IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 1 of 31 PageID #:4493 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION UNITED STATES OF AMERICA ) ) vs. ) No. 08 CR 888 ) Honorable James B. Zagel ROD BLAGOJEVICH ) DEFENDANT ROD BLAGOJEVICH S MOTION FOR JUDGMENT OF ACQUITTAL, ARREST OF JUDGMENT OR NEW TRIAL Defendant ROD BLAGOJEVICH, by his attorneys, pursuant to this Court s order extending time to file post trial motions, as well as Rules 29(c), 33, and 34 of the Federal Rules of Criminal Procedure, respectfully moves this Honorable Court to enter judgment of acquittal, arrest judgment or grant a new trial. In support thereof, Defendant states as follows: I. Introduction Rod Blagojevich is not guilty of making a false statement. A review of the testimony of the witnesses, along with the FBI 302 from the March 16, 2005 interview demonstrates that Rod Blagojevich was not lying, nor was the alleged statement material to the FBI. Rather, the false statement conviction on Count 24 was obtained by the government as a result of an unfair trial, improper objections and the prevention of the defense from engaging in meaningful cross examination. Compounding the error is that Blagojevich s Fifth and Sixth Amendment rights were violated this Court should have granted Blagojevich s pre-trial Motion to 1

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 2 of 31 PageID #:4494 Dismiss Count 24. The appropriate remedy is to set aside the jury s verdict on Count 24 and enter judgment of acquittal. This post-trial motion will not repeat each and every argument, objection and/or ruling made during the pendency of the trial. However, before, during and after trial, Blagojevich filed numerous motions, made objections and raised many legal arguments and issues. Blagojevich does not waive nor abandon any of the arguments or objections previously made. Moreover, Blagojevich expressly preserves and reasserts all such arguments here. Blagojevich hereby adopts and incorporates by reference all objections and arguments made during the pendency of this case, at trial, and at all times relevant to this matter, including those made in writing and orally. Additionally, Blagojevich adopts and incorporates by reference any objections and/or argument made by his (previous) co-defendant, Robert Blagojevich. Additionally, as of the time of this filing, the defendant s status under the Criminal Justice Act is undetermined. Prior to the end of trial, defendant s fund from which his legal fees were paid was depleted, and as a result, Blagojevich has not been able to procure copies of the official transcripts from trial. Counsel is in receipt of partial unofficial transcripts of testimony of a number of witnesses (including Special Agent Patrick Murphy) but not others (including Kelly Glynn and Danielle Stilz). Counsel is also not in possession of transcripts from all arguments made in open court. As a result, counsel submits the instant motion without the benefit of reviewing all of the official transcripts. Counsel does not waive nor 2

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 3 of 31 PageID #:4495 abandon any arguments that may be derived from the review of transcripts and the omission of any specific citations or quotations does not indicate waiver or abandonment of any issues. Additionally, counsel asks leave of this Court to supplement this motion, if further clarification is required. Also, worth noting is that because of the fact that counsel has the unofficial transcripts only from certain witnesses, references and citations to the trial are made with the best accuracy possible. The jury convicted Rod Blagojevich of one (1) out of twenty-four (24) counts (finding him guilty of making one of the two alleged false statements). Count 24 of the second superseding indictment charged Blagojevich with violating 18 U.S.C. 1001(a)(2), alleging that on March 16, 2005, Blagojevich made the following allegedly false statements to the FBI: Since the time he became governor, i. Rod Blagojevich has tried to maintain a firewall between politics and government; and ii. Rod Blagojevich does not track, or want to know, who contributes or how much they are contributing to him. At the close of the government s case, after arguments on Blagojevich s Motion for Judgment of Acquittal, the Court ruled that the verdict form for Count 24 was to be divided wherein the jury would have to make a finding on each statement individually. Defense counsel objected to the Court s ruling. Ultimately, the verdict form that was sent back, along with the instructions to the jury stated 3

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 4 of 31 PageID #:4496 that Blagojevich was charged with making a false statement rather than making false statements as alleged in the indictment. The jury ultimately found Blagojevich guilty of Count 24, based on a finding that he committed the latter false statement ( Rod Blagojevich does not track, or want to know, who contributes or how much they are contributing to him. ) The jury did not find that he made the first alleged false statement (the firewall statement). The conviction in this case is not legally sound. The indictment was defective, and count 24 should have been dismissed pre-trial. Even after the presentation of evidence and testimony at trial, there is insufficient evidence to find the elements beyond a reasonable doubt. This court should enter judgment of acquittal. II. This Conviction Was Obtained As A Result of Improper Tactics and Misconduct By Government Prosecutors Defense counsel would be remiss not to address the fact that this prosecution has been tainted by misconduct and questionable ethical standards from day one. The environment in which Blagojevich was tried could not possibly have resulted in a fair trial. There is, of course, the oft-quoted press conference by U.S. Attorney Patrick Fitzgerald, where the U.S. Attorney violated his own position and ethical standards by eroding the presumption of innocence and tainting the jury pool. Even prior to that, however, the investigation conducted by the FBI and the U.S. Attorney s Office demonstrates a willingness to win this case at any cost with an utter disregard for the special duties of the prosecutors. The U.S. Attorney s office 4

