NOTICE IS HEREBY GIVEN that the Court will hold a hearing on Julie Hiatt Steele’s Motion to Dismiss Counts One Through Three of the Indictment for Failure to Charge an Offense, Steele Pretrial Motion No. 6, on Friday, February 26, 1999 at 9:00 a.m.

DATED: February 16, 1999

Julie Hiatt Steele, through undersigned counsel, hereby moves this Court, pursuant to Federal Rule of Criminal Procedure 12(b)(2), to dismiss Counts One through Three of the Indictment for failure to charge an offense.

In support of her motion, Ms. Steele relies on the accompanying Memorandum of Law.

WHEREFORE, for the reasons set forth in the attached Memorandum of Law, the Court must dismiss all the counts of the Indictment, or in the alternative, order the OIC to elect which one count to proceed under, in the above-captioned matter.

DATED: February 16, 1999

Counts One through Three of the Indictment must be dismissed because they fail to charge the offense of obstruction of justice. An essential element of an obstruction of justice charge is that the defendant knew of the pending judicial proceeding and acted to obstruct that proceeding. Counts One through Three of the Indictment do not allege that Ms. Steele knew of the judicial proceedings she is alleged to have obstructed and that she intended her statements to obstruct those respective proceedings at the time of those statements. As Counts One through Three fail to charge the essential elements of an obstruction of justice charge, they fail as a matter of law. Consequently, they should be dismissed.

A full recitation of the facts, outlined in Ms. Steele's Motion to Dismiss Indictment, Or in the Alternative, For Transfer of Cause To the District of Columbia, [hereinafter "Venue Motion"] filed with this Court on Monday, February 8, 1999, is incorporated by reference. Only the facts pertinent to this Motion are highlighted here.

According to the indictment, Kathleen Willey, a former White House volunteer, alleges that in November 1993, President Clinton made unwanted sexual advances toward her in the White House. Indictment at ¶¶ 6, 7. Although she did not make this allegation public until the spring of 1997, the indictment alleges that Willey claims to have contemporaneously told several of her friends and acquaintances, including Julie Hiatt Steele, about the alleged "grope" by the President. Id. at 8.

In early 1997, Willey called Ms. Steele and asked her to talk to a reporter for Newsweek. Ms. Steele had no idea why the reporter was to interview her, but Willey called back and told Ms. Steele to tell the reporter the following events: that she (Willey) had gone to Ms. Steele's on the very night of an incident at the White House to relate to Ms. Steele that the President had "groped" her, and that she (Willey) appeared "upset" and "humiliated." Willey apparently does not dispute that she asked Ms. Steele to talk to the reporter, but she now claims that she did not ask Ms. Steele to lie to him. Indictment at ¶¶ 8-9.

It is this alleged "lie" which is at the heart of the OIC's indictment: the OIC believes Willey told the truth, and that Ms. Steele is lying. See, e.g. Indictment at ¶ 36 ("In truth and in fact. . .Kathleen Willey told. . . Steele about the alleged sexual advances. . . ."). The entire indictment rests upon a credibility determination between Ms. Steele and Willey - the proverbial "she said"/"she said."

On January 16, 1998, the Court of Appeals for the District of Columbia Circuit expanded the OIC's jurisdiction to include an investigation as to "whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law . . .in dealing with potential witnesses, attorneys, or others concerning the civil case Jones v. Clinton." January 16, 1998 Order of the Special Division (attached to Notice of Prosecutorial Jurisdiction). The OIC began an investigation into potential obstruction of justice and related charges connected to the Jones v. Clinton case this same month in the District of Columbia. The grand jury in the District of Columbia investigating potential obstruction in Jones v. Clinton apparently began focusing on potential obstruction connected to Willey in March 1998.

On March 10, 1998, two FBI agents acting on behalf of the grand jury in the District of Columbia, Indictment at ¶ 25, interviewed Ms. Steele at her attorney's office in Richmond. Id. Ms. Steele provided information to the agents consistent with what had appeared in the August 1997 Newsweek article, Indictment at ¶ 12, and in a February 13, 1998 affidavit executed by Ms. Steele concerning the Newsweek article. Indictment at ¶ 18.

