No Easy Answers

Monday, October 02, 2006

Fitzgerald 2nd Memorandum re: CIPA 6(a) [Doc 151]

     Case 1:05-cr-00394-RBW            Document 151       Filed 10/02/2006       Page 1 of 8

                           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             )

                 IN CONNECTION WITH CIPA § 6(a) HEARING

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

Counsel, respectfully submits the following Memorandum of Law in response to inquiries made by

the Court during the ongoing CIPA § 6(a) hearing in this matter, and the Court's invitation to both

parties to address these issues in writing.


       In advance of the CIPA § 6(a) hearing, the parties disagreed as to the standard applicable to

determining the use, relevance and admissibility of classified information which the defendant seeks

to disclose at trial. The defendant argued that admissibility of classified information must be

determined solely by reference to the Federal Rules of Evidence. The government argued the Court

was required to consider applicable privileges in determining admissibility even before the

enactment of CIPA, see Fed. R. Evid. 501, and that therefore, in order to be admissible, the

defendant's proposed testimony and exhibits must be relevant, helpful to the defense, and also must

otherwise overcome the longstanding national security privilege in classified information. ^1

          The government's position, rejected by the Court, is that application of the long-standing
national security privilege, enforceable through Federal Rule of Evidence 501, was included among
the "current practices" which Congress determined to retain in lieu of resolving whether"any
`relevant' evidence should be admissible," as proposed by some Senators, or whether the evidence
must be "relevant and material," as proposed by the Department of Justice. S. Rep. 96-823, at 8,
1980 USCCAN 4294, 4301.

     Case 1:05-cr-00394-RBW            Document 151          Filed 10/02/2006       Page 2 of 8

       In its September 21, 2006 opinion, the Court ruled that, that it was inappropriate to consider

classified status in determining the use, relevance and admissibility of classified evidence proposed

by defendant at the CIPA 6(a) stage. Thus, the Court ruled that, at the § 6(a) hearing, it would make

determinations of use, relevance and admissibility without regard to the classified status of the

proposed information

       During the course of proceedings pursuant to CIPA § 6(a), this Court raised a number of

questions regarding possible limits on the Court's authority to restrict the defendant's ability to

present a defense. Specifically, the Court inquired regarding the existence of cases addressing its

authority to prohibit the defendant from introducing exhibits to corroborate aspects of his testimony,

including aspects that will not be disputed at trial. In addition, the Court questioned the extent of

its authority to limit the defendant's ability to present details pertaining to topics found generally

relevant, as part of the defendant's direct testimony or through documents. On September 28, 2006,

prior to the recess in the proceedings, the Court offered counsel for both parties the opportunity to

submit written memoranda setting forth legal authorities relevant to the Court's inquiries.

       In light of the Court's pre-hearing ruling, the government focuses in this brief on the

application of the rules of evidence and, in particular, Fed. R. Evid. 403, to determining the

admissibility of the evidence proposed by defendant. As demonstrated below, this Court is

authorized by Rule 403 of the Federal Rules of Evidence to exclude evidence presented by the

defendant, even if relevant, and it is well settled that such exclusion does not necessarily infringe on

the defendant's Constitutional right to present a defense.


     Case 1:05-cr-00394-RBW            Document 151        Filed 10/02/2006       Page 3 of 8


       While the defendant has a Constitutional right to present a defense, that right is not without

limitation. As the Supreme Court repeatedly has explained, the defendant's right to present relevant

testimony "`may, in appropriate cases, bow to accommodate other legitimate interests in the criminal

trial process.'" Rock v. Arkansas, 483 U.S. 44, 55 (1987) (quoting Chambers v. Mississippi, 410 U.S.

284, 295 (1973)). Thus, any claim that "the Due Process Clause guarantees the right to introduce

all relevant evidence is simply indefensible." Montana v. Egelhoff, 518 U.S. 37, 42 (1996)(plurality

opinion). See also United States v. Lea, 249 F.3d 632, 642 (7th Cir. 2001) ("a defendant's right to

present relevant evidence is not unbounded, but rather is subject to reasonable restrictions").

