No Easy Answers


Friday, February 16, 2007

Fitzgerald Objections/Proposals to Jury Instructions [Doc 290]

Docket entry that results in refiling of Doc 290 as Doc 292 ...

         02/16/2007 NOTICE OF CORRECTED DOCKET ENTRY: Document #290 as to 
         I. LEWIS LIBBY was entered in error and counsel was instructed to 
         refile said pleading. Pleading contains numberous errors. (hsj, ) 
         (Entered: 02/16/2007)

I got a kick out of "numberous errors" recited in the Notice.
Anyway, Doc 292 is the authoritative filing for this legal pleading. Doc 290 is a legal nullity.

Underlines inserted - otherwise the pleading would be seriously incomplete.



    Case 1:05-cr-00394-RBW             Document 292         Filed 02/16/2007       Page 1 of 14



                              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 OBJECTIONS AND PROPOSALS
                       REGARDING FINAL JURY INSTRUCTIONS

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

COUNSEL, respectfully submits the following objections and proposals regarding final jury

instructions.

Unanimity Instructions and Special Verdict Forms

       The Court has requested that the government advise whether it objects to the use of a general

verdict form for Counts 2 and 5 in light of the defense's request for a special verdict form for Count

1 and general verdict forms for Counts 2 and 5, despite the defense's concurrent request for special

unanimity instructions for all three counts.

       The government does not object to the use of general verdict forms for Counts 2 and 5 if the

Court supplements the current unanimity instructions by explaining to the jury the specific

statements upon which they could unanimously agree to convict the defendant on each of those

counts. The dispute between the parties regarding whether Count 1 charged two or three statements

that would support a conviction demonstrates the need to spell out for the jury the specific statements

that could support a conviction under Counts 2 and 5, in order to avoid confusion. The specific

statements charged in the indictment must be identified for the jury based on the indictment, and any

risk of confusion regarding this issue must be avoided. Needless to say, this is not a matter to be left



     Case 1:05-cr-00394-RBW                Document 292     Filed 02/16/2007        Page 2 of 14



to argument, particularly at the risk that the issue would be presented by the parties in an inconsistent

fashion. Thus, as was illustrated by the discussion in court yesterday, the jury requires guidance on

this issue in order to fulfill its duty.

        Accordingly, the government proposes the following amendments to the Court's current

unanimity instructions regarding Counts 1, 2 and 5:

Count 1

                As to Count 1 of the indictment, the defendant is alleged to have obstructed
        justice by making three false statements or representations to the grand jury. The
        government is not required to prove that all of the alleged statements or
        representations were in fact false.

                To find the defendant guilty of Count 1, the government must prove beyond
        a reasonable doubt that at least one of the false statements or representations alleged
        in Count 1 was false, and all of you must agree on which statement or representation
        was false. If you are unable to unanimously agree that at least one of the statements
        or representations alleged in Count 1 was false, then you must find the defendant not
        guilty of Count 1.

                Count 1 alleges that the following three statements or representations made
        by the defendant to the grand jury were false:

                 That when Mr. Libby spoke with Tim Russert of NBC News, on or about July
        1.
                 10, 2003, Mr. Russert asked Mr. Libby if Mr. Libby knew that Wilson's wife
                 worked for the CIA, and told Mr. Libby that all the reporters knew it.

                 That when Mr. Libby spoke with Tim Russert of NBC News, on or about July
        2.
                 10, 2003, Mr. Libby was surprised to hear that Wilson's wife worked for the
                 CIA

                 That when Mr. Libby spoke with Mr. Cooper of Time magazine on or about
        3.
                 July 12, 2003, Mr. Libby advised Mr. Cooper that 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.




                                                   2



   Case 1:05-cr-00394-RBW             Document 292          Filed 02/16/2007        Page 3 of 14



Count 2
               As to Count 2 of the indictment, two false, fictitious, or fraudulent statements
      or representations are alleged to have been made by the defendant. The government
      is not required to prove that all of the statements or representations are, in fact, false.


