I could not get them to save to my computer - so I copied it and pasted it straight into here, I hope that this works, still scratching head as to why it will not let me save the PDF to the computer. This thread may be added just in this form to the Plame Filings in the DU Research Forum - looking forward to everyone's thoughts as usualTHE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA )
) CR. NO. 05-394 (RBW)
v. ))
I. LEWIS LIBBY, )
also known as Scooter Libby )
GOVERNMENT’S RESPONSE TO DEFENDANT’S
MEMORANDUM CONCERNING ADMISSIBILITY OF DOCUMENTS
ON DEFENDANT’S CONSOLIDATED § 5 NOTICE
The UNITED STATES OF AMERICA, by its attorney, PATRICK J. FITZGERALD, Special
Counsel, respectfully submits the following Response to Defendant’s Memorandum Concerning
Admissibility of Documents on Defendant’s Consolidated CIPA § 5 Notice.
BACKGROUND
In advance of the CIPA § 6(a) hearing scheduled for September 27, 2006, this Court inquired
whether, and to what extent, defendant expected to disclose classified information through the
introduction of documents, rather than trial testimony, and if defendant seeks to introduce
documents, how hearsay objections would be overcome. Defendant filed a written memorandum
in response to the Court’s inquiries on September 22, 2006.
In his memorandum, defendant stated that most of the classified documents he would seek
to introduce would be offered as evidence of the defendant’s state of mind, rather than for the truth
of the matters asserted therein. Def.’s Mem. at 5-6, 7, 8. Defendant asserted that any documents (or
portions of documents) that he offered for their truth would be admissible as business records,
agency records, present sense impressions, and past recollection recorded, under Rules 803(6),
803(8)(A), 803(1), and 803(5) of the Federal Rules of Evidence.
Case 1:05-cr-00394-RBW Document 147 Filed 09/25/2006
Page 1 of 122
Of course, if the designated documents are offered solely for a non-hearsay purpose, Fed. R.
Evid. 801©, then the government will have no hearsay objection; however, it may still object to the
admission of the documents on relevancy, Rule 403, executive privilege, or any other applicable
grounds. With respect to documents offered for the truth of the matters asserted therein, the
government agrees in principle with some of the legal principles set forth in defendant’s
memorandum, but disagrees with others. As demonstrated below, the contents of the Presidential
Daily Briefs (PDBs) and Terrorist Threat Matrices (TTMs) do not fall within any of the hearsay
exceptions proposed by defendant, and thus would not be admissible for their truth, even if any of
them were deemed relevant and not unfairly prejudicial. In contrast, information contained in
defendant’s notes likely will qualify as present sense impressions or past recollection recorded
(assuming the proper foundation is established) and thus hearsay objections to their admission will
usually be overcome, even though the notes do not, as defendant contends, qualify as business
records or a records of a public agency. Finally, documents related to the Wilson controversy may,
on a document-by-document basis, be admitted if they satisfy the requirements of one or more
hearsay exceptions or are admissible for a limited purpose.
Because all of the designated documents – whether offered for the limited purpose of
establishing defendant’s state of mind, or for the truth of statements contained herein – must meet
the requirements of Fed. R. Evid. 401 and 403, the first and most important issues to be determined
by this Court with respect to all of the designated documents are whether the documents are relevant
and whether their admission is likely to confuse, mislead or prejudice the jury, or to waste time.
Case 1:05-cr-00394-RBW Document 147 Filed 09/25/2006
Page 2 of 123
ARGUMENT
I. The PDBs/TTMs Are Neither Business Records Nor Public Reports.
Defendant disclaims a general intent to offer the PDBs and TTMs to prove the truth of the
matters asserted therein, Def.’s Mem. at 6, but argues in the alternative that, “if we were to offer the
. . . materials for their truth,” the PDBs and TTMs are admissible as business records under 803(6)
and public records under 803(8), Def.’s Mem. at 7. Setting aside seriously questions of relevance,
unfair prejudice, and other potential objections, and presidential privilege concerns, the PDBs and
TTMs qualify for neither the business record nor the public agency record exception to the hearsay
rule. Fed. R. Evid. 803(6) provides a hearsay exception for the following:
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions,
opinions, or diagnoses, made at or near the time by, or from information transmitted by, a
person with knowledge, if kept in the course of a regularly conducted business activity, and
if it was the regular practice of that business activity to make the memorandum, report,
record or data compilation, all as shown by the testimony of the custodian or other qualified
witness . . . unless the source of information or the method or circumstances of preparation
indicate lack of trustworthiness. The term “business” as used in this paragraph includes
business, institution, association, profession, occupation, and calling of every kind, whether
or not conducted for profit.
