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United States v. Slough

United States District Court, D. Columbia.

April 8, 2014

UNITED STATES OF AMERICA
v.
PAUL A. SLOUGH, NICHOLAS A. SLATTEN, EVAN S. LIBERTY, and DUSTIN L. HEARD, Defendants

Decided March 26, 2014

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For JEREMY P. RIDGEWAY, Non-Party Petitioner: Thomas C. Hill, William M. Sullivan, Jr., LEAD ATTORNEYS, Keith David Hudolin, PILLSBURY WINTHROP SHAW PITTMAN, LLP, Washington, DC.

For WILLIAM M. SULLIVAN, JR., RYAN R. SPARACINO, PILLSBURY WINTHROP SHAW PITTMAN LLP, Non-Party Petitioners: Keith David Hudolin, Thomas C. Hill, LEAD ATTORNEYS, PILLSBURY WINTHROP SHAW PITTMAN, LLP, Washington, DC.

For PAUL ALVIN SLOUGH, Defendant: Brian Matthew Heberlig, Mark Joseph Hulkower, LEAD ATTORNEYS, Bruce Charles Bishop, Linda C. Bailey, Michael Jeremy Baratz, STEPTOE & JOHNSON LLP, Washington, DC; Thomas C. Hill, LEAD ATTORNEY, PILLSBURY WINTHROP SHAW PITTMAN, LLP, Washington, DC; Scott P. Armstrong, STEPTOE & JOHNSON, Washington, DC.

For NICHOLAS ABRAM SLATTEN, Defendant: Steven J. McCool, LEAD ATTORNEY, MALLON & MCCOOL, LLC, Washington, DC; Thomas Gerard Connolly, LEAD ATTORNEY, Jared P. Marx, Steven A Fredley, WILTSHIRE & GRANNIS, LLP, Washington, DC; Mark Joseph Hulkower, LEAD ATTORNEY, STEPTOE & JOHNSON LLP, Washington, DC.

For EVAN SHAWN LIBERTY, Defendant: Brian John Rooney, LEAD ATTORNEY, Brandon M. Bolling, THOMAS MORE LAW CENTER, Ann Arbor, MI; Steven J. McCool, LEAD ATTORNEY, MALLON & MCCOOL, LLC, Washington, DC; William Francis Coffield, IV, LEAD ATTORNEY, COFFIELD LAW GROUP, LLP, Washington, DC; Mark Joseph Hulkower, LEAD ATTORNEY, STEPTOE & JOHNSON LLP, Washington, DC; Robert J. Muise, AMERICAN FREEDOM LAW CENTER, Ann Arbor, MI.

For DUSTIN LAURENT HEARD, Defendant: David Schertler, LEAD ATTORNEY, Danny C. Onorato, Lisa Hertzer Schertler, SCHERTLER & ONORATO LLP, Washington, DC; Mark Joseph Hulkower, STEPTOE & JOHNSON LLP, Washington, DC; Steven J. McCool, MALLON & MCCOOL, LLC, Washington, DC.

For DONALD WAYNE BALL, Defendant: Danny C. Onorato, LEAD ATTORNEY, SCHERTLER & ONORATO LLP, Washington, DC; Steven J. McCool, MALLON & MCCOOL, LLC, Washington, DC; Mark Joseph Hulkower, STEPTOE & JOHNSON LLP, Washington, DC.

For WASHINGTON POST, Interested Party: James Amazaki McLaughlin, THE WASHINGTON POST, Washington, DC.

For ASSOCIATED PRESS, Interested Party: David A. Schulz, LEAD ATTORNEY, LEVINE SULLIVAN KOCH & SCHULZ, LLP, New York, NY.

For CENTER ON ADMINISTRATION OF CRIMINAL LAW, Amicus: Daniel Joseph, LEAD ATTORNEY, AKIN GUMP STRAUSS HAUER & FELD, LLP, Washington, DC; Anthony S. Barkow, CENTER ON THE ADMINISTRATION OF CRIMINAL LAW, New York, NY.

