No Easy Answers

     Case 1:05-cr-00394-RBW        Document 198       Filed 11/17/2006     Page 1 of 9



                         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 REPLY IN SUPPORT OF ITS MOTION IN LIMINE TO
   PRECLUDE EVIDENCE, COMMENT, AND ARGUMENT REGARDING
           THE GOVERNMENT'S CHARGING DECISIONS

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

COUNSEL, respectfully submits the following reply in support of its motion in limine to

preclude evidence, comment, and argument regarding the government's charging decisions

in the investigation that gave rise to the indictment in the above-captioned matter.

                                    INTRODUCTION

       The government's motion in limine asks this Court to enter an order designed to

preclude evidence, comment, and evidence that might tend to lead the jury to focus

improperly on matters other than whether the government has proved the charged crimes

beyond a reasonable doubt. Specifically, the government's motion seeks to preclude, with

limited exceptions discussed in the motion and in this reply, any evidence, comment, and

argument about the government's charging decisions that might tend to lead the jury to

improperly decide Libby's case on its perception that others engaged in similar conduct and

were not charged or that the government's decision not to charge a crime reflects a belief on



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the part of the prosecutors that the conduct in question was legal and proper.

       Although the defendant's response asks this Court to deny the motion, the response

actually provides an ample basis for granting the motion. The response raises several

questions about the scope of the government's motion, each of which is addressed below.

In sum, the government's motion in limine should be granted.

                                       ARGUMENT

       The defendant does not take serious issue with the legal premises of the government's

motion in limine, but rather characterizes many of the propositions as "unobjectionable

truisms" and describes the arguments as "difficult to quarrel with." Resp. at 3. Most of the

defendant's response agrees with the government's motion or raises clarifying questions

about the motion's scope. The points of agreement provide a sufficient basis to grant the

government's motion in limine; and, as discussed below, the government's reply to the

defendant's questions regarding the scope of the motion expands the area of agreement.

       The defendant agrees that the primary thrust of the government's motion in limine "is

not controversial." Resp. at 1. The defendant expressed his agreement "that the jury should

not be invited to speculate about theoretical charges against Mr. Libby or other persons,

unless the possibility of future charges is relevant to the witness's state of mind." Resp. at

3. The defense further denies any intention to encourage the jury to compare the relative

merits of the charges against himself to hypothetical charges against other individuals, or to

ask the jury to impute beliefs to the government based on decisions not to bring charges, or



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suggest jury nullification because the defendant was not charged with any crime relating to

the actual disclosure of classified information, or argue that because other individuals have

not been charged that the defendant should be acquitted. Resp. at 3, 5. On these points, it

appears the parties can "agree to agree." The government submits that the motion in limine

to preclude evidence, comment, and argument as to the government's charging decisions

should be granted as to these matters.

       Despite these areas of agreement, the defendant insists that the government's motion

in limine is designed to "preemptively muzzle the defense" and deny the defendant a fair

trial. Resp. at 11. The defense presents several arguments claiming that the government

motion in limine is overly broad and "seeks extraordinary relief that, if granted, will deprive

Mr. Libby of a fair trial." Resp. at 1. Each of those arguments will be considered in turn.

       First, the defense claims that it should be able to tell the jury that the defendant has

not been charged with any offense relating to the leak of classified information, not just that

he is not charged with such a crime in this indictment. Resp. at 1, 4-6. In light of the

defendant's statement that he will advance no argument imputing to the government any

beliefs or conclusions from the lack of such a charge, the government agrees that the court's

order need not preclude evidence, comment, or argument that the defendant, in fact, was not

charged with a crime for leaking classified information. The government reserves the right

to propose a jury instruction cautioning the jury from drawing any inferences from that fact,

as the defendant suggests.



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       Second, in his response the defendant expresses concern about information concerning

charging decisions that might be used to explore a witness's motivations or bias on cross

examination. As the defendant states, in its motion, the government explicitly agreed that

this category of information was excepted from its motion in limine, noting the example of

an agreement to provide immunity to a witness. Resp. at 6. The defendant argues that this

category of evidence is not limited to immunity agreements, but also includes other

information that might be used to explore the bias of a witness from concern about possible

criminal charges. Of course, the government did not intend its example to limit the category

excepted from its motion, so any concern that the motion in limine is intended to limit such

cross examination evaporates. For the same reason, the defendant's contention that it is

premature to rule because the government has not provided Jencks material is without

foundation. Although the government agrees that, where appropriate, information regarding

charging decisions may be admissible for cross examination and argument regarding the

motivations of a witness, the government's motion in limine does extend to the use of such

information to make arguments drawing the improper inferences that are the subject of the

motion in limine. It is that improper use of the material that prejudices the government

unfairly, and the government reserves the right to request an appropriate limiting instruction

concerning information pertaining to charging decisions that is admitted solely on the issue

of the motivation of a witness.