Fed. R. Evid. 803(6) (emphasis added). Under this rule, a fundamental requirement is that the maker
have knowledge of the information contained in the record, and that the record is made in the regular
course of the business’s activities. Thus, defendant must account for all sources of information
contained in the purported business record, including information that does not come from the
business. United States v. Patrick, 959 F.2d 991, 1000-02 (D.C. Cir. 1996). In Patrick, the court
looked to the requirement of Rule 803(6) that the information come from “a person with knowledge”
and found error in the admission of a receipt from a business (offered to prove that the defendant
lived at a particular address) because the government failed to establish that the business took some
Case 1:05-cr-00394-RBW Document 147 Filed 09/25/2006
Page 3 of 124
steps to verify the address information provided to it by a customer (presumably the defendant). See
also United States v. Baker, 693 F.2d 183, 188 (D.C. Cir. 1982); United States v. Warren, 42 F3d
647, 656-57 (D.C. Cir 1995 (“each participant in the chain producing the record – from the initial
observer-reporter to the final entrant – must be acting in the course of the regularly conducted
business”) (citation omitted); United States v. David, 96 F.3d 1477, 1481-82 (D.C. Cir. 1996)
(government satisfied verification requirement by showing that the business employee compared
signature on the paperwork with the customer’s drivers license). In the case of the PDBs and TTMs,
there is no doubt that they are compilations of information received from multiple sources, some of
whom are outside the United States government, and may even be trying to deceive the government.
Thus, defendant cannot account for the knowledge or practices of the sources of the underlying
information contained in the PDBs and TTMs, and these documents do not satisfy the requirements
of 803(6).
Nor do the PDBs or TTMs constitute public records under Rule 803(8)(A), as defendant
contends. Rule 803(8)(A) provides:
Records, reports, statements, or data compilations, in any form, of public offices or agencies,
setting forth (A) the activities of the office or agency . . . .
Fed. R. Evid. 803(8)(A). The PDBs and TTMs do not set forth the “activities” of the agency that
compiles them, but rather reflect multiple sources of information, including, ultimately, sources
outside the government. The “activities” contemplated by Rule 803(8)(A) include such matters as
“Treasury records of miscellaneous receipts and disbursements,” Fed. R. Evid. 803(8), 1972
Advisory Committee Notes, not the reporting of daily intelligence information from multiple
sources. In other words, the PDBs and TTMs do not set forth the agency’s own activities, but rather
Case 1:05-cr-00394-RBW Document 147 Filed 09/25/2006
Page 4 of 125
set forth the past and predicted activities of others outside, and at times hostile to, the government.
For this reason also, Rule 803(8)(A) does not apply to those intelligence briefing materials, and they
may not be admitted for the truth of the matter asserted therein.
II. Hearsay Objections to the Admission of Information Contained in Defendant’s Notes
May Be Overcome Under Certain Theories Proposed by Defendant, But Not Others.
Defendant argues that his notes may be offered for the truth of the matters asserted therein
as present sense impressions, past recollection recorded, business records and reports of a public
agency. As demonstrated below, while the government agrees that hearsay objections will not likely
serve as a substantial impediment to information contained in defendant’s notes, contrary to
defendant’s contention, defendant’s notes are neither business records nor records of public agency
and are not entitled to admission for their truth based on those exceptions to the hearsay rule.
The government agrees that, as a general rule, entries in defendant’s notes may often qualify
as present sense impressions and thus will not be excludable as hearsay. See Fed. R. Evid. 803(1),
which provides: “A statement describing or explaining an event or condition made while the
declarant was perceiving the event or condition, or immediately thereafter.” In order to fall within
this exception to the hearsay rule, three requirements must be met: (1) “
he declarant must have
personally perceived the event described”; (2) “he declaration must be a simple explanation or
description of the event”; and (3) “he declaration and the event described must be
contemporaneous.” Weinstein’s Federal Evidence § 803.03<1>; see also United States v. Morrow,
Case 1:05-cr-00394-RBW Document 147 Filed 09/25/2006 Page 5 of 12
6
2005 WL 3163803, at *2 (D.D.C. June 9, 2005). It appears that much of the information contained 1
in defendant’s notes may meet these requirements.