For USA, Plaintiff: Anthony Asuncion, John Crabb, Jr., LEAD ATTORNEYS, Christopher Robert Kavanaugh, Joseph Nicholas Kaster, U.S. ATTORNEY'S OFFICE, Washington, DC; David Joseph Mudd, U.S. ATTORNEY'S OFFICE, WASHINGTON, D.C., Washington, DC; T. Patrick Martin, U.S. ATTORNEY'S OFFICE, Washington, DC.

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MEMORANDUM OPINION

ROYCE C. LAMBERTH, United States District Judge.

Before the Court is the defendants' oral motion of October 25, 2013 to dismiss the superseding indictment [304] returned against them. The defendants allege that the government obtained the superseding indictment in violation of Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), by using the defendants' compelled statements, or information derived directly or indirectly from them, to secure the indictment. This Court conducted a six-day Kastigar hearing beginning on December 4, 2013, to determine whether the government used the defendants' compelled statements or any evidence derived from them before the grand jury.

Upon consideration of the testimony presented at the Kastigar hearing, the post hearing briefs submitted by the government, Gov't Br., Dec. 30, 2013, ECF No. 372; Gov't Reply, Jan. 28, 2014, ECF No. 382, and the defendants, Defs.' Br., Jan. 17, 2014, ECF No. 376, the entire record herein, and the applicable law, the Court will DENY defendants' motion to dismiss the indictment.

I. BACKGROUND

Both the District Court and the Court of Appeals for the District of Columbia Circuit have previously described the factual background of this case. United States v. Slough, 677 F.Supp.2d 112, 116-129 (D.D.C. 2009) (" Slough I " ), vacated, 641 F.3d 544, 555, 395 U.S.App.D.C. 178 (D.C. Cir. 2011) (" Slough II " ); Slough II, 641 F.3d at 547-49. Here, the Court will highlight only the relevant facts and procedural background. In 2007, the defendants all served as security contractors employed by Blackwater Worldwide. Slough I, 677 F.Supp.2d at 116. At the time, Blackwater provided security services for U.S. government personnel in Iraq. Id. The defendants were all members of a Blackwater Tactical Support Team called " Raven 23" that operated in Baghdad to support other Blackwater security teams. Id.

Raven 23 consisted of a convoy of four vehicles. Id. " Defendants Liberty, Slough and Slatten were positioned in the third vehicle as the driver, turret gunner and designated defensive marksman (or sniper) respectively." Id. " Defendant Heard was the rear turret gunner in the fourth vehicle." Id.

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" On September 16, 2007 a car bomb exploded near the Izdihar Compound in Baghdad, where a U.S. diplomat was conferring with Iraqi officials. American security officials ordered a team from Blackwater Worldwide to evacuate the diplomat to the Green Zone." Slough II, 641 F.3d at 547. In order to secure a safe evacuation route for the diplomat and the other Blackwater team, Raven 23 " took up positions in Nisur Square, a traffic circle located just outside the [Green] Zone in downtown Baghdad," and attempted to stop traffic. Slough I, 677 F.Supp.2d at 116. Shortly afterwards, " a shooting incident erupted, during which the defendants allegedly shot and killed fourteen [Iraqi civilians] and wounded twenty others." Id. The key factual dispute in this case is whether the defendants' actions were a reasonable response to a threat to the convoy: the government maintains the defendants' shots were unprovoked, but the defendants claim that Raven 23 came under attack by insurgents. Id.

