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GOVERNMENT’S MEMORANDUM OF LAW REGARDING ANDY PETTITTE’S HGH-BASED DEALINGS WITH BRIAN McNAMEE

GOVERNMENT’S MEMORANDUM OF LAW REGARDING ANDY PETTITTE’S HGH-BASED DEALINGS WITH BRIAN McNAMEE

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Published by Lee Davis
ANDY PETTITTE’S HGH-BASED DEALINGS WITH BRIAN McNAMEE and why the government thinks it is relevant to the Roger Clemens trial
ANDY PETTITTE’S HGH-BASED DEALINGS WITH BRIAN McNAMEE and why the government thinks it is relevant to the Roger Clemens trial

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA v. WILLIAM R. CLEMENS, Defendant. : : : : : : : CRIMINAL NO. 10-223 (RBW)

GOVERNMENT’S MEMORANDUM OF LAW REGARDING ANDY PETTITTE’S HGH-BASED DEALINGS WITH BRIAN McNAMEE The United States of America, by and through its attorney, the United States Attorney for the District of Columbia, respectfully submits this memorandum of law governing testimony regarding Andy Pettitte’s HGH-based dealings with Brain McNamee. PROCEDURAL HISTORY Prior to the first trial date, defendant moved in limine to preclude (among other things) the government from “introducing evidence or making argument regarding Brian McNamee’s conduct and discussions with Chuck Knoblauch, Mike Stanton, Anthony Corso, or any other third-party associated with anabolic steroids or human growth hormone other than Andy Pettitte” (Dkt. No. 54 at 6). The defense specifically excepted Pettitte’s testimony from its objection: Unlike these other third-party witnesses, however, the evidence offered through Mr. Pettitte is likely to be so interrelated to the case against and in defense of Mr. Clemens that precluding it in its entirety would be impractical. Therefore, Mr. Clemens does not intend to object to the introduction of such evidence related to Mr. Pettitte at trial (provided that it meets other admissibility requirements), but Mr. Clemens does seek an order preventing the Government from arguing that the jury should be allowed to infer from such evidence that Mr. McNamee must have (a) provided or injected Mr. Clemens with human growth hormone and (b) told the truth about such dealings with Mr. Clemens because Mr. McNamee provided and injected Mr. Pettitte with human growth hormone and then told the truth about it. (Id. (emphasis added).) On that motion, the Court’s “tentative position” was that the Court was

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inclined to grant defendant’s motion, but the Court reserved any final ruling to see what would “transpire[d] during the trial” (7/5/2011 Tr. 47-48). The Court’s written Order of the same date “ORDERED that the defendant’s motion in limine to preclude introduction of other-witness evidence concerning their interactions and discussions with Brian McNamee is HELD IN ABEYANCE until such time when the government requests that such evidence be presented to the jury.” (7/6/11 Order, Dkt. 76, at 2.) On March 19, 2012, which was the due date the Court set for the filing of motions in limine for the new trial, the defense informed the Court that it did not intend to file any new motions in limine. On April 4, 2012, defendant filed his Response to Government’s Supplemental Trial Memorandum. In that filing, defendant reversed its position with respect to Pettitte’s testimony by–for the first time (and in contravention of its earlier filing)–stating that defendant would object to “any anticipated testimony regarding Mr. McNamee’s ‘assistance’ of Mr. Pettitte’s use of human growth hormone” (Dkt. 109 at 4). At the April 13, 2012, motions hearing, the government raised this issue with the Court. The Court noted that limiting Pettitte from saying who gave him the human growth hormone (“HGH”) “conceivably compromises his credibility” and noted the Court’s willingness to give a limiting instruction (4/13/2012 Tr. 82). Defense counsel argued that the fact that Pettitte had obtained HGH from–and was injected with HGH by–McNamee is not relevant and is unduly prejudicial (id. 81-87). The Court deferred ruling on the issue and, at the government’s request, indicated that it would accept a filing from the government on the matter (id. 88).

