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APPEARANCES:
13 For the Plaintiff: Patrick Fitzgerald, Esq.
14 Peter Zeidenberg, Esq.
15 Debra R. Bonamici, Esq.
16 For the Defendant: Theodore Wells, Esq.
17 Jonathan Jeffress, Esq.
<snip, pgs 24 - 25 of the pdf file>
01 MR. WELLS: I would submit that if Mr. Rove, for
02 example, who is likely to be a witness --
03 THE COURT: The government said he won't but maybe
04 you will call him. The government said he will not be a 05 witness for the government.
06 MR. WELLS: If they don't call him, we're calling
07 him. With respect to Mr. Rove, we believe there is no
08 exception in the case law that says Mr. Libby's discovery
09 rights are diluted because the government has an ongoing
10 investigation.
11 The government controls the timing of its indictment.
12 It could have waited until it finished the whole thing. Just
13 because the government says there is a continuing
14 investigation, it cannot hold back on discovery materials.
15 THE COURT: I guess it depends upon, and I assume
16 that Mr. Fitzgerald would not disagree with that but, I assume,
17 would take the position that once the investigation is complete
18 which I would assume would be sometime in the foreseeable
19 future, that then maybe the landscape changes. And we're far
20 off from the trial at this point.
21 So it seems to me as long as it is turned over
22 sufficiently an advance of the trial so that it can be used
23 that that would be adequate but I don't know if you agree with
24 what I just said.
25 MR. FITZGERALD: I would disagree in the following
01 respect. We are not withholding evidence or discovery on the
02 grounds that we think that Rule 16 has a continuing
03 investigation exception that dilutes his rights.
04 Our point is much of what they're asking for is not
05 Rule 16 material. Rule 16, as Your Honor has found, is
06 material to the preparation of the case in chief.
07 If a witness is not being called by the government in
08 the case in chief and isn't part of the substantive case and
09 doesn't have, doesn't shed light on whether Mr. Libby lied
10 about his conversations in the grand jury, that is not material
11 to the preparation. Sometimes, often in this case, we've taken
12 material that's not discoverable in the benefit of the doubt
13 and given it to the defendant.
14 THE COURT: But what if a witness is going to be
15 called, you know ahead of time based upon what Mr. Wells just
16 said regarding Mr. Rove, you know that the defense intends to
17 call a witness.
18 The government has information about that witness and
19 there is clear case authority that says that if that witness
20 then testifies and the government is able to then catch him in
21 a lie, knowing full well that they have this information at
22 their disposal, that that is a problem as it relates to Rule
23 16.
24 For example, I mean if you had, you know that he's
25 going to call Mr. Rove to say X and you have information that
01 would indicate that actually Mr. Rove previously said something
02 that was Y, and then if he testifies, you catch him in a trick
03 on cross-examination and discredit his credibility, the law
04 says that they have a right to know about that so that they
05 don't, you know, step in that mine field.
06 MR. FITZGERALD: Let me just be clear that whatever I
07 say in my remarks, I'm not talking about Mr. Rove one way or
08 the other.
09 THE COURT: I understand. I only use that as example
10 because he did.
11 MR. FITZGERALD: Okay. If the defense is calling a
12 witness and, with all due respect, he's not bound to call a
13 witness so at a pretrial discovery phase defendants often
14 decide to call lots of witnesses that don't appear.
15 My understanding is that under the law, 3500, Jencks
16 and Giglio, we don't have obligations to turn over materials
17 pertaining to defense witnesses and so my point is --
18 THE COURT: I have to go back and look at this case
19 but I just looked at a case before I came out on the bench I
20 think, and it is a case out of this circuit. I have to find
21 it, where Judge Sentelle said something I believe totally
22 different than that.
23 I think what he said in that case, if my memory is
24 correct, it was, in fact, a witness that the government knew
25 about, having information on, did not reveal that information
01 to the defense. The defense called the witness and then the
02 government used that adverse information against him on cross-
03 examination, and my recollection is Judge Sentelle said that
04 was a Rule 16 violation. I've got to go back and look at the
05 case. I know it was cited in the reply.
06 Does the defense have the name of that case? I know
07 you cited it in your reply. It was not Lloyd because it was a
08 new case I think. I think it is the U.S. versus Marshall which
09 is 132 F.3rd at page 63, specifically page 67 and 68. I'm
10 going to give the reporter a break. We'll take a 10-minute
11 recess.
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