No Easy Answers
Wednesday, February 14, 2007
Fitzgerald Memorandum and Proposed Jury Form [Doc 284]
Three new filings as of 12:20 PM Eastern on February 14.
Click links to see two filings by Team Libby ...
Doc 282 - Libby argues to admit evidence to impeach Russert
Doc 283 - Libby's Second Set of Proposed Jury Instructions
In the below, note that Count One (obstruction) has 4 elements. If Miller's July 12 conversation had been included, it TOO would need to be proved. Eliminating Miller's July 12 conversation makes finding guilt on Count One EASIER, not harder.
Seems Judge Walton may have ruled against Libby on the impeachment of Russert on the collateral issue of Russert lying on the stand when he said he didn't know that a witness can't bring his lawyer into the grand jury room. See Marcy Wheeler's Libby Live: Craig Schmall, and Kim Pearson's Recall Russert?.
That's a small potatoes ruling. A more significant one, not yet formally handed down, will relate to the extent to which CIPA-related (classified) material can come in to permit an inference of Libby preoccupation, without Libby taking the stand. Judge Walton is coming across as permitting only small amounts of the CIPA-related evidence, unless Libby himself takes the stand to express how those facts occupied his mind.
Judge Walton must have ruled - the defense presented CIPA-related evidence in written form, as testimony that would have been given by Libby's CIA briefers. Marcy Wheeler's Libby Live: Craig Schmall has the details.
There will be continued wrangling over the form of jury instructions and verdict forms. Fitzgerald will (I think successfully on most) oppose a significant number of the formulations expressed in Libby's proposed jury instructions.
Case 1:05-cr-00394-RBW Document 284 Filed 02/14/2007 Page 1 of 16
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
GOVERNMENT'S PROPOSED VERDICT FORM
The UNITED STATES OF AMERICA, by PATRICK J. FITZGERALD, SPECIAL
COUNSEL, respectfully submits the following Memorandum of Law in Support of Government
Proposed Verdict Form.
INTRODUCTION
On January 30, 2007, the parties submitted proposed verdict forms. The defendant's
proposed form, in contrast to the government's, requires that the jury answer multiple special
interrogatories with respect to each count of the indictment. Whereas, in the government's view, the
law requires that the jury be given special unanimity instructions in this case, it is not necessary that
the jury report their findings in special interrogatories, and it is inappropriate to encumber any
Special Verdict Form that is used with repetitions of parts of the Court's elements instructions.
Because the Court has expressed the desire to use a special verdict form in this case, the government
summarizes below the legal principles generally applicable to the use of special verdict forms, and
offers a proposed special Verdict Form to be used in lieu of the form proposed by the defense.
ARGUMENT
A "special unanimity" instruction is required "when there is a genuine risk of juror confusion
or of conviction resulting from different jurors concluding the defendant committed different acts."
Case 1:05-cr-00394-RBW Document 284 Filed 02/14/2007 Page 2 of 16
United States v. Sayan, 968 F.2d 55, 65 (D.C. Cir. 1992). When a charge in an indictment
encompasses separate acts, any one of which is sufficient for a finding of guilty, such as multiple,
distinct false statements alleged in a single count, the D.C. Circuit, as a rule, will "requir[e] an
instruction on the need for unanimity on the particular acts on which a guilty verdict is based.."
United States v. North, 910 F.2d 843, 874, 876 (D.C. Cir.) ("as a rule a general instruction on
unanimity like the one given in the present case -- advising the jury that its members must
unanimously agree on any aspect of the case as to which it renders a verdict -- protects the
defendant's right to a unanimous jury decision")(internal quotation marks omitted), modified in part,
920 F.2d 940 (D.C. Cir. 1990). In this case, the government has proposed the use of special
unanimity instructions. ^1
It does not, however, automatically follow from a determination to give a special unanimity
instruction that the jury must be required to answer specific questions proposed by the defendant,
or by the government, or to return a special verdict. ^2 To the contrary, special verdicts are generally
1
On the other hand, there is no requirement of jury unanimity regarding which of several
means were used to commit a single offense, however. E.g., Schad v. Arizona, 501 U.S. 624, 650
(1991) (Scalia, J., concurring)("[I]t has long been the general rule that when a single crime can be
committed in various ways, jurors need not agree upon the mode of commission. That rule is not
only constitutional, it is probably indispensable in a system that requires a unanimous jury verdict
to convict. When a woman's charred body has been found in a burned house, and there is ample
evidence that the defendant set out to kill her, it would be absurd to set him free because six jurors
believe he strangled her to death (and caused the fire accidentally in his hasty escape), while six
others believe he left her unconscious and set the fire to kill her.)
