U.S. v. Libby

• Decision Date: 02 November 2006
• Docket Number: Criminal No. 05-394(RBW).
• Citation: 461 F.Supp.2d 3
• Parties: UNITED STATES of America, v. I. Lewis LIBBY, Defendant.
• Court: U.S. District Court — District of Columbia

461 F.Supp.2d 3

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

Criminal No. 05-394(RBW).

United States District Court, District of Columbia.

November 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, U.S. Department of Justice, Peter Robert Zeidenberg, U.S. Department of Justice, Washington, DC, for U.S.A.

MEMORANDUM OPINION

REGGIE B. WALTON, District Judge.

On October 26, 2006, this Court heard extensive testimony and argument on the defendant's motion to admit the expert testimony of Dr. Robert A. Bjork.¹ Specifically, the defendant opines that he should be permitted to introduce the testimony of Dr. Bjork "regarding [what he characterizes as] the widely-accepted findings from the science of memory." Def.'s Mot. at 1. Having carefully considered the papers filed in connection with this motion, the exhibits, and the testimony presented during the hearing on the motion, the Court must conclude that Dr. Bjork's testimony is not admissible. Accordingly, for the reasons that follow, the defendant's motion to introduce Dr. Bjork's testimony will be denied.

I. Background

This Court has, on several occasions, set forth the facts underlying the charges lodged against the defendant. See, e.g., United States v. Libby, 432 F.Supp.2d 81, 82 (D.D.C.2006); United States v. Libby, 432 F.Supp.2d 26, 28 (D.D.C.2006); United States v. Libby, 429 F.Supp.2d 27, 28-29 (D.D.C.2006); United States v. Libby, 429 F.Supp.2d 1, 4 (D.D.C.2006). Thus, the Court need not engage in an extensive review of the facts as they are well-known to all involved. It is helpful, nonetheless, to briefly review the facts as they relate to the motion currently before the Court.

The defendant is 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 — Valerie Plame Wilson's affiliation with the Central Intelligence Agency ("CIA") — to several journalists. Indictment at 8, ¶ 25. Specifically, the charges against the defendant are predicated upon statements that the defendant 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 11, ¶ 30. The alleged false statements occurred when the defendant recounted conversations he had in June and July 2003, with news reporters Tim Russert, Judith Miller, and Matthew Cooper to the FBI Agents and to the grand jury. See generally Indictment at 11-22.

The defendant has made clear that in his effort to rebut these charges he will argue, in part, (1) that it is the government's witnesses, and not him, who misremembered the facts and the substance of the various conversations detailed in the indictment and (2) that any errors he may have made in describing the events were occasioned by confusion or faulty memory, not any wilful intent to misrepresent the truth. Def.'s Mot. at 1-2; see Libby, 429 F.Supp.2d at 12 (noting that the defendant may assert as his defense that any false statements were the result of confusion, mistake, or a faulty memory). This Court has acknowledged that this "faulty memory defense" is a viable defense to the charges. Libby, 429 F.Supp.2d at 12 (recognizing that "the charges could possibly be defeated by the defendant demonstrating that the alleged misstatements were not made intentionally, but were merely the result of confusion, mistake, faulty memory, or another innocent reason."). Accordingly, the memory and recollection of the principal players will undoubtedly play a substantial role in the assessment of the defendant's culpability in the upcoming trial.

To support his faulty memory defense, the defendant seeks to introduce at trial the testimony of Dr. Bjork "to show that it is entirely plausible, given how memory has been found to function, that Mr. Libby or the government witnesses — or both — have innocently confused or misremembered the conversations on which this case turns." Def.'s Mot. at 2. Specifically, Dr. Bjork would testify about thirteen scientific principles concerning human memory, including the process by which memory is encoded, stored, retained, and retrieved and various scientific bases for memory errors including "content borrowing," source misattribution, subsequent recall, divided attention, and "retroactive interference." Def.'s Mot., Ex. A (listing thirteen opinions Dr. Bjork's testimony would encompass). According to the defendant, Dr. Bjork's expert testimony "will assist the jury by providing information about the findings of memory research that are not already known to the jurors." Def.'s Mot. at 2. It is the admissibility of Dr. Bjork's testimony under Federal Rule of Evidence 702 that is the subject of this opinion.

