Clemens Doc

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA : CRIMINAL NO. 10-223 (RBW):

v. :

:

WILLIAM R. CLEMENS, :

:

Defendant. :

GOVERNMENTS MOTIONIN LIMINETO PRECLUDE IMPROPER

EVIDENCE, COMMENT, AND ARGUMENT

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

District of Columbia, respectfully submits the following motion in limine to limit or preclude, during

voir dire and throughout trial, improper evidence, comment, and argument that encourages jury

nullification and that refers to other irrelevant matters, and to limit or preclude improper comment

and argument during defendants opening statement.

INTRODUCTION

Defendant William R. Clemens is charged with obstruction of Congress, making false

statements, and perjury, in violation of 18 U.S.C. sections 1505, 1515(b), 1001(a)(2), 1001(c)(2),

and 1621(1), in connection with sworn statements he made during a Congressional investigation.

At defendants first trial, defendant presented an opening statement containing an appeal that the

jurors put themselves in defendants shoes (i.e., to the Golden Rule), references to potential

punishment, references to irrelevant matters, references to inadmissible hearsay, and other improper

arguments. The government now moves to preclude, during voir dire and at any point during trial,

evidence, comment, and argument that encourages jury nullification; to preclude, during voir dire

Case 1:10-cr-00223-RBW Document 101 Filed 03/19/12 Page 1 of 19


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and at any point during trial, improper evidence, comment, and argument referring to other irrelevant

matters; and to preclude improper comment on inadmissible hearsay and improper argument during

defendants opening statement. The government files this motion to advise the Court about these

issues before trial in an effort to minimize trial delay and in-court objections.

ARGUMENT

I. The Court Should Preclude Evidence, Comment, and Argument, During Voir Dire and

Throughout Trial,That Encourages Jury Nullification.

It is improper to suggest in any way that the jury should acquit the defendant even if it finds

that the government has met its burden of proof. The D.C. Circuit adheres to this rule disapproving

arguments that ask the jury to decide a criminal case on extraneous matters, that is, to engage in jury

nullification:

A jury has no more right to find a guilty defendant not guilty than it has to find

a not guilty defendant guilty, and the fact that the former cannot be corrected by

a court, while the latter can be, does not create a right out of the power to misapply

the law. Such verdicts are lawless, a denial of due process and constitute an exercise

of erroneously seized power.

United States v. Washington, 705 F.2d 489, 494 (D.C. Cir. 1983). Indeed, federal courts have

uniformly recognized the right and duty of the judge to instruct the jury on the law and the jurys

obligation to apply the law to the facts, and that nullification instructions should not be allowed.

United States v. Drefke, 707 F.2d 978, 982 (8th Cir. 1983). Because jury nullification arguments

are improper, evidence that otherwise is irrelevant to the charges in the pending indictment does not

become admissible to support a nullification argument. United States v. Gorham, 523 F.2d 1088,

1097-98 (D.C. Cir. 1975). In light of these principles, the government calls attention to the

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following topics that could, if put before the jury in the present case, constitute an improper

invitation to nullify and thus would be contrary to the significant public interest in having a just

judgment reached by an impartial tribunal, Arizona v. Washington, 434 U.S. 497, 512 (1978).

A. The Court should preclude any Golden Rule evidence, comment, and

argument.

The law is well settled that arguments invoking the Golden Rule are impermissible. A

Golden Rule appeal in which the jury is asked to put itself in the defendants position is

universally recognized as improper because it encourages the jury to depart from the neutrality and

to decide the case on the basis of personal interest and bias rather than on the evidence. United

States v. Roman, 492 F.3d 803, 806 (7th Cir. 2007) (citation and internal quotation marks omitted);

see also United States v. Palma, 473 F.3d 899, 902 (8th Cir. 2007); cf. Standing Order, Dkt. No. 3,

10(v)(11) (prohibiting golden rule arguments during closing arguments).

In defendants opening statement during his first trial, defense counsel asked the jurors to put

themselves in defendants shoes:

I ask you to look at this evidence that youre going to hear with an eye toward, if you

spent a 24-year career thinking you did it the right way, when the whole world

condemns you and assumes, as soon as something comes out, that its true without

ever really being willing to listen to you, what would you do?

(7/13/11 AM Tr. 5.) This type of argument is inappropriate and should be precluded because it

invites jurors to decide the case based on bias, personal interests, and prejudice instead of the

evidence and law.

