PERJURY: THE NEED FOR COUNSEL

Marion Jones was an astounding Olympian sprinter who captured five Gold
medals. She was the darling of not only the international sports world but of
the American people as well. Then the world collapsed around this charming
sports figure. In 2003 a federal criminal investigation was initiated in
Northern California concerning the distribution of anabolic steroids, other
illegal performance-enhancing drugs, and related money-laundering
activities. The investigation centered on Balco Laboratories, a corporation
that performed blood-tests for athletes.

As part of that investigation, federal agents conducted a search at Balco’s

premises which revealed evidence of a relationship between Jones and
Balco. The evidence indicated that Jones had used both Norbolethone and
THG between September 2000 and June 2001. Balco’s former vice-
president, James Valente, cooperated with the federal investigation,
implicating Jones in the use of “clear” (the nickname for Norbolethone and
THG).

Armed with this incriminating evidence, federal agents interviewed Jones in

November 2004 in the presence of her attorney in San Jose, California. Prior
to this interview, Jones and the U.S. Attorney’s Office reached an immunity
agreement. That agreement, however, did not immunize Jones from
prosecution for any false statements made during interviews with federal
investigators.

As part of the criminal investigation, Jones was interviewed about the

following matters:

• Whether she had ever taken performance-enhancing drugs.

• Whether she had ever seen or used “clear.”
• Whether Jones had ever received “clear” or any other performance-
enhancement drug from Trevor Graham [Jones’ former athletic
coach].

Jones denied that she had ever taken any performance-enhancement drugs,
including “clear,” and had never received any of those drugs from Graham.
The government charged that Jones lied on all three questions.
On October 5, 2006 Jones entered a guilty plea to one count of the federal
indictment that charged her with making false statements to a federal agent,
a violation of 18 U.S.C. § 1001. This statute, in pertinent part, provides:

“(a) Except as otherwise provided in this section, whoever, in any matter

within the jurisdiction of the executive, legislative, or judicial branch of the
Government of the United States, knowingly and willfully –

“(1) falsifies, conceals, or covers up by any trick, scheme, or device a

material fact;
“(2) makes any materially false, fictitious, or fraudulent statement or
representation; or
“(3) makes or uses any false writing or document knowing the same to
contain any materially false, fictitious, or fraudulent statement or entry;

“shall be fined under this title or imprisoned not more than 5 years, or both.”

Jones’ indictment and plea stunned the nation. But that was just beginning
for the sports world. On November 15, 2007 a federal grand jury indicted
Major League Baseball’s home run king Barry Bonds for perjury and
obstruction of justice in connection with the same Balco investigation and
his long-rumored use of performance-enhancement drugs, including “clear.”
Although not unexpected, the Bonds indictment nonetheless rocked the
sports world coming on the heels of the Jones guilty plea.

Then on December 13, 2007 former Senate Majority Leader George

Mitchell submitted to Major League Baseball what has become known as
“the Mitchell Report.” The “report” is the culmination of a 20-month
investigation into the illegal use of steroids by major league baseball players.
The Mitchell Report named 86 current and former players from all 30 major
league teams as having used steroids during their playing careers. Two of the
most prominent players named in the report are seven-time Cy Young
Award winner Roger Clemens and current Yankee and former Astros pitcher
Andy Pettitte.

Clemens was singled out in eight pages with 82 references by name based
solely on information provided by a former baseball strength/conditioning
coach named Brian McNamee. There was no documentary evidence or
corroborating testimony provided against Clemens. Through his Houston
attorney Rusty Hardin, Clemens issued immediate denials of McNamee’s
allegations that he (McNamee) injected Clemens in the buttocks four to six
times with a testosterone called either Sustanon 250 or Deca-Durabolin.

Clemens has also vehemently denied the McNamee allegations in a 60-

Minute interview and a follow-up Houston press conference. The 354-game
winner has agreed to voluntarily appear and give sworn testimony on
February 13 before the Congressional House Oversight Committee currently
investigating steroid use in major league baseball. The committee has also
invited McNamee to appear and testify under oath.

The stakes are high. Both men have effectively accused the other of lying.
The stakes were made even higher on January 11, 2008 when U.S. District
Judge Kenneth Karas sentenced Jones to six months in prison and two years
of community service for making false statements about her steroid use.

"There is a very strong argument that incarceration may make others think
twice and show that no one is above the legal obligation to tell the truth,"
Karas said.

Clemens and McNamee face the same threat of imprisonment if either man
lies to Congress.

"We know what's on the line," Roger Abrams, a Northeastern University

Law Professor, said in a recent Newsday (Jan. 13, 2008) interview. “You
don’t lie to Congress. But whoever is going to lie to Congress, there's the
alternate reality he'd have to face if he changes the story now."