              To find the defendant guilty of Count 2, the government must prove beyond
      a reasonable doubt that at least one of the statements or representations alleged in
      Count 2 was false, fictitious, or fraudulent, and all of you must agree on which
      statement or representation was false, fictitious or fraudulent. If you are unable to
      unanimously agree that at least one of the statements or representations alleged in
      Count 2 was false, fictitious or fraudulent, then you must find the defendant not
      guilty of Count 2.

               Count 2 alleges that the following two statements or representations were
      false, fictitious or fraudulent:

              During a conversation with Tim Russert of NBC News on July 10 or 11,
      1.
              2003, Mr. Russert asked Mr. Libby if Mr. Libby was aware that Mr. Wilson's
              wife worked for the CIA; Mr. Libby responded to Mr. Russert that he did not
              know that, and Mr. Russert replied that all the reporters knew it.

              During a conversation with Tim Russert of NBC News on July 10 or 11,
      2.
              2003, Mr. Libby was surprised by Mr. Russert's statement that Mr. Wilson's
              wife worked for the CIA because, while speaking with Mr. Russert, Mr.
              Libby did not recall that he previously had learned about Wilson's wife's
              employment from the Vice President.

Count 5

              As to Count 5 of the indictment, the defendant is alleged to have made false
      statements to the grand jury under oath on two separate occasions. The government
      is not required to prove that the defendant gave false testimony on both occasions.

              To find the defendant guilty of Count 5, the government must prove beyond
      a reasonable doubt that the defendant made false statements to the grand jury under
      oath on at least one occasion alleged in Count 5, and all of you must agree on which
      occasion the defendant made the false statement. If you are unable to unanimously
      agree that the defendant gave false testimony under oath to the grand jury on at least
      one of the two occasions charged in Count 5, then you must find the defendant not
      guilty of Count 5.




                                                  3



Case 1:05-cr-00394-RBW          Document 292          Filed 02/16/2007         Page 4 of 14



         Count 5 alleges that the following statements made by the defendant
  to the grand jury on the following two occasions were false (underlined
  portions alleged as false):

  a.     Testimony Given on or about March 5, 2004 Regarding a Conversation
         With Matthew Cooper on or About July 12, 2003:

         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.     [ul]Yes.[/ul]

         Q.     ­ plural, were saying. Correct?

         A.     [ul]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.[/ul]

                ....

         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?

         A.     [ul]Yes, that's correct, sir. And I said, reporters are telling us that, I don't
                know 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.[/ul]

  b.     Testimony Given on or about March 24, 2004 Regarding Conversations
         With Reporters:

         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.     [ul]No, it's a fact. It was a fact, that's what I told the reporters.[/ul]




                                        4



Case 1:05-cr-00394-RBW       Document 292          Filed 02/16/2007        Page 5 of 14



       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.     [ul]Yes, sir[/ul], because it was important for what I was saying and because
              it was ­ that's what ­ [ul]that's how I did it.[/ul]
       ....

       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 ­ [ul]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.[/ul] Reporters write things that aren't true sometimes,
              or get things that aren't true. [ul]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.[/ul] 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.
              [ul]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.[/ul]

              ....

              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 ­ [ul]I told a couple
              reporters what other reporters had told us[/ul], and I don't see that as a
              crime.




                                          5



    Case 1:05-cr-00394-RBW             Document 292         Filed 02/16/2007     Page 6 of 14



Citations to Grand Jury Transcripts

       The government has attached a recitation of the charged language with citations to the grand

jury transcripts as Exhibit A. As discussed in court, the government suggests that Exhibit A be

provided as an aide to the jury for use in its deliberations.

Tapes and Transcripts

       The government proposes that the following instruction, which is modified from the Bar

Association of the District of Columbia's Criminal Jury Instructions (4th ed. Revised 2005)(The

Red Book)("D.C. Form Instructions"), Instruction 2.30, be given regarding the grand jury transcripts

and audio recordings that are in evidence:

       Audio recordings and transcripts of the defendant's grand jury testimony on March
       5 and March 24, 2004 have been received in evidence. It has been stipulated that the
       transcripts were prepared by a court reporter, and are true and correct to the best of
       her ability. If you perceive any variation between the transcripts and the audio
       recordings, you must be guided by the audio recordings. If you cannot determine
       from the audio recording that particular words were spoken, you must disregard the
       transcripts so far as those words are concerned.

