No Easy Answers


Thursday, January 04, 2007

Fitzgerald Reply in Opposition to Libby's Proposed Jury Instructions [Doc 230]


       Case 1:05-cr-00394-RBW         Document 230        Filed 01/04/2007      Page 1 of 17



                              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
                GOVERNMENT'S PROPOSED JURY INSTRUCTIONS,
         AND IN OPPOSITION TO DEFENDANT'S PROPOSED ALTERNATIVES

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

COUNSEL, respectfully submits the following response to defendant's proposed jury instructions.

                                           BACKGROUND

         On November 13, 2006, both parties submitted proposed jury instructions to the Court. On

December 22, 2006, each party submitted objections to the other's proposed instructions. The

parties also proposed miscellaneous instructions in connection with proceedings pursuant to the

Classified Information Procedures Act and various motions in limine.

Instructions to Which the Parties Agree

         Based on the parties' submissions to date, it appears that the parties agree to the Court's

giving the following instructions from the Bar Association of the District of Columbia's Criminal

Jury Instructions (4th ed. Revised 2005)(The Red Book)("D.C. Form Instructions"):

1.02                 1.16           2.04              2.08              2.27             2.73
1.05                 2.01           2.05              2.09              2.42             2.75
1.10                 2.02           2.06              2.11              2.52             2.76
1.11                 2.03           2.07              2.13              2.71



       Case 1:05-cr-00394-RBW           Document 230         Filed 01/04/2007       Page 2 of 17



         In addition, the government has proposed that the following D.C. Form Instructions be given,

and the defense has neither specifically objected to the government's proposal, nor proposed

alternative instructions:

1.07     (Questions Not Evidence)                2.43    (Cross-examination of Character Witnesses)

2.10     (Direct / Circumstantial Evidence)      2.48    (Statements of the Defendant - Substantive
                                                         Evidence)

2.14     (Nature of Charges Not Considered) 2.70         (Redacted Documents)

2.23     (Testimony of Immunized Witness) 3.02           (Proof of State of Mind)

2.28     (Defendant as Witness)                  3.07    ("On or about" ­ Proof of)

2.29     (False/Inconsistent Statement
         by Defendant)

We therefore assume that the defense agrees with the giving of these instructions.

         The defense also has neither objected to, nor offered alternatives for, the following additional

instructions proposed by the government, most of which were drawn from O'Malley-Grenig-Lee,

Federal Jury Practice and Instructions ("O'Malley"): (a) instructions setting forth the statutory

language of each of the statutes under which defendant is charged (18 U.S.C. §§ 1503, 1001(a)(2),

and 1623(a) and the nature of the charges); (b) a separate unanimity instruction to be given with

respect to Counts 2, 3, 4 and 5 (§1001(a)(2) false statements and § 1623(a) perjury) in addition to

the general unanimity instruction; and (c) a limiting instruction with respect to evidence admitted

solely for the purpose of establishing its effect on defendant's state of mind. We assume that the

defendant agrees to the giving of these instructions as well.

         Finally, the government has agreed to the Court's giving the defendant's additional proposed

instructions numbered 3, 5, 6, 9, 10 and 16.


                                                    2



     Case 1:05-cr-00394-RBW          Document 230          Filed 01/04/2007       Page 3 of 17



Instructions That Are In Dispute

       The government objects to the following instructions proposed by the defense:


 1   (Pretrial Instructions)                         The government agrees in part and objects in
                                                     part, and has proposed modifications,
                                                     particularly with respect to the summaries of
                                                     the elements of the charged offenses. ^1

 2   (Pretrial Publicity)                            The government objects to a single sentence
                                                     as set forth in its Response to Defendant's
                                                     Proposed Jury Instructions ("Gov. Dec. 22
                                                     Response"), and would agree to the giving of
                                                     this instruction if that sentence were omitted.

 4   (Credibility of Law Enforcement                 The government objects to this proposed
     Witnesses)                                      instruction, and has proposed the use of D.C.
                                                     Form Instruction No. 2.26 instead.

 7   (Propriety of Defendant's Disclosures of        The government objects to this proposed
     the NIE)                                        instruction and has proposed an alternative as
                                                     set forth in the Gov. Dec. 22 Response.




