Roger Clemens trial jury instructions

7/31/2019 Roger Clemens trial jury instructions

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FUNCTION OF THE COURT

My job as the judge is to conduct this trial in

an orderly, fair, and efficient manner; to rule on

questions of law; and to instruct you on the law

that applies in this case.

It is your duty to accept the law as I instruct

you. You should consider all the instructions as

a whole. You may not ignore or refuse to follow

any of my instructions.


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FUNCTION OF THE JURY

Your responsibility, as the jury, is to

determine what the facts are in this case. You

are the sole judges of the facts. While it is my

responsibility to decide what is admitted as

evidence during the trial, you alone decide what

weight, if any, to give to that evidence. You

alone also decide the credibility or believability

of the witnesses.


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You should determine the facts without

prejudice, fear, sympathy, or favoritism. You

should not be improperly influenced by

anyones race, ethnic origin, gender, or

economic status. You must decide the case

solely from a fair consideration of the evidence.

You may not take anything I may have said

or done during this trial as any indication of

how I think you should decide this case. If you

believe that I have expressed or indicated any


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such opinion, you should ignore it. That is

because the verdict in this case is solely and

exclusively your responsibility.


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JURYS RECOLLECTION CONTROLS

If any reference by me or the attorneys to

the evidence is different from your own memory

of the evidence, it is your memory that should

control during your deliberations.


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NATURE OF CHARGES NOT TO BE

CONSIDERED

One of the questions you were asked when

we were selecting this jury was whether the

nature of the charges would affect your ability

to reach a fair and impartial verdict. I asked you

that question because you must not allow the

nature of the charges to affect your verdict. You

must consider only the evidence that has been


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presented in this case in reaching a fair and

impartial verdict.


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THE GOVERNMENT AS A PARTY

You are to perform the duty of finding the

facts without bias or prejudice for or against

either party. You are to perform your duty as a

juror with an attitude of complete fairness and

impartiality. The fact that the prosecution is

brought in the name of the United States of

America entitles the prosecution to no greater

consideration than that accorded to any other


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party in a case. By the same token, the United

States is entitled to no less consideration. All

parties, whether the government or an

individual, stand as equals when they appear

before a court of law.


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EVIDENCE IN THE CASEGENERALLY

During your deliberations, you may consider

only the evidence properly admitted in this trial.

The evidence in this case consists of the sworn

testimony of the witnesses, the exhibits that

were admitted into evidence, the facts and

testimony stipulated to by the parties, and

matters about which I took judicial notice.

During the trial, you were told that the

parties had stipulatedthat is, agreedto


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certain facts. You should consider any

stipulation of fact to be undisputed evidence.

During the trial, you were told that the

parties had stipulatedthat is, agreedto what

testimony Erwin Rogers, a special agent, of the

Internal Revenue Service, would have given if

he had testified in this case. You should

consider this stipulated testimony to be exactly

what he would have said had he testified here in

the courtroom.


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During the trial I took what is called

"judicial notice" of excerpts of the United States

Constitution. Judicial notice can be taking of

public acts, places, facts, or events that I

consider to be matters of common knowledge or

matters that can be determined easily through

undisputed sources. As to the facts about which

I took judicial notice, you may, if you choose to

do so, regard those facts as proven evidence.

When you consider the evidence, you are

permitted to draw, from the facts that you find


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have been proven, such reasonable inferences as

you feel are justified in the light of your

experience.


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EXPERT TESTIMONY

Ordinarily, a witness may not testify as to

his opinions or conclusions. There is an

exception for expert witnesses, who are allowed

to give opinions, and the reasons for them

because they have become expert in some art,

science, profession, or calling.

In this case, there has been expert testimony

concerning, among other topics, drug and

chemical analysis, drug and chemical

evaluation, DNA, fingerprint examination,


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image analysis and forensic photogrammetry,

and forensic pharmacology and toxicology.

You are not bound by an expert's opinion. If

you find that the opinion of an expert is not

based on sufficient education or experience, that

the reasons supporting the opinion are not

sound, or that the opinion is outweighed by

other evidence, you may completely or partially

disregard an experts opinion. You should

consider this evidence with all the other


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evidence in the case and give it as much weight

as you think it fairly deserves.


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NUMBER OF WITNESSES

The weight of the evidence is not

necessarily determined by the number of

witnesses testifying for each side. Rather, you

should consider all the facts and circumstances

in evidence to determine which of the witnesses

you believe. You might, for example, find that

the testimony of a smaller number of witnesses

on one side is more believable than the


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testimony of a greater number of witnesses on

the other side, or you might find the opposite.

