United States District Court, District of Columbia
ROYCE C. LAMBERTH, District Judge.
Before the Court is the defendants' motion  to compel the production of certain evidence. Upon consideration of the defendants' motion , the government's opposition , the defendants' reply , the applicable law, the entire record herein, and for the reasons set forth below, the Court will DENY the defendants' motion to compel.
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 (D.C. Cir. 2011) (" Slough II "); Slough II, 641 F.3d at 547-49. Thus, the Court will now only highlight the relevant facts and procedural background.
In 2007, the defendants served as diplomatic security contractors employed by Blackwater Worldwide. Slough I, 677 F.Supp.2d at 116. "The defendants were part of a Blackwater Tactical Support Team answering to the call sign Raven 23, ' whose function was to provide back-up fire support for other Blackwater personal security details operating in Baghdad [, Iraq]." Id.
"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.
"In early October 2007, [Federal Bureau of Investigation ("FBI")] investigators arrived in Baghdad to investigate the Nisur Square shooting.... FBI investigators collected physical evidence from the scene, such as shell casings, bullet fragments and weapons, and examined the vehicles allegedly fired on by the defendants, the Raven 23 vehicles and the defendants weapons." Id. Over the course of the year following the shooting incident, the government purchased "or otherwise acquire[d]" eleven of the vehicles damaged during the incident (the "Iraqi vehicles"), and secured "custody and control" over the evidence. Gov't's Opp'n at 2; see also Defs.'s Mot. at 2. The FBI proceeded to photograph and videotape the acquired vehicles. Opp'n at 2. The government states - and defendants do not deny - that it has produced "[a]ll of the FBI-generated or otherwise procured photographs and video footage" of the vehicles, which amounts to "videotaped footage of 10 of the 11... [v]ehicles..., over 2, 000 close-up photographs of the 11... [v]ehicles, including the hand measurements taken of the apparent gunfire damage to them..., as well as several videotaped recordings of some of the 11... [v]ehicles that were abandoned on the scene shortly after the shooting." Id. In a letter from the original government prosecution team (the "original trial team") to defense counsel, dated April 13, 2009, the government disclosed that Iraqi vehicles were available at government facilities in Baghdad for defense counsel's "inspection." Mot. Attach. I at 15. On October 6, 2009, the defendants filed a motion  to order the government to provide defense counsel traveling to Iraq to investigate the case with security measures equal to those provided for the prosecution and FBI investigators. On November 16, 2009, this Court, Judge Urbina presiding, denied the defendants' request for an order requiring the government to provide such security measures. United States v. Slough, 669 F.Supp.2d 51, 57-58 (D.D.C. 2009).
In 2008 and 2009, the FBI investigated the shooting incident on the ground in Baghdad, conducting a bullet trajectory analysis based on an examination of the bullet holes on the Iraqi vehicles. Opp'n at 3. The data collected from the FBI's bullet trajectory analysis provided the basis for the government's 2009 computer-generated evidence ("CGE") simulating the shooting incident in Nisur Square (the "2009 CGE") and for a comparable demonstrative simulation that may be prepared for the upcoming trial (the "2014 CGE"). Opp'n 5-8.
Following a letter sent by defense counsel to the government, dated July 1, 2009, requesting "an original usable copy and all underlying data, relating to any [CGE] that the government may seek to use at trial, " Mot. Attach. A, the Defendants filed their first motion  to compel discovery pursuant to Federal Rule of Criminal Procedure 16 ("Rule 16") on July 27, 2009. On September 14, 2009, this Court, Judge Urbina presiding, ordered the original trial team to produce the "computer-generated evidence." Opp'n Attach. D (Status Hr'g Tr. 31:13-21, 49:3-23, Sept. 14, 2009).
On December 31, 2009, this Court, Judge Urbina presiding, dismissed the indictment against the defendants. Mem. Op., ECF 217; Order, ECF 218. However, on April 22, 2011, the Circuit reversed and remanded, Slough II, 641 F.3d 544, and reissued the mandate on June 6, 2012, ECF No. 252. The case was reassigned to this Court on June 8, 2012, and the first status conference of the renewed case was held on July 25, 2012.
Defense counsel sent a letter to the government on November 19, 2013 that restated the defendants' 2009 Rule 16 request for the government's CGE, among other requests. Mot. Attach. E. On February 28, 2014, defense counsel sent another letter to the government specifically demanding that the government (a) produce the 3ds Max files associated with any CGE simulating the shooting incident in Nisur Square and (b) transport the Iraqi vehicles to the U.S. Mot. Attach. F. The defendants then moved, on April 4, 2014, to compel the same.
II. LEGAL STANDARD
Federal Rule of Criminal Procedure 16(a)(1)(E) obligates the government to "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; (ii) the government intends to use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the defendant." Since the government proffers that it "will not seek to use at trial the particular items the defendants seek to inspect or copy, " Opp'n at 9, and the items in question neither belonged to nor were obtained from the defendants, the government must permit the defendants to inspect the Iraqi vehicles and the relevant 3ds Max files only if these items (1) are "within the government's possession, custody, or control" and (2) are "material to preparing the defense." See United States v. Libby, 429 F.Supp.2d 1, 5 (D.D.C. 2006). For the purpose of Rule 16, evidence is material "as long as there is a strong indication that it will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal." United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993) (internal quotation marks and citation omitted). It matters not whether such evidence is inculpatory or exculpatory. United States v. Marshall, 132 F.3d 63, 67-68 (D.C. Cir. 1998). While the materiality standard "is not a heavy burden, " Lloyd, 992 F.2d at 351, the evidence must bear "more than ...