       1
          The government has objected to the defendant's proposed description of the nature of the
case as incomplete. The case should be described as follows:

       According to the indictment, the government began an investigation in September
       2003 into possible unauthorized disclosures to various reporters of classified
       information regarding the CIA employment of Valerie Wilson, the wife of
       Ambassador Joseph Wilson, in the spring of 2003. The indictment charges that,
       during the course of this investigation, defendant I. Lewis Libby knowingly and
       willfully made materially false statements during two interviews with FBI agents in
       the fall of 2003, and that Mr. Libby knowingly and willfully provided materially false
       testimony under oath during two appearances before a federal grand jury in March
       2004. The indictment further alleges that, by deliberately providing false testimony
       to the grand jury, Mr. Libby corruptly endeavored to obstruct the due administration
       of justice.

       The defendant denies that he is guilty of any of the offenses charged in the
       indictment.


                                                 3



    Case 1:05-cr-00394-RBW           Document 230      Filed 01/04/2007       Page 4 of 17




8   ("Findings from the Science of               The government objects to this proposed
    Memory")                                     instruction and, as discussed in the Gov. Dec.
                                                 22 Response, asserts that D.C. Form
                                                 Instruction No. 2.11 (to which the defense has
                                                 agreed) properly address the issues the jury
                                                 should consider in assessing whether
                                                 inaccuracies in defendants statements to
                                                 investigators and the grand jury were
                                                 attributable to faulty memory.

11 (Obstruction of Justice)                      The government objects to this proposed
                                                 instruction. The government originally
                                                 proposed the use of O'Malley §§ 48.01-48.05.
                                                 The government would agree to the use of
                                                 Defense No. 11 if the substantial
                                                 modifications outlined in the Gov. Dec. 22
                                                 Response were made.

12 (False Statements)                            The government objects to this proposed
                                                 instruction. The government originally
                                                 proposed the use of O'Malley §§ 40.05-40.8
                                                 and 40.13-40.14. The government would
                                                 agree to the use of Defense No. 12 if the
                                                 substantial modifications outlined in the Gov.
                                                 Dec. 22 Response were made.

13 (Ambiguity)                                   The government objects to this proposed
                                                 instruction on the ground that there is no
                                                 factual basis for giving it.

14 (Perjury)                                     The government objects. The government
                                                 originally proposed an instruction based on
                                                 O'Malley §§ 50.06- 50.08 and case authority.
                                                 The government would agree to the use of
                                                 Defense No.14 if the substantial
                                                 modifications outlined in the Gov. Dec. 22
                                                 Response were made.

15 (Unanimity)                                   The government requests that D.C. Form
                                                 Instruction 2.72 be given instead.




                                             4



    Case 1:05-cr-00394-RBW           Document 230          Filed 01/04/2007      Page 5 of 17



    The defense has objected to the following instructions proposed by the government:



 Obstruction of Justice - Elements and               The defense has objected to the government's
 Definition of Terms                                 proposed instructions and proposed an
                                                     alternative (Defense No. 11) to which the
                                                     government objects. As indicated above, the
                                                     government would agree to Defense No. 11 if
                                                     the modifications outlined in the Gov. Dec.
                                                     22 Response were made.

 False Statements - Elements and Definition of       The defense has objected to the government's
 Terms                                               proposed instruction and proposed an
                                                     alternative (Defense No. 12) to which the
                                                     government objects. As indicated above, the
                                                     government would agree to Defense No. 12 if
                                                     the substantial modifications outlined in the
                                                     Gov. Dec. 22 Response were made.

 Perjury - Elements and Definition of Terms          The defense has objected to the government's
                                                     proposed instruction and proposed an
                                                     alternative (Defense No. 14) to which the
                                                     government objects. As indicated above, the
                                                     government would agree to Defense No. 14 if
                                                     the substantial modifications outlined in the
                                                     Gov. Dec. 22 Response were made.

 Unanimity                                           The defense has proposed an alternative
                                                     (Defense No. 15) to which the government
                                                     objects.

 Instruction on Employment Status of Valerie         The defense proposed an alternative to which
 Plame.                                              the government objects.

 Instruction on Testimony Regarding                  The defense proposed an alternative to which
 Classified Information                              the government objects. ^2



       2
           The government proposed this instruction during the CIPA proceedings. The defendant
submitted an alternative instruction in a supplemental filing on December 15, 2006. The government
included its proposed instruction in the Gov. Dec. 22 Response, but inadvertently omitted to state
its strong objection to the defendant's alternative..