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 5 of 31 PageID #:4497 engaged in unethical tactics including putting undue pressure on potential witnesses. One egregious example is evinced in the letter from Tony Rezko to his trial and sentencing judge, Hon. Judge St. Eve, where he pleaded: Your Honor, the prosecutors have been overzealous in pursuing a crime that never happened. The [prosecutors] are pressuring me to tell them the wrong things that I supposedly know about Governor Blagojevich and Senator Obama. I have never been party to any wrongdoing that involved the Governor or the Senator. I will never fabricate lies about anyone else for selfish purposes. I will take what comes my way, but I will never hurt innocent people. I am not Levine, Loren, Mahru, or Winter. I am simply an honest, humble immigrant who believes in the American dream. June 9, 2008 Letter, United States v. Antoin Rezko, 05 CR 691, Publicly filed document number 571 (emphasis added). Additionally, the FBI had over 170 agents out the morning of Blagojevich s arrest knocking on doors, frightening (in the words of Gerald Krozel) individuals into providing incriminating information on Blagojevich. Numerous witnesses originally alleged no wrongdoing by Blagojevich only to change their story after subsequent interviews by the FBI/government. The very manner in which prosecutors brought this case to trial before the Court was dishonest, improper and constituted judge-shopping. It kick-started the prosecutors win-at-any-cost tactics. Instead of seeking a grand jury indictment to begin with, the government arrested Blagojevich, a sitting Governor, in his home early in the morning while his young daughter slept beside him. The indictment came later and, as described in the Motion for Judgment of Acquittal at the close of 5

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 6 of 31 PageID #:4498 the government s case, the tunnel vision began whereby the government sought to fit any round peg into any square hole it could find. Serious questions should be asked by this Court (and the defense would urge an investigation into) why Blagojevich was arrested on December 9, 2008 days from making an announcement on the Senate appointment. If the crime spree was occurring, why was Jesse Jackson, Jr. never implicated in any wrongdoing? What political appointment regarding Madigan and the new Obama administration was thwarted by federal prosecutors? When the government indicted Blagojevich, it joined Blagojevich as a codefendant with William Cellini, whose case was already before this Court. The rationale for joining Blagojevich s case with Cellini s rings hollow. In an unheard-of move, the government then joined in the motion with Cellini s counsel and agreed to a severance. Cellini s trial was then continued multiple times while Blagojevich was forced to trial without any continuances despite necessary requests for additional time. Even after counsel for Blagojevich was tendered an initial batch of discovery including over 9 Million pages of documents and 5000 session recordings comprising hundreds of hours of calls, Blagojevich s request for a continuance was denied. Cellini s case, with a mere fraction of the amount of discovery, was continued to 2011 and has yet to be held to trial. Later, when Blagojevich sought a continuance to await the honest services ruling, this was opposed by the government (even though the vast majority of jurisdictions around the country in similar positions represented by the DOJ in 6

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 7 of 31 PageID #:4499 most instances took similar positions to Blagojevich) and rejected by the Court. In fact, the government prosecutors opposed a short continuance before even reading and/or analyzing the Skilling decision which was handed down by the Supreme Court mere minutes before 9 A.M. on a trial day. The Court denied Blagojevich s request for a short stay after the government rested its case after only 5 weeks despite the disadvantage to the defense caused by the government s misrepresentation that its case would last 4 months. It is also clear that the government s trial strategy was to simply object to the defense at any possible opportunity. The court s sanctioning of this obstructionist tactic prejudiced Blagojevich greatly. It prevented the defense from being able to engage in meaningful cross-examination. Moreover, during closing argument, the government s objections (the vast majority of them completely baseless) amounted to three dozen interruptions. The prohibition on any inferences in the defense closing argument about the witnesses not called by the government including Tony Rezko, Stuart Levine, Rahm Emanuel, etc., tolled the defendant s presumption of innocence. These witnesses were directly implicated in the government s case-in-chief, their photos were shown and scores of witnesses testified about these individuals. The court s ruling shifted the burden on the defendant and resulted in prejudice. The prosecutors win-at-any-cost mentality continues right up to the present. In fact, the very night before the government dismissed the charges against codefendant Robert Blagojevich, one of the lead trial prosecutors contacted counsel for 7

