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Monday, September 25, 2006

Fitzgerald Pretrial Response to CIPA 5 Admissibility [Doc 147]

    Case 1:05-cr-00394-RBW            Document 147        Filed 09/25/2006       Page 1 of 12

                           THE 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             )


       The UNITED STATES OF AMERICA, by its attorney, PATRICK J. FITZGERALD, Special

Counsel, respectfully submits the following Response to Defendant's Memorandum Concerning

Admissibility of Documents on Defendant's Consolidated CIPA § 5 Notice.


        In advance of the CIPA § 6(a) hearing scheduled for September 27, 2006, this Court inquired

whether, and to what extent, defendant expected to disclose classified information through the

introduction of documents, rather than trial testimony, and if defendant seeks to introduce

documents, how hearsay objections would be overcome. Defendant filed a written memorandum

in response to the Court's inquiries on September 22, 2006.

       In his memorandum, defendant stated that most of the classified documents he would seek

to introduce would be offered as evidence of the defendant's state of mind, rather than for the truth

of the matters asserted therein. Def.'s Mem. at 5-6, 7, 8. Defendant asserted that any documents (or

portions of documents) that he offered for their truth would be admissible as business records,

agency records, present sense impressions, and past recollection recorded, under Rules 803(6),

803(8)(A), 803(1), and 803(5) of the Federal Rules of Evidence.

    Case 1:05-cr-00394-RBW           Document 147         Filed 09/25/2006      Page 2 of 12

       Of course, if the designated documents are offered solely for a non-hearsay purpose, Fed. R.

Evid. 801©, then the government will have no hearsay objection; however, it may still object to the

admission of the documents on relevancy, Rule 403, executive privilege, or any other applicable

grounds. With respect to documents offered for the truth of the matters asserted therein, the

government agrees in principle with some of the legal principles set forth in defendant's

memorandum, but disagrees with others. As demonstrated below, the contents of the Presidential

Daily Briefs (PDBs) and Terrorist Threat Matrices (TTMs) do not fall within any of the hearsay

exceptions proposed by defendant, and thus would not be admissible for their truth, even if any of

them were deemed relevant and not unfairly prejudicial. In contrast, information contained in

defendant's notes likely will qualify as present sense impressions or past recollection recorded

(assuming the proper foundation is established) and thus hearsay objections to their admission will

usually be overcome, even though the notes do not, as defendant contends, qualify as business

records or a records of a public agency. Finally, documents related to the Wilson controversy may,

on a document-by-document basis, be admitted if they satisfy the requirements of one or more

hearsay exceptions or are admissible for a limited purpose.

       Because all of the designated documents ­ whether offered for the limited purpose of

establishing defendant's state of mind, or for the truth of statements contained herein ­ must meet

the requirements of Fed. R. Evid. 401 and 403, the first and most important issues to be determined

by this Court with respect to all of the designated documents are whether the documents are relevant

and whether their admission is likely to confuse, mislead or prejudice the jury, or to waste time.


        Case 1:05-cr-00394-RBW          Document 147         Filed 09/25/2006       Page 3 of 12


I.        The PDBs/TTMs Are Neither Business Records Nor Public Reports.

          Defendant disclaims a general intent to offer the PDBs and TTMs to prove the truth of the

matters asserted therein, Def.'s Mem. at 6, but argues in the alternative that, "if we were to offer the

. . . materials for their truth," the PDBs and TTMs are admissible as business records under 803(6)

and public records under 803(8), Def.'s Mem. at 7. Setting aside seriously questions of relevance,

unfair prejudice, and other potential objections, and presidential privilege concerns, the PDBs and

TTMs qualify for neither the business record nor the public agency record exception to the hearsay

rule.     Fed. R. Evid. 803(6) provides a hearsay exception for the following:

          A memorandum, report, record, or data compilation, in any form, of acts, events, conditions,
          opinions, or diagnoses, made at or near the time by, or from information transmitted by, a
          person with knowledge, if kept in the course of a regularly conducted business activity, and
          if it was the regular practice of that business activity to make the memorandum, report,
          record or data compilation, all as shown by the testimony of the custodian or other qualified
          witness . . . unless the source of information or the method or circumstances of preparation
          indicate lack of trustworthiness. The term "business" as used in this paragraph includes
          business, institution, association, profession, occupation, and calling of every kind, whether
          or not conducted for profit.

