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Case 1:08-cr-00231-EGS Document 119 Filed 10/01/2008 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, )


)
v. ) Criminal No. 08-231 (EGS)
)
THEODORE F. STEVENS, )
)
Defendant. )
______________________________)

GOVERNMENT'S MOTION IN LIMINE TO ADMIT


THE TESTIMONY OF KENT COOPER

The United States of America, by and through its undersigned counsel, hereby

respectfully requests this Court to permit the trial testimony of Kent Cooper, whom the

government seeks to call during its case-in-chief to testify as to certain facts relevant to the

materiality of the statements requested by the defendant's financial disclosure forms at the center

of the instant case.

I. Background

On July 29, 2008, the grand jury returned a seven count indictment against defendant,

charging him with multiple violations of 18 U.S.C. § 1001. Count 1 charges violations of

Sections (a)(1) and (c)(1) of the false statement statute, as well as 18 U.S.C. § 2, and alleges that

the defendant knowingly and willfully engaged in a scheme to conceal a material fact: his

unreported receipt of hundreds of thousands of dollars' worth of things of value. Indictment ¶

15. Count 1 also states as follows:

9. Recognizing that public office is a public trust, Congress enacted the


Ethics in Government Act of 1978 ("EIGA") in part to restore public
confidence in its institutions. EIGA requires all members of the United
States Senate to file a form by May of the following year, detailing
specified financial transactions that the Member engaged in during the
prior calendar year (hereinafter a "Financial Disclosure Form"). These
Financial Disclosure Forms were documents required to be submitted to
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and filed with the Secretary of the United States Senate (hereinafter
"Secretary of the Senate"), an office within the legislative branch, and
were available to the public.

10. A primary purpose of the yearly Financial Disclosure Forms is to disclose,


monitor and deter conflicts of interest, thereby maintaining public
confidence in the integrity of the United States Senate and its Members.
Because the yearly Financial Disclosure Forms require public disclosure
of financial information by each Member of the United States Senate, such
as income, assets, gifts, financial interests, and liabilities, the Forms
provide the public at large, including the voters of a particular state, with
the information necessary to allow the public to evaluate and consider
official conduct by a Member of the United States Senate in light of that
Member's private finances.

Counts 2 through 7 incorporate the introductory language of Paragraphs 1-14 of the

indictment. Each count charges the defendant with violating 18 U.S.C. § 1001(a)(2) by making

material false, fictitious, and fraudulent statements and representations in connection

with the filing of his financial disclosure forms beginning with his 2001 form and concluding

with his 2006 form. Indictment ¶¶ 47-82.

* * *

The government requests an order admitting the testimony of Kent Cooper as to certain

facts relevant to the materiality of the statements requested by the defendant's financial

disclosure forms. More specifically, the government seeks to admit Mr. Cooper's testimony as to

how the information required by the financial disclosure form, after certification and filing by a

public official, is used by both the Senate and the public at large. Mr. Cooper will testify that the

Senate Ethics Committee is empowered to open an investigation and discipline Senators as a

result of information requested in the financial disclosure form. Moreover, he will explain how

the public – in particular the media, interest groups, and political parties – uses the information

contained in the form to evaluate the official conduct of public officials in light of their personal

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finances, and may on occasion bring matters requiring investigation to the attention to the Senate

Ethics Committee.

Mr. Cooper's testimony will be based on his personal observations gathered during a

career in which he has played a significant role in providing greater public access to financial

disclosure forms and other documents required to be filed by public officials to enhance

transparency in government. Far from the "activist" moniker that defense counsel used

yesterday, Mr. Cooper is the founder of an organization that provides electronic access to

financial disclosure forms to members of the public, including the media, interest groups, and

political parties. He was formerly an analyst with an organization that studies the influence of

money in politics, the assistant staff director for disclosure at the Federal Election Commission,

and a staff member in the Office of the Clerk of the House of Representatives responsible for

disclosure matters.

Mr. Cooper will not offer opinion testimony regarding what he, any person, or any

institution would have done if called upon to review defendant's financial disclosure forms with

knowledge of the facts in evidence regarding the things of value accepted by defendant. He will

offer testimony solely as to how he has observed the Senate Ethics Committee and the public use

the general types of information required to be disclosed by the financial disclosure forms.

