No Easy Answers

Thursday, May 31, 2007

Libby Sentencing Memorandum [Doc 358]

Doc 358 - NOT an OCR Job

See also Libby Opposition to Government Memorandum of Law [Doc 357]

This filing is not at all what I expected, and at first glance, it comes off as a form of contrition. As for Doc 357, Libby has the better argument (by far) - Fitzgerald's naked assertions are overreaching and come off as vindictive. All in all, a good strategy by Libby defense at the sentencing stage, to face an overreaching prosecution (overreaching in multiple regards - IIPA violation, my butt; costs to the government for pressing the issue of press privilege) while not denying the seriousness of his conviction, and not challenging the propriety of the perjury investigation as being politically motivated.

Judge Walton still has this tiger by the tail.

                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA                              )
       v.                                             )      CR. NO. 05-394 (RBW)
I. LEWIS LIBBY,                                       )
      also known as "Scooter Libby,"                  )
      Defendant.                                      )


               Defendant I. Lewis Libby, through his counsel, respectfully submits this

memorandum in aid of sentencing. The sentencing hearing is scheduled for Tuesday,

June 5, 2007 at 9:30 a.m.


               Distinguished public servant. Generous mentor. Selfless friend. Devoted

father. This is the rich portrait of Mr. Libby that emerges from the descriptions of him in

the more than 160 heartfelt letters submitted to the Court on his behalf. The letter

writers, who range from administrative assistants to admirals, neighborhood friends to

former colleagues, Democrats to Republicans, bear witness to Mr. Libby's character and

patriotism. As detailed below, Mr. Libby's accomplishments in the State Department, the

Defense Department, and the Office of the Vice President demonstrate his extraordinary

commitment to public service. His dedication to promoting freedom abroad and keeping

American citizens safe at home is beyond question. Mr. Libby has also earned a

reputation for treating people fairly and kindly and comforting those who are distressed.

He has avoided the Washington limelight to focus on nurturing his young children. Even

those who disagree vociferously with policies he supported while serving in the

government believe his conviction is not characteristic of the life he has led.

               On the unique facts of this case, and the unique contributions of this man,

we believe that under 18 U.S.C. § 3553, a non-Guidelines sentence of probation is


I.     The Applicable Sentencing Standard

               Following United States v. Booker, 125 S. Ct. 738 (2005), the Court must

impose a sentence in accordance with 18 U.S.C. § 3553(a), and should no longer presume

that a sentence calculated pursuant to the United States Sentencing Guidelines is

appropriate. United States v. Pickett, 475 F.3d 1347, 1353 (D.C. Cir. 2007). Indeed, the

correctly calculated Guidelines range is but one factor for the Court to consider in

imposing sentence. Most significantly, the Court must impose a sentence "sufficient, but

not greater than necessary" to comply with the purposes of punishment set forth in 18

U.S.C. § 3553(a)(2). See also United States v. Foreman, 436 F.3d 638, 644 n. 1 (6th Cir.

2006) ("district court's job is not to impose a `reasonable' sentence [but] to impose `a

sentence sufficient, but not greater than necessary, to comply with the purposes' of

section 3553(a)(2)"); United States v. Tucker, 473 F.3d 556, 561 (4th Cir. 2007) (same);

United States v. Willis, 479 F.Supp.2d 927, 929 (E.D. Wis. 2007) (explaining that "the

so-called parsimony provision . . . directs the court to impose the minimum term

necessary to comply with the statutory goals of sentencing"). Those purposes include the

need "to reflect the seriousness of the offense, to promote respect for the law, and to

provide just punishment for the offense"; "to afford adequate deterrence to criminal

conduct"; and "to protect the public from further crimes of the defendant." 18 U.S.C. §

3553(a)(2)(A), (B) and (C).

               Pursuant to § 3553(a), courts must also consider a number of other factors,

including "the nature and circumstances of the offense and the history and characteristics

of the defendant"; "the kinds of sentences available"; and the Guidelines. Id. at

§ 3553(a)(1), (3), and (4); see also United States v. Simpson, 430 F.3d 1177, 1186 (D.C.

Cir. 2005). Under this new sentencing regime, a court should consider all of the relevant

sentencing factors, giving no more weight to one factor than to any other factor. The

focus of the new regime is thus a sentence based on the whole person before the

sentencing court, rather than simply the version of the person reflected in the numbers

and grids of the Guidelines. Here, that focus means that we respectfully urge the Court to

sentence Mr. Libby on the basis of the portrait of him presented in the Presentence

Investigation Report ("PSR") and in the letters submitted on his behalf, rather than on the

basis of some incomplete or distorted picture.

               The Probation Office calculated the applicable Guidelines range at 15-21

months and identified several grounds for downward departure from that range. As

discussed more fully below (and in a separate memorandum of law addressing Guidelines

issues filed today)1, we believe that the Probation Office's calculations are correct and the

grounds for downward departure well supported. Full consideration of the other factors

outlined in § 3553(a), including the fundamental command that the sentence be sufficient,

but not greater than necessary to serve the purposes of punishment, makes clear that a

sentence of probation is warranted here.
    In that Memorandum, we address the government's requests for certain sentencing
    enhancements. Where relevant to those Guidelines arguments, we have addressed the
    government's allegations about the record in this case. Because they have no
    relevance to this proceeding, we have not in either brief responded to the
    government's arguments defending their charging decisions and conduct of the

II.      Mr. Libby's Personal and Professional History Support A Sentence of

                 Under § 3553(a)(1), in sentencing Mr. Libby the Court must consider his

"history and characteristics." We have submitted over 160 letters from a comprehensive

cross-section of people who know Mr. Libby, all attesting to Mr. Libby's decency, work

ethic, and "quiet patriotism." The letter writers come from many different periods in Mr.

Libby's life and from across the political spectrum. They are conservatives and liberals;

career public servants and people working in journalism, medicine, and law; professional

mentors and pro bono clients. They run the gamut from four-star generals and admirals

to non-commissioned officers; renowned professors and cabinet officials to secretaries,

law firm associates, and junior staffers. Mr. Libby has touched all of these people's lives,

and we rely on their letters to show what he is truly like. We urge the Court to consider

the letters for what they are: powerful evidence of mitigation supporting a sentence of


         A.      Mr. Libby Has Made Great Contributions to the Public Interest

                 After graduating from law school in 1975, Mr. Libby worked in private

practice until 1981, when he first entered government service with the State Department.

He initially served as a speechwriter on the Policy Planning Staff, and then moved into

positions in the Bureau of East Asian and Pacific Affairs. His work included, for

example, contributing to the policies that helped bring an end to the Marcos dictatorship

in the Philippines and fostered the creation of a democratic government in that country.

      The letters have been provided to the Court by the Probation Office in connection
      with the Presentence Investigation Report ("PSR"). Out of respect for the writers'
      privacy, we do not identify individual letter writers by name here.

One of Mr. Libby's former State Department colleagues remembers him from that time


               Scooter was deeply committed to public service and very
               much of a team player. It was not just that he worked well
               with me; he worked well with everyone. His sense of
               humor, often self-deprecating, won him many friends.. He
               was never dogmatic, even if he had strong viewpoints. He
               kept confidences and he always offered good advice. If I
               was inclined toward an impetuous action, he would gently
               talk me into thinking about what I had in mind and how
               best to act on it. He is someone I came to trust and who I
               felt could always be counted on.

               In 1985, at the end of his tenure at the State Department, Mr. Libby won

the Department's Foreign Affairs Award for Public Service. When he returned to private

practice, he dedicated substantial time to public interest matters, including pro bono

assistance on a study regarding the reorganization of Pentagon bureaucracy. Mr. Libby

was called to government service again in 1989, this time for the Defense Department,

and he was subsequently confirmed by the Senate as Deputy Under Secretary of Defense

for Policy. According to one of his former Pentagon colleagues, Mr. Libby "stood out as

a true and dedicated professional who placed the nation's interests first, above those of

party politics or self-advancement. His concern was for the good of the country."

Another former colleague and career civil servant writes:

               Scooter greatly impressed me by his determination to fully
               understand for himself, and convey to his superiors, the
               complexity and details of the issues. He did not stand on
               rank or ceremony. His focus was relentlessly substantive,
               and he pored over analytical reports in a way that I do not
               believe is common in busy, high level political appointees.
               He educated himself about technical, military issues
               previously unfamiliar to him. He was forthright about what
               he knew, and eager to learn from the knowledge of others.
               I believe his performance exemplified the very highest
               standards of government service.

               A retired vice admiral who worked with Mr. Libby recalls that during

these years,

               Scooter was at the center of the storm ­ a trusted advisor as
               we worked through the liberation of Panama, a crisis in the
               Philippines, the fall of the Berlin wall and . . . Operations
               Desert Shield/Storm (Gulf War I). When we worked late
               nights ­ or even all night ­ Scooter was likely to be there.
               . . . Scooter's counsel was routinely sought, respected and

               Another retired admiral recalls that Mr. Libby's efforts "were central to

our success in the [Gulf] war. Prime examples were his role in helping plan the `left

hook' into Southern Iraq from Kuwait, the truly effective bio-defense posture of the

United States military and his untiring efforts to gain funding from allies. . . ." As

described below, Mr. Libby would continue to develop his expertise in bio-defense, and

this knowledge became particularly critical after the 9/11 terrorist attacks.

               While at the Pentagon, Mr. Libby also helped to bring stability and

democracy to Eastern Europe at the end of the Cold War. A former civilian military

leader remembers, "I grew to admire his intellect and his wisdom during that remarkable

period in which the Soviet empire, and ultimately the Soviet Union itself, disintegrated ­

a period in which both Scooter and I played important roles." For example, in the words

of another former Pentagon colleague, "[n]ot only did he oversee important reductions in

the nuclear arsenals of Russia and the United States, but his patience, persistence, and

ability to listen to all sides were critical qualities in brokering a key agreement with

Ukraine ­ one in which that country agreed to get rid of its arsenal of nuclear weapons."

According to a retired colonel, Mr. Libby "worked tirelessly" to assist "the people of

Eastern Europe and the Soviet Union who were at the beginning of their emancipation

from tyranny. In meetings with senior officials in the Soviet Union, Hungary, Poland,

and elsewhere he was a strong advocate for the rule of law, civilian control of the

military, and respect for human rights."

               Without Mr. Libby's leadership in building alliances with former Eastern

Bloc countries, writes one admiral, he "could not have fully succeeded as Commander in

Chief of Allied Forces Southern Europe in Bosnia and with the `Partnership for Peace

Alliance' under NATO." A former top official in the State Department and the State

Department recalls that Mr. Libby "made decisive contributions to the development of

our first post-Cold War defense strategy ­ a shift that made possible a nearly 40%

reduction in spending and force levels ­ and played a leadership role in developing

entirely new relationships with . . . the former Warsaw Pact countries." In 1993, at the

end of his service at the Pentagon, Mr. Libby won the Department of Defense

Distinguished Service Award and the Department of the Navy Distinguished Public

Service Award.

               From 1993 through 2001, Mr. Libby again worked in private legal

practice. During this time, he was asked to serve as the managing partner of the

Washington, D.C., offices of two separate law firms (first, Mudge, Rose, Guthrie,

Alexander & Ferdon; then, Dechert, Price & Rhodes). Although he became a busy and

successful attorney in Washington, Mr. Libby's commitment to the public interest never

waned. He devoted considerable time to pro bono projects, many of which concerned

national security. For example, after he left the Pentagon, Mr. Libby volunteered

repeatedly to help train young policy analysts in the Defense Department's annual

Summer Study program at the Naval War College in Newport, Rhode Island. In 1998,

Mr. Libby served, practically on a full time basis for over half the year, as the Legal

Advisor to the House Select Committee on National Security, known as the Cox

Committee, which uncovered the theft of U.S. military secrets (including nuclear

weapons technology) by the People's Republic of China. According to the Chairman of

the Committee,

               Scooter's service . . . was twofold. First, he shared his
               considerable talents and expertise largely pro bono.
               Second, having been hired with the approval of both the
               Democratic and Republican leaders of the committee, he
               worked very hard to ensure that the committee's work was
               conducted entirely on a bipartisan basis. The committee's
               unanimous report to the Congress was in part a reflection of
               the bipartisan spirit of dedication to the nation's interests
               that he brought to his work as Legal Advisor.

               From 1999 to 2000, Mr. Libby led a pro bono project for the Center for

Strategic and International Studies, a bipartisan research organization, which focused on

the laws that would apply in the aftermath of a domestic biological weapon attack. In the

wake of the 9/11 attacks, Congress found this scholarship particularly useful when

crafting new legislation to help cities, hospitals and EMR personnel respond to chemical

or biological attacks.