Legal experts are convinced one of the men will lie to Congress.

“They are right there, sitting on the horns of a dilemma,” Abrams told
Newsday, “and when you’re sitting on horns … it’s uncomfortable.”

The U.S. Supreme Court has held that the federal perjury statute, 18 U.S.C.
§ 1621, was enacted “in an effort to keep the course of justice free from the
pollution of perjury.” See: United States v. Williams, 341 U.S. 58, 68
(1951). See also: Bronston v. United States, 409 U.S. 352 (1973).

18 U.S.C. § 1621 applies only to the witness who “willfully … states … any
material matter which he does not believe to be true.” The defendant in
Bronston testified in a bankruptcy proceeding about the extent and location
of his company’s assets. Id., 409 U.S. at 354. The defendant responded to
the following questions asked by an attorney representing a creditor in the
proceedings:

"Q. Do you have any bank accounts in Swiss banks, Mr. Bronston?
"A. No, sir.
"Q. Have you ever?
"A. The company had an account there for about six months, in Zurich.
"Q. Have you any nominees who have bank accounts in Swiss banks?
"A. No, sir.
"Q. Have you ever?
"A. No, sir."

Id.

It was clearly established that the defendant had a personal bank account at
the International Credit Bank in Geneva, Switzerland for a period of nearly
five years. It was also clearly established that defendant’s testimony was
literally truthful on the following points:

• Defendant did not have a Swiss bank account at the time of

questioning.
• His company did have an account in Zurich.
• Neither at the time of questioning nor before did defendant have
nominees who had Swiss accounts.

Id., 409 U.S. at 355.

The government proceeded to prosecute the defendant for perjury on the

theory “that in order to mislead his questioner, [defendant] answered the
second question with literal truthfulness but unresponsively addressed his
answer to the company’s assets and not to his own – thereby implying that
he had no personal Swiss bank account at the relevant time.” Id. The
government attempted to justify its prosecution by saying § 1621 should be
“construed broadly” to cover defendant’s testimony which would fulfill the
“historic purpose” of our “adversary factfinding process.” Id., 409 U.S. at
358. The Supreme Court rejected the prosecution’s theory:

“ … We might go beyond the precise words of the statute if we thought they

did not adequately express the intention of Congress, but we perceive no
reason why Congress would intend the drastic sanction of a perjury
prosecution to cure a testimonial mishap that could readily have been
reached with a single additional question by counsel alert - as every
examiner ought to be - to the incongruity of petitioner's unresponsive
answer. Under the pressures and tensions of interrogation, it is not
uncommon for the most earnest witnesses to give answers that are not
entirely responsive. Sometimes the witness does not understand the
question, or may in an excess of caution or apprehension read too much or
too little into it. It should come as no surprise that a participant in a
bankruptcy proceeding may have something to conceal and consciously tries
to do so, or that a debtor may be embarrassed at his plight and yield
information reluctantly. It is the responsibility of the lawyer to probe;
testimonial interrogation, and cross-examination in particular, is a probing,
prying, pressing form of inquiry. If a witness evades, it is the lawyer's
responsibility to recognize the evasion and to bring the witness back to the
mark, to flush out the whole truth with the tools of adversary examination.

“It is no answer to say that here the jury found that petitioner intended to
mislead his examiner. A jury should not be permitted to engage in
conjecture whether an unresponsive answer, true and complete on its face,
was intended to mislead or divert the examiner; the state of mind of the
witness is relevant only to the extent that it bears on whether ‘he does not
believe [his answer] to be true.’ To hold otherwise would be to inject a new
and confusing element into the adversary testimonial system we know.
Witnesses would be unsure of the extent of their responsibility for the
misunderstandings and inadequacies of examiners, and might well fear
having that responsibility tested by a jury under the vague rubric of ‘intent to
mislead’ or ‘perjury by implication.’ Id., 409 U.S. 358-59

The burden on the government in a federal perjury prosecution, therefore, is

quite substantial. It must prove beyond a reasonable doubt that a witness
willfully testified about a matter he did not believe to be true. What does this
mean in the Clemens/McNamee controversy? First, Clemens has said that
McNamee injected him with pain medication and vitamins. If Clemens truly
believed that those were the substances being injected into his body by
McNamee, he could never be prosecuted for perjury for testifying about
those injections. Second, the government would have to prove beyond a
reasonable doubt with testimony beyond McNamee’s testimony that
Clemens knew he was being injected with performance-enhancing substance
and willfully testified falsely about it.
The recent disclosure that the Congressional House Oversight and
Government Reform Committee has requested the U.S. Justice Department
to investigate whether Houston Astros shortstop Miguel Tejeda lied to
committee investigators in 2005 was clearly a warning in the
Clemens/McNamee matter. In 2005 the committee was investigating
whether former Baltimore slugger Rafael Palmeiro had perjured himself in
March of that year when he testified before the committee that he had never
used steroids. Palmeiro subsequently tested positive for steroid use and
implicated Tejeda as the person who gave him steroid-laced vitamins.
Tejeda told committee investigators that he had never used steroids and had
no knowledge of other players using steroids. The Mitchell Report, however,
offered statements by Adam Piatt, a former Oakland Athletics teammate of
Tejeda, that he not only discussed performance-enhancement drugs with
Tejeda but supplied him with steroids and human growth hormone.