       The Supreme Court has ruled that relevant evidence offered by a defendant in a criminal case

may be excluded under applicable procedural and evidentiary rules. Specifically, the Court has

stated, "The accused does not have an unfettered right to offer testimony that is incompetent,

privileged, or otherwise inadmissible under standard rules of evidence." Taylor v. Illinois, 484 U.S.

400, 410 (1988). Indeed,"[u]nder the Constitution, state and federal rulemakers have broad latitude

to fashion rules which operate to exclude evidence from criminal trials." Lea, 249 F.3d 632, 642

(7th Cir. 2001) (citing United States v. Scheffer, 523 U.S. 303, 308 (1998)). These rules of exclusion

"will not be deemed to abridge an accused's right to present a defense so long as they are not

`arbitrary' or `disproportionate to the purposes they are designed to serve.'" Lea, 249 F.3d at 642-43

(quoting Rock, 483 U.S. at 56).

       As the Supreme Court recently explained,

       While the Constitution thus prohibits the exclusion of defense evidence under rules that serve
       no legitimate purpose or that are disproportionate to the ends that they are asserted to
       promote, well-established rules of evidence permit trial judges to exclude evidence if its


     Case 1:05-cr-00394-RBW            Document 151          Filed 10/02/2006        Page 4 of 8

       probative value is outweighed by certain other factors such as unfair prejudice, confusion of
       the issues, or potential to mislead the jury. See, e.g., Fed. Rule Evid. 403; Uniform Rule of
       Evid. . . . Plainly referring to rules of this type, we have stated that the Constitution permits
       judges "to exclude evidence that is `repetitive . . ., only marginally relevant' or poses an
       undue risk of harassment, prejudice, [or] confusion of the issues.' " Crane, [476 U.S. 683],
       at 689-690 . . . (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 . . .(1986)) . . .

Holmes v. South Carolina, 547 U.S. ___, 126 S.Ct. 1727, 1732 (2006) (punctuation and citation

notes omitted). See also Clark v. Arizona, ___ U.S. ___, 126 S.Ct. 2709, 2731-32 (2006) (citing


       In light of the legitimate interests served by Rule 403, it is not surprising that district courts

have applied the Rule to proposed evidence that contained classified information. In United States

v. Wilson, 586 F.Supp. 1011 (S.D.N.Y. 1983), aff'd , 750 F.2d 7 (2d Cir.1984), the district court held

that, even assuming that the classified information sought to be introduced by the defendant was

relevant, the evidence was inadmissible under Rule 403. The district court recognized that "the

government as well as the defendant has an interest in a trial focused solely on the acts at issue." 586

F.Supp. at 1016. The district court then held that allowing the defendant to present classified

evidence would unfairly prejudice the government because it would appeal to the juror's emotions:

"the introduction of evidence detailing classified activities will have the tendency to focus attention

on what cannot be doubted is the controversial character of foreign covert intelligence and counter-

intelligence operations." Id. The district court also found that the presentation of the classified

evidence would be time-consuming and would result in undue delay. Id.; see also United States v.

Miller, 874 F.2d 1255, 1277 (9th Cir. 1989) (excluding classified information pursuant to Rule 403

based on confusion of the issues, misleading the jury, and waste of time).


     Case 1:05-cr-00394-RBW            Document 151         Filed 10/02/2006       Page 5 of 8

       Circuit Courts have also applied Rule 403 to limit evidence which defendants have sought

to introduce in support of the defense. In Lea, for example, the Seventh Circuit approved the district

court's exclusion of testimony that another suspect had failed a polygraph, and the court of appeals

held that it was proper to exclude such testimony on Rule 403 grounds. Id. at 639-40. The court in

Lea rejected the defendant's argument that this unconstitutionally hampered his right to present a

defense, reasoning that the right to present a defense was not unlimited and Rule 403 was a standard

rule of evidence that could operate to exclude the testimony. Id. at 643. ^2

       Rule 403 applies to any and all types of evidence which a party seeks to introduce at trial.