What I have just said about the weight of the

evidence not necessarily being determined by

the number of witnesses testifying on one side

or the other should not in any way impact your

assessment of the defendant's innocence or guilt

because he had no obligation to prove anything

in this case and, therefore, had no obligation to

call any witnesses.


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DIRECT AND CIRCUMSTANTIAL

EVIDENCE

There are two types of evidence from which

you may determine what the facts are in this

casedirect evidence and circumstantial

evidence. When a witness, such as an

eyewitness, asserts actual knowledge of a fact,

that witnesss testimony is direct evidence. On

the other hand, evidence of facts and


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circumstances from which reasonable inferences

may be drawn is circumstantial evidence.

Let me give you an example of these two

types of evidence. Assume a person looked out

a window and saw that snow was falling. If he

later testified in court about what he had seen,

his testimony would be direct evidence that

snow was falling at the time he saw it happen.

Assume, however, that he looked out a window

and saw no snow on the ground, and then went


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to sleep and saw snow on the ground after he

awoke. His testimony about what he had seen

would be circumstantial evidence that it had

snowed while he was asleep.

The law says that both direct and

circumstantial evidence are acceptable as a

means of proving a fact. The law does not favor

one form of evidence over another. It is for you

to decide how much weight to give to any

particular evidence, whether it is direct or


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circumstantial. You are permitted to give equal

weight to both. Circumstantial evidence does

not require a greater degree of certainty than

direct evidence. In reaching a verdict in this

case, you should consider all of the evidence

presented, both direct and circumstantial.


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TRANSCRIPTS OF TAPE RECORDINGS

Recordings of statements made by the

defendant have been received in evidence.

Transcripts of these recorded conversations

were furnished for your convenience and

guidance as you listened to the tapes to clarify

portions of the tape that may have been difficult

to hear. The recordings, however, are the

evidence in the case; the transcripts are not. If

you notice any difference between the

transcripts and the recordings, you must rely


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only on the recordings and not the transcripts. In

addition, if you cannot determine from the

recording that particular words were spoken,

you must disregard the transcripts as far as those

words are concerned.


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portions that were admitted. You should not

guess as to what has been taken out.


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INDICTMENT NOT EVIDENCE

The Indictment that you have heard about is

merely the formal way of accusing a person of a

crime. You must not consider the indictment as

evidence of any kindin other words, you may

not consider it as any evidence of the

defendants guilt or draw any inference of guilt

from it.


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STATEMENTS OF COUNSEL

The statements and arguments of the

lawyers are not evidence. They are only

intended to assist you in understanding the

evidence.


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INADMISSIBLE AND STRICKEN

EVIDENCE

The lawyers in this case sometimes objected

when the other side asked a question, made an

argument, or offered evidence that the objecting

lawyer believed was not proper. You must not

hold such objections against the lawyer who

made them or the party that lawyer represents. It

is the lawyers' responsibility to object to

evidence that they believe is not admissible.


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If, during the course of the trial, I sustained

an objection to a lawyer's question, you should

ignore the question, and you must not speculate

as to what the answer would have been. If, after

a witness answered a question, I ruled that the

answer should be stricken, you should ignore

both the question and the answer and they

should play no part in your deliberations.


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QUESTION NOT EVIDENCE

Sometimes a lawyers question suggested

the existence of a fact, but the lawyers question

alone is not evidence. Whether something is in

evidence depends on the witnesss answer to the

lawyers question. For example, the lawyer may

ask, The light was green, wasnt it? and the

witness answers, No. At that point, standing

alone, there is no evidence that the light was

green. If, on the other hand, the witness


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answers, Yes, there would be evidence that

the light was green.


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QUESTIONS BY JURORS

During the trial, I permitted you to ask

questions to develop information you

considered important. Please recall my prior

instruction that if I did not ask a question that

any of you submitted, it was because I decided

that the question was not proper. Therefore, you

must disregard any questions submitted by you

that I did not ask in open court, and you must


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not speculate or guess as to what the answer

would have been to your proposed question.


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BURDEN OF PROOF PRESUMPTION

OF INNOCENCE

Every defendant in a criminal case is

presumed to be innocent. This presumption of

innocence remains with the defendant

throughout the trial unless and until the

government has proven he is guilty beyond a

reasonable doubt. This burden never shifts to

the defendant throughout the trial. The law does


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not require the defendant to prove his innocence

or to produce any evidence at all. If you find

that the government has proven beyond a

reasonable doubt every element of a particular

offense with which the defendant is charged, it

is your duty to find the defendant guilty of that

particular offense. On the other hand, if you

find that the government has failed to prove any

element of a particular offense with which the

defendant is charged beyond a reasonable doubt,


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it is your duty to find the defendant not guilty of

that offense.


