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Case 4:04-cr-00025 Document 628 Filed in TXSD on 01/09/06 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

UNITED STATES OF AMERICA
v.
RICHARD A. CAUSEY, JEFFREY K.
SKILLING, and KENNETH L. LAY

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CRIMINAL NUMBER H-04-025-SS

MEMORANDUM OPINION AND ORDER

Defendants have filed a Joint Motion to Dismiss, or for
alternative relief, based on prosecutorial misconduct together with
a number of declarations and exhibits in support of the motion
(Docket Entry No. 440). The government has filed an Opposition
with declarations and exhibits of its own (Docket Entry No. 491).
Defendants have filed a Reply Memorandum with additional exhibits
and supplemental declarations (Docket Entry No. 504).

The Sixth Amendment to the United States Constitution
guarantees a criminal defendant “the right to present witnesses ‘to
establish his defense without fear of retaliation against the
witness by the government.’” United States v. Bieganowski, 313
F.3d 264, 291 (5th Cir. 2002). Likewise, “the Fifth Amendment
protects the defendant from improper governmental interference with
his defense.” Id.

Case 4:04-cr-00025 Document 628 Filed in TXSD on 01/09/06 Page 2 of 6

“To make a showing that the government has infringed on
[these] right[s], the defendant must show that ‘the government’s
conduct interfered substantially with a witness’s free and
unhampered choice to testify.’” United States v. Thompson, 130
F.3d 676, 686 (5th Cir. 1997). Defendants bear the burden of
proving, by a preponderance of the evidence, that the government
substantially interfered with their access to witnesses by improper
conduct that deprived defendants of access to witnesses or
prevented the witnesses from testifying. United States v.
Scroggins, 379 F.3d 233, 239 (5th Cir. 2004); United States v.
Hatch, 926 F.2d 387, 395 (5th Cir. 1991). If the government’s
actions do not affect the witness’s decision, there is no violation
of due process. United States v. Viera, 839 F.2d 1113, 1115 (5th
Cir. 1988). Likewise, “[n]o right of a defendant is violated when
a potential witness freely chooses not to talk [to defense
counsel].” In re United States, 878 F.2d 153, 157 (5th Cir. 1989).
Unlike many of the cases cited by defendants, the alleged
conduct of the government in this case does not involve secreting
potential witnesses so that the defendants cannot subpoena them for
trial. The crux of the defendants’ motion is that the government
has pressured potential witnesses not to talk to defendants’
attorneys before trial. To support these allegations defendants
rely primarily on affidavits from their own attorneys about
conversations they had with counsel for a number of potential

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witnesses. Hearsay statements of what various attorneys allegedly
told defense counsel are not admissible as evidence. Affidavits or
sworn declarations of attorneys for witnesses are admissible. They
are not relevant, however, unless they contain evidence that
government representatives sought to deter witnesses from
communicating with defense counsel and evidence that the actions of
the government affected the witnesses’ decisions not to speak with
defense counsel.

Based on the parties’ submissions the court concluded that
defendants had raised possible fact issues concerning several
potential witnesses who refused to speak to defense counsel. Those
witnesses are represented by attorneys Wendell Odom and Robert J.
Sussman. On December 1, 2005, the court held an evidentiary
hearing. Counsel and the court questioned Mr. Odom to determine
whether the statements attributed to an FBI agent affected
Mr. Odom’s recommendations to his client, Michael Anderson, about
speaking with defense counsel. After hearing this testimony the
court concluded that defendants had not established by a
preponderance of the evidence that the government substantially
interfered with the ability of defense counsel to interview
Mr. Anderson. Counsel and the court also questioned Mr. Sussman
concerning recommendations to his clients, Larry Lawyer, Rodney
Faldyn, and Wade Stubblefield, about speaking with defense counsel.
After hearing this testimony the court concluded that defendants

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Case 4:04-cr-00025 Document 628 Filed in TXSD on 01/09/06 Page 4 of 6

had not established by a preponderance of the evidence that the
government substantially interfered with the ability of defense
counsel to interview Mr. Sussman’s clients.

Having considered all of the evidence and the parties’
arguments the court is persuaded that defendants’ motion should be
denied for two reasons. First, there is no credible evidence to
support defendants’ allegations that the government has
substantially interfered with witnesses’ decisions not to meet with
defense counsel.

Second, to the extent any of the attorneys for potential
witnesses had concerns about government retribution if their
clients discussed the case with defense counsel, the court has
sought to address those concerns. On May 27, 2005, the court
entered an Order stating that all counsel may seek to contact and
interview witnesses before trial, and that the decision of any
witness whether to talk to an attorney or representative of any
party is entirely up to the witness, and that should a witness
provide information or assistance to defense counsel, the
government will not view that witness’s decision to cooperate as
any lack of cooperation with the government, and the government
will not use such cooperation with defense counsel as a basis for
decisions regarding prosecution. (Docket Entry No. 351)

On September 14, 2005, the court wrote letters to counsel for

a number of potential witnesses, some of whom defense counsel

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Case 4:04-cr-00025 Document 628 Filed in TXSD on 01/09/06 Page 5 of 6

contended were fearful of talking with defense counsel because of
concern about government retribution, and some of whom had merely
failed to respond to initiatives from defense counsel. In these
letters the court reiterated the contents of its May 27, 2005,
Order. The court also informed each counsel of the following
additional representations made by the government:

[The court has] been informed by the government
that if you wish to speak with defense counsel:
(i) you need not seek permission from the government or
notify them about the meetings; (ii) you have the
government’s consent to meet with the defense to the
extent such consent is required by any agreement you
may have with the government; (iii) you are free to
discuss whatever you choose to discuss, whether or not
you have any agreement with the government limiting
what information may be shared with third parties; and
(iv) you are free to agree to testify on defendants’
behalf at trial.

The court concluded each letter by stating:

Finally, if you believe it would help you decide
whether to meet with defense counsel or testify on
their behalf at trial, I am willing to meet with you,
along with representatives of all parties, to address
any concerns about speaking to the defense in this
case.
The attorneys who received the court’s letter were requested
to respond by indicating whether their clients wished to meet with
defense counsel, refused to meet with defense counsel, or wished to
discuss the matter with the court. In response to the court’s
letter no witness or attorney requested to discuss the matter with
the court. The court concludes that even if there were a fear by
counsel for potential witnesses, or by the witnesses themselves,

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Case 4:04-cr-00025 Document 628 Filed in TXSD on 01/09/06 Page 6 of 6

that the witnesses could face retribution from the government if
they spoke with defense counsel, the court has remedied any harm to
defendants by the measures the court has taken to reassure
potential witnesses and their attorneys.

The court is not persuaded that defendants have shown by a
preponderance of the evidence that the government has substantially
interfered with the ability of defense counsel to interview
potential witnesses, or that the government has engaged in any
practice that denies defendants the right to a fair trial.
Accordingly, defendants’ Joint Motion to Dismiss (Docket Entry
No. 440) is DENIED.

SIGNED at Houston, Texas, on this 9th day of January, 2006.

____________________________
SIM LAKE
UNITED STATES DISTRICT JUDGE

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