II. Federal Rule of Evidence 702

The admissibility of expert testimony is governed by Federal Rule of Evidence 702.² Central to the court's determination of whether expert testimony is admissible under Rule 702, and consistent with the Rule's purpose, is the two-prong test enunciated by the Supreme Court in Daubert v. Merrell Dow Pharm., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).³ Under this test, a court determining the admissibility of purported expert testimony must first determine "[1] whether the reasoning or methodology underlying the testimony is scientifically valid and [2] whether that reasoning or methodology properly can be applied to the facts in issue." Id. at 592-93, 113 S.Ct. 2786.⁴ When analyzing whether expert testimony is admissible under this test, the Court plays the role of a "gatekeeper" with the responsibility to ensure that the proposed testimony is both reliable and relevant. Ambrosini v. Labarraque, 101 F.3d 129, 133 (D.C.Cir.1996); see Daubert, 509 U.S. at 589, 113 S.Ct. 2786. The burden is on the proponent of the testimony to establish its admissibility by a "preponderance of proof." Meister v. Med. Eng'g Cop., 267 F.3d 1123, 1127 n. 9 (D.C.Cir.2001) (citing Daubert, 509 U.S. at 592 n. 10, 113 S.Ct. 2786).

This first prong of the Daubert test "establishes a standard of evidentiary reliability." Daubert, 509 U.S. at 590, 113 S.Ct. 2786. Although the subject of the scientific testimony need not be "known to a certainty," it must be "ground[ed] in the methods and procedures of science." Id. at 590, 113 S.Ct. 2786. When examining this part of the test, the "court must focus `solely on principles and methodology, not on the conclusions that they generate.'" Ambrosini, 101 F.3d at 133 (citing Daubert, 509 U.S. at 595, 113 S.Ct. 2786). The Supreme Court has provided a non-exhaustive, flexible list of factors to help courts determine whether the proffered testimony satisfies the first prong of the Daubert test. This list includes: (1) whether the subject of the expert's testimony "can be (and has been) tested"; (2) whether it has been "subjected to peer review and publication"; (3) "the known or potential rate of error" of the relevant scientific technique; (4) "the existence and maintenance of standards controlling the technique's operation"; and (5) whether it is "generally accepted" in the relevant scientific community. Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786. It is important to note, however, that

nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.

Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997).

Even if the Court concludes that the proponent of expert testimony has satisfied the first prong of the Daubert test, the testimony will only be admissible if it "will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702. This prong of the Daubert test "goes primarily to relevance." Daubert, 509 U.S. at 591, 113 S.Ct. 2786. Thus, "[e]xpert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful." Id. (citation and internal quotation marks omitted). As the Supreme Court in Daubert explained, the proposed testimony must be a "fit" to assist the jury in resolving an issue relevant to a case, id., which "entails a preliminary assessment of whether ... scientifically valid ... reasoning or methodology properly can be applied to the facts in issue," id. at 593, 113 S.Ct. 2786. An expert need not offer an opinion on a specific issue to satisfy this "fit" requirement; rather, the expert can testify about general scientific principles. See, e.g., United States v. Mulder, 273 F.3d 91, 101-02 (2d Cir.2001).⁵ The Supreme Court has cautioned, however, that "[f]it' is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes." Daubert, 509 U.S. at 591, 113 S.Ct. 2786.

In determining whether proposed scientific evidence has a proper fit, courts have looked to a variety of factors, including: "(1) whether the testimony is relevant; (2) whether it is within the juror's common knowledge and experience; and (3) whether it will usurp the juror's role of evaluating a witness's credibility." United States v. Rodriguez-Felix, 450 F.3d 1117, 1123 (10th Cir.2006) (internal footnotes and citations omitted). Thus, expert testimony concerning matters beyond the understanding of the average juror is often admissible, while expert testimony concerning knowledge within the province of the average...