s

reply, we submit the following.

I. Procedural Background

As we previously mentioned in our Notice of Party Disagreement on Rule 106 Grounds

(Docket No. 126) the government informed the defense of changes to the exhibits we intended to

introduce at trial. On March 27, 2012, the government released to the defense a disk containing

those exhibits, including portions of recorded statements for their review. On April 11, 2012, the

defense provided the government with its proposed additions to those portions of recorded

statements. On April 17, 2012, the defense verbally informed the government of two or three

unspecified hearsay objections to the recorded statements the government intended to introduce. On

that same date, the government informed the defense of the importance of advance notice of their

objections due to the time and resources needed to modify these recorded statements. On April 19,

2012, at 7:00 p.m., on the eve of trial, where the introduction of these exhibits will soon commence,

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the defense raised their objections, based on hearsay grounds, to the government’s exhibit 2 series

and 3 series. The defendant’s objections to these exhibits are without merit and should be denied1

by this Court.

II. Authorities and Arguments

A. The Recorded Statements Are Not Hearsay

A trial court has “wide discretion to admit or exclude evidence where the question is one of

relevance or materiality.” United States v. Morgan, 581 F.2d 933, 936 (D.C. Cir. 1978)), cert.

denied, 120 S. Ct. 81 (1999); Brooke v. United States, 385 F.2d 279, 286 (1967). A trial court’s

ruling upon the relevancy of evidence similarly “depends upon the exercise of the sound discretion

of the trial judge and will not be disturbed upon appeal except for grave abuse.” Hardy v. United

States, 335 F.2d 288, 289 (1964). Harper v. United States, 239 F.2d 945 (1956).

As a general rule, hearsay is not admissible in federal courts. Fed. R. Evid. 802. “ ‘Hearsay’

is a statement, other than one made by the declarant while testifying at the trial or hearing, offered

in evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). But such a statement

may be admitted to serve a non-hearsay purpose, such as elucidating a speaker’s or a listener’s state

of mind, United States v. Sesay, 313 F.3d 591, 599 (D.C. Cir. 2002), or providing background

information, United States v. Gatling, 96 F.3d 1511, 1524 (D.C. Cir. 1996). See also Fed. R. Evid.

801(c) Advisory Committee Notes to 1972 Proposed Rules (noting that “verbal conduct which is

assertive but offered as a basis for inferring something other than the matter asserted, [is] excluded

from the definition of hearsay by the language of subdivision (c).”); D. Binder, Hearsay Handbook,

§ 2.9 at 2-27 (4th ed. 2001) (“An out-of-court assertion, regardless of its truth, may imply ...

The defendant’s objections to these exhibits are attached to this pleading as Exhibit A.1

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Case 1:10-cr-00223-RBW Document 128 Filed 04/22/12 Page 2 of 8

emotional feeling, or other particular state of mind of the declarant. If offered as circumstantial

evidence to prove such state of mind, the assertion is not hearsay.”) As with all evidence, however

such a statement, when offered for a permissible non-hearsay purpose, must be relevant to a “fact

... of consequence” in the case. Fed. R. Evid. 401; see also Sesay, 313 F.3d at 599-600; United

States v. Evans, 216 F.3d 80, 87 (D.C. Cir. 2000). Relevant evidence is anything “having any

tendency to make the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” Fed. R. Evid. 401. Even if

the evidence would not by itself suffice to show a defendant’s guilt, the fact that it assists the jury

in determining a matter of consequence is sufficient to show relevance. However, even if evidence

is relevant, it may be excluded if its probative value is substantially outweighed by the danger of

unfair prejudice. Fed. R. Evid. 403. In the instant case, the recorded statements contained in the

government’s exhibit 2 and 3 series are not offered for the truth of the matters asserted. The

recorded statements are not hearsay and should therefore be admitted. We address the admissibility

of each recorded statement below.

Exhibit 2a and 2a-1, page 4 lines 3 to 5

The defense objects to the following portion of the exhibit: “This is a deposition in the

committee’s investigation into the illegal use of performance-enhancing drugs in Major League

Baseball.” The government does not seek to introduce this statement for the truth of the matter

asserted. The statement is background evidence prefacing the series of questions to be asked of the

defendant. The government will prove the nature, purpose and scope of the congressional inquiry

by other evidence, separate and apart from this recorded statement. This recorded statement simply

provides context to the defendant’s answers provided during the deposition.

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Exhibit 2a and 2a-1, page 6, lines 13 to 19

The defendant objects to the following portion of the exhibit: “Because you have been

placed under oath, your testimony here has the same force and effect as if we are actually out in the

open committee hearing. If you knowingly provide false testimony, you could be subject to criminal

prosecution for perjury, false statements, and other offenses. Do you understand this?” [Mr.

Clemens responds:] “I do.” Other than Mr. Clemens’ response, the government does not seek to

introduce the lead-up recorded statement for the truth of the matter asserted. The statement is

background evidence setting the stage for the ultimate question asked of the defendant. The force

and effect of the oath and the potential consequences of failing to comply with it will be covered by

the Court’s final instructions, separate and apart from this recorded statement.

