No Easy Answers

     Case 1:05-cr-00394-RBW           Document 107         Filed 05/19/2006       Page 1 of 8



                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA                      )
                                              )       CR. NO 05-394 (RBW)
               v.                             )
                                              )
I. LEWIS LIBBY,                               )
      also known as "Scooter Libby"           )

                 GOVERNMENT'S RESPONSE TO DEFENDANT'S
                SUPPLEMENTAL MEMORANDUM IN SUPPORT OF
                  HIS THIRD MOTION TO COMPEL DISCOVERY

       The UNITED STATES OF AMERICA, by PATRICK J. FITZGERALD, SPECIAL

COUNSEL, respectfully submits the following response to defendant's "Supplemental

Memorandum of Law in Further Support of Third Motion of I. Lewis Libby to Compel

Discovery Under Rule 16 and Brady."

                                       INTRODUCTION

       During the oral argument on defendant's Third Motion to Compel held on May 5,

2006, the defendant argued that the government was required under Fed. R. Crim. P.

16(a)(1)(E)(i) to produce certain documents related to individuals identified by the defendant

as potential witnesses. Supp. Memo. 3.1 This Court reserved ruling on the motion in order

to allow defendant present case law in support of this argument. 5/5/06 Tr. 56.




       1
          Citations to the transcript of the May 5, 2006 hearing are to "5/5/06 Tr.," followed by the
relevant page number. Citations to defendant's supplemental memorandum of law are to "Supp.
Memo.," and to the government's Response to the Defendant's Third Motion to Compel are to
"Rsp.," followed by the relevant page number.

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       In his supplemental memorandum, the defendant proffers as supporting authority

United States v. Marshall, 132 F.2d 63 (D.C. Cir. 1998), a case mentioned by the Court at

oral argument 95/5/06 Tr. 55. However, as demonstrated below, neither Marshall nor any

other case relied upon by the defendant supports the position that Rule 16 requires the

government to produce documents on the ground that they relate to potential defense

witnesses.

       More fundamentally, the government has not withheld documents material to the

preparation of the defense on the basis that the documents relate to individuals who may

called as witnesses by the defense, rather than the government.

       For these reasons, the defendant's Third Motion to Compel should be denied.

                                      ARGUMENT

I.     The Government Has Produced All Documents in Its Possession that are
       Material to the Preparation of the Defense.

       The defendant has identified as potential defense witnesses Richard Armitage,

Stephen Hadley, Bill Harlow, Colin Powell, Karl Rove, Joseph Wilson and Valerie Wilson

and seeks documents from "the files of these witnesses ­ and others ­ that relate to former

Ambassador Joseph Wilson's trip to Niger" on the ground that they may aid in preparing to

examine these witnesses. Supp. Memo. 1.

       The government has produced to defendant all documents received from the Office

of the Vice President relating to former Ambassador Joseph Wilson's trip to Niger, and all

documents received from any source relating to conversations, correspondence, or meetings

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in which defendant was involved, or which relate to the defendant's inquiries regarding

former Ambassador Joseph Wilson's trip to Niger. Rsp. 8. Moreover, the government has

gone beyond its obligations under Rule 16 to produce some additional materials from the

OVP, CIA and the State Department that relate generally to Mr. Wilson's trip. Id.; 5/5/06

Tr. 49. With respect to documents relating to Mr. Wilson's trip, the government has declined

to produce only documents that were created during the investigation and are protected from

discovery pursuant to the Jencks Act, and documents which relate solely to individuals other

than the defendant, including innocent accused, and have no connection with or relevance

to the defendant.

II.    Rule 16 Does Not Require the Production of Documents Related to Defense
       Witnesses.

       The defendant contends that United States v. Marshall, 132 F.2d 63 (D.C. Cir. 1998)

"unequivocally requires the government to disclose information pertaining to potential

defense witnesses under Rule 16." Supp. Memo. 3. Contrary to this contention, Marshall

does not support an interpretation of Rule 16 that obligates the government to produce all

documents related to any individual named by the defendant as a potential defense witness.

To the contrary, the documents at issue in Marshall were incriminating in nature and directly

related to the government's case-in-chief, and thus were discoverable under Rule 16 in the

absence of any connection to a potential defense witness. 132 F.2d at 68.

       In Marshall, caller identification records revealed that calls made to a confidential

informant in connection with a controlled narcotics sale were made from a telephone

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subscribed to by a woman named Sabrina Shorter. Id. at 65. Jail visitation records reflected

that Ms. Shorter visited the defendant in jail and, thus, established a connection between

defendant and the telephone used to make calls to the confidential informant. Id. at 66. The

government provided the caller identification records to the defense in discovery, but

withheld the jail visitation records, apparently on the ground that the records were

inculpatory, rather than exculpatory. See 132 F.2d at 67. When the government sought to

introduce the jail visitation records at trial, the defendant sought to exclude them on the

ground that they had not been timely produced pursuant to Rule 16. 132 F.2d at 66. The

district court declined to exclude the records, holding that while the records should have been

turned over earlier, the defendant had not been prejudiced. Id. at 66-67.

       In the district court and on appeal, the government contended that it had no obligation

to produce the prisoner visitation records because they were not exculpatory, and therefore

not "favorable" or "helpful" to the defense. Id. at 67. The Court of Appeals rejected this

argument, holding that "inculpatory evidence . . . is just as likely to assist in `the preparation

of the defendant's defense' as exculpatory evidence." Id. (quoting Rule 16). In explaining

this principle the court noted that, had the visitation records been produced, defense counsel

would have known to avoid asking the investigating agent on cross-examination "if he had

any information connecting [the defendant] to any of the returned phone calls." Id. at 67-68.

