U.S. v. Libby

• Decision Date: 01 March 2007
• Docket Number: Criminal No. 05-394 (RBW).
• Citation: 475 F.Supp.2d 73
• Parties: UNITED STATES of America, v. I. Lewis LIBBY, Defendant.
• Court: U.S. District Court — District of Columbia

475 F.Supp.2d 73

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

Criminal No. 05-394 (RBW).

United States District Court, District of Columbia.

March 1, 2007.

COPYRIGHT MATERIAL OMITTED

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 Plaintiff.

MEMORANDUM OPINION

WALTON, District Judge.

Throughout the trial in this matter, which commenced on January 16, 2007, the parties have raised a number of evidentiary disputes. During the course of the trial, the Court resolved those disputes from the bench. Nonetheless, the Court concludes that it is appropriate to memorialize some of those rulings in a written opinion. Accordingly, this Memorandum Opinion sets forth the Court's ruling on the following motions: (1) the Government's Motion in Limine to Preclude Testimony of Andrea Mitchell;¹ (2) the Brief of I. Lewis Libby on Admissibility of State of Mind Evidence Without Defendant's Testimony;² and (3) the defendant's Memorandum of Law in Support of Introducing Additional Evidence to Impeach Government Witness Tim Russert ("Def.'s Russert Mot."). Because 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, 82-83 (D.D.C.2006); United States v. Libby, 432 F.Supp.2d 26, 28-29 (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), it need not repeat them here, but will turn immediately to the evidentiary disputes.

I. Government's Motion In Limine to Preclude Testimony of Andrea Mitchell

The defendant sought to elicit testimony from Andrea Mitchell, a reporter with NBC News, regarding her knowledge of Valerie Plame Wilson's employment with the Central Intelligence Agency ("CIA") for the purpose of undermining NBC News Washington Bureau Chief Tim Russert's direct examination trial testimony that it would not have been possible for Russert to have broached the topic of Ms. Wilson with the defendant because he did not know anything about her when the conversation occurred. Mitchell Mot. at 2; Trial Transcript ("Tr.") 2/7/07 p.m. at 12, 34-35, 38. Russert further testified that Mitchell, as one of the members of the NBC news team, would have disclosed important news information to him. Tr. 2/8/07 a.m. at 42. To attack Russert's credibility, the defendant sought to introduce evidence that on October 3, 2003, Mitchell made a statement to CNBC's Allen Murray indicating that there was a rumor among Washington reporters regarding Ms. Wilson's CIA employment before Russert spoke to the defendant.³ However, shortly thereafter, Mitchell recanted this exchange, repeatedly asserting that she did not know Ms. Wilson worked at the CIA prior to the publication of the Robert Novak article, from which Russert testified he first learned about Ms. Wilson's employment, and that she had "misunderstood Allen's question and screwed it up." Mitchell Mot. at 4. And, counsel for Mitchell proffered to the Court that if called as a witness, Mitchell would testify that she had no knowledge of Ms. Wilson's CIA employment prior to the publication of the Novak article. Tr. 2/8/07 p.m. at 101-02; Mitchell Mot. at 4. Nonetheless, the defendant opined that by demonstrating that Mitchell may have had some knowledge of Ms. Wilson's affiliation with the CIA, it is reasonably inferred that she would have shared this information with Russert before he had his conversation with the defendant, and thus, the jury should not credit Russert's testimony that he did not know of Ms. Wilson's affiliation with the CIA until the Novak article was published. Moreover, the defense asserted that it should be able to introduce this evidence to challenge Mitchell's credibility.

The defendant advanced four legal theories as support for the introduction of this evidence. First, the defendant contended that he should be entitled to establish a "factual record that the possibility of Mitchell's hearing such a rumor cannot be ruled out." Def.'s Mitchell Mot. at 1. Second, that if Mitchell denied hearing such a rumor, the defense could use her statement to Murray to impeach her credibility. Id. Third, that under Chambers v. Mississippi, 410 U.S. 284, 298, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), the defense could use the October 2003 statement to impeach Russert's credibility because he testified that had Mitchell heard such a rumor she would have reported that information to him and therefore it was possible for him to bring the topic to the defendant's attention. Id. at 2. And finally, that the October 2003 statement was admissible as substantive evidence under Federal Rule of Evidence 807, the residual hearsay exception. Id. at 2. The Court will first address the latter two arguments.