Thus, evidence may be excluded under the rule regardless of whether it is offered in the form of an

exhibit or testimony, and regardless of whether the testimony is of a third-party witness or a criminal

defendant. The D.C. Circuit has specifically recognized that a defendant is not entitled to carte

blanche insofar as his testimony is concerned, but is subject to the rules of evidence, including Rule

403. In United States v. North American Reporting, 740 F.2d 50 (D.C. Cir. 1984), the defendant

corporation and its president (Lee) were charged with fraud in connection with its billing of the

White House for court reporting services. At trial, the defendants maintained that any errors were

the product of good faith estimates, legitimate rounding off, and "honest mistakes." In addition to

a summary chart refused by the district court for want of reliable foundation, because it was "terribly

confusing" and "baffling to the jury," and was at odds with the language of the contract, the district

judge also excluded Lee's testimony that he occasionally undercharged the White House. Lee argued

that this evidence proved his lack of intent and guilty knowledge. The court expressed doubts about

        The court in Lea also rejected the defendant's claim that the district court violated his right
to present a defense by relying on the marital communications privilege to preclude the testimony
of a witness. Id. at 641-42, 643.


     Case 1:05-cr-00394-RBW             Document 151          Filed 10/02/2006        Page 6 of 8

its probative value, but to the extent it was relevant, agreed with the district judge that this testimony

would have created undue delay and, under Rule 403, was properly refused.

        Similarly, in United States v. Brown, 217 F.3d 247, 257-58 n.8 (5th Cir. 2000), vacated on

other grounds, 531 U.S. 1136 (2001)(vacating to consider impact of Apprendi), the Fifth Circuit held

that the district court properly excluded the defendant's own proposed testimony concerning a

lawsuit that he filed against one of the law enforcement agencies involved in the prosecution against

him. The Fifth Circuit affirmed the district court's reliance on Rule 403 to exclude such testimony,

which the defendant offered to show the alleged bias of the law enforcement officers, because the

defendant had already offered other evidence of the lawsuit through cross-examination and other

portions of his defense case. Id. at 258 n.8; see also United States v. Moreno, 102 F.3d 994, 998 (9th

Cir. 1996) (excluding defendant's own testimony concerning purported duress, citing Rock, 483 U.S.

at 55, and explaining, "Without question, the Government has a legitimate interest in excluding

evidence which is not relevant or is confusing under Rule 402 and Rule 403 of the Federal Rules of


        As in the foregoing cases, the defendant in this case proposes to introduce in support of his

memory/preoccupation defense evidence that is so extraordinary both in breadth (i.e., the topics are

wide-ranging) and in depth (i.e., the level of detail) that the evidence takes on a misleading aura, is

confusing, and would be so time consuming that all of these dangers would substantially outweigh

its probative value ­ particularly where there is no dispute as to the defendant's overall point that he

was busy and worked on national security matters. To allow the defendant to describe ad infinitum,

via both testimony and through documents, particular items of classified information that he heard

about as if each particular item overwhelmed his ability to remember (and to not fabricate) other


     Case 1:05-cr-00394-RBW           Document 151        Filed 10/02/2006       Page 7 of 8

conversations is misleading and confusing and unnecessarily wasteful of time because details and

facts (e.g., names of leaders or government officials of other countries, or the names and histories

of various terrorist groups) that the defendant knew as a matter of course based on his experience

will either inaccurately suggest that the defendant was learning more new information than he really

was or time will be spent explaining the details to the jury to avoid confusion. Accordingly, as the

hearing progresses, the Court should take into account the dangers that Rule 403 legitimately seeks

to avoid, and thus apply the Rule to the defendant's proposed testimony and exhibits.


       For the foregoing reasons, the government respectfully asks this Court to apply Federal Rule

of Evidence 403 to exclude defendant's portions of defendant's proposed testimony and all of his

proposed exhibits offered in support of the memory/preoccupation defense.

                                                     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: October 2, 2006


     Case 1:05-cr-00394-RBW          Document 151        Filed 10/02/2006      Page 8 of 8

                                CERTIFICATE OF SERVICE

        I, the undersigned, hereby certify that on this 2nd day of October 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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