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B. The Court should preclude evidence, comment, and argument regarding

penalties.

It is well established that when a jury has no sentencing function, it should be admonished

to reach its verdict without regard to what sentence might be imposed. Shannon v. United States,

512 U.S. 573, 579 (1994) (quoting United States v. Rogers, 422 U.S. 35, 40 (1975)). The D.C.

Circuit thus has recognized that generally the jury has no concern with the consequences of a

verdict, either in the sentence, if any, or the nature or extent of it, or in probation. Lyles v. United

States, 254 F.2d 725, 728 (D.C. Cir. 1958), overruled in part on other grounds by United States v.

Brawner, 471 F.2d 969 (D.C. Cir. 1972); United States v. Patrick, 494 F.2d 1150, 1154 (D.C. Cir.

1974); see also Criminal Jury Instructions for the District of Columbia, No. 2.505 (5th ed. 2011)

(instructing that the question of possible punishment is not for the jury). Therefore, it generally is

inappropriate for counsel to argue punishment to the jury or inform the jury of the potential

punishment associated with a verdict.

In defendants opening statement during his first trial, defense counsel told the jury that

defendant was being tried in federal court for offenses with potential ranges of prison for denying

publicly, at first, allegations in a private report (7/13/11 AM Tr. 11-12). Defense counsel stated

subsequently during the opening statement that [t]hey want him to be a felon over the issue as to

whether he did research on HGH (7/13/11 AM Tr. 36) and [t]he flea is where we ought to make

the felon out of a man who had the temerity to say I didnt do it (7/13/11 AM Tr. 41-42). In this

case, evidence, comment, and argument concerning punishment are improper because the potential

penalty faced by defendant is irrelevant to the jurys determination of guilt or innocence. See, e.g.,

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Shannon, 512 U.S. at 579. Therefore, mention of the potential penalties faced by the defendant only

would improperly bias the jury and prejudice the government and should be precluded.

C. The Court should preclude evidence, comment, and argument regarding

charging decisions.

The decision not to file certain charges against a defendant or not to charge other individuals

has no tendency to make the existence of any fact that is of consequence to the charges lodged more

probable or less probable. See, e.g., United States v. Young, 20 F.3d 758, 765 (7th Cir. 1994)

(Whether or not [the person arrested with Young] was criminally charged does not make the facts

relating to Youngs knowledge and participation in the [crime] more or less probable.). Therefore,

evidence concerning the governments charging decisions is irrelevant and has no probative value.1

In opening statement during defendants first trial, defense counsel repeatedly commented

on the governments charging decisions in comparison to other cases, stating Mr. Novitsky will

testify they never charge the player. They always charge BALCO, people distributing or so.

(7/13/11 AM Tr. 13); [T]hey cut a deal with the drug people, the drug dealer to get the person they

contend was using. And I think Mr. Novitsky will have to admit the usual deal is to cut the deal with

the user to get the supplier. (7/13/11 AM Tr. 13-14); and "[B]ecause they wanted I guess well I

can't guess. It's not my deal to guess. But it is not a case like any other." (7/13/11 AM Tr. 14).2

The only exception is where the government has agreed not to prosecute a witness for1

additional crimes contingent on that witnesss cooperation, because such evidence would be

relevant to the witnesss bias.

These statements are particularly misleading because defendant has not been charged2

with usingperformance enhancing drugs, rather he has been charged with lyingto Congress

about his use of performance enhancing drugs.

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These matters are irrelevant because they have no tendency to make the existence of any fact that

is of consequence to the determination of defendants alleged obstruction of Congress, false

statements, and perjury more probable or less probable. Fed. R. Evid. 401; see also United States

v. McVeigh, 153 F.3d 1166, 1192 (10th Cir. 1998) (Under our system of criminal justice, the issue

submitted to the jury is whether the accused is guilty or not guilty. The jury is not asked to render

judgement about non-parties, nor is it normally asked to render a verdict on the governments's

investigation.); United States v. Johnson, No. 08-466, 2011 WL 809194 (N.D. Ill. March 02, 2011)

(granting governments motion in limine to preclude evidence regarding the governments charging

decisions because the Governments charging decisions are not relevant to the issue of whether

[defendant] is guilty or innocent of the crimes for which he is charged.).

D. The Court should preclude evidence, comment, and argument suggesting

that the amount of government resources devoted to this prosecution was

excessive or wasteful.

