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United States v. Slatten

United States District Court, District of Columbia

July 30, 2019

UNITED STATES OF AMERICA
v.
NICHOLAS A. SLATTEN, Defendant.

          MEMORANDUM OPINION

          Royce C. Lamberth United States District Judge.

         I. Slatten's Motion for Judgment of Acquittal ................................................... 5

         A. The record establishes Slatten committed each element of first-degree murder. . ................................................................................ 5

         1. The record adequately establishes Slatten unlawfully killed Al-Rubia'y. . ..................................................................................... 7

         2. The record establishes Slatten acted with malice aforethought. . ................................................................................. 23 3. The record establishes Slatten acted with premeditation. . .............. 25

         B. The jury's verdict accords with the weight of the evidence. .. .................... 28

         C. Jurisdiction and venue are proper ............................................................... 29

         II. Slatten's Motion for a New Trial .................................................................. 30

         A. Matthew Murphy's testimony does not require a new trial because any error was harmless ............................................................................... 30

         1. Rules 602 and 701 permit Murphy's testimony .............................. 32

         2. XXXXX................................................................... 34

         3. The government's failure to stop Murphy from speculating about whether Slatten used a suppressor was egregious but harmless. . ....................................................................................... 39

         B. The government properly relied on Jimmy Watson's testimony. . ............. 45

         1. Johnson did not preclude Watson's testimony. . ............................. 45

         2. Any misuse of Watson's grand jury testimony was harmless. . ...... 49

         C. Neither the government nor the Court prevented Slatten from corroborating Paul Slough's statements ..................................................... 53

         D. The government did not mislead the jury regarding witness availability .................................................................................................. 56

         E. The government's re-direct examination of Sarhan Moniem did not mislead the jury. . ........................................................................................ 60

         F. No. legal error resulted from Scott Patterson's testimony ........................... 63

         1. The government's closing argument properly referenced Patterson's comparison of SR-25 and M-4 rounds. . ...................... 64

         2. Patterson properly testified about AK-47 impact marks on steel armor. . .................................................................................... 65

         G. The government properly presented evidence under Rule 404(b). . ........... 68

         1. The Court properly received evidence of Slatten's contempt for Iraqis, of his prior preemptive shootings, and of his SR-25's modified trigger mechanism. . .......................................... 69

         2. The government accurately represented this evidence during its summation ...................................................................... 71

         3. The Court properly instructed the jury about this evidence. . .......... 73

         H. Slatten's groundless witness tampering claim merits neither an evidentiary hearing nor a new trial. . .......................................................... 75

         I. The government's garbled presumption-of-innocence argument did not affect Slatten. . ...................................................................................... 77

         J. Slatten cannot cut the jury off from evidence necessary to contextualize Slatten's post-shooting conduct, Slough's post-shooting statements, and evidence suggesting mitigating circumstances. . .............. 80

         K. To the extent the Court erroneously rebuked defense counsel, it was harmless. . ................................................................................................... 83

         L. To the extent the government's summation hit below the belt, it was harmless. . ................................................................................................... 87

         M. The Court properly instructed the jury. . .................................................... 91

         N. Slatten's juror misconduct allegation does not justify an evidentiary hearing ........................................................................................................ 94

         O. The government adequately disclosed classified information. . ................. 97

         III. Conclusion ..................................................................................................... 98

         The law seeks justice when soldiers attack civilians. On a snowy night in March 1770, British soldiers occupying Boston fired on a crowd of American colonists, wounding six and killing five-one as he ran away. Though King George III initially moved to pardon the soldiers, the Crown-backed governor assured his outraged city “that a due inquiry [w]ould be made, and justice done, so far as was in [his] power.”[1] “The law shall have its course, ” he promised.[2] And so it did. Undertaking what he would later describe as “one of the best Pieces of Service I ever rendered my Country, ”[3] future president John Adams persuaded a colonial jury to find the hundreds-strong mob provoked the shooting by hurling ice and oyster shells at the soldiers, and by bludgeoning them with cudgels. Though eight soldiers were charged with murder, the jury acquitted six and convicted two others of the lesser charge of manslaughter. The latter group included the young private who fired the first shot when a colonist's thrown club knocked him to the ground.[4]

         History will not be so kind to Nicholas Slatten. One of thousands of military contractors the United States government retained to secure Baghdad in the wake of the Iraq War, Slatten was part of an armored motorcade in a busy traffic circle known as Nisour Square when he shot and killed Iraqi medical student Ahmed Haithem Ahmed Al-Rubia'y, prompting the rest of his convoy to “indiscriminate[ly]” fire machine guns and launch grenades into the crowded intersection. United States v. Slatten, 865 F.3d 767, 777-78 (D.C. Cir. 2017). Their twenty-minute barrage of “death and destruction” killed fourteen civilians and wounded seventeen others-many attempting to flee, and at least one with his hands up. Id. at 820. And unlike the British soldiers two centuries and half-a-world apart, Slatten and his teammates shot without any provocation.

         The grand jury invoked the Military Extraterritorial Jurisdiction Act, 18 U.S.C. §§ 3261- 3267 (MEJA), to indict Slatten for his role in this “human carnage.” Slatten, 865 F.3d at 824 (Rogers, J., concurring-in-part and dissenting-in-part).[5] After deliberating for eight weeks, a jury found Slatten guilty of first-degree murder. But the Court of Appeals decided this Court should have admitted another convoy member's hearsay statements under the “extremely narrow” and “truly exceptional” residual exception. Id. at 806-11 (majority opinion) (internal quotation marks omitted). So although acknowledging “[w]hat happened in Nisour Square defie[d] civilized description, ” the panel vacated his conviction. See Id. at 818-20.

         The government retried Slatten in summer 2018. After seven weeks of trial and five weeks of deliberations, the jury deadlocked and the Court declared a mistrial. But after a third trial that fall, another jury returned a guilty verdict.

         So all told, two different juries-twenty-four different people-considered weeks of evidence and unanimously concluded Slatten committed first-degree murder. Nevertheless, he now renews his motion for acquittal, adjudging the evidence insufficient and the verdict against the weight of the evidence. He also moves for a new trial, citing dozens of purported trial errors.

         His motions raise many issues: some hard; others easy; a few already decided either by this Court or by the Court of Appeals. And in the end, none justify relief. Accordingly, the Court will deny Slatten's motion for acquittal and his motion for a new trial.