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REASONABLE DOUBT

The government has the burden of proving

the defendant guilty beyond a reasonable doubt.

In civil cases, it is only necessary to prove that a

fact is more likely true than not, or, in some

cases, that its truth is highly probable. In

criminal cases such as this one, the

governments proof must be more powerful than

that. It must be beyond a reasonable doubt.

Reasonable doubt, as the name implies, is a


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doubt based on reasona doubt for which you

have a reason based upon the evidence or lack

of evidence in the case. If, after careful, honest,

and impartial consideration of all the evidence,

you cannot say that you are firmly convinced of

the defendants guilt, then you have a

reasonable doubt.

Reasonable doubt is the kind of doubt that

would cause a reasonable person, after careful

and thoughtful reflection, to hesitate to act in the


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graver or more important matters in life.

However, it is not an imaginary doubt, nor a

doubt based on speculation or guesswork; it is a

doubt based on reason. The government is not

required to prove guilt beyond all doubt, or to a

mathematical or scientific certainty. Its burden

is to prove guilt beyond a reasonable doubt.


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CREDIBILITY OF WITNESS

In determining whether the government has

established the charges against the defendant

beyond a reasonable doubt, you must consider

and weigh the testimony of all the witnesses

who have appeared before you.

You are the sole judges of the credibility or

believability of the witnesses. In other words,

you alone are to determine whether to believe


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any witness and the extent to which any witness

should be believed.

In reaching a conclusion as to the credibility

or believability of any witness, you may

consider any matter that may have a bearing on

the subject. You may consider the demeanor

and the behavior of the witness on the witness

stand; the witnesss manner of testifying;

whether the witness impresses you as a truthful

person; whether the witness impresses you as


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having an accurate memory and recollection;

whether the witness has any motive for not

telling the truth; whether the witness had a full

opportunity to observe the matters about which

he has testified; whether the witness has any

interest in the outcome of this case, or

friendship or hostility toward other people

concerned with this case.

Inconsistencies or discrepancies in the

testimony of a witness, or between the


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testimony of different witnesses, may or may

not cause you to discredit such testimony. Two

or more persons witnessing an incident or

transaction may see or hear it differently; an

innocent mis-recollection, like a failure of

recollection, is not an uncommon experience.

In weighing the effect of the inconsistency or

discrepancy, always consider whether it pertains

to a matter of important or unimportant detail,

and whether the inconsistency or discrepancy


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results from innocent error or intentional

falsehood.

You may consider the reasonableness or

unreasonableness, or the probability or

improbability, of the testimony of a witness in

determining whether to accept it as true and

accurate. You may consider whether the

witness has been contradicted or supported by

other credible evidence.


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If you believe that any witness has shown

himself or herself to be biased or prejudiced, for

or against either side in this trial, you may

consider and determine whether such bias or

prejudice has colored the testimony of the

witness so as to affect the desire and capability

of that witness to tell the truth.

You should give the testimony of each

witness such weight as in your judgment it is

fairly entitled to receive.


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IMPEACHMENT BY PROOF OF

CONVICTION OF A CRIME WITNESS

You have heard evidence that Kirk

Radomski has been convicted of a crime. You

may consider this conviction only in evaluating

the credibility of his testimony in this case.


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WITNESS WITH A PLEA

AGREEMENT/IMPEACHMENT

BY PROOF OF PROBATION

You have heard evidence that Kirk

Radomski previously entered into a plea

agreement with the government pursuant to

which Mr. Radomski agreed to testify truthfully

in a separate case in the United States District

Court for the Northern District of California and

to cooperate with Senator George Mitchell in


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his investigation and the government agreed to

forgo filing additional charges against Mr.

Radomski and to inform his sentencing judge of

the nature and extent of Mr. Radomski's

cooperation. The government is permitted to

enter into this kind of plea agreement.

You also heard evidence that the plea

agreement has concluded, Mr. Radomski has

been sentenced in that case, and he is currently

serving a sentence of probation. You may


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consider all of these circumstances when

deciding whether Mr. Radomski has a bias in

favor of the government that has motivated him

to testify falsely against the defendant. The

testimony of a witness who has entered into a

plea agreement should be considered with

caution. You should give the testimony as

much weight as in your judgment it deserves.