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FACTUAL BACKGROUND The government expects the evidence at trial to show, among other things, Pettitte and defendant have both been long term residents of the Houston, Texas area. Defendant is 10 years older than Pettitte and when Pettitte was in high school in the late 1980's, defendant was already established as one of the best pitchers in Major League Baseball. Pettitte had never met defendant but followed defendant's career and held him in extremely high regard as a professional baseball player. In Pettitte's rookie season in 1995, when the New York Yankees were playing the Boston Red Sox, defendant introduced himself to Pettitte before the game. Pettitte was excited to meet defendant and the two talked about their shared backgrounds including their attendance at San Jacinto Junior College. In 1998, McNamee was hired by the Toronto Blue Jays–where defendant was a starting pitcher–as Strength and Conditioning Coordinator. (Pettitte still was playing for the Yankees.) McNamee’s job responsibilities did not involve the provision of medical services to players and McNamee was not authorized to provide players with injections or medications of any kind. McNamee met defendant in or about February 1998 when he joined the organization. In June of 1998, defendant requested McNamee’s assistance with injecting him with anabolic steroids. Defendant provided those steroids and, through the remainder of that summer, McNamee injected defendant numerous times. Following the 1998 season, defendant was traded to the New York Yankees and McNamee remained under contract with the Blue Jays through 1999. In 1999, after defendant was traded to the Yankees, defendant and Pettitte struck up a close personal friendship. Pettitte viewed defendant as a mentor and had deep and abiding respect for defendant's success as a pitcher. Pettitte observed 3

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defendant's exercise and nutrition regimens and sought defendant's counsel on insight into how he could improve his performance. Pettitte was particularly impressed with defendant's physical preparation and the two began working out together in New York and in Texas at defendant's home gym or elsewhere. Pettitte viewed defendant as a close friend and loved him like a brother. During the off season following the 1999 season, defendant paid for McNamee to travel to his home in Houston to work out. Pettitte frequently joined these workouts at defendant's house. Defendant strongly recommended McNamee as a strength and conditioning coach and told Pettitte that he was one of the best. After a short period of time, Pettitte developed great trust in McNamee as a strength and conditioning coach. In or about February 2000 – as a result of defendant’s repeated requests to the Yankees upper level management – the Yankees hired McNamee as assistant strength and conditioning coach. Up until this time, the Yankees employed only one strength and conditioning coach and had never employed anyone as an assistant strength and conditioning coach.1 McNamee’s job responsibilities did not involve the provision of medical services to players and McNamee was not authorized to provide players with injections or medications of any kind. However, in 2000, McNamee provided defendant with and injected defendant with anabolic steroids and HGH numerous times. And, in 2001, McNamee provided defendant with and injected defendant with anabolic steroids numerous times. While McNamee was employed by the Yankees during 2000 and 2001, defendant, Pettitte, and McNamee worked out together frequently, intensely, and lengthily, at Yankee Stadium and on the road.

Since McNamee’s contract was not renewed in 2001, the Yankees have never employed another assistant strength coach. 4

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In 2000 and beyond, defendant and Pettitte continued to work out together under McNamee's direction both in New York and in Houston. The men developed a close working relationship with McNamee. Both Pettitte and defendant thought very highly of McNamee as a strength and conditioning coach. Pettitte thought highly of McNamee as a strength and conditioning coach for two reasons. First, Pettitte thought highly of McNamee because McNamee trained defendant. Second, Pettitte thought highly of McNamee from his personal experience: McNamee pushed Pettitte to new levels as the three men trained together. In addition, Pettitte viewed (and still views) McNamee as a friend. In or about 1999 or 2000, during the off season, McNamee was at defendant’s gym in Houston working out with defendant and Pettitte. During the course of this workout, defendant privately told Pettitte that he had taken human growth hormone and that it helped with recovery. Pettitte had never heard of human growth hormone before this conversation with defendant. Soon after this conversation with defendant, Pettitte approached McNamee and told McNamee that defendant had told Pettitte that defendant had taken human growth hormone.2 McNamee became upset and told Pettitte that defendant should not have told Pettitte about the fact that defendant had used human growth hormone. Pettitte had the impression at that time that McNamee had given human growth hormone to defendant and that was why he raised the subject with McNamee.3