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 8 of 31 PageID #:4500 Robert and tried to make a deal. (See news report at http://www.suntimes.com/ news/metro/ blagojevich/2641284,rob-blagojevich-rejects-seperate-retrial- 082610.article). The prosecutor told Robert s lawyer that if Robert was interested in a severance, the government would agree to it, so long as Robert agreed to be retried after Rod. Counsel for Robert did not agree to this and the next morning in open court, the charges against Robert were dropped. It is an outrage that the U.S. Attorney s Office is so focused on winning this case that it abdicates its duty under the Rules of Professional Responsibility and used a federal indictment against Robert as a pawn in the prosecution of Rod. This environment prevented Rod Blagojevich from receiving a fair trial and resulted in an erroneous conviction. III. This Conviction Violates Blagojevich s Due Process Rights Initially, the indictment charged Blagojevich with making false statements yet the jury instructions/verdict form stated making a false statement. For the Court to instruct the jury that only one statement need be false in order to convict when the indictment notified Blagojevich that both statements would have to be false in order to convict failed to provide Blagojevich with sufficient notice to defend against the charge. It was in error. The United States Constitution affords a defendant the right to be fully informed as to the nature and cause of the accusations against him. U.S. Const. Amend. VI. Moreover, it is a basic principle of due process that fundamental in the law of criminal procedure [is] that the accused must be apprised by the 8

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 9 of 31 PageID #:4501 indictment, with reasonable certainty, of the nature of the accusation against him, to the end that he may prepare his defense, and plead the judgment as a bar to any subsequent prosecution for the same offence. An indictment not so framed is defective, although it may follow the language of the statute. United States v. Simmons, 96 U.S. 360, 362 (1877). Allegations within the indictment that are vague, uncertain or ambiguous do not comport with due process requirements. See Hamling v. United States, 418 U.S. 87, 117 (1974), citing United States v. Carll, 105 U.S. 611, 612 (1882) (an indictment must fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished. ) The alleged false statement is fundamentally ambiguous. A fundamental ambiguity is not a phrase with a meaning about which men of ordinary intellect could agree, nor one which could be used with mutual understanding by a questioner and answerer unless it were defined at the time it were sought and offered as testimony. United States v. Jamal, 246 Fed. Appx. 351 (6th Cir. 2007). There is a reasonable variance on what the phrase means the words, track ; want to ; and or frustrate any clear understanding of this phrase. This is particularly true in light of the evidence at trial that Blagojevich actually had employees at FOB whose very job it was to track fundraising. Absent Blagojevich s definition of track or want to being obtained by the questioners, there is no clear understanding of the phrase. 9

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 10 of 31 PageID #:4502 Moreover, the government omitted the first part of the sentence that appears in the FBI 302 He noted that when he attends his events he becomes aware of some of those who are supporting him, but he does not track, or want to know, who is contributing or how much they are contributing to him. (Discussed infra, at Sec. IV of this motion). The Seventh Circuit has held that a disjunctive allegation renders the indictment wholly insufficient. In United States v. Donovan, 339 F.2d 404, 408 (7th Cir. 1964), the Circuit Court found that [i]t is clear that an indictment which charges the accused, in the disjunctive, with being guilty of one or of another of several offenses, is destitute of the necessary certainty, and is wholly insufficient. It does not give the accused definite notice of the offense charged, and thus enable him to defend himself. Even taking solely the portion relied upon by the government, it is unknown what was meant by the compound phrasing (... does not track or know or want to know who contributes to him or how much they contribute. ) Additionally, because of the disjunctive nature of the phrase, it is unknown which part(s) did the jury find to be knowingly false? Was the jury unanimous? No one knows. This is problematic and cannot stand as a conviction. Such a low standard renders it impossible to defend against this allegation. The constitutional guarantee of unanimity is lacking and the conviction must be reversed. See Richardson v. United States, 526 U.S. 813, 817 (1999), citing Andres v. United States, 333 U.S. 740, 748 (1948)); see also, United States v. Beros, 10

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 11 of 31 PageID #:4503 833 F.2d 455, 460 (3d Cir. 1987)(general unanimity instructions are insufficient where the complexity of the case, or other factors, creates the potential that the jury will be confused ). An additional major problem with the prosecution of this false statement charge was that there was never proper notice to Blagojevich because the government has no record of what was said verbatim. Moreover, the government even took the liberty of editing the statement as it was reported in the 302 report by omitting the first portion. With no transcript and no verbatim language, the government took liberties and attempted to cater the evidence to suit its theory of the case. One example was Agent Murphy improperly giving the jury the impression that Blagojevich specifically defined politics as fundraising when no such question was ever asked at the interview. Rather, Murphy interpreted Blagojevich s words and wrote politics = fundraising in his notes but this notation did not make it into the final 302 report. The Court erroneously overruled Blagojevich s objection to the introduction of the statement during the testimony of Agent Murphy. During the direct examination, the following colloquy occurred: Q What did Defendant Blagojevich say with respect to whether he or others were soliciting contributions in exchange for that kind of state work? MR. S. ADAM, JR.: THE COURT: MR. S. ADAM, JR.: Objection. May we have a sidebar? This is your one. The last one I called, so it doesn t count against you. You want it? If I may, your Honor. 11