               In the late 1990s, Mr. Libby also served on the Board of Advisers of the

Center on Russian and Eurasian Studies of the RAND Corporation, and on the ABA

Standing Committee on Law and National Security. In addition, he informally advised

professors and think tanks on a variety of national security issues, ranging from the rise

of China to the conflict in the Balkans to U.S. defense budgets.

               Mr. Libby did not focus his commitment to pro bono activities entirely on

issues of public policy. Throughout his career in private practice, Mr. Libby frequently

represented individuals for little or no compensation, including active or former

government officials who found themselves embroiled in ethical or regulatory inquiries.

Such individuals often had limited financial means (because they were career civil

servants) and found themselves overwhelmed by the situations they faced. A former

staffer in the Office of the Vice President ("OVP"), who also worked in private practice

with Mr. Libby, recalls that he built a reputation among government employees "as

someone to go to in times of need. Whether it was straightening out a regulatory matter

related to travel receipts or advising someone's transition to the private sector, Scooter

took special care to treat these clients as well as the largest corporations." A former

colleague and national security professional reports that "[in] several instances that I am

aware of, Mr. Libby devoted many hours over many months to these cases and his

counsel was instrumental in sparing innocent people from what might otherwise have

been completely undeserved but very onerous consequences." One such former pro bono

client writes:

                 Scooter acted as my counsel when I worked in the White
                 House and was being investigated for a possible leak of
                 classified information to a national newspaper. The
                 unfounded charge would have ruined me professionally and
                 fighting it would have potentially ruined me financially.
                 With no hesitation, and like the good friend he is, Scooter
                 provided pro bono advice and assistance that ultimately led
                 to my regaining a security clearance and saving my career
                 in national security.

                 Mr. Libby also donated his time to individuals and organizations outside

the U.S. government. These pro bono projects included representing the Corporation for

Public Broadcasting, helping to establish an overseas school for handicapped children,

and assisting the Holocaust Museum. And Mr. Libby has represented individuals who

worked outside the government. In one case, he helped a Vietnam veteran obtain an

endorsement deal for prosthetic limbs, and in another he represented a housekeeper who

had been held against her will by her employer. In addition, Mr. Libby served on the

board of advisors for Freedom House, a non-partisan organization established by Eleanor

Roosevelt and Wendell Wilkie that promotes democracy and human rights. Keenly

aware of the importance of public service, Mr. Libby also encouraged his colleagues to

take on pro bono matters and accept positions in the government, as several letter writers

have noted.

               In 2001, Mr. Libby was called to serve his country for a third time, and he

became the Chief of Staff and the National Security Advisor to the Vice President. As

numerous letters indicate, Mr. Libby did not seek high office for partisan purposes or for

personal aggrandizement, and he was most comfortable toiling behind the scenes, out of

the public eye. One high school friend and former journalist describes Mr. Libby as a

"policy wonk." A former diplomat reports: "Scooter was not a political partisan, or

actually `political' in any sense commonly used." Similarly, according to a former

Pentagon colleague, Mr. Libby never acted out of "partisan animus, much less the sort of

vengefulness attributed to him in the press." Another friend recalls his conversations

with Mr. Libby about public service as "captur[ing] Scooter's utter lack of interest in

hard-edged partisanship." When called upon in 2001, Mr. Libby returned to government

service to work for the Vice President for the same reasons that he encouraged this friend

to take a high-ranking position in the State Department during the Clinton administration:

because "the matter had nothing to do with Washington partisanship and everything to do

with duty." According to this friend, Mr. Libby believes that "when you're offered a

position [in government] of . . . significance ­ and you believe you can do the job well ­

the presumption ought to be that you'll take it."

                  This description of Mr. Libby's sense of duty is echoed throughout the

letters submitted on his behalf. For example, one writer explains that Mr. Libby

sacrificed time with his family because "of a belief in public service not out of some great

ambition for visibility." And an economic analyst who has known Mr. Libby for over

thirty years describes Mr. Libby as "an understated, undemonstrative man, but his love

for and devotion to America is palpable to anyone who has worked with him. It is his

quiet patriotism, rather than careerism in even the slightest degree, that has motivated his

public service and the serious, principled, and selfless manner in which he has conducted


                  In the OVP, Mr. Libby combined his talent for managing a large group of

professionals (he supervised over 80 staffers) and his expertise in military and foreign

policy analysis and policy-making. John Hannah, who succeeded Mr. Libby as the Vice

President's National Security Advisor, testified at trial that Mr. Libby essentially held

two full-time jobs, and that he (Hannah) found holding just one of them to be "very

challenging," even "overwhelming." Feb. 13, 2007 Trial Tr. at 36-37.3 A former OVP

deputy recalls:

                  During my time in Washington I never met anyone who
                  worked longer hours, had a broader range of
                  responsibilities, or was more serious about fulfilling them
                  than Mr. Libby. . . . [I]n all of my dealings with him, I
                  always found Mr. Libby to be exceptionally thoughtful and
                  open-minded. Far from being an ideologue, . . . Mr. Libby

    Mr. Libby also held the position of Assistant to the President, which required him to
    perform additional domestic and national security duties.

               was genuinely interested in ideas and in hearing a variety of
               arguments and points of view.

               Not surprisingly, Mr. Libby's job became even more taxing after the 9/11

terrorist attacks. Mr. Libby's former colleagues in the OVP believe that after those

attacks, he drove himself "relentlessly," even "mercilessly." The Vice President's White

House physician comments that during this time period, "[t]he stress was continuous and

intense. . . . I can tell you for certain that Mr. Libby worked himself to exhaustion day

after day. This is a testimony to his devotion to our nation and the Vice President."

Despite his fatigue, Mr. Libby led by example. According to a former OVP staffer: "It

was Scooter's work ethic, steadiness and commitment in the days, months and years

following 9-11 that most inspired me and has taught me the definition of true leadership

in the face of adversity."

               As the Court is well aware, while he served in the OVP, Mr. Libby began

most mornings by participating in a CIA briefing with the Vice President, and spent

much of the rest of the day in meetings on national security issues, including meetings of

the National Security Council. His counsel was respected by senior participants in those

meetings, who were grappling with new threats to national defense and great uncertainty.

According to a former Chairman of the Joint Chiefs of Staff,

               [Scooter] brought clarity and innovation to our discussions,
               qualities that are refreshing and so needed in a large
               bureaucracy. On many occasions he would seek me out
               before or after a meeting to get my advice on military
               matters or ask me further questions. Scooter's dedication
               to the nation's security and his thoughtfulness were evident
               . . . . I always came away from our encounters thinking
               how lucky the country was to have someone of his caliber
               helping think through the great security challenges we all

               A former professor and high-ranking government official writes:

               During these years at the White House, I encountered no
               one more driven by analytical temperament, firmness of
               mind and sound policy reasoning than Scooter Libby. ...
               He was always at the center of the policy debates, quietly
               courteous, powerfully analytical, attentive to the views of
               others, including those who disagreed with him and striving
               to protect the United States and its democratic institutions
               from terrible and abiding external threats. In sum, Mr.
               Libby in my judgment has been over the decades an
               exemplary public policy practitioner of the kind I sought to
               develop among students during my 14 years as a Dean and
               Professor at Harvard's Kennedy School of Government.

               Mr. Libby devoted long hours to, among other things, addressing threats

from terrorist groups such as Al Qaeda, trying to stabilize the situation in Iraq, and

monitoring developments in Iran and North Korea. We will not rehash Mr. Libby's

national security duties here. Nevertheless, we emphasize that preventing another

terrorist strike on American soil was Mr. Libby's number one objective. According to a

former OVP deputy, "I saw first-hand his deep commitment to do everything humanly

possible to prevent another terrorist attack."

               Applying the experience he had been developing for more than a decade,

Mr. Libby focused in particular on protecting the nation against mass casualty attacks

using weapons of mass destruction. For example, he rang the alarm concerning the

nation's failure to develop and stockpile adequate countermeasures against bioterror

threats such as anthrax, smallpox, botulism, and the Ebola virus. A former OVP deputy

reports that Mr. Libby

               was motivated by an extraordinary commitment to
               protecting the nation from terrorist attacks, and particularly
               those that might involve mass casualties from nuclear,
               chemical or biological weapons. His knowledge and
               expertise in these matters predisposed him to raise concerns
               and possible scenarios that others had simply overlooked,

               particularly in the areas of transportation security and bio-

Mr. Libby successfully advocated legislation for Project Biowatch (which provides for

early detection of biological aerosol attacks) and Project Bioshield (which lends Federal

support to the development of medical countermeasures against biological attacks). A

senior official at the National Institutes of Health and renowned expert in the field writes,

"I do not believe that we would have had the Bioshield legislation or several of the

countermeasures that we now have in the Strategic National Stockpile were it not for the

tireless efforts of Mr. Libby." And an OVP staffer reports that due in large part to

Mr. Libby's urging, "the nation's ability to detect and respond to the covert introduction

of fissile material" was strengthened "through the creation of the Domestic Nuclear

Detection Office in the Department of Homeland Security." By stiffening our defenses,

these efforts serve to discourage attacks on America, and may yet save the lives of tens of

thousands of Americans.

       B.      Mr. Libby Has Demonstrated Strong Moral Character

               Several additional themes leap out from the many letters submitted on

Mr. Libby's behalf. Mr. Libby is known for being fair and generous, particularly by the

people who have worked with him. For example, he has mentored countless young

professionals in Washington. Letter after letter portrays Mr. Libby as uncommonly kind

and unselfish, as someone who constantly looks to help others. And Mr. Libby is

regularly described as a modest, genuine man who treats everyone with respect.

               As numerous letters show, Mr. Libby's friends and former colleagues

were stunned by his indictment and saddened and perplexed by his conviction. Indeed,

even people who are not particularly close to Mr. Libby are bewildered by this sad turn of

events. This is evidence that the crimes for which he was convicted represent an

aberration in an otherwise upstanding life.

               1.      Mr. Libby Is Known For His Fairness and Generosity

               Mr. Libby was known as a great boss, both in private practice and the

public sector. Commenting on Mr. Libby's appointment as managing partner of two

different law offices, a former colleague noted that such organizations "are notorious for

being difficult to manage. In my mind, Scooter gain[ed] the respect of this prickly group

of people partly due to his terrific skills and talents, but in no small measure also due to

the sense of fairness that imbues all of his actions." Indeed, one of Mr. Libby's former

law partners reports that he was appointed to lead Dechert's Washington office "because

we saw in him a man of character who would give his time and attention to creating an

environment that would allow others to succeed." In a similar vein, a lawyer who

worked for Mr. Libby as an associate remembers:

               Scooter consistently helped other lawyers without their
               even knowing that they benefited from his generosity
               (Scooter was too modest to tell anyone what he did for
               them, and he was not the type of person who sought praise
               for his good deeds). For example, I recall several instances
               in which Scooter brought in a new client or matter to the
               law firm and gave the "credit" in registering the client or
               matter to another lawyer in order to build the other lawyer's
               practice. He did this to his own financial detriment.

               Numerous letters refer to Mr. Libby's support for young professionals in

Washington. He took a personal interest in their careers, supporting their work and

enabling them to excel. A former State Department colleague writes:

               I have had many occasions to observe and admire
               Mr. Libby's interest in identifying talented and
               independent-minded young professionals and helping to
               launch them on promising scholarly, legal, or governmental
               careers. To my personal knowledge, he has unselfishly

               mentored dozens of individuals who have become stars in
               their respective fields and has done so with total disregard
               for their race, gender, or political or ideological persuasion.

               A former Defense Department and OVP colleague recalls that although

"we were at different levels and in different parts of the Undersecretary for Policy's

operation, Scooter went out of his way to help a junior colleague survive and succeed in

what was then a challenging and sometimes hostile environment for a 30 year old single

woman." Similarly, a former OVP staffer reports:

               It is with . . . compassion that Scooter took me under his
               wing and mentored me. As a mentor, Scooter tested me,
               showed me how to work in the complex governmental
               system and taught me how to think about problems and ask
               the right questions to ensure that I obtained the most
               accurate and complete information. . . . [He] has inspired
               me to pursue a career as a public servant.

               Mr. Libby's interest in the careers of his mentees continues long after they

have stopped working with him. Another former OVP staffer writes that her relationship

with Scooter and his family lives on today. "He has a genuine interest in my success

personally and professionally. Whether it's over dinner at his family's home, or in a

phone call or email to check in, Scooter is the kind of person everyone wants to have as a

friend or a boss."