2
The terms "special verdicts" and "special interrogatories" often are used loosely and
interchangeably, but they are not the same. See Nepveu, "Beyond `Guilty' or `Not Guilty': Giving
Special Verdicts in Criminal Jury Trials," 21 Yale L. & Pol'y Rev. 263 (2003) ("[a] true special
verdict is one where the jury does not render a general verdict of guilty or not guilty, but simply finds
certain facts and leaves the rest to the court. True special verdicts are almost never used in criminal
cases, because by taking away the jury's power to render a verdict, they violate the Sixth Amendment
2
Case 1:05-cr-00394-RBW Document 284 Filed 02/14/2007 Page 3 of 16
disfavored in criminal cases (United States v. Ellis, 168 F.3d 558, 562 (1st Cir. 1999)). Whereas the
use of a special verdict may be appropriate or even necessary in limited cases, such as when the
defendant faces conviction "on counts charging the violation of multiple statutes, each with different
maximum sentences" (United States v. Todd, 920 F.2d 399, 407 (6th Cir. 1990)), or where "the
finding of an overt act is constitutionally necessary to conviction, or when the defendant requests or
approves a special verdict as a means of more precisely determining an appropriate and fair
punishment" (North, 910 F.2d at 911 (citations omitted)), in most cases, the use of special verdicts
is within the broad discretion of the trial court. North, 910 F.2d at 910 (holding that, although
the"the preferable practice is to require the jury to come to one general verdict as to each count," the
district court has discretion). See also United States v. Ogando, 968 F.2d 146, 149 (2d Cir. 1992)
(noting a preference for special interrogatories in particularly complex criminal cases, but declining
"to delineate bright-line rules for determining when such interrogatories should be employed or in
what form," and that"defendants may not demand special interrogatories as of right, let alone
demand a specific form of special interrogatory") (citations omitted).
PROPOSED SPECIAL VERDICT FORM
The government objects to the use of the special Verdict Form proposed by the defense on
two grounds: first, the proposed Verdict Form incorporates portions of the legal instructions
regarding the elements of the offenses, and, second, the proposed form fails to accurately set forth
the individual charged false statements upon which verdicts of guilty could be reached. The
`right to have a jury make the ultimate determination of guilt'. ... Today, juries commonly return
information beyond a simple `guilty' or `not guilty' in a wide range of criminal cases. Though these
are often called `special verdicts,' they are not true special verdicts: They provide additional
information that accompanies, but does not replace, the general verdict") (footnotes omitted).
3
Case 1:05-cr-00394-RBW Document 284 Filed 02/14/2007 Page 4 of 16
repetition of portions of the Court's elements instructions and omission of others is likely to confuse
and mislead the jury by suggesting that following certain instructions is necessary while following
others is optional. The Court will instruct the jury that it must follow all of the instructions.
Therefore, it is unnecessarily confusing and misleading to repeat portions of the instructions on the
verdict form. The government has provided an alternative proposed Special Verdict Form that omits
the repetition of jury instructions, and corrects inaccuracies in the specification of the charged false
statements. The government's proposed Special Verdict Form is attached.
CONCLUSION
For all of the foregoing reasons, the United States respectfully requests that this Court
provide the jury with the attached Verdict Form.