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 12 of 31 PageID #:4504 * * * (Proceedings heard at sidebar on the record.) THE COURT: MS. HAMILTON: THE COURT: MR. S. ADAM, JR.: MS. HAMILTON: THE COURT: MR. S. ADAM, JR.: First the government will tell me its purpose. I m trying to get to the actual charged statements that were made, and one of the things that I need to establish is that the statements that he made were, in fact, material to the investigation. So I m trying to tie it back to -- All right. That s where I thought you were going. I just wanted to make sure. Now... My objection to this, Your Honor, is, they have to elicit the exact words that he said. To do it in a general form, this is unlike any other thing that we have had so far. He is charged with actual lying, this is synonymous to a perjury charge, and he should not be allowed to give a general statement as what the government is saying, it has to be specific and word for word what he said. If you want me to lead and ask did he say the following statements? I mean, I m obviously trying not to lead, and so that s why I asked it as an open-ended question. If you want me to go just Stop. You are better off with the open-ended question. The objection is overruled. Yes, Your Honor. (Proceedings resumed within the hearing of the jury.) 12

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 13 of 31 PageID #:4505 In addition, it is worth noting that the indictment under which this case was prosecuted was obtained approximately one month prior to the expiration of the statute of limitations on the false statement charge. The statute of limitations on a 1001 charge is five years. 18 U.S.C. 3282. While the government s close-call timing does not bar prosecution, the purpose and spirit of the statute of limitations is worth noting as it intends to protect the very thing that happened in the instant case. The Supreme Court has identified the purpose of the statute of limitations as to protect individuals from having to defend themselves against charges when basic facts have become obscured by passage of time and to minimize danger of official punishment because of facts in far-distant past... Toussie v. United States, 397 US 112, (1970) (sup d by statute as stated in United States v. Kerley 838 F2d 932 (7 th Cir. 1988)). The evil against which the statute intends to prevent is precisely what happened here. The government used this charge as leverage 1 at best, and as jury nullification at worst. There exists no reasonable explanation that comports with a prosecutor s Special Duty under Model Rule of Professional Responsibility 3.8 or Berger v. United States 2 for why the government would have waited almost five full years to charge Blagojevich with false statements based on unrecorded, non- 1 This Court even noted that it did not recall ever instructing a jury on a 1001 count because it is often a leverage count. 2 295 U.S. 78, 88, (1935) (the U.S. Attorney s sole interest is that justice shall be done... It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. ) 13

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 14 of 31 PageID #:4506 transcribed, ambiguous language, further edited by the government. If the government believed that Blagojevich lied to the FBI in early 2005 it certainly had every means at its disposal to prosecute him earlier. Even if one were to try to give the government the benefit of the doubt there is still no rational, ethical explanation for why it did not at least attempt to clarify the statements in the March 2005 interview, in the October 2006 interview, or at any other time in between. The fact is that the government knew and knows that Blagojevich was not lying to the FBI. The government knows that the statements were not material to any investigation. Otherwise, why obstruct all defense questions related to the context of the interview? The government used this charge as a means to introduce evidence regarding fundraising at trial (that may otherwise have been inadmissible) and the government used it as a kitchen sink charge to secure a conviction at any cost. By not clarifying what the ambiguous phrase means, and by allowing so much time to pass, the government effectively shifted the burden to the defendant. The Court s rulings limiting defense cross examination aggravated the problem. In addition, the jury selection process led in part to this conviction. Voir dire began without Blagojevich s constitutionally-mandated involvement during cause excusals for hardship. A significant number of jurors screened indicated a bias against Blagojevich. The presumption of innocence was essentially non-existent in this case. At the beginning of jury deliberations, according to news reports, one 14

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 15 of 31 PageID #:4507 juror said I want [Blagojevich s] head on a platter and some [jurors] came in headhunting. (Chicago Sun Times article available at http://www.suntimes.com/ news/metro/blagojevich/2609372,blago-juror-holdout-081710.article). Compounding this risk were the confusing and dense jury instructions. A significant problem arose with hastily drafting the honest services instructions it necessarily consumed much of the attention of the parties and all of the instructions (and deliberations) suffered. Defense counsel sought a pre-trial instructions conference to mitigate such a problem but that request was denied. With such confusing, hard to follow instructions (and indictment), Blagojevich was prejudiced. Circumstances here were particularly ripe for a conviction based on the idea that Blagojevich must have done something. This conviction (and the prosecution) does not serve the ends of justice. The government should not have been permitted to proceed on Count 24. The Court erred by not granting defendant s pre-trial motion to dismiss. At this juncture, the proper remedy is to set aside the guilty verdict (obtained as the result of numerous constitutional violations) and enter judgment of acquittal. IV. There Exists Insufficient Evidence To Sustain This Conviction; Each Element Was Not Proven Beyond A Reasonable Doubt. To sustain a conviction under 18 U.S.C. 1001(a)(2), the government must have proven beyond a reasonable doubt each of the following elements: (1) the defendant made a statement that (2) was false, (3) was material, (4) was made knowingly and willingly, and (5) was made in a matter within the jurisdiction of 15

