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


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