On June 11, 1998, Ms. Steele testified before Grand Jury No. 97-2 in the District of Columbia, pursuant to subpoena #D1297. See Transcript of D.C. Grand Jury Appearance ("D.C. Transcript")(Attached at Exhibit "4" in Venue Motion). On June 24, 1998, a grand jury in the Eastern District of Virginia issued to Ms. Steele subpoena #V064, ordering the production of specified documents. In response to the subpoena, Ms. Steele asserted her Fifth Amendment privilege against self-incrimination, prompting this Court's granting of immunity to her on August 14, 1998. See Order of Immunity dated August 14, 1998 (emphasis added) (Attached at Exhibit "13" of Venue Motion) (hereinafter "Order of Immunity").

On August 11, 1998, Ms. Steele was served with subpoena #V066 to appear personally to testify before the grand jury. See August 11, 1998 Letter and Subpoena (attached at Exhibit "14" in Venue Motion). Ms. Steele appeared before a Grand Jury sitting in the Eastern District of Virginia on August 18, 1998 and produced all documents responsive to subpoena #V064 as required by the Order of Immunity.

Ms. Steele was indicted on January 7, 1999, on three counts of obstruction of justice and one count of giving a false statement. Counts One through Three of the Indictment allege that Ms. Steele "did knowingly, unlawfully, and corruptly influence, obstruct, and impede, and endeavor to influence, obstruct, and impede the due administration of justice" of pending judicial proceedings, Jones v. Clinton, the Eastern District of Virginia grand jury proceeding and the District of Columbia grand jury proceeding, respectively. Indictment at ¶¶35, 39, & 42.

She allegedly obstructed these proceedings by repeating to various people her recollection that Ms. Willey did not inform her of the "grope" incident until several minutes before the Newsweek reporter interviewed her. Id. at ¶¶12, 25, 27, 28, 31, 32, 33, 35, 39, 42, 45. The various people to whom Ms. Steele is said to have consistently repeated this statement are: the Newsweek reporter, agents for the Federal Bureau of Investigations [FBI], the District of Columbia grand jury, the Eastern District of Virginia grand jury, the National Enquirer reporter, Larry King, John Doe #1 and Jane Doe #1.

The obstruction of justice statute, 18 U.S.C. §1503, makes it a federal offense for any person who:

18 U.S.C. §1503(a). The three essential elements of a violation of 18 U.S.C. §1503, are, (1) that a judicial proceeding was pending; (2) that the defendant had knowledge of the judicial proceeding; and (3) that the defendant acted corruptly, that is, with the intent to influence, obstruct, or impede that proceeding in its due administration of justice. See United States v. Grubb, 11 F.3d 426, 437 (4^th Cir. 1993).

Furthermore, it is essential that the government allege and prove that any extrajudicial statements forming the basis of the obstruction charge were made by the defendant with knowledge that they would be communicated to the grand jury or court. See United States v. Aguilar, 515 U.S. 593 (1995).

Federal Rule of Criminal Procedure 7(c) requires that an indictment contain the essential facts constituting the offense charged. The Supreme Court, in Russell v. United States, 369 U.S. 749, 763-64 (1962), held that an indictment may be challenged on Fifth and Sixth Amendment grounds where it fails to contain the elements of the offense intended to be charged, and fails to sufficiently apprise the defendant of the charges and allegations she must be prepared to meet at trial. In testing the sufficiency of the indictment, the court must look to the statement of facts in the pleading rather than the statutory citation. See United States v. Hooker, 841 F.2d 1225, 1227 (4^th Cir. 1988).

Hale v. United States, 89 F.2d 578, 579 (4^th Cir. 1937). This rule has been repeatedly reaffirmed in the Fourth Circuit. See Hooker, 841 F.2d at 1228; United States v. Hayes, 775 F.2d 1279, 1282 (4^th Cir. 1985); United States v. Pomponio, 517 F.2d 460, 461 (4^th Cir.), cert. denied, 423 U.S. 1015 (1975).

An obstruction charge should be dismissed where it fails to allege in detail and with precision the essential elements of the offense. See United States v. Abrams, 539 F. Supp. 378, 385 (S.D.N.Y. 1982) (dismissing §1503 charge where it failed to name the persons alleged to have been prevented from communicating with law enforcement authorities, did not idenitify the criminal statutes to which the obstructed information pertained, and did not detail with precision the acts of obstruction). But see United States v. Monus, 128 F.3d 376, 387 (6^th Cir. 1991); United States v. Jackson, 850 F. Supp. 1481, 1499 (D. Kan. 1994).

The law is clear that a bill of particulars cannot save an invalid indictment. Russell v. United States, 369 U.S. at 770. Furthermore, a motion that an indictment fails to charge an offense may be made at any time before the verdict. Hooker, 841 F.2d at 1227.

