United States District Court, District of Columbia
For Nicholas Abram Slatten, Defendant: Thomas Gerard Connolly, LEAD ATTORNEY, Jared P. Marx, PRO HAC VICE, Anne Katherine Langer, Steven A. Fredley, HARRIS, WILTSHIRE, & GRANNIS LLP, Washington, DC USA.
For USA, Plaintiff: T. Patrick Martin, LEAD ATTORNEY, Anthony Asuncion, Christopher Robert Kavanaugh, John Crabb, Jr., U.S. ATTORNEY'S OFFICE, Washington, DC USA; David Joseph Mudd, U.S. ATTORNEY'S OFFICE, WASHINGTON, D.C. National Security Section, Washington, DC USA.
ROYCE C. LAMBERTH, United States District Judge.
Before the Court is defendant Nicholas Slatten's motion  to dismiss the indictment for vindictive prosecution. Slatten alleges that the government increased the charge against him from voluntary manslaughter, 18 U.S.C. § 1112, to murder in the first degree, 18 U.S.C. § 1111, because he successfully asserted a statute of limitations defense. Upon consideration of Slatten's motion , the government's opposition , oral argument held on May 29, 2014, the applicable law, and the entire record herein, the Court will DENY the motion to dismiss the indictment against Slatten.
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. Thus, the Court will now only highlight the relevant facts and procedural background.
Slatten was initially indicted, along with his co-defendants, on multiple counts of voluntary manslaughter and attempted manslaughter, as well as one count of using and discharging a firearm in relation to a crime of violence, on December 4, 2008. United States v. Slough, No. 08 Cr. 360 (D.D.C. Dec. 4, 2008), ECF No. 1. However, this Court, Judge Urbina presiding, granted the defendants' motion to dismiss the indictment as violating the Supreme Court's holding in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). Slough, ECF No. 218. The government appealed this Court's decision, and on April 22, 2011, the Court of Appeals for the District of Columbia Circuit reversed and remanded the case. Slough II. The Circuit's Mandate was issued on June 6, 2012. Slough, ECF No. 252.
In an attempt to avoid the pitfalls of Kastigar, the government designated a new trial team to re-prosecute the case. Gov't's Opp'n at 2-3. On October 17, 2013, following a two-year investigation, the new trial team brought a superseding indictment against Slatten and his co-defendants. Once again, a grand jury indicted the defendants on multiple counts of voluntary manslaughter and attempted manslaughter, as well as one count of using and discharging a firearm in relation to a crime of violence. Slough, ECF No. 304. Slatten alone was further indicted on one count of manslaughter for the killing of Ahmed Haithem Ahmed Al Rubia'y, the driver of a white Kia. Id.
After this Court denied Slatten's motion to dismiss the superseding indictment on statute of limitations grounds, United
States v. Slatten, 2014 WL 610970 (D.D.C. Feb. 18, 2014), the Circuit granted Slatten's petition for a writ of mandamus, In re Slatten, No. 14-3007, (D.C. Cir. Apr. 7, 2014), Doc. No. 1487269, explaining that the Circuit's 2012 Mandate " reversing and remanding the district court clearly applied only to Slatten's . . . co-defendants." Thus, since Slatten's 2009 dismissal was never actually reversed by the Circuit, the charges rendered in the October 2013 superseding indictment violated the five-year statute of limitations, 18 U.S.C. § 3282(a), and the superseding indictment as to Slatten was dismissed. Slough, (Apr. 23, 2014), ECF No. 428.
With the original charges now untimely, Slatten was subsequently indicted on one count of first-degree murder for the killing of Al-Rubia'y. United States v. Slatten, No. 14 Cr. 107 (D.D.C. May 8, 2014), ECF No. 1. There is no statute of limitations for capital offenses like murder in the first degree. 18 U.S.C. § 3281; 18 U.S.C. § 1111(b). One day after the new indictment, Mary McCord, Chief of the Criminal Division of the U.S. Attorney's Office for the District of Columbia, e-mailed defense counsel Thomas Connolly offering to " discuss options for moving forward that do not result in increased exposure for [Slatten]." Opp'n Attach. A. That same day, Connolly responded, stating, " I am happy to receive (via e-mail) and [sic] suggestions you have regarding the charges." Id. One week later, on May 16, McCord e-emailed a letter to defense counsel which contained an offer to " dismiss the charge of first-degree murder" and " proceed by information on the [time-barred] charges contained in the October 2013 superseding ...