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 16 of 31 PageID #:4508 any department or agency of the United States. 18 U.S.C. 1001(a)(2); United States v. Brantley, 786 F.2d 1322, 1326 (7th Cir. 1986), citing to United States v. Petullo 709 F. 2d 1178, 1180 (7th Cir. 1983). There was insufficient evidence to support a guilty finding where the government did not prove materiality or that Blagojevich willfully, knowingly made a false statement beyond a reasonable doubt. A. The Alleged False Statement Was Not Material The alleged false statement was not material. Not only should the conviction be reversed for legal grounds, but factually, the government failed to provide sufficient factual evidence to the jury that the statement was material. Materiality is defined in the false statement context as whether the false statement has a tendency to influence or is capable of influencing a federal agency. United States v. Brantley, 789 F.2d 1322, 1326 (7th Cir. 1986). Materiality must be proven beyond a reasonable doubt. United States v. Gaudin, 515 U.S. 506 (1995). It is imperative to note that the particular context within which the statement was made is to be analyzed. See United States v. Keller, 730 F. Supp. 151, 159 (N.D. Ill. 1990) ( The alleged statements of [the defendant] should be viewed in the particular context in which they were obtained. ) Even assuming, arguendo, that Blagojevich made the statement(s) as reported in the FBI 302, when read in context of the surrounding paragraphs, and 16

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 17 of 31 PageID #:4509 the rest of the interview, the statements were not material 3. It also makes it clear that the alleged statement was not falsely made. The FBI 302 paragraphs from which the alleged statement is derived discuss state contracts and the following pertinent portion 4 states (emphasis added): xxxxxxxxxxxxxxx. xxxxxx. He noted that when he attends his events he becomes aware of some of those who are supporting him, but he does not track, or want to know, who is contributing or how much they are contributing to him. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. 3 Filed with this motion (under seal) is the full FBI 302 from the March 16, 2005 interview. 4 Redacted [in public filing] pursuant to protective order. 17

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 18 of 31 PageID #:4510 The interview addresses state contracts and then turns to Blagojevich s actions at fundraising events. The government not only took the charged statement out of context (as a whole) but literally removed/omitted the first part of the phrase. This is a fundamentally unfair prosecution. It is clear that the statement was not material. In addition, according to the 302, Blagojevich told the FBI that he currently helps to raise money [for] Friends of Rod Blagojevich. Blagojevich further listed out for the FBI the individuals who were employed by FOB to track the contributions and even directed the FBI where to find Kelly Glynn, telling the agents she was working in D.C. It is clear that Blagojevich was not aiming to obstruct the FBI nor was this statement capable of doing so. It was common knowledge (and common sense) at the time (March of 2005, with a pending reelection the following year) that the Governor would be included in meetings regarding fundraising, and moreover, the Governor actually told the FBI agents that he was involved in fundraising during the very interview in question. The testimony from trial, elicited from Agent Murphy, Kelly Glynn, Danielle Stilz and Lon Monk did not establish the materiality element beyond a reasonable doubt. Rather, the trial testimony corroborated the information attributed to Blagojevich in the 302. Moreover, the trial evidence was that (over the course of two years) Blagojevich was in attendance at 3-4 meetings, where he participated and was pushed by others to talk to big donors prior to the Big Event. (See testimony of Danielle Stilz; Kelly Glynn). That is not sufficient to prove the 1001 allegation 18

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 19 of 31 PageID #:4511 beyond a reasonable doubt. It was fundamentally unfair and unjust for the prosecutors to edit out the first part of the statement as it appears in the 302, and then object to all attempts by defense counsel to provide context to the jury. The defense was prevented from cross examining any witnesses regarding anything beyond the government s narrow presentation of what it alleges was said. Had the jury known the full statement and context it would not have convicted. Indeed, cross-examination questions were halted regarding the purpose of the March 2005 interview (which was purportedly predicated on Joseph Cari s alleged plane-ride conversation with Governor Blagojevich about state contracts). Had defense counsel been permitted to question the Agent about the state contracts aspects of the March 2005 interview (which were proper cross-examination questions, as the government introduced the topic on direct), the jury would have been privy to the actual context of the alleged false statement(s). The government would continually, throughout the trial, open the door to a topic, then block the doorway to prevent the defense from entering at all. For example, during the cross-examination of Special Agent Murphy, defense counsel attempted to question Murphy about his allegation of materiality. Murphy testified for the government that his role at the interview was to clarify and ask follow up questions (Murphy transcript at 7) and that the alleged statements by Blagojevich were material. Defense counsel asked: Q A Did you write in your notes any clarification on that point? No, I just put that statement in quotes. 19

