False Statements, Perjury and Prosecutorial Over-Charging

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Between 1984 and 2006, Roger Clemens, a seven-time Cy Young Award winner, was arguably the best—certainly one of the top five—pitchers ever to take the mound in Major League Baseball (“MLB”). Nicknamed the “Rocket,” Clemens’ 354 wins (ninth on the all-time win list) and his 4,672 strikeouts (third only to career strikeout leader Nolan Ryan and runner up Randy Johnson) make a compelling argument that he is one of the greatest MLB pitchers of all time.

Then it happened. Former Oakland Athletics outfielder Jose Canseco released his book, Juiced: Wild Times, Rampant ‘Roids, Smash Hits, and How Baseball Got Big (William Morrow 2005), and pointed the finger at a number of prime time baseball stars as steroid users, including Clemens. Canseco’s book spurred the congressional House Committee on Oversight and Government Reform (“Oversight committee”) in March 2005 to conduct a hearing titled “Restoring Faith in America’s Pasttime: Evaluating Major Baseball’s Efforts to Eradicate Steroid Use.” Canseco and a host of other prominent MLB stars, including Mark McGwire, testified before the committee, either confirming or denying performance enhancement (“PED”) drug use by themselves or others.

Over the next year MLB reeled under one revelation after another about the magnitude of PED use among its star athletes. Home run and hitting records, as well as pitching wins/strikeouts, were being called into question. The word “asterisk” became routinely associated with Barry Bonds’ single season and career home run records along with McGwire’s smashing of Roger Maris’ single season 61 home run record. “Juiced” became part of our daily vernacular. It caught our attention last year.

In March 2006 MLB Commissioner Bud Selig asked former U.S. Senator and Ambassador George J. Mitchell to investigate PED use in major league baseball. The former federal judge and U.S. Attorney was imminently qualified to lead such an investigation. Twenty months later Mitchell issued a 409-page report titled “Report to the Commissioner of Baseball of an Independent Investigation into the Illegal Use of Steroids and Other Performance Enhancing Substances by Players in Major League Baseball” (“The Mitchell Report”).

The Mitchell Report cited Clemens’ name 82 times in reporting that he allegedly used “anabolic steroids” multiple times while a member of the Toronto Blue Jays and New York Yankees between 1998 and 2001 and also used HGH multiple times in 2000. The allegations of PED use against Clemens contained in the Mitchell Report were leveled by a “professional trainer” named Brian McNamee. Clemens vehemently denied the PED charges made in the Mitchell Report and hired prominent Houston attorney Rusty Hardin to represent him in his efforts to “clear his name.” This effort led to Clemens filing a defamation lawsuit against his former personal trainer in January 2008. The lawsuit came the day after Clemens appeared on CBS’ 60 Minutes during which he strenuously denied the PED charges leveled by McNamee in the Mitchell Report.

In the wake of Clemens’ 60 Minutes appearance the Oversight Committee on January 18, 2008 invited Clemens to testify before the legislative body about the accuracy of the Mitchell Report. The committee did not subpoena Clemens. On February 5, 2008, Clemens accepted the committee’s invitation to testify before it. There remains considerable debate to this day about whether Clemens actually requested to appear before the Oversight Committee which prompted the January 18 formal invitation. Committee Chairman Henry Waxman asserts Clemens wanted the hearing “to speak in public and make his case” that he had never used PEDs while one of Clemens’ attorneys Lanny Breuer disputes chairman’s assertion, saying “any suggestion whatsoever that this hearing was the result of our request is simply not accurate.” What is not in dispute is that on February 13, 2008 Clemens forcefully told the Oversight Committee that he had never taken PEDs.

Roger Clemens is the only prominent MLB player accused of PED use who has remained adamant about his innocence. Earlier this year former St. Louis home run king Mark McGwire finally owned up to PED use during his dramatic pursuit of Roger Maris’ single season home run record. McGwire’s admission followed the lead of New York Yankees third baseman Alex Rodriquez’s confession last year that he had used PEDs during a three-year period early in his career. Despite repeated calls from sports pundits that he do the same thing, Clemens refused to join the bandwagon of PED admissions and continued to steadfastly maintain his innocence.

Some say the Government’s patience ran out. Others point out that MLB home run king Barry Bonds was indicted in 2007 for perjury and obstruction of justice in connection with his testimony before a federal grand jury investigating allegation of his PED use; and that Olympic sprinter Marion Jones was convicted and sentenced to six months in 2008 for lying about her PED use during her record-setting competition years. The racial implications of the different treatment by the Government in the Bonds/Jones cases compared to Clemens was increasingly become a subject of discussion on sports television. Thus a reasonable argument can be made that Clemens insistence of innocence forced the Government’s hand because of its racial concerns.

Whatever the Government’s motive, a Grand Jury sitting in the District of Columbia on August 19, 2010 handed down a six-count indictment against Clemens: one count for obstruction of Congress, 18 U.S.C. Sec. 1505; two counts of perjury for false testimony before the Oversight Committee, 18 U.S.C. Sec. 1621; and three counts for making false statements to congressional staffers, 18 U.S.C. Sec. 1001. The difference between perjury and making a false statement is that perjury requires proof that the witness was sworn while making a false statement does not. Also, it has been a longstanding rule of law that perjury must be proven by two witnesses or by one witness and corroborating evidence.

