U.S. v. Libby, Criminal No. 05-394 (RBW).

• Decision Date: 02 June 2006
• Docket Number: Criminal No. 05-394 (RBW).
• Citation: 432 F.Supp.2d 81
• Parties: UNITED STATES of America, v. I. Lewis LIBBY, Defendant.
• Court: U.S. District Court — District of Columbia

432 F.Supp.2d 81

UNITED STATES of America, v. I. Lewis LIBBY, Defendant.

Criminal No. 05-394 (RBW).

United States District Court, District of Columbia.

June 2, 2006.

Patrick Fitzgerald, Office of the United States Attorney, Northern District of Illinois, Debra R. Bonamici, Office of the Special Counsel, Chicago, IL, Kathleen Kedian, Peter Robert Zeidenberg, U.S. Department of Justice, Washington, DC, for United States of America.

ORDER

WALTON, District Judge.

On May 5, 2006, this Court heard argument on the defendant's Third Motion to Compel Discovery Under Federal Rule of Criminal Procedure 16 and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This Court has previously set forth an extensive discussion of the applicable discovery standards it must employ in resolving motions to compel filed under Rule 16 and Brady. United States v. Libby, 429 F.Supp.2d 1, 3-8, 2006 WL 574260, at *2-4 (D.D.C.2006). There is no need to repeat these standards here. After carefully considering the pleadings submitted by the parties and the oral arguments they presented in connection with this current motion, the Court must, as it stated during the May 5, 2006 hearing, conclude that the defendant's motion to compel is largely without merit.

The motion now before the Court seeks an array of documents through ten separately numbered requests. Before addressing the merits of these requests, it is helpful to set forth what this case is and is not about, as this reality defines the scope of the discovery the defendant is entitled to receive.

On October 28, 2005, the defendant was charged in a five-count indictment with obstruction of justice in violation of 18 U.S.C. § 1503 (2000), two counts of false statements in violation of 18 U.S.C. § 1001(a)(2) (2000), and two counts of perjury in violation of 18 U.S.C. § 1623 (2000). Indictment at 1. All of these charges arise from a criminal investigation into the possible unauthorized disclosure of classified information about Valerie Plame Wilson's affiliation with the Central Intelligence Agency ("CIA") to several journalists. Indictment at 8, ¶ 25. And specifically, the charges against the defendant are predicated upon statements that he allegedly made to Special Agents of the Federal Bureau of Investigation ("FBI") in October and November, 2003, id. at 9, ¶ 26, and testimony he provided to a grand jury in March 2004, id. at ¶, ¶ 30. The allegedly false statements related to conversations the defendant had with news reporters Tim Russert, Judith Miller, and Matthew Cooper in June and July 2003. Id. at 11-22.

While these purportedly false statements were made against the backdrop of Ambassador Joseph Wilson's comments about the validity of President George W. Bush's proclamation `in his January 28, 2003 State of the Union address that "[t]he British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa," Ambassador Wilson's comments have only peripheral pertinence to this case. Moreover, although the Special Counsel's criminal investigation initially focused on whether government officials illegally disclosed Ms. Wilson's employment with the CIA, the defendant has not been charged with any such violation. Rather, the only question the jury will be asked to resolve in this matter will be whether the defendant intentionally lied when he testified before the grand jury and spoke with FBI agents about statements he purportedly made to the three news reporters concerning Ms. Wilson's employment. The prosecution of this action, therefore, involves a discrete cast of characters and events, and this Court will not permit it to become a forum for debating the accuracy of Ambassador Wilson's statements, the propriety of the Iraq war or related matters leading up to the war, as those events are not the basis for the charged offenses. At best, these events have merely an abstract relationship to the charged offenses.¹

Nonetheless, this Court recognizes that the charged offenses occurred against this backdrop and appreciates that some reference to Ambassador Wilson, his trip to Niger, and his wife during the trial is probably inevitable. Any testimony or other evidence relating to these subjects, however, will be admitted for limited purposes—to establish what the principal players (the defendant, the three news reporters, and any other key witnesses) knew about Ambassador Wilson's wife's affiliation with the CIA and when they knew it, and as evidence of the defendant's purported motive to reveal Ms. Wilson's affiliation with the CIA to reporters. In fact, as to this first basis of admissibility, as the indictment makes clear, one aspect of the government's case will be an attempt to establish the defendant's knowledge of Ms. Wilson's affiliation with the CIA before his conversations with Miller, Russert, and Cooper. See Indictment at 12-13, ¶ 33(a)(ii). However, whether the information possessed by any of the principal players was true or not is immaterial to this case; rather, what will be relevant in regards to either the prosecution or defense is what, if anything, they knew about the subject and when they acquired that information. And documents reflecting what these principal players may have known (or did not know) could be used to attack the credibility and recollection of these potential witnesses.

