Here is William Roger Clemens' Reply Memorandum supporting his Motion to Prohibit Retrial and Dismiss the Indictment, which was filed on Friday. Like the original defense Motion and the Government's Response, it is well written. I was surprised, however, by the defense's failure to spend more time on a particularly disingenous aspect of the Government's Response, relating to the prosecution's violation of a court order during opening argument. I'll have some commentary on this issue in a few days.
Category: Perjury
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A defendant convicted of violating 18 U.S.C. 1542, a statute pertaining to a false statement in an application for a passport, argued unsuccessfully that materiality was required. The Second Circuit held that unlike section 1001, materiality was not an element of this particular statute. Authoring the opinion, Hon. Jose Cabranes noted that this issue was one of first impression for this circuit, the Second Circuit. The court used statutory interpretation analysis to hold that the language of materially was not in this particular statute. The court noted that its holding was in keeping with other circuits, citing to decisions from the 1st, 9th and 11th Circuits.
The element of materiality presents an interesting issue for courts. In some cases like the false statements statute (18 U.S.C. 1001), perjury (18 U.S.C. 1621), and false declarations (18 U.S.C. 1623), the statutes clearly require an element of materiality. In some cases the nature of the statute requires an element of materiality (See mail fraud, wire fraud, and bank fraud) (See Neder v. United States).
Some, like myself, argue for requiring materiality with other statutes (arguing for an element of materiality in obstruction of justice cases- see here). A benefit of requiring materiality is that it can serve as a check on prosecutorial discretion. It can limit prosecutors who might try to proceed in trivial cases.
Opinion – United States v. Hasan
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Perjury is definitely in the news these days, with the FBI investigating Roger Clemens for his statements before a Congressional committee and Detroit Mayor Kwame Kilpatrick’s testimony in a whistleblower lawsuit denying a relationship with an aide under review by the local prosecutors office. One of the highest profile perjury cases involves home run king (and apparently unwanted free agent) Barry Bonds, whose charges was dismissed by U.S. District Judge Susan Illston because of flaws in the indictment. Judge Illston ordered the release of the transcript of Bonds’ grand jury testimony in 2003 (available below) that now reveals the entirety of the nearly three-hour examination by two Assistant U.S. Attorneys.
While the indictment presents Bonds in a bad light by isolating specific instances of allegedly false answers, skimming through the full transcript shows just how disorganized the prosecutors seemed to be, and how at least one of them couldn’t ask a simple question. Whether it was nervousness or perhaps being intimidated by Bonds, the questions come across almost like a stream of consciousness approach to the examination. Here’s just one example of the kind of questions Bonds faced: "Let me ask the same question about Greg at this point, we’ll go into this in a bit more detail, but did you ever get anything else from Greg besides advice or tips on your weight lifting and also the vitamins and the proteins that you already referenced?" (Pg. 23) Huh? Understanding that a transcript does not necessarily convey the full flavor of the actual interchanges, in reading through the questioning I’m struck by how convoluted the questions are, punctuated throughout with "I mean," "you know," and similar distracting phrases.
What makes perjury so difficult to prove is that the allegedly false answer is not necessarily the most important thing. As the Supreme Court noted in Bronston v. United States, 409 U.S. 352 (1973), "Precise questioning is imperative as a predicate for the offense of perjury." Among the questions recited in the original indictment was this model of obfuscatory inquiry: "So, I guess I got to ask the question again, I mean, did you take steroids? And specifically this test the [sic] is in November 2000. So I’m going to ask you in the weeks and months leading up to November 2000 were you taking steroids . . . or anything like that?"
Prosecutors will no doubt come back with a new indictment of Bonds in the next couple weeks, one which is honed down and focused on just single questions and answers to avoid the duplicity problem that led to the dismissal. But they can only work with the transcript they have, and finding a clear question — and answer — may be quite a challenge. The questioning of Bonds was not a model of how to set a perjury trap, if that was the goal in having him testify. (ph)
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FBI Probing Whether Clemens Lied to Congress (AP) — What a shocker!
House Ethics Committee Launches Investigation Into Conduct of Rep. Renzi (AP) — The 35-count indictment came out almost a week ago, so this surely ranks as a "rapid response."
Pelosi Calls For Grand Jury Investigation Of Bolten, Miers (The Politico) — Talk about falling on deaf ears, and this one took two weeks to formulate.