After Raven 23 returned to the Green Zone, the Department of State's Diplomatic Security Service (" DSS" ) interviewed each member of Raven 23 about the incident in Nisur Square. Slough II, 641 F.3d at 548. On September 18, 2007, all the members of Raven 23 gave written sworn statements about the incident to DSS. Id. All the statements used a standard " form that included a guarantee that the statement and the information or evidence derived therefrom would not be used in a criminal proceeding against the signer." Id. In their immunized statements, [TEXT REDACTED BY THE COURT]. Gov't App. J. 7, 11, 15, 19-20. [TEXT REDACTED BY THE COURT]. Id. at 19. The government previously conceded that the Court must treat these written sworn statements as compelled under Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). Slough II, 641 F.3d at 548. Subsequently, the September 18 statements were leaked to the media. Id. Multiple news sources quoted the September 18 statements, including the defendants' statements, and one news source posted a full copy of defendant Paul Slough's statement online. Id. at 548-49. In light of the substantial media attention in both the United States and Iraq focused on the Nisur Square incident, several of the government's witnesses were exposed to the defendants' compelled statements.

The defendants moved to dismiss the original indictment under Kastigar. After a three week Kastigar hearing, the District Court, Judge Ricardo Urbina presiding, granted the defendant's motion and dismissed the indictment. Slough I, 677 F.Supp.2d at 166. Upon appeal, the Court of Appeals for the District of Columbia Circuit found that Judge Urbina failed to apply the correct legal standard under Kastigar and vacated and remanded the case for a new Kastigar hearing. Slough II, 641 F.3d at 554-55.

In order to avoid any Kastigar taint on remand, the government essentially started the case again from a clean slate. The government replaced the original prosecutors with new attorneys assigned to separate filter and trial teams. Gov't Br. at 21. The filter team reviewed all documentary and tangible evidence to verify it was not tainted before passing it to the trial team. Id. at 21-22. The filter team also conducted interviews of every witness to ensure that the trial team was not exposed to any potentially tainted testimony. Id. at 22. As a part of this process, the filter team sat in on subsequent witness interviews by the trial team and interceded as appropriate to prevent witnesses from tainting the trial team with any tainted testimony. Id. The filter team also examined members of the grand jury to ensure that none of them knew about the defendants' immunized statements. Id. ; Gov't App. B103 at 5-6.

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The trial team, which made its charging decisions solely from the evidence cleared by the filter team, presented the filtered evidence to the grand jury, which returned a superseding indictment. Gov't Br. 22; Superseding Indictment, October 17, 2013, ECF No. 304. The superseding indictment charges the defendants with (1) multiple counts of voluntary manslaughter in violation of 18 U.S.C. § § 1112, 3261(a)(1); (2) multiple counts of attempted manslaughter in violation of 18 U.S.C. § § 1113, 3261(a)(1); and (3) using and discharging firearms during and in relation to crimes of violence in violation of 18 U.S.C. § § 924(c), 3261(a)(1). Id.

The defendants moved to dismiss the superseding indictment as tainted under Kastigar. Accordingly, this Court held a six-day Kastigar hearing to determine if the government made any improper use of the defendant's compelled statements.

II. LEGAL STANDARD

" No person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. The government may however displace a witness's valid claim of the privilege against self-incrimination by granting the witness immunity from the use of the testimony or any information derived from it in any future prosecution. Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). Use and derivative use immunity places " 'the witness and the Federal Government in substantially the same position as if the witness had claimed his privilege.'" Id. at 458-59 (quoting Murphy v. Waterfront Comm'n of N.Y. Harbor, 378 U.S. 52, 79, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964)).

If the government later wishes to prosecute one previously granted use and derivative use immunity for the conduct underlying the immunized testimony, it " must prove, by a preponderance of the evidence, that 'all of the evidence it proposes to use was derived from legitimate independent sources.'" Slough II, 641 F.3d at 550 (quoting United States v. North, 910 F.2d 843, 854, 285 U.S.App.D.C. 343 (D.C. Cir. 1990) (" North I " ), withdrawn and superseded in part on other grounds, United States v. North, 920 F.2d 940, 941, 287 U.S.App.D.C. 146 (D.C. Cir. 1990) (" North II " )). This is to say that the government must show that it has not made any use of the immunized testimony--that the testimony of the government's witnesses has not " been shaped, altered, or affected by [exposure to] the immunized testimony." North I, 910 F.2d at 863. The government may shoulder this burden through the " use of any techniques" and may " show in any fashion that a witness's testimony was not influenced by the immunized testimony." North II, 920 F.2d at 943. As the government has charged each defendant individually, even though the charges are all presented in a single indictment, the Court must assess the " extent and possible harmfulness of [any] taint. . . individually." Slough II, 641 F.3d at 553.

