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Monday, February 19, 2007

Fitzgerald Request in Light of Changed Jury Form [Doc 297]


     Case 1:05-cr-00394-RBW             Document 297         Filed 02/19/2007       Page 1 of 5



                              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 REQUEST IN LIGHT OF
                                CHANGE IN VERDICT FORM

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

COUNSEL, respectfully submits the following request in light of the Court's recent decision to

forego the use of special verdict forms for Counts 1, 2 and 5.

       On February 14, 2007, the government filed a proposed special verdict form for use in this

case which included special interrogatories for Counts 1, 2 and 5. The government's proposal was

based in part on Judge Walton's indication in previous court proceedings that he was of the view that

it would be appropriate to use a special verdict in this case.

       On February 15, 2007, the defendant filed an objection to the government's verdict form and

requested that the Court use a verdict form that included special interrogatories for Count 1 only.

During the instruction conference on February 15, 2007, the Court asked the government to advise

whether it could agree 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, and

despite the defense's concurrent request for special unanimity instructions for all three counts. At

the instruction conference, the Court also advised the parties that closing arguments would be limited

to three hours per side.



     Case 1:05-cr-00394-RBW            Document 297         Filed 02/19/2007       Page 2 of 5



       In response to the Court's inquiry, the government later advised that it would not object to

the use of general verdict forms for Counts 2 and 5 if the Court supplemented the current unanimity

instructions by explaining to the jury, based on the indictment, the specific statements upon which

they could unanimously agree to convict the defendant on each of those counts.

       On February 16, 2007, the Court provided the parties with its proposed final instructions and

verdict form. The Court's verdict form included special interrogatories for Counts 1, 2 and 5. After

receiving the Court's proposed verdict form, the defense again objected, but did not specify a basis

for its objection. The government advised the Court that its preference would be to use the form

proposed by the Court.

       Concurrently with its objections to the jury verdict forms, the defense made objections to

other proposals designed to clearly and accurately present to the jury the specific alleged false

statements it would be required to consider in determining the defendant's guilt or innocence on

Counts 1, 2 and 5. Initially, the defense objected to the Court's playing or reading the charged false

statements as part of the Court's oral presentation of the instructions. The defense also objected to

providing the jury with an extra copy of the charged statements referencing citations to the grand jury

transcripts. In addition, the defense objected to an instruction regarding the number of false

statements at issue with respect to Count 1.

       On the morning of February 19, 2007, the Court advised the parties that it would provide the

jury with a verdict form containing special interrogatories for Counts 1, 2 and 5, over the defendant's

objection. After receiving an email message from the defense restating the defense's objection and




                                                  2


     Case 1:05-cr-00394-RBW            Document 297         Filed 02/19/2007       Page 3 of 5



amending its proposal to exclude any special interrogatories, 1 however, the Court revised its ruling

and stated that it would provide the jury with no special interrogatories.

       Based on the instructions and verdict form provided to the parties by the Court on February

16, 2007, the government assessed the amount of time necessary to adequately describe during

summation the specific charged statements, and the alternative bases upon which the jury may

convict on Counts 1, 2 and 5. In the government's view, the use of the special interrogatories added

clarity to the unanimity instructions, and reduced the need for extensive discussion on the subject.

In light of the Court's decision to grant the defendant's request to forego the use of special verdict

forms for those counts, the government is attempting to adjust its summation to include a more

detailed presentation of the specific charged statements and the issue of unanimity. Given the short

time that has been allowed for argument, this presents substantial difficulty. For this reason, the

government respectfully requests that the Court allow 15 additional minutes of argument for

summation.




       1
          The purported basis for the defendant's objection was that "for all practical purposes except
punishment the verdict form converts five counts charged by the grand jury into eleven counts."
This objection is not only inconsistent with the defense's previous arguments, it is baseless. Use of
special interrogatories would have no impact on the scope of the charges, as it would merely track
the charged statements as identified in the Court's instructions. Likewise, the special unanimity
instructions have not expanded the scope of the charges because Counts 1, 2 and 5 each charged
multiple false statements, each of which constituted a sufficient basis for a guilty verdict. In any
event, given that the defense waived any objection to the indictment based on duplicity (see Fed. R.
Crim. P. 12 (b) and (e)), there is no basis for the defendant to object to the giving of special
unanimity instructions (and, indeed, the defense has agreed to their use), as such instructions have
no impact other than to assure that any guilty verdict will be unanimous and that the government will
be able to secure a conviction based on a unanimous finding with respect to any of the charged
statements.

                                                  3


     Case 1:05-cr-00394-RBW          Document 297        Filed 02/19/2007      Page 4 of 5



       For the foregoing reasons, the government respectfully requests that the Court allow 15

additional minutes for summation in this case.



                                                     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 19, 2007




                                                 4

     Case 1:05-cr-00394-RBW           Document 297        Filed 02/19/2007       Page 5 of 5



                                CERTIFICATE OF SERVICE

       I, the undersigned, hereby certify that on this 19th 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


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