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Thursday, January 04, 2007

Fitzgerald Memorandum - Admission of Complete Grand Jury Transcript [Doc 231]


     Case 1:05-cr-00394-RBW             Document 231         Filed 01/04/2007        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 MEMORANDUM OF LAW IN SUPPORT OF
                  ADMISSION OF COMPLETE TRANSCRIPT OF
                   DEFENDANT'S GRAND JURY TESTIMONY

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

COUNSEL, respectfully submits the following memorandum of law in support of the admission in

evidence of the complete transcript of the defendant's grand jury testimony.

                                         INTRODUCTION

        The government has advised the defense and the Court that it intends to offer into evidence

the transcript of the defendant's grand jury testimony in its entirety, and to publish to the jury during

the trial substantial portions of that testimony. 12/19/06 Tr. 14. The defense has voiced an objection

to the admission of any portions of the transcript other than those that reflect the false declarations

with which the defendant has been charged. 12/19/06 Tr. 15, 17. As demonstrated below, the

government is entitled to introduce the complete transcript of the defendant's grand jury testimony

in order to establish that the charged false declarations were made, the context in which they were

made, and the fact that they were material to the grand jury's investigation.

                                            ARGUMENT

        Defendant has cited, and research reveals, no case in which the Court has precluded the

government from introducing the complete transcript of a defendant's grand jury testimony in


                                                    1



     Case 1:05-cr-00394-RBW             Document 231         Filed 01/04/2007       Page 2 of 8



support of perjury charges. In fact, the government is unaware of any reported federal case in which

a defendant even argued that portions of his own testimony should be excluded from evidence. To

the contrary, the typical defense argument is that additional portions of the transcript ought to be

admitted "in fairness" so that the charged declarations are given their proper context, or that excerpts

are insufficient to establish materiality. See, e.g., United States v. Conley,186 F.3d 7, 20 (1st Cir.

1999). See generally Fed. R. Evid. 106.

        To establish defendant's guilt on Counts 4 and 5 of the indictment, the government has the

burden of proving beyond a reasonable doubt that the charged false declarations were material to the

grand jury's investigation, that is, that they had "a natural tendency to influence, or [were] capable

of influencing" the grand jury's decisions (see United States v. Gaudin, 515 U.S. 506, 509

(1995)(quoting Kungys v. United States, 485 U.S. 759, 770 (1988)). While the materiality of the

charged declarations in perjury cases may be proven by a variety of means, it is well accepted that

admission of the complete transcript of the defendant's testimony is a proper method of proof. See,

e.g., United States v. Abrams, 568 F.2d 411, 421 (5th Cir. 1978) (approving the admission of "the

entire transcript of all three [of defendant's] grand jury appearances" and commenting that "the best

way to know what the grand jury deems material is by reading what it asked about"); United States

v. Thompson, 637 F.2d 267, 268 (5th Cir. 1981) ("[t]he scope of the grand jury's inquiry and the

materiality of the declaration to that inquest are generally, and usually best, proved by introduction

of a complete transcript of the grand jury proceedings or by testimony of the foreman or some other

member of the grand jury"). See generally, United States v. Nazzaro, 889 F.2d 1158, 1166 (1st

Cir.1989); United States v. Picketts, 655 F.2d 837, 840 (7th Cir.1981). In contrast, offering the

allegedly false statements alone generally is "not enough" to prove their materiality. E.g., United


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     Case 1:05-cr-00394-RBW             Document 231         Filed 01/04/2007        Page 3 of 8



States v. Leon-Reyes, 177 F.3d 816, 820 & n.5 (9th Cir. 1999)(also noting that cases predating

United States v. Gaudin, 515 U.S. 506 (1995) continue to be relevant to the question of how the

prosecution may prove materiality)(citations omitted); United States v. Bell, 623 F.2d 1132, 1135

(5th Cir. 1980)(finding that "excerpts" of the defendant's grand jury testimony, even when coupled

with the testimony of an agent and prosecutor, were insufficient in that they "prove[d] little about

materiality").