Stipulations Offered as Impeachment

       The government proposes that the following instruction, which is modified from the D.C.

Form Instruction 1.10, be given regarding the stipulated testimony of Inspector in Charge Jack

Eckenrode and FBI Section Chief Timothy Fuhrman:

               You have seen two stipulations that set forth the testimony of Inspector in
       Charge Jack Eckenrode and FBI Section Chief Timothy Fuhrman regarding their
       descriptions of statements made by witnesses Tim Russert and David Addington,
       respectively, on earlier occasions when the witnesses were not under oath that may
       be inconsistent with the witnesses' testimony here at trial. The earlier statements
       were brought to your attention to help you in evaluating the witnesses' believability
       here in court. In other words, if on an earlier occasion a witness made a statement
       that is inconsistent with his or her testimony in court, you may consider the
       inconsistency in judging the credibility of the witness. You may not consider the


                                                   6



    Case 1:05-cr-00394-RBW             Document 292         Filed 02/16/2007       Page 7 of 14



       earlier statement that was not under oath as proof that what was said in the earlier
       statement was true.

              It is for you to decide whether a witness made a statement on an earlier
       occasion and whether it was in fact inconsistent with the witness' testimony here.

Instruction Regarding IIPA

       The government has noted its objection to providing the jury with an instruction regarding

the elements of one of the statutes which, based on the evidence presented at trial, the defendant was

aware could provide a basis for his prosecution, without instructing the jury regarding the elements

of other such statutes. ^1 It is the government's position that the proper course is to provide simplified

instructions regarding the elements of all four statutes identified to the defendant as possible crimes

being investigated by the grand jury, or none of them. However, in light of the Court's determination

that the jury should be instructed regarding solely on the elements of the IIPA, the government

requests that the Court add after the second sentence concerning the IIPA instruction: "You have

also seen reference to other statutes that prohibit disclosure of classified information in Government

Exhibit 5A." The sentence that follows should be amended to add "or those other statutes" after "not

charged with violating the IIPA." And, in the next sentence, we suggest replacing "the statute" with

"those statutes."




       1
           As noted in court, evidence was presented at trial showing that defendant was advised
orally and in writing regarding these other statutes in that (1) he was advised in writing through six
nondisclosure agreements he signed; (2) being advised orally at the beginning of his first grand jury
appearance that the grand jury was investigating possible violations of four statutes, 18 U.S.C.
§§ 793, 641 and 1001 and 50 U.S.C. § 421. Other evidence presented at trial, such as the fact that
the defendant generically denied leaking classified information after a criminal investigation was
opened regarding disclosure of Ms. Wilson's employment, provided additional bases from which
the jury could infer that the defendant was aware that criminal prosecution under statutes other than
one that would require that defendant knew that Ms. Wilson was a covert agent.

                                                   7



    Case 1:05-cr-00394-RBW            Document 292         Filed 02/16/2007       Page 8 of 14



Defendant's Proposed Theory of Defense Instruction

       The defendant has submitted a Revised Proposed Theory of the Defense Instruction. One

sentence in the proposed instruction currently reads as follows:

       Further, Mr. Libby was well aware when he was first interviewed by the FBI and
       when he testified to the grand jury that the investigators could and likely would talk
       to government officials and the journalists he spoke with concerning Ambassador
       Wilson and that those officials and journalists would truthfully recount their
       recollections of the conversations he had with them.