               Finally, Mr. Libby is committed to equal opportunity. According to one

of his former OVP deputies, when Mr. Libby assembled the OVP staff, "he was focused

on not only hiring the most highly qualified people, but also providing opportunities for

women and minorities as well. . . . At one point, I recall that seven out of twelve senior

staffers were women." A former OVP senior staffer recalls that Mr. Libby urged the

administration to engage

               leaders from urban areas or constituencies with high
               African-American and Hispanic-American populations and
               other communities of color. Actions speak louder than
               words, and I was struck by the manner in which Mr. Libby
               quietly but forcefully demonstrated his strong leadership
               and commitment to ensure the President and Vice President
               received input from voices of people who felt they might
               not have had a credible voice within this Administration.

               2.      Mr. Libby Is Known for His Caring and Unselfish Nature

               Mr. Libby has a reputation for helping people through difficult times, even

if he does not know them well, and regardless of any stress he is experiencing in his own

life. For example, according to the Vice President's residence manager and social


               Scooter is selfless and even when a heavy workload
               preoccupied his mind, Scooter never forgot others. When
               my brother was deployed to Iraq, Scooter sought me out to
               tell me stories of all the good things my brother, Bryan, and
               his unit were doing in northern Iraq.

               After Scooter was indicted and he lost his job working in
               the White House, he remained interested in my brother's

               In a similar vein, one of Mr. Libby's neighbors reports: "On several

occasions Scooter has quietly provided guidance to [my son] that has helped us keep him

on the right path. Scooter Libby is someone I unfailing trust my children with. That is

the highest compliment I can pay any man." A former OVP colleague and family friend

puts it this way: "My lifelong view, which has only been validated in adulthood, is that

kids are the most honest and true evaluators of people. Watching my children with

Scooter, and all children with him, you'd think he hung the moon. He is gentle and

caring. He is genuinely interested in others' well being and still inspires me to this day."

               Many of the letter writers describe occasions when Mr. Libby comforted

them in times of great personal distress. One friend recalls: "He always showed great

kindness to my son, my daughter and me, particularly when my husband was a reporter in

Iraq during the spring of 2003. Several times, he took time from his incredibly busy

schedule to call me to check on the kids and to make sure we were managing. He never

seemed rushed or perfunctory; his concern was authentic." A military aide to the Vice

President describes finding out while traveling on Air Force Two that his father had

suddenly passed away. "One thing that I will remember about the first few hours after I

had received the news and began sorting out what do next, is Mr. Libby's genuine

concern for me and my family. He personally informed the Vice President of the

situation and offered his assistance in helping me make arrangements to return home." A

colleague from the Hudson Institute, Mr. Libby's most recent employer, describes a two-

month period "when, two-and-a-half weeks after my mother succumbed to a long illness,

my father suffered a massive cerebral hemorrhage. This was a very dark period, but

Scooter, who certainly was facing immense personal challenges himself preparing for the

trial, was regularly in touch and constantly of good cheer. His support was a source of

real strength to me during that awful period."

               Mr. Libby's considerate nature is summed up well by a friend who has

known him for 25 years: "From the time I met him, I've been struck by Scooter's low-

keyed but loyal interest in contributing to the endeavors of others, a rarity for ambitious

and incredibly busy Washingtonians. He is the opposite of a hard-driving calculator of

his own advantage or an ideologue."

               Mr. Libby's concern for the well-being of others extends beyond the

boundaries of his community and even the borders of his country. Throughout his

government service, Mr. Libby has developed policies designed to improve the lives of

oppressed people throughout the world, and has advocated a view of the national interest

that embraces international human rights. This humanistic approach to American foreign

policy has made a lasting impression on government officials who have served alongside

him. For instance, one former colleague who helped Mr. Libby promote democracy in

the Eastern Bloc and later sought Mr. Libby's assistance at Freedom House describes

how Mr. Libby

               has shown himself . . . to be a dedicated and intelligent
               advocate for freedom, democracy and civil liberties in the
               world. . . . [He has] always expressed interest in the human
               beings [affected by U.S. policies] and the opportunities and
               dangers they faced.

               Another career civil servant who worked with Mr. Libby during his

Pentagon years notes that his "efforts [in crafting U.S. policy] reflected his belief in the

dignity of all individuals." Mr. Libby has advocated his convictions even when doing so

was unpopular within a particular administration. For example, a former defense official

recalls that in the early 1990s Mr. Libby "knew a moral principle was at stake [in the

conflict in Bosnia] and tried in every way to convince his superiors that the United States

should help the persecuted Muslims in Bosnia, or should at least give them weapons for

their self-defense . . . ." Mr. Libby championed this view, even though it ran counter to

official administration policy, in an effort to convince other policy makers that a change

was necessary for humanitarian reasons.

               Mr. Libby's attention to the human impact of foreign and military policy

decisions did not flag when he served in the OVP. An individual aware of Mr. Libby's

role in diplomatic discussions on Middle East peace "vividly recalls" Mr. Libby's

concern for the suffering that both Israelis and Palestinians endured as a result of the

second intifada. This individual describes Mr. Libby's "meticulous efforts with regard to

issues concerning the prevention of loss of innocent lives and human suffering on both

sides," and remembers being "surprised . . . at the length of time Scooter was devoting to

the human issues, and the in-depth questions he had on matters regarding the human

tragedy aspect of the conflict."

               One of Mr. Libby's former OVP deputies puts it best:

               Standing up for the dignity of the individual and expanding
               the realm of human freedom were particularly consistent
               features of Scooter' approach to international affairs. No
               matter how frenzied his schedule, no matter how
               overwhelming his responsibilities, Scooter never failed to
               make time to see the countless number of human rights
               activists and political dissidents who streamed through
               Washington desperately seeking a few minutes with any
               U.S. official, much less the national security advisor to the
               Vice President of the United States . . . .

               One person who closely observed Scooter's quiet nurturing
               of those struggling against great odds to uphold the cause
               of human decency in the Middle East was my friend, Natan
               Sharansky, the great Israeli human rights activists and
               former Soviet dissident. Referring to Scooter, Sharansky
               once remarked to me that he could not easily recall an
               American official who had done so much to instill hope in
               the region's beleaguered democrats and yet whose work
               remained so unsung.

               3.      Mr. Libby Treats Everyone with Respect

               Whether working as a partner in a law firm or serving in a senior position

in government, Mr. Libby remained unpretentious and unassuming. A legal secretary for

one of his attorneys reports: "He treated everyone with consideration and respect,

whether you were an attorney, secretary or messenger. I believe Scooter's ability to

connect with people on every level is due to his high moral character, honesty and

concern for his fellow citizens."

               Mr. Libby's former special assistant in the OVP recalls that "[d]espite his

demanding work load, Scooter was always available to staff, [including] drivers,

stewards, Secret Service agents, military aides and interns." Similarly, another former

OVP assistant remembers that he

               acknowledged the little things that most bosses take for
               granted; he rarely walked out the door in the evening
               without saying thank you to his staff; he never raised his
               voice in anger, no matter how well deserved; he always
               insisted on carrying his own bags; and, in a city where
               one's level of importance is dictated by the order in which
               parties arrive on the telephone, Scooter always wanted to
               be the first on the line, regardless of the stature of the
               person he was calling. . . . He exuded a humility
               uncharacteristic of Washington officials . . . .

               A fitting example of Mr. Libby's approachable, down-to-earth demeanor

is the way that he interacted with the staff in the E. Barrett Prettyman Courthouse.

Beginning in December 2005, Mr. Libby began to spend a significant amount of time in

the Courthouse, because it provided the only facility where he could review classified

discovery materials. The staff grew to have great affection for him. "`You got to know

him,' said James Huff, a sixth-floor court security officer who has seen his share of high-

profile defendants walk through these hallways in the past 20 years. `You got to talk to

him. You got to like him.'" Matt Apuzzo, Behind the Scenes ­ Scooter has left the

building, Associated Press, March 8, 2007.

       C.      Mr. Libby Is Devoted to His Family

               Mr. Libby's dedication to serving his country is surpassed only by his

commitment to his family. He met Harriet Grant in the late 1980s, and they have been

married for over 15 years. They have a son who is 13 years old and a daughter who is 10.

Like Mr. Libby, Ms. Grant was drawn to public service. She worked as counsel for

Senator Joseph Biden from 1989 to 1993, but left her legal career to raise their children.

               The demands of the OVP required Mr. Libby to sacrifice time with his

family. He usually left his home by 6:15 in the morning, before his children were awake,

and did not return until late at night, after his children were asleep. Particularly after the

9/11 attacks, writes a former OVP deputy, "he suffered frequent separations from his

family as he accompanied the Vice President to undisclosed locations to preserve the

continuity of government in the event of a second wave of terrorist attacks." But in the

limited time when he could escape from his duties to the country, Mr. Libby lavished

attention on his young children. He faithfully attended their school plays, their sporting

events, and even their play dates with other children. According to a friend of the family,

               Scooter and Harriet have always chosen their family over
               the high end Washington political lifestyle that comes with
               the Vice President's Chief of Staff job. Some political
               insiders thrive on the perks of the job, but they could not
               have cared less. They routinely chose the soccer field with
               their children over elbow rubbing with Washington's
               political elite.

Another friend says the same thing: "In the course of his recent White House years he

may have turned down more invitations to downtown institutional receptions, dinner

parties, and other social events than any other senior official" to spend time with his


               By all accounts, Mr. Libby is a terrific father. A neighbor notes that she

expects to see him in his yard every weekend, "running, playing, engaging his children in

the direct, physical way that I believe all children wish for from their fathers, and few, I

think enjoy." Another family friend notes: "As a pediatrician I've encountered and

observed many parenting styles. I wish I could package Scooter's patience and

unflappable temperament so that other families could learn from his style. Whether

explaining current events or answering the constant `why?' of childhood, he speaks in a

simple direct manner exactly to the child's level."

               Mr. Libby's indictment and conviction have led to great distress for his

children. The media's obsessive, intrusive coverage ­ which is far beyond any ordinary

case ­ has magnified their anguish. Indeed, just turning on the television or glancing at

the front page of the newspaper can be a painful experience for them. The PSR indicates

that Mr. Libby's children "have experienced a very difficult time in school." In fact, they

have been subjected to cruel teasing about their father's very public legal woes, and this

is likely to continue even if Mr. Libby is not sent to prison. In addition, as the PSR notes,

they have had to face television reporters and cameras staking out their home waiting for

their father to enter and exit. Mr. Libby's children have suffered tremendously already,

and will continue to suffer greatly if he is separated from them, which is one of the

reasons we seek a non-incarcerative sentence.

               Admittedly, all children who face the loss of a parent to jail suffer, but as a

result of the high profile of this case and the resulting press coverage, the Libby

children's suffering has been particularly acute. Most children of convicted defendants

do not endure what Mr. Libby's children have had to endure for over three and a half


III.     The Nature and Circumstance of the Offense

               Under § 3553(a)(1), the Court must also analyze the "nature and

circumstances" of the convicted offenses. Mr. Libby fully acknowledges that perjury,

false statements, and obstruction of justice are serious crimes. We feel compelled to

point out, however, that the circumstances that led to Mr. Libby's conviction are unusual

and perhaps unique.

               To begin with, Mr. Libby was convicted for lying to the FBI and the grand

jury, which were both investigating the possible improper disclosure of Valerie Wilson's

CIA employment to reporters, primarily Robert Novak. Mr. Libby, of course, was not

Mr. Novak's source. As discussed more fully in our Guidelines memo, there is no

evidence that Mr. Libby committed any underlying crime. And, no evidence suggests

that he learned that Ms. Wilson's status was covert or classified before her identity was

publicly disclosed. 4 Accordingly, there is no basis for concluding (even in the absence of

formal charges) that Mr. Libby did anything unlawful when he discussed Ms. Wilson

with any reporter prior to July 14, 2003.

               More broadly, no one was ever charged with improperly disclosing Ms.

Wilson's identity and to this day it is unclear, if not highly doubtful, that any improper

(much less illegal) disclosure was made by any government official. Therefore, this is

the rare case where the statements by the defendant that were found to be false did not

cover up any underlying crime.