In response to the charges filed against him, the defendant relates that one aspect of his defense will be that he was not engaged in a sinister effort to punish Ambassador Wilson or Valerie Plame Wilson; rather, any discussions he had with the reporters concerning Ambassador Wilson, his trip to Niger, or Valerie Plame Wilson were conducted solely for the purpose of refuting the accuracy of Ambassador Wilson's pronouncements. Def.'s Mem. at 3. According to the defendant, his requests for documents relating to discussions he had with other government officials or news reporters that show that he was simply engaged in legitimate efforts to rebut the merits of Ambassador Wilson's findings are material to the preparation of his defense, as their content would arguably support his claim that the government's position that he intended to make false statements, commit perjury, and obstruct justice is incorrect. In limited respect, the Court agrees. See, e.g., United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993) (indicating that intent is an element of a perjury charge); United States v. Montague, 202 F.3d 261, 2000 WL 14169 (4th Cir.2000) (noting that intent is an element of a false statement charge); United States v. Baker, 626 F.2d 512, 516 (5th Cir.1980) (same). Therefore, if the government is in possession of documents that show the defendant's intent to participate or his actual participation in such legitimate efforts, those documents must be produced pursuant to Rule 16.

Although the defendant is entitled to the production of the above category of documents, the majority of the defendant's remaining requests must be denied. Seven of the defendant's requests seek documents concerning Ambassador Joseph Wilson and his wife, Valerie Plame Wilson. Specifically, these requests seek documents concerning Ambassador Wilson's trip to Niger, documents relating to any possible attempt by other government officials to punish or seek revenge against Ambassador Wilson or his wife occasioned by Ambassador Wilson's disclosure of what he allegedly learned during his trip, and documents reflecting Valerie Plame Wilson's affiliation with the CIA.² For several reasons, and contrary to the defendant's position otherwise, the bulk of the documents which may be responsive to these requests are simply not material to the preparation of the defendant's defense. First, the requests seek all documents from a variety of Executive Branch components, without regard for whether the defendant or any likely witnesses even reviewed or ever knew about these documents. Such requests seek documents that are far too attenuated to any issue in this case to fall within the scope of Rule 16(a)(1)(E). Rather, the only documents that would be material to the preparation of the defense are those that were reviewed by either the defendant or potential witnesses. See United States v. George, 786 F.Supp. 56, 64 (D.D.C.1992) ("It is immaterial what Congress knew unless the defendant was aware of their knowledge."). Thus, for example, the fact that other governmental officials may have known before July 14, 2003, that Ms. Wilson worked for the CIA is completely immaterial unless that information was shared with either the defendant, Miller, Russert, or Cooper. Moreover, the only use that could be made with the vast majority of the requested documents that fall within the seven categories would be to challenge the accuracy of Ambassador Wilson's comments about the validity of President Bush's statement about Saddam Hussein and Niger in his January 28, 2003 State of the Union address. And, as previously discussed, documents and information which may have bearing on the accuracy or inaccuracy of the President's statement on that topic, why the United States invaded Iraq, and the circumstances surrounding Ambassador Wilson's trip to Niger and his reported findings are wholly immaterial to this case.³ See George, 786 F.Supp. at 60-64. Thus, of these seven categories of documents, the only documents that would be material to the preparation of the defense are those which tend to show that the defendant's conversations with government officials did or did not occur as alleged in the indictment.⁴ See, e.g., Indictment at 7-8.

In addition, the defendant seeks a variety of documents relating to the 2002 National Intelligence Estimate (NIE) and its declassification.⁵ However, during the May 5, 2006 hearing, the government noted that there is no allegation in the indictment that findings of the NIE were improperly disclosed by the defendant...