Case 1:10-cr-00223-RBW Document 128

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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

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Criminal No. 10-223 (RBW)

GOVERNMENTS REPLY TO DEFENDANTS EVIDENTIARY OBJECTIONS TO 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 defendants evidentiary objections to the governments exhibit 2 series and exhibit 3 series (Docket No. 127). In support of the governments 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 governments exhibit 2 series and 3 series.1 The defendants objections to these exhibits are without merit and should be denied 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 courts 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 speakers or a listeners 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 ...
1

The defendants objections to these exhibits are attached to this pleading as Exhibit A. Page 2 of 8

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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 defendants 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 governments 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 committees 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 defendants answers provided during the deposition. Page 3 of 8

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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 Courts 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 Page 4 of 8

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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 Mitchells 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 Mitchells efforts in communicating with the Major League Baseballs 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 Page 5 of 8

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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 dont 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 didnt 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. Thats 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 defendants 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 defendants right to admit other portions of the statement necessary to explain the governments 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 defendants 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 ATTORNEY D.C. BAR # 447889 By: /s/ STEVEN J. DURHAM D.C. Bar # 993780 DANIEL P. BUTLER D.C. Bar # 417718 DAVID B. GOODHAND D.C. Bar # 438844 GILBERTO GUERRERO, JR. KS Bar # 19271 COURTNEY G. SALESKI DC Bar # 496744 Assistant United States Attorneys 555 Fourth Street, N.W. Washington, D.C. 20530 (202) 252-7862/(202) 252-7881

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