               We do not mean to suggest that the absence of an underlying offense

excuses obstruction and perjury. Rather, we believe it is appropriate for the Court to

consider that Mr. Libby was not covering up any illegal activity when deciding how
    In 2004, the Special Counsel represented to Chief Judge Thomas F. Hogan that there
    is "no direct evidence that Libby knew or believed that Wilson's wife was engaged in
    covert work." Aug. 27, 2004 Aff. of Patrick J. Fitzgerald at 28 n.15. Last week, the
    government admitted that "the information to which defendant was given access did
    not expressly identify Ms. Wilson as a covert agent." Gov't Guidelines Mem. at 8

severely he should be punished. The government's own motive theory suggests that

Mr. Libby made false statements not because he did anything illegal in June or July of

2003, but because he allegedly feared (albeit mistakenly) in October 2003 that his prior

statements to reporters might have been wrongful. This motive should bear on the issue

of the appropriate punishment, especially in light of Booker. See United States v. Brown,

439 F.Supp.2d 134, 135-36 (D.D.C. 2006) ("Booker's remedy . . . ensured that a

sentencing court may consider whatever facts it deems relevant ­ subject to limitations

imposed by Congress ­ in determining the appropriate penalty within the statutorily

prescribed spectrum for an offense."); United States v. Milne, 384 F.Supp.2d 1309, 1313

n.4 (E.D. Wis. 2005) ("[A]fter Booker, courts are required to consider any § 3553(a)

factor put forward by the defense that might make the guideline sentence inappropriate. .

. . In many cases, this requirement will necessitate consideration of the defendant's

motive for committing the offense . . .") (emphasis in original; citations omitted).

IV.    The Relevant Guidelines Calculations

               Although the Supreme Court declared the Guidelines advisory, we

recognize that the Court is obligated to compute the relevant sentencing range under the

Guidelines when completing its sentencing analysis. United States v. Coumaris, 399

F.3d 343, 351 (D.C. Cir. 2005) ("a sentencing court is required to consider Guidelines

ranges applicable to the defendant, but is permitted to tailor the sentence in light of other

statutory concerns as well") (internal citations and quotations omitted). To begin with,

the defense and the government both agree with the Probation Office that the base

offense level here is 14. For the reasons set forth in a separate memorandum filed today,

the Guidelines calculation in the PSR is correct; the offense level is 14, which

corresponds to a sentence of 15-21 months. The Court should begin its consideration of

the Guidelines factor in its analysis under § 3553(a) from that point. The Probation

Office also identified grounds for downward departure from that offense level under

U.S.S.G. §§ 5K2.0 and 5K2.20. The Probation Office is also correct in that regard, and

we urge the Court to apply either of those grounds for a downward departure.

               In accordance with U.S.S.G. § 5K2.0 and the Supreme Court's opinion in

United States v. Koon, a court may depart from the Guidelines if it finds that mitigating

factors, not otherwise prohibited by the Guidelines, are "present to an exceptional degree

or in some other way make[] the case different from the ordinary case where the factor[s

are] present." 518 U.S. 81, 96 (1996). In this case, the PSR identifies at least three

mitigating factors that are present to such a significant degree to warrant downward

departure: (1) Mr. Libby's outstanding record of public service and prior good works; (2)

collateral employment consequences for Mr. Libby, including the expected loss of his

license to practice law; and (3) the improbability of any future criminal conduct by

Mr. Libby.

               These factors may form the grounds for a departure when they are present

to an exceptional degree, as they are in this case. See Koon, 518 U.S. at 96; U.S.S.G.

§ 5K2.0(a)(4). And, even if the factors are not truly exceptional in their own right, in

combination they may nonetheless remove the case from the "heartland" of typical

guidelines cases. See § 5K2.0(c). In this case, Mr. Libby's outstanding record of public

service is sufficiently extraordinary to justify a downward departure on that basis alone;

but certainly, when considered in conjunction with the other factors, this case is outside

the "heartland" of typical guidelines cases. Koon, 518 U.S. at 96.

               As discussed more fully in section II above, Mr. Libby has devoted much

of his professional career to serving the public interest. And although the government

attempts to minimize it in its sentencing memorandum, no objective observer can deny

that Mr. Libby's record of achievement in public service is extraordinary. To take just a

few examples, while working in the Executive Branch, Mr. Libby helped the United

States win the Gulf War, assisted with the transition to democracy in Eastern Europe,

helped craft a strategy for reduced defense spending, and played a significant role in the

largest nuclear arms reduction in history. He worked vigorously to counter the most

pressing threat to national security in the post-9/11 era ­ the use of weapons of mass

destruction by terrorists on American soil. He helped to ensure that Americans today are

safer from the threat of nuclear attack by improving domestic detection capabilities and

recommending measures to prevent nuclear proliferation by A.Q. Khan's sinister

network. And if America were attacked with biological or chemical weapons, hundreds

of thousands ­ possibly millions ­ of Americans may be saved due in large part to Mr.

Libby's singular focus on ensuring that the United States is adequately prepared for such

a crisis.

               In private practice, Mr. Libby was extraordinarily devoted to pro bono

matters. For instance, he served as legal advisor to the Cox Committee and rescued

numerous government officials facing ethics inquiries from career and financial disaster.

               The countless hours Mr. Libby spent training and mentoring young

professionals in the public and private sectors to succeed (regardless of their race, gender,

or political affiliation) are also above and beyond the call of duty. He has had a

remarkable effect on young people in Washington, inspiring many of them to likewise

devote themselves to public service. A former Pentagon and NSC colleague sums it up


               [f]or those privileged to work for him, he always showed a
               keen interest in helping to develop their skills and talents
               for not only their personal advancement, but to improve the
               value of their public service for the citizens of our nation.
               Legions of seasoned professionals are the beneficiaries of
               that sense of personal responsibility and dedication to their

               Mr. Libby also inspired his peers to serve the country. One of his former

law partners reports, "Scooter inspired me as a lawyer and encouraged me as a citizen

aspiring to receive an appointment to a position in the federal government."

               The point is not, as the government suggests, that any diligent federal

employee convicted of a crime should receive a "discount" at sentencing. Rather, such

significant contributions to the nation over a 30-year career constitute a mitigating factor

that is truly "present to an exceptional degree" in Mr. Libby's case, thus justifying a

downward departure. See, e.g., United States v. Canova, 412 F.3d 331, 358-359 (2d Cir.

2005) (district court did not abuse its discretion in granting a downward departure for

extraordinary public service and good works); United States v. Kuhn, 351 F. Supp. 2d

696, 705-706 (E.D. Mich. 2005) (downward departure granted based on defendant's

community involvement and continuous employment history in the public sector); United

States v. Rioux, 97 F.3d 648, 663 (2d Cir. 1996) (downward departure based in part on

defendant's charitable and civic good deeds not an abuse of discretion).

               The government's memorandum suggests in effect that Mr. Libby's public

service should work against him at the time of sentencing. It urges that Mr. Libby should

be punished more harshly because he was a public servant; but it cannot be that a person

who performed a thousand good acts merits a harsher sentence than someone who has

lived for himself alone. Mr. Libby deserves a credit, not a debit, for his service to the

nation. Indeed, Judge Urbina recently sentenced developer Douglas Jemal to a period of

probation for his felony fraud conviction based largely on his extensive contributions to

the well-being of the community. See Carol D. Leonnig, Jemal's Good Works Pay Rich

Dividend, WASH. POST, Apr. 22, 2007 at C01 (Judge Urbina stated that "supporters'

letters and testimony showcased a lifetime of good deeds and that such a genuine

outpouring led to his decision"). We ask this Court to do the same here.

               The Court should also consider the extent to which conviction alone is

devastating to Mr. Libby. It is unlikely that he will be able to return to the private

practice of law because, as the PSR notes, he has been suspended from the practice of law

and will likely lose his law license if the conviction is affirmed on appeal. In addition,

his conviction will almost certainly prevent him from ever holding public office again.

Further, because Mr. Libby has been the object of so much negative media attention, it

will be extremely controversial for any employer to hire him. Accordingly, whatever

employment he obtains is not likely to be commensurate with his unique skills and

abilities. Because Mr. Libby's future employment opportunities are now so sharply

circumscribed, a downward departure is appropriate. See United States v. Jones, 158

F.3d 492, 499 (10th Cir. 1998) (affirming downward departure based in part on the

"collateral employment consequences [the defendant] would suffer"

               It is also appropriate for the Court to consider that Mr. Libby is highly

unlikely to commit a criminal offense in the future. Mr. Libby has never violated the law

previously, and the letters submitted on his behalf suggest that he has no propensity

toward criminal behavior. The government's unsupported argument to the contrary is


                The Probation Office also noted in the PSR that the Guidelines provision

pertaining to aberrant behavior (U.S.S.G. § 5K2.20) is applicable here. A defendant is

eligible for such a downward departure when the crimes for which he was convicted

represent a single criminal transaction that (1) was committed without significant

planning; (2) was of limited duration; and (3) represents a marked deviation from an

otherwise law-abiding life. In making its determination whether to depart under

§ 5K2.20, the Court may consider Mr. Libby's employment record and prior good works,

which have previously been described. See § 5K2.20 cmt. n. 3.5

V.      A Sentence of Probation Would Satisfy The Requirements of Section

                Turning to § 3553(a)(2), the Court must also consider the need for

Mr. Libby's sentence to (i) reflect the seriousness of his offense, promote respect for the

law, and provide just punishment for the offense; (ii) adequately deter criminal conduct;

and (iii) protect the public from further crimes of the defendant.

        A.      The Seriousness of the Offense

                The offenses here are serious ones. Nevertheless, as the Court metes out

"just punishment," we urge the Court not to overlook the punishment Mr. Libby has

already received, and stands to receive in the future, as a result of his convictions.

Mr. Libby's felony convictions make it unlikely that he will ever work in government or

     Several of the cases the government cites in its Guidelines Memorandum were
     decided prior to the adoption in 2000 of § 5K2.20 and are therefore inapposite to the
     issue of what constitutes aberrant behavior under the current version of the

practice law again, and his notoriety will also hinder his future job prospects. He and his

family have endured crushing public humiliation as a result of unceasing press coverage.

The media commentary about Mr. Libby has often been particularly unfair. Although he

did not "out" Ms. Wilson, Mr. Libby has been continually blamed with leaking or

orchestrating the leak of her identity. As the evidence at trial showed, as far back as

September 2003, reporters were insinuating that Mr. Libby was the leaker. Indeed, based

on such false assumptions, Mr. Libby has been repeatedly and wrongfully accused by

some people of serious crimes including treason.

               The burden of relentless and unfair media coverage has fallen heaviest on

Mr. Libby's young children, and imprisonment would separate him from them at a

particularly formative time in their lives. The Court should consider these collateral

consequences to make sure that Mr. Libby's punishment is not "greater than necessary."

       B.      A Sentence of Probation Will Adequately Deter Future Criminal Conduct
               and Promote Respect for the Law

               With respect to deterrence, Mr. Libby endured a very public fall from

grace, beginning with his resignation from the White House on the day he was indicted

and culminating in his four felony convictions. These dire consequences are likely

enough to warn the public ­ and high ranking government officials in particular ­ that it

is important to take FBI and grand jury investigations very seriously. In this light, it is

not necessary to incarcerate Mr. Libby to promote respect for the law or to serve the

interests of general deterrence.

       C.      Mr. Libby Does Not Pose A Threat To Society

               Mr. Libby has no prior criminal history and has led an otherwise

upstanding, exemplary life. There is therefore no basis to conclude that he is likely to

commit any crimes in the future. For the same reason, the public does not need to be

protected from him.

VI.    Sentencing Recommendation

               The public nature of Mr. Libby's indictment, trial, and conviction will

ensure that he and his family carry the stigma of those convictions forever. The impact

of Mr. Libby's convictions, on himself and his family, is profound and devastating. It

will continue to be so, regardless of the sentence this Court chooses to impose.

               There is no denying the seriousness of the crimes of which Mr. Libby was

convicted. At the same time, there is no denying the kind of person Mr. Libby is and the

contributions he has made to his country. In light of these factors and the goals of

§ 3553(a), a prison sentence for Mr. Libby would be "greater than necessary" punishment

in this case. A sentence of probation, perhaps combined with community service

alternatives, would allow Mr. Libby to continue serving the public interest, and would

still promote respect for the law.


               For the reasons set forth in this Memorandum and in the PSR, we

respectfully request that the Court sentence Mr. Libby to a term of probation.