Exhibit 2k and 2k-1, page 38, lines 12 to 13

The defendant objects to the following portion of the exhibit: “The issue whether he gave you

B12 shots is obviously a key issue.” Here too, the government does not seek to introduce this

statement for the truth of the matter asserted. The statement is background evidence and will be

submitted to show the state of mind of the defendant, that is his reactions before congress regarding

this topic and his responses to the same. The B12 issue is indeed relevant to the case, but this

recorded statement simply prefaces the series of questions to be asked of the defendant. The

government will prove content of the statement, whether the inquiry into B12 was important to the

congressional inquiry by other evidence, separate and apart from this recorded statement.

Exhibit 2y and 2y-1

The defense objects to the following portion of the exhibit: “And we also understand that

in October Senator Mitchell informed the players union that any player who agreed to an interview

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would be provided with the evidence that Senator Mitchell had regarding their use of

performance-enhancing drugs, and this was a renewal of Senator Mitchell’s request to talk with

you.” The government does not seek to introduce this statement for the truth of the matter asserted.

That is, by introducing this statement, the government will not assert that it was true, based on this

statement, that Senator Mitchell actually engaged in the conduct described in the statement. The

statement will be introduced as background evidence and to preface the answer provided by the

defendant, which is at issue in the case. The government will introduce other evidence, separate and

apart from this recorded statement, to prove Senator Mitchell’s efforts in communicating with the

Major League Baseball’s players union and its players.

Exhibit 2ff and 2ff-1, page 146, lines 7-8

The defendant objects to the following portion of the exhibit: “This is an important point for

us. Because there is an area of dispute.” The government does not seek to introduce this statement

for the truth of the matter asserted. The statement is background and merely completes the overall

question posed to the defendant. The truth of the assertion contained in the overall question will be

proved by the government with other evidence, separate and apart from the recorded statement.

Exhibit 3a-2 and 3b-2, page 89

The defendant objects to the following portion of the exhibit: “[By] Mr. Cummings. I

understand … He also remembers a second conversation… This conversation took place in 2005.”

The government does not seek to introduce this recorded statement for the truth of the matter

asserted. Rather, the statement is background for the question posed to the defendant. It places into

context the answer provided by the defendant. The truth of the assertion contained in the overall

question, whether the 2005 conversation occurred or not, will be proved by the government with

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other evidence, separate and apart from the recorded statement.

Exhibit 3a-6 and 3b-6, page 122

The defendant objects to the following portion of the exhibit: “Mr. Mica. OK. But we don’t

know what he injected. But he just testified that the substance was a different color than you

recognized. And, in fact, you told me on a prior occasion the color of the substance you were

injected with; is that correct?

Mr. Clemens. I am sorry, I didn’t –

Mr. Mica. I said you told me the color of the substance you were injected

with. That is why I asked him that –

Mr. Clemens. That’s correct.

Mr. Mica [continuing]. Question first.”

This recorded statement also will not be offered for the truth of the matter asserted. It is an

exchange between the defendant and the congressional committee member providing background

to the final question posed. Without the background exchange, the jury will be without benefit of

the full nature of what the question was probing and how to gauge whether the defendant’s answer

was intentionally truthful or not. The truth of the assertion contained in the overall question, will

be proved by the government with other evidence, separate and apart from the recorded statement.

B. The Recorded Statements Are Relevant and Not Unfairly Prejudicial

The seven recorded statements above are relevant. Each recorded statement places into the

context the answers provided by the defendant. The individual recorded statements, when

considered as part of the greater, overall questions posed to the defendant will assist the jury in

determining matters of consequence to it. The recorded statements will elucidate the full meaning

of the questions posed, and more importantly, assist the jury in gauging the responses provided by

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the defendant and his depicted demeanor regarding his understanding of the questions posed. The

defendant is not prejudiced by including these recorded statements. Under the Rule of

Completeness, the defendant is including statements favorable to him that complete the overall tone

and exchange between the defendant and the congressional committee members with respect to each

recorded statement above. The Rule protects the defendant’s right to admit other portions of the

statement necessary to explain the government’s admitted recorded statements. See 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)).

In sum, the defendant’s objections to each of the seven recorded statements are without merit.

The government seeks to admit these exhibits as aides to the jury. The recorded statements provide

background information that place in perspective the states of mind of both the speaker and the

defendant. The information is relevant and will assist the jury in deciding the factual issues in

dispute. For all these reasons, the probative value of this evidence is not outweighed by any danger

of unfair prejudice.

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Respectfully submitted,

RONALD C. MACHEN JR.UNITED STATES ATTORNEYD.C. BAR # 447889

By: /s/ STEVEN J. DURHAMD.C. Bar # 993780DANIEL P. BUTLERD.C. Bar # 417718DAVID B. GOODHANDD.C. Bar # 438844GILBERTO GUERRERO, JR.KS Bar # 19271COURTNEY G. SALESKIDC Bar # 496744Assistant United States Attorneys555 Fourth Street, N.W.Washington, D.C. 20530(202) 252-7862/(202) 252-7881

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roger clemens trial: gov reply to objections

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