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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