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Prosecution rests case in Clemens trial

Prosecution rests case in Clemens trial

WASHINGTON -- The prosecution in the federal perjury trial of Roger Clemens rested its case on Tuesday afternoon, but not before Judge Reggie Walton granted a defense motion to dismiss two of the 15 acts alleged in the obstruction of Congress charge against the former star pitcher.

The government needs to prove only one of the remaining 13 so-called obstructive acts to convict Clemens on the charge, but based on defense attorney Rusty Hardin's motion to dismiss all charges, Walton said that one act about whether Clemens had done any research on human-growth hormone and another about whether Sen. George Mitchell had contacted him were removed from the charge.

After arguments outside the jurors' presence on those two acts and two others that Walton denied, Walton denied the overall Rule 29 motion to dismiss the charges against Clemens. Following further arguments over what witnesses the defense might call, the jury returned to the courtroom for the trial's transition.

Admitting another exhibit before making the statement, Assistant U.S. Attorney Steven Durham told the jury at 4:12 p.m. ET on the courtroom clock, "With that, the government rests the case in chief."

The government rested its case on the 24th day of proceedings in the trial -- technically the 19th since witnesses were first called -- having brought 24 witnesses to the stand in an effort to convince jurors that Clemens lied to Congress in 2008 when he said he had never used performance-enhancing drugs.

Before a pair of FBI scientists testified to finish the government's witness list, investment consultant Anthony Corso testified about conversations he had with Brian McNamee in which McNamee told him around 2002 that Clemens had used human growth hormone and that McNamee told him around 2005 that he had saved syringes he used on Clemens.

Also, another juror was excused, leaving the jury panel with 12 jurors and one alternate, with the members of the panel unaware who is the alternate and who are the 12 who ultimately will decide the case. Juror No. 16 was excused after finding out Friday of her mother's death, and she informed the court she would not be able to continue as she handles the funeral arrangements.

The Rule 29 motion is fairly standard procedure for defense attorneys to make once prosecutors have finished their case, moving that the evidence is insufficient to support a rational finding of guilt. On top of an overall Rule 29 motion, Hardin also moved that four of the obstructive acts should be dismissed. Walton denied Hardin's motion on acts relating to never speaking to McNamee about HGH and that the right-hander's former teammate Andy Pettitte had "misheard" or "misremembered" when Pettitte understood Clemens to say he'd used HGH.

Walton granted the one about researching HGH because even if Clemens eventually said he'd heard of the substance and in fact his wife had used it, Walton said, "I don't think you can disassociate the question from the response," i.e. the question was literally about researching the subject.

As for the one about Sen. Mitchell contacting him, the investigators for the Mitchell Report reached out to Clemens' agents, but Walton ruled previously that Clemens' knowledge, or lack thereof, about that request fell into the category of attorney-client privilege. Not only could it not be determined without breaching that privilege whether his agents, via the players' union, actually did tell him Mitchell wanted to talk to him, but the questions about Mitchell asking to talk to him didn't amount to the same thing as Mitchell's investigators asking to talk to him.

Before all that, Corso's appearance on the stand became another attempt for the government to back up McNamee, the most crucial witness in their case.

McNamee, the strength-and-conditioning trainer for Clemens for the better part of a decade, testified earlier in the trial that he saved items he used to inject Clemens with performance-enhancing drugs in August 2001, taking them home to show his wife to ease their marital woes over the amount of time he was spending training Clemens. McNamee says he then stored the items in a beer can and a mailing box in his home before turning them over to authorities in January 2008.

Corso was called by the government to rebut the defense's cross-examination of McNamee in which it was suggested he was biased against Clemens and had made up his claims when under pressure from federal investigators in 2007. Former Major Leaguer David Segui was called last week for similar reasons, testifying he'd had a conversation with McNamee sometime in 2001 that McNamee had saved "darts" used on other players in order to placate his wife.

Corso testified that he began to use McNamee's training services in 2002, and that shortly thereafter McNamee mentioned baseball players had used HGH with good results.

"He did use Mr. Clemens as one of the examples," Corso said.

Corso later related a conversation he and McNamee had sometime in 2005 -- clarifying later that it was after he'd read in the papers about a trainer named Anderson, which correlates with the time Barry Bonds' trainer Greg Anderson pleaded guilty to steroids distribution. Corso said that story precipitated another conversation with McNamee.

Said Corso: "He said he saved some syringes he threw in a beer can and threw in a FedEx box."

After a rather contentious cross-examination by Hardin, that part of Corso's testimony became even more of an issue, once a juror asked a question about whether McNamee had mentioned Clemens specifically in that conversation -- which during his grand-jury testimony, he had, testifying then that McNamee said, "I saved two syringes that I used on Roger."

After Corso had stepped down from the stand, Durham retrieved Corso and went through that part of his grand-jury testimony with him to establish more clearly to the jury that he'd said before that the conversation about keeping items did in fact relate to Clemens.

FBI forensic scientist Eric Pokorok testified about other items McNamee kept, including two syringes and the beer can. No usable DNA was found on the syringes, and only an inconclusive match to McNamee was found on the beer can.

Another FBI scientist, a toxicologist named Cynthia Lynn Morris-Kukowski, testified that vitamin B12 is a prescription drug and that the specific type testified about by an earlier witness who excluded it as something found on other items on which steroids were found is the only type available in the U.S. In cross-examination, Hardin established that another type is available elsewhere in the world, including Canada, bolstering the defense's claim that the earlier expert witness did not test for all types of vitamin B12.

Clemens testified before Congress that McNamee injected him with vitamin B12 and lidocaine, not steroids and HGH.

Clemens is charged with three counts of making false statements, two counts of perjury and one count of obstruction of Congress based on his testimony during a Feb. 13, 2008, hearing before the House Committee on Oversight and Government Reform and a Feb. 5, 2008, deposition conducted by committee staff members. Clemens said at the hearing, "Let me be clear: I have never used steroids or HGH."

Tuesday began the seventh week since jury selection began on April 16. The defense, which began its case with high school teammate Todd Howey and college teammate Michael Lee Capel testifying about Clemens' work ethic as a young ballplayer, has estimated its case will take seven or eight court days.

Two jurors had previously been dismissed for falling asleep during the trial, and the third juror being excused has Walton hoping no more have to be excused.

"I ask everybody to stay healthy and available," Walton said.

John Schlegel is a national reporter for