Pettitte also told another individual about this conversation with defendant that is the subject of a separate court order. The government clarifies its oral statement in Court on April 13, 2012, on this fact. 4/13/2012 Tr. 84. Pettitte did not explicitly tell McNamee that defendant told him that defendant had gotten the HGH from McNamee. Rather, as set forth in Pettitte’s deposition testimony, Pettitte inferred this fact from defendant’s discussion of HGH and that was why Pettitte went promptly to McNamee. Deposition of Andrew Pettitte, February 4, 2008, at 23 (Attachment A). 5
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During the 2002 season, Pettitte injured his elbow while pitching for the Yankees and was placed on the disabled list. Pettitte traveled to the Yankees training facility in Florida to rehabilitate. He was frustrated with the injury and flew McNamee to Florida to help him.4 Pettitte was desperate and asked McNamee whether there was anything he could recommend. McNamee advised Pettitte that he understood that HGH helped repair tissue. McNamee tried to persuade Pettitte not to take HGH. Because Pettitte badly wanted to return to the team, he elected to use HGH. McNamee supplied Pettitte with HGH and injected him in a hotel room in Florida with the drug. McNamee originally obtained the drug from Kirk Radomski. McNamee told Pettitte that he had obtained the HGH from his family doctor, but Pettitte knew that neither of them had a prescription for it. For two days, Pettitte received injections of HGH from McNamee. Pettitte stopped at that point because he felt guilty and did not feel comfortable, in part, because all of his previous injections had been administered by a team doctor or trainer. In making his decision to use HGH in 2002, Pettitte “was worried about Andy Pettitte, not about nothing else.” Deposition of Andrew Pettitte, February 4, 2008, at 25 (Attachment A).5

4

In 2002, McNamee was no longer employed by the Yankees and was working privately.

In Pettitte’s deposition before the Committee, in response to a question as to whether Pettitte thought that the 1999 or 2000 conversation where defendant admitted his own HGH use “played any role or motivated [Pettitte] in any way to give it a try,” Pettitte stated: I don’t think so. Because you know it was what, 3 years, a 3-year gap there probably. And you know it was, you know, the only thing that motivated me to use it was Mac telling me that he had heard that it could help repair, you know, tissue in my body. Deposition of Andrew Pettitte, February 4, 2008, at 25 (Attachment A). Pettitte also was asked whether, when Pettitte used in 2002, he remembered the 1999 or 2000 conversation where defendant admitted his own HGH use. Pettitte responded: “You know what, I mean it never even–never even crossed my mind. . . . I mean, I was worried about Andy Pettitte, not about 6

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Pettitte had first heard of HGH from defendant as a drug that helped with recovery, but he did not focus on his 1999 or 2000 conversation with defendant in 2002. Pettitte’s interest in HGH in 2002 was triggered by his discussion with McNamee, who told Pettitte that it could help with tissue repair. Pettitte did not tell defendant that he had used HGH in 2002. In 2004, after defendant’s temporary retirement, McNamee served as Pettitte’s personal strength and conditioning coach. During that year, Pettitte suffered an injury and became desperate to heal himself. Pettitte obtained two syringes of HGH from his father and used HGH for one day. Pettitte did not tell McNamee or defendant about his use in 2004. In March 2005, the House Committee held a hearing on the use of performance enhancing drugs in professional sports. The Committee was very concerned about the use of these drugs by teenage athletes and the impact that professional athletes have on younger people. These hearings were broadcast and covered nationally. Pettitte was aware of these hearings and became worried about what he would say if any reporters asked him whether he had ever taken any performance enhancing drugs. Pettitte discussed his plan to admit his use of HGH to the media, if Pettitte were asked. McNamee told Pettitte to do what he had to do, but noted that Pettitte would get McNamee into trouble. Pettitte’s conversation with McNamee generated a conversation between Pettitte and Clemens. After talking with McNamee, at spring training in Kissemmee, Florida, Pettitte still was very worried about what he would say if he were asked about performance enhancing drug use by a reporter. At the time in 2005, Pettitte and defendant were both playing for the Houston Astros and Pettitte sought defendant’s counsel after Pettitte’s conversation with McNamee. When Pettitte privately asked defendant what he would do if defendant were asked about whether he had used