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EVALUATION OF PRIOR

INCONSISTENT STATEMENT OF A

WITNESS

You have heard evidence that some

witnesses made statements on an earlier

occasion and that these statements may be

inconsistent with the witnesss testimony here at

trial. It is for you to decide whether the witness

made such a statement and whether in fact it


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was inconsistent with the witness's testimony

presented here in court. The law treats prior

inconsistent statements differently depending on

the circumstances in which they were made. I

will now explain how you should evaluate those

statements.

You have heard evidence that Brian

McNamee, Eileen McNamee, Darrin Fletcher,

Anthony Corso and Kirk Radomski made

statements on an earlier occasion and that their


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statements may be inconsistent with their

testimony here at trial. It is for you to decide

whether the witnesses made such statements and

whether in fact they were inconsistent with the

respective witness's testimony during this trial.

If you find such an inconsistency, you may

consider the earlier statement in judging the

credibility of the witness, but you may not

consider it as evidence that what was said in the

earlier statement was true.


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You have also heard evidence that Brian

McNamee and Anthony Corso earlier made

statements under oath, subject to the penalty of

perjury at a prior proceeding and that their

statements may be inconsistent with their

testimony here at trial. If you find that the

respective witnesss earlier statement is

inconsistent with the witness's testimony here in

court, you may consider this inconsistency in

judging the credibility of the witness. You also

may consider the earlier statement as evidence


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that what was said in the earlier statement was

true.


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EVALUATION OF PRIOR

CONSISTENT STATEMENT OF A

WITNESS


McNamee and Eileen McNamee made

statements on earlier occasions and that these

statements may be consistent with their

testimony here at trial. These earlier statements

were brought to your attention both to help you


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in evaluating the credibility or believability of

the witness and as evidence in this case. In other

words, if you find that the earlier statements are

consistent with the witness's present testimony

in court, you may consider these consistencies

both in judging the credibility or believability of

the witness's testimony presented here at trial

and as proof that what was said in the earlier

statement was true.


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It is for you to decide whether Brian

McNamee and Eileen McNamee made

statements on an earlier occasion and whether

they were in fact consistent with their testimony

presented during this trial.


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TESTIMONY OF WITNESS WITH

PROFFER AGREEMENT


McNamee entered into a proffer agreement with

the government. Under the proffer agreement

Brian McNamee agreed to make statements to

the government that the government agreed

would not be used directly against him; the

government could, however, use the facts in the

proffer to develop their investigation. You


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should consider whether a witness who realizes

that he may obtain his own freedom, receive a

benefit, or avoid prosecution by incriminating

another may have a motive to lie. However,

you may also consider that Brian McNamee is

under the same obligation to tell the truth as is

any other witness, because the proffer

agreements do not protect him against a

prosecution for perjury or false statement,

should he lie under oath.


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The testimony of a witness to whom

immunity has been granted should be

considered with caution. You should give the

testimony as much weight as in your judgment it

deserves.


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FEDERAL AGENT'S TESTIMONY

A law enforcement officers testimony

should be evaluated by you just as any other

evidence in the case. In evaluating the officers

credibility or believability, you should use the

same guidelines that you apply to the testimony

of any witness. In no event should you give

either greater or lesser weight to the testimony


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of any witness merely because the witness is a

law enforcement officer.


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RIGHT OF DEFENDANT NOT TO

TESTIFY

Every defendant in a criminal case has an

absolute right not to testify. The defendant has

chosen to exercise this right. You must not hold

this decision against the defendant, and it would

be improper for you to speculate as to the reason

or reasons for his decision. You must not

assume that the defendant is guilty because he

chose not to testify.


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MULTIPLE COUNTS ONE DEFENDANT

Each count of the Indictment charges a

separate offense. You should consider each

offense, and the evidence which applies to it,

separately, and you should return separate

verdicts as to each charge. The fact that you

may find the defendant guilty or not guilty on

any charge in the Indictment should not

influence your verdict with respect to the other

charges in the Indictment.


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ON OR ABOUT

The Indictment charges that the offenses

were committed on or about particular dates.

The proof need not establish with certainty the

exact dates of the alleged offenses. It is

sufficient if the evidence in the case establishes

beyond a reasonable doubt that the offenses

were committed on a date reasonably near the

dates alleged.


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OBSTRUCTION OF CONGRESS

(COUNT ONE)

Count One of the Indictment charges the

defendant with the crime of Obstruction of

Congress. The offense of Obstruction of

Congress contains four essential elements, each

of which the government must prove beyond a

reasonable doubt:


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First, that on or about February 5, 2008, andFebruary 13, 2008, an investigation was

pending before The United States House of

Representatives Committee on Oversight

and Government Reform;

Second, that the defendant knew that theinvestigation was pending before The

United States House of Representatives

Committee on Oversight and Government

Reform;

Third, that the investigation was conducted


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within the due and proper exercise of the

power of inquiry by The United States

House of Representatives Committee on

Oversight and Government Reform; and

Fourth, that the defendant corruptlyendeavored to influence, obstruct, or impede

that investigation.

I will now instruct you as to the meaning of

several of the words used in the four elements of

the crime of Obstruction of Congress.


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As used in the third element, the phrase due

and proper exercise of the power of inquiry

means an inquiry within the investigative power

of the United States House of Representatives


Reform. The power of the House Committee on

Oversight and Government Reform to conduct

investigations is inherent in the legislative

process and is derived both from the United

States Constitution and the Rules of the United


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States House of Representatives. The

investigative power is broad. It encompasses

inquiries concerning existing laws, as well as

assessing whether the adoption of new laws is

necessary. But the investigative power is not

unlimited; it must be related to, and in

furtherance of, the legitimate function of the

United States Congress to make inquiries

concerning existing laws, as well as assessing

whether the adoption of new laws is necessary.

While an investigation must be related to, and in


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furtherance of, a legitimate legislative activity to

be legitimate, the legitimacy of the investigation

does not depend on whether legislation was

ultimately passed based on the facts learned

during the investigation.

In assessing whether the Committees

investigation in this case was a due and proper

exercise of the power of inquiry, you must

consider the individual questions the defendant

was asked as they relate to the overall context of


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the investigation. A question must have been

capable of eliciting or disclosing facts that

would aid the Committee in its legislative

function, and the questions and answers must be

viewed from the standpoint of the investigation

as a whole. In other words, while your analysis

should proceed on a question-by-question basis,

you must consider each individual question in

conjunction with the asserted purpose of the

Committees investigation.


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As used in the fourth element, the term

corruptly means acting intentionally with an

improper purpose, including making a false or

misleading statement, or intentionally

withholding or concealing information. A

statement is false if it was untrue when it was

made and the defendant knew it was untrue at

the time. Misleading means (a) knowingly

making a false statement, or (b) intentionally

omitting information from a statement and

thereby causing a portion of such statement to


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be misleading, or intentionally concealing a

material fact, and thereby creating a false

impression by such statement. Corruptly does

not include making an innocent statement as a

result of innocent confusion, mistake, or faulty

memory.

As used in the fourth element, the term

endeavor means to strive or to attempt to

achieve a certain result. In other words, to

endeavor means to knowingly and deliberately

act or to knowingly and deliberately make any


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effort which has a reasonable tendency to bring

about the desired result. The term endeavor is

designed to reach all conduct which is aimed at

influencing, intimidating and impeding the

proceedings. Thus, this element is satisfied if

you find that the defendant knowingly and

intentionally made any effort or did any act for

the purpose of corruptly influencing, obstructing

or impeding the proceedings. Success of the

endeavor is not necessary to prove the crime of

Obstruction of Congress.


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In order to find the defendant guilty of this

offense, you must all agree that the defendant

made at least one false or misleading statement,

and all of you must agree on which statement

was false or misleading. For example, if all of

you agree that the defendant made at least one

false or misleading statement, but all of you do

not agree on which specific statement was false

or misleading, the crime of Obstruction of

Congress has not been proven beyond a

reasonable doubt. The underlined portions of


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the allegedly obstructive statements set forth in

the appendix attached to these instructions are

alleged by the government to be false or

misleading.


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MAKING A FALSE STATEMENT

(COUNTS TWO, THREE, AND FOUR)

Counts Two, Three, and Four of the

Indictment each charge the defendant with the

crime of Making a False Statement. The

offense of Making a False Statement contains

five essential elements, each of which the

government must prove beyond a reasonable

doubt:


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First, that the defendant made a false,

fictitious, or fraudulent statement or

representation to the government of the

United States, namely, the United States


Oversight and Government Reform;

Second, that the statement or representationwas made with regard to a matter within the

jurisdiction of the United States House of



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and Government Reform;

Third, that the investigation was conducted

by the United States House of


and Government Reform consistent with

applicable rules of the House of

Representatives.

Fourth, that the statement or representationmade by the defendant was material to the

investigation being conducted by the United

States House of Representatives Committee


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on Oversight and Government Reform; and

Fifth, that the defendant made the statement

knowingly and willfully.


several of the words used in these five elements

of the crime of Making a False Statement.

