SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA CRIMINAL DIVISION - MISDEMEANOR BRANCH).

~ UNITED STATES OF AMERICA Criminal Case No. 2011-CMD-76~ Senior Judges HI Trial: August 23, 2011

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v.
ALBERT HAYNESWORTH

GOVERNMENT'S MOTION TO EXCLUDE SPECULATIVE

EVIDENCE OF OFFER OF PAYMENT TO WITNESS. AND IN THE ALTERNATIVE, MOTION TO ADMIT EVIDENCE OF OFFER OF PAYMENT TO COMPLAINANT BY DEFENDANT

The United States, by and through its attorney, the United States Attorney for the District of Columbia, respectfully submits this motion to exclude speculative evidence of an offer of payment to a witness, and in the alternative, motion to admit evidence of an offer of payment to the complainant by the defendant. As grounds for this motion, the United States relies upon the following points and authorities, and other such points and authorities as may be cited during a hearing. BACKGROUND ~efendant is charged by indictment with one count of Misdemeanor Sexual Abuse. On June 23, 2011, defense counsel brought to the government's attention an allegation regarding an alleged attempt by an unknown individual to somehow influence the testimony of an eye-witness ("EW") to the charged assault. Specifically, defense counsel originally alleged, based upon conversations with EW, that in April of2011, the complaining witness ("S.K.") had brought a man up to EW at The W Hotel, and introduced him as her attorney. Defense counsel further alleged that this same man offered EW $50,000 to testify on S.K.'s behalf. The government immediately investigated defense counsel's allegations.

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Through its investigation, which consisted of direct conversations with EW under oath; the government has learned that the facts as recounted by EW are significantly different from what defense counsel originally alleged. Based upon the information provided to the government by EW, an unknown man did approach him at work. However, the unknown man came up to EW without S.K., and was never introduced to EW by S.K. According to EW, the unknown man who approached him called him by name and asked for his opinion about "the Haynesworth case." EW did not respond. The unknown man then told EW that it might be "worthIhis]

while't to "help out a certain individual." When EW asked

the unknown man what he was talking about, the unknown man said, "I'm talking about 50K." EW did not respond. The unknown man said, "Think about it," and left the premises. The unknown man did not give EW his name, or any way to contact him. EW has never had any further contact with the unknown man. EW informed the government that, at the time of this incident, EW "assumed" that the unknown man was somehow connected with S.K. EW admitted that this assumption was based solely upon the fact that the unknown man approached him on the same night that he had seen S.K. on the premises with her attorney. EW further admitted, however, that the unknown man never mentioned S.K.'s name, that S.K. did not introduce the unknown man to EW, and that EW simply assumed that the unknown man had something to do with S.K. EW also informed government counsel that when he disclosed this information to the defense in June of2011, one of defendant's attorneys showed him a photograph of S.K.'s attorney. EW told the defense counsel that he was certain that the man in the photograph was not the same person who approached him and offered him money. EW did inform defendant's

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counsel that the man in the photograph was in fact the same person that he saw with S.K. the night that he was approached by the unknown male. The government is not aware of any more evidence indicating that the unknown man was offering money on S.K.'s behalf, than indicating that the unknown man was offering money on Albert Haynesworth's behalf. As such, this evidence is far too speculative and prejudicial and therefore it should not be permitted as evidence at trial. ARGUMENT A. The evidence of the offer of payment is far too speculative and prejudicial and therefore it should not be permitted as evidence at trial.

The following information appears to be undisputed: The unknown man never gave his name, never mentioned S.K. 's name, and never said anything about "testifying" in any particular way or on behalf of any particular person. Given these facts, defense counsel's assertion to this Court that S.K.' s attorney offered EW money "to testify on behalf of Complaining Witness" is unsupported and unconscionable. Defense counsel is assuming, just as EW was assuming. that the unknown man was working on behalfofS.K. simply because S.K:s attorney was at The W Hotel the same night

EW was approached by the unknown male. Indeed, witnesses have informed the government that over the six months that have passed since the assault occurred, various individuals employed by the firm representing defendant (both lawyers and investigators), on numerous occasions, have visited The W Hotel to interact with and watch the witnesses at work. The government would never assume that, just because defense counsel goes to the scene of a crime to investigate, they are engaged in corrupt acts like bribing witnesses on behalf of Albert

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Haynesworth. Nor should defense counsel assume that, because S.K.'s la-wyer went to the scene of a crime on one occasion, he was engaged in such acts on S.K. 's behalf. Not only are defense counsel's assumptions unsupported by the evidence; but they fly in the face of common sense. Defense counsel jumps to the conclusion that the bribe was offered in exchange for EW to testify favorably on S.K.'s behalf. Common sense would lead one to question whether this even makes sense, given that EW cooperated with law enforcement and testified in a way that supported S.K.'s version of events months prior to the alleged bribe being offered. EW's testimony in this case was recorded, under oath, long before he was confronted by the unknown man who offered him a bribe. In short, it would make no sense to bribe someone to do something that they have already done. And it would make even less sense to bribe someone to testify in future proceedings when their testimony has already been taken, under oath, and they can be compelled to testify, by way of a subpoena, in the future proceeding. S.K. had absolutely no incentive to extend a bribe to EW to testify on her behalf. Furthermore, S.K, had no means to extend a $50,000 bribe. It is absurd to think that this young complainant would be willing to guarantee a witness $50,000, regardless of the outcome, when the witness has already cooperated with law enforcement, and that witness's sworn testimony is already locked in. The government submits that evidence of the offer by an unknown man to compensate EW for doing some unknown thing, to help some unknown person, is entirely too speculative to be admissible. The government further submits that defense counsel's assumptions that the unknown man was working on behalf of S.K. fly in the face of common sense. For both these