                                                 5



     Case 1:05-cr-00394-RBW            Document 230          Filed 01/04/2007      Page 6 of 17




 Instruction on the Absence of Charges                 The provided an alternative to which the
 Related to Defendant's Disclosure of                  government objects.
 Information Regarding Valerie Plame Wilson



                                            ARGUMENT

       In his response to the government's proposed jury instructions, defendant argued that: (a)

the government's proposed instruction regarding the elements of 18 U.S.C. §1503, obstruction of

justice (Count 1) is deficient in that it understates the requisite mens rea and overstates the conduct

for which the jury could properly convict the defendant; (b) the government's proposed definition

of materiality with respect to the false statement charges (Counts 2 and 3) is inadequate; (c) the

wording of the government's proposed definition of materiality for purposes of the perjury charges

(Counts 4 and 5) is deficient; and (d) the government's proposed instructions related to false

statements and perjury improperly fail to instruct the jury with respect to the effect of ambiguous

questioning.   As demonstrated below, the objections raised in defendant's response to the

government's proposed jury instructions lack merit. ^3

I.     The Government's Proposed Instructions Accurately State the Law Regarding the
       Requisite Mens Rea for Obstruction of Justice.

       In order to establish a violation of § 1503, the government must establish that the defendant

acted with the wrongful intent or improper purpose to influence the judicial or grand jury proceeding,

whether or not the defendant is successful in doing so. E.g., United States v. Quatrrone, 441 F.3d

153, 170 (2d Cir. 2006)(citing United States v. Fassnacht, 332 F.3d 440, 447 (7th Cir.2003); United


       3
          Defendant argues generally that the government's instructions fail to address certain critical
issues, and requests that the Court give the instructions he has proposed. The government sets forth
its position with respect to the defendant's proposed instructions and limits its argument to the
specific objections raised by the defendant in its Response to the Government's Proposed Jury
Instructions.

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    Case 1:05-cr-00394-RBW            Document 230        Filed 01/04/2007       Page 7 of 17



States v. Aguilar, 515 U.S. 593, 599 (1995)). The government's proposed instructions, which were

drawn directly from O'Malley-Grenig-Lee, Federal Jury Practice and Instructions (§§ 48.04 and

48.05) accurately state the law:

       To act "corruptly" as that word is used in these instructions means to act voluntarily
       and deliberately and for the purpose of improperly influencing, or obstructing, or
       interfering with the administration of justice.

               *       *       *

       The term "endeavors" as used in these instructions means to knowingly and
       deliberately act or to knowingly and deliberately make any effort which has a
       reasonable tendency to bring about the desired result.

       It is not necessary for the government to prove that the "endeavor" was successful or,
       in fact, achieved the desired result.

Contrary to defendant's contention, the foregoing do not understate the requisite mens rea of a

violation of 18 U.S.C. § 1503. Instead, they inform the jury that, in order to convict, the jury must

find beyond a reasonable doubt that the defendant acted knowingly, voluntarily and deliberately, for

the purpose of improperly influencing, or obstructing, or interfering with the administration of

justice. Thus, these instructions make clear that the defendant may not be convicted unless the jury

finds that he acted knowingly, voluntarily and deliberately, with the specific intent of improperly

influencing, obstructing or interfering with the administration of justice, and do not allow for a

conviction based on "innocuous" efforts to influence the grand jury's investigation, because they

require that the defendant deliberately attempted to improperly influence, obstruct or interfere with

it. The government's proposed instruction fully and accurately apprises the jury that the defendant

may not be convicted unless he acted deliberately and with consciousness of wrongdoing.




                                                 7


    Case 1:05-cr-00394-RBW            Document 230         Filed 01/04/2007        Page 8 of 17



       Defendant's demand that the term "for the purpose of improperly influencing, or obstructing,

or interfering with the administration of justice" be replaced with the term "with specific intent to

subvert or undermine the administration of justice" is also unwarranted. At best, defendant's

proposed terminology is more unfamiliar and confusing. How often does the average juror see or

use the term "subvert"? At worst, it is misleading. The New Oxford American Dictionary (2001

edition) (at 1697) defines the term "to subvert" as to "undermine the power and authority of (an

established system or institution). Section 1503 includes no requirement that the defendant

specifically intend to undermine the power and authority of the grand jury, but only to improperly

influence, obstruct or impede the grand jury's investigation.

