No Easy Answers

Wednesday, February 07, 2007

Fitzgerald Motion to Preclude Testimony of Abramson [Doc 273]

     Case 1:05-cr-00394-RBW            Document 273        Filed 02/07/2007       Page 1 of 7

                           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              )

                      THE TESTIMONY OF JILL ABRAMSON

       The UNITED STATES OF AMERICA, by its attorney, PATRICK J. FITZGERALD, Special

Counsel, respectfully submits this motion in limine to preclude the testimony of Jill Abramson, a

former Washington bureau chief for the New York Times and former editor of reporter Judith Miller.

The defendant is seeking Ms. Abramson's testimony in an effort to impeach Ms. Miller; however,

the testimony should be precluded because it would constitute an improper attempt to present

extrinsic evidence to impeach a witness on a collateral matter, as well as an improper attempt to use

impeachment to introduce an otherwise inadmissible prior statement.


       The defendant has indicated that he intends to call Jill Abramson as a witness but has not

disclosed to the Government any Jencks material for Ms. Abramson. To the government's

knowledge, Ms. Abramson did not participate in any of the interviews with the defendant that are

the subject of this case, and can offer no testimony relevant to any of the issues in dispute.

       Based on the questions the defendant asked on cross examination of Judith Miller about Ms.

Miller's conversations with Ms. Abramson, ^1 we expect the defendant is seeking to call Ms.

Abramson to provide extrinsic evidence to impeach Ms. Miller. On cross examination, Ms. Miller

       Ms. Miller offered no testimony on direct examination about any conversations she may
have had with Ms. Abramson.

     Case 1:05-cr-00394-RBW           Document 273         Filed 02/07/2007       Page 2 of 7

testified that she had suggested to Ms. Abramson, then the Times' Washington bureau chief, that

someone should pursue the issue of "whether or not Joe Wilson's wife works at the Agency and, if

so, what she does." 1/30/07 p.m. Tr. at 60. Ms. Miller further testified on cross examination that

Ms. Abramson seemed "distracted that day," and Ms. Abramson "didn't have a response" to Ms.

Miller's comment other than to say, "`Uh-huh.'" Id. at 61. The Government suspects the defendant

will ask Ms. Abramson if she shares the same recollection of the conversation described by Ms.

Miller. It appears from press accounts that Ms. Abramson has been asked in the past whether she

recalls that a strong recommendation was made to her by Ms. Miller for Ms. Miller to pursue a story

about the Wilsons and that Ms. Abramson then refused this request. Ms. Abramson has indicated

in those press reports that she did not recall Ms. Miller asking to pursue a request to do a story

herself. See Don Van Natta Jr., Adam Liptak & Clifford Levy, The Miller Case: A Notebook, A

Cause, a Jail Cell and a Deal The New York Times October 16, 2005 Sunday, N.Y. Times, October

16, 2005; Byron Calame, The Miller Mess: Lingering Issues Among the Answers, N.Y. Times,

October 23, 2005.


       In briefs previously filed with the Court, the government set forth the legal bases for

prohibiting the admission of otherwise inadmissible and irrelevant evidence for the purpose of

impeaching witnesses on collateral matters. See R. 266, 271. In brief summary, ^2 the law is well

settled that a party may not present extrinsic evidence to impeach a witness by contradiction on a

collateral or irrelevant matter elicited on cross-examination. United States v. Tarantino, 846 F.2d

        Rather than restate the full legal bases for the preclusion of certain impeachment testimony,
the Government refers the Court to the arguments made in those previous briefs.


     Case 1:05-cr-00394-RBW             Document 273         Filed 02/07/2007       Page 3 of 7

1384, 1409 (D.C. Cir. 1988); United States. v. Mulinelli-Navas, 111 F.3d 983, 988 (1st Cir. 1997);

United States v. Ford, 21 F.3d 759, 764 (7th Cir. 1994); United States v. Beauchamp, 986 F.2d 1,

3 (1st Cir. 1993). ^3

       Moreover, a party cannot call a witness for the primary purpose of impeaching that witness

with an otherwise inadmissible prior statement. Although Rule 607 of the Federal Rules of Evidence

provides that "[t]he credibility of a witness may be attacked by any party, including the party calling

the witness," courts have consistently held that it is improper for a party to call a witness for the

primary purpose of putting before the jury evidence that is not otherwise admissible. See United

States v. Johnson, 802 F.2d 1459, 1466 (D.C. Cir. 1986) (holding that it was "entirely inappropriate"

for the prosecution to call a witness for the sole purpose of bringing about the admission of a

statement that was not independently admissible); United States v. Peterman, 841 F.2d 1474, 1479

n.3 (10th Cir. 1988)(noting that "[e]very circuit has said evidence that is inadmissible for substantive

purposes may not be purposely introduced under the pretense of impeachment"); United States v.