         I. Slatten's Motion for Judgment of Acquittal

         Slatten starts with the “daunting” task of “overturning a jury verdict for insufficient evidence.” United States v. Teffera, 985 F.2d 1082, 1085 (D.C. Cir. 1993). But his attempt misses the mark, since the record establishes Slatten committed each element of first-degree murder beyond a reasonable doubt. Next, Slatten asks the Court to sit as a “thirteenth juror” and nullify the verdict as a “serious miscarriage of justice.” Mot. J. Acquittal 1, 25, ECF No. 1217. But Slatten fails to undermine the evidence proving he fired the initial-and fatal-shots. Finally, Slatten challenges this Court's jurisdiction and venue in the District of Columbia. But the D.C. Circuit's prior opinion forecloses his arguments. So the Court will deny his motion.

         A. The record establishes Slatten committed each element of first-degree murder.

         Slatten argues the government failed to present evidence sufficient to convict him. Yet a defendant “challenging the sufficiency of the evidence on which he was convicted faces an uphill struggle.” United States v. Salamanca, 900 F.2d 629, 635 (D.C. Cir. 1993). After all, “[a]lthough a jury ‘may not base a verdict on mere speculation,' it may permissibly draw a vast range of inferences from evidence.” Id. (quoting United States v. Long, 905 F.2d 1572, 1576 (D.C. Cir. 1990)). Put differently, “the government's evidence need not exclude all reasonable hypotheses of innocence or lead inexorably to the conclusion that the defendant is guilty.” Teffera, 985 F.2d at 1085.

         A court cannot second-guess the jury's discretion if the government introduced enough admissible evidence-direct or circumstantial-on each element of the charged offense so that “any rational trier of fact could have found” the element “beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (second emphasis added); see United States v. Foster, 783 F.2d 1087, 1088 (D.C. Cir. 1986) (noting courts must “draw[] no distinction between direct and circumstantial evidence, and ‘giv[e] full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact'” when assessing sufficiency challenges (quoting United States v. Davis, 562 F.2d 681, 683 (D.C. Cir. 1977))); see also Woodby v. INS, 385 U.S. 276, 282 (1966) (noting a reviewing “court in a criminal case ordinarily does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt” (emphasis added)).

         First-degree murder, 18 U.S.C. § 1111, has three elements: First, an unlawful killing. A killing is unlawful absent a justification like self-defense. Second, malice aforethought. Malice aforethought means the defendant either intended to kill or consciously disregarded an extreme risk of death or serious bodily injury. See United States v. Williams, 836 F.3d 1, 10 (D.C. Cir. 2016). Malice aforethought can be negated by a mitigating circumstance like a mistaken apprehension of the need to use self-defense. Third, premeditation. Premeditation requires the defendant to have deliberated-at least for a few seconds-before killing the victim. See Hemphill v. United States, 402 F.2d 187, 189 (D.C. Cir. 1968). At trial, both malice aforethought and premeditation can be proven through “[e]vidence of a similar act, ” even if “neither criminal nor unlawful, ” as long as the act “show[s] a pattern of operation that would suggest intent.” United States v. Long, 328 F.3d 655, 661 (D.C. Cir. 2003) (internal quotation marks omitted).

         Slatten rehashes the trial record in search of reasonable doubt, focusing his efforts on the first element: whether he killed Al-Rubia'y. Although arguments about conflicting evidence technically sound in “evidentiary weight, not evidentiary sufficiency, ” Tibbs v. Florida, 457 U.S. 31, 46 (1982), Slatten cherry-picks favorable pieces of evidence that, he argues, inevitably raise reasonable doubt and render the verdict legally insufficient. But as this Section explains, they do not. (And as Section I.B. explains, they don't create a weight problem, either.) At bottom, because a reasonable fact-finder could conclude beyond a reasonable doubt that Slatten committed each element of first-degree murder, his sufficiency challenge fails.

         1. The record adequately establishes Slatten unlawfully killed Al-Rubia'y.

         Sufficient evidence shows Slatten killed Al-Rubia'y while laying prone inside his armored vehicle and aiming his semi-automatic SR-25 sniper rifle through a six-inch porthole. Once Slatten's four-vehicle convoy arrived in Nisour Square, all other cars stopped-including the white Kia driven by Al-Rubia'y with his mother in the passenger seat.[6] Several loud bangs rang out from Slatten's vehicle, [7] and Al-Rubia'y's mother screamed.[8] Rushing to the Kia, multiple witnesses-including two Iraqi police officers-saw Al-Rubia'y had been shot in the head through the windshield.[9] Two convoy members identify Slatten as the initial shooter: Jimmy Watson, [10] the team leader stationed inside Slatten's vehicle, and Matthew Murphy, [11] a turret gunner atop the vehicle in front of Slatten's. Only Slatten had an SR-25[12] equipped with a high-powered scope.[13] This equipment-especially given his shielded environment-uniquely enabled him to aim a precision shot, relative to his teammates exposed to the midday sun and lacking the same scope.[14] Once those initial shots were fired, Al-Rubia'y slumped into his mother's lap, and the Kia began slowly rolling forward.[15] As it did, the rest of the convoy hailed bullets and grenades until the Kia exploded.[16]

         Sufficient evidence further shows Slatten did not act in self-defense.[17] To the extent other convoy members perceived the Kia as a threat, it was only after it began rolling towards the convoy[18]-which multiple witnesses say didn't happen until after Slatten shot Al-Rubia'y.[19] No. other witness came close to corroborating Slatten's self-serving contention that Al-Rubia'y was taking aim at the convoy.[20] Although State Department investigators recovered spent shell casings from Iraqi weapons around the southwest quadrant of the traffic circle four days after the incident, the casings were far away from the Kia (in the southeast quadrant), and investigators could not determine if the shells resulted from shooting during the incident, the days following the incident, or the weeks and months preceding the incident.[21]

         As Slatten points out, this evidence did not go uncontroverted over the six-week trial. Yet these evidentiary conflicts fail to undermine the record's legal sufficiency. For example, Iraqi police officers on the scene initially blamed the convoy members manning mounted turret guns for firing the first shots[22]-an unsurprising inference, since the turret gunners were the only convoy members visible from the ground, and since both turret gunners acknowledge training their guns on the Kia seconds later as it began rolling forward.[23] But the D.C. Circuit already rejected Slatten's argument that this daylight between the government's theory and the police officers' accounts causes a sufficiency issue: The officers' testimony “does not disprove the government's theory of Slatten's guilt. It simply creates a dispute of fact, and it was the jury's responsibility to weigh the officer[s'] conflicting testimony against that of Watson to resolve the dispute.” Slatten, 865 F.3d at 797 (citation and internal quotation marks omitted).