       Nor would inserting the terms "dishonestly" or "with consciousness of wrongdoing" as

defendant suggests add any meaning to the government's proposed description of the requisite mens

rea. To the contrary, it would lead to confusion with redundancy. Count 1 charges that the

defendant corruptly endeavored to influence, obstruct or impede proceedings before Grand Jury 03-3

in the federal district court of the District of Columbia by knowingly making certain following

materially false and misleading statements and representations under oath. The government's

proposed instruction requires that the jury find that the defendant acted voluntarily and deliberately,

for the purpose of improperly influencing, obstructing or impeding the investigation. How might

a person knowingly lie to a grand jury under oath, voluntarily and deliberately for the purpose of

improperly influencing, obstructing or impeding its investigation, without acting dishonestly or with

consciousness of wrongdoing? By adding such terms, the instruction would only confuse the jury

by suggesting that knowingly making materially false declarations under oath, voluntarily and

deliberately "for the purpose of improperly influencing, obstructing or impeding" a federal grand jury


                                                  8



     Case 1:05-cr-00394-RBW             Document 230          Filed 01/04/2007        Page 9 of 17



investigation, is somehow not in itself "dishonest" and "consciously wrongful," and leading the jury

to speculate regarding what additional evidence might be required to find that the defendant

acted"dishonestly" and with consciousness of wrongdoing.

        Finally, defendant cites, and research reveals, no authority for the proposition that a defendant

charged with obstruction of justice under § 1503 is entitled to an instruction that requires the jury

to find not only must the defendant have deliberately lied for the purpose of improperly influencing,

obstructing, or interfering with the grand jury's investigation, but also that his conduct was

"wrongful, immoral, depraved or evil." As the D.C. Circuit has noted, "[w]ords like `depraved,'

`evil,' `immoral,' `wicked,' and `improper' are no more specific-indeed they may be less specific-

than `corrupt'" and defining vague terms with other vague terms serves no purpose. United States

v. Poindexter, 951 F.2d 369, 379 (D.C. Cir. 1991)(citing Walton v. Arizona, 497 U.S. 639 (1990)).

Moreover, there is no legal requirement that the government meet this additional burden and, thus,

including this language in the instruction would misstate the law. In fact, considering that the terms

"immoral," depraved," and "evil," are commonly associated with conduct of a completely different

character, that is, conduct that is violent and/or sexually deviant, it is difficult to imagine that a jury

would ever apply these terms to a violation of § 1503.

        Defendant's reliance on United States v. Arthur Andersen, 544 U.S. 696 (2005) is misplaced.

As defendant concedes, the instruction rejected by the Supreme Court in that case made it sufficient

for the defendant to have acted for the purpose merely of "impeding" a government function. Def.

Rsp. at 3. In order to argue that the government's proposed instruction suffers from the same

deficiency, the defendant is forced to omit the term "improperly" from the government's instruction.

Def. Rsp. at 3 ("The government's definition defines "corruptly" as "acting" to "influenc[e], or


                                                    9



    Case 1:05-cr-00394-RBW           Document 230         Filed 01/04/2007       Page 10 of 17



obstruct[] or interfer[e].") Moreover, as previously noted, the Court in Arthur Andersen specifically

distinguished the language of § 1512(b)(2)(A) and (B) from that of § 1503, however, observing that,

whereas the relevant provision of § 1512 requires that a defendant have acted both"knowingly" and

"corruptly," § 1503 (and § 1505) require that a defendant merely have acted "corruptly." 544 U.S.

at 706, n. 9. Here, the alleged conduct is inherently "dishonest" and improper. Knowingly making

materially false declarations to a grand jury cannot be innocuous. The additional requirement that

the defendant have done so for the purpose of "improperly" influencing, obstructing or impeding the

grand jury's investigation clearly conveys the point that the defendant must have acted with an

improper purpose. See also United States v. North, 910 F.2d 843, 882 (D.C. Cir. 1990). Nothing

more is required.

       For all of these reasons, the government strongly objects to the Defense Proposed Instruction

No. 10 unless it is modified to remove the terms "dishonestly," "wrongful, immoral, depraved and

evil," and "specific intent to subvert." Consistent with the above, the government would agree to

the following modified elements instruction:

       Count One charges Mr. Libby with corruptly endeavoring to influence, obstruct or
       impede the due administration of justice obstruction of justice. In order to sustain
       this charge, the government must prove each of the following essential elements
       beyond a reasonable doubt:

               1.      That there was a proceeding pending before a federal grand jury;

               2.      That Mr. Libby knew of the pending grand jury proceeding;

               3.      That Mr. Libby endeavored to influence, obstruct, or impede
                       the due administration of justice in that proceeding as charged
                       in Count One; and




                                                 10



      Case 1:05-cr-00394-RBW           Document 230         Filed 01/04/2007       Page 11 of 17



                4.       That Mr. Libby acted corruptly, that is, voluntarily and
                         deliberately and for the purpose of improperly influencing, or
                         obstructing, or interfering with the administration of justice.