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: February 14, 2007
4
Case 1:05-cr-00394-RBW Document 284 Filed 02/14/2007 Page 5 of 16
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that on this 14th day of February, 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
Case 1:05-cr-00394-RBW Document 284 Filed 02/14/2007 Page 6 of 16
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 )
VERDICT FORM
COUNT ONE
Answer each of the following questions with respect to Count One of the indictment, in
which Mr. Libby is charged with obstruction of justice:
1. We the jury, unanimously find that the government
PROVED [ ] FAILED TO PROVE [ ]
beyond a reasonable doubt that the defendant, I. LEWIS LIBBY, committed the offense charged in
Count One by making the following declaration to the grand jury, under oath, in March 2004:
When Mr. Libby spoke with Tim Russert of NBC News, on or about
July 10, 2003, Mr. Russert asked Mr. Libby if Mr. Libby knew that
Joseph Wilson's wife worked for the CIA, and told Mr. Libby that all
the reporters knew it.
2. We the jury, unanimously find that the government
PROVED [ ] FAILED TO PROVE [ ]
beyond a reasonable doubt that the defendant, I. LEWIS LIBBY, committed the offense charged in
Count One by making the following declaration to the grand jury, under oath, in March 2004:
At the time of his conversation with Tim Russert of NBC News on or
about July 10, 2003, Mr. Libby was surprised to hear from Mr.
Russert that Joseph Wilson's wife worked for the CIA.
Case 1:05-cr-00394-RBW Document 284 Filed 02/14/2007 Page 7 of 16
3. We the jury, unanimously find that the government
PROVED [ ] FAILED TO PROVE [ ]
beyond a reasonable doubt that the defendant, I. LEWIS LIBBY, committed the offense charged in
Count One by making the following declaration to the grand jury, under oath, in March 2004:
Mr. Libby advised Matthew Cooper of Time magazine on or about
July 12, 2003 that he had heard that other reporters were saying that
Joseph Wilson's wife worked for the CIA, and further advised Mr.
Cooper that he did not know whether this assertion was true.
4. If you answered "FAILED TO PROVE" with respect to ALL of the foregoing questions, you
should find Mr. Libby NOT GUILTY of Count One.
If you answered "PROVED" to ONE OR MORE of the foregoing questions, you should find
Mr. Libby GUILTY of Count One.
With respect to Count One,
We, the jury, find the defendant, I. LEWIS LIBBY (Check one):
GUILTY [ ] NOT GUILTY [ ]
2
Case 1:05-cr-00394-RBW Document 284 Filed 02/14/2007 Page 8 of 16
COUNT TWO
Answer each of the following questions with respect to Count Two of the indictment, in
which Mr. Libby is charged with knowingly and willfully making materially false statements to
agents of the Federal Bureau of Investigation:
1. We the jury, unanimously find that the government
PROVED [ ] FAILED TO PROVE [ ]
beyond a reasonable doubt that the defendant, I. LEWIS LIBBY, committed the offense charged in
Count Two by making the following statement to agents of the FBI on or about October 14 and
November 26, 2003:
When Mr. Libby spoke with Tim Russert of NBC News, on or about
July 10, 2003, Russert asked Mr. Libby if Mr. Libby knew that Joseph
Wilson's wife worked for the CIA, and told Mr. Libby that all the
reporters knew it.
2. We the jury, unanimously find that the government
PROVED [ ] FAILED TO PROVE [ ]
beyond a reasonable doubt that the defendant, I. LEWIS LIBBY, committed the offense charged in
Count Two by making the following statement to agents of the FBI on or about October 14 and
November 26, 2003:
At the time of his conversation with Tim Russert of NBC News on or
about July 10, 2003, Mr. Libby was surprised to hear from Mr.
Russert that Joseph Wilson's wife worked for the CIA.
3
Case 1:05-cr-00394-RBW Document 284 Filed 02/14/2007 Page 9 of 16
3. If you answered "FAILED TO PROVE" with respect to BOTH of the foregoing questions,
you should find Mr. Libby NOT GUILTY of Count Two.
If you answered "PROVED" to ONE OR BOTH of the foregoing questions, you should find
Mr. Libby GUILTY of Count Two.
