Arguments conclude in Roger Clemens perjury trial

June 13, 2012

CNN on June 12, 2012 released the following:

“By Paul Courson, CNN

Washington (CNN) — Dueling scientists, a former trainer, friends and family are among the witnesses whose testimony a jury will consider as they decide if famed baseball pitcher Roger Clemens lied to Congress during an investigation of steroid use among major league players.

The case against Clemens involves one count of obstruction of Congress, three counts of making false statements and two counts of perjury. He is not charged with illicit use of performance-enhancing drugs, but his denial of such use is part of the case against him.

Federal prosecutor Courtney Saleski, in closing arguments Tuesday, told the jury Clemens “wanted to protect his brand, he wanted to protect his livelihood,” in denying the use of steroids during a 2008 investigation by the U.S. House of Representatives into the problem.

“He did that at the expense of our Congress. He threw sand in their eyes. He stole the truth from them,” Saleski said.

She said a guilty verdict would give that truth back to lawmakers.

The Clemens defense team disputed whether the government has made its case, telling the jury all the evidence came through a former personal trainer, Brian McNamee, who had incentive to lie.

“You saw Brian McNamee, the only witness in the history of the world who says he gave or saw an injection of that man,” said defense attorney Michael Attanasio. “One person in the entire world.” During closing arguments, the defense cited the lack of corroborating witnesses, which they said would be a basis for reasonable doubt against any conviction.

“McNamee defines reasonable doubt,” Attanasio said, because of perceived inconsistencies, retractions and corrections he made while testifying.

After verbally providing instructions to the jury late Tuesday, U.S. District judge Reggie Walton sent the jury back to begin deliberations, while acknowledging they may only have time to select a foreperson before letting them go for the day.

The trial has run longer than envisioned, and one juror was moved to alternate status Tuesday because of a fellowship in Germany for which he must depart next week. An alternate was then sent back to join the others.

It took about eight weeks for the prosecution and defense to question 46 witnesses, and the most direct conflict came among expert witnesses as to how to interpret a collection of discarded medical items that allegedly link Clemens to steroid use.

Soiled medical wrappings, cotton balls, drug vials and hypodermic needles that McNamee kept were interpreted differently by both sides. Witnesses for the government said genetic material linked with Clemens suggested it was impossible for McNamee to fabricate the evidence.

But defense witnesses on the same topic said storage in a beer can for years allowed commingling and contamination of materials, making reliable conclusions impossible, and the evidence nearly worthless.

“If you have garbage at the start, you’ll have garbage at the end,” said defense expert witness Dr. Bruce Goldberger, who said his lab would refuse to test such materials without a solid basis for their storage and handling before analysis.

Prosecution witness Dr. Cynthia Morris-Kukoski, an FBI toxicologist, said it is not up to the toxicology lab to make judgments about the materials submitted for testing, with their job only to determine the substances and any genetic identifiers involved.

Former teammate and friend Mike Boddicker testified as to whether Clemens had ever accepted injections, providing an eyewitness account that he had. “I think it was either 1989 or 1990,” Boddicker said, referring to their time together with the Boston Red Sox, describing that he “came into the training room, and saw Roger bent over the table with his pants down, getting a shot.”

The vial, Boddicker said, was clearly marked “B-12” a substance said to provide a pick-me-up after a game or workout.

This is the second trial for Clemens. A year ago, a mistrial was declared before the case reached the jury. The government’s lawyers played video evidence the judge had already banned. Prosecutors said it was an editing mistake, but the Clemens defense team suggested prosecutors were unprepared and had gotten off to a bad start.

“This was a mistake, a regretful mistake,” government attorney David Goodhand said in September in arguing for a new trial. But Walton blasted prosecutors for letting inadmissible evidence be shown.

“I would hate to believe they just blatantly disregarded rulings that I made, but it’s hard for me to reach any other conclusion,” Walton said, before rejecting a defense request that he dismiss the indictment entirely. After consideration, Walton then ordered the new trial.

Several pretrial hearings this time included protests from defense attorneys that the prosecution was trying to take advantage of having heard the initial opening statement last summer by the defense. In the latest trial, defense attorneys expressed concern that prosecutors were trying to “do over” certain efforts the defense may have refuted.

Deliberations Wednesday were set to begin at 1:30 p.m.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

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To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Mueller: Plot shows need for surveillance power

May 9, 2012

Associated Press on May 9, 2012 released the following:

“PETE YOST
Associated Press

WASHINGTON (AP) — FBI Director Robert Mueller urged Congress on Wednesday to renew wide-ranging surveillance authority to thwart terrorism plots like the latest one in which an al-Qaida-engineered explosive device was to have been detonated on a U.S.-bound airline flight.

Mueller told the House Judiciary Committee the FBI is examining the device and said the scheme hatched in Yemen demonstrates that it’s essential for Congress to reauthorize counter-terrorism tools enacted in 2008. Some of these programs expire at year-end.

The provisions allow the government to target electronic surveillance on foreign persons reasonably believed to be outside the United States.

