01-16-08 wfp false statements and perjury

8/8/2019 01-16-08 WFP False Statements and Perjury

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ATHELETES, STEROIDS, FALSE STATEMENTS AND PERJURY:

THE NEED FOR COUNSEL

Houston Criminal Attorney John Floyd Discusses Lying About

Steroids; Recent Criminal Investigations and Convictions

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 Balcos

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. Balcos 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 inNovember 2004 in the presence of her attorney in San Jose, California. Prior

to this interview, Jones and the U.S. Attorneys 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].


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Jones denied that she had ever taken any performance-enhancement drugs,

including clear, and that she had ever 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, knowinglyand 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 Baseballs 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-monthinvestigation 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.


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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 McNamees

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

dont 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 youre sitting on horns its 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


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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 companys 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 defendants 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 companys 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


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construed broadly to cover defendants testimony which would fulfill the

historic purpose of our adversary factfinding process. Id., 409 U.S. at

358. The Supreme Court rejected the prosecutions 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 abankruptcy 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 inconjecture 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


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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 McNamees testimony that

Clemens knewhe 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 andimplicated 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. Tejedas 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


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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 recent announcements that the FBI has launched an investigation into

the Tejeda matter and that former NFL pro bowler Dana Stubbfield entered a

guilty plea in a federal court in San Francisco to a 18 U.S.C. 1001

violation certainly adds to the legal pressure in the upcoming

Clemens/McNamee congressional appearance. Like Jones, Stubblefield lied

to a federal agent when he said he had never used steroids associated with

Balco and its founder Victor Conte. While Stubblefields plea deal calls for a

sentence of zero to six months in prison, U.S. District Judge Susan Illstoninformed the former defensive lineman that she was not bound by the deal

and could sentence him to five years.

Texas Law

The Texas Penal Code has two offenses relating to making false statements

or giving false testimony. Tex. Penal Code 37.02 defines perjury as

follows:

(a) A person commits an offense if, with intent to deceive and withknowledge 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:


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(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 statements 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. refd).

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, whobelieve 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.


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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.

01-16-08 wfp false statements and perjury

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