With respect to Count Two,
We, the jury, find the defendant, I. LEWIS LIBBY (Check one):
GUILTY [ ] NOT GUILTY [ ]
4
Case 1:05-cr-00394-RBW Document 284 Filed 02/14/2007 Page 10 of 16
COUNT THREE
With respect to Count Three of the indictment, in which Mr. Libby is charged with
knowingly and willfully making materially false statements to agents of the Federal Bureau of
Investigation on or about October 14 and November 26, 2003, namely, that:
When Mr. Libby spoke with Tim Russert of NBC News, on or about
July 10, 2003, Russert asked Mr. Libby if Mr. Libby knew that Joseph
Wilson's wife worked for the CIA, and told Mr. Libby that all the
reporters knew it.
We, the jury, find the defendant, I. LEWIS LIBBY (Check one):
GUILTY [ ] NOT GUILTY [ ]
5
Case 1:05-cr-00394-RBW Document 284 Filed 02/14/2007 Page 11 of 16
COUNT FOUR
With respect to Count Four of the indictment, in which Mr. Libby is charged with perjury by,
on March 5, 2004, making the following declaration to the grand jury, under oath, regarding a
conversation that he represented he had with Tim Russert of NBC News, on or about July 10, 2003
(underlined portions alleged as false):
. . . . And then he said, you know, did you know that this excuse me, did you know
that Ambassador Wilson's wife works at the CIA? And I was a little taken aback by
that. I remember being taken aback by it. And I said he may have said a little more
but that was he said that. And I said, no, I don't know that. And I said, no, I don't
know that intentionally because I didn't want him to take anything I was saying as in
any way confirming what he said, because at that point in time I did not recall that
I had ever known, and I thought this is something that he was telling me that I was
first learning. And so I said, no, I don't know that because I want to be very careful
not to confirm it for him, so that he didn't take my statement as confirmation for him.
Now, I had said earlier in the conversation, which I omitted to tell you, that
this you know, as always, Tim, our discussion is off-the-record if that's okay with
you, and he said, that's fine.
So then he said I said he said, sorry he, Mr. Russert said to me, did you
know that Ambassador Wilson's wife, or his wife, works at the CIA? And I said, no,
I don't know that. And then he said, yeah yes, all the reporters know it. And I said,
again, I don't know that. I just wanted to be clear that I wasn't confirming anything
for him on this. And you know, I was struck by what he was saying in that he
thought it was an important fact, but I didn't ask him anymore about it because I
didn't want to be digging in on him, and he then moved on and finished the
conversation, something like that.
We, the jury, find the defendant, I. LEWIS LIBBY (Check one):
GUILTY [ ] NOT GUILTY [ ]
6
Case 1:05-cr-00394-RBW Document 284 Filed 02/14/2007 Page 12 of 16
COUNT FIVE
Answer each of the following questions with respect to Count Five of the indictment, in
which Mr. Libby is charged with perjury:
1. We the jury, unanimously find that the government
PROVED [ ] FAILED TO PROVE [ ]
beyond a reasonable doubt that the defendant, I. LEWIS LIBBY, committed the offense charged in
Count Five by, on March 5, 2004, making the following declaration to the grand jury, under oath,
regarding a conversation that he had with Matthew Cooper on or about July 12, 2003 (underlined
portions alleged as false):
Q. And it's your specific recollection that when you told Cooper about Wilson's
wife working at the CIA, you attributed that fact to what reporters
A. Yes.
Q. plural, were saying. Correct?
A. I was very clear to say reporters are telling us that because in my mind I still
didn't know it as a fact. I thought I was all I had was this information that
was coming in from the reporters.
....
Q. And at the same time you have a specific recollection of telling him, you
don't know whether it's true or not, you're just telling him what reporters are
saying?
Yes, that's correct, sir. And I said, reporters are telling us that, I don't know
A.
if it's true. I was careful about that because among other things, I wanted to
be clear I didn't know Mr. Wilson. I don't know I think I said, I don't know
if he has a wife, but this is what we're hearing.