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reasons, this evidence is far too speculative and prejudicial and therefore it should not be permitted as evidence at trial. B. If defendant is permitted to introduce speculative evidence in an attempt to show that S.K. offered an unknown man money to testify on her behalf. then the government should be permitted to rebut this evidence by introducing concrete evidence that the defendant has made his own offers to exchange money for a dismissal of the criminal case. If this Court concludes that the alleged offer of payment is not far too speculative and prejudicial, and therefore permissible evidence to attack S.K.'s credibility, then the government would seek to rebut this evidence by introducing defendant's attempts, through his attorney, to influence the outcome of this criminal case by offering money to S.K. in exchange for her assisting the defendant in getting the criminal case dismissed. The government is well-aware of the fact that on numerous occasions since the assault took place, defense counsel has approached S.K.'s attorney, offering a sum of money in exchange for S.K.'s assistance in getting the criminal case dismissed (Le., by urging the government to dismiss the case). While it is clear that in the District of Columbia a complainant does not have the power to dismiss a criminal case brought by the United States, this has not stopped the defense from attempting to achieve that end. If defendant is permitted to introduce speculative evidence in an attempt to show that S.K. has offered EW money to testify on her behalf, then the government should be allowed to rebut this evidence by introducing concrete evidence that the defendant has made his own offers to exchange money for a dismissal of the criminal case. The settlement evidence is circumstantial evidence that S.K. was not behind the alleged bribe. For this Court to consider the alleged payoff evidence as evidence impacting on S.K.'s credibility, this Court must first find

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that S.K. was in fact the one that actually orchestrated the bribe. As discussed above, there is no credible evidence that S.K. was the one who sent the unknown man to contact EW. Rather, the only concrete evidence that money has been offered on behalf of a particular party in exchange for impacting the outcome of this criminal case comes from the defense, not S.K. Furthermore, the amount, timing, and S.K.'s interest in the settlement offer would also become relevant circumstantial evidence for determining whether S.K. was behind the bribe attempt. It is the government's understanding that the defense was engaged in ongoing settlement discussions with S.K.'s attorney at the time of the bribe attempt. In fact, the defense continued to attempt to negotiate a settlement even after they learned of the bribe attempt from EW. This information is important because if the settlement amount offered was anywhere close to the alleged bribe amount, and/or S.K. was actually considering accepting the terms of the settlement, then it would make absolutely no sense that she would be attempting to bribe EW at the same time for a similar amount. For the foregoing reasons, if this Court concludes that the alleged offer of payment is not far too speculative and prejudicial, and therefore permissible evidence to attack S.K. 's credibility, then the government would seek to rebut this evidence by introducing evidence of defendant's attemptsto offer money to S.K. in exchange for her assisting the defendant in getting the criminal case dismissed.

C.

If this Court concludes that the speculative evidence is relevant in assessing a potential motive to fabricate by EW. the government would seek to introduce

EW's prior sworn consistent statements as substantive evidence.
If this Court concludes that the offer of payment to EW is admissible only for assessing whether EW has a potential motive to fabricate at trial, the government will seek to introduce

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EW's prior sworn statements as substantive evidence. As discussed above, there is no dispute that the offer of payment to EW took place in June of 20 11. EW testified, however, in front of the grand jury on February 16, 2011, three days after the offense date. There can be no question that EW provided full sworn statements to law enforcement prior to any potential motive to fabricate. As such, if defendant attempts to use the offer of payment to EW on grounds that he has a motive to fabricate as a result of the offer of payment, the government is on strong grounds for introducing his prior sworn statements to rebut the recent motive to fabricate claim. WHEREFORE, for the foregoing reasons, the government asks that the Court exclude speculative evidence of an alleged offer of payment to a witness, or, in the alternative, allow the government to introduce evidence that the defendant has offered to pay the complainant in exchange for a resolution to this case. Respectfully submitted, RONALD C. MACHEN JR. UNITED STATES ATTORNEY

eide L. Herrmann Sharon Donovan Assistant United States Attorneys 555 4th Street, N.W. Washington, D.C. 20530

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that I caused a copy of the Goverrnnent's Motion to Exclude Speculative Evidence of Alleged Offer of Payment to Witness, And in the Alternative, Motion to Admit Evidence of Offer of Payment to Complainant by Defendant, to be sent by electronic mail gust,20ll. to defendant's counsel, A. Scott Bolden, Esq.~~

d:/U

~~

Heide L. Herrmann Assistant United States Attorney

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