         Slatten's other arguments fare no better. True enough, one turret gunner doesn't recall hearing Slatten fire first.[24] But that gunner-and everyone else-agrees gunfire erupted as the Kia rolled forward, by which point Al-Rubia'y was already dead.[25] Nor is it inconsistent with Slatten's guilt that investigators found no SR-25 shell casings in the traffic circle after the incident[26]-Slatten shot from inside a vehicle, so any expended shell casings would have landed there.[27] And it is perfectly consistent that shell casings matched to the turret gunners' weapons riddled the traffic circle[28]-all agree the turret gunners indiscriminately fired their weapons into the crowd.[29] So too that the only bullet fragments investigators could identify from the Kia traced back to the turret gunners' weapons, [30] for two reasons. First, the government doesn't claim Slatten targeted the Kia generally-the government theorizes Slatten fired a precision shot into Al-Rubia'y's head. Second, everyone admits the turret gunners eventually bombarded the Kia, and the investigators acknowledged they could not determine if the recovered fragments came from the beginning or the end of the shooting.[31] And in any event, the fact “[t]hat a different jury might have resolved [an evidentiary] conflict differently is not tantamount to showing that no reasonable fact-finder could conclude that Slatten shot first.” Slatten, 865 F.3d at 797.

         Slatten similarly makes much of Paul Slough's-the turret gunner atop Slatten's vehicle-claim he shot the Kia first, and even more of the D.C. Circuit's conclusion “he was likely telling the truth.” Id. at 808. Yet properly contextualized, Slough's statement actually supports Slatten's guilt. After all, Slough only admits shooting the Kia as it moved towards the convoy.[32] But the balance of evidence confirms the Kia began rolling toward the convoy only after Al-Rubia'y was shot.[33] So even if Slough honestly believed he shot the Kia first, he may have been mistaken. And a mistaken belief does not create a sufficiency problem.

         Moreover, Slatten emphasizes (and characterizes as a “confession”) Slough's related statement-expressed in four of his five interviews with State Department investigators in the eight days after the shooting[34]-that he killed the Kia's driver. But Slough's accounts fall short of exonerating Slatten, since multiple chinks erode their evidentiary force. The Court highlights just three: First, facing a mountain of evidence suggesting the Kia either sat stationary or rolled forward through bumper-to-bumper traffic at walking speed, Slough's remarkable contention that the Kia careened towards the convoy at forty miles-per-hour[35] beggars belief. Second, Slough's statements openly contradict each other. During his second interview, he described “notic[ing]” the Kia “driving directly” at the convoy “as [the] motorcade pulled into the intersection.”[36] But in his fourth interview, he said he “monitored his sector for 10-15 seconds without incident” before seeing the Kia.[37] In his third interview, he claimed he did not launch grenades at the Kia.[38] But in his second and fifth interviews, he admitted he did.[39] Third, Slough's statement seems concocted to hoodwink investigators into believing the traffic circle was teeming with insurgents attacking the convoy from concealed positions.[40] Slough remains the only team member to offer that after-the-fact explanation for slaughtering fourteen Iraqi civilians. All in all, the jury reasonably disregarded his “confession.”[41]

         Slatten again misrepresents the record by baldly claiming “it was physically impossible for Mr. Slatten to shoot the driver while laying prone on the bench” inside his vehicle. Mot. J. Acquittal 11 (emphasis removed). Slatten bases this conclusion on the fact that the special agent who conducted the government's demonstrative shooting of an SR-25 through the vehicle's porthole used additional padding from the Federal Bureau of Investigation's (FBI) shooting range to support his chest and steady the rifle.[42] But the agent never testified he couldn't make the shot without supplemental pads, and the record does not reflect whether Slatten is physically bigger or smaller than the agent, or whether the agent was in exactly the same position as Slatten, or whether Slatten and the agent were wearing the same gear, or whether Slatten was a more or less capable marksman. Instead, Slatten extrapolates from the agent's testimony about the approximate view Slatten would have seen looking through his SR-25's scope to conjure a triple- bank-shot inference that because the agent used padding unavailable to Slatten to position the gun through the porthole, Slatten could not have shot his SR-25 through the porthole while laying prone on the bench. Yet this inference proves too much-by Slatten's own logic, not only would it be impossible for him to have shot the Kia, it would be impossible for him to have ever shot anything out of the porthole with his SR-25. But that cannot be true: as the convoy's designated defensive marksman, Slatten routinely surveilled targets through the vehicle's portholes.[43] And the inference overlooks evidence that Slatten looked out of his vehicle's portholes when he shot the Kia and called other convoy members' attention to its forward movement.[44] So Slatten's sham inference fails to render the verdict legally insufficient.

         Slatten further disguises conjecture as evidence by claiming “it [wa]s not physically possible to orient a rifle out of the front porthole . . . from the bench” at the angle necessary to aim at the Kia. Mot. J. Acquittal 11 (emphasis removed). This conclusion rests on two premises: First, that the Kia lay twenty to forty degrees to Slatten's left as he looked through the porthole. And second, that the turret gunner's position inside the vehicle-standing immediately to Slatten's right on a raised platform-impeded Slatten's ability to aim his SR-25 at that angle:

         (Image Omitted)

         Both premises are flawed. The first-the angle between Slatten's vehicle and the Kia- comes from one of Slatten's lawyers, who used a protractor and a post-shooting aerial photograph of Nisour Square to approximate the locations of Slatten's vehicle and of the Kia based partly on wreckage and stains left in the road, and partly on other witnesses' crude sketches:[45]

         (Image Omitted)

         But when they showed this hand-drawn analysis to the FBI agent who conducted the demonstrative shootings, the agent balked: "We do not know the exact angle. ... I have no idea about the number, no."[46] When defense counsel marshalled evidence about the Kia's location, the agent repeatedly reminded them: "[B]ut I don't know what the angle of [Slatten's vehicle] was .... That would change things."[47] And though defense counsel characterized his in-court estimation as "conservative, "[48] it remains an estimation based solely on a stain in the road and rough shapes other witnesses drew on a courtroom touchscreen. Whatever probative value that estimation has, it doesn't necessarily foil the jury's verdict.[49]

         The second premise cannot be verified. Maybe the turret gunner's position impeded Slatten's ability to aim his gun to the left. Or maybe it didn't. Maybe the turret gunner turned out of the way. Maybe he leaned back, or to the side. Maybe he stepped onto another surface inside the vehicle. Maybe Slatten pushed him. As the government acknowledged, "[w]e don't know."[50]But the record does establish-at least-that Slatten watched the Kia as it rolled forward, [51] and-at most-that Slatten could and did shoot its driver.[52] So although a reasonable juror might surmise the turret gunner's position would generally prevent Slatten from aiming the SR-25 too far to the left, a reasonable juror could legitimately infer that-in the moment-it did not. The turret gunner's relative position in the vehicle fails to inevitably cast enough doubt to undermine the jury's verdict.