7
Case 1:05-cr-00394-RBW Document 284 Filed 02/14/2007 Page 13 of 16
2. We the jury, unanimously find that the government
PROVED [ ] FAILED TO PROVE [ ]
beyond a reasonable doubt that the defendant, I. LEWIS LIBBY, committed the offense charged in
Count Five by, on March 24, 2004, making the following declaration to the grand jury, under oath,
regarding conversations with reporters (underlined portions alleged as false):
Q. And let me ask you this directly. Did the fact that you knew that the law
could turn, the law as to whether a crime was committed, could turn on where
you learned the information from, affect your account for the FBI when you
told them that you were telling reporters Wilson's wife worked at the CIA but
your source was a reporter rather than the Vice-President?
A. No, it's a fact. It was a fact, that's what I told the reporters.
Q. And you're, you're certain as you sit here today that every reporter you told
that Wilson's wife worked at the CIA, you sourced it back to other reporters?
A. Yes, sir, because it was important for what I was saying and because it was
that's what that's how I did it.
8
Case 1:05-cr-00394-RBW Document 284 Filed 02/14/2007 Page 14 of 16
3. We the jury, unanimously find that the government
PROVED [ ] FAILED TO PROVE [ ]
beyond a reasonable doubt that the defendant, I. LEWIS LIBBY, committed the offense charged in
Count Five by, on March 24, 2004, making the following declaration to the grand jury, under oath,
regarding conversations with reporters (underlined portions alleged as false):
Q. The next set of questions from the Grand Jury are concern this fact. If you
did not understand the information about Wilson's wife to have been
classified and didn't understand it when you heard it from Mr. Russert, why
was it that you were so deliberate to make sure that you told other reporters
that reporters were saying it and not assert it as something you knew?
A. I want I didn't want to I didn't know if it was true and I didn't want people
I didn't want the reporters to think it was true because I said it. I all I had
was that reporters are telling us that, and by that I wanted them to understand
it wasn't coming from me and that it might not be true. Reporters write
things that aren't true sometimes, or get things that aren't true. So I wanted
to be clear they didn't, they didn't think it was me saying it. I didn't know it
was true and I wanted them to understand that. Also, it was important to me
to let them know that because what I was telling them was that I don't know
Mr. Wilson. We didn't ask for his mission. That I didn't see his report.
Basically, we didn't know anything about him until this stuff came out in
June. And among the other things, I didn't know he had a wife. That was one
of the things I said to Mr. Cooper. I don't know if he's married. And so I
wanted to be very clear about all this stuff that I didn't, I didn't know about
him. And the only thing I had, I thought at the time, was what reporters are
telling us.
9
Case 1:05-cr-00394-RBW Document 284 Filed 02/14/2007 Page 15 of 16
4. We the jury, unanimously find that the government
PROVED [ ] FAILED TO PROVE [ ]
beyond a reasonable doubt that the defendant, I. LEWIS LIBBY, committed the offense charged in
Count Five by, on March 24, 2004, making the following declaration to the grand jury, under oath,
regarding conversations with reporters (underlined portions alleged as false):
Well, talking to the other reporters about it, I don't see as a crime. What I said to the
other reporters is what, you know I told a couple reporters what other reporters had
told us, and I don't see that as a crime.
10
Case 1:05-cr-00394-RBW Document 284 Filed 02/14/2007 Page 16 of 16
5. If you answered "FAILED TO PROVE" with respect to ALL of the foregoing questions,
you should find Mr. Libby NOT GUILTY of Count Five.
If you answered "PROVED" to ONE OR MORE of the foregoing questions, you should
find Mr. Libby GUILTY of Count Five.
With respect to Count Five,
We, the jury, find the defendant, I. LEWIS LIBBY (Check one):
GUILTY [ ] NOT GUILTY [ ]
______________________ ______________________
FOREPERSON
______________________ ______________________
______________________ ______________________
______________________ ______________________
______________________ ______________________
______________________ ______________________
11
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