The false statements Clemens allegedly made were in response to questions posed to him prior to appearance before Congress concerning his alleged use of HGH, anabolic steroids and Vitamin B-12. These questions were spelled out in the indictment. Count 2 of the indictment deals with alleged false statements Clemens made concerning his reported use of HGH:

Q. The focus of our investigation is, in a lot of ways, the Mitchell Report; and the Mitchell Report contains allegations about your use of anabolic steroids and human growth hormones, HGH. And you have been very clear in your public statements that these allegations about your use are not true … I will go through some specific statements in the Mitchell Report, but, before I do that, I want to give you an opportunity for you to raise with us areas where you think are the most glaring inaccuracies in the Mitchell Report as it relates to you.
A. I have read the report, what it pertains to me … I have actually the report in front of me … And, like I have stated in the press conferences and I first came out to make my statements when I heard about these allegations, basically it pertains to what [Brian McNamee] is saying about me. It is false. I have not used steroids or growth hormone.
Q. And human growth hormone, have you ever used human growth hormone?
A. Never.
Q. I think you have already answered this, but le me ask you again. Have you ever taken human growth hormone during your baseball career?
A. No, I have not.

Count 3 of the indictment deals with alleged false statements Clemens made concerning his reported use of steroids:

A. I am just making it as possibly clear as I can. I haven’t done steroids or growth hormone.
Q. And let me ask just a general question. Did you during you playing career use steroids?
A. I never used steroids. Never performance-enhancing steroids.
Q. Anabolic steroids, which are performance-enhancing steroids, you have never used those.
A. That is correct.

Count 4 of the indictment deals with alleged false statements Clemens made concerning his reported unauthorized use of Vitamin B-12:

Q. Let me move on to injections from [Brian McNamee]. You have said that [McNamee] gave you B12 shots. I want to ask you about that. Let me just start with how many times [McNamee] would have injected you with B12?
A. I mean … again. I am going to guess, because I have had so many. [MaNamee] would have been somewhere between four and times of B12.
Q. And when would he have given you those shots?
A. I am sorry?
Q. When – do you have any recollection of when [McNamee] would have injected you?
A. Toronto and New York, when I was with the Yankees.
Q. So 1998?
A. 1998, definitely.

The two perjury counts of the indictment, 5 and 6, deal with Clemens alleged false sworn testimony before Oversight Committee. Count 5 deals with alleged false testimony Clemens gave the committee about his reported use of HGH:

A. [Brian McNamee] has never given me growth hormone or steroids … And, again, this man [McNamee] has never given me HGH or growth hormone or steroids of any kind …”

Count 6 deals with alleged false testimony Clemens gave the committee about his reported use of steroids:

A. Let me be clear. I have never taken steroids or HGH.

Count 1 of the indictment, obstruction of Congress, list 15 separate instances in which Clemens “corruptly” endeavored “to influence, obstruct, and impede” the Oversight committee by making false or misleading statements—most of which concerned his reported PED use. Three of the false or misleading statements dealt with the following issues: 1) Clemens testimony that Andy Pettitte must have “misheard” or “misremember[ed]” what the Rocket told him about the use of HGH; 2) Clemens deposition statement that he had “no idea” that Senator Mitchell wanted to talk to him in connection with the Senator’s investigation into PED use in MLB; and 3) Clemens deposition statement that he was not in a house in south Florida on or about June 9, 1998.

The indictment of William “Roger” Clemens is actually an indictment of the U.S. Government.

The Clemens indictment exemplifies the Government’s unholy practice of procuring grand jury indictments against defendants which are packed with multiple counts under separate criminal statutes concerning a single course of criminal conduct. It’s called “prosecutorial overcharging.” The Government had a choice to indict Clemens for making false statements under § 1001 or perjury under § 1621. Prosecution under either statute would have served the Government’s legitimate interest to make sure individuals speak honestly to government agents or agencies.

But to indict Clemens under both statutes, and to throw the catchall obstruction of Congress into mix, is classic prosecutorial overkill. The Government indicted Clemens on six different counts hoping that if it threw enough “mud at the wall,” some of it would stick. Federal juries are overwhelmed in such cases. The average juror believes that if the Government has brought so many charges, then the defendant must be guilty of something, applying the old adage “where there’s smoke, there’s fire.”

Accepting Clemens innocence claims at face value, and we have seen little direct evidence in the public record that would make us seriously doubt those claims, the pitching great made one costly error in judgment: he trusted the Government to treat him fairly. Indicted government officials, especially Congressmen, are the first to maintain their innocence in the public domain and demand fairness in the prosecutorial process, but they are the first to disregard those constitutional principles when high profile individuals appear before them.

But the proverbial “fat lady hasn’t sung” on Roger Clemens’ legal fate. The jury will have the final say on that. Unfortunately, the court of public opinion, led by sports columnists and pundits who have a difficult time telling the difference between a baseball and a basketball, has pretty much already lynched the Rocket. We haven’t. We still believe in the constitutional presumption of innocence—and Clemens has given far more to this community than he has ever taken from it. Thus, we feel he deserves the presumption of innocence until the jury speaks. We’re just old-fashioned like that.

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair