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20n ~PR 21 A 001 Case No. 2011 CMD 7lP;3;}.. EO

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The government requests that the attached discovery letter, dated April 26, 2011, be

made part of the record in this case.

Respectfully submitted,

RONALD C. MACHEN JR. United States Attorney


Assistant United States Attorney U.S. Attorney's Office

555 4th Street, N.W. Rm. 10-810 Washington, D.C. 20530

(202) 252-6756

Certificate of Service

I hereby certify that I caused a copy of the Notice of Filing and attached Discovery Letter (with attachments) to be served by hand-delivery upon defendants' counsel, A. Scott Bolden,

Esq., thisi"_thtl day of April, 20 II. ~4/;. =-

Assistant United Sta es Attorney ---------

u.s. Department of Justice United States Attorney District a/Columbia

Judiciary Center

555 Fourth St. N. W. Washington, D.C. 20530

April 26, 2011

A. Scott Bolden, Esq. Reed Smith LLP

1301 K Street, N.W. Suite l100 - East Tower Washington, DC 20005

Re: United States v. Albert Haynesworth Case No. 2011 eMD

Dear Mr. Bolden:

I am writing in response to your request for information pursuant to Superior Court Criminal Rule 16, and to provide you with a plea offer.

I. Plea Offer

Your client is currently charged with one count of misdemeanor sexual abuse. If your client pleads guilty to one count of simple assault, the government will:

• dismiss the remaining charge,

• waive its right to allocute as to whether your client should be incarcerated pending sentencing, I

• waive any enhancement papers that might apply, and

• reserve its right to allocute at the time of sentencing.

This plea offer will expire on May 17,2011.2 It is important that you and your client understand that this plea offer will not be extended after this deadline, and your client must arrange to be present in court to accept the plea offer before that date. After this date the government will not entertain any plea offer other than a guilty plea to the indictment.

1 In the event that the defendant violates any conditions of release set by the court, this provision is void, and the government reserves its right to allocute as to whether your client should be incarcerated pending sentencing.

2 The government reserves the right to withdraw this plea offer at any time prior to defendant's acceptance in court. In addition, the plea offer will be automatically withdrawn in the event that the defendant violates any conditions of release set by the court.

II. Synopsis of the Government's Case

The complaining witness ("CW") is a full-time college student who works as a waitress at The W Hotel. On the evening of February 12,2011, CW was assigned to wait on two private parties being held in a cordoned-off section of the P.O.V. Lounge on the rooftop terrace of The W. One ofthe private parties was a bachelorette party, and the other was a birthday party attended by defendant. Because of his high profile, managers at The W were told in advance of defendant's plan to attend the party. When defendant's party arrived at The W, CW was introduced to a "contact person" who had organized the party. During the course of the evening, CW dealt primarily with the contact person.

Toward the end of the evening, while CW was on a short break, another waitress dropped off the check to defendant's party. When CW went to check on the party's status following her break, the contact person indicated that they needed a few more minutes to discuss the bill. CW busied herself clearing plates. A few minutes later, when CW already had both hands filled with plates, the contact person motioned to her, pointed to defendant, and told CW that defendant was going to pay the bill. Defendant already had his wallet out, and was removing his debit card. When CW saw defendant pulling out his debit card, and her hands were filled with dirty dishes, she told defendant that she would "drop these off real quick," referring to the plates, and come back to take the defendant's card. Defendant was insistent that he wanted to pay immediately, pushing his debit card toward her and tapping her on the arm and shoulder with his card. CW looked up and down at herself, as if wondering where defendant expected her to put it.

Defendant then proceeded to put the debit card down the center ofCW's bra, in the space between her bra and her skin. Defendant then began moving his hand toward her breast, while still holding the debit card. As he moved his hand toward her breast, defendant smiled and said words to the effect of, "Can I do that?" or "Is that okay?" CW told defendant to stop. Despite CW's requests for him to stop, defendant continued to move his hand over, ultimately moving his fingers in circles around CW's left nipple.

A witness ("W I "), who was standing within arm's reach of defendant, saw CW approach defendant with her arms full with dirty dishes. WI saw CW look around for a place to put the plates, then heard defendant say, "I'm just going to put my card right here," while gesturing with his card toward CW's chest. WI has disclosed that he saw CW smile and move her head up and down, which he took to mean that CW agreed to let defendant put the debit card into her bra. According to WI, CW did not respond verbally. WI then saw defendant push his debit card into CW's bra, far enough that WI could no longer see the card. While WI could not see what was happening inside CW's bra, he listened as CW spoke several times, and noted that the tone of her voice changed to stern, as she was instructing defendant to remove his hand from her bra.

When defendant finally removed his hand from CW's bra, he left his debit card behind, buried deeply enough in CW's bra that WI still could not see it. As CW walked away, WI confronted defendant by telling him that he was wrong for touching CW in that manner.


CW went immediately to the register, where she took defendant's debit card out of her bra and swiped it. At approximately 1 :58 am, defendant's debit card was declined. CW then gave the debit card to another employee. CW had no further contact with defendant. The declined card was given back to defendant, and defendant produced another debit card.

After giving defendant's declined debit card to another employee, CW immediately left the floor and went to an employee-only area, where she told several colleagues what had just happened to her. She did not return to defendant's party for the rest of the evening. A different waitress ("Waitress 2") swiped defendant's debit card at approximately 2:03 am. When defendant received the check a second time, he raised an issue regarding a $13 drink that he did not believe should have been included in the bill. Another waitress ("Waitress 3") discussed the issue with him, told him that she would take care of it, and went back to the register to adjust the bill. The total bill before the adjustment was $825.53, which included a 20% gratuity. After the adjustment, the bill came to $811.23, which still included a 20% gratuity. The defendant signed the adjusted bill and gave it back to Waitress 3. Copies of receipts that show both amounts were provided to the government, as attachments to your letter dated February 21,2011.

III Discovery

A. Documents

Copies of the following documents are enclosed with this letter:

• PD 251

• Detective's WACHS report

B. Evidence

1. Physical Evidence

At trial the government may seek to introduce the physical evidence that is described on the attached police reports and those items listed below. This evidence includes:

• Photographs of the scene, evidence and your client

• Diagrams or maps of the location where the incident occurred

• CreditlDebit card records for the evening in question, and for both of the cards used by the defendant on that evening

• Receipts from the evening in question

In particular, the government has obtained documents from The W's credit card processing company, as well as records from both of defendant's cards (Le., the debit card that was declined, and the debit card that was authorized and ultimately used to pay the bill). These records, which will be produced, show that a debit card owned by the defendant was declined at


approximately 1: 5 8 am on the night in question. They also show that a debit card owned by the defendant was authorized at approximately 2:03 am.

2. Radio Run Information

The govenunent believes there are no recorded communications relevant to this case.

__x_ The government believes that there may be recorded communications relevant to this case. The recording will be provided consistent with the govenunent's obligations under the Jencks Act. Should we determine that we may use the recorded communications as evidence at trial, we will provide you a copy of the tape after we receive it.

3. Identification Evidence

The govenunent is unaware of any identification procedure conducted in this case.

4. Inspection

Upon request, you are entitled to inspect and copy or photograph certain books, papers, documents, photographs, tangible objects, buildings or places that are within the possession, custody or control ofthe govenunent. See Super. Ct. Crim. R. 16(a)(I)(C). If you would like to view any of the evidence listed above or described on the attached police reports, please contact me immediately and we can make arrangements for you, or your certified investigator, to inspect the evidence. These arrangements will include a condition that you not raise any objection to the admissibility of such evidence at trial because of the break in the chain-of-custody occasioned by your inspection.

5. Defendant's Statements

The following information relates to statements made by the defendant to witnesses, and to law enforcement, which the government intends to introduce at trial:

As CW described the incident to her colleagues immediately after it happened, a manager overheard her conversation and began to question her. The manager contacted security. A security agent questioned CW, and then approached defendant, asking to speak privately. Defendant voluntarily agreed to go with the security agent to an unoccupied room to discuss the situation. When the security agent asked defendant whether he remembered having any contact with a female server, defendant responded by saying, "I didn't touch her." Defendant continued, telling the security agent that his server had been "a little black girl," and that he "do[es]n't even like black girls." The security agent told defendant that there was an allegation that he had inappropriately touched a female waitress. Despite the security agent's requests for defendant to stay and speak with the police, defendant left The W.


Hours later, defendant returned to The W. As detectives from the Metropolitan Police ~epartment approached to interview him, defendant spontaneously told them, "I know what this IS about, she IS Just upset 1 have a white girlfriend. I couldn't tell you the last time I dated a black girl. She was trying to get with me." Defendant was unwilling to be interviewed further.

On March 30, 2011, defendant provided a sworn statement to the government, and the government may seek to introduce this statement into evidence.

6. Battle Testimony

The government intends to introduce at trial evidence ofCW's immediate report of the assault to multiple witnesses at The W, pursuant to Battle v. United States, 630 A.2d 211 CD.C.C.A. 1993).

C. Other Crimes Evidence

At this time, the government is unaware of any other crimes evidence, as defined by Drew v. United States, 331 F.2d 85 (D.C. Cir. 1964) and Toliver v. United States, 468 A.2d 958 (D.C. 1983) and their progeny, which we intend to introduce at trial. The government, however, reserves its right to introduce such evidence.

D. Defendant's Rule 16 Statements

Other than what is described above and contained in the enclosed materials, the government is not aware of any statements made by your client to law enforcement officers producible under Rule 16. If the government becomes aware of any such statements, I will notify you in writing.

E. Criminal Record

Please refer to the Pretrial Services Reports that you received at presentment for further information about your clients' records. I will notify you in writing if the government learns of any additional convictions.

F. Government's Discovery Requests

The government hereby makes the following discovery requests:

- notice of documents and tangible objects the defendant expects to introduce pursuant to Super. Ct. Crim. R. 16(b);

- a Jencks request for all prior statements of any defense witness (excluding the


defendant) pursuant to Super. Ct. Crim. R. 26.2;

- a Lewis request (for which we request the name, date of birth, sex, and social security number of each defense witness prior to trial); and

- a request for information pertaining to any expert or scientific testimony or evidence pursuant to Rule 16(b)(l)(B) and (C).

Pursuant to Super. Ct. Crim. R. 16(b)(2), we note our continuing request to receive any material pursuant to Rule 16(b) as the case proceeds.

G. Other Information (Drady/Lewis/GiKlio)

The government is aware of its continuing duty to disclose Brady and Giglio information.

Lewis information for the government's witnesses will be provided to you at the time of trial.

The government reviewed the affidavits that you provided, and interviewed all of the witnesses whose names and contact information you provided. Based upon our continued investigation, we understand that the one person who organized the party remembers a waitress (he thinks that it was the waitress he had been dealing with all evening, but admits that it could have been someone else) handing him the bill in a black billfold. This person did not see the waitress collect payment, and has no personal knowledge of how the bill ultimately was paid.

Another person recalls being present when the bill was presented in a leather portfolio.

This man remembers approaching the defendant with the bill, and defendant removing a darkcolored debit card from his wallet, placing it in the portfolio, and handing it to the waitress, who did not have anything in her hands at the time she received the portfolio. This witness believes that the waitress who brought the bill and collected payment was the same waitress who had been waiting on the private party the entire evening, an African-American female "who appeared to be in her late twenties."

Another person was out of the room when the check was brought to the party. This witness was not present, nor was she in the same room, when defendant agreed to pay the bill. This witness remembers reentering the room and seeing the defendant hand a bill portfolio to a server. This witness was able to give a general description of the waitress that collected payment (i.e., a lighter-skinned African-American female, 5'5"; 5'6", straight dark hair).

Another witness remembers seeing the defendant pull out what he "assumed" was a darkcolored debit card from his wallet. Some time later, this man saw an unidentified waitress hand the defendant a portfolio with a card inside. This witness saw defendant sign the receipt and . return the portfolio to the waitress. This man has a "vague, hazy" memory of the waitress being an African-American woman.



III. Contact Information

If you have any questions about the information provided above, you may contact me by telephone, fax, mail, or e-mail.

AUSA Heide L. Herrmann United States Attorney's Office Room 10-810

555 Fourth Street, N.W. Washington, D.C. 20530





202-305-0652 heide.herrmann@usdoj·20V


RONALD C. MACHEN JR. United States Attorney


Heide L. Herrmann

Assistant United States Attorney

cc: Superior Court Case File (without attachments)