nothing else.” Id. 7

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performance enhancing drugs, defendant said, “what are you talking about?” Deposition of Andrew Pettitte, February 4, 2008 at 26-27 (Attachment A). Pettitte responded, “well, you had told me you had used HGH.” Id. at 27. And defendant then said, “I never told you that” and “I told you Debbie used HGH.” Id. (Debbie Clemens is defendant’s wife who Pettitte had known for a number of years and knew in 1999 or 2000.) Pettitte told McNamee about this conversation with defendant. Pettitte got the impression that McNamee did not believe defendant’s denial of his HGH use. On October 1, 2006, the Los Angeles Times published a front page story that stated that defendant, Pettitte, and McNamee had been named in a search warrant affidavit of Jason Grimsley’s home.6 The gist of the story was that defendant, Pettitte, and McNamee were associated with performance enhancing drugs. Defendant and Pettitte were called into the manager’s office in the visitor’s clubhouse in Atlanta the day before to advise them that their names would appear in the report. Pettitte issued a public statement in which he denied using any drugs to enhance his performance. Pettitte issued what he knew to be a somewhat misleading statement in order to protect McNamee. In 2007, McNamee was interviewed by, among others, Senator George Mitchell in connection with Major League Baseball’s private investigation into performance enhancing drug use within the sport. In December 2007, after McNamee learned that Senator Mitchell intended to use the names of players in his report on the use of performance enhancing drugs (which naming came as a surprise to McNamee), McNamee began to try to contact Pettitte and Clemens to let them know that they would be so named. McNamee reached Pettitte by phone and asked Pettitte to call

Defendant and Pettitte were not in fact named in this affidavit. McNamee was named. The search warrant was for performance enhancing drugs. 8

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McNamee from a land line (as opposed to the cell phone Pettitte had answered). Pettitte explained that it would be a few hours. Pettitte called his agents–Randy and Alan Hendricks– and told them about the call and they advised Pettitte not to call McNamee back. Both Pettitte and defendant were represented by the Hendricks brothers. McNamee contacted Jim Murray, who worked for the Hendricks brothers, in order to warn Pettitte and defendant that they would be named in the report. At the urging of the Hendricks, Pettitte and defendant hired Rusty Hardin to represent them. McNamee–against the advice of counsel and contrary to instructions by law enforcement–agreed to talk with Hardin’s investigators prior to the release of the report, in order to assist Pettitte and defendant with their ability to respond to the report. McNamee invited those investigators to his home and talked with them about defendant’s and Pettitte’s performance enhancing drug use and what McNamee had (and had not) revealed about that drug use to Senator Mitchell and law enforcement. McNamee even engaged in a discussion about things that might discredit McNamee, all in order to help Pettitte and defendant be ready to better respond to the forthcoming report. Because of their relationships, McNamee wanted to help them prepare and respond as best he could. ARGUMENT Testimony that Pettitte used HGH with the assistance of McNamee–i.e., that McNamee obtained it and that McNamee injected Pettitte with it–is relevant to the issues in this trial and is not unduly prejudicial. Limiting the truthful narrative of Pettitte’s and McNamee’s testimony by forbidding those facts, however, would unduly prejudice the public’s right to a fair trial by compromising the integrity of the government’s narrative and the jury’s ability to assess Pettitte’s credibility and the credibility of other evidence. Accordingly, the defense’s efforts to preclude such 9

