Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Libby

March 10, 2006

UNITED STATES OF AMERICA,
v.
I. LEWIS LIBBY, DEFENDANT.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

On February 24, 2006, this Court heard extensive argument on the defendant's Motion to Compel Discovery of Information Regarding News Reporters and Organizations*fn1 and his Motion to Compel Discovery of Rule 16 and Brady Material in the Possession of Other Agencies.*fn2 At that hearing, this Court, from the bench, resolved a number of the disputed requests.*fn3

This Memorandum Opinion addresses two of the remaining disputes - whether the defendant is entitled to (1) "[a]ll documents provided to [the defendant] in connection with his morning intelligence briefing during the period of May 6, 2003 through March 24, 2004, including the President's Daily Brief ("PDB"), in its entirety, and additional materials provided for the Vice President and Mr. Libby with the PDB" and (2)"[a]ll documents relating to inquiries made during or in connection with [the defendant's] morning intelligence briefing for the period of May 6, 2003 through March 24, 2004, and all document provided to [the defendant] as a result of those inquiries."*fn4 Def.'s Mot. II at 1-2. For the reasons set forth below, the Court grants in part and denies in part the defendant's requests.*fn5

I. Background

In September 2003, the Department of Justice authorized the Federal Bureau of Investigation ("FBI") to commence 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. As part of the investigation, the defendant was interviewed by Special Agents of the FBI in October and November, 2003, id. at 9, ¶ 26, and in March, 2004, the defendant twice provided testimony to the grand jury investigating the possible unauthorized disclosure, id. at 11, ¶ 30. As a result of statements made to the FBI Special Agents and testimony provided to the grand jury, 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).

The count of the indictment charging the defendant with obstruction of justice alleges that he "knowingly and corruptly endeavor[ed] to influence, obstruct and impede the due administration of justice . . . by misleading and deceiving the grand jury as to when, and the manner and means by which, [the defendant] acquired and subsequently disclosed to the media information concerning the employment of Valerie Wilson by the CIA." Indictment at 11, ¶ 31. Count Two of the indictment charges the defendant with making false statements to Special Agents of the FBI on October 14 and November 26, 2003, alleging that the defendant knowingly made a false statement when recounting a July 2003 conversation he had with Tim Russert of NBC News. Id. at 15-16, ¶¶ 3-4. Count Three also charges the defendant with making false statements to Special Agents of the FBI, and specifically alleges that the defendant knowingly made false statements when relating a July 2003 conversation he had with Matthew Cooper of Time magazine. Id. at 17, ¶¶ 2-3. Counts Four and Five of the indictment charge the defendant with perjury arising out of his testimony presented to the grand jury when he recounted his conversations with both Russert and Cooper. Id. at 18-22. The defendant claims he needs the documents he has requested from the prosecutor in order to prepare his defense against these charges and to present a viable defense during his trial.

II. Discovery Standards of Review

"Criminal discovery is not a game. It is integral to the quest for truth and the fair adjudication of guilt or innocence." Taylor v. Illinois, 484 U.S. 400, 419 (1988) (Brennan, J., dissenting). Discovery in federal criminal cases is governed by federal statutes, the Federal Rules of Criminal Procedure, and case law. See, e.g., 18 U.S.C. § 3500 (2000); Fed. R. Crim. P. 12, 12.1, 12.2, 12.3, 16, 26.2 and 46(j); Giglio v. United States, 405 U.S. 150 (1972); Brady v. Maryland, 373 U.S. 83 (1963). Each party has obligations under these authorities and together they "contribute[] to the fair and efficient administration of criminal justice . . . by otherwise contributing to an accurate determination of the issue of guilt or innocence." Fed. R. Crim. P. 16, advisory committee note to 1974 amendment. Here, the Court is concerned with Federal Rule of Criminal Procedure 16.*fn6