In the simplest circumstance, the government may satisfy the Kastigar requirement by showing that its witnesses were " never exposed to immunized testimony" or that the government's " investigators memorialized (or 'canned') a witness's testimony" prior to any exposure to the defendant's immunized statements. Slough II, 641 F.3d at 550 (quoting Slough I, 677 F.Supp.2d at 132). " But a failure by the government to make either showing does not end the district court's inquiry." Id. The district court must parse the government's evidence " witness-by-witness" and, " if necessary . . . . line-by-line and item-by-item." North I, 910 F.2d at 872. Ultimately, the Court must " separate the wheat of the witnesses' unspoiled memory

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from the chaff of [the defendant's] immunized testimony." Id., at 862. In other words, a witness's testimony is untainted if the government shows that the testimony does not overlap with the defendant's immunized statement. Slough II, 641 F.3d at 550. Finally, even if the witness's testimony does overlap with the defendant's compelled statement, the government may show that the witness has an independent source for the testimony, such as the witness's own firsthand perception of events. Id. at 551.

If the government fails to carry its Kastigar burden with respect to any evidence it has presented to the grand jury, it must show that the failure is harmless beyond a reasonable doubt. North I, 910 F.2d at 873. If the evidence is not harmless beyond a reasonable doubt, the Court must dismiss the indictment. Id.

III. ANALYSIS

For expediency, this Court's Kastigar hearing focused solely on whether any witness presented tainted testimony to the grand jury. The Court will hold another Kastigar hearing closer to trial (or during trial) to resolve any remaining Kastigar issues related to trial witnesses. The defendants present four arguments that the government presented tainted testimony to the grand jury: first, that government witness Jeremy Ridgeway shaped his testimony [TEXT REDACTED BY THE COURT]; second, that the government presented tainted evidence from Col. David Boslego developed by the original (tainted) trial team [TEXT REDACTED BY THE COURT]; third, that the government failed to show that testimony of Iraqi witnesses summarized for the grand jury was untainted; and fourth, that the government failed to show that testimony [TEXT REDACTED BY THE COURT] was imtainted [TEXT REDACTED BY THE COURT]. The defendants have waived all other Kastigar challenges to the indictment beyond those four specifically raised in their post- Kastigar -hearing brief. Defs.' Br. 15 n.47. The defendants specifically reserve their rights to challenge any evidence under Kastigar at trial. Id. The Court will address each of defendants' arguments in turn.

A. The Court Finds that Jeremy Ridgeway Did Not Shape His Testimony [TEXT REDACTED BY THE COURT]

The defendants argue that Jeremy Ridgeway was exposed to the defendants' immunized statements and shaped his testimony before the grand jury [TEXT REDACTED BY THE COURT]. In their written immunized statements given to DSS, [TEXT REDACTED BY THE COURT].

In his immunized statement, Paul Slough stated [TEXT REDACTED BY THE COURT]

[TEXT REDACTED BY THE COURT]

Gov't App. J at 7.

In his immunized statement, Nicholas Slatten [TEXT REDACTED BY THE COURT]

[TEXT REDACTED BY THE COURT]

Gov't App. J at 11.[1]

In his immunized statement, Evan Liberty stated

[TEXT REDACTED BY THE COURT]

Gov't App. J at 15.

In his immunized statement, Dustin Heard stated [TEXT REDACTED BY THE COURT]

[TEXT REDACTED BY THE COURT]

Gov't App. J at 19-20.

Jeremy Ridgeway was a fellow member of Raven 23 and served as the front turret gunner in the fourth vehicle. Kastigar Hr'g Tr. 24, Dec. 9, 2013 (PM). Initially, Ridgeway told the DSS investigators that Raven 23 did take incoming fire. Gov't App. H at ...


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