As used in the first element, a statement is

false, or fictitious, if it was untrue when it


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was made and the defendant knew it was untrue

at that time. A statement is fraudulent if it

was untrue when it was made, the defendant

knew it was untrue, and the defendant intended

to deceive others through the making of the

statement. In reviewing the testimony that is

alleged to have been false, you should consider

that testimony in the context of the series of

questions the defendant was asked and the

answers given, and the words used should be

given their common and ordinary meaning,


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unless the circumstances clearly show that the

questioner and the defendant mutually

understood the words to have a different

meaning.

As used in the first element, the terms

statement and representation mean

declarations or remarks made by the defendant.

In regard to the second element, a matter is

within the jurisdiction of the United States



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Oversight and Government Reform if the

Committee has the power to exercise authority

as to that matter. The power pertains to both the

investigative and legislative capacities of the

Committee as derived from both the United

States Constitution and the Rules of the United

States House of Representatives. The






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Congress to make inquiries concerning existing

laws, as well as assessing whether the adoption

of new laws is necessary. While an

investigation must be related to, and in


be legitimate, the legitimacy of the investigation





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In assessing whether the House Committees

investigation in this case was within its

jurisdiction you must consider the individual

questions the defendant was asked as they relate

to the overall context of the investigation. A

question must have been capable of eliciting or

disclosing facts that would aid the Committee in

its legislative function, and the questions and

answers must be viewed from the standpoint of

the investigation as a whole. In other words,


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while your analysis should proceed on a

question-by-question basis, you must consider

each individual question in conjunction with the

asserted purpose of the Committees

investigation.

As used in the third element, the term

material means that the statement or

representation had the capacity to influence

a decision of the United States House of



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and Government Reform. In other words, a

statement is material if it relates to an

important fact that had the capacity to affect

or influence the Committees investigation,

as distinguished from unimportant or trivial

facts that did not have the capacity to affect

or influence the investigation. In assessing

whether a statement or representation was

material, you may consider the nature of the

investigation that was being conducted by

the Committee. However, you should


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understand that it is not necessary for the

government to prove that the Committee

was, in fact, misled or influenced in any way

by the allegedly false statement; thus, a

statement need not actually influence the

Committee in order to be material.

As used in the fifth element, the terms

knowingly and willfully mean when a

person acts deliberately, voluntarily, and

intentionally, and not as the result of innocent

confusion, mistake, or faulty memory.


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PERJURY

(COUNTS FIVE AND SIX)

Counts Five and Six of the Indictment each

charge that the defendant committed the crime

of Perjury. The offense of Perjury contains six

essential elements, each of which the


doubt:


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First, that the defendant made a statement tothe United States House of Representatives


Reform while he was under oath;

Second, that the oath was taken before acompetent tribunal;

Third, that the oath was taken in aproceeding in which the law authorized the

administration of an oath;

Fourth, that the statement was willfully andknowingly false in one or more respects;


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Fifth, that the defendant knew when hemade the statement that it was false; and

Sixth, that the statement was material to thematter that was being investigated by the

United States House of Representatives


Reform.


several of the words used in these six elements

of the crime of Perjury.


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As used in the first element, the term oath

means a solemn declaration that a persons

statement is true.

The United States House of Representatives


Reform was a competent tribunal if it had the

power to conduct the proceedings, and to

conduct them in the manner in which it did,

during which the defendant made his

statements. The power of the Committee to

conduct investigations is inherent in the


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legislative process and is derived both from the

United States Constitution and the Rules of the

United States House of Representatives. The







Congress to make inquiries concerning existing

laws, as well as assessing whether the adoption


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of new laws is necessary. While an

investigation must be related to, and in


be legitimate, and therefore render the tribunal

competent, the legitimacy of the investigation




In assessing the competency of the

Committee, you must consider the individual

questions that the defendant was asked as they


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relate to the overall context of the Committees

investigation. The questions must have been

capable of eliciting or disclosing facts that

would aid the Committee in its legislative

function, and the questions and answers must be

viewed from the standpoint of the investigation

as a whole. In other words, while your analysis

should proceed on a question-by-question basis,

you must consider each individual question in

conjunction with the asserted purpose of the

Committees investigation.


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As used in the fourth and fifth elements, the

term false means that a statement was untrue

when it was made and made with knowledge

that it was untrue.

Also as used in the fifth element above, the

word knew means that the defendant was

aware of the falsity of the statement, but

nevertheless made the statement with an

improper purpose.

As used in the sixth element, the term

material means that the statement or


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representation had the capacity to influence

a decision of the United States House of


and Government Reform. In other words, a

statement is material if it relates to an

important fact that had the capacity to affect

or influence the Committees investigation,

as distinguished from unimportant or trivial

facts that did not have the capacity to affect

or influence the investigation. In assessing

whether a statement or representation was


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material, you may consider the nature of the

Committees investigation. However, you

should understand that it is not necessary for

the government to prove that the Committee

was, in fact, misled or influenced in any way

by the allegedly false statement; thus, a

statement need not actually influence the

Committee in order to be material.