Dated: May 31, 2007                           Respectfully submitted,

      /s/                                           /s/
Theodore V. Wells, Jr.                        William H. Jeffress, Jr.
(DC Bar No. 468934)                           (DC Bar No. 041152)
James L. Brochin                              Alex J. Bourelly
(DC Bar No. 455456)                           (DC Bar No. 441422)
Paul, Weiss, Rifkind, Wharton                 Baker Botts LLP
 & Garrison LLP                               1299 Pennsylvania Avenue, NW
1285 Avenue of the Americas                   Washington, DC 20004
New York, NY 10019-6064                       Tel: (202) 639-7751
Tel: (212) 373-3089                           Fax: (202) 585-1087
Fax: (212) 373-2217

John D. Cline
(D.C. Bar No. 403824)
Jones Day
555 California Street, 26th Floor
San Francisco, CA 94104
Tel: (415) 626-3939
Fax: (415) 875-5700


Libby Opposition to Government Sentencing [Doc 357]

Doc 357 - NOT an OCR job

                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA                             )
       v.                                            )     CR. NO. 05-394 (RBW)
I. LEWIS LIBBY,                                      )
      also known as "Scooter Libby,"                 )
      Defendant.                                     )


              Defendant I. Lewis Libby, through his counsel, respectfully submits this

memorandum in opposition to the Government's Memorandum of Law in Support of Its

Proposed Sentencing Guidelines Calculations ("Gov't Guidelines Mem."), filed May 25,

2007. In addition, we respond here to certain arguments raised in the Government's

Sentencing Memorandum ("Gov't Sent. Mem."), also filed May 25, 2007. Mr. Libby's

sentencing hearing is scheduled for Tuesday, June 5, 2007 at 9:30 a.m.


              The government contends that the Probation Office incorrectly determined

the offense level for the crimes of which Mr. Libby was convicted, and that the Court

should apply either of two enhancements under the Sentencing Guidelines. For the

reasons set forth below, the government's arguments are wrong as a matter of both fact

and law.

              First, and most significantly, the government relies on numerous "facts"

that are not supported by the record, and on evidence that was withheld from Mr. Libby

during discovery. Even worse, many of the government's assertions about Mr. Libby's

conduct are inconsistent with the record or otherwise misleading. The government urges

the Court to violate due process when it suggests that sentencing enhancements should be

based on secret or unproven facts.

               Second, the language of and the commentary to the Guidelines, in

conjunction with the relevant case law, contradict the government's positions.

               Third, the government fails to acknowledge the unique circumstances of

this case. Mr. Libby did not commit an underlying offense relating to unauthorized

disclosure of national defense information. Just as significantly for purposes of the

Guidelines, neither did anyone else. These facts were unmistakably clear from early in

the government's investigation, and certainly cannot be disputed now, in light of the

evidence adduced at trial. The government has used the sentencing process to reinject

into the case, unconstrained by the rules of evidence, issues long since ruled irrelevant. It

seeks to have Mr. Libby sentenced on the basis of the case it could have sought to try ­

but chose not to. In sum, the sentencing enhancements the government asks the Court to

impose would result in a punishment that is grossly disproportionate to the conduct on

which Mr. Libby's conviction was based.

I.     Factual Background

               The Court is familiar with the evidence at trial, and we do not wish to

rehash the evidence any more than necessary in this memorandum. Nevertheless,

because the government has distorted so many relevant facts, we are compelled to set the

record straight here.

       A.      The Nature of the Government's Investigation

               Valerie Wilson's employment at the CIA was disclosed publicly in a

column by Robert Novak published on July 14, 2003. There is no doubt that

Mr. Novak's column triggered the government's investigation. After the CIA referred

the matter to the Justice Department, an FBI investigation began in late September 2003.

It is undisputed that, as the investigation swiftly uncovered, Mr. Novak's two primary

sources were Richard Armitage and Karl Rove, and that CIA spokesperson Bill Harlow

also confirmed information about Ms. Wilson's CIA employment to Mr. Novak.

Mr. Libby had nothing to do with this leak. He was not a source for Mr. Novak, and he

was not acting in concert with any of Mr. Novak's sources. The government has never

suggested otherwise.

               During the investigation, Mr. Libby consistently told the FBI and the

grand jury that he had first learned that Ms. Wilson worked at the CIA from the Vice

President in early June 2003. The government's suggestion to the contrary (see Gov't

Sent. Mem. at 5) is belied by the trial record. According to Mr. Libby, months later he

thought he had forgotten that Ms. Wilson worked at the CIA and relearned this

information, to his surprise, from Tim Russert in a telephone conversation on July 10 or

11. Mr. Libby told the FBI and the grand jury that he also discussed Ms. Wilson's

identity with two reporters on July 12: Matthew Cooper and Judith Miller.1 Mr. Libby

    The government repeatedly claims that Mr. Libby has stated that his "disclosures of
    information regarding Ms. Wilson's employment may have been sanctioned by the
    Vice President." Gov't Guidelines Mem. at 6-7; see also Gov't Sent. Mem. at 12, 14.
    This is a misleading characterization of Mr. Libby's statements to the FBI and his
    grand jury testimony. Mr. Libby repeatedly told both the FBI and the grand jury that
    the Vice President had not instructed him to disclose any information regarding
    Ms. Wilson to the press, and his notes of discussions with the Vice President
    corroborate such statements and testimony. Only after repeated questioning by an
    FBI agent and the Special Counsel about whether it was possible that the Vice
    President had recommended such a disclosure did Mr. Libby allow that it was
    possible, although he had no such recollection. See, e.g., Mar. 24, 2004 G.J. Tr. at
    69-70 (GX 2).

said that when he communicated this information to Mr. Cooper and Ms. Miller, he

attributed it to reporters, and said he did not know if it was true.

        B.     The Charges Against Mr. Libby

               On October 28, 2005, Mr. Libby was indicted for obstruction of justice,

perjury, and making false statements, based on his account of his conversations with

Mr. Russert, Mr. Cooper and Ms. Miller. Although the government had investigated

potential offenses under the Intelligence Identities Protection Act ("IIPA"), 50 U.S.C. §

421 and the Espionage Act, 18 U.S.C. § 793, neither Mr. Libby nor anyone else was

charged with violating either of those two statutes or with any other offense involving

misuse of classified information. It is entirely unremarkable that no such charges were

ever brought. As detailed below, the overwhelming evidence from the FBI and grand

jury investigations and the trial proceedings shows that neither Mr. Libby nor the

numerous other government officials who discussed Ms. Wilson's employment during

June and July 2003 believed that she was covert or that her employment status was


               At the close of the government's case, the defense moved to dismiss from

the indictment the allegation that Mr. Libby had lied about his July 12 conversation with

Ms. Miller, because the evidence did not support this allegation. The government did not

oppose this motion, and the Court granted it.

               On March 6, 2007, Mr. Libby was convicted on Count 1 (obstruction),

Count 2 (false statements), and Counts 4 and 5 (perjury). Mr. Libby was acquitted on

Count 3, which charged that he had made false statements about his conversation with

Mr. Cooper. Thus, it appears that Mr. Libby's conviction rests principally on the jury's

determination that he lied to the FBI and the grand jury in saying Mr. Russert told him

that Ms. Wilson worked at the CIA, and in saying that he thought, when he talked to

other reporters about Ms. Wilson, that he was only passing on information from reporters

and did not know if it was true.2

               The government now makes sweeping accusations that Mr. Libby "lied

about nearly everything that mattered." Gov't Sent. Mem. at 5. Of course, the record

simply does not support the government's claims. The Court should disregard such

unsubstantiated, last-ditch attempts to accuse Mr. Libby of additional misconduct. The

government chose to charge a narrow case, and the jury's verdict was on even narrower

grounds (e.g., the Court dismissed the allegation that Mr. Libby lied about his

conversation with Ms. Miller, and the jury acquitted Mr. Libby of lying about his

conversation with Mr. Cooper). Neither the record nor the jury's verdict supports the

government's belated allegations of uncharged improper conduct.

       C.      The Government's Unsupported Claims About Ms. Wilson's Status

               Both of the sentencing memoranda the government filed on May 25, 2007

include unfounded assertions that Mr. Libby's conduct interfered with its ability to

determine whether anyone had violated the IIPA or the Espionage Act. See Gov't Sent.

Mem. at 13-15; Gov't Guidelines Mem. at 15. These assertions represent an attempt to

reinject into the case an issue the government could have raised earlier, but chose not to.

    Although the jury convicted Mr. Libby on Count 5, which also alleges false testimony
    about his conversation with Mr. Cooper, the instructions permitted the jury to convict
    on that count based solely upon Mr. Libby's testimony that "the only thing I had, I
    thought at the time, was what reporters are telling us." Accordingly, the conviction
    on Count 5 appears to be based on Mr. Libby's characterization of his state of mind
    subsequent to his conversation with Mr. Russert, rather than on Mr. Libby's account
    of what he actually said to Mr. Cooper. This is consistent with the jury's decision to
    acquit Mr. Libby on Count 3, which only alleged that Mr. Libby lied about his
    conversation with Mr. Cooper.

We are necessarily hampered in our ability to counter the government's assertions

regarding Ms. Wilson's status under the IIPA because the Court ruled ­ at the

government's behest ­ that the defense was not entitled to discovery of the information

necessary to challenge them. But even a review limited only to the publicly available

information suggests that the conclusion the government touts as "fact" is subject to

significant doubt.

               1.      It Is Not Clear That Ms. Wilson Was a Covert Agent Under the

               The government has refused for years to take a position regarding whether

Ms. Wilson was a covert agent as defined under the IIPA. For example, in his October

28, 2005 press conference, in response to a reporter's question, the Special Counsel

stated: "I am not speaking to whether or not Valerie Wilson was covert." Special

Counsel Patrick J. Fitzgerald's Press Conference, Oct. 28, 2005 Tr. at 8.

               Early in discovery, Mr. Libby sought discovery of documents relating to

whether Ms. Wilson's status as a CIA employee was classified. See Mot. of I. Lewis

Libby To Compel Disc. of Rule 16 and Brady Material in the Possession of Other

Agencies at 2 (Jan. 31, 2006) (Dkt. 32). The government refused to provide the

requested discovery on the ground that it was irrelevant. It noted (correctly) that

Ms. Wilson's CIA status was "not an element of any of the three statutory violations

charged." Gov't Consol. Resp. to Def. Mots. to Compel Disc. at 28 n.11 (Feb. 16, 2006)

(Dkt. 36). In fact, according to the government, it was "irrelevant whether Mr. Wilson's

wife actually did work at the CIA" at all. Gov't Resp. to Def. Third Mot. to Compel

Disc. at 11 (April 5, 2006) (Dkt. 80).

               On June 2, 2006, the Court issued a discovery order "set[ting] forth what

this case is and is not about." Order at 1 (June 2, 2006) (Dkt. 112). After noting that

Mr. Libby had not been charged with illegally disclosing Ms. Wilson's affiliation with

the CIA, the Court explained that "the only question the jury will be asked to resolve in

this matter will be whether the defendant intentionally lied" to the grand jury and the FBI

about his conversations with three news reporters. Id. at 2. The Court made clear that the

actual status of Ms. Wilson's CIA employment had nothing to do with answering that

question. See id. at 3. Denying Mr. Libby's discovery requests, the Court held that

"Ms. Wilson's documented status as an employee of the CIA, unless viewed by the

defendant or the content of the documentation was made known to him or a potential

government witness, is simply immaterial to the preparation of the defense and thus not

discoverable." Id. at 6 n.3.

               The Court's comments during the trial also made clear that Ms. Wilson's

status with the CIA was irrelevant to the case. In preliminary instructions to the jury, the

Court stated that what Valerie Wilson's

               actual status was or whether any damage would result from
               the disclosure of her status are totally irrelevant to your
               assessment of the defendant's guilt or innocence on the
               offenses the defendant has been charged with in this case.

Jan. 23, 2007 A.M. Tr. at 19:25 to 20:12. The Court repeated this and similar statements

several times during the trial.

               The government has now adopted a new position on Ms. Wilson's status

in a brazen attempt to convince the Court that Mr. Libby should be punished as if he

outed a covert CIA official or mishandled classified information ­ a position it carefully

avoided taking before or at trial. The government baldly asserts: "At the time of the

leaks, Ms. Wilson in fact qualified as a `covert agent' within the meaning of the IIPA."

Gov't Guidelines Mem. at 5; see also Gov't Sent. Mem. at 12. The prosecution offers

two supposed grounds for this belated conclusion. Both are unconvincing.

               First, the government claims that its "investigators were given access to

Ms. Wilson's classified file." Gov't Guidelines Mem. at 5 n.2. This is tantamount to

asking the Court and Mr. Libby to take the government's word on Ms. Wilson's status,

based on secret evidence, without affording Mr. Libby an opportunity to rebut it. Such a

request offends traditional notions of fairness and due process. United States v.