There is an increasing tendency in criminal cases to try some person other than the

defendant and some issues other than his guilt. United States v. Griffin, 867 F. Supp. 1347, 1347

(N.D. Ill. 1994) (citation and internal quotation marks omitted). The thrust of the defense in these

types of cases is the prosecution was not nice or could have done it better and so the jury ought to

acquit, whether or not guilt has been proven beyond reasonable doubt. Id. at 1347.

During opening statement in defendants first trial, defense counsel improperly commented

on the amount of government resources dedicated to defendants case and argued the allocation was

wasteful, stating:

[T]hese are the resources that the government has devoted to an investigation for a

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man, of a man who publicly in every other forum said I didn't commit a crime. They

have indicted a man for a crime with this crime. . . . And one of the reasons they did

this is because they had no corroborating evidence of McNamee. And so what they

did was look at where they have been and how many places they have been since thereferral of this case by Congress in February of 2008, 103 law enforcement officers

in all of these locations, 5 attorneys, 229 investigation reports, 72 investigation

locations. I suggest to you a reasonable reaction to this is we have a problem in River

City. If that and whats relevant about this is they still didn't find anything to

connect him with steroids except Brian McNamee. (7/13/11 AM Tr. 40-41); and

I suggest to you that this is the classic example of chasing a flea on an elephant. The

elephant is the things we should be dealing with. The flea is where we ought to make

the felon out of a man who had the temerity to say I didn't do it. (7/13/11 AM Tr.

41-42).

The propriety of the amount of resources expended by the government on this investigation has no

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

defendants alleged obstruction of Congress, false statements, and perjury more probable or less

probable. Fed. R. Evid. 401.

Moreover, even assuming arguendo some relevance, the minor probative value of evidence

relating to the governments allocation of resources would be substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation of cumulative evidence. Fed. R. Evid. 403.

These dangers are especially acute where, as here, the defendant argues that the allocation of

government resources was wasteful (i.e., a reasonable reaction is we have a problem in River City

and [t]he elephant is the things we should be dealing with). And the danger is manifest where, as

here, defendant uses a misleading graphic demonstrative to support his point. During defendants

first trial, defense counsel showed a graphic to the jury that he described as revealing (among other

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things) where the prosecution had been since the referral (7/13/11 AM Tr. 40-41). The

demonstrative, for example, showed Germany as a place where the government had conducted an

interview. The demonstrative did not note that the interview in Germany was conducted over the

phone by an agent in the United States. Such a demonstrative is prejudicial and misleading, just like

other evidence, comment, and argument relating to the propriety of governments resources invested

in this case. To allow such potentially prejudicial and misleading matters before the jury likewise

may run afoul of the prohibition against jury nullification by focusing the jury on the relative merits

of government spending rather than the merits of its case against defendant. Thus, evidence,

comment, and argument relating to the propriety of the governments allocation of resources to this

investigation and prosecution should be excluded.

II. The Court Should Preclude Evidence, Comment, and Argument, DuringVoir Dire and

Throughout Trial, Regarding Other Irrelevant Matters.

This Court has complete discretion to decide what matters are material, relevant, and

collateral to any case or witness examination, even if those issues fall in the realm of cross

examination or impeachment. See Fed. R. Evid. 401-403; United States v. Lin, 101 F.3d 760, 767-

68 (D.C. Cir. 1996) (court properly limited cross examination on prejudicial matter where defense

failed to make proper foundation). Matters that are collateral to the main issues at trial generally are

considered irrelevant.

Moreover, even if evidence is relevant, it may be excluded by the Court if its probative value

is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative

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evidence. Fed. R. Evid. 403. Rule 403 allows for exclusion of evidence that certainly is relevant,

but may elicit excessive emotional reactions from the jury. See Advisory Committee Notes, Rule

403 (includes evidence which calls for inducing decision on a purely emotional basis). In this

context, [u]nfair prejudice means an undue tendency to suggest decision on an improper basis,

commonly, though not necessarily, an emotional one. Id. Federal Rule of Evidence 403 also seeks

to prohibit delay and a mini-trial on a collateral matter. United States v. Fonseca, 435 F.3d 369,

376 (D.C. Cir. 2006).

A. The Court should preclude evidence, comment, and argument regardingextraneous matters.

In defendants opening statement during his first trial, defense counsel referred to a number

of extraneous matters, including defense counsels prior experience with cases in relation to this case

(7/13/11 AM Tr. 14 ([B]ecause they wanted I guess well I can't guess. It's not my deal to guess.