The government objects to this part of the Defense's Revised Theory of the Defense on three

grounds. First, it purports to set forth a fact, rather than the defendant's contention, regarding

defendant's state of mind. Second, there is no evidence in the record indicating that journalists

"likely would" talk with the FBI, or that defendant believed that that was the case. Similarly, there

is no evidence in the record that "the journalists [defendant] spoke with" would in fact "recount to

the FBI their recollections of conversations they had with the defendant," let alone that they would

do so "truthfully." In fact, the evidence showed that a number of individuals with whom Mr. Libby

spoke refused to recount their recollections to the FBI and to prosecutors, and that court orders were

required to obtain the testimony of numerous witnesses. The government therefore submits the

following proposed revision to that sentence from the defendant's Proposed Theory of the Defense

Instruction, which omits those aspects of the statement that are unsupported by evidence and also

corrects the reference to "investigators" as the Court previously suggested:

       Further, Mr. Libby contends he was well aware when he was first interviewed by the
       FBI and when he testified to the grand jury that the FBI agents could talk to
       government officials and the journalists he spoke with concerning Ambassador
       Wilson.




                                                  8



    Case 1:05-cr-00394-RBW         Document 292        Filed 02/16/2007      Page 9 of 14



Memory

       The government understands that the defendant will be submitting proposed language to be

added to the Court's current instruction on memory. The government will respond to the proposed

language upon receipt.



                                                   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 16, 2007




                                              9



     Case 1:05-cr-00394-RBW          Document 292         Filed 02/16/2007        Page 10 of 14



                                             Exhibit A


1.     Grand Jury Testimony of the Defendant Which the Indictment Alleges in Count 4 Was
       False (underlined portions alleged as false)


       . . . . [ul]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.[/ul]

       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.

       [ul]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,[/ul] and he then moved
       on and finished the conversation, something like that.

[This passage is from the March 5, 2004 transcript, page 146 line 10 ­ page 147 line 13.]




                                                  1



     Case 1:05-cr-00394-RBW         Document 292          Filed 02/16/2007        Page 11 of 14



2.     Grand Jury Testimony of the Defendant Which the Indictment Alleges in Count 5 Was
       False (underlined portions alleged as false)


       a.     Testimony Given on or about March 5, 2004 Regarding a Conversation With
              Matthew Cooper on or about July 11, 2003:


                      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.     [ul]Yes.[/ul]

                      Q.     ­ plural, were saying. Correct?

                      A.     [ul]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.[/ul]

       [This passage is from the March 5, 2004 transcript, page 187 lines 14 - 22.]

                      ....

                      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?

                      A.     [ul]Yes, that's correct, sir. And I said, reporters are telling us that, I don't
                             know 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.[/ul]

       [This passage is from the March 5, 2004 transcript, page 187 line 23 ­ page 188 line 5.]


       b.     Testimony Given on or about March 24, 2004 Regarding Conversations With
              Reporters:

                      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



                                                 2



Case 1:05-cr-00394-RBW        Document 292          Filed 02/16/2007         Page 12 of 14



                        Wilson's wife worked at the CIA but your source was a reporter
                        rather than the Vice-President?

                 A.     [ul]No, it's a fact. It was a fact, that's what I told the reporters.[/ul]

                 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.     [ul]Yes, sir,[/ul] because it was important for what I was saying and because
                        it was ­ that's what ­ [ul]that's how I did it.[/ul]

  [This passage is from the March 24, 2004 transcript, page 182 line 14 - page 183 line 3.]

                 ....

                 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 ­ [ul]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.[/ul] Reporters write things that aren't true sometimes,
                        or get things that aren't true. [ul]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.[/ul] 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.
                        [ul]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.[/ul]

  [This passage is from the March 24, 2004 transcript, page 191 line 22 - page 192 line 22.]

                 ....


                                            3



Case 1:05-cr-00394-RBW         Document 292        Filed 02/16/2007       Page 13 of 14



                 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 ­ [ul]I told a couple reporters what
                 other reporters had told us,[/ul] and I don't see that as a crime.

  [This passage is from the March 24, 2004 transcript, page 160 lines 8 - 11.]




                                           4



    Case 1:05-cr-00394-RBW           Document 292        Filed 02/16/2007      Page 14 of 14



                                CERTIFICATE OF SERVICE

       I, the undersigned, hereby certify that on this 16th day of February, 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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