(ph)
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House Oversight and Government Reform Committee Chairman Henry Waxman and ranking member Representative Tom Davis sent a letter to Attorney General Mukasey asking for an investigation of possible perjury by Roger Clemens about his use of steroids and HGH — and his attendance at a party in 1998 at Jose Canseco’s house. The letter (available below) does not come out and explicitly accuse Clemens of being a liar while under oath during his February 5 deposition or February 13 Congressional testimony, but it does say that "Congress cannot perform its oversight function if witnesses who appear before its committees do not provide truthful testimony. Perjury and false statements before Congress are crimes that undermine the integrity of congressional inquiries. For these reasons, we take evidence that a witness may have intentionally misled the Committee extremely seriously." Of course, Representative Waxman said after the hearing that he regretted even holding it, and nothing of any legislative importance occurred during the session, but thos minor annoyences won’t stand in the way of a criminal referral.
What started out as a perjury trap has now been sprung on Clemens, with the FBI sure to begin an investigation because Congress wants one. It was clear that either Clemens or his former trainer, Brian McNamee, was lying because they told diametrically opposed stories. But the question now is whether a federal prosecutor could prove Clemens committed perjury, a much more difficult task than just saying "I don’t think he’s telling the truth." The Committee also released a memorandum (available below) from the staff that outlines the various contradictions in Clemens’ testimony, based largely on the testimony of McNamee and former teammate Andy Pettitte, who discussed two conversations with Clemens about using HGH. The memo contains no new surprises, and sets forth the inconsistencies in Clemens’ testimony in great detail.
The problem is that the standard used by the Committee staff is not what a prosecutor must use to decide whether to pursue a case. The analysis points out places where what Clemens said was "implausible" or that certain facts "bolster" McNamee’s statements. But a perjury prosecution that will ride on the credibility of McNamee will involve much more than just whether there is a rational basis to believe him rather than Clemens. A criminal prosecution will involve asking a jury to believe that McNamee is truthful, not just plausible.
McNamee admitted during the Committee hearing that he has made a number of inconsistent, or even false statements, in addition to not disclosing the syringes and gauze pads he claims were used to inject Clemens until well after his interview for the Mitchell Report. Pettitte is a more credible witness, but he only remembers two conversations, one of which took place nearly ten years ago. Will Pettitte bring down his old friend, or will he waffle just enough that his testimony might not be sufficiently credible to a jury?
Perjury is among the most difficult crimes to prove because the government must establish that the defendant told an outright lie, and not just that the person dissembled or made statements that seem implausible. The standard for sending a referral to the Department of Justice is quite low, basically something doesn’t look right, and an investigation can be initiated just to placate Congress. Even sending out grand jury subpoenas and calling witnesses to testify does not require anything more than a suspicion that wrongdoing occurred, which is certainly the case with the Clemens-McNamee smackdown. But the leap to proving perjury is significant, and as I’ve said before, if McNamee is the linchpin of the case then it will be a very difficult one to win. (ph)
Download oversight_government_reform_committee_letter_clemens_feb_27_2008.pdf
Download oversight_government_reform_committee_memo_clemens_feb_26_2008.pdf
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The government’s response to the motion to dismiss filed by Barry Bonds argues that the indictment is not ambiguous or duplicitous — yet the filing contains a typographical error that indicated Bonds failed a drug test a year later than alleged in the indictment. If you’re going to defend the precision of the charges, then the brief should at least be read carefully enough to ensure it is accurate, or the whole issue of sloppy drafting comes to the surface.
The brief (uncorrected version available below) responds to the defense arguments that the questions are too ambiguous to be the basis for a perjury charge, and that by citing multiple false statements in a single count the charges are duplicitous in violation of Bonds’ due process rights. The government’s position on duplicity seems to concede that each count could in fact charge separate violations of the perjury statute, but essentially tries to shrug off the problem. According to the brief, "[T]he government may remedy any duplicity in the indictment against Bonds by asking the grand jury to return a superseding indictment charging separate counts for each allegedly perjured statement. Accordingly, rather than electing among the charges in a duplicitous count, the government may elect to obtain a superseding indictment if the defendant is unwilling to remedy any duplicity by agreeing to a jury instruction that requires the jury to be unanimous in finding that at least one of the statements alleged in each count constituted perjury." Thus, if pushed by Bonds (and the court) to cure the duplicity problem, prosecutors may just seek another indictment with more counts of perjury, perhaps as many as ten or twelve.
