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United States v. Slough

United States District Court, District of Columbia

November 10, 2015



ROYCE C. LAMBERTH United States District Judge

Before the Court are defendants' motions [765 (08-360), 659 (14-107)] for a new trial under Rule 33 of the Federal Rules of Criminal Procedure. Upon consideration of the defendants' and the government's filings, the entire record in this case, and the applicable law, defendants' motions are DENIED.


As this case has been summarized previously, see United States v. Slough, 677 F.Supp.2d 112, 116-29 (D.D.C. 2009) {"Slough F), vacated, 641 F.3d 544, 555 (D.C. Cir. 2011) (Slough II), the Court will offer only a brief outline of its factual and procedural background. Defendants were security contractors for Blackwater Worldwide ("Blackwater") in 2007, during which time Blackwater provided security services for U.S. government personnel in Iraq. Slough I, 611 F.Supp. 2d. at 116. Defendants belonged to a Blackwater Tactical Support team-"Raven 23"- that supported other Blackwater security teams in Baghdad. Id. Raven 23 comprised four vehicles, with defendants Liberty, Slough, and Slatten stationed in the third vehicle as "the driver, turret gunner, and designated defensive marksman (or sniper) respectively, " and defendant Heard as "the rear turret gunner in the fourth vehicle." Id. On September 16, 2007, defendants were called upon to establish an evacuation route for a U.S. diplomat who was being evacuated to the Green Zone; to that end, they "took up positions in Nisur Square, a traffic circle located just outside the [Green] Zone in downtown Baghdad" and attempted to stop traffic. Slough II, 641 F.3d at 547; Slough I, 667 F.Supp. 2d. at 116. In doing so, members of Raven 23 shot and killed fourteen Iraqi civilians and wounded twenty others. Slough I, 667 F.Supp. 2d. at 116. The government then brought this case against defendants.

At trial, the government presented the following theory: Slatten provoked the ensuing massacre by firing the first shots. Trial Tr. 8/27/14 a.m. 48-49. At least one of his bullets pierced the windshield of a white Kia sedan and struck its driver, Ahmed Haithem Ahmed Al Rubia'y, in the head, killing him instantly. See id.; see also Trial Tr. 8/27/14 a.m. 8-9. With Al Rubia'y slain, the Kia began to roll forward slowly. See Trial Tr. 8/27/14 a.m. 48--49. Two traffic policeman posted at the traffic circle-Sarhan Deab Abdull Monem and AH Ghalaf Salman Mansur Al-Hamidi-approached the Kia to try to help its occupants (Al-Rubia'y and his mother, Mahassin Mohssen Kadhum Al-Khazali), with one or both of the officers gesturing to the convoy gunners to stop shooting. See Trial Tr. 8/27/14 a.m. 50; see also Trial Tr. 7/2/14 a.m. 94. Defendants ignored their pleas and continued to assail the Kia while Monem and Al-Hamidi fled, eventually destroying the car and killing Al-Khazali. See Trial Tr. 7/2/14 a.m. 97; see also Trial Tr. 8/27/14 a.m. 10. Defendants then continued to fire upon the crowded square. See Trial Tr. 8/27/14 a.m.11-18.

Monem testified for the government in support of this version of events. On April 8, 2015, the government submitted Monem's Victim Impact Statement ("VIS") to defendants and this Court. Mem. Opp'n. 3, ECF No. 773 (08-360). The VIS appears to materially contradict a crucial aspect of Monem's trial testimony. On April 10, 2015, the government telephoned Monem to interview him, with the aid of a translator, about his VIS. Mem. Opp'n 10, ECF No. 773 (08-360).

The only records of that interview appear to be handwritten notes taken by FBI Special Agent Marc Daniel Hess, see Def.'s Reply Ex. A, ECF No. 667 (14-107), which were later typed into an official FBI record, see Mem. Opp'n. Ex. P, ECF No. 773 (08-360). For ease of reference, the relevant text of Monem's VIS (which the government translated from Monem's handwritten statement) is as follows:

When I saw my friends get killed and it was a foggy day, I was scared and remained in my traffic cabin unable to move nor think. I saw so much that day, I saw a mother weeping for her son, the doctor, because she felt he was going to be killed and she too was unable to move. Her son wanted to get her out of the damned car and I was not able to move to help him and I just remained looking. The mother wept and hugged her son as if to say to him no, don't go, we will be killed. The son tells her to get out of the car, that we will be killed and she hugs him and begs him not to go, and the son was killed by you and the mother was weeping confused and she was killed too. And the damned car exploded and those inside it were turned to ashes and I was watching without making a move. And on that day I learnt that life is zero and I was going to be killed without a doubt. I hid in that cabin and until this day I still hear the cries of the mother and her son. And until now I hear myself telling me that I am a coward and I am the cause of what happened. Why I did not help them, because I was helpless ....