The amendments up for reauthorization this year “are essential in our efforts to address” the terrorism threat, said Mueller.

The FBI director said the law allows the FBI to identify those both within the United States and outside the United States “who would hurt us.”

Mueller told the panel that “we’ve seen over the last several days” that terrorism should be “our No. 1 priority.”

The FBI director’s comments follow revelations that al-Qaida completed a sophisticated new, non-metallic underwear bomb last month and that the would-be suicide bomber actually was a double agent working with the CIA and Saudi intelligence agencies.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

————————————————————–

To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Federal prosecutor to take 5th Amendment in Fast and Furious probe

January 20, 2012

Politico on January 20, 2012 released the following:

“By JOSH GERSTEIN

A senior federal prosecutor in Arizona intends to invoke his Fifth Amendment rights rather than testify before a House committee next week looking into the Justice Department’s handling of the Fast and Furious gunrunning investigation, the prosecutor’s attorney told Congress in a letter on Thursday.

On Wednesday, House Government Reform and Oversight Committee Chairman Darrell Issa issued a subpoena to Patrick Cunningham, the chief of the criminal section at the U.S. Attorney’s Office in Arizona. The deposition subpoena came after a plan to have Cunningham appear for a less formal interview fell apart.

Sources say Cunningham is concerned that he’s caught in a pincer of sorts between senior Justice Department officials in Washington eager to shift blame to lower-ranking staffers and Congressional investigators eager to see heads roll over the investigation, which allegedly allowed more than 1000 weapons to cross the border into Mexico despite suspicions they were destined for drug cartels.

“Department of Justice officials have reported to the Committee that my client relayed inaccurate information to the Department upon which it relied in preparing its initial response to Congress. If, as you claim, Department officials have blamed my client, they have blamed him unfairly,” Cunningham’s personal attorney, Tobin Romero of Williams & Connolly, wrote to Issa.

“As a professional courtesy and to avoid needless preparation by the committee and its staff for a deposition next week, I am writing to advise you that my client is going to assert his constitutional privilege not to be compelled to be a witness against himself,” Romero wrote. “My client is, in fact, innocent, but he has been ensnared by the unfortunate circumstances in which he now stands between two branches of government. I will therefore be instructing him to assert his constitutional privilege.”

Issa said Friday that the Fifth Amendment claim signals serious wrongdoing at the Justice Department.

“The assertion of the fifth amendment by a senior Justice official is a significant indictment of the Department’s integrity in Operation Fast and Furious,” Issa said in a statement. “This is the first time anyone has asserted their fifth amendment right in this investigation and heightens concerns that the Justice Department’s motivation for refusing to hand over subpoenaed materials is a desire to shield responsible officials from criminal charges and other embarrassment.”

In his letter [], Romero indicates that Cunningham passed on accurate information about the investigation to his supervisor, presumably U.S. Attorney Dennis Burke who resigned last August amidst the furor over the operation. Romero says the answers to be delivered to Congress were vetted with others in Cunningham’s office but not included in DOJ’s February letter to Congress, which DOJ formally withdrew late last year because of inaccurate information it contained about so-called “gunwalking,” a technique under which law enforcement relinquishes control of weapons or fails to prevent them from falling into criminal hands.”

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To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Justices Take Case on Lying About Honors From Military

October 18, 2011

The New York Times on October 17, 2011 released the following:

“By ADAM LIPTAK

WASHINGTON — The Supreme Court on Monday agreed to decide whether Congress can make it a crime to lie about having earned a military decoration.

The case arose from the prosecution of Xavier Alvarez under a 2005 law, the Stolen Valor Act. Mr. Alvarez, an elected member of the board of directors of a water district in Southern California, described his background at a public meeting in 2007.

“I’m a retired Marine of 25 years,” he said. “I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.”

That was all false, and Mr. Alvarez was charged with violating the law, which makes it a crime to falsely say that one has “been awarded any decoration or medal authorized by Congress for the armed forces of the United States.” Mr. Alvarez argued that his remarks were protected by the First Amendment.

The trial judge rejected that defense, saying the First Amendment does not apply to statements the speaker knows to be false. The judge sentenced Mr. Alvarez to three years of probation.

A divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, reversed the ruling.

Judge Milan D. Smith Jr., writing for the majority, said that a ruling upholding the law would set a dangerous precedent. “There would be no constitutional bar,” Judge Smith wrote, “to criminalizing lying about one’s height, weight, age or financial status on Match.com or Facebook, or falsely representing to one’s mother that one does not smoke, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway.”

“The sad fact is,” he wrote, “most people lie about some aspects of their lives from time to time.”

The full Ninth Circuit declined to rehear the case. Chief Judge Alex Kozinski concurred, saying that a ruling against Mr. Alvarez would be “terrifying,” as it would allow “the truth police” to censor “the white lies, exaggerations and deceptions that are an integral part of human intercourse.”

In a dissent, Judge Ronald M. Gould said the “lack of any societal utility in tolerating false statements of military valor” justified the law. He rejected the slippery slope argument, saying that “making false statements about receiving military honors is a carefully defined subset of false factual statement not meriting constitutional protection.”

In urging the justices to hear the case, United States v. Alvarez, No. 11-210, Solicitor General Donald B. Verrilli Jr. argued that Congress was entitled “to guard against dilution of the reputation and meaning of the medals.”

“The law,” Mr. Verrilli continued, “serves a compelling interest in protecting the integrity of the military honors program, thereby preserving the medals’ ability to foster morale and esprit de corps in the military.”

The central question in the case is whether statements known by the speaker to be false are entitled to First Amendment protection. In defamation and fraud cases, Mr. Verrilli wrote, the requirement of knowing falsity is sufficient to ensure adequate “breathing space” for statements that should be protected by the First Amendment, notably including criticism of the government. That same analysis should apply to false statements about medals, he said.

The Supreme Court under Chief Justice John G. Roberts Jr. has generally been sympathetic to free speech claims, ruling in favor of protesters at military funerals, the makers of violent video games and the distributors of materials showing cruelty to animals. Later this term, the court will consider whether the Federal Communications Commission may regulate cursing and nudity on broadcast television.”

To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Federal Judge Rejects Motions to Dismiss North Korea Leak Case Against Stephen Kim

August 26, 2011

Politico on August 26, 2011 released the following by Josh Gerstein:

“A judge in Washington has rejected defense motions to dismiss charges against a former State Department analyst charged with leaking top-secret intelligence about North Korea to Fox News.

Stephen Kim, who worked for the Energy Department but was detailed to Foggy Bottom, was charged last August with violating the Espionage Act by disclosing to James Rosen of Fox News that the U.S. believed North Korea was about to conduct a nuclear test. Kim was also charged with lying to FBI agents by denying contact with Rosen.

Kim’s lawyers, led by D.C. defense attorney Abbe Lowell, asked U.S. District Court Judge Colleen Kollar-Kotelly to dismiss the charges on a variety of grounds. One of the more interesting arguments was that the crime Kim allegedly committed amounted to treason and, according to the Constitution, could only be charged by testimony of two witnesses. Lowell also argued that transmission of classified information, as opposed to tangible documents, does not violate the Espionage Act–an argument he also offered in the defense of two pro-Israel lobbyists facing similar charges a few years ago.

However, in a 24-page opinion issued Wednesday, Kollar-Kotelly rejected all the defense motions. The judge called “compelling and eloquent” the defense arguments about the treason clause of the Constitution, but said precedent from various courts, including the Supreme Court, had established that Congress could establish similar crimes to treason without following the specific rules the Constitution sets out for treason.

Kim’s case is the fifth Espionage Act prosecution brought during the Obama administration in connection with alleged leaks of classified information to the media.”

Attached is Stephen Kim – Memorandum Opinion and Order.

To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN List Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

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One in Every 20 Federal Prisoners Convicted of a Crack Cocaine Offense Could Get a Sentencing Break

June 30, 2011

The Associated Press (AP) on June 30, 2011 released the following:

“By JESSICA GRESKO
Associated Press

WASHINGTON (AP) — One in every 20 federal prisoners could be eligible for early release under a potential sentencing change for inmates convicted of crack cocaine offenses that will be voted on Thursday.

Congress passed a law last year substantially lowering recommended sentences for people convicted of crack cocaine crimes, ranging from possession to trafficking. The idea was to fix a longstanding disparity in punishments for crack and powder cocaine crimes, but the new, lower recommended sentences for crack offenders didn’t automatically apply to people already in prison. Now it is up to the six-member U.S. Sentencing Commission to decide whether offenders locked up for crack offenses before the new law took effect should also benefit and get out earlier.

Up to 12,000 of the some 200,000 people incarcerated in federal prisons nationwide could be affected. A report by the commission estimates that the average sentence reduction would be approximately three years, though a judge would still have to approve any reduction.

“There is a tremendous amount of hope out there,” said Mary Price, vice president of Families Against Mandatory Minimums, an advocacy group for prisoners and their relatives. “There is a potential that people could see their sentences reduced, for some quite dramatically.”

At a meeting in early June, commissioners suggested they want to apply the lower recommended sentences to at least some past offenders, but it is unclear how many. Advocacy groups have asked for the widest possible application while a group of 15 Republican lawmakers from the House and Senate wrote a letter to the commission saying the Fair Sentencing Act passed by Congress last year was not intended to benefit any past offenders.

At a hearing in early June about the potential changes, U.S. Attorney General Eric Holder took the middle road. He expressed support for making the new, lower guideline sentences retroactive but suggested limits on who should be eligible. Holder said prisoners who used weapons during their crimes or who have significant criminal histories should not be eligible. If the commission adopts that view it could cut in half the number of prisoners who would stand to benefit from 12,000 to approximately 6,000.

Any decision about who should be eligible for a reduced sentence will have to be approved by four of the commission’s six members, who include judges and former prosecutors. Once the commission votes, Congress has until the end of October to reject or modify the guidelines, though that is considered unlikely.”

To find additional federal criminal news, please read The Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN List Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

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