         2. The record establishes Slatten acted with malice aforethought.

         Sufficient evidence shows Slatten intended to kill Al-Rubia'y. Immediately after the shooting, Slatten gloated he “popped [a man's] grape” and watched him “slump[] forward.”[53]Other witnesses characterized Slatten's reaction to the shooting as “defiant” and “chest-beating, ”[54] and recalled him high-fiving and back-slapping other team members.[55] In private, Slatten mused something was wrong with him since he did not feel remorseful.[56]

         Those comments echoed Slatten's history of animus toward Iraqi civilians. Slatten once declared “[Iraqi] lives are not worth anything, they are not even humans, they are animals.”[57] A convoy member recounted Slatten firing without provocation on multiple instances, and openly encouraging teammates to shoot innocuous targets.[58] Thanks to these efforts, Slatten boasted he was “well on his way” to “getting payback for 9/11, ”[59] a statement evincing Slatten's determination to kill Iraqis in a twisted hunt for revenge.

         3. The record establishes Slatten acted with premeditation.

         Much of the evidence establishing Slatten acted with malice aforethought-in particular, Slatten's anti-Iraqi animus and his history of firing without provocation-doubly suggests he acted with premeditation. See generally Old Chief v. United States, 519 U.S. 172, 187 (1997) (“[A] piece of evidence may address any number of separate elements, striking hard just because it shows so much at once; the account of a shooting that establishes capacity and causation may tell just as much about the triggerman's motive and intent.”). In addition, the government introduced circumstantial evidence suggesting Slatten modified-or allowed someone else to modify-his gun before the shooting, changing it from a two-stage trigger (more accurate, but takes longer to fire) to a hair trigger (allowing for quicker and easier firing).[60] Because the modification had to occur before the incident, [61] it supports the conclusion Slatten acted with premeditation.

         * * *

         In the end, concluding the government presented sufficient evidence to support Slatten's conviction should be unremarkable. After all, the Court of Appeals already held the same thing after Slatten's first trial, which featured a largely identical record. See Slatten, 865 F.3d at 795-97. The panel unanimously accepted the government's theory that “Slatten was laying across a bench in the back of the third [convoy] vehicle, aiming his weapon south out of a driver's side porthole” and that “while traffic was at a standstill . . . Slatten fired two shots from a sniper rifle into the Kia windshield, killing Al-Rubia'y instantly and setting into motion the day's horrific events.” Id. at 795.[62]

         Why does Slatten think this iteration should be different? Slough's statements? As noted, the jury reasonably disregarded them.

         His new argument that he physically couldn't shoot at the Kia while laying prone on the vehicle's bench and aiming through the porthole? As explained, the jury had no obligation to tag-along with his logical leaps.

         The government's decision to not call Adam Frost, another convoy member whose testimony at the first trial that he heard two pops, turned, and saw a white vehicle rolling forward meshed with Watson's recollection of two shots? No. matter: numerous other witnesses in this trial testified to hearing several single shots, and even if they did not agree on the precise number-Murphy testified he heard “two loud hollow popping sounds”;[63] a different convoy member described “a couple to a few”;[64] one Iraqi policeman in Nisour Square remembered two to ten;[65] another policeman recollected three to four;[66] and two Iraqi civilians independently recalled one[67]-their consistent accounts sufficiently echo Watson's account.

         The discrepancy between Slatten bragging about watching a man slump forward after he “popped his grape, ” and one police officer's testimony that Al-Rubia'y fell backwards?[68] As the D.C. Circuit said, “to the extent [there is a] conflict[] . . ., the jury was entitled to disregard such a minor discrepancy. Given the lack of evidence Slatten fired any other shots that day, the jury could reasonably understand his ‘popped his grape' comment to describe Al-Rubia'y, who had been shot in the middle of his forehead.” Slatten, 865 F.3d at 797. So too for Slatten's claim that he shot a man taking aim at the convoy: “The jury could reasonably find that Slatten's . . . claim . . . was self-serving and therefore not trustworthy.” Id. at 796.

         In the end, this trial-like its predecessor-included enough evidence for the jury to conclude beyond a reasonable doubt Slatten committed each element of first-degree murder: that he unlawfully killed Al-Rubia'y; that he acted with malice aforethought; and that he acted with premeditation. In other words, the record sufficiently supports the verdict.

         B. The jury's verdict accords with the weight of the evidence.

         With that background, the verdict's sound evidentiary footing should be obvious. Of course, a court may grant a new trial “despite the abstract sufficiency of the evidence to sustain the verdict” if it concludes “the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred.” Tibbs, 457 U.S. at 38 n.11 (internal quotation marks omitted) (quoting United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980)). But this record does not sufficiently militate against Slatten's guilt.[69]

         Put simply, Slatten fails to blunt the government's case. First, he points to Slough's “confessions”-but as subsection I.A.1 explains-those deserve particularly little weight. Next, he trots out the witnesses who testified the turret gunners fired first, but their recollections are even flimsier. After all, they're testifying about a few-second sequence from over a decade ago, in which either the turret gunners or Slatten fired first, but they could only see the turret gunners. So their inference the turret gunners fired first (one witness admitted it was only an assumption) proves little. What's more, Slatten fumbles the significance of M-4 shells recovered from Nisour Square after the shooting, since they hardly shed light on who fired first, or on who shot Al-Rubia'y. Finally, despite swiping at Murphy and Watson's testimony, Slatten does nothing to undermine the broader evidentiary constellation supporting his guilt. Consequently, the jury's verdict accords with the weight of the evidence.

         C. Jurisdiction and venue are proper.

         Slatten's renewed objections to this Court's jurisdiction and to venue in the District of Columbia fail from the start.

         First, jurisdiction. MEJA empowers the government to prosecute civilians who commit crimes while employed abroad by the United States to support its military mission. As relevant here, the government must prove three elements to activate MEJA's jurisdictional grant: First, that the charged conduct would be punishable by more than one-year imprisonment if it occurred within the United States' special maritime and territorial jurisdiction. Second, that a contractor or subcontractor of a federal agency employed Slatten. Third, that Slatten's employment related to supporting the Defense Department's mission. See Slatten, 865 F.3d at 781 (citing 18 U.S.C. §§ 3261, 3267). In its prior opinion, the D.C. Circuit held evidence showing Slatten provided security for State Department diplomats in Baghdad satisfied the third prong. See Id. at 781-82. And though Slatten quibbles with that approach, he concedes the government followed it here. See Mot. J. Acquittal 23-24. So unless and until the en banc Court of Appeals or Supreme Court decides otherwise, this Court properly exercised jurisdiction.