But it is not a case like any other. It is a case unlike any other Ive ever heard of.)); defendants two

heroes and the absence of the suggestion that they had used anabolic steroids (7/13/11 AM Tr. 18

(You will find from the evidence that Roger Clemens has two heroes. . . . Tom Selig [sic], who

pitched into his early 40s, nobody ever suggested use [sic] steroids, who was a power pitcher, and

Nolan Ryan, who pitched into his 40s and was a power pitcher and nobody ever talked about

steroids.)); and another players Congressional referral for prosecution (7/13/11 AM Tr. 9

(Because on January the 15th, the very day lawyers for Roger Clemens were in Washington talking

to . . . Mr. Barnett, . . . the Congressional Oversight Committee announced they were referring Mr.

Tejada, a baseball player, to the Department of Justice for perjury for something he had said in his

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deposition not before Congress in 2005, a clear shot across the bow to Roger Clemens and his

lawyers.).3

None of these extraneous matters tends to make the existence of any fact that is of

consequence to the determination of defendants alleged obstruction of Congress, false statements,

and perjury more probable or less probable. Fed. R. Evid. 401. Accordingly, evidence, comment,

and argument relating to these matters, including (but not limited to) those statements above are

irrelevant to defendants guilt or innocence of the crimes charged and should be excluded.4

B. The Court should preclude any reference to the previous trial.

The fact of defendants prior trial, which ended in a mistrial, is irrelevant under Rule 401 of

the Federal Rules of Evidence (discussed above), and, as a result is inadmissible under Rule 402.

Cf. United States v. Simmons, 470 F.3d 1115, 1127 (5th Cir. 2006) ([A]s a general matter, a trial

court does not abuse its discretion in excluding evidence of a prior acquittal on a related charge. .

At Congresss request, the U.S. Attorneys Office for the District of Columbia3

investigated the referral of Miguel Tejada for making false statements. In February 2009, Mr.

Tejada pleaded guilty to one count of Contempt of Congress. During his plea, Mr. Tejada

admitted that he provided false information to the Committee during an unsworn interview with

Committee investigators in connection with the Committees 2005 investigation of performance

enhancing drug use in Major League Baseball. See United States v. Tejada, 09-mj-77(AK). This

admission and outcome are no more relevant to the case at bar than the reference to the referral

itself.

Some of these statementsin addition to being inappropriate during voir dire and at any4

point during trialare particularly inappropriate for an opening statement because, as discussed in

more detail below in text, opening statements should not refer to matters that are not to be

presented as evidence. See, e.g., Standing Order, Dkt. No. 3, 10(d) (opening statements should

be a straightforward statement of what the evidence will show). For example, in addition to

the fact that it is irrelevant, defendant will not be able to show through competent evidence that

nobody ever suggested that defendants two heroes took steroids.

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. . Such evidence is not relevant because it does not prove innocence but rather merely indicates that

the prior prosecution failed to meet its burden of proving beyond a reasonable doubt at least one

element of the crime. (citation and internal quotation marks omitted)); United States v. Jones, 808

F.2d 561, 566 (7th Cir. 1986) (same). At best, references to the prior trial only could foster

confusion and sympathy. Moreover, references to the prior trial should be excluded alternatively

under Rule 403 because their probative valuewhich is nilis outweighed substantially by the

danger of unfair prejudice, confusion of the issues, or misleading the jury. Fed. R. Evid. 403. The

government therefore respectfully requests that any prior trial testimony introduced at trial be

referenced as testimony from a prior proceeding and that the Court bar all other references to the

previous trial.

III. Defendant Should Be Precluded from Making Improper Comments and Arguments

During His Opening Statement.

An opening statement has a narrow purpose and scope. It is to state what evidence will be

presented, to make it easier for the jurors to understand what is to follow, and to relate parts of the

evidence and testimony to the whole; it is not an occasion for argument. United States v. Dinitz,

424 U.S. 600, 612 (1976) (Burger, C.J., concurring); cf. United States v. Moore, 651 F.3d 30, 51

(D.C. Cir. 2011) (purpose of an opening statement is to provid[e] background on objective facts

while avoiding prejudicial references, and hence [t]he prosecutors opening statement should be an

objective summary of the evidence reasonably expected to be produced (citations and internal

quotation marks omitted) (alterations in original)). It is clear that opening statements should not

refer to matters that are not to be presented as evidence. Indeed, this Courts Order expressly advises

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that [c]ounsel will be admonished by the court should their opening statements stray into forbidden

argument, as opposed to a straightforward statement of what the evidence will show, and that

opening statements should not include counsels personal opinions. Standing Order, Dkt. No. 3,

10(d), (e)(3).