Blackwell, 49 F.3d 1232, 1235 (7th Cir. 1995) ("It is well established that a convicted

defendant has a right to be sentenced on the basis of accurate and reliable information,

and that implicit in this right is the opportunity to rebut the government's evidence.");

United States v. Edelin, 180 F. Supp. 2d 73, 75 (D.D.C. 2001) (it is necessary "to protect

the defendant's Fifth Amendment due process right by ensuring that defendant has the

ability to rebut any aggravating factors asserted by the Government").

               Second, the government relies on a terse two-and-a-half page summary of

Valerie Wilson's employment history that was generated by the CIA, which purports to

establish that "Ms. Wilson was a covert CIA employee for whom the CIA was taking

affirmative measures to conceal her intelligence relationship to the United States."3 We

have never been granted an opportunity to challenge this conclusory assertions or any of

the other unsubstantiated claims in this document, nor permitted to investigate how it was

created. If nothing else, the fact that the CIA's spokesperson confirmed Ms. Wilson's

    Gov't Guidelines Mem. at 5, and Ex. A thereto.

CIA employment to Mr. Novak calls into question whether the government was taking

affirmative measures to conceal her identity.

               The summary described above was provided to the defense along with a

companion summary that defined a "covert" CIA employee as a "CIA employee whose

employment is not publicly acknowledged by the CIA or the employee."4 It is important

to bear in mind that the IIPA defines "covert agent" differently. It states: "The term

`covert agent' means-- (A) a present or retired officer or employee of an intelligence

agency . . . (i) whose identity as such an officer, employee, or member is classified

information, and (ii) who is serving outside the United States or has within the last five

years served outside the United States." 50 U.S.C. § 426. The CIA summary of

Ms. Wilson's employment history claims that she "engaged in temporary duty (TDY)

travel overseas on official business," though it does not say whether such travel in fact

occurred within the last five years. Further, it is not clear that engaging in temporary

duty travel overseas would make a CIA employee who is based in Washington eligible

for protection under the IIPA. In fact, it seems more likely that the CIA employee would

have to have been stationed outside the United States to trigger the protection of the

statute. To our knowledge, the meaning of the phrase "served outside the United States"

in the IIPA has never been litigated. Thus, whether Ms. Wilson was covered by the IIPA

remains very much in doubt, especially given the sparse nature of the record.

    Remedial Measures Following the Disclosure of Valerie Wilson's Employment
    Relationship With The CIA, produced to the defense on June 9, 2006.

               2.      Neither Mr. Libby Nor Anyone Else Understood Ms. Wilson To
                       Be Covert or Classified

               The Court's focus during trial on what Mr. Libby actually knew about

Ms. Wilson's status was correct, in light of the discovery provided to the defense. And to

the extent that the Court needs to consider Ms. Wilson's status during this phase of the

proceedings, it remains correct. There is simply no evidence that Mr. Libby received

information indicating that Ms. Wilson's position at the CIA was covert or classified.

               Mr. Libby consistently testified that he did not understand Ms. Wilson to

be covert or classified. As detailed below, all of the relevant evidence ­ including the

grand jury and trial testimony of the government's own witnesses ­ corroborates

Mr. Libby's testimony that he was unaware of Ms. Wilson's status. In light of the record,

then, it is misleading for the government to suggest that Mr. Libby's grand jury testimony

on this point should not be believed.

               As Mr. Libby told the grand jury, the Vice President told him that

Ms. Wilson worked at the CIA in June, but did not indicate that Ms. Wilson was covert or

that her job status was classified. This is consistent with Mr. Libby's notes of that

conversation, which do not identify Ms. Wilson as covert or classified. See GX 104; GX

104T. At trial, the government produced three witnesses who said they, too, had told

Mr. Libby that Ms. Wilson worked at the CIA: Marc Grossman; Robert Grenier; and

Cathie Martin. None of them testified that he or she had told Mr. Libby that Ms. Wilson

was covert or classified.

               The government also called five witnesses who said that Mr. Libby had

mentioned or referred to Ms. Wilson in conversations during June and July 2003: Craig

Schmall; Ari Fleischer; David Addington; Judith Miller; and Matthew Cooper. None of

these witnesses (nor any other trial witnesses) testified that Mr. Libby said Ms. Wilson

was covert. None of them testified that they believed Mr. Libby had been

communicating classified information to them. In sum, none of the witnesses who

testified at trial said that prior to July 14, 2003, they believed that Ms. Wilson's affiliation

with the CIA was protected information.

                 Indeed, as far back as August 2004, the government effectively admitted

what this record makes plain: that Mr. Libby was unaware of Ms. Wilson's alleged

covert status. At that time, the Special Counsel submitted an affidavit to the District

Court in opposition to Ms. Miller's motion to quash grand jury subpoenas. That affidavit

indicates the government was not considering prosecuting Mr. Libby under the IIPA

because it had "no direct evidence that Libby knew or believed that Wilson's wife was

engaged in covert work." Aug. 27, 2004 Aff. of Patrick J. Fitzgerald at 28 n.15. We are

aware of no evidence to the contrary adduced since that time.5 Indeed, the government

admits in its Guidelines Memorandum that "the information to which defendant was

given access did not expressly identify Ms. Wilson as a covert agent." Gov't Guidelines

Mem. at 8 n.7.

                 The government does not explicitly concede a related point: that the

information provided to Mr. Libby did not identify Ms. Wilson as classified either. But

there can be no escaping this fact. We reiterate: no witness claims to have told

Mr. Libby that Ms. Wilson's affiliation with the CIA was classified. (In fact, putting

aside what these witnesses actually told Mr. Libby, none of them testified that they

    By August 27, 2004, the government had obtained grand jury testimony from all of
    the eight witnesses who testified at trial about discussing Ms. Wilson with Mr. Libby,
    except for Ms. Miller.

personally believed that Ms. Wilson's status was classified at the time). Logically, then,

there is no basis to conclude that Mr. Libby received information about Ms. Wilson that

he knew was classified. For this reason alone, Mr. Libby could not have knowingly

violated the IIPA or the Espionage Act.

II.    The Probation Office Applied the Guidelines Correctly

               It bears reiterating that under current law, the Guidelines are advisory.

Under the sentencing regime set forth in 18 U.S.C. § 3553(a), the relevant sentencing

range under the Guidelines is merely one of many factors that the Court must consider.

See United States v. Coumaris, 399 F.3d 343, 351 (D.C. Cir. 2005). (The departure

issues are addressed in our Sentencing Memo, which is being filed separately today).

               The Probation Office, the defense, and the government all concur that the

base offense level in this case is 14. The Probation Office and the defense agree that no

enhancements should be added to this offense level, and that there are grounds for a

departure downward from that level. In contrast, the government maintains that two

sentencing enhancements are applicable here, and disagrees with the bases for departure

identified by the Probation Office.

       A.      The Government's Proposed Guidelines Calculations Are Incorrect

               The government has asserted that with respect to the obstruction of justice

and perjury counts, the Court is obligated to apply the cross reference to the guideline

provision applicable to those convicted of being accessories after the fact, U.S.S.G. §

2X3.1. Employing this cross reference would lead, in the government's view, to an

offense level of 19. As detailed below, the government's arguments lack merit.

               1.      The Cross Reference Provision in the Obstruction of Justice
                       Guideline Is Not Applicable To Count 1

               U.S.S.G. § 2J1.2(c)(1), the obstruction of justice guideline, indicates that

the cross reference to § 2X3.1 is triggered when the defendant's obstruction is "in respect

to" a criminal offense. This requires, as a predicate, the commission of an underlying

criminal offense by the defendant or someone else. This interpretation, which is based on

the language of the obstruction guideline, is reinforced by the Commentary to the

guideline, 6 which states:

               Because the conduct covered by this guideline is frequently
               part of an effort to avoid punishment for an offense that the
               defendant has committed or to assist another person to
               escape punishment for an offense, a cross reference to
               § 2X3.1 (Accessory After the Fact) is provided. Use of this
               cross reference will provide an enhanced offense level
               when the obstruction is in respect to a particularly serious
               offense, whether such offense was committed by the
               defendant or another person. (Emphasis added.)

               The government argues that the fact that this commentary was amended

"to make clear that the cross reference should be applied in cases in which the defendant

committed obstruction to escape punishment for his own criminal conduct, as well as to

assist another person to escape punishment" supports its reading of § 2J1.2(c)(i). Gov't

Guidelines Mem. at 11. In fact, the opposite is true; it supports our reading of this

provision. The commentary initially suggested that the cross reference was applicable

only when the defendant obstructed justice with respect to an underlying offense

committed by another person. The Sentencing Commission then amended the

    This Commentary is entitled to substantial weight. "[C]ommentary in the Guidelines
    Manual that interprets or explains a guideline is authoritative unless it violates the
    Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading
    of, that guideline." Stinson v. United States, 508 U.S. 36, 38 (1993)

commentary to clarify that the cross reference should also be applied where the defendant

obstructed justice with respect to an underlying offense committed by the defendant

himself. From this amendment, the government draws the illogical conclusion that the

cross reference should also be applied where no one committed an underlying offense.

Nothing suggests that the Sentencing Commission intended such an illogical result. See

U.S.S.G., Amend. 401.

               Before it could apply the cross reference, the Court would have to make a

finding, supported by at least a preponderance of the evidence, that a specific underlying

offense was committed by someone. Here, no underlying offense was committed by

Mr. Libby or anyone else. The government's investigation did not result in any charges

under the IIPA, the Espionage Act, or any other federal statutes relating to national

defense information. Indeed, regardless of whether any charges were brought, the

government has not even asserted that it believes any underlying, uncharged violation

actually took place. The government has not come close to showing, even by a

preponderance of the evidence, the existence of an actual violation that would trigger the

cross reference. This is not surprising, because, as discussed above, the evidence shows

that neither Mr. Libby nor anyone else believed that Ms. Wilson was covert or classified.

Accordingly, the record is devoid of any evidence on which it is possible to conclude that

an underlying offense occurred.

               Presumably because it cannot credibly assert than an underlying crime was

in fact committed by Mr. Libby or anyone else in this case, the government argues,

without support, that the defendant's mere intent to obstruct justice is enough to trigger

the cross reference in the obstruction of justice guideline, even if no underlying crime

occurred. See Gov't Guidelines Mem. at 12 ("The cross reference in 2J1.2 is designed to

match the offense level to the conduct and result intended by the defendant . . . .")

(emphasis in original). The government's theory conflicts with the purpose of the cross

reference, creates unsurmountable practical problems when it is applied to the facts of

this case, and is at odds with the relevant case law.

                       a.      The Purpose of the Cross Reference

               The Commentary to the obstruction guideline indicates that the purpose of

the cross reference is to punish more severely a defendant who causes (or intends or

attempts to cause) the obstruction of "a particularly serious offense." That purpose

cannot fairly be assessed without a finding that an underlying offense was actually

committed by someone. Because it appears that no underlying crime in fact occurred,

and the Court's rulings prevented inquiry on this critical issue, it would be inappropriate

for the Court to rely on the cross reference.

               We do not dispute the government's assertion that in certain situations, a

court can apply the cross reference regardless of whether "the defendant was charged or

convicted of the criminal offense under investigation." Gov't Guidelines Mem. at 10.

But the government goes too far in suggesting that the cross reference can be triggered

without "any requirement of proof that the underlying offense was committed," and in

arguing that "what crime actually occurred" is irrelevant to the Court's analysis. Id. at

10, 12. Its proposed rule has never been applied by any court ­ and for good reason.

Even in a Guidelines world in which prosecutors have extraordinarily broad power to

manipulate sentences, this is one step beyond.

                       b.      The Government's Application of the Cross Reference Is

               The flaws in the government's reading of the cross reference in the

obstruction guideline become most apparent when it attempts to apply the cross reference

to the IIPA and the Espionage Act, the statutes at issue here. Because the government's

reliance on what the grand jury was investigating for the basis of the obstruction cross

reference is not grounded on proof of any actual violation, it is essentially standardless.

Its approach affords the government an extraordinary amount of discretion, usurps the

fact-finding role of the Court, and undermines the purpose of the cross reference, as

expressed in the commentary.

               Both the Espionage Act and the IIPA include several possible violations,

each of which requires the government to prove a different state of mind. The

corresponding Guidelines sections reflect these distinctions (as well as distinctions for

what type of information was disclosed). Thus, for example, the base offense levels

under U.S.S.G. § 2M3.3, which governs a violation of 18 U.S.C. § 793(d), are 11 points

higher than the base offense levels under section § 2M3.4, which governs a violation of

§ 793(f). This difference reflects the fact that § 793(d) proscribes willful disclosures of

classified information, while § 793(f) applies to grossly negligent disclosures. The

government asserts without explanation that the Court should apply the guideline for a

willful disclosure. Yet, the fact that one guideline results in a higher offense level than

another is not reason to apply it.