In arguing that the first perjury charge is not based on ambiguous questions, the brief states, "At trial, the government’s evidence will show that Bonds received steroids from Anderson in the period before the November 2001 positive drug test, and that evidence raises the inference that Anderson gave Bonds the steroids that caused him to test positive in November 2001." The indictment references Bonds failing a drug test in November 2000, but not in 2001. The media immediately picked up on this, but the U.S. Attorney’s Office in San Francisco said it was just a typo, that the brief was referring to the November 2000 failed drug test cited in the indictment, and has since filed a corrected version. That type of mistake does not enhance the credibility of the prosecutors, especially when the issue is the clarity of the questions.
The government’s primary argument on ambiguity is that the questions are sufficiently clear, although perhaps a bit inartful, and that Bonds never indicated he was confused. Thus, the issue of ambiguity is one for the jury and not for the court. The Supreme Court’s seminal decision in Bronston v. United States on perjury, however, makes it clear that a court can decide as a matter of law whether a question is sufficient to be the basis for a perjury charge, and to determine whether the defendant’s answer is literally true. That is clearly Bonds’ first line of defense, that poor questioning by prosecutors caused him to make statements he did not intend to be false, even if they were a bit misleading. Throw in an attack on IRS Special Agent Jeff Novitzky, the government’s lead investigator who was also at the Roger Clemens hearing, as the embodiment of outrageous government conduct, and there may be enough there to raise a reasonable doubt. While it is tough to win dismissal of an indictment at this stage, there may well be some significant reworking of the document because of its drafting problems. (ph)
Download us_v_bonds_government_response_to_motion_to_dismiss_feb_14_2008.pdf
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Home run king Barry Bonds moved to dismiss the perjury and obstruction of justice indictment (brief available below), asserting that the charges are duplicitous — one of my all-time favorite legal arguments — and that the questions posed were so ambiguous that his answers were not false as a matter of law. A count of an indictment is duplicitous when it charges two crimes in a single charge, which is to be distinguished from multiplicity, which is charging the same crime in two different charges. The more common duplicity claim involves two separate crimes charged in one count, but here the claim is that there are different responses that may be untruthful, so that the government has too many potential instances of perjury in each count.
The four perjury counts contain a number of questions and answers, so it is difficult to identify any one with particularity that is perjurious. The problem posed by a duplicitous charge is that there is no way for a jury to convict on one offense and acquit on another offense contained in the same count. Similarly, because the jurors have two crimes to consider in a single count, they may convict without reaching a unanimous agreement on either. For example, if some jurors believe one response by Bonds was untruthful while others believed a second response in the same count was a lie, then they could all agree that he committed perjury but not based on the same answers. The problem a defendant faces when there is duplicity in the charges is that it’s not clear which of the statements the prosecution will focus on, and indeed the government could shift its theory in response to the defense.
While Bonds raises a valid point about the number of questions and answers in each count, in the government’s defense I suspect prosecutors wanted to provide the context for his answers, many of which are fairly clear denials (i,e. "no" in some instances). Moreover, even if the district court found that the perjury counts were duplicitous, the remedy is usually not dismissal but an order to the government to seek a superseding indictment from the grand jury that cleans up the charges or perhaps a bill of particulars to identify one specific answer in each count that it will prove as perjury. It may be that the government will seek more charges by breaking up the counts, so that rather than facing four counts of perjury, Bonds will face eight or twelve. The motion also attacks the obstruction charge on essentially the same ground.
Bonds’ second argument goes to the heart of a perjury charge — the ambiguity in the questions means that he did not answer the questions untruthfully, or at least did not know his answers were false. The key perjury case is Bronston v. United States, 409 U.S. 352 (1973), in which the Supreme Court held that "the perjury statute is not to be loosely construed, nor the statute invoked simply because a wily witness succeeds in derailing the questioner-so long as the witness speaks the literal truth. The burden is on the questioner to pin the witness down to the specific object to the questioner’s inquiry." If the questions are ambiguous and the prosecutor does not ask a clear question or seek to clarify the answer, then the defendant cannot be convicted for the responses. Thus, compound questions, and questions using broad terms or imprecise dates, can open the door to a "not guilty" verdict. The problem for Bonds is that the ambiguity defense is usually one left to the jury, and it is the rare case in which a court decides as a matter of law that the questions were so defective that no rational jury could find the answer was untruthful. While this gives us a preview of where the defense is headed at trial, it is unlikely to succeed at this stage of the proceedings.
