Professional Documents
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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
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
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.
indictment. Each count charges the defendant with violating 18 U.S.C. § 1001(a)(2) by making
with the filing of his financial disclosure forms beginning with his 2001 form and concluding
* * *
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
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.
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
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
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
Respectfully submitted,
WILLIAM M. WELCH II
Chief, Public Integrity Section
NICHOLAS A. MARSH
EDWARD P. SULLIVAN
Trial Attorneys
JOSEPH W. BOTTINI
JAMES A. GOEKE
Assistant United States Attorneys
for the District of Alaska
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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
/s/
Edward P. Sullivan
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