         Second, venue. As the D.C. Circuit noted, “If an offense is committed outside the United States and involves charges against multiple people, Congress has declared venue to be proper in the district where any of the joint offenders are first arrested.” Slatten, 865 F.3d at 786 (citing 18 U.S.C. § 3238). To determine where someone was arrested, this Circuit looks to “where the defendant is first restrained of his liberty in connection with the offense charged.” Id. (emphasis in original) (internal quotation marks omitted) (quoting United States v. Wharton, 320 F.3d 526, 537 (5th Cir. 2003)). A joint offender includes “anyone who has joined others in participating in the same act or transaction constituting a crime or crimes.” Id. at 787-88. On this basis, the D.C. Circuit held Jeremy Ridgeway (one of the turret gunners who fired at the Kia) was “clear[ly] . . . a joint offender” because by being “in Nisur Square as a member of the . . . convoy and . . . fir[ing] at civilians, ” he “participated in the ‘same series of acts or transactions' that gave rise to the prosecution.” Id. at 788 (quoting Fed. R. Crim. P. 8(b)). And since “Ridgeway was first arrested in the District of Columbia, ” the D.C. Circuit already concluded his “arrest established venue here.” Id. at 787; see also Id. at 789 n.5.

         II. Slatten's Motion for a New Trial

         After mining the six-week-long trial record for thirty-five distinct issues, Slatten's second motion demands (at most) a new trial or (at least) an evidentiary hearing. Each issue will be discussed in turn. But briefly: although some were errors, none merit relief. See Fed. R. Crim. P. 52(a). So the Court will deny his motion.

         A. Matthew Murphy's testimony does not require a new trial because any error was harmless.

         As subsection I.A.1 explains, convoy member Matthew Murphy identified Slatten as the initial shooter. Murphy testified the first significant sounds he heard in Nisour Square were “two loud hollow popping sounds, like a firecracker in a 55-gallon drum” coming “near” his location, “sort of behind” him and “off to the left”-exactly where Slatten's vehicle was.[70] Murphy- wearing ear protection-couldn't precisely identify the sounds, but he knew they weren't pen flares, or shots from an M-4, or shots from a turret gunner's M-240, or shots from a Glock pistol, or grenades from an M-203.[71] With those sources ruled out, Murphy concluded “the only sound that could emanate from within our team that makes sense” was Slatten's SR-25: “Nobody else has a weapon or device that sounds like that in the entire team, and that sound came from within our team, from the area relative to me where [Slatten's] vehicle was.”[72] That said, Murphy admitted the hollow pops sounded different from other times he heard Slatten fire his SR-25.[73]But Murphy knew Slatten fired his SR-25 at some point (Slatten told him so[74]), and Murphy thought of two reasons why it might have sounded differently: maybe Slatten used his team-issued suppressor, or maybe Slatten's gun sounded differently because it was fired inside a vehicle.[75] Murphy reiterated this account a few days later on cross-examination (describing “two loud muffled popping noises” that “w[ere] clearly not [] pen flare[s]” nor “a 240 . . . M4, et cetera, ” leading him to conclude after the fact through process of elimination they were an SR-25, and that “[t]he rational presumption is that it was [Slatten shooting] if somebody was shooting an SR-25 since he was the only one that had one”[76]) and on re-direct (recounting “two loud pops” from “more or less” Slatten's vehicle that “didn't sound like any of the typical weapons” he “was used to hearing” so “presumably it was [Slatten] shooting from inside his vehicle” since “[t]hat would distort the sound and make it sound different”[77]).

         Slatten raises three concerns about this testimony. The first characterizes Murphy's account as impermissibly speculative. The second XXXXX requires discussion under seal. The third upbraids prosecutors for flouting this Court's order directing them to tell Murphy not to theorize whether Slatten used a suppressor, a detail the government previously promised not to elicit. But consistent with its prior rulings on the first point, the Court holds Murphy's testimony was admissible under Federal Rules of Evidence 602 and 701. Accord ECF Nos. 858, 1072. And on the second issue, XXXXX the Court finds no XXXXX problem. Accord ECF Nos. 858, 1076. Finally, though a breathtaking lapse in professional judgment, the government's failure to follow this Court's order was harmless. So in the end, nothing about Murphy's testimony requires a new trial.

         1. Rules 602 and 701 permit Murphy's testimony.

         Slatten argues Murphy's attribution of the initial pops to Slatten's SR-25 improperly rested on Murphy's inference that an SR-25 fired inside a vehicle sounds different from an SR-25 fired outside a vehicle. Slatten claims that Murphy wasn't qualified to make the inference, and that it is factually incorrect.

         But Rule 602 invites anyone to testify about anything they have personal knowledge about, and Rule 701 allows them to rationally extrapolate from this knowledge to opine on matters “helpful to . . . determining a fact in issue” as long as the opinion does not rely on “scientific, technical, or otherwise specialized knowledge.” Together, the rules “ensure that any opinions offered by a lay witness are based on personal, ‘first-hand knowledge or observation,' and ‘a process of reasoning familiar in everyday life'” while still permitting witnesses to offer conclusions “‘that cannot be described factually . . . apart from inferences.'” United States v. Williams, 827 F.3d 1134, 1155-56 (D.C. Cir. 2016) (citations omitted) (quoting Fed.R.Evid. 701 adv. comm. note (2000 amend.)). If a witness identifies the objective basis for their opinion, “thus ensur[ing] that the jury has the information it needs to conduct an independent assessment” of it, the Rules allow it. United States v. Hampton, 718 F.3d 978, 981 (D.C. Cir. 2013).

         That's what Murphy did here. To help the jury determine who fired first, Murphy suggested it was Slatten, an opinion founded on sounds he personally perceived in Nisour Square compared to sounds he personally perceived previously when convoy members fired their weapons, and on his personal perception of the sound's direction. Courts routinely hold witnesses do not use scientific or technical knowledge when distinguishing between familiar sounds. See, e.g., United States v. Mendiola, 707 F.3d 735, 741 (7th Cir. 2013); United States v. Bush, 405 F.3d 909, 916 (10th Cir. 2005); see also Williams Enters. v. Sherman R. Smoot Co., 938 F.2d 230, 234 (D.C. Cir. 1991) (“As long as [the lay witness] had personal knowledge of the facts, he was entitled to draw conclusions and inferences from those facts-regardless of whether he applied any specialized expertise.”). Now, Murphy's distinction isn't airtight-he can't precisely identify the sound he perceived in Nisour Square. But he revealed to the jury he identified Slatten's SR-25 through everyday reasoning and the common-sense recognition that the same noise sounds differently when it passes through a solid barrier from a confined space to the open air. Importantly, Murphy never hid the ball: he was transparent about his reasoning and made clear he had never heard an SR-25 fired from within a vehicle.[78] Besides, testimony identifying shooters is rarely airtight, yet courts commonly allow lay witnesses to infer identity from the sound and direction of the. See United States v. Pier son, 503 F.2d 173, 176-77 (D.C. Cir. 1974); see also Reed v. City of Modesto, No. 11-1083, 2015 WL 1889048, at *8 (E.D. Cal. Apr. 24, 2015) (collecting cases); Gov't's Mem. Opp'n. 7-8 (collecting cases), ECF No. 830. And importantly, Slatten had a full and fan opportunity to cross-examine Murphy on the basis for his opinion, empowering the jury to independently assess Murphy's premises and conclusion, and the extent to which either evolved over time. Rules 602 and 701 do not preclude Murphy's testimony.