A. Mitchell's October 2003 Statement Could Not be Introduced as Substantive Evidence.

The defendant argued that he should be permitted to utilize Mitchell's

October 2003 exchange to impeach Russert's credibility. Def.'s Mitchell Mot. at 17. As this Court noted during the trial, the October 2003 exchange would only impeach Russert's credibility if it could be admitted as substantive evidence for the truth of the matter asserted — i.e., that Mitchell had actually heard rumors regarding Ms. Wilson's employment status with the CIA. If admitted for its truth, the defendant could ask the jury to infer, consistent with Russert's testimony, that Mitchell would have reported this information to him as her "boss," and that Russert would have had a factual basis for asking the defendant about it during their telephone conversation on July 10 or 11, 2003. However, there was simply no basis for the October 2003 interview being introduced as substantive evidence under either the Supreme Court's pronouncement in Chambers or Federal Rule of Evidence 807, as suggested by the defendant.

In Chambers, the Supreme Court concluded that Chambers had been denied a fair trial: (1) when he was not afforded the opportunity on re-direct examination to question his own witness regarding the witness's confession that he had committed the offense for which Chambers was on trial and that had been introduced during the witness's direct examination but repudiated by him during the State's cross-examination,⁴ and (2) when the trial court prevented Chambers from impeaching this witness's testimony denying guilt with prior confessions made to third parties. See Chambers, 410 U.S. at 298, 93 S.Ct. 1038. Concluding that the trial court's evidentiary rulings deprived Chambers of a fair trial, Justice Powell noted that the "right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations." Id. at 294, 93 S.Ct. 1038. Further, the Court noted that "[t]he rights to confront and call witnesses in one's own behalf have long been recognized as essential to due process." Id. While recognizing that the prohibition on hearsay was well established in American law, the Court held that where the testimony was "critical to Chambers' defense," and "where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice." Id. at 302, 93 S.Ct. 1038. The Court reached this conclusion reasoning that the hearsay in question "bore persuasive assurances of trustworthiness and ... was well within the basic rationale of the exception for declarations against interest."⁵ Id. Specifically, the Court noted that the confessions (1) were made spontaneously to friends, (2) were corroborated by evidence already in the case, and (3) were clearly against McDonald's interest. See id. at 300, 93 S.Ct. 1038. Therefore, the confessions were deemed reliable and were "well within the basic rationale of the exception for declarations against interest." Id. at 302, 93 S.Ct. 1038. Thus, the Court concluded that Chambers should have been permitted to not only use the confessions to undermine McDonald's credibility, see id. at 295-98, 93 S.Ct. 1038, but also as substantive evidence for their truth, see id. at 302, 93 S.Ct. 1038.

The Supreme Court's holding in Chambers does not provide a legal basis for the admission of an otherwise inadmissible hearsay statement. See id. at 302, 93 S.Ct. 1038. First, the statement in Chambers was a hearsay statement that was against the witness's penal interest. Federal Rule of Evidence 804(b)(3) now formally recognizes statements tending to expose the declarant to criminal liability as an exception to the hearsay rule so long as the declarant is unavailable within the meaning of the rule. In the case at bar, Mitchell's October 2003 statement did not fall within any of the recognized hearsay exceptions, including, as discussed below, Rule 807. Second, the Supreme Court in Chambers concluded that the introduction of the confession was proper because it was critical to the defendant's case and was reliable. See Chambers, 410 U.S. at 302, 93 S.Ct. 1038. Such was not the case here. The defense offered no evidence from which the Court could attach a level of trustworthiness to Mitchell's October 2003 exchange, which would have permitted the exchange to be admitted as substantive evidence. Moreover, the introduction of Mitchell's October 2003 exchange was not critical to the defendant's case. As already noted, there were a number of inferences and leaps in the logic the jury would have to make to conclude that the October 2003 statement had any bearing on the defendant's innocence. Thus, unlike the third-party confession in Chambers, Mitchell's statement did not go to the heart of Libby's defense. Rather, even if there was a basis for admitting the statement for its truth, as noted...