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       Third, the defendant states, "Nothing in the motion should fairly be interpreted to

exclude evidence or argument that is probative of the defendant's state of mind." Resp. at

4. The defendant notes that the court has found that the defendant's state of mind in the

"touchstone for determining relevance in this case." Resp. at 3. Among other claims, the

defendant's response asserts that he must be able to offer proof that "he did not know or have

any reason to believe that [Plame's] employment status was classified or covert" and "did not

fear criminal liability for `leaking'." Resp. at 4. The government agrees that the defendant

may offer evidence to attempt to prove that he did not have a guilty state of mind or motive

to commit a crime. Evidence of defendant's state of mind is not within the scope of the

government's motion in limine regarding charging decisions. What the defendant ignores

is that state of mind is the touchstone of relevance for both the defendant and the prosecution.

The government may seek to offer evidence establishing that during the relevant time period

the defendant did have reasons to suspect or fear that Plame's identity was classified or

covert and reason to fear criminal liability. That evidence, too, goes to the defendant's state

of mind and is equally admissible to that offered by the defendant. This conclusion has no

bearing on the government's motion in limine, but undermines the defendant's motion in

limine attempting to preclude references to Plame's employment status that meet the state

of mind touchstone of relevance.

       Fourth, the defense argues that the government is inviting the jury to speculate

because of its intention to argue that the defendant's conduct frustrated the investigation into



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whether the disclosures at issue were illegal. The defense labels the government's position

"disingenuous" and "ironic." Resp. at 2, 10. Those labels perfectly describe the defendant's

argument. The defendant argues that it is disingenuous for the government to argue that the

defendant frustrated the investigation because the investigation was limited to discovering

who leaked information to Robert Novak and was limited to whether violations of the

Foreign Intelligence Identities Protections Act had occurred. Resp. at 2, 10. Of course, the

investigation was not so limited and, to borrow a phrase, the defense knows this. In fact,

defendant was on notice that the investigation concerned any government officials who

leaked the identity of Valerie Plame to any reporters, not just Robert Novak, and that the

investigation was not limited to determining whether violations of a single statute had

occurred. That establishes the disingenuous nature of defendant's argument. The irony

comes from the fact that the defendant, having pledged not to make arguments comparing

the investigation of the defendant's conduct to the investigations of other uncharged

individuals, erects the flimsy straw man that the entire investigation concerned the conduct

of others. The indictment charges that the defendant obstructed justice, committed perjury,

and made false statements during a criminal investigation of defendant's conduct.

       As discussed above, if the court agrees with the parties, the jury will learn that the

defendant has not been charged with a crime for revealing Valerie Plame's identity. Of

course, the jury also will learn that the defendant's conduct was under scrutiny. In a trial

where the defendant is accused of obstructing justice and lying during an investigation but



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not charged with the crime that gave rise to the investigation, it cannot be any more improper

for the government to argue that the defendant frustrated the investigation than it would be

for the defense to argue that the defendant did not frustrate the investigation. The point of

the government's motion, which the court should grant, is that it is improper for the

defendant to argue that the government didn't charge a crime relating to the original

disclosures because the government believes no crime occurred.

       The court should grant the motion in limine. This important ground rule, which, to

a great extent is agreed to by the defendant, should be established pre-trial and enforced by

the court.




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                                     CONCLUSION

      For all of the foregoing reasons, the United States respectfully requests that this Court

grant the government motion in limine to preclude comment and argument regarding the

government's charging decisions.

                                                  Respectfully submitted,

                                                         /s/
                                                  PATRICK J. FITZGERALD
                                                  Special Counsel

                                                  JAMES P. FLEISSNER
                                                  DEBRA RIGGS BONAMICI
                                                  KATHLEEN M. KEDIAN
                                                  Deputy Special Counsels

                                                  Office of the United States Attorney
                                                  Northern District of Illinois
                                                  219 South Dearborn Street
                                                  Chicago, Illinois 60604
                                                  (312) 353-5300

Dated: November 17, 2006




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     Case 1:05-cr-00394-RBW           Document 198        Filed 11/17/2006       Page 9 of 9



                                CERTIFICATE OF SERVICE

       I, the undersigned, hereby certify that on this 17th day of November, 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

posted by cboldt  # 11/17/2006 01:02:00 PM