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 20 of 31 PageID #:4512 Q This was -- is it fair to say, as far as you know, Mr. Blagojevich gave a second interview to the FBI, didn t he? MS. HAMILTON: Objection. THE COURT: (Murphy transcript at 46). Way beyond the scope; sustained. Defense questions regarding the follow up October 2006 interview, directly implicating the materiality element, were quashed. It is pertinent to the issue of materiality that in October 2006, the FBI and the government interviewed Blagojevich again, this time with a court reporter transcribing the interview. At this interview, there was no attempt to clarify what Blagojevich said about tracking or any of the other statements from the prior interview. However, defense counsel was again improperly prohibited from asking questions along this line. The jury did not view the alleged false statement(s) in context. This was improper. It prevented the defense from showing lack of willfulness on the part of Blagojevich. Additionally, it undercut Blagojevich s right to prove good faith, to which the jury was instructed is inconsistent with willfulness. Another example occurred during cross-examination of Murphy where defense counsel countered the government s assertion that Joseph Cari implicated Governor Blagojevich in wrongdoing related to state contracts (when in fact, Cari did not tell the FBI this story until a fourth or fifth subsequent interview). Defense counsel asked Murphy on cross: (Murphy transcript at 32). Q So is it fair to say that Joseph Cari spoke to the agents on at least 4 or 5 occasions that you know of, no mention of the Governor and any wrongdoing, isn t that fair? 20

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 21 of 31 PageID #:4513 MS. HAMILTON: Objection. THE COURT: The objection is sustained. Q A Q Yet, what you have told us is, Joseph Cari s information that you say he gave you was important, correct? It was important, yes. And you wanted to have the Governor s answer as to what Mr. Cari had informed you, true? MS. HAMILTON: Objection. THE COURT: Sustained. Q Well, one of the reasons you say you spoke to the Governor was to find out what he had to say on that particular issue, correct? A We talked MS. HAMILTON: (Standing up). THE COURT: Sustained. Additionally, the impropriety of this objection and ruling is even more evident in light of the allowances given to the government on direct examination, where the following was elicited (Murphy testimony at 8): Q Generally, how was it that those issues became the focus of the investigation as of March 16, 2005? MR. S. ADAM, JR.: THE COURT: Objection. I ll take the answer first. You can answer the question. A By that point, there were a number of people cooperating. We had a wiretap up on the telephone of Stuart Levine. So we obtained a substantial amount of information, but probably the piece that brought it to focus was the cooperation of Joseph 21

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 22 of 31 PageID #:4514 Cari who had indicated in a conversation directly with the defendant -- MR. S. ADAM, JR.: THE COURT: Objection, Your Honor; move to strike. If you stop the answer after Mr. Cari, then the answer can stand. MS. HAMILTON: Stop the answer after THE COURT: MS. HAMILTON: THE COURT: MS. HAMILTON: THE COURT: MS. HAMILTON: After he says the source was Mr. Cari. So you don t want me to follow up with respect to what Mr. Cari informed him? It informs why certain things are material. No, I want the answer to stop there because the question was generally what led you in this direction. May I follow up and ask what it is that Mr. Cari informed him? That you may do. Thank you. The Court s sanctioning of the government s tactics tainted this trial. Moreover, it is the questioner s acuity, not a federal prosecution that should remedy even an unresponsive or evasive answer. Gatewood, 173 F.3d at 987, citing Bronston v. United States, 409 U.S. 352, 362 (1973). Certainly, this rule of law applies where the alleged statement/answer is ambiguous and it is entirely within the discretion and ability of the government to obtain clarification. 22

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 23 of 31 PageID #:4515 B. The statement was not knowingly or willfully falsely made In addition to the materiality element lacking proof beyond a reasonable doubt, the government also failed to prove that the statement was knowingly false when it was made or that Blagojevich willfully lied. To sustain a conviction, there must exist proof beyond a reasonable doubt that the defendant knew the statement was false when it was made. United States v. Yermian, 468 US 63 (1984). This conviction cannot stand the government did not prove beyond a reasonable doubt that Blagojevich knowingly, willfully lied. Where there exist potential alternate meanings, the burden is squarely on the government to negate any reasonable interpretations. United States v. Gahagan, 881 F.2d 1380, 1383 (6 th Cir. 1989) ( It is incumbent upon the Government to negative any reasonable interpretation that would make the defendant s statement factually correct. ). The evidence at trial was that it was someone else s job to track and keep Blagojevich up to date on where fundraising stood. He was not tracking it himself no one saw him on a computer, the context of the March 2005 interview was state contracts, and the statement itself was referencing at events. In fact, the government cannot, in good faith, negate reasonable interpretations. The government asserted a theory pre-trial (which suited its needs at that time) which differed from what it led the jury to believe regarding the false statement allegations. The government asserted that Blagojevich had help with fundraising prior to federal investigations of Chris Kelly and Tony Rezko, but that after their arrests, Blagojevich had to resort to relying on himself and others. 23