II. Mr. Cooper's Testimony Is Relevant And Admissible As Fact Testimony


On The Issue Of Materiality

To prove that the defendant violated 18 U.S.C. § 1001, the government must demonstrate

that the facts concealed or false statements made by the defendant were material. See United

States v. Cisneros, 169 F.3d 763, 766 (D.C. Cir. 1999). A statement is "material" if it "has a

natural tendency to influence, or was capable of influencing, the decision of the tribunal in

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making a [particular] determination." In re Sealed Case, 162 F.3d 670, 673 (D.C. Cir. 1998)

(quoting United States v. Barrett, 111 F.3d 947, 953 (D.C. Cir. 1997)). "The 'central object' of

any materiality inquiry is 'whether the misrepresentation or concealment was predictably capable

of affecting, i.e., had a natural tendency to affect, the official decision.'" Id. at 673-74 (quoting

Kungys v. United States, 485 U.S. 759, 771 (1988)).

Mr. Cooper's testimony will assist the jury in assessing the materiality of the information

requested by the defendant's financial disclosure forms by describing his personal observations

concerning how both the Senate Ethics Committee and members of the public use – i.e., how

they are influenced and affected by – the information or absence of such in the forms. His

testimony concerning the role of the public is especially relevant with regard to the allegedly

false statements in this case. The Ethics in Government Act of 1978 specifically requires the

statements at issue here, unlike many such statements prosecuted under 18 U.S.C. § 1001, to be

disclosed to the public. Indeed, the statute implicitly establishes the public as an intended

audience for the financial disclosure forms as least as significant as the Senate itself.

Defendant contends that Mr. Cooper's proposed testimony is opinion testimony for which

he must be qualified as an expert. He is mistaken. Mr. Cooper has no knowledge of the

statements in defendant's financial disclosure forms or any things of value accepted by him, and

his testimony will not cover these matters. Therefore, he will not – indeed, he cannot – offer an

expert opinion on the ultimate issue of materiality in the case. Moreover, to the extent defendant

argues that Mr. Cooper's testimony regarding how the information in the financial disclosure

forms is used by the government or the public will – at least implicitly – communicate an alleged

opinion that such information is important to the government or the public, this is lay opinion for

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which no qualification as an expert is required. Indeed, any such implied opinion would be

rationally based on Mr. Cooper's perceptions, helpful to determining a fact at issue, and not

based on scientific, technical, or other specialized knowledge. See Fed. R. Evid. 701; see also

United States v. Ferguson, No. 3:06CR137, 2007 WL 4556625, at * 3 (D. Conn. Dec. 20, 2007)

(securities analyst's opinion, based on personal observations, as to whether fact was important to

investors held admissible pursuant to Fed. R. Evid. 701 to demonstrate materiality in securities

fraud case).
Case 1:08-cr-00231-EGS Document 119 Filed 10/01/2008 Page 6 of 7

CONCLUSION

For the foregoing reasons, the government respectfully requests that the Court admit the

non-expert testimony of Kent Cooper.

Respectfully submitted,

WILLIAM M. WELCH II
Chief, Public Integrity Section

/s/ Nicholas A. Marsh


BRENDA K. MORRIS
Principal Deputy Chief

NICHOLAS A. MARSH
EDWARD P. SULLIVAN
Trial Attorneys

JOSEPH W. BOTTINI
JAMES A. GOEKE
Assistant United States Attorneys
for the District of Alaska

Criminal Division, Public Integrity Section


U.S. Department of Justice
1400 New York Ave. NW, 12th Floor
Washington, D.C. 20530
Tel: 202-514-1412
Fax: 202-514-3003

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CERTIFICATE OF SERVICE

I hereby certify that on this first day of October, 2008, I caused a copy of the foregoing

"GOVERNMENT'S MOTION IN LIMINE TO ADMIT THE TESTIMONY OF KENT

COOPER" to be delivered electronically to the following:

Brendan V. Sullivan, Jr., Esq.


Robert M. Cary, Esq.
Williams & Connolly LLP
725 Twelfth Street, N.W.
Washington, D.C. 20005

/s/
Edward P. Sullivan

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