This Court has broad discretion to control the scope and extent of opening statements,

including to exclude irrelevant, inadmissible, misleading, and diversionary matters. United States

v. Howard, 115 F.3d 1151, 1156 (4th Cir. 1997); United States v. Poindexter, 942 F.2d 354, 360 (6th

Cir 1991); United States v. Hershenow, 680 F.2d 847, 858 (1st Cir. 1982); United States v. Freeman,

514 F.2d 1184, 1192 (10th Cir. 1975) 1454-55. Indeed, the Supreme Court has recognized the trial

judges duty, in order to protect the integrity of the trial, to take prompt and affirmative action to

stop . . . professional misconduct in opening statements. Washington, 434 U.S. at 513 (quoting

Dinitz, 424 U.S. at 612 (Burger, C.J., concurring)); Dinitz, 424 U.S. at 612 (Burger, C.J., concurring)

(To make statements which will not or cannot be supported by proof is, if it relates to significant

elements of the case, professional misconduct. Moreover it is fundamentally unfair to an opposing

party to allow an attorney, with the standing and prestige inherent in being an officer of the court,

to present to the jury statements that are not susceptible of proof but intended to influence the jury

in reaching a verdict.).

A. The Court should preclude any reference to inadmissible hearsay during

opening statement.

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. Hearsay

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is inadmissible unless it falls under one of the applicable exceptions in the Federal Rules of

Evidence. Fed. R. Evid. 802. It is improper to refer to inadmissible hearsay in an opening statement.

See, e.g., United States v. Valencia, 600 F.3d 389, 411 (5th Cir. 2010). In defendants opening

statement during his first trial, defense counsel referred to inadmissible hearsay of four main

varieties: (1) defendants self-serving hearsay; (2) attorney hearsay; (3) hearsay of potential

government witnesses; and (4) other miscellaneous hearsay.

Included among the inappropriate references by defense counsel to defendants self-serving

hearsay was the statement that defendant had given talks to kids all over the country against

steroids, that your body was your temple. You dont put these things in there. You dont cheat. You

dont take the easy way. (7/13/11 AM Tr. 5); and the statement that defendant was a man who

publicly in every other forum said I didnt commit a crime (7/13/11 AM Tr. 40). Defendants

statements were offered for their truth in defendants opening statement and are barred by the rule

against hearsay. Fed. R. Evid. 801 and 802. There is no question that a previous out-of-court

statement by defendant, if offered for the truth of the matter, is inadmissible hearsay if introduced

by defendant but admissible as an admission by a party-opponent if introduced by the government.

Fed. R. Evid. 801. Generally, therefore, defendant may not introduce his out-of-court statements

for the truth of the matter. See, e.g., United States v. Smith, 490 F.2d 789, 793-94 (D.C. Cir. 1974).

Included among the inappropriate references by defense counsel to attorney hearsay were the

following statements: defendants lawyers told the Congressional Committee, You folks know that

hes going to deny that he used steroids and HGH. All youre doing is trying to put him in a position

of a trial by Congress. There is a civil lawsuit pending now for defamation in Houston. Let that play

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out. Let Mr. McNamee testify in court as to what he said Roger did. Let Roger testify in court as

to whether thats true. Let it be handled in the courts where trials are supposed to be. (7/13/11 AM

Tr. 7); and defendants lawyers were asking, begging, cajoling, fussing, please dont call him, dont

put him in this situation, you know what hes going to say . . . (7/13/11 AM Tr. 9). Again, these

statements are classic out-of-court statements offered for their truth, which are inadmissible hearsay.

Fed. R. Evid. 801 and 802.

Included among the inappropriate references by defense counsel to hearsay of potential

government witnesses were the following statements: [A]s recently as March of this year, Mr.