As often happens when a sports figure is involved in a case, the temptation is to toss in an analogy (or perhaps a simile) to the athlete’s sport is just too hard to resist, even if it only causes the reader to groan. In the brief, the attorneys write with regard to the duplicity in the indictment, "Even Barry Bonds cannot be expected to make contact with a fastball, slider, and knuckler thrown him simultaneously." Please, no one this side of Tim Wakefield throws a knuckle ball any more, and the best sucker pitch in baseball is the splitter. Let’s hope the government does not respond by likening the defense filing to the typical defensive shift put on when Bonds comes to bat. (ph)
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While the odds of this happening are probably no better than 10,000-1, there is always the possibility that home run king Barry Bonds might decide to work out a plea agreement to limit his potential punishment from the perjury and obstruction of justice charges he faces. The prosecution of former Olympic gold medalist Marion Jones may give something of a guide to how Bonds could resolve the case, if prosecutors we willing to go along. Jones agreed to plead guilty to one count of making a false statement in connection with the Balco (Bay Area Laboratory Co-operative) investigation, and she has filed a brief (available below) requesting a sentence that will involve no prison time, only probation. Under the Federal Sentencing Guidelines, the sentence range is 0-6 months, a position the government agrees with. In her filing, Jones’ lawyer argues that the District Court should take into consideration the substantial collateral consequences of her guilty plea on her reputation:
The guilty plea in this matter and the circumstances surrounding it have been a very painful and life-changing experience for Marion Jones-Thompson. She has been cast from American hero to national disgrace. This part of her story will forever be one of personal tragedy. To be clear, the public scorn, from a nation that once adored her, and her fall from grace have been severe punishments. She has suffered enormous personal shame, anguish, and embarrassment. She has been stripped of her gold medals, her accomplishments, her wealth and her public standing.
The Supreme Court’s recent decision in Gall emphasizing the discretion district judges have to fashion individualized sentences makes this type of argument potentially persuasive, and it would not be a surprise if Jones received probation or, at worst, home confinement. While prosecutors have only recommended that the judge sentence within the Guidelines range, they have not taken any position on the actual sentence, and I suspect they would have no objection to straight probation for Jones.
Could Bonds get the same deal? The indictment in his case involves perjury and obstruction, and if convicted the base offense level under Sec. 2J1.3 of the Guidelines would be 14 rather than the 6 that Jones began with under Sec. 2B1.1. Jones also received the benefit of the two-level downward adjustment for acceptance of responsibility, which kept her in the lowest sentencing range. If Bonds is convicted, he faces a minimum Guidelines range of 15-21 months. A plea bargain could be fashioned to have him plead guilty to making a false statement under Sec. 1001 rather than perjury because his grand jury testimony would come within that statutory provision. As such, he could also be in the same position as Jones, assuming prosecutors were willing to make such a deal and, more importantly, Bonds agreed to it. There might even be the possibility of a nolo plea to a single Sec. 1001 charge, or perhaps even a criminal contempt that could involve a deferred prosecution agreement, similar to the resolution of perjury charges against NBA star Chris Webber, who only paid a fine. Unlikely, to be sure, but possible.
Bonds, however, is fighting to do more than just avoid a conviction, but also to save his legacy as a baseball player. When that consideration gets thrown into the mix, the potential ppunishment diminishes in importance. Nevertheless, the Jones sentencing provides an outline as to what Bonds’ lawyers might be able to negotiate, especially because the U.S. Attorney’s Office for the Northern District of California signed off on the Jones plea agreement and sentencing. (ph)
Download us_v_jones_defense_sentencing_memorandum_dec_31_2007.pdf
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There is nothing quite like a high-profile scandal to attract Congressmen like moths to a flame, and the Mitchell Report on steroid and HGH use in baseball is one of the brightest flames around these days. Two Congressional Committees have scheduled hearings in January on the issue, inviting former Senator George Mitchell and MLB Commissioner Bud Selig to testify. Back in March 2005, in the first round of publicity-mongering on steroids in baseball, the House Oversight and Government Affairs Committee invited a number of major leaguers to testify about steroid use. That hearing produced Mark McGwire’s famous non-assertion of the Fifth Amendment when he proclaimed he would only talk about the future — who cares about what a retired baseball player does after his playing days — and Rafael Palmeiro aggressively asserting that he never used steroids — only to test positive a couple months later, thus ending his career.