Mem. Opp'n Ex. A, ECF 773 (08-360). The FBI's notes on the government's April 10, 2015 phone call with Monem discussing the VIS are also reproduced below:

When asked to recount his actions involving the white Kia on September 16, 2007, [Monem] provided the following information:
[Monem] approached the white Kia. When he got to the car he saw a man in the driver's seat with blood on his face and a hole in his forehead. The man was being held in a woman's arms. The woman was in the front passenger seat; The driver of the white Kia died immediately after being shot; [Monem] did not, at any time, hear the driver talking or see him moving after he was shot; [Monem] tried to help the woman get out of the car. Her window was rolled up so he signaled to her to unlock the car door; [Monem]'s colleague [Al-Hamidi] was at the driver's side door of the vehicle.
[Monem] said he understood the victim impact statement to be an "expression" and not an investigative or factual statement. He explained that when he was writing his victim impact statement he was imagining what it would be like to be the driver of the vehicle.
Mem. Opp'n Ex. P, ECF 773 (08-360).


A defendant who demands a new trial because of newly discovered evidence must generally satisfy five requirements:

1) the evidence must have been discovered since the trial; (2) the party seeking the new trial must show diligence in the attempt to procure the newly discovered evidence; (3) the evidence relied on must not be merely cumulative or impeaching; (4) it must be material to the issues involved; and (5) [it must be] of such nature that in a new trial it would probably produce an acquittal.

United States v. Johnson, 519 F.3d 478, 487 (D.C. Cir. 2008) (citing Thompson v. United States, 188 F.2d 652 (D.C. Cir. 1951)). Under Napue v. People of State of III, 360 U.S. 264 (1959), however, due process is violated (and a new trial required) when the prosecution offers or solicits, and fails to timely correct, actually false material evidence or testimony at trial that it knew or should have known was false. See United States v. Iverson, 637 F.2d 799, 801 (D.C. Cir. 1980) {Iverson I), modified, 648 F.2d 737 (D.C. Cir. 1981) {Iverson II); see also Jackson v. Brown, 513 F.3d 1057, 1071-72 (9th Cir. 2008). Though Iverson /held that a prosecutor had to correct the record "when a principal prosecution witness falsely claims that no promises of leniency were made, " 637 F.2d at 801, the court did subsequently modify its decision-which dealt with a prosecutor who failed to alert the trial court and the jury to the truth when a cooperating witness falsely testified that she had not yet been sentenced-to clarify that, "absent unusual circumstances, the right of the defendant to disclosure by the prosecutor is deemed waived if defense counsel with actual knowledge of the plea agreement or sentencing status information chooses not to present such information to the jury." See Iverson II, 648 F.2d at 738-39; but see United States v. LaPage, 231 F.3d 488, 492 (9th Cir. 2000) ("But the government's duty to correct perjury by its witnesses is not discharged merely because defense counsel knows, and the jury may figure out, that the testimony is false.").

Some circuits have held that a witness's recantation of trial testimony cannot be the sole basis for a new trial if that witness has repudiated it, because that repudiated recantation would not itself be substantive evidence and could be used only to impeach the witness at a new trial. See, e.g, Awon v. United States, 308 F.3d 133, 141 (1st Cir. 2002); United States v. Diaz, 190 F.3d 1247, 1255 (11th Cir. 1999); Lindseyv. United States, 368 F.2d 633, 636 (9th Cir. 1966); but see United States v. Lespier, 266 F.App'x 5, 7 (2d Cir. 2008) ("[A] district court should give little evidentiary weight to a recantation affidavit that has since been repudiated."). Even where this is the rule, however, exceptions are made when the impeachment evidence is powerful enough to nullify the effect of an essential incriminating witness. See, e.g., United States v. Davis, 960 F.2d 820, 825 (9th Cir. 1992); see also Gordon v. United States, 3 ...

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