As defendant acknowledges, in the case of notes that document “statements made by others”
in defendant’s presence, a “multiple hearsay” issue arises. In such cases, the notes may be admitted
to prove that a certain statement was made by a certain person (see Schuster v. Symmetricon, 2000
WL 33115909, at *2 (N.D. Cal. Aug. 1, 2000) (handwritten minutes of conversations were hearsay
because offered to prove that speakers “actually made the statements contained therein”)). However,
the notes may not be admitted to prove the truth of the statement itself in the absence of an
independent basis for admission. See Fed. R. Evid . 805 (hearsay within hearsay is admissible if it
meets an exception to the hearsay rule). Defendant asserts that he intends to offer his notes only as
proof that certain statements were made by certain people in his presence, but not for the truth of the
statements themselves. Def.’s Mem. at 5-6 (“statements of others reflected in Mr. Libby’s notes will
not be offered for the truth of the matters asserted.”). Based on this limitation, any “secondary”
hearsay problem is eliminated.
As defendant suggests, certain designated documents, including notes of the defendant, may
be admissible for their truth as past recollection recorded under Rule 803(5), which provides:
1Present sense impressions are limited to factual description of what was observed through
the senses, and may not include subjective “interpretations and analyses of conversations.” In re:
Cirrus Logic Securities Litigation, 946 F. Supp. at 1469; Schuster, 2000 WL 33115909, at *2; see
also Brown v. Keane, 355 F.3d 82, 89 (2d Cir. 2004) (exception applies “only to reports of what the
declarant has actually observed through the senses, not to what the declarant merely conjectures” or
to “subject input” and interpretations); Schuster, 2000 WL 33115909, at *2 (exception does not
apply where notes reflect the declarant’s reactions to the conversations). See also Weinstein’s
Federal Evidence (2d ed. 2006) § 803.03<3> (“ statement evoked by an event that does not
describe or explain the event is not admissible as a present sense impression.”)
Case 1:05-cr-00394-RBW Document 147 Filed 09/25/2006 Page 6 of 12
7
A memorandum or record concerning a matter about which a witness once had knowledge
but now has insufficient recollection to enable the witness to testify fully and accurately,
shown to have been made or adopted by the witness when the matter was fresh in the
witness’ memory and to reflect that knowledge correctly. If admitted, the memorandum or
record may be read into evidence but may not itself be received as an exhibit unless offered
by an adverse party.
Fed. R. Evid. 803(5). Thus, if defendant establishes the proper foundation during his trial testimony,
he may be able to admit information contained in his notes for its truth. As discussed above, each
level of hearsay must qualify for a hearsay exception, so if the matter asserted (but now forgotten)
would itself be hearsay, defendant must establish an independent exception for that statement (for
example, the present sense impression exception defendant proposes for notes reporting what others
said). Additionally, Rule 803(5) authorizes the reading of the document, but not its admission as an
exhibit, unless offered by the government. Fed. R. Evid. 803(5) (“If admitted, the memorandum or
record may be read into evidence but may not itself be received as an exhibit unless offered by an
adverse party.”).
Contrary to defendant’s contention, defendant’s notes do not qualify as business records
under Fed. R. Evid. 803(6). Even assuming that the notes are offered by defendant only as a
memorialization of what defendant said or did, or what he heard someone else say or do, and not for
the truth of the statements, defendant’s notes do not qualify for a business records exception because
there is no reason to believe that defendant’s notes or note-taking was the regular practice of the
Office of the Vice President. In United States v. Ferber, 966 F.2d 90, 98-99 (D. Mass. 1997), which
defendant cited in support of his present sense impression exception argument, the trial court refused
to admit an e-mail sent by a Merrill Lynch employee to his boss reporting statements made to the
employee by the defendant. Although the government showed that it was the regular practice of the
Case 1:05-cr-00394-RBW Document 147 Filed 09/25/2006 Page 7 of 12
8
employee to send such e-mails, the court rejected the e-mail evidence because “there was no
sufficient evidence that Merrill Lynch required such records to be maintained. This was fatal to the
government’s proffer on this ground because, in order for a document to be admitted a business
record, there must be some evidence of a business duty to make and regularly maintain records of
this type.” Id. (emphasis added). The court went on to note that if the employee had such a practice
in his personal life, the outcome might be different, but, “Here, however, was under no
business duty to make and maintain the E-mail messages, and the evidence failed to show that
Merrill Lynch itself followed a such a routine.” Id.