Novitsky [sic], Im sure he will admit, testified that they never charged any of the baseball players

for using these with a crime. (7/13/11 AM Tr. 13); [T]hats what McNamee has always testified

to, and I assume thats where youll say no. (7/13/11 AM Tr. 23); And you will hear that

[McNamee] has testified before, from that time forward, August of 2001, Roger Clemens, according

to Brian McNamee, always said before, we never talked about steroids. We never talked about

HGH. . . . (7/13/11 AM Tr. 24-25); And Andy Pettitte, on other occasions, has testified that he

believed Roger was so insistent and believable when he denied it that he, Andy, thought he had

misunderstood. Now later in 2008, before Congress, by the time that is all over, hes willing to sign

an affidavit that says, no, Im certain that Roger told me HGH. (7/13/11 AM Tr. 31);

[McNamees] testified differently before the Grand Jury. He testified that he created this stuff to

get his wife off his back. (7/13/11 AM Tr. 34). Likewise, these are out-of-court statements offered

for their truth and, at least at the time of opening statements, are inadmissible. See, e.g., Fed. R.

Evid. 801 and 802. Assuming certain conditions precedent (such as an inconsistent statement from

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one of these witnesses on the stand), these types of prior statements by witnesses might become

admissible later during trial. See Fed. R. Evid. 801(d)(1). But, without more, these prior statements

remain inadmissible hearsay at the time of opening statements and the defense should be precluded

from referring to them. See Fed. R. Evid. 801 and 802.

Included among the other hearsay that defense counsel improperly referred to during

defendants opening statement was a reference to hearsay about accusations of roid rage: But

during this investigation you will find people try to suggest that steroids gave him ro[i]d rage and

somehow, somehow when he started using steroids he had this extra competitiveness and anger.

This is back in 1990, eight years before anybody was trying to suggest he used steroids (7/13/11

AM Tr. 20). Also included in that category was references to Eileen McNamees hearsay statements:

Eileen McNamee says thats a flat out lie. That never happened. That he did show her something

that he had in a seal blue, but he never opened it up and they never discussed it, and she doesnt

know anything about it, human steroid. (7/13/11 AM Tr. 34-35).

With respect to defendants references to people try[ing] to suggest that steroids gave

[defendant] roid rage (7/13/11 AM Tr. 20.), that statement is classic, vague hearsay that should be

excluded. It does not even identify an actual declarant, making it even less reliable. Defendant

offers it for the truth of the matter asserted, in order to discredit it by suggesting that he has always

been full of rage, which is a manifestation of his ultra-competitive nature. In addition to being a

straw-man fallacy, it is inadmissible hearsay. See Fed. R. Evid. 801 and 802.

With respect to the statements of Eileen McNamee to which defendant referred, again these

are out-of-court statements by a declarant offered for their truth and thus barred by the rule against

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hearsay. Fed. R. Evid. 801 and 802. It is not yet clear whether the government will call Eileen

McNamee as a witness in its case-in-chief. And defendant did not announce Eileen McNamee as

a witness in his case. As such, at least at this point, any reference to Eileen McNamees statements

are references to inadmissible hearsay. See Fed. R. Evid. 801 and 802.5

References to inadmissible hearsay during opening statement are improper and frustrate the

publics interest in fair trials. As a result, the government seeks to preclude any reference to

inadmissible hearsay in defendants opening statement, including (but not limited to) the hearsay

described above.

B. The Court should preclude any argument during opening statement.

The government respectfully moves to preclude any argument during opening statement. As

the Court is aware and as is discussed above, opening statement is not an occasion for argument.

Dinitz, 424 U.S. at 612 (Burger, C.J., concurring); see also Standing Order, Dkt. No. 3, 10(d).

However, during defendants opening statement in his first trial, defense counsel repeatedly made

arguments to the jury, including:

And I want to suggest to you what the evidence is always supposed to come back

to in this case, this is what its supposed to be about, whether or not he used steroids

or HGH, not whether he went to a party at a certain time of day, whether or not he

was at a barbeque, not whether he said this or that, but whether he took HGH or

steroids. If you believe, at the end of this case beyond a reasonable doubt that he did,

then you should find him guilty. But I suggest to you the evidence should always be

directed to those base issues rather than some of the things we are going to talk

about. (7/13/11 AM Tr. 11);

Of course, there is a proper way to open on this evidence if defendant determines that he5

will call Eileen McNamee. In that case, defendant properly could say, for example, We intend

to call Eileen McNamee to testify and we expect her testimony to be that she was not shown the

physical evidence in this case, but rather only ever saw a sealed Fed Ex box.