The prospect of such enticing nuggets showing up on YouTube may well result in one or more invitations to superstar pitcher Roger Clemens to testify about his reported steroid use. Clemens is the highest profile player, perhaps after Barry Bonds, named in the Mitchell Report, and he issued the following statement denying the assertions in the Report: "I want to state clearly and without qualification: I did not take steroids, human growth hormone or any other banned substances at any time in my baseball career or, in fact, my entire life. Those substances represent a dangerous and destructive shortcut that no athlete should ever take." A USA Today story (here) quotes Representative Tom Davis as stating that no players will be subpoenaed, but they are free to appear voluntarily and testify under oath.
The source of the information about Clemens is a former trainer, Brian McNamee, who is reported to have spoken to Mitchell and his investigators pursuant to a proffer agreement with federal prosecutors that limits any subsequent use of his statements against him while requiring him to be truthful. This type of limited immunity, sometimes called a "Queen for a Day" agreement, usually is a prelude to a plea bargain with the government that will include a recommendation of leniency from prosecutors based on the defendant’s cooperation. There is no report at this point that McNamee has agreed to plead guilty to any charges, and there’s a chance prosecutors could decide not to charge him or even grant full immunity. Either way, the limited protection does not mean he is a credible witness automatically.
Given Clemens’ denial and McNamee’s statements to Mitchell, could there be much better theater than having them both appear on Capitol Hill, a surefire lead story on the evening news? While statements to the media are not subject to the perjury or false statement laws, much to the consternation of many journalists, testimony before Congress is under oath. If you were Clemens’ attorney, would you have your client testify, especially if there were others out there aside from McNamee who could provide information against him? On the other hand, given the clarity of his denial of steroid and HGH use, can counsel advise Clemens not to testify if given the opportunity? While Clemens declined to speak with Mitchell, now that his name it out in public, there will be enormous pressure on him to go to Capitol Hill. In his statement he said "I plan to publicly answer all of those questions at the appropriate time in the appropriate way." Is a Congressional hearing the "appropriate" forum, or was he thinking about perhaps going on Larry King?
Of course, Congress would learn nothing of any importance from having Clemens testify, just like no real legislative purpose was served in 2005 when McGwire, Palmeiro, Sammy Sosa, and others were dragged in front of the Committee — but not Barry Bonds, as it turns out. The invitation is really asking Clemens to step into a perjury traps because Congressional testimony is under oath, and hence subject to a perjury prosecution. The trap is easily avoided, if Clemens is not subpoenaed to testify, because he can just decline the invitation while castigating the media. Indeed, he may already have laid the groundwork for such a position when his statement included the following: "I am disappointed that my 25 years in public life have apparently not earned me the benefit of the doubt." Perhaps he will simply ask for the benefit of the doubt, but at what cost to his credibility if there’s an open invitation to reiterate under oath what he has already said to the media. (ph)
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Above the Law has eyewitness reports (here) on the initial appearance and arraignment of Barry Bonds. In addition to the usual procedures, such as Bonds being released without having to post bond or surrender his passport, it appears that the conflict of interest issue with one of his new attorneys, Christine Arguedas, is an issue, at least for the moment. From various reports, it sounds like prosecutors raised the question about one of Bonds’ lawyers representing other witnesses in the case, which is probably Arguedas’ representation of witnesses in the Balco grand jury investigation in which Bonds allegedly committed perjury. Of course, a defendant can waive the conflict, but the court is not required to accept it. This may be the first test regarding the relationship between the two sides, and if the government takes a hard line and files a motion to disqualify then things are likely to get pretty frosty.
The defense also said it will seek dismissal of the indictment, which will probably require briefing and a hearing on the motion. The next court date is February 7, at which time the judge may set a trial date. With a flurry of motions like to come soon, it is unlikely the case will be completed before the end of the 2008 season, which raises the question whether any major league team will take a chance and sign Bonds to a contract. (ph)
UPDATE: Here’s the text of the court’s order recounting the hearing:
The defendant’s appearance maybe waive at the next appearance. The appropriate waivers shall be filed in advance of the next hearing. The government indicated that there may be a conflict issue with certain defense counsel. The government shall e.file a letter indicating the situation as they see it and the Court will determine if a hearing is necessary. If the Court determines that a hearing is necessary, the defendant must be present. Defendant indicated that they may file a motion to dismiss the indictment.
(ph)
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