Similarly, in New York v. Microsoft, the district court excluded an e-mail which purported
to describe a conversation and was authored by an employee of a Microsoft competitor,
RealNetworks. The proponent of the evidence failed to establish that it was the “‘regular practice’
of RealNetworks employees to write and maintain such emails.” 2002 WL 649951, at *2. In the
instant case, the evidence will show, the government believes, that defendant took the notes for his
own work purposes and not because the OVP generally required note-taking or that the regular
practice of OVP employees was to take notes for the OVP to rely upon. Indeed, much of defendant’s
notes are in a short-hand format that he alone used and that only those familiar with his particular
short-hand could decipher. Given that defendant’s notes were created solely for his own use, they
do not carry the indicia of trustworthiness carried by records used by businesses as a whole. New
York v. Microsoft, 2002 WL 649951, at *2 (D.D.C. April 12, 2002)(“The justification for this
exception is that business records have a high degree of accuracy because the nation’s business
demands it, because the records are customarily checked for correctness, and because recordkeepers
Case 1:05-cr-00394-RBW Document 147 Filed 09/25/2006 Page 8 of 12
9
are trained in habits of precision.”)(quoting United States v. Baker, 693 F.2d 183, 188 (D.C. Cir.
1982)).
Defendant’s notes also do not constitute a public record under Rule 803(8)(A). Defendant
does not offer facts that support a foundation that his personal notes constitute a record of “the
activities of the” OVP. He proffers no facts to establish that his personal notes – taken on his own
initiative, at his own discretion, in his own hand, in his own style, and for his own use in planning
and executing his duties – were records that set forth the activities of the OVP as an office or agency.
Defendant cites no case law that supports characterizing handwritten and personal notes of
an employee – even a high ranking employee – as a “public record” under Rule 803(8)(A). To the
contrary, courts have been reluctant to regard handwritten notes such as the ones authored by
defendant as public records. For example, in United States v. Patrick, 248 F.3d 11, 22 (1st Cir.
2001), the district court excluded from evidence certain handwritten notes found in police files that
recorded tips the police had received about who committed the charged murder. The defense theory
was that the police had not adequately investigated the murder, as evidenced by these notes, and that
the notes were not hearsay because they were not offered for their truth but rather for the inadequacy
of the police investigation of other possible suspects. The defense also argued that the police notes
were admissible as business records under 803(6) and 803(8). The court rejected these arguments,
noting first that where the notes contained information from informants who are not themselves part
of the business of police, such information is not admissible as an exception to the hearsay rule. Id.
As to the defendant’s public records argument, the court ruled, “Nor do police notes contain findings
of a public agency charged with making those findings, which would render the notes admissible
under Fed.R.Evid. 803(8).” Id.; see also United States v. Bishop, 264 F.3d 535, 548 (5th Cir. 2001)
Case 1:05-cr-00394-RBW Document 147 Filed 09/25/2006 Page 9 of 12
10
(IRS agents’ notes regarding meetings they had with the defendant were not public records:
“Personal notes made by an investigator such as an IRS agent are not ordinarily admissible because
they are hearsay. See Fed.R.Evid. 801©, 803(8)(B).”). Likewise, defendant’s notes are not public
records that set forth the OVP’s activities.