               The government provides no evidentiary basis for its assertion that Mr.

Libby should be sentenced as an accessory after the fact to a willful, instead of a grossly

negligent, disclosure of classified information. The government claims that "§ 793(f)

could have been applicable to disclosures that could be characterized as `grossly

negligent,'" without providing any facts about the nature and circumstances of the

alleged disclosures. Gov't Guidelines Mem. at 9 n. 8 (emphasis added). At another

point, the government urges the Court to apply U.S.S.G. § 2M3.3 rather than § 2M3.2

"given the circumstances of this case," without giving any explanation of what those

circumstances are, even though they have enormous ramifications for the calculation of

the appropriate sentence. Id. at 9. Phrases like "could have been" and vague references

to the "circumstances of this case" make clear that there is no factual basis on which the

Court could make findings on this issue.

               The government's explanation for how the Court should apply the

guideline pertaining to violations of the IIPA (U.S.S.G. § 2M3.9) faces similar problems.

The government admits, as it must, that "the information to which defendant was given

access did not expressly identify Ms. Wilson as a covert agent." Gov't Guidelines Mem.

at 8 n.7. This concession would seem to eliminate the possibility that Mr. Libby could

have violated the IIPA, because that statute includes very strict knowledge and intent

requirements that are clearly not met here. The relevant provision of the IIPA states:

               Whoever, as a result of having authorized access to
               classified information, learns the identify of a covert agent
               and intentionally discloses any information identifying such
               covert agent to any individual not authorized to receive
               classified information, knowing that the information
               disclosed so identifies such covert agent and that the
               United States is taking affirmative measures to conceal
               such covert agent's intelligence relationship to the United
               States, shall be fined under title 18 or imprisoned not more
               than five years, or both.

50 U.S.C. § 421(b) (emphasis added). Because Mr. Libby was not given information that

identified Ms. Wilson as a covert agent, he thus could not have known that the United

States was "taking affirmative measures" to conceal her identity. The IIPA is therefore

inapplicable to his conduct.

               Nevertheless, "in the government's view," Mr. Libby should be treated as

if he obstructed the "particularly serious offense" of disclosing a covert agent's identity.

The government provides no facts, however, to support any finding by the Court that a

violation of the IIPA should be deemed the applicable underlying offense here.

Moreover, the government's Guidelines calculation with respect to the IIPA turns on a

choice between two Guidelines provisions, each of which provide different base offense

levels depending on what kind of access to classified information the defendant had. See

U.S.S.G. § 2M3.9. The government offers in support of its choice between those

provisions only its "view" that the focus of the investigation was closer to one of the

provisions than the other. The government's "view" of the appropriate cross reference

(even if it works in the defendant's favor) is simply not an adequate basis for a court to

apply the cross reference.

               The fact that the government's approach to the cross reference affords it so

much leeway in determining which guideline to apply is evidence that its reading of this

provision is wrong. The Court's analysis of the Guidelines should be transparent. The

only way to achieve this result is for the government to prove a specific underlying

offense that was actually charged or committed by the defendant or someone else, so the

Court can make the necessary findings. Due process requires that the Court, not the

government, determine which underlying offense actually occurred before the cross

reference in the obstruction of justice guideline is triggered.

                       c.         The Cases the Government Cites Are Not Applicable

               In all but one of the cases the government cites in support of its contention

that the Court should apply the cross reference, either the defendant or another person

was charged with an underlying crime.7 The one case the government cites in which

underlying charges apparently were not brought, United States v. Quam, 367 F.3d 1006

(8th Cir. 2004), presents an inapposite fact pattern. In that case, the court applied the

cross reference in conjunction with the obstruction of justice guideline to punish a

defendant who had testified falsely in a grand jury investigation regarding the drug-

trafficking activities of her live-in boyfriend. The court followed the cross reference to a

drug-trafficking statute and made drug-quantity findings, "notwithstanding the fact no

one ha[d] been indicted or convicted of an underlying drug offense." Id. at 1009. In that

case, a confidential informant had observed the defendant participating in drug

transactions at her residence, and during a "subsequent search, law enforcement

discovered 111.5 grams of marijuana [and] 2.3 grams of methamphetamine." Id. at 1007.

Thus, the prosecution presented evidence that an underlying crime had, in fact, occurred.

That evidence provided a factual basis for making the findings necessary to apply the

cross reference. There can be little doubt that an underlying drug crime was in fact

committed by someone in the Quam case, even in the absence of any drug charges. No

such factual basis exists here.
    See United States v. LeMoure, 474 F.3d 37 (1st Cir. 2007) (underlying civil rights
    charge); United States v. Gay, 44 F.3d 93 (2d Cir. 1994) (underlying conspiracy to
    commit armed robbery charge); United States v. Kimble, 305 F.3d 480 (6th Cir. 2002)
    (underlying murder charge); United States v. Russell, 234 F.3d 404 (8th Cir. 2000)
    (underlying drug charges); United States v. Arias, 253 F.3d 453 (9th Cir. 2001)
    (underlying drug and weapons charges); United States v. Brenson, 104 F.3d 1267
    (11th Cir. 1997) (underlying drug charges); United States v. McQueen, 86 F.3d 180
    (11th Cir. 1996) (underlying money laundering charges).

               To be sure, the case law suggests that an acquittal is not necessarily a bar

to the application of the cross reference, as the government points out. See, e.g., Gay, 44

F.3d at 95; Arias, 253 F.3d at 459; McQueen, 86 F.3d at 182-83.8 Acquitted conduct is

not at issue here, however. The Gay, Arias, and McQueen cases should not be interpreted

to mean that the government does not have to articulate an actual underlying offense by

the defendant or someone else. Moreover, Gay suggests that before the sentencing court

can apply the cross reference to acquitted conduct, it must make a finding about the

underlying crime supported by evidence. 44 F.3d at 95 ("the district court found that the

[underlying crime] had unquestionably been committed") (emphasis added). Here, the

government cannot meet its burden (even under a preponderance of the evidence

standard) to support a finding that any underlying crime was in fact committed, which

should end the inquiry.

               The government has not cited a single case where a court applied the

accessory after the fact cross reference even though no underlying charges were brought

against the defendant or someone else, or where it was not unmistakably evident that a

crime had actually been committed. Nor has our research uncovered such a case. The

government's reading of this Guidelines provision is unsupported.9

    To the extent that the government suggests that these three decisions stand for the
    idea that the cross reference should be followed without regard to "whether an
    offense could be shown to have been committed at all," Arias, 253 F.3d at 459, such
    statements are dicta. In all three cases, the government did in fact charge an
    underlying offense.
    The unreasonable nature of the government's approach is illustrated by its insistence
    that even in the hypothetical case where a defendant is convicted of obstructing an
    investigation into a potential murder that turns out to be a suicide, the cross reference
    to the guideline for homicide must nevertheless be applied. Such an absurd result

               Finally, even if the government's argument that the cross reference must

be applied mechanically whenever a defendant intends to obstruct an investigation had

any merit ­ which it does not ­ the circumstances of this case are so unique as to justify a

departure from the offense level that would result. This case does not fit within the

heartland of cases in which the cross reference is properly applied because it presents the

unprecedented situation where the government has requested the application of the cross

reference without charging or even identifying an actual underlying violation. We also

note that courts should tread lightly where the government sets forth sentencing

enhancement factors that are so severe that they become a tail wagging the dog of a

substantive offense. See United States v. Townley, 929 F.2d 365, 369 (8th Cir. 1991).

               2.      The Cross Reference Provision in the Perjury Guideline Is Not
                       Applicable To Counts 4 or 5

               U.S.S.G. § 2J1.3(c)(1) states: "If the offense involved perjury . . . in

respect to a criminal offense, apply § 2X3.1 in respect to that criminal offense . . . ." For

the reasons set forth above concerning the obstruction guideline, the perjury guideline

also requires an underlying criminal offense to have actually been committed by the

defendant or someone else. It is appropriate to use similar analysis for the two guidelines

because, as the Commentary to U.S.S.G. § 2J1.3 explains, "perjury should be treated

similarly to obstruction of justice. Therefore, . . . an alternative reference to the guideline

for accessory after the fact is made."

               The case law is clear that in considering whether perjury is "in respect to a

criminal offense," a sentencing court should determine whether "the defendant knew or

   demonstrates the need for a sentencing court to determine that an actual underlying
   offense was committed before applying the cross reference.

had reason to know, at the time of his perjury, that his testimony concerned such a

criminal offense." United States v. Leon-Reyes, 177 F.3d 816, 824 (9th Cir. 1999)

(quoting United States v. Rude, 88 F.3d 1538, 1543 (9th Cir. 1996)). In Leon-Reyes, the

Ninth Circuit affirmed the district court's determination that the defendant's perjury in a

trial involving money laundering and drug trafficking charges brought against two other

individuals "was only in respect to" the former charges. Id. The court found that because

Leon-Reyes's "entire testimony" concerned certain "business and financial affairs," and

would have had a "very insignificant effect . . . on the drug trafficking charges, . . . the

district court properly exercised its discretion in determining that Leon-Reyes's perjury

was only in respect to the money laundering charges." Id. This case makes clear that the

Court should make findings concerning the nexus between the defendant's perjury and

the underlying criminal offense.

                As we have repeatedly emphasized, there is no evidence in the record here

to support a finding that any underlying offense was actually committed by Mr. Libby or

anyone else. In addition, as we have discussed above, because the government focuses

on what the grand jury was investigating rather than proof of an actual violation, it

engages in standardless Guidelines calculations. The government's approach should be

rejected because it provides no facts for the Court to make findings regarding which

provisions of the Guidelines governing violations of the IIPA and the Espionage Act are

applicable. The mens rea requirements, and the corresponding offense levels, vary

significantly among these provisions, making it improper for the government to exercise

discretion in this area.

               The government contends that the testimony by Mr. Libby the jury found

to be false "bore directly on the elements of the IIPA and the Espionage Act." Gov't

Guidelines Mem. at 14. This is an unfair characterization of Mr. Libby's testimony.

Even a quick review of the testimony at issue in Counts 4 and 5 indicates that it has

nothing to do with whether Ms. Wilson's status was covert or classified, which are the

focus of the IIPA and the Espionage Act. Instead, Count 4 relates to Mr. Libby's

description of his conversation with Mr. Russert (essentially, Mr. Libby testified that

Mr. Russert mentioned Ms. Wilson's CIA employment to him and that he was struck by

what Mr. Russert said). And Count 5 relates to what Mr. Libby told reporters, and his

state of mind at the time (e.g., "I told a couple reporters what other reporters had told


               The government also argues that Mr. Libby tailored his testimony to

suggest that he did not know that Ms. Wilson was a covert agent or that information

about her employment was classified. See id. This conclusion is undermined by the

record evidence, which shows that Mr. Libby did not know prior to July 14, 2003 that

Ms. Wilson was covert or classified.

               The government attempts to prop up its faulty theory by pointing to events

that occurred after Mr. Libby discussed Ms. Wilson with reporters. For example, the

government notes that news articles in Mr. Libby's files alleged that Ms. Wilson was

covert, and that David Addington testified that he gave Mr. Libby a copy of the IIPA.

Such evidence is entirely beside the point. Either Mr. Libby was told prior to his

discussions with reporters that Ms. Wilson was covert or classified, or he was not. The

evidence clearly establishes that he was not. And contrary to the government's claims,

nothing in the record suggests that Mr. Libby "well knew" that any violations of the IIPA

or the Espionage Act had in fact been committed; indeed, Mr. Libby believed the

opposite. Accordingly, his testimony was not "in respect to" any actual violations of the

IIPA or the Espionage Act, making the cross reference inapplicable.

               Finally, with respect to the perjury counts, the government relies heavily

on United States v. Suleiman, 208 F.3d 32 (2d Cir. 2000), to support the proposition that

a defendant's intent to commit perjury is enough to trigger the cross reference provided

by § 2J1.3(c). Suleiman, however, like the cases cited by the government with respect to

the obstruction of justice cross reference, involves a situation where an underlying crime

(conspiracy) had actually been charged, and is thus inapposite.