You are instructed that the testimony of one

witness is not enough to support a finding that

the defendants statement was false. There must


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be additional evidenceeither the testimony of

another person, or documentary or other

evidencethat tends to support the statements

falsity. This other evidence, standing alone,

need not itself convince you beyond a

reasonable doubt that the testimony was false.

But, after considering all of the evidence on the

issue, you must be convinced beyond a

reasonable doubt that the testimony was false.


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PROOF OF STATE OF MIND

Someones intent and knowledge, and

whether the person acted voluntarily and

deliberately, ordinarily cannot be proved

directly, because there is no way of knowing

what a person is actually thinking. However,

you may infer someones intent and knowledge,

and whether the person acted voluntarily and

deliberately from the surrounding

circumstances. You may consider any


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statement made or acts done or omitted by the

defendant, and all other facts and circumstances

received in evidence which indicate his intent

and knowledge, and whether he acted

voluntarily and deliberately.

You may infer, but are not required to infer,

that a person intends the natural and probable

consequences of acts he intentionally did or did

not do. It is entirely up to you, however, to

decide what facts to find from the evidence


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received during this trial. You should consider

all the circumstances in evidence that you think

are relevant in determining whether the

government has proved beyond a reasonable

doubt that the defendant acted with the

necessary state of mind.


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MOTIVE

Motive is not an element of the offenses

charged in this case, and the government is

therefore not required to prove motive in this

case. You may, however, consider evidence of

motive or lack of evidence of motive in deciding

whether or not the government has proved the

charges beyond a reasonable doubt.


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IMPERMISSIBLE TO INFER GUILT

FROM ASSOCIATION

You may not infer that Mr. Clemens is

guilty of the criminal conduct charged in this

case based on the mere fact that he was

associated with other people who have admitted

that they engaged in certain behavior. You must

weigh the evidence with respect to Mr. Clemens

separately and without regard to whether others

admitted that they engaged in criminal behavior.


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Testimony by Mr. McNamee that he

provided anabolic steroids or human growth

hormone to non-athletic clients and Major

League Baseball players other than Mr.

Clemens was introduced solely for the purpose

of your assessment of the credibility or

believability of Mr. McNamees testimony. As

explained above, you cannot, however, infer

that Mr. Clemens is guilty of the crimes charged

in this case based on either Mr. McNamees

testimony that he provided anabolic steroids or


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human growth hormone to non-athlete clients

and Major League Baseball players other than

Mr. Clemens or the admission of others that

they used anabolic steroids or human growth

hormone. You may also not infer that Mr.

Clemens used steroids or human growth

hormone based on the admission of Mr. Pettitte

or Mr. Corso that they used human growth

hormone. You may also not infer that Mr.

Clemens used steroids or human growth

hormone based on the testimony of Mr.


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McNamee and Mrs. Clemens that Mr.

McNamee injected Mrs. Clemens with human

growth hormone.


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NOTE-TAKING BY JURORS

During the trial, I have permitted those

jurors who wanted to do so to take notes. You

may take your notebooks with you to the jury

room and use them during your deliberations if

you wish. As I told you at the beginning of the

trial, your notes are only to be an aid to your

memory. They are not evidence in the case, and

they should not replace your own memory of the

evidence. The notes are intended to be for the


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notetakers own personal use. You therefore

should not read your notes aloud or show them

to your fellow jurors. Those jurors who have

not taken notes should rely on their own

memory of the evidence.


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EXHIBITS DURING DELIBERATIONS

I will be sending into the jury room with you

the exhibits that have been admitted into

evidence. You may examine any or all of them

as you consider your verdicts. Please keep in

mind that exhibits that were only marked for

identification or used for demonstrative

purposes, but were not admitted into evidence,

will not be given to you to examine or consider

during your deliberations.


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SELECTION OF FOREPERSON

When you return to the jury room, you

should first select a foreperson to preside over

your deliberations and to be your spokesperson

here in court. There are no specific rules

regarding how you should select a foreperson.

That is up to you. However, as you go about the

task of selecting a foreperson, be mindful of

your mission to reach a fair and just verdict

based on the evidence. Consider selecting a


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foreperson who will be able to facilitate your

discussions, who can help you organize the

evidence, who will encourage civility and

mutual respect among all of you, who will invite

each juror to speak up regarding his or her

views about the evidence, and who will promote

a full and fair consideration of that evidence.