       The Court of Appeals found that the government knew even before trial that Ms.

Shorter "could play a significant role in its case-in-chief" and, arguably, that the jail visitation



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records would bear more than "some abstract logical relationship to the issues in the case."

Id. at 69(quoting United States v. Caicedo-Lalanos, 960 F.2d 158, 164 n. 4 (D.C. Cir.

1992)(internal quotation marks and citation omitted)). Therefore, the court held that the

government was required to produce the visitation records, and "the fact that the evidence

was incriminating did not excuse the government of its Rule 16 obligations." Id.

       For reasons not explained in the appellate court's opinion, defense counsel named Ms.

Shorter as a potential defense witness during jury selection. The appellate court stated that,

"[f]rom the government's perspective, the materiality picture came into even sharper focus

during voir dire examination, when the defense identified Sabrina Shorter as a potential

witness" and that "[t]hat fact alone plainly triggered the government's disclosure obligations

under Rule 16." Id. at 69. However, even though defense counsel asserted during his

opening statement that the government would present no evidence connecting the defendant

to any of the telephones used to contact the confidential informant, the appellate court

affirmed the district court's conclusion that the defendant had not been prejudiced, and that

any prejudice he did suffer was self-inflicted. Id. at 70. After all, the defendant was well

aware that he had placed calls from Ms. Shorter's telephone and that there was a risk that

during trial the government would acquire additional evidence to prove it.

       Accordingly, Marshall holds that evidence that is material to the preparation of the

defense must be produced, whether it is exculpatory or inculpatory. Nothing in the opinion

in Marshall suggests that, to be protected from "minefields," the defendant is entitled to



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discovery concerning any person he names as a potential witness, even if such documents are

not relevant to the charges contained in the indictment.

       Nor do the district court cases cited by the defendant support the proposition that the

defendant is entitled to discovery based solely on his stated intention to call certain

individuals as witnesses at trial. See United States v. Marshak, 364 F. Supp. 1005, 1007-

1008 (S.D. N.Y. 1973)(analysis of limits of Jencks Act; no attempt to obtain discovery on

the basis that individuals will be called as defense witnesses); United States v. Zovluck, 274

F. Supp. 385, 391 (S.D. N.Y. 1967)(holding defendant was entitled to return of his own

business records, which had been seized by the government, in order to identify potential

defense witnesses). Given their distinct circumstances, neither of these cases support the

instant request for additional discovery, much less a blanket rule requiring the production of

documents on the ground that they relate to individuals whom the defendant has named as

potential witnesses.

       Defendant's attempts to distinguish cases holding that the government is under no

obligation to produce prior statements or information reflecting negatively on the credibility

of witnesses called by the defense, much less witnesses who may be called by the defense,

are unavailing. See United States v. Presser, 844 F.2d 1275, 1285 (6th Cir. 1988)("the

government need not disclose impeaching material in its possession relating to any potential

defense witness where that impeaching material does not meet the Brady test of being

material and exculpatory"); and United States v. Souffront, 338 F.3d 809, 824 (7th Cir. 2003)



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(no Brady violation where government failed to disclose that agent called as defense witness

had been accused by a former agent of participating in or covering up theft). See also 18

U.S.C. § 3500 (which by its terms applies only to witnesses called by the government).

Defendant's arguments make clear that he intends to use the documents he seeks for

impeachment, or to re-focus the jury's attention to the conduct of others, rather than his own.

                                      CONCLUSION

       For all of the foregoing reasons, and the reasons set forth in the government's

response to the defendant's Third Motion to Compel Discovery, the United States

respectfully requests that this Court deny the defendant's motion.

                                                   Respectfully submitted,

                                                                 /s/
                                                   PATRICK J. FITZGERALD
                                                   Special Counsel
                                                   Office of the United States Attorney
                                                   Northern District of Illinois
                                                   219 South Dearborn Street
                                                   Chicago, Illinois 60604
                                                   (312) 353-5300

Dated: May 19, 2006




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     Case 1:05-cr-00394-RBW         Document 107         Filed 05/19/2006    Page 8 of 8



                             CERTIFICATE OF SERVICE

       I, the undersigned, hereby certify that on this 19th day of May, 2006, I caused true and

correct copies of the foregoing to be served on the following parties by electronic mail:

                         William Jeffress, Esq.
                         Baker Botts, The Warner
                         1299 Pennsylvania Avenue, N.W.
                         Washington, DC 20004-2400
                         Facsimile: 202-585-1087

                         Theodore V. Wells, Esq.
                         Paul Weiss, 1285 Avenue of the Americas
                         New York, NY 10019-6064
                         Facsimile: 212-373-2217

                         Joseph A. Tate, Esq.
                         Dechert LLP, 4000 Bell Atlantic Tower
                         1717 Arch Street
                         Philadelphia, PA 19103-2793
                         Facsimile: 215-994-2222

                         John D. Cline, Esq.
                         Jones Day
                         555 California Street
                         San Francisco, CA 94104
                         Facsimile: 415-875-5700

                                                           Patrick J. Fitzgerald
                                                           Special Counsel
                                                           U.S. Department of Justice
                                                           1400 New York Ave., N.W.
                                                           Washington, D.C. 20530
                                                           202-514-1187

                                                   By:          /s/
                                                           Debra Riggs Bonamici
                                                           Deputy Special Counsel



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posted by cboldt  # 5/20/2006 12:18:00 PM