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 24 of 31 PageID #:4516 According to the government s own theory, the structure of Blagojevich s fundraising changed drastically between 2002 and 2008. See Government s Motion In Limine Regarding Evidence Concerning Investigation and Prosecution of Co- Conspirators (at pages 3-4). However, at trial, the prosecutors presented a different theory that Blagojevich s fundraising approach and actions were consistent and remained consistent from prior to the 2002 election through September 2007. During the testimony of Danielle Stilz, the government asserted to the court that there was not a change in practice or behavior after the interview with the FBI. (See testimony of Danielle Stilz). The government wants it both ways. However, by playing fast and loose with the facts, it cannot now sustain its burden because it cannot negate the alternate reasonable explanations for the alleged statement (e.g., that someone else tracked the information of which Blagojevich was aware but did not want to track). The law is clear it is incumbent upon the government to prove the actual falsity of the statements. United States v. Hixon, 987 F.2d 1261 (6 th Cir. 1993). Literally true statements as well as merely misleading statements have been found to be insufficient a statement subject to more than one interpretation places a burden on the government to refute the meaning attributed by the defendant. The statement in the instant case is literally true and factually correct. A prosecution for a false statement cannot be based on an ambiguous question where the response may be literally and factually correct... An indictment premised on a statement which on its face is not false cannot survive. United States v. Moses, 94 24

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 25 of 31 PageID #:4517 F.3d 182 (5th Cir. 1996) ( Because [the defendant s] response was not false on its face, the evidence was insufficient to support the conviction. ); United States v. Vesaas, 586 F.2d 101, 104 (8 th Cir. 1978); United States v. Gahagan, 881 F.2d 1380, 1383 (6 th Cir. 1989). See also, Bronston v. United States, 409 U.S. 352, 362 (1973), where the Supreme Court held that a literally true answer, even if it was intentionally misleading, cannot violate the perjury statute, noting that [p]recise questioning is imperative as a predicate for the offense of perjury. The false statement statute is similar to the perjury statute and the same rationale applies. The trial evidence establishes that Blagojevich s statement was not false on its face. The testimony of Kelly Glynn, Danielle Stilz and Lon Monk (regarding fundraising by Blagojevich) demonstrate the truthfulness of the statement. Kelly Glynn testified she was Finance Director for FOB from May 2002 through August 2004. She testified that the FOB kept track of donations. Glynn testified she remembered the meetings collectively but remembered about ten (10) meetings and Blagojevich was in attendance at three (3) or four (4) of them. When defense counsel questioned Glynn on cross examination, the government objected (which the Court sustained) each time defense counsel attempted to ask questions related to the materiality element. For example, defense counsel was prevented from asking questions regarding Glynn s knowledge (or lack of) any bundler or donor ever discussing contributions for state contracts. Danielle Stilz testified she joined FOB in February 2005, when Tali Stein was Finance Director. Stilz was Finance Director from Summer of 2005 through 25

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 26 of 31 PageID #:4518 September 2007. 5 Stilz testified that she maintained the FOB database and tracked information (names of donors, amounts, times they gave, who they gave through) and also tracked individual contributions. Stilz testified she inherited the FOB system, although she transferred the data to a more efficient database. She further testified that Chris Kelly, Finance Chair, would determine who would attend the meetings and would then notify Stilz. For meetings, Stilz would prepare database spreadsheets and distribute them for the meeting. Additionally, like Kelly Glynn, Stilz remembered the meetings collectively, not individually. Stilz also testified on cross-examination that she was in charge of keeping track of what was contributed and who contributed. She used the computer system to keep track at the FOB office. Blagojevich never did this, he was never seen at a computer, never looking at checks or pulling up information. Also, Stilz testified that when Blagojevich would raise his voice about money that was or wasn t raised, he was generally describing a bundler or event holder that did not fulfill an obligation. It was not referencing individual contributors. Lon Monk testified about the 2002 campaign time frame, and then also the 2003-2004 time frame. (Monk testimony, Vol. 5, at 32-37, 92). All of these times were prior to the alleged statement on March 16, 2005. However, even in regards to the 2003-04 time period to which Monk testified, he stated that Blagojevich had very little interaction with large donors because Chris Kelly solicited the donations. Monk testified, Rod would interact with them from time to time if there 5 It is worth noting that neither of the government s witnesses were the Finance Director at the relevant time in question March 16, 2005. 26