Fed. R. Evid. 803(6) (emphasis added). Under this rule, a fundamental requirement is that the maker

have knowledge of the information contained in the record, and that the record is made in the regular

course of the business's activities. Thus, defendant must account for all sources of information

contained in the purported business record, including information that does not come from the

business. United States v. Patrick, 959 F.2d 991, 1000-02 (D.C. Cir. 1996). In Patrick, the court

looked to the requirement of Rule 803(6) that the information come from "a person with knowledge"

and found error in the admission of a receipt from a business (offered to prove that the defendant

lived at a particular address) because the government failed to establish that the business took some


    Case 1:05-cr-00394-RBW           Document 147         Filed 09/25/2006        Page 4 of 12

steps to verify the address information provided to it by a customer (presumably the defendant). See

also United States v. Baker, 693 F.2d 183, 188 (D.C. Cir. 1982); United States v. Warren, 42 F3d

647, 656-57 (D.C. Cir 1995 ("each participant in the chain producing the record ­ from the initial

observer-reporter to the final entrant ­ must be acting in the course of the regularly conducted

business") (citation omitted); United States v. David, 96 F.3d 1477, 1481-82 (D.C. Cir. 1996)

(government satisfied verification requirement by showing that the business employee compared

signature on the paperwork with the customer's drivers license). In the case of the PDBs and TTMs,

there is no doubt that they are compilations of information received from multiple sources, some of

whom are outside the United States government, and may even be trying to deceive the government.

Thus, defendant cannot account for the knowledge or practices of the sources of the underlying

information contained in the PDBs and TTMs, and these documents do not satisfy the requirements

of 803(6).

       Nor do the PDBs or TTMs constitute public records under Rule 803(8)(A), as defendant

contends. Rule 803(8)(A) provides:

       Records, reports, statements, or data compilations, in any form, of public offices or agencies,
       setting forth (A) the activities of the office or agency . . . .

Fed. R. Evid. 803(8)(A). The PDBs and TTMs do not set forth the "activities" of the agency that

compiles them, but rather reflect multiple sources of information, including, ultimately, sources

outside the government. The "activities" contemplated by Rule 803(8)(A) include such matters as

"Treasury records of miscellaneous receipts and disbursements," Fed. R. Evid. 803(8), 1972

Advisory Committee Notes, not the reporting of daily intelligence information from multiple

sources. In other words, the PDBs and TTMs do not set forth the agency's own activities, but rather


      Case 1:05-cr-00394-RBW          Document 147         Filed 09/25/2006        Page 5 of 12

set forth the past and predicted activities of others outside, and at times hostile to, the government.

For this reason also, Rule 803(8)(A) does not apply to those intelligence briefing materials, and they

may not be admitted for the truth of the matter asserted therein.

II.     Hearsay Objections to the Admission of Information Contained in Defendant's Notes
        May Be Overcome Under Certain Theories Proposed by Defendant, But Not Others.

        Defendant argues that his notes may be offered for the truth of the matters asserted therein

as present sense impressions, past recollection recorded, business records and reports of a public

agency. As demonstrated below, while the government agrees that hearsay objections will not likely

serve as a substantial impediment to information contained in defendant's notes, contrary to

defendant's contention, defendant's notes are neither business records nor records of public agency

and are not entitled to admission for their truth based on those exceptions to the hearsay rule.

        The government agrees that, as a general rule, entries in defendant's notes may often qualify

as present sense impressions and thus will not be excludable as hearsay. See Fed. R. Evid. 803(1),

which provides: "A statement describing or explaining an event or condition made while the

declarant was perceiving the event or condition, or immediately thereafter." In order to fall within

this exception to the hearsay rule, three requirements must be met: (1) "[t]he declarant must have

personally perceived the event described"; (2) "[t]he declaration must be a simple explanation or

description of the event"; and (3) "[t]he declaration and the event described must be

contemporaneous." Weinstein's Federal Evidence § 803.03[1]; see also United States v. Morrow,


    Case 1:05-cr-00394-RBW            Document 147         Filed 09/25/2006        Page 6 of 12

2005 WL 3163803, at *2 (D.D.C. June 9, 2005). ^1 It appears that much of the information contained

in defendant's notes may meet these requirements.