        Some courts have gone so far as to hold that it is preferable to admit the transcript of the

grand jury's entire investigation in order to prove materiality. See, e.g., United States v. Ostertag,

671 F.2d 262, 265 (8th Cir. 1982) ("although it would have been preferable if the government had

introduced the entire transcript [of the grand jury proceeding], we conclude that the trial judge had

adequate evidence of the scope of the investigation before him"); United States v. McComb, 744 F.2d

555, 564 (7th Cir. 1984) (identifying the introduction into evidence of "[t]he transcript of the grand

jury proceedings" as one of several means by which the government may establish "a nexus between

the grand jury's investigation and the defendant's false statements"); United States v. Farnham, 791

F.2d 331, 333 (4th Cir. 1986) ("[t]raditionally, the government can establish the scope of the grand

jury investigation by one of three methods: obtaining the testimony of a grand juror as to the nature

of the investigation; introducing a full transcript of the grand jury proceedings; or having the attorney

who presented the case to the grand jury testify")(internal citations omitted). However, other cases

have made clear that it is not necessary to introduce the transcript of the entire grand jury

investigation in every case. See, e.g., Ostertag, 671 F.2d at 265; United States v. Jackson, 640 F.2d

614 (8th Cir. 1981)(approving trial court's determinations that introduction of excerpted portion of

prior proceedings containing only defendant's testimony was sufficient, and that there was no need


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      Case 1:05-cr-00394-RBW            Document 231         Filed 01/04/2007      Page 4 of 8



to introduce transcript of entire prior proceeding).

        Separate and apart from the issue of materiality, the complete transcript of defendant's grand

jury testimony is also relevant to place the charged false declarations in context. United States v.

Martellano, 675 F.2d 940, 943-44 (7th Cir. 1982). The government must introduce portions of the

transcript "sufficient to put the question[s] and answer[s] in context so as to shed light on the

meaning of the question[s] and response[s]." Id. Both "preliminary questions" and "qualifying

colloquies" following the questions and answers in issue may be relevant to context.

Acknowledging that it may not be necessary for the government to introduce the defendant's entire

grand jury testimony in every case, the Seventh Circuit has pointed out that placing the charged false

declarations in context is necessary to a fair trial for both sides:

        This common sense context rule works both ways. The defendant may not establish
        his defense by isolating a statement from its context in order to try to give it a
        meaning entirely different from that which it has when the testimony is considered
        as a whole.

Id.

        In this case, introduction of the complete transcript of the entire grand jury investigation

clearly would be unnecessary and improper, in light of both the length and breadth of the

investigation, and the fact that portions of the grand jury's inquiry focused primarily on the conduct

of others, including others who were never charged with crimes. Evidence related to the grand jury's

inquiries concerning conduct and events completely unrelated to the defendant is irrelevant and, in

any event, any probative value of such evidence would be far outweighed by the risk of confusion,

undue prejudice and waste of time and thus excludable under Fed. R. Evid. 403.

        Admission of the complete transcript of defendant's grand jury testimony, however, is



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     Case 1:05-cr-00394-RBW             Document 231          Filed 01/04/2007        Page 5 of 8



essential in this case. First, admission of the complete transcript is necessary to demonstrate the

scope of the grand jury's investigation and the materiality of the charged declarations. The

government has the burden of proving materiality beyond a reasonable doubt. Moreover, the defense

has indicated that it intends to contest the materiality of the charged false declarations by arguing that

the focus of the grand jury's investigation was the leak of information regarding Valerie Wilson's

employment to Robert Novak, rather than leaks to other reporters (or that the defendant believed the

scope of the investigation to be so limited), and that defendant's testimony could not have been

material given that the grand jury had identified the individuals who leaked to Novak prior to