Committee Chairman Henry Waxman and ranking committee Republican

Tom Davis then issued the call for the Justice Department investigation.

“Tejeda told the committee that he never used performance-enhancing drugs

and that he had no knowledge of other players using or even talking about
steroids,” Waxman said. “The Mitchell Report, however, directly contradicts
key elements of Mr. Tejeda’s testimony.”

It is interesting that the committee did not ask the Justice Department to
indict Palmeiro for perjury. He testified under oath that he had never used
steroids but later tested positive for their use. Palmeiro offered the same
story that Barry Bonds had given to the public – someone else (Tejeda) gave
him a substance that he did not know was steroids (vitamin B-12 laced with
the drugs). That explanation was obviously sufficient to avert a call by
Waxman for a perjury charge against him.

The Justice Department will now have to weigh whether it wants to enter a
court of law against Tejeda with the steroid positive-tested Palmeiro and the
admitted steroids-distributor Piatt. That certainly would not be the kind of
ideal evidence upon which the government would want to base a perjury
prosecution. It is for this reason that one can conclude that the committee is
simply using the Tejeda matter to put additional pressure on Rogers
Clemens and Brian McNamee before the two men make their appearance
before the committee.
The Texas Penal Code has two offenses relating to making false statements
or giving false testimony. Tex. Penal Code § 37.02 define “perjury” as
follows:

“(a) A person commits an offense if, with intent to deceive and with
knowledge of the statement's meaning:

“(1) he makes a false statement under oath or swears to the truth of a false
statement previously made and the statement is required or authorized by
law to be made under oath; or
“(2) He makes a false unworn declaration under Chapter 132, Civil Practice
and Remedies Code.

“(b) An offense under this section is a Class A misdemeanor.”

Tex. Penal Code § 37.03 defines “aggravated perjury” as follows:

“(a) A person commits an offense if he commits perjury as defined in

Section 37.02, and the false statement:

“(1) is made during or in connection with an official proceeding; and

“(2) Is material.

“(b) An offense under this section is a felony of the third degree.”

To secure a conviction for aggravated perjury, the State must establish the
following elements beyond a reasonable doubt that the defendant:

• with intent to deceive and

• with knowledge of the statement’s meaning
• made a false statement under oath
• that was required or authorized by law to be made under oath
• in connection with an official proceeding, and
• That the false statement was material.

See: Tex. Penal Code §§ 3702-03. See also: Mice v. State, 91 S.W.3d 810,
822 (Tex.App.-Houston [1st Dist.] 2002). In order to establish these
elements,
 the appeals court in Chandler v. State, 756 S.W.2d 828 (Tex.App. –Corpus
Christi 1988) held that Tex. Code Crim. Proc. Ann. § 38.18 requires that the
State produce more than one witness to obtain a conviction for either perjury
or aggravated perjury. Id., at 829. See also: McGuire v. State, 707 S.W.2d
223 (Tex.App.-Houston [14th Dist.] 1986, pet. ref’d).

Tex. Code Crim. Proc. Ann. § 38.18(a) (Vernon 1979) provides:

“No person may be convicted of perjury or aggravated perjury if proof that

his statement is false rests solely upon the testimony of one witness other
than the defendant.”

See also: Hutcheson v. State, 980 S.W.2d 237, 239 (Tex.App.-Eastland

1998).

For all those people in the State of Texas, and the rest of the nation, who
believe Roger Clemens has lied about alleged steroid use, it should be
pointed out that he could not be convicted in this state based solely on the
testimony of Brian McNamee. The Texas Legislature had the wisdom to
protect every Texan from being convicted of making a false statement based
solely on the testimony of one person.

Nonetheless, criminal defense attorneys adhere to one fundamental

principle: no one should speak to any investigative body or agency outside
the presence of legal counsel. Perjury is premised on a single axiom: a bell
cannot be unrung. The presence of an attorney guides the individual down
the slippery slope of interrogation – and that is precisely why Roger
Clemens’ attorney, Rusty Hardin, will be present when the baseball great
testifies before the congressional committee next month.