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Youll be able to decide whether that makes any sense under Gods green earth. But

thats what McNamee has always testified to, and I assume thats where youll say

no. (7/13/11 AM Tr. 23);

Now, whats the truth? Brian McNamee says the truth is Roger Clemens and Andy

Pettitte are using steroids. Okay. As long as you continue to tell us that truth, you

wont be charged with anything. (7/13/11 AM Tr. 28);

And at the end of the day, youll, the evidence is never going to be able to get away

from the fact that Brian McNamee, to put it delicately, is a liar. He was a liar before

this started. He will have to concede hes been a liar during it. (7/13/11 AM Tr.

32);

Were supposed to be here about steroids, right, and HGH? And did this man, who

tried to protect his reputation and his whole career, who kept denying it at everyforum and then Congress wants him to swear to it under oath, well then what the

heck are we doing there about these other things? Well, heres what they are. There

are 15 acts of obstruction that they claim that Roger Clemens did in his testimony .

. . . And in here only four of the 15 have anything to do with the core issue.

(7/13/11 AM Tr. 35);

Thats fair game because, if he lied about [taking steroids], thats wrong and he

ought to be convicted. . . . But look what else they do. They want you to find him

guilty of a felony. Did you ever speak with Mr. McNamee about human growth

hormone? I did not. (7/13/11 AM Tr. 36);

Did you do any research? They want him to be a felon over the issue as to

whether he did research on HGH. (7/13/11 AM Tr. 36);

What were going to be arguing is is that Brian McNamee fabricated this stuff and

put it together. For what reason Ive told you? There will be a multitude of reasons

raised by the evidence. You decide that, but you dont have to decide that only

whether you have a reasonable doubt that thats what he did. He manufactured this

stuff is our point. (7/13/11 AM Tr. 37);

And you get to decide if thats a cock-a-you-know-what story, a cockamamie story.

(7/13/11 AM Tr. 39);

[T]hese are the resources that the government has devoted to an investigation for a

man, of a man who publicly in every other forum said I didnt commit a crime. They

have indicted a man for a crime with this crime. . . . And one of the reasons they did

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this is because they had no corroborating evidence of McNamee. And so what they

did was look at where they have been and how many places they have been since the

referral of this case by Congress in February of 2008, 103 law enforcement officers

in all of these locations, 5 attorneys, 229 investigation reports, 72 investigationlocations. I suggest to you a reasonable reaction to this is we have a problem in River

City. If that and whats relevant about this is they still didnt find anything to

connect him with steroids except Brian McNamee. (7/13/11 AM Tr. 40-41);

I suggest to you that this is the classic example of chasing a flea on an elephant.

The elephant is the things we should be dealing with. The flea is where we ought to

make the felon out of a man who had the temerity to say I didnt do it. (7/13/11 AM

Tr. 41-42); and

Roger Clemens is charged with denying he committed a crime and being dragged

in and admitted to say under oath by people who knew thats what he was going tosay. And yet you get to decide from this evidence did he do it because of arrogance

in wanting to go to the Hall of Fame when hes told in January what can happen by

the fact that they file on another guy? Does he walk into the abyss or abyss knowing

that he may be charged with a crime for denying that he did something that ran

counter to his whole career? Really? To get into the Hall of Fame? Really? Is that

what weve come to? (7/13/11 AM Tr. 42).

As discussed above, opening statement is a time for defendant to explain to the jury what he

expects the evidence to show and to relate that evidence to the whole. Dinitz, 424 U.S. at 612

(Burger, C.J., concurring); Standing Order, 10(d). It is not the time for argument. Dinitz, 424

U.S. at 612 (Burger, C.J., concurring); Standing Order, 10(d). As a result, the government seeks

to preclude any argument during opening statements, including (but not limited to) those arguments

cited above.

CONCLUSION

For the reasons above, the United States respectfully requests that this Court grant the

governments motion in limine and preclude (1) during voir dire and throughout trial, improper

evidence, comment, or argument that encourages jury nullification, including appeals to the Golden

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Rule, references to punishment, references to the governments charging decisions, and suggestions

that the amount of government resources devoted to this prosecution was excessive or wasteful; (2)

during voir dire and at any point during trial, improper evidence, comment, and argument referring

to other irrelevant matters; and (3) improper comments and arguments during defendants opening

statement.

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. SALESKIDC Bar # 496744

Assistant United States Attorneys

555 Fourth Street, N.W.

Washington, D.C. 20530

(202) 252-7862/(202) 252-7881

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Documents

Clemens Doc