defendant's grand jury appearance (or that defendant believed that such was the case). The

government is entitled to demonstrate through all of the questions asked of defendant that the scope

of the grand jury investigation included: (a) identifying all individuals involved in leaking

information concerning Ms. Wilson's employment to any reporters; (b) determining the

circumstances under which information regarding Ms. Wilson's employment was learned and leaked

by such individuals; and (c) determining whether false information was provided to the FBI or the

grand jury. If only the charged false declarations and the testimony immediately preceding and

following them were admitted in evidence, the jury would be given the false impression that the

scope of questioning of the defendant, and the scope of the grand jury's overall investigation, were

more limited than they were. The government is entitled to present, and the jury is entitled to

evaluate, the full scope of the defendant's testimony in determining what was, and what was not,

material to the grand jury's investigation.

        Second, admission of the complete transcript is necessary in order to establish that the

defendant made the charged false declarations under non-coercive circumstances, and in response


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     Case 1:05-cr-00394-RBW             Document 231         Filed 01/04/2007       Page 6 of 8



to careful, thorough, and fair questioning. Similarly, admission of the complete transcript is

necessary to demonstrate to the jury that the government has neither cherry-picked inculpatory

"snippets" of testimony, nor omitted exculpatory details. The jury should be permitted to evaluate

both the government's questioning and the defendant's testimony as a whole, and should not be left

to speculate or wonder about the questions or answers contained in the excluded portions of the

transcripts.

        Third, in light of the defendant's planned "memory" defense, it is critical for the jury to have

an opportunity to assess the quality of defendant's memory as reflected in his testimony throughout

both grand jury appearances. In assessing all of the charged counts, the jury will be required to

weigh the credibility of defendant's assertions that he was so consumed with the national security

matters that he was unable to accurately recall details of the relevant events, and to determine

whether, instead, the defendant knowingly made false statements and declarations, and attempted

to mislead and deceive the grand jury for the purpose of obstructing justice. In order to make this

assessment, the jury must be permitted to evaluate the overall content and tenor of the defendant's

testimony and to compare the defendant's memory of exculpatory or neutral facts with his memory

of facts that tended to inculpate him. In light of defendant's insistence that he is entitled to put

before the jury a panoply of details of meetings he attended during the period May 2003 through

March 2004, his attempt to keep from the jury the complete transcript of his own testimony is ironic,

to say the least.

        Finally, while the defendant has suggested generally that parts of the defendant's grand jury

testimony are not relevant, he has not requested that any particular passages be excluded under Fed.

R. Evid. 401 or 403. Contrary to defendant's suggestion, as a result of government counsel's


                                                   6



     Case 1:05-cr-00394-RBW             Document 231         Filed 01/04/2007        Page 7 of 8



focused questioning of defendant before the grand jury, the transcript is limited to topics that were

material to the grand jury's inquiry and are relevant to the matters in issue at trial. Moreover, the

transcript contains no material that could even remotely be characterized as prejudicial or

inflammatory. While the government intends to streamline its trial presentation by limiting the

number of transcript passages it will publish to the jury, there is no basis in law or fact for excluding

any portion of the transcript of defendant's grand jury testimony from evidence.

                                           CONCLUSION

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

that the complete transcript of defendant's grand jury testimony may be admitted during the trial of

this case.

                                                        Respectfully submitted,

                                                               /s/
                                                        PATRICK J. FITZGERALD
                                                        Special Counsel

                                                        Debra Riggs Bonamici
                                                        Kathleen M. Kedian
                                                        Peter R. Zeidenberg
                                                        Deputy Special Counsels

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

Dated: January 3, 2006




                                                   7



     Case 1:05-cr-00394-RBW           Document 231        Filed 01/04/2007       Page 8 of 8



                                CERTIFICATE OF SERVICE

       I, the undersigned, hereby certify that on this 3rd day of January 2007, 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

                          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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