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 27 of 31 PageID #:4519 were events, fundraising events that they attended regarding fundraising. (Monk testimony, Vol. 5, at 92). Monk also testified that during the 2003-04 period, Blagojevich wasn t making phone calls. (Monk testimony, Vol. 5, at 108).There would be fundraising meetings that would take place, talking about fundraising strategy and he would attend fundraising events. Monk further testified that from time to time Blagojevich expressed interest in the people who were contributing to his campaign. (Monk testimony, Vol. 5, at 111). At one point during Stilz testimony, defense counsel objected based on foundation grounds regarding Stilz s inability to recall specific meetings (in response to a question that required specificity). The Court ruled, in words to the effect of: I think it s good she s not talking about specific events for which she can give a date. And I think that s ok, partly because of her description of the process and partly because we have the assistance of the date on the report. You can continue. This prejudiced Blagojevich because the only mens rea issue regarding the 1001 charge is what Blagojevich s intent was on March 16, 2005, at the interview. While circumstantial evidence may be used to try and prove up the allegation, the manner in which the government presented its case conflated all the time periods and made it far too confusing for the jury to determine Blagojevich s intent on March 16, 2005. The Court stated (again in words to the effect of), during the entire period of time, Blagojevich felt strongly about individual donors and strongly about amounts 27

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 28 of 31 PageID #:4520 in question. Ultimately, the Court overruled the defense objection regarding testimony outside the March 16, 2005 timeframe. However, even if the government s evidence demonstrated that, as the Court put it, Blagojevich felt strongly about fundraising, feeling strongly is not enough to sustain a conviction. The standard of proof on this charge was impermissibly lowered and it was not proven beyond a reasonable doubt. This ruling was improper and erroneous. The due process violations, along with insufficient notice and the failure of the government to prove the elements beyond a reasonable doubt should result in judgment of acquittal. V. The Violation of Blagojevich s Right to Put on a Defense Led to this Erroneous Verdict A defendant has the fundamental right to cross-examine and confront the evidence against him. U.S. Const. Amends. V, VI. Blagojevich s right to put on a defense is derived from the compulsory clause of the United States Constitution and is a fundamental right. U.S. Const. Amend. VI. See, California v. Green, 399 U.S. 149, 176 (1970) (Harlan, J., concurring) (the Sixth Amendment s compulsory process and confrontation clauses constitutionalize the right to a defense as we know it. ) A defendant has the constitutional guarantee of a meaningful opportunity to present complete defense. California v. Trombetta, 467 U.S. 479, 485 (1984). Blagojevich was denied this most fundamental of rights. At every turn, counsel for Blagojevich was prevented from asking proper questions on cross-examination and was not permitted by the court to expand scope 28

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 29 of 31 PageID #:4521 with hostile government witnesses pursuant to requests made under Fed. R. Evidence 611. 6 Even when questions were properly within the scope of the direct, general objections by the government were sustained. The denial of meaningful cross-examination likely contributed to the hung counts on Counts 1-23; had the defense been able to put on a case, acquittals would likely have resulted. Moreover, multiple rulings by the Court that the defense could recall a witness in the defense case (many of these rulings made in front of the jury) eroded away at Blagojevich s Fifth Amendment rights and prejudiced him in front of the jury. Facts which go directly to the heart of the 1001 conviction in this case were not presented to the jury because of improper limitations on cross-examination. To be sure, the burden was on the government and the defendant had no obligation to put on a case. However, the defendant s fundamental right to defend himself through cross examination was stomped upon by obstructionist (and continuous) objections that were sustained by the Court. Numerous arguments were made, and motions for mistrial filed, regarding the violation of Blagojevich s rights to, inter alia, a fair trial, effective representation, meaningful cross-examination and the right to present a defense. Counsel is currently filing this motion without the benefit of full official transcripts and does not abandon or waive any arguments. Blagojevich respectfully adopts and 6 Federal Rule of Evidence 611 provides the court with the authority to permit inquiry into additional matters on cross as if on direct examination. See FRE 611(b) ( Scope of crossexamination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. ) 29

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 30 of 31 PageID #:4522 incorporates by reference all the previously made objections, arguments and motions (including motions for mistrial). VI. Other Miscellaneous Errors This case raises serious constitutional issues regarding the First Amendment right to engage in the political process. In addition, this case raises questions of Federalism where the federal government interceded into the actions of a state governor who was engaged in legal political negotiations. Based on violations of the U.S. Constitution, this conviction should not be sustained. VII. Conclusion A plethora of errors contributed to this untenable conviction. There is an insufficient legal and factual basis for this conviction. Reversal is warranted. WHEREFORE, Defendant Rod Blagojevich respectfully requests that pursuant to Fed. R. Crim. Pro. 29(c), 33 and/or 34, this Court set aside the verdict in this case and enter judgment of acquittal, arrest judgment, order a new trial and grant any other appropriate equitable relief. Counsel for Rod Blagojevich SHELDON SOROSKY SAM ADAM MICHAEL GILLESPIE SAMUEL E. ADAM AARON GOLDSTEIN LAUREN KAESEBERG ELLIOTT RIEBMAN 6133 S. Ellis 30 Respectfully Submitted, /s/ Sam Adam /s/ Lauren Kaeseberg

Case: 1:08-cr-00888 Document #: 572 Filed: 09/13/10 Page 31 of 31 PageID #:4523 Chicago, IL 60637 (773) 752-6950 31