III. Admissibility of Wilson/Niger Case-Related Documents.
Lastly, defendant explains that, aside from documents pertaining solely to his memory or
preoccupation defense, there are two broad categories of documents that relate to the Wilsons and
the Niger controversy: (1) documents that defendant created or that defendant reviewed; and (2)
documents that were created or reviewed by other potential witnesses (but, presumably, not reviewed
by defendant). Def.’s Mem. at 7. Again, defendant states that he will generally not offer the
documents for the truth of the matters asserted therein. Def.’s Mem. at 7, 8. Of course, in those
instances, the documents are not hearsay and no hearsay exception is necessary, although the
government reserves its right to object to the documents (or portions thereof) on grounds other than
hearsay, for example, on the grounds that the matter is irrelevant, should be excluded under Rule
403, or implicates executive privilege. Furthermore, to the extent that defendant offers some of the
documents in an attempt to impeach other witnesses, see Def.’s Mem. at 8, the government may also
object on grounds that the documents are not a proper basis for impeachment (for example, if a
witness did not create, review, or adopt statements in a particular document), or are not admissible
as substantive evidence if used only for impeachment.
Case 1:05-cr-00394-RBW Document 147 Filed 09/25/2006 Page 10 of 12
11
CONCLUSION
The government respectfully requests that this Court apply the foregoing legal principles to
the evidentiary proffer to be made by the defendant at the upcoming § 5 hearing.
Respectfully submitted,
/s/
PATRICK J. FITZGERALD
Special Counsel
Office of the United States Attorney
Northern District of Illinois
219 South Dearborn Street
Chicago, Illinois 60604
(312) 353-5300
Dated: September 25, 2006
Case 1:05-cr-00394-RBW Document 147 Filed 09/25/2006 Page 11 of 12
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that on this 25th day of September, 2006, I caused true and
correct copies of the foregoing to be served on the following parties by electronic mail:
William Jeffress, Esq.
Baker Botts
The Warner
1299 Pennsylvania Avenue, N.W.
Washington, DC 20004-2400
Facsimile: 202-585-1087
Theodore V. Wells, Esq.
Paul Weiss
1285 Avenue of the Americas
New York, NY 10019-6064
Facsimile: 212-373-2217
Joseph A. Tate, Esq.
Dechert LLP
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793
Facsimile: 215-994-2222
John D. Cline, Esq.
Jones Day
555 California Street
San Francisco, CA 94104
Facsimile: 415-875-5700
Patrick J. Fitzgerald
Special Counsel
U.S. Department of Justice
1400 New York Ave., N.W.
Washington, D.C. 20530
202-514-1187
By: /s/
Debra Riggs Bonamici
Deputy Special Counsel
second set here
************************************************************************
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA )
) CR. NO 05-394 (RBW)
v. ))
I. LEWIS LIBBY, )
also known as “Scooter Libby” )
MOTION TO SEAL GOVERNMENT’S AMENDED CIPA SECTION 6(b)
NOTICE
The government hereby moves to seal the above-captioned filing because it refers
to classified information and documents.
Respectfully submitted,
/s/
Kathleen M. Kedian
Deputy Special Counsel
1400 New York Ave., N.W.
Washington, D.C. 20005
(202) 353-4473
Dated: September 26, 2006.
Case 1:05-cr-00394-RBW Document 148 Filed 09/26/2006 Page 1 of 4
2
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA )
) CR. NO 05-394 (RBW)
v. ))
I. LEWIS LIBBY, )
also known as “Scooter Libby” )
ORDER
Upon consideration of the government’s Motion to Seal Government’s Amended CIPA
Section 6(b) Notice, it is hereby
ORDERED that the this pleading be placed under seal in the Court files.
Dated:
HON. REGGIE B. WALTON
UNITED STATES DISTRICT JUDGE
Patrick J. Fitzgerald
Special Counsel
U.S. Department of Justice
10 & Constitution Ave., NW th
Washington, D.C. 20530
202-514-1187
Facsimile: 202-514-3003
William Jeffress, Esq.
Baker Botts
The Warner
1299 Pennsylvania Avenue, N.W.
Washington, DC 20004-2400
Facsimile: 202-585-1087
Case 1:05-cr-00394-RBW Document 148 Filed 09/26/2006 Page 2 of 4
3
Theodore V. Wells, Esq.
Paul Weiss
1285 Avenue of the Americas
New York, NY 10019-6064
Facsimile: 212-373-2217
Joseph A. Tate, Esq.
Dechert LLP
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793
Facsimile: 215-994-2222
John D. Cline, Esq.
Jones Day
555 California Street
San Francisco, CA 94104
Facsimile: 415-875-5700
Case 1:05-cr-00394-RBW Document 148 Filed 09/26/2006 Page 3 of 4
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