               3.      The Cross Reference Provision Is Not Applicable To Count 2

               U.S.S.G. § 2B1.1 governs the offense of making false statements (Count

2). According to the government's analysis, if the conduct charged in Count 2

established a violation of 18 U.S.C. § 1505 (obstruction of proceedings before federal

agencies), then § 2B1.1(c)(3) would require the court to apply the guideline for that

violation. The government concludes that "the propriety of applying the cross reference

to Count 2 is debatable," because that count did "not specifically allege that defendant

made the charged false statements `corruptly,' with intent to obstruct the FBI's

investigation." Gov't Guidelines Mem. at 17-18. We agree that the cross reference

should not be applied to Count 2 because it is not clear that Count 2 constitutes a

violation of 18 U.S.C. § 1505. Nevertheless, even if the Court looked to the guideline

applicable to violations of 18 U.S.C. § 1505, there would be no basis for the court to

apply a cross reference to the guidelines for violations of the IIPA or the Espionage Act,

for the same reasons already set forth above.

               4.      The "Substantial Interference" Enhancement Is Not Warranted

               The government has also argued that a three-level increase in the offense

levels for perjury and obstruction of justice is warranted here because Mr. Libby's crimes

purportedly "resulted in substantial interference with the administration of justice," by

causing "the unnecessary expenditure of substantial governmental or court resources."

See Gov't Guidelines Mem. at 18. The government's arguments are misplaced because

Mr. Libby neither "caused" the government's expenditures nor were those expenditures

"unnecessary" or "substantial" as required by U.S.S.G. §§ 2J1.2(b)(2) or 2J1.3(b)(2).

                       a.     Mr. Libby's Conduct Did Not Cause the Government's

               The government cannot show ­ as it must to justify a three-level

enhancement under U.S.S.G. §§ 2J1.2(b)(2) or 2J1.3(b)(2) ­ that Mr. Libby's conduct

caused many of the expenditures described in its submission. Specifically, the

government has pointed to expenditures associated with: (1) obtaining testimony from

Mr. Russert and other reporters, including negotiations and litigation concerning grand

jury subpoenas; (2) conducting interviews and obtaining testimony from government

officials, including the Vice President, Cathie Martin, Robert Grenier, and others; and (3)

obtaining and reviewing documents. See Gov't Guidelines Mem. at 20. The

government's arguments ignore several key facts that make clear that it was not

Mr. Libby who caused these activities and expenditures. Therefore, he should not be

penalized for them. See, e.g., United States v. Jackson, 67 F.3d 1359, 1370 (8th Cir.

1995) (finding error in the district court's application of U.S.S.G. § 2J1.2(b)(2) where the

defendant's actions and the ensuing investigation were not sufficiently connected).

               As the PSR correctly states, Mr. Libby was not responsible for the First

Amendment litigation between the government and reporters. Early in the government's

investigation, Mr. Libby signed a waiver giving reporters permission to speak with the

government about their conversations with him. The waiver stated, in part,

               I request any member of the media with whom I may have
               communicated regarding the subject matters under
               investigation to fully disclose all such communications to
               federal law enforcement authorities. In particular, I request
               that no member of the media assert any privilege or refuse
               to answer any questions from federal law enforcement
               authorities on my behalf or for my benefit in connection
               with the subject matters under investigation.

GX 11, Statement & Waiver of I. Lewis Libby, signed Jan. 5, 2004. Throughout the

government's investigation, whenever requested, Mr. Libby and his counsel provided

reassurances to reporters that his waiver was voluntary. Those reporters who fought the

subpoenas did so because they believed the so-called "journalist's privilege" protected

their conversations with sources and feared the subpoenas were "fishing expeditions"

designed to obtain evidence about sources other than Mr. Libby. For example, as Tim

Russert stated at trial, he "fought that subpoena because we were very concerned at NBC

News about a reporter being called into a proceeding which could be open-ended, a so-

called fishing expedition. That could have a chilling effect on my ability to talk to

people." Feb. 7, 2007 P.M. Tr. at 72:24 to 73:3; see also Matthew Cooper, What Scooter

Libby and I Talked About, TIME, Oct. 30, 2005 at 1 (explaining that he fought the

subpoena "to protect the principle of source confidentiality").

               The government contends that Mr. Libby's waiver does not "preclude the

application of the enhancement" with respect to the expenditures related to obtaining

testimony from journalists for two main reasons. First, according to the government,

Mr. Libby was "well aware" when he was interviewed by the FBI that reporters tried to

protect their sources, and "thus anticipated the possibility of litigation over any

subpoenas the government might issue." Gov't Guidelines Mem. at 21. This argument

fails because it was far from clear in January 2004 that certain reporters would refuse to

testify notwithstanding the existence of the waiver. For example, several reporters not

mentioned in the government's submission accepted Mr. Libby's waiver when coupled

with his personal assurances, and testified without mounting any legal challenges to the

subpoenas. See, e.g., Feb. 12, 2007 A.M. Tr. at 43:2-7 (testimony of reporter Walter

Pincus); Feb. 12, 2007 P.M. Tr. at 57:23-58:23 (testimony of reporter Glenn Kessler).

Moreover, Mr. Libby signed the waiver before any litigation between the government and

reporters occurred. Even if that litigation could have been anticipated notwithstanding

the waiver, it hardly stands to reason that Mr. Libby caused it.

               Second, the government resurrects the old canards that Mr. Libby was

responsible for Ms. Miller's incarceration and that he sought to influence her testimony in

a letter sent to her in jail. Ms. Miller's testimony is to the contrary. At trial, she admitted

that she had not contacted Mr. Libby regarding the validity of his waiver until after she

was already incarcerated:

               Q: Why did you . . . not contact Mr. Libby earlier
               regarding his personal waiver?
               A: Because I did not have the agreement from
               Mr. Fitzgerald to limit any questioning of me about sources
               to either one source and the subject at hand. I was afraid of
               a fishing expedition. . . . I was very nervous about that, that
               this was the beginning of a long set of questions about who
               my sources were . . . .

Jan. 31, 2007 A.M. Tr. at 99:10-20. Further, in her grand jury testimony, Ms. Miller

stated that she did not understand Mr. Libby's letter to her in jail as an attempt to

influence her testimony. Miller Oct. 12, 2005 G.J. Tr. at 42.

                Moreover, given the exacting manner in which the government proceeded

with its investigation of the disclosure of Valerie Wilson's CIA employment to reporters,

it seems likely the government would have issued subpoenas to reporters ­ and litigated

their motions to quash ­ even if Mr. Libby's grand jury testimony had been consistent

with that of Mr. Russert, Ms. Miller and Mr. Cooper. This conclusion is supported by the

trial testimony of the FBI Case Agent in charge of the investigation, who testified at trial

about its broad scope:

                We were trying to determine how it happened that [Valerie
                Wilson's] name and her employment at the CIA got to the
                media. . . . We were trying to find out the names of the
                people who knew about her employment at the CIA and her
                identity, as well as where they learned the information,
                [and] who they told. . . .

See Feb. 1, 2007 P.M. Tr. at 37:24-25; 39:5-13 (testimony of Special Agent Deborah S.


                It therefore seems likely the government would have interviewed the

government officials it claims were interviewed only because of Mr. Libby (such as the

Vice President), and continued to gather documents, even if it had not doubted the

veracity of Mr. Libby's testimony. The mere fact that the interviews occurred after

Mr. Libby's grand jury testimony is insufficient to justify a three-level enhancement if

that testimony did not cause the FBI to conduct those interviews. For these reasons, the

government's conclusory allegations regarding its purported additional expenditures are


                       b.      The Government's Expenditures Were Not "Unnecessary"
                               or "Substantial"

               The government's argument that the Court should apply a 3-level

enhancement under U.S.S.G. §§ 2J1.2(b)(2) or 2J1.3(b)(2) fails for another reason as

well. The government cannot show that any expenditures resulting from Mr. Libby's

grand jury testimony were "unnecessary" or "substantial," as it must under U.S.S.G.

§§ 2J1.2, cmt. n.1 and 2J1.3, cmt. n.1, because any such expenditures were made

primarily if not exclusively to build a case against Mr. Libby for lying to the grand jury.

               It is well settled that the government may not rely on its expenditures in

prosecuting the defendant for perjury to demonstrate "substantial interference with the

administration of justice." Courts have held that imposing a three-level enhancement

based on such circumstances would in effect raise the base offense level for perjury,

because every perjury conviction would result in a three-level enhancement. See United

States v. Norris, 217 F.3d 262, 273 (5th Cir. 2000) (following the Second, Tenth and

Ninth Circuits in holding that "the expenses associated with the underlying perjury

offense should not form the sole basis for an enhanced sentence under section

2J1.3(b)(2). . . . Otherwise, every perjury conviction would carry the enhancement");

United States v. Duran, 41 F.3d 540, 546 (9th Cir. 1994) (rejecting the district court's

imposition of a three level adjustment "[b]ecause the government could not identify any

expenses in addition to the costs of bringing [the defendants] to trial"). This reasoning is

equally applicable to the obstruction of justice guideline, U.S.S.G. § 2J1.2(b)(2), which

contains the identical requirement that the offense result in "substantial interference with

the administration of justice." Indeed, this logic is particularly appropriate here, where

the obstruction charge was based on the same conduct that resulted in Mr. Libby's

conviction for perjury. See Feb. 21, 2007 A.M. Tr. at 23:18-21 (jury instructions).

               If the government expended any resources as a result of Mr. Libby's

statements to the grand jury, it was to gather evidence used to prosecute Mr. Libby for

lying about his conversations with reporters. The government has conceded that this was

an objective of its investigation. In February 2004, at the Special Counsel's request, the

Justice Department clarified that the Special Counsel had authority to investigate and

prosecute crimes of perjury and obstruction of justice. Feb. 6, 2004 Ltr. from James B.

Comey, Acting Attorney General, to Patrick J. Fitzgerald.

               The government maintains that the expenditures it has identified "were

necessary in order to determine both whether defendant had violated the IIPA or

Espionage Act, as well as whether he had perjured himself or obstructed justice." Gov't

Guidelines Mem. at 19. This argument is unpersuasive. The government realized early

in its investigation that Mr. Libby had not received any information indicating that

Ms. Wilson was a covert agent within the ambit of the IIPA, as the Special Counsel's

August 27, 2004 affidavit reflects. And given that the government never adduced any

evidence that Mr. Libby was told that Ms. Wilson's CIA employment was classified

information, its claim that it was focused on whether Mr. Libby could have violated the

Espionage Act rings hollow.

               The cases cited by the government at pages 20 to 21 of its Guidelines

Memorandum do not support a sentencing enhancement under § 2J1.2(b)(2). In all of

these cases, courts applied the enhancement because expenditures had been incurred in

the prosecution of either different defendants or different underlying charges. See United

States v. Tackett, 193 F.3d 880, 885 (6th Cir. 1999) (expenditures related to "different

charges [and] entirely different defendants"); United States v. Sinclair, 109 F.3d 1527,

1540 (10th Cir. 1997) (expenditures related to the trial of a different defendant); United

States v. Harrington, 82 F.3d 83, 87 (5th Cir. 1996) (expenditures related to "successful

prosecution of [the underlying offense]"). By contrast, the expenditures incurred in this

case were related to the perjury charges against Mr. Libby. No charges were brought

against other defendants, and Mr. Libby was not prosecuted for an underlying offense.

               Leaving aside expenditures by the government that had nothing to do with

Mr. Libby's conduct, and others that were made in order to prosecute Mr. Libby for

perjury and obstruction of justice, the government is left with little, if any, evidence that

Mr. Libby's testimony before the grand jury caused it unnecessarily to expend substantial

government resources. Accordingly, the government's request for a three-level

enhancement under U.S.S.G. §§ 2J1.2(b)(2) and 2J1.3(b)(2) should be rejected.


               For the reasons above, the two sentencing enhancements identified by the

government should not be applied when the Court calculates the applicable Guidelines

offense level as part of its sentencing analysis under 18 U.S.C. § 3553(a).

Dated: May 31, 2007                           Respectfully submitted,

      /s/                                            /s/
Theodore V. Wells, Jr.                         William H. Jeffress, Jr.
(DC Bar No. 468934)                            (DC Bar No. 041152)
James L. Brochin                               Alex J. Bourelly
(DC Bar No. 455456)                            (DC Bar No. 441422)
Paul, Weiss, Rifkind, Wharton                  Baker Botts LLP
 & Garrison LLP                                1299 Pennsylvania Avenue, NW
1285 Avenue of the Americas                    Washington, DC 20004
New York, NY 10019-6064                        Tel: (202) 639-7751
Tel: (212) 373-3089                            Fax: (202) 585-1087
Fax: (212) 373-2217

John D. Cline
(D.C. Bar No. 403824)
Jones Day
555 California Street, 26th Floor
San Francisco, CA 94104
Tel: (415) 626-3939
Fax: (415) 875-5700


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