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testimony should be denied. I. Testimony regarding Pettitte’s HGH-Based Dealings with McNamee is Relevant. Relevant evidence is anything having “any tendency to make a fact [of consequence] more or less probable than it would be without the evidence.” Fed. R. Evid. 401. When it comes to questions of relevance, “‘[a] brick is not a wall,’” and evidence need not be “conclusive” in order to be relevant. United States v. Foster, 986 F.2d 541, 545 (D.C. Cir. 1993). Even if the evidence would not by itself suffice to show defendant’s guilt, the fact that it assists the jury in determining a matter of consequence is sufficient to show relevance. Defendant’s claim of irrelevance under Rule 401 fails. Pettitte and McNamee should be permitted to testify as to where Pettitte obtained HGH from and how he was injected because it is relevant to Pettitte’s credibility.7 Cf. United States v. Renteria,
7

There can be no doubt that Pettitte’s credibility is at issue here. For example, the defense argued at the hearing that “[if] that revelation in 1999 or 2000 was so significant, as counsel describes, the first thing Andy Pettitte would have done, he's described Roger Clemens is like a brother to me, an older brother. The first thing he would have is asked Mr. Clemens, should I do this.” (4/13/2012 Tr. 87.) Defendant made the same assertion multiple times to the Committee, for example he stated at his deposition: But I know for a fact as close as Andy was, if I knew – again, I’ll state it again. If he was –if I had told Andy that I was using HGH, he would have asked me before he had done it. And after he did it, he would have told me. I had no knowledge. Deposition of William R. Clemens, February 5, 2008, at 173 (Attachment B); see also Hearing: The Mitchell Report: The Illegal Use of Steroids in Major League Baseball, Day Two, February 13, 2008, at 87-89 (Attachment C). To be clear, these arguments are accusations of fabrication by Pettitte. If, as defense has previously stated, the defense were only pursuing the theory that Pettitte “misheard” (7/5/2011 Tr. 29), then this argument would not exist. Because, if Pettitte “misheard” defendant tell Pettitte that defendant had used HGH, then based on his faulty hearing Pettitte would have been under the same impression that forms the basis of the defense arguments: that defendant had told Pettitte about defendant’s HGH use. In that case, under the 10

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106 F.3d 765, 767 (7th Cir.1997) (In the context of plea agreements, including the truthfulness provisions, prosecutors are permitted to introduce them on direct because prosecutor “ought to be able to extract the complete testimony of his witness, including the essential circumstances bearing on its believability, rather than forced to leave gaping holes to be poked at by his opponent.” (internal quotations and citation omitted)); United States v. Vandetti, 623 F.2d 1144, 1150 (6th Cir.1980) (stating that “the credibility of a witness is always relevant”); United States v. Liddy, 509 F.2d 428, 440 (D.C. Cir. 1974) (Trial judge “may well have concluded that the evidence regarding [witness’s] relationship with the prosecutors and the more detailed development of matters raised in previous testimony [on direct] would better equip the jury to digest the substance of [witness’s] testimony, to assess its bearing on [witness’s] credibility, and to appraise the weight the evidence should be accorded.”). As this Court recognized at the hearing, limiting Pettitte from testifying as to who supplied him with the HGH that he will admit he took by way of injection, “conceivably compromises his credibility,” and the jury may say “this guy is not to be believed” (4/13/2012 Tr. 82). The Court suggested that a limiting instruction would be the proper way to address any concerns (id.). Limiting the relevant witness testimony, on the other hand, would leave a hole in his truthful narrative and prejudice the government. Pettitte and McNamee should be permitted to testify to the fact that Pettitte obtained HGH from McNamee and was injected with it by McNamee. This fact is what caused Pettitte, in 2005 around the time of the Committee’s hearing, to reach out to McNamee to discuss Pettitte’s plan to admit his use to the media, if he were asked. McNamee tells Pettitte to do what he has to do, but

defense’s logic, assuming Pettitte “misheard,” “the first thing Andy Pettitte would have done . . . is ask[] Mr. Clemens, should I do this” (4/13/2012 Tr. 87). 11