Sebetich, 776 F.2d 412, 429 (3d Cir. 1985) ("It is well established, however, that witnesses may not

be called for the purposes of circumventing the hearsay rule by means of Rule 607"); United States

v. Morlang, 531 F.2d 183, 190 (4th Cir. 1975) ("The overwhelming weight of authority is, however,

that impeachment by prior inconsistent statement may not be permitted where employed as a mere

subterfuge to get before the jury evidence not otherwise admissible"); United States v. Fay, 668 F.2d

375, 379 (8th Cir. 1981) ("Although Rule 607 allows a party to impeach his own witness, `(c)ourts

        "`Evidence is `extrinsic' if offered through documents or other witnesses, rather than
through cross-examination of the witness himself or herself.'" United States v. Boulerice, 325 F.3d
75, 82 n.5 (1st Cir. 2003) (quoting Weinstein's Federal Evidence, ยง 608.20[1] (2d ed. 2003)).


     Case 1:05-cr-00394-RBW           Document 273        Filed 02/07/2007       Page 4 of 7

must be watchful that impeachment is not used as a subterfuge to place otherwise inadmissible

hearsay before the jury'"); United States v. Webster, 734 F.2d 1191, 1192 (7th Cir. 184).


       The defendant seeks to elicit testimony from Ms. Abramson that would impeach Ms. Miller

on a collateral matter elicited on cross-examination, namely, whether Ms. Miller suggested to Ms.

Abramson that the New York Times pursue a story on Ms. Wilson. To constitute proper

impeachment, the "offered testimony must not only contradict a statement of [the witness], but must

also be material to [the defendant]'s guilt or innocence." Mulinelli-Navas, 111 F.3d at 988. Here,

it is not clear that Ms. Abramson's expected testimony does in fact contradict Ms. Miller's

testimony. Unless Ms. Abramson will affirmatively testify that Ms. Miller made no recommendation

that the paper follow up on the tip provided by defendant regarding Ms. Wilson, her account would

not be inconsistent with that of Ms. Miller.

       In any event, such testimony would not be "material to [the defendant]'s guilt or innocence,"

Mulinelli-Navas, 111 F.3d at 988, and would be relevant for no purpose other than the "simple

contradiction of [Ms. Miller's] in-court testimony." See United States v. Payne, 102 F.3d 289, 294

(7th Cir. 1996); Beauchamp, 986 F.2d at 4. The admission of such testimony poses the risk of

confusing the jury and bogging down the trial to resolve a dispute over the accuracy of Ms. Miller's

and Ms. Abramson's perception of a collateral conversation, and would take the jury far afield from

the defendant's actions and the defendant's state of mind. Ms. Abramson's testimony also cannot

satisfy the requirements of Rule 613, for defense counsel never confronted Ms. Miller with it, and

thereby failed to give her "an opportunity to explain or deny." Fed. R. Evid. 613(b).


      Case 1:05-cr-00394-RBW            Document 273         Filed 02/07/2007       Page 5 of 7


       The defendant also may be seeking testimony from Ms. Abramson for the purpose of

impeaching her with an otherwise inadmissible prior statement. If Ms. Abramson is permitted to

testify, it is likely she will testify that she does not recall a conversation with Ms. Miller in which

Ms. Miller suggested that someone at the New York Times pursue a story on Ms. Wilson. At that

point, the defendant could seek to impeach Ms. Abramson with prior statements from press accounts

for the purpose of suggesting that Ms. Abramson previously denied that such a conversation

occurred. This would be an improper attempt to admit a prior inconsistent statement for the truth

of the matter asserted therein. Johnson, 802 F.2d at 1466. It is important to note first of all that the

statements reflected in press accounts upon which defendant would rely are not Ms. Abramson's;

they derive from articles written by others. Thus, they could not be used to impeach Ms. Abramson's

testimony. Moreover, as explained above, the prior statements which the defendant would be

attributing to Ms. Abramson, and with which the defendant would be attempting to impeach her, are

not directly inconsistent with Ms. Miller's testimony.


       For the foregoing reasons, the government respectfully requests that the Court preclude the

defendant from eliciting testimony from Ms. Abramson.


    Case 1:05-cr-00394-RBW   Document 273   Filed 02/07/2007      Page 6 of 7

                                        Respectfully submitted,

                                        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

Dated: February 7, 2007


     Case 1:05-cr-00394-RBW           Document 273         Filed 02/07/2007      Page 7 of 7

                                 CERTIFICATE OF SERVICE

        I, the undersigned, hereby certify that on this 7th 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

                                                             By:      /s/
                                                             Kathleen M. Kedian
                                                             Deputy Special Counsel
Dated: February 7, 2007


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