         Moreover, Slatten oversells audio recordings comparing an SR-25 fried inside an armored vehicle to an SR-25 fried in the open ah. Slatten claims the "recordings sound nearly identical," thus "confirm[ing] that [Murphy's] opinion is impermissibly speculative." Mot. New Trial 8-9, ECF No. 1219. But the Court has noted the recordings do not capture what a "listener in Mr. Miuphy's position at the scene of the shooting" would have heard. ECF No. 1072 at 2. So at least in this regard, Slatten is the one speculating. Murphy's testimony-rationally stemming from perceptions backed by his personal knowledge-stands in stark relief.

         2. XXXXX [79]

         Neither judicial estoppel nor law-of-the-case doctrine precludes that conclusion. First, judicial estoppel: an equitable rule "prohibiting parties from deliberately changing positions according to the exigencies of the moment." New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (internal quotation marks omitted) (quoting United States v. McCaskey, 9 F.3d 368, 378 (5th Cir. 1993)). Under this rule, a court may block a party from shifting its position if the positions clearly contradict, if the party successfully persuaded one court to adopt its first position so that flip-flopping creates the perception a court was misled, or if the party would derive an unfair advantage from the change. Id. at 750-51. But even if judicial estoppel can bind the government a federal criminal prosecution, [80] it does not here. XXXXX [81] XXXXX So in light of the Maine factors, and consistent with its prior rulings, see ECF No. 766, the Court declines to apply judicial estoppel.

         Second, law-of-the-case: the principle that “the same issue presented a second time in the same case in the same court should lead to the same result.” LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (en banc). XXXXX But law-of-the-case does not ossify erroneous decisions vacated by a higher court. See Agostini v. Felton, 521 U.S. 203, 236 (1997). XXXXX See also ECF No. 766.

         3. The government's failure to stop Murphy from speculating about whether Slatten used a suppressor was egregious but harmless.

         A long time ago, this Court registered its “deep[] disappoint[ment] that any litigant would fail to obey orders . . . and then conceal and cover-up that disobedience with outright false statements.” Cobell v. Babbitt, 37 F.Supp.2d 6, 38 (D.D.C. 1999). “When that litigant is the federal government, the misconduct is even more troubling.” Id. And when that litigant heads the Criminal Division of our nation's largest U.S. Attorney's office, it is more troubling yet. He is lucky his misstep was harmless.

         Some background: During the second trial, Murphy wondered aloud whether Slatten's SR-25 sounded differently not only because Slatten fired from inside the vehicle, but also because he used a suppressor.[82] This testimony didn't totally lack an evidentiary foundation-the government can prove Slatten was issued a suppressor. See Gov't's Ex. 9865. But the government had never presented this information to the jury, partly because numerous witnesses (including Murphy himself) admitted they don't know if Slatten used the suppressor during the shooting. See Def.'s Mot. Lim. exs. C-F, ECF Nos. 956-3-956-6. Before the third trial, Slatten moved to exclude any testimony or evidence regarding a suppressor under Rule 403, arguing “the prejudicial nature of this evidence dwarfs any minimal probative value” by “invit[ing] jurors to associate Mr. Slatten with the criminal hit men and assassins whom they already associate with suppressors.” Id. at 5, ECF No. 956. In response, the government swore off “elicit[ing] testimony or otherwise seek[ing] to introduce evidence about [Slatten's] suppressor.” Gov't's Resp., ECF No. 999. That strategy surprised the Court, not least because Rule 403 “tilts . . . toward the admission of evidence.” United States v. Moore, 732 F.2d 983, 989 (D.C. Cir. 1984). But regardless, the Court took the government's suggestion and denied Slatten's motion as moot. See ECF No. 1046. The Court included the following proviso: “Based on [the government's] representation, the Court expects the government to instruct its witnesses not to testify regarding a suppressor and to properly redact any documents related to the subject.” Id.

         The government ignored that order.[83] To lay a foundation for Murphy's process-of-elimination reasoning, the prosecutor asked, “What weapon systems were you familiar with at the time?”[84] Murphy responded, “I was familiar with the 203, the M4, the 249, the 240, and unsuppressed SR-25.”[85] A few minutes later, defense counsel asked to approach: “I just am concerned that [Murphy] used the word ‘unsuppressed' before, and I want to make sure we protect against that.”[86] Defense counsel asked the prosecutor: “Has [Murphy] been instructed that he's not supposed to talk about suppressed versus unsuppressed?”[87] In response, the prosecutor promised “to try to lead as much as I can. . . . Consistent with his testimony last time, when he uses the word ‘suppressed,' he means being inside the vehicle at the time. So I think I can lead through this, but if we're anywhere close, we could just take a break.”[88]

         But Murphy could not be led. Seconds after the prosecutor resumed direct examination, the following exchange ensured:

Q: And you had never heard Mr. Slatten's sniper rifle being fired while Mr. Slatten was inside a vehicle?
A: I don't believe so.
Q: And when you had previously said “suppressed, ” is that what you're referring to? In other words, you had not heard his weapon being fired within a vehicle?
A: That's not what I meant, but I had not heard that, no.
Q: You had not heard that? Okay. But the bottom line is, you had not heard that weapon being fired from inside the vehicle?
A: No, I had not.
Q: At some point later on, did you conclude that those first two hollow pops that you heard at the very beginning of the shooting incident were attributable to Mr. Slatten firing that weapon within the command vehicle?
A: I did.
Q: How did you arrive at that conclusion?
A: Because it's the only sound that could emanate from within our team that makes sense.
Q: What do you mean by that?
A: Because nobody else has a weapon like that, has anything that would produce that noise. And I know that he had a suppressor for the rifle. And to me, it sounded-suppressors aren't like a Hollywood depiction where it's-[89]

         Defense counsel interjected and cut off the testimony.[90] Immediately thereafter, the prosecutor rushed to clean-up the spill:

Q: Let me be clear in my questions. You did not see Mr. Slatten with a suppressor that day?
A: No.
Q: Okay. And whether he had been issued one or not, you're not saying you saw him with a suppressor on the rifle that day?
A: Nope, I'm certainly not.
Q: But-and you had not heard him fire his weapon inside of the command vehicle or inside another vehicle?
A: No.
Q: And you're not entirely sure what that would have sounded like?
A: That's correct.
Q: But nonetheless, you attributed those first two hollow pops to him?
A: Yes.[91]