       As defendant acknowledges, in the case of notes that document "statements made by others"

in defendant's presence, a "multiple hearsay" issue arises. In such cases, the notes may be admitted

to prove that a certain statement was made by a certain person (see Schuster v. Symmetricon, 2000

WL 33115909, at *2 (N.D. Cal. Aug. 1, 2000) (handwritten minutes of conversations were hearsay

because offered to prove that speakers "actually made the statements contained therein")). However,

the notes may not be admitted to prove the truth of the statement itself in the absence of an

independent basis for admission. See Fed. R. Evid . 805 (hearsay within hearsay is admissible if it

meets an exception to the hearsay rule). Defendant asserts that he intends to offer his notes only as

proof that certain statements were made by certain people in his presence, but not for the truth of the

statements themselves. Def.'s Mem. at 5-6 ("statements of others reflected in Mr. Libby's notes will

not be offered for the truth of the matters asserted."). Based on this limitation, any "secondary"

hearsay problem is eliminated.

       As defendant suggests, certain designated documents, including notes of the defendant, may

be admissible for their truth as past recollection recorded under Rule 803(5), which provides:

         Present sense impressions are limited to factual description of what was observed through
the senses, and may not include subjective "interpretations and analyses of conversations." In re:
Cirrus Logic Securities Litigation, 946 F. Supp. at 1469; Schuster, 2000 WL 33115909, at *2; see
also Brown v. Keane, 355 F.3d 82, 89 (2d Cir. 2004) (exception applies "only to reports of what the
declarant has actually observed through the senses, not to what the declarant merely conjectures" or
to "subject input" and interpretations); Schuster, 2000 WL 33115909, at *2 (exception does not
apply where notes reflect the declarant's reactions to the conversations). See also Weinstein's
Federal Evidence (2d ed. 2006) § 803.03[3] ("[A] statement evoked by an event that does not
describe or explain the event is not admissible as a present sense impression.")


    Case 1:05-cr-00394-RBW            Document 147         Filed 09/25/2006       Page 7 of 12

       A memorandum or record concerning a matter about which a witness once had knowledge
       but now has insufficient recollection to enable the witness to testify fully and accurately,
       shown to have been made or adopted by the witness when the matter was fresh in the
       witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or
       record may be read into evidence but may not itself be received as an exhibit unless offered
       by an adverse party.

Fed. R. Evid. 803(5). Thus, if defendant establishes the proper foundation during his trial testimony,

he may be able to admit information contained in his notes for its truth. As discussed above, each

level of hearsay must qualify for a hearsay exception, so if the matter asserted (but now forgotten)

would itself be hearsay, defendant must establish an independent exception for that statement (for

example, the present sense impression exception defendant proposes for notes reporting what others

said). Additionally, Rule 803(5) authorizes the reading of the document, but not its admission as an

exhibit, unless offered by the government. Fed. R. Evid. 803(5) ("If admitted, the memorandum or

record may be read into evidence but may not itself be received as an exhibit unless offered by an

adverse party.").

       Contrary to defendant's contention, defendant's notes do not qualify as business records

under Fed. R. Evid. 803(6). Even assuming that the notes are offered by defendant only as a

memorialization of what defendant said or did, or what he heard someone else say or do, and not for

the truth of the statements, defendant's notes do not qualify for a business records exception because

there is no reason to believe that defendant's notes or note-taking was the regular practice of the

Office of the Vice President. In United States v. Ferber, 966 F.2d 90, 98-99 (D. Mass. 1997), which

defendant cited in support of his present sense impression exception argument, the trial court refused

to admit an e-mail sent by a Merrill Lynch employee to his boss reporting statements made to the

employee by the defendant. Although the government showed that it was the regular practice of the


    Case 1:05-cr-00394-RBW           Document 147         Filed 09/25/2006      Page 8 of 12

employee to send such e-mails, the court rejected the e-mail evidence because "there was no

sufficient evidence that Merrill Lynch required such records to be maintained. This was fatal to the

government's proffer on this ground because, in order for a document to be admitted a business

record, there must be some evidence of a business duty to make and regularly maintain records of

this type." Id. (emphasis added). The court went on to note that if the employee had such a practice

in his personal life, the outcome might be different, but, "Here, however, [employee] was under no

business duty to make and maintain the E-mail messages, and the evidence failed to show that

Merrill Lynch itself followed a such a routine." Id.