        It is not necessary for the government to prove that Mr. Libby was successful in
        improperly influencing, obstructing or interfering with the grand the "endeavor" was
        successful or, in fact, achieved the desired result.

II.     The Government's Proposed Instruction Regarding the Elements of Obstruction of
        Justice, as Modified, More Closely Tracks the Language of the Indictment, as
        Defendant Advocates.

        Defendant argues that the government's proposed instruction fails to set out the means by

which the indictment charges that the defendant endeavored to obstruct justice. In the Gov. Dec. 22

Response, the government proposed a modification to Defense No. 10 that would resolve the

defendant's objection:

        Count One charges that, in March 2004, Mr. Libby corruptly endeavored to
        influence, obstruct or impede proceedings before Grand Jury 03-3 in the federal
        district court of the District of Columbia by knowingly making the following
        materially false and misleading statements and representations under oath: [Continue
        with paragraphs numbered 1 through 3 as set forth on page 23 of the defendant's
        proposed instructions, and omit the language that follows.]

        The government agrees that the means by which the indictment charges the defendant

committed the offense charged in Count 1 should be included in the jury's charge. In addition, based

on the discussion in Section I above, the government suggests that language related to the requisite

mens rea be added, and that the language of the indictment related to the charged false declarations

be tracked more closely, as the defendant advocates. Thus, the government proposes the following

modification:

        Count One charges that Mr. Libby corruptly endeavored to influence, obstruct and
        impede the due administration of justice by knowingly making the following
        materially false and misleading statements and representations under oath, voluntarily



                                                   11



       Case 1:05-cr-00394-RBW          Document 230         Filed 01/04/2007       Page 12 of 17



         and deliberately, for the purpose of improperly influencing, obstructing or interfering
         with the proceedings before Grand Jury 03-3 in the District of Columbia:

                When Mr. Libby spoke with Tim Russert of NBC News, on or about July 10,
         1.
                2003,

                a.      Mr. Russert asked Mr. Libby if Mr. Libby knew that Joseph Wilson's wife
                        worked for the CIA;

                b.      Mr. Russert told Mr. Libby that all the reporters knew it;

                c.      At the time of this conversation, Mr. Libby was surprised to hear that
                        Wilson's wife worked for the CIA;

                Mr. Libby advised Matthew Cooper of Time magazine on or about July 12, 2003, that
         2.
                he had heard that other reporters were saying that Wilson's wife worked for the CIA,
                and further advised him that Mr. Libby did not know whether this assertion was true;

                Mr. Libby advised Judith Miller of the New York Times on or about July 12, 2003
         3.
                that he had heard that other reporters were saying that Wilson's wife worked for the
                CIA but Mr. Libby did not know whether that assertion was true.

III.     The Government's Proposed Instructions Accurately Define the Term "Material" for
         Purposes of Counts 2 and 3.

         The defendant charges that the government's proposed definition of the term "material" is

deficient in that it would allow the jury to "nit-pik Mr. Libby's statements and convict him based on

a finding that he lied about unimportant facts." To remedy this purported problem, the defendant

proposes the additional following language:

         The test is whether the false statement has the capacity to impair or pervert the
         functioning of the FBI. In other words, a statement is material if it relates to an
         important fact as distinguished from some unimportant or trivial detail.

This objection is meritless. The government's proposed definition ("A statement is material if it has

a natural tendency to influence, or is capable of influencing" a governmental function) has been

approved by the Supreme Court, United States v. Gaudin, 515 U.S. 506, 509 (1995)(quoting Kungys



                                                   12



      Case 1:05-cr-00394-RBW          Document 230         Filed 01/04/2007        Page 13 of 17



v. United States, 485 U.S. 759, 770 (1988)). The instruction does not allow a conviction based upon

lies that are "unimportant;" to the contrary, it allows conviction only upon a showing that the charged

lie was material. As the Supreme Court has stated, the questions the jury must answer are simple

and straightforward: (a) "[W]hat statement was made?" (b) "[W]hat decision was the agency trying

to make?" and (c) "[W]hether the statement was material to the decision?" 515 U.S. at 512. Thus,

it is necessary to show only that the statement was important in the sense that it was capable of

influencing a decision of the FBI.