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ATTITUDE AND CONDUCT OF JURORS

IN DELIBERATIONS

The attitude and conduct of jurors at the

beginning of their deliberations are matters of

considerable importance. It may not be useful

for a juror, upon entering the jury room, to voice

a strong expression of an opinion on the case or

to announce a determination to stand for a

certain verdict. When one does that at the outset,

a sense of pride may cause that juror to hesitate


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to back away from an announced position after a

discussion of the case. Furthermore, many juries

find it useful to avoid an initial vote upon

retiring to the jury room. Calmly reviewing and

discussing the case at the beginning of

deliberations is often a more useful way to

proceed. Remember that you are not partisans or

advocates in this matteryou are judges of the

facts.


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POSSIBLE PUNISHMENT NOT

RELEVANT

The question of possible punishment of the

defendant in the event of a conviction is not a

concern of yours and should not enter into or

influence your deliberations in any way. The

duty of imposing sentence in the event of a

conviction rests exclusively with me. Your

verdict should be based solely on the evidence


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in this case, and you should not consider the

matter of punishment at all.


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COMMUNICATIONS BETWEEN COURT

AND JURY DURING JURYS

DELIBERATIONS

If it becomes necessary during your

deliberations to communicate with me, you may

send a note to me through the clerk or one of the

Marshals, signed by your foreperson or by one

or more members of the jury. No member of

the jury should ever try to communicate with me

except by such a signed note, and I will never


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communicate with any member of the jury on

any matter concerning the merits of this case,

except in writing or orally here in open court.

Bear in mind also that you are never, under

any circumstances, to reveal to any personnot

the clerk, the marshal, or mehow jurors are

voting until after you have reached a unanimous

verdict. This means that you should never tell

me, in writing or in open court, how the jury is

divided on any matterfor example, 6-6 or 7-5


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or 11-1, or in any other fashionwhether the

vote is for conviction or acquittal or on any

other issue in the case.


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UNANIMITY--SPECIAL

The defendant has been charged with one

count of Obstruction of Congress. Each of the

four elements of this offense must be proven by

the government beyond a reasonable doubt.

You have heard evidence about more than one

alleged false statement made by the defendant

that provides the basis for this charge. The

allegedly obstructive statements are set forth in

detail in Appendix 1 to these instructions. As I


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told you earlier, in order for you to return a

guilty verdict on this charge, you must all agree

that the defendant made at least one false or

misleading statement, and all of you must agree

on which statement was false or misleading. In

other words, even if you all agree that the

defendant made at least one false or misleading

statement, but all of you do not agree on which

specific statement was false or misleading, the

crime of Obstruction of Congress has not been

proven beyond a reasonable doubt.


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FURNISHING THE JURY WITH A TAPE

RECORDING AND A WRITTEN COPY OF

THE INSTRUCTIONS

I will provide you with both a tape recording

and a written copy of my instructions. During

your deliberations, you may, if you want, listen

to or refer to these instructions. While you may

listen to or refer to any particular portion of the

instructions, you are to consider the instructions

as a whole and you may not follow some and


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ignore others. If you have any questions about

the instructions, you should feel free to send me

a note. Please return the tape recording, the

recorder, and the written instructions to me after

your verdict is rendered.


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VERDICT FORM EXPLANATION

You will be provided with a Verdict Form

for use when you have concluded your

deliberations. The form is not evidence in this

case, and nothing in it should be taken to

suggest or convey any opinion by me as to what

the verdict should be. Nothing in the form

replaces the instructions of law I have already

given you, and nothing in it replaces or modifies


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the instructions about the elements which the


doubt. The form is meant only to assist you in

recording your verdict.


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CAUTIONARY INSTRUCTION ON

PUBLICITY

As you are released to begin your

deliberations, I call your attention again to your

duty to avoid all media coverage about this case.

You must not read, listen to, or watch media

reports because you must decide this case solely

on the evidence presented in this courtroom. If

any publicity about this trial inadvertently

comes to your attention during your


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deliberations, do not discuss it with other jurors

or anyone else. Just let me or my clerk know as

soon after it happens as you can, and I will then

briefly discuss it with you.

As you retire to the jury room to deliberate, I

wish to remind you of an instruction I gave you

at the beginning of the trial. Namely, during

deliberations, you may not communicate with

anyone not on the jury about this case. This

includes the use of any electronic

communication such as e-mailing, texting,


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tweeting, or any blogging about this case. In

addition, you may not conduct any independent

investigation during your deliberations. This

means you may not conduct any research in

person or electronically through the use of the

internet or in any other way.

Roger Clemens trial jury instructions

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