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notes that Pettitte will get McNamee in trouble as a result. That conversation triggers a subsequent conversation between Pettitte and defendant. Pettitte remained worried about what he would say if asked whether he had ever used performance enhancing drugs, especially because he knew if he were honest it likely would result in identification of McNamee as his supplier. This generated a conversation with defendant, in which Pettitte sought defendant’s counsel and asked defendant what he would say to the media, if defendant were asked about whether he had used performance enhancing drugs. Defendant denied ever telling Pettitte that he had used HGH. Defendant told Pettitte that Pettitte had misunderstood defendant and that defendant had told Pettitte that defendant’s wife, Debbie, had used HGH. The fact that McNamee supplied Pettitte with HGH is directly relevant because it was the cause of his conversation with McNamee that then triggers Pettitte’s 2005 conversation with defendant regarding defendant’s use of HGH. Pettitte and McNamee should be permitted to testify that Pettitte obtained HGH from McNamee and McNamee injected Pettitte with that HGH because it is relevant to the narrative regarding the relationship among these men. And it is particularly relevant to why McNamee took the steps he did in reaching out to Jim Murray and speaking at length to defense investigators–working on behalf of both Pettitte and defendant, because they were both represented by Hardin–in an attempt to warn Pettitte and defendant regarding the allegations in the Mitchell report. McNamee’s motivation to help both men–with whom (as described above) he had become close with over the 9-year period that they had trained together–is inextricably intertwined. Precluding the fact that McNamee supplied Pettitte with HGH and assisted Pettitte by injecting him with it would make these interactions nonsensical. Precluding altogether that McNamee was concerned about Pettitte because of McNamee’s assistance to Pettitte in his HGH use would provide 12

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a completely distorted view of why McNamee behaved the way he did prior to the release of the Mitchell report. This especially is true in light of the fact that there is evidence that, in 2006, Pettitte sought to protect McNamee and issued a misleading statement to the press. There is no evidence that defendant ever sought to protect McNamee. Finally, Pettitte and McNamee should be permitted to testify as to where Pettitte obtained the HGH from and how he was injected because it corroborates that Pettitte had this 1999 or 2000 conversation with defendant in which defendant admitted his own HGH use. Although Pettitte indicated in his deposition that he only was focused on his injury at the time of his own use in 2002, it is critical to note that Pettitte obtained the HGH from the man that he had met through defendant, a man that he had grown to trust in large part because of defendant, and the same man that Pettitte originally assumed had provided defendant with HGH after defendant admitted his own use to Pettitte in 1999 or 2000. A reasonable inference from the evidence will be that Pettitte was willing to engage in this behavior in part because his friend and mentor that he loved and admired–this remarkable pitcher, Roger Clemens–previously had told Pettitte that Clemens took HGH and it was good for recovery. It will be a reasonable inference from the evidence that, even if it was only on a subconscious level, Pettitte’s decision to use HGH with the assistance of McNamee was informed by his discussion of the drug with defendant, making it more probable that the 1999 or 2000 admission to HGH use by defendant in fact occurred as Pettitte recalls it. The defense is of course free to argue the opposite based on Pettitte’s testimony to the contrary and then it will be up to the jury to decide whether the logical inference that this information informed Pettitte’s state of mind is more persuasive. See, e.g., United States v. Josephberg, 562 F.3d 478, 487 (2d Cir. 2009) (“The assessment of witness credibility lies solely within the province of the jury, and the jury is free to 13

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believe part and disbelieve part of any witness's testimony.”); United States v. Carson, 455 F.3d 336, 368-69 (D.C. Cir. 2006) (jury has a right “to determine credibility, weigh the evidence, and draw justifiable inferences of fact”). Cf. United States v. Toms, 136 F.3d 176, 183 (D.C. Cir. 1998) (“To be sure, the jury is free to discredit any witness before it on the stand and even to believe the exact opposite of the matter to which the witness has testified.”) In short, the defense was correct last summer when it wrote that “the evidence offered through Mr. Pettitte is likely to be so interrelated to the case against and in defense of Mr. Clemens that precluding it in its entirety would be impractical.” (Dkt. 54 at 6.) It is “so interrelated” to the case because it is relevant. II. Testimony regarding Pettitte’s HGH-Based Dealings with McNamee is not Unduly Prejudicial. As the Court is well aware, relevant evidence is admissible under Rule 403, unless the probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Fed. R. Evid. 403. Defendant’s claim that testimony regarding Pettitte’s HGH-based dealings with McNamee should be excluded under Rule 403 likewise fails. Here, the probative value is not substantially outweighed by the dangers described in Rule 403 and, in particular, of unfair prejudice. Defendant suggests that the perils of guilt by association should cause the Court to exclude this testimony. Not so. Assuming arguendo the Court were to exclude it (which the Court should not), the separate facts that Pettitte used HGH and that McNamee had access to HGH would still be before the jury through other testimony. The fact that McNamee assisted Pettitte’s use would not substantially add to any potential danger of guilt by association.