Rule 16 requires the government to disclose certain information upon the defendant's request. Fed. R. Crim. P. 16 (a)(1). Specifically, Rule 16 provides for the pre-trial disclosure by the government of five types of documents:*fn7 (1) the defendant's oral, written or recorded statements; (2) the defendant's prior criminal record; (3) certain documents and objects "within the government's possession, custody, or control;" (4) reports of examinations and tests; and (5) a summary of testimony from an expert witness that the government will rely upon. Fed. R. Crim. P. 16(a)(1)(A) - (G).*fn8 Here, the Court is concerned with the third category of documents, which is governed by Rule 16(a)(1)(E). This provision of the rule provides, in part:

Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and:

(I) the item is material to preparing the defense . . . .

Fed. R. Crim. P. 16(a)(1)(E).*fn9 Based on a plain reading of the text of this part of the rule, production of documents under Rule 16(a)(1)(E) is required only if (1) the documents are "within the government's possession, custody, or control," and (2) the documents are material to the preparation of the defense. "The language and the spirit of the Rule are designed to provide to a criminal defendant, in the interest of fairness, the widest possible opportunity to inspect and receive such materials in the possession of the government as may aid him in presenting his side of the case." United States v. Poindexter, 727 F. Supp. 1470, 1473 (D.D.C. 1989).

As to the first prong of this test, "[c]courts have in the main been more concerned with fairness to the defendant, on the one hand, and the government's ease of access to the documents sought, on the other, than with the issue whether the documents are actually within the physical possession of the prosecutor." Id. at 1477. Thus, when determining whether the government has possession, custody, and control of documents, the District of Columbia Circuit has found, albeit in the Brady context, that documents maintained by other components of the government which are "closely aligned with the prosecution" must be produced. United States v. Brooks, 966 F.2d 1500, 1503 (D.C. Cir. 1992) (quoting United States v. Fairman, 769 F.2d 386, 391 (7th Cir. 1985)). As the Court in Brooks noted, the "bureaucratic boundary [between agencies is] too weak to limit the duty" to disclose. Id.; see United States v. Ehrlichman, 559 F.2d 31, 74 (D.C. Cir. 1976). Relying on these cases, among others, other members of this Court have concluded that Rule 16 compels the same conclusion. See, e.g., Poindexter, 727 F. Supp. at 1477; see also United States v. Safavian, 2005 WL 3529834, at *2 (D.D.C. Dec. 23, 2005).

The Ninth Circuit has similarly rejected adopting a definition under Rule 16 that limits the phrase "possession and control" to only those files of agencies that participated in the investigation, concluding that "'the scope of the government's obligation'" to produce documents under Rule 16 "turn[s] on the 'extent to which the prosecutor has knowledge of and access to the documents.'" United States v. Santiago, 46 F.3d 885, 894 (9th Cir. 1995) (quoting United States v. Bryan, 868 F.2d 1032, 1036 (9th Cir. 1989) (noting that "the scope of the government's obligation . . . should turn on the extent to which the prosecutor has knowledge of and access to the documents sought by the defendant in each case.")); see also Poindexter, 727 F. Supp. at 1477-78 (observing that "several courts have noted that a prosecutor who has had access to documents in other agencies in the course of his investigation cannot avoid his discovery obligations by selectively leaving the materials with the agency once he has reviewed them."). On the other hand, to require the government to search the files of every agency in the Executive Branch "would not only wreak havoc, but would give the defense access to information not readily available to the prosecution." Bryan, 868 F.2d at 1036 (quotation marks and citation omitted). The Ninth Circuit's holding in Santiago, although arguably slightly more expansive than the District of Columbia Circuit's holding in Brooks, largely comports with the conclusions reached by other Circuit Courts that prosecutors' discovery obligations were not violated by their failure to produce documents that were possessed by agencies which had no part in the criminal investigation or when the prosecution had no control over the agency officials who physically possessed the documents.*fn10 See, e.g., United States v. Pelullo, 399 F.3d 197, 218 (3d Cir. 2005); United States v. Casas, 356 F.3d 104, 116 (1st ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.