In the case at bar, Count One of the indictment purports to charge Ms. Steele with obstruction of the Jones v. Clinton lawsuit pending at one time in the Eastern District of Arkansas. This count fails to allege, as required by the Supreme Court in Aguilar, that Ms. Steele even knew about the lawsuit, let alone that she made any of the statements set forth with the knowledge that they would be communicated to the court in Jones v. Clinton.

It is clear why the indictment fails to make any such allegation, that is, there is simply no evidence to support it. Specifically, the OIC failed to allege whether, when, how and under what circumstances Ms. Steele had any knowledge of the Jones v. Clinton case, and more importantly, what her level of knowledge was. If Ms. Steele did not know that her statements would be communicated to the court in Jones v. Clinton, and that she intended those statements to obstruct that proceeding, as a matter of law she cannot be convicted.

Certain of Ms. Steele's statements were printed in Newsweek in August 1997. Putting aside the clear First Amendment implications of charging such free speech as a basis for obstruction, the indictment fails to allege that at the time of the alleged communication it was intended by Ms. Steele to obstruct Jones v. Clinton.

Although Ms. Steele signed an affidavit that was consistent with her publicly reported previous statements, she was specifically informed that the affidavit was given too late to be filed in Jones v. Clinton. Further, by this time, the Court in Jones v. Clinton had issued an order that excluded on relevance grounds any evidence related to Willey's allegations against the President. See December 11, 1997 Order by United States District Court Judge Susan Webber Wright (Attached at Exhibit "A" here)

Similarly, the assertion that Ms. Steele attempted to influence the recollection of John Doe #1 fails to allege that Ms. Steele had knowledge that John Doe #1 was a witness in Jones v. Clinton. Essentially, the OIC has failed to allege what they could not prove, that is, a critical element of the charge that Ms. Steele had knowledge that her statements would be presented to the court in Jones v. Clinton. This failure has produced a defective Count One that does not apprise Ms. Steele of the allegations she must be prepared to meet at trial.

Counts Two and Three are similarly defective. In Count Two, the OIC has relied on a statement made to the FBI in March 1998, and grand jury testimony in the District of Columbia in June 1998, to support alleged obstruction of the grand jury in the Eastern District of Virginia. First, the indictment fails to allege or inform Ms. Steele which of the multiple grand juries used by the OIC was obstructed. Further, the indictment fails to allege whether and when Ms. Steele had knowledge of any grand jury investigation in the Eastern District of Virginia. It is both legally and factually impossible for Ms. Steele to have intended to obstruct any grand jury in the Eastern District of Virginia prior to August 1998, when she first became aware of any investigation in that district.

Finally, the substance of the alleged false statements in both Counts Two and Three are mere repetitions of statements Ms. Steele made well in advance of any grand jury investigation. If the manner in which the OIC has pled these charges were to stand, presumably any prosecutor could create an obstruction case by presenting public statements of a witness to the grand jury which were made at a time when there was no ongoing investigation. Once again, the OIC failed to plead the requisite knowledge element because they knew the impossibility of proving it.

Ms. Steele cannot be guilty of obstruction of justice in Jones v. Clinton without intending that her statements, at the time they were made, would be used to influence those proceedings. Any such knowledge and intent would have to be predicated on knowledge that the statements were in conflict with others whose version of events had been accepted in those proceedings. The indictment in this case fails to make any such allegations. Specifically, Ms. Steele has not been informed by the indictment what testimony or evidence is alleged to conflict with her version of events. Such an allegation is essential to her alleged knowing obstruction.

WHEREFORE, for the foregoing reasons, the Court must dismiss the Indictment in the above-captioned matter.

DATED: February 16, 1999

I hereby certify that a true and correct copy of the foregoing Notice of Hearing, Motion to Dismiss Counts One through Three of Indictment for Failure to Charge an Offense (Steele Pretrial Motion No. 6), and Memorandum of Law in Support thereof was served, via hand-delivery and first class mail, on this 16^th day of February, 1999, on the following:

Andrew L. Hurst

Upon consideration of Ms. Steele's Motion to Dismiss Counts One Through Three of the Indictment for Failure to Charge an Offense, it is this _______ day of _____________, 1999, hereby

ORDERED that Ms. Steele's Motion is hereby GRANTED, and it is further

ORDERED that the indictment in this matter is dismissed.

____________________________

Hon.

United States District Court

Judge