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And it certainly would not rise to the level of substantially more prejudicial than probative. The potential for unfair prejudice in this circumstance is far less than, for example, in cases where evidence that a defendant associated with a gang is at issue, which is an area where courts take care to assure that guilt is not imputed by association. See, e.g., United States v. McKay, 431 F.3d 1085, 1093 (8th Cir. 2005) (“While evidence of gang membership is admissible if relevant to a disputed issue, . . . gang affiliation evidence is not admissible where it is meant merely to prejudice the defendant or prove his guilt by association with unsavory characters . . . .” (internal citations and quotation marks omitted)). Yet, even evidence of gang activity is not so unfairly prejudicial as to outweigh the evidence’s probative value in some contexts. See, e.g., United States v. Sargent, 98 F.3d 325, 328-29 (7th Cir. 1996) (holding that district court did not abuse its discretion in admitting gang-membership evidence where the government argued that the defendant acted on behalf of his gang in making the gun purchases at issue); see also United States v. Abel, 469 U.S. 45, 54-56 (1984) (holding no abuse of discretion under Rule 403 in admitting witness’s testimony as to description of the prison gang and its tenets, because the type of organization in which a witness and a party share membership may be relevant to show bias and noting that, while the precautions taken by district court (including a limiting instruction) did not prevent all prejudice to defendant from witness’s impeachment testimony, they did “ensure that the admission of this highly probative evidence did not unduly prejudice” defendant); United States v. Montgomery, 390 F.3d 1013, 101819 (7th Cir. 2004) (“The probative value of this evidence [of Montgomery’s gang membership] in establishing why Montgomery might have carried a weapon at the festival substantially exceeded its prejudicial impact.”). And the danger of prejudice of evidence that is so intertwined with the narrative of the crime 15

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here is far less than, for example, evidence in a distribution case that a user suffered a fatal overdose. Yet, the U.S. Court of Appeals for the Second Circuit held that because the evidence of the fatal overdose was relevant to whether that defendant distributed drugs, the probative value was not substantially outweighed by the danger of undue prejudice. United States v. Birbal, 62 F.3d 456, 463-64 (2d Cir. 1995). The evidence at issue here is inextricably intertwined, or to use the defense’s language it is “so interrelated” (Dkt. 54 at 6.), to the matters in this trial and the evidence is not unduly prejudicial. And the Court’s suggestion (at 82) that the Court could provide a limiting instruction is the right way to handle any potential for prejudice. Excluding this relevant testimony would compromise the integrity of the government’s narrative and the jury’s ability to assess Pettitte’s credibility and the credibility of other evidence.

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CONCLUSION Accordingly, the government respectfully requests that the Court deny the defendant's attempt (by way of the Defendant's Response to Government's Supplemental Trial Memorandum) to exclude testimony regarding Andy Pettitte's HGH-based dealings with Brain McNamee. Respectfully Submitted, RONALD C. MACHEN JR. UNITED STATES ATTORNEY D.C. Bar # 447889 By: /s/ STEVEN J. DURHAM D.C. Bar # 993780 DANIEL P. BUTLER D.C. Bar # 417718 DAVID B. GOODHAND D.C. Bar # 438844 GILBERTO GUERRERO, JR. KS Bar # 19271 COURTNEY G. SALESKI DC Bar # 496744 Assistant United States Attorneys 555 Fourth Street, N.W. Washington, D.C. 20530 (202) 252-7862/(202) 252-7881

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