       Similarly, in New York v. Microsoft, the district court excluded an e-mail which purported

to describe a conversation and was authored by an employee of a Microsoft competitor,

RealNetworks. The proponent of the evidence failed to establish that it was the "`regular practice'

of RealNetworks employees to write and maintain such emails." 2002 WL 649951, at *2. In the

instant case, the evidence will show, the government believes, that defendant took the notes for his

own work purposes and not because the OVP generally required note-taking or that the regular

practice of OVP employees was to take notes for the OVP to rely upon. Indeed, much of defendant's

notes are in a short-hand format that he alone used and that only those familiar with his particular

short-hand could decipher. Given that defendant's notes were created solely for his own use, they

do not carry the indicia of trustworthiness carried by records used by businesses as a whole. New

York v. Microsoft, 2002 WL 649951, at *2 (D.D.C. April 12, 2002)("The justification for this

exception is that business records have a high degree of accuracy because the nation's business

demands it, because the records are customarily checked for correctness, and because recordkeepers


    Case 1:05-cr-00394-RBW             Document 147         Filed 09/25/2006       Page 9 of 12

are trained in habits of precision.")(quoting United States v. Baker, 693 F.2d 183, 188 (D.C. Cir.


          Defendant's notes also do not constitute a public record under Rule 803(8)(A). Defendant

does not offer facts that support a foundation that his personal notes constitute a record of "the

activities of the" OVP. He proffers no facts to establish that his personal notes ­ taken on his own

initiative, at his own discretion, in his own hand, in his own style, and for his own use in planning

and executing his duties ­ were records that set forth the activities of the OVP as an office or agency.

          Defendant cites no case law that supports characterizing handwritten and personal notes of

an employee ­ even a high ranking employee ­ as a "public record" under Rule 803(8)(A). To the

contrary, courts have been reluctant to regard handwritten notes such as the ones authored by

defendant as public records. For example, in United States v. Patrick, 248 F.3d 11, 22 (1st Cir.

2001), the district court excluded from evidence certain handwritten notes found in police files that

recorded tips the police had received about who committed the charged murder. The defense theory

was that the police had not adequately investigated the murder, as evidenced by these notes, and that

the notes were not hearsay because they were not offered for their truth but rather for the inadequacy

of the police investigation of other possible suspects. The defense also argued that the police notes

were admissible as business records under 803(6) and 803(8). The court rejected these arguments,

noting first that where the notes contained information from informants who are not themselves part

of the business of police, such information is not admissible as an exception to the hearsay rule. Id.

As to the defendant's public records argument, the court ruled, "Nor do police notes contain findings

of a public agency charged with making those findings, which would render the notes admissible

under Fed.R.Evid. 803(8)." Id.; see also United States v. Bishop, 264 F.3d 535, 548 (5th Cir. 2001)


       Case 1:05-cr-00394-RBW        Document 147        Filed 09/25/2006      Page 10 of 12

(IRS agents' notes regarding meetings they had with the defendant were not public records:

"Personal notes made by an investigator such as an IRS agent are not ordinarily admissible because

they are hearsay. See Fed.R.Evid. 801©, 803(8)(B)."). Likewise, defendant's notes are not public

records that set forth the OVP's activities.

III.     Admissibility of Wilson/Niger Case-Related Documents.

         Lastly, defendant explains that, aside from documents pertaining solely to his memory or

preoccupation defense, there are two broad categories of documents that relate to the Wilsons and

the Niger controversy: (1) documents that defendant created or that defendant reviewed; and (2)

documents that were created or reviewed by other potential witnesses (but, presumably, not reviewed

by defendant). Def.'s Mem. at 7. Again, defendant states that he will generally not offer the

documents for the truth of the matters asserted therein. Def.'s Mem. at 7, 8. Of course, in those

instances, the documents are not hearsay and no hearsay exception is necessary, although the

government reserves its right to object to the documents (or portions thereof) on grounds other than

hearsay, for example, on the grounds that the matter is irrelevant, should be excluded under Rule

403, or implicates executive privilege. Furthermore, to the extent that defendant offers some of the

documents in an attempt to impeach other witnesses, see Def.'s Mem. at 8, the government may also

object on grounds that the documents are not a proper basis for impeachment (for example, if a

witness did not create, review, or adopt statements in a particular document), or are not admissible

as substantive evidence if used only for impeachment.


   Case 1:05-cr-00394-RBW           Document 147        Filed 09/25/2006       Page 11 of 12


       The government respectfully requests that this Court apply the foregoing legal principles to

the evidentiary proffer to be made by the defendant at the upcoming § 5 hearing.

                                                    Respectfully submitted,

                                                    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: September 25, 2006


    Case 1:05-cr-00394-RBW           Document 147        Filed 09/25/2006       Page 12 of 12

                                CERTIFICATE OF SERVICE

       I, the undersigned, hereby certify that on this 25th day of September, 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

                                                       By:           /s/
                                                             Debra Riggs Bonamici
                                                             Deputy Special Counsel


^_~ ~_^

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