        It would be improper to instruct the jury that it must determine whether the fact or facts to

which the statement relates are "important" or "trivial," in a general sense in that it would invite the

jury to assess the materiality of the charged statements by reference to their own views of what is

important or unimportant or by their views of what the defendant considered, or should have

considered, important and unimportant. Defendant's modification of the essential elements of 18

U.S.C. § 1001(a)(2) fits neatly with his anticipated arguments that information regarding Ms. Wilson

and his conversations regarding this information were "unimportant" and therefore he forgot them.

The jury must not be permitted to confuse the alleged "unimportance" of information regarding Ms.

Wilson's employment to Mr. Libby with the question of whether the defendant's statements were

important to the conduct of the FBI's investigation and, thus, could have influenced that

investigation.

IV.     The Government's Proposed Instructions Accurately Define the Term "Material" for
        Purposes of Counts 4 and 5.

        Defendant charges that the government's proposed elements instruction for Counts 4 and 5

(perjury) creates the risk that the defendant could be convicted based on innocent, immaterial



                                                  13



     Case 1:05-cr-00394-RBW           Document 230         Filed 01/04/2007        Page 14 of 17



statements only tangentially related to material issues"based on its syntax, that is, its use of phrase,

"The false testimony concerned matters that were material to the grand jury investigation." The

government disagrees with this assessment and notes that, in light of the instruction's requirement

that the false testimony be "knowingly given," and the definition of "materiality" proposed along

with the elements instruction, there is no risk that the defendant would be convicted based on

innocent, immaterial statements if the government's proposed instruction were given.

        In any event, in the Gov. Dec. 22 Response, the government agreed to a modified version of

defendant's formulation of the elements of perjury which would resolve any objection based on the

use of the word "concerned":

        Counts Four and Five charge Mr. Libby with perjury. In order to sustain a charge of
        perjury, the government must prove each of the following essential elements beyond
        a reasonable doubt:

        1.      That Mr. Libby made a statement before the grand jury while he was under oath;

        2.      That such statement was false in one or more of the respects charged;

        3.      That Mr. Libby knew such statement was false when he made it; and

        4.      That the false statement was material to the grand jury's inquiry, that is, that it had
                the effect of influencing the decision or actions of the grand jury, or was capable of
                or had the potential to do so.

        It is not necessary for the government to prove that a decision or action of the grand
        jury actually influenced the false statement, but only that it was capable, or had the
        potential of doing so.

V.      Defendant Is Not Entitled to an Instruction that "Educates Jurors How to Weigh
        Ambiguities Under Bronston."

        The defendant objects to the government's proposed instructions in that they "fail to inform

the jurors how their deliberations should be affected by ambiguity in the questions asked of Mr.



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Libby and the answer he gave." Def. Reply at 6. However, defendant fails to identify a single

question or answer that he claims is in any way ambiguous and, thus, there is no ambiguity for the

jury to "weigh" in this case. Thus, there is no reason, and no proper basis, for instructing the jury

regarding ambiguity, and defendant should not be able to inject an issue into the jury's deliberations

that does not exist. See, e.g., Mathews v. United States, 485 U.S. 58, 63 (1988)(stating that

defendant is "entitled to an instruction as to any recognized defense for which there exists evidence

sufficient for a reasonable jury to find in his favor").

        The Supreme Court's decision in United States v. Bronston, 409 U.S. 352 (1973) has no

application to this case. There, the Supreme Court ruled that the defendant could not be convicted

of perjury based on an "answer that [was] literally true but unresponsive, even assuming the witness

intends to mislead his questioner by the answer." In Bronston, the defendant was charged with

perjury based on his testimony in a bankruptcy proceeding when asked whether he had any accounts

in Swiss banks, and he answered, "The company had an account there for about six months, in

Zurich." While the defendant's testimony that the company had an account in Zurich for about six

months was literally true, the answer was intentionally misleading in that it failed to account for the

fact that he, too, held a personal Swiss bank account. Because defendant has not, and cannot,

identify any charged false declaration made in response to an ambiguous question, or any charged

false declaration that was "literally true" but misleading, there is no basis under Bronston or any

other authority to instruct the jury in this case on how to weigh ambiguity as part of their

deliberations.




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                                          CONCLUSION

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

the government's objections to defendant's proposed jury instructions, and overrule the defendant's

objections to the instructions proposed by the government.

                                                       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: January 3, 2006.




                                                  16
   Case 1:05-cr-00394-RBW           Document 230        Filed 01/04/2007       Page 17 of 17



                                CERTIFICATE OF SERVICE

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

                          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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