         Before testimony resumed on the next day of trial, [92] the Court read the following instruction- drafted by defense counsel, see ECF No. 1121-11-to the jury:

On direct examination on Wednesday, the government elicited testimony from Mr. Murphy about the sounds he claims to have heard in Nisour Square on September 16th, 2007. The government does not contend, and there is no evidence, that Mr. Slatten had or used a suppressor in Nisour Square during the September 16, 2007 incident at issue in this case. Mr. Murphy's testimony regarding a suppressor has been stricken from the record, and you must disregard it in its entirety.[93]

         Today, the Court concludes these curative measures adequately avoided prejudicing Slatten.[94] Putting aside the prosecutor's extraordinary conduct, Murphy only said that he knew Slatten had a suppressor-defense counsel interrupted before he could even explain what a suppressor was or how it would affect an SR-25's sound. The very next testimony the jury heard was Murphy forcefully clarifying he did not see Slatten use a suppressor in Nisour Square. And the Court unequivocally instructed the jury to disregard Murphy's statement about a suppressor in its entirety, an instruction courts “generally presume that a jury will follow . . . absent ‘an overwhelming probability that the jury will be unable to.'” United States v. Crews, 856 F.3d 91, 97 (D.C. Cir. 2017) (quoting Greer v. Miller, 483 U.S. 756, 766 n.8 (1987)).

         No probability exists here. Most importantly, Murphy's mention of a suppressor was fleeting, interrupted, and incomplete. And not for nothing, Murphy used the term “suppressor, ” not the more common (and more charged) synonym “silencer.” To the extent either word conjures images of “assassins and hit men, ” Mot. New Trial 16, it seems far more likely to be “silencer” (what Murphy didn't say) than “suppressor” (what he did say). Indeed, many people do not even realize a suppressor and a silencer are the same thing. See, e.g., Are firearms with a silencer ‘quiet'?, Wash. Post (March 20, 2017), https://www.washingtonpost.com/news/fact-checker/wp/2017/03/20/are-firearms-with-a-silencer-quiet/?utmterm=.f977c4f52d1f.

         Moreover, Murphy's slip was harmless. For one, Murphy's suppressor theory was neither his only nor his modal justification for attributing the initial sounds to Slatten's SR-25-he repeatedly and more consistently posited Slatten's SR-25 sounded differently since Slatten shot from inside the vehicle. And the government's case certainly holds up without Murphy's suppressor theory, since a jury previously convicted Slatten at a trial where Murphy did not mention a suppressor. See also Slatten, 865 F.3d at 795-97 (ratifying the record's sufficiency). What's more-setting aside the government's disregard for a court order-the Court remains unsure whether Murphy's testimony was actually improper: Slatten's possession of a suppressor (which the government can unquestionably prove) provides an alternative explanation for the distinctive “hollow popping” noises multiple witnesses reported, and for why eyewitnesses on the ground did not notice Slatten shooting, both making it at least slightly more likely Slatten fired the initial shots.[95]

         Nor is this case like United States v. Eccleston, a case Slatten cites for the proposition that courts should grant mistrials where inadmissible testimony directly incriminates a defendant in an otherwise “slight and circumstantial” prosecution since the “danger of prejudice . . . [i]s so great because of the weakness of the government's case.” 960 F.2d 955, 960-61 (D.C. Cir. 1992). In Eccleston, only the inadmissible testimony directly incriminated the defendant. See Id. at 961. But here, another witness also identified Slatten as the initial shooter. See supra note 10 and accompanying text.

         The bottom line is that the prosecutor's mistake-though profound-was not prejudicial. Even still, the Court reminds the prosecution team that “[t]he institutions of our federal government cannot continue to exist if they cannot be trusted.” Cobell, 37 F.Supp.2d at 38. Here, the government's gross negligence risked countless amounts of time, taxpayer resources, and international goodwill, all because of an unfortunate and easily avoidable situation. It cannot happen again.

         B. The government properly relied on Jimmy Watson's testimony.

         As subsection I.A.1 noted, Jimmy Watson cannot recall everything that happened in Nisour Square. So as in the previous two trials, the government spent much of Watson's time on the stand impeaching him with his 2013 grand jury testimony, which provides details about the Nisour Square incident he no longer remembers with clarity.

         Slatten identifies two problems with this approach. First, Slatten argues the government should not have been able to call Watson just to impeach him, citing United States v. Johnson, 802 F.2d 1459 (D.C. Cir. 1986). But Johnson held no such thing-and even if it did, Slatten's argument remains procedurally improper and substantively unpersuasive. Second, Slatten argues the government and the Court improperly bolstered Watson's grand jury testimony. But any misuse was harmless. So the government properly relied on Jimmy Watson's testimony.

         1. Johnson did not preclude Watson's testimony.

         In 1975, Rule 607 abandoned the long-standing prohibition on a litigant impeaching its own evidence to instead allow “[a]ny party, including the party that called the witness, [to] attack the witness's credibility.” Despite this expansive language, Slatten argues Johnson narrowed Rule 607 to forbid litigants from calling hostile witnesses merely to impeach them with prior statements. That legal argument fails for several reasons.

         First and foremost, Slatten waived it. As he acknowledges, the government has always planned to impeach Watson with his grand jury testimony-even during Slatten's first trial. Slatten appealed his conviction from that trial, but did not raise this issue. And “a party waives a ‘contention that could have been but was not raised on [a] prior appeal.'” Laffey v. Nw. Airlines, Inc., 740 F.2d 1071, 1089 (D.C. Cir. 1984) (alteration in original) (quoting Munoz v. Cty. of Imperial, 667 F.2d 811, 817 (9th Cir. 1982)). In other words, a “legal decision made at one stage of litigation, unchallenged in a subsequent appeal when the opportunity to do so existed, [governs] future stages of the same litigation, and the parties are deemed to have waived the right to challenge that decision at a later time.” United States v. Thomas, 572 F.3d 945, 949 (D.C. Cir. 2009) (emphasis in original) (internal quotation marks omitted) (quoting Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C. Cir. 1995)); see also Yakus v. United States, 321 U.S. 414, 444 (1944) (holding waiver rules apply to all cases and all rights).

         Yet even if Slatten could dodge waiver, he would run into the mandate rule, which forbids lower “courts from reconsidering issues that have already been decided in the same case.” Indep. Petrol. Ass'n of Am. v. Babbitt, 235 F.3d 588, 597 (D.C. Cir. 2001) (quoting LaShawn A., 87 F.3d at 1393 n.3). True enough, the doctrine does not apply to issues not raised and thus not decided. See Yesudian ex rel. United States v. Howard Univ., 270 F.3d 969, 972 (D.C. Cir. 2001). But it does apply to decisions the appellate court “necessar[il]y impli[ed].”. Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 251 (D.C. Cir. 1987). And in his earlier appeal, Slatten raised-and the Court of Appeals rejected-a sufficiency challenge. Because that record prominently featured Watson's grand jury testimony impeaching his live testimony, the Circuit sub silentio sanctioned the approach.

         And even if Slatten could hurdle law-of-the-case, his argument lands on shaky ground. Slatten stakes his case on the following passage from Johnson:

Impeachment evidence is to be used solely for the purpose of impeachment, and it may not be employed as mere subterfuge to get before the jury evidence not otherwise admissible. This type of bootstrapping is impermissible, and it is an abuse of [Rule 613], in a criminal case, for the prosecution to call a witness that it knows will not give it useful evidence, just so it can introduce hearsay evidence against the defendant.

802 F.2d at 1466 (internal quotation marks, alterations, and citations omitted). This passage suffers from two obvious flaws. First, it principally relies on a Fourth Circuit case predating Rule 607's revision. See Id. (citing United States v. Morlang, 531 F.2d 183, 190 (4th Cir. 1975)); see also United States v. DeLillo, 620 F.2d 939, 946-947 (2d Cir. 1980) (disavowing Morlang accordingly). Second-and more importantly-it's dicta: since “defense counsel[] fail[ed] to object to introduction of the statement as impermissible bootstrapping, ” the Johnson court was “constrained to hold” the defendant “waive[d]” the issue. Johnson, 802 F.2d at 1466. And in the thirty-three years since Johnson, the D.C. Circuit has never (not once) acknowledged this dictum-let alone adopted it-in any opinion, published or otherwise. If anything, the Circuit suggested the contrary in United States v. Milton, 8 F.3d 39, 46-47 (D.C. Cir. 1993), by affirming the district court's decision to admit grand jury testimony under Rule 801(d) after a witness “testified that she could remember almost nothing about the [incident in question] or what she told the grand jury.” So Johnson does not bind this Court.

         What's more, Johnson had very different facts. In Johnson, the witness's live testimony incriminated himself and exculpated the defendant; the government impeached this testimony with the witness's prior statement fingering the defendant. 802 F.2d at 1463. In other words, the Johnson witness's prior statement directly contradicted his live testimony. But here, Watson just said he couldn't remember what happened[96]-which, as Milton points out, doesn't necessarily contradict his grand jury testimony.[97] So to the extent Johnson prevents the government from calling a witness it knows will directly contradict a prior statement, it wouldn't apply to Watson.

         That's all the more true because no one honestly knew what Watson would say on the stand. Anyone who saw Watson testify-in any of the trials-understands his proclivity to blurt out wildly irrelevant and sometimes shocking testimony.[98] His sui generis combination of physical, mental, and emotional injuries tragically renders his testimony uniquely unpredictable, a circumstance absent from Johnson. In effect, the Court does not believe anyone who claims to have known with certainty exactly what Watson would say during the third trial.

         That said, the government did two things before the third trial betraying an expectation Watson would again be unable to remember what he saw or said: First, the government moved to pre-admit Watson's grand jury testimony. See ECF No. 1096. Second, the government's opening statement acknowledged Watson “may” say things inconsistent with his grand jury testimony.[99] Yet that expectation stems from the government's experience trying the same case with the same witnesses and the same evidence a few weeks earlier; less than four months separated Watson's second and third appearances. Because of this quirk, Slatten tries to slash Watson from the case. But that would be an exceedingly odd rule: any time a government witness surprised prosecutors with pro-defendant testimony on the stand, the government would be unable to recall him in a subsequent retrial.

         Indeed, the closer one looks at Johnson, the more distinctions appear. In Johnson, the witness testified in the government's rebuttal case, and neither the witness's live testimony nor his prior statement necessarily bore on the defendant's guilt; the government called the witness only to rebut a defense witness's alibi. See Johnson, 802 F.2d at 1463. So to the extent Johnson signifies anything, it's that the government can't go through the charade of calling a witness it knows will be unfavorable if it's only seeking to impeach someone else. It's quite a leap from there to chisel out a broad exception to “the familiar, standard rule that the prosecution is entitled to prove its case by evidence of its own choice.”[100] Old Chief, 519 U.S. at 186-87. The Court sides with that rule and with Rule 607's plain text to conclude Johnson did not preclude Watson's testimony.

         2. Any misuse of Watson's grand jury testimony was harmless.

         Slatten complains about three boosts to Watson's grand jury testimony, blaming one on the Court and two on the government. But the Court did not err, and even if the government did, it was harmless.

         First, Slatten argues the Court improperly admitted an excerpted transcript of Watson's grand jury testimony as a physical exhibit, instead of just reading it into the record. But Slatten points to no binding authority limiting the Court's discretion as to how to receive evidence under Rule 801(d), [101] especially where-as here-the Court sees good reason to let the jury access the transcripts: Watson gave the sworn testimony much closer to the shooting, it was widely used at trial, and Slatten could contextualize it on cross-examination. Moreover, the Court went out of its way to discourage the jury from giving the transcripts improper weight:

Certain prior testimony excerpts have been admitted as evidence and exhibits in this case. You may consider a witness' prior sworn testimony, taken under oath, as evidence similar to in-court testimony. You should take into account that the excerpts of prior testimony for which you have a transcript may lack context because they're only excerpts. You must not give prior testimony for which you have a transcript more weight or credit than the testimony you heard presented during trial. Subject to these considerations, you may give this evidence such weight as in your judgment it's otherwise fairly entitled to receive.[102]

         Slatten never explains that instruction's insufficiency, especially given the presumption “that jurors, conscious of the gravity of their task, attend closely the particular language of the trial court's instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them.” Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985).

         All the same, the Sixth Circuit “has held that a district court abuses its discretion when it allows for grand jury testimony to be presented as an exhibit to the jury, ” since it “creates a potential for double exposure to selected testimony that may improperly influence a jury.” United States v. LaVictor, 848 F.3d 428, 453 (6th Cir. 2017) (citing United States v. Smith, 419 F.3d 521, 527 (6th Cir. 2005)). But that Circuit caveats that “not all decisions to admit transcript testimony amount to an abuse of discretion” and that “any prejudice from having grand jury testimony admitted can be ameliorated by watching the witness testify.” Id. Thus the Court's decision here wouldn't constitute error in the Sixth Circuit either, “because the jury had the benefit of seeing [Watson] testify, ” Slatten “had a full opportunity to cross-examine [him] and place [his] grand-jury testimony in context, ” and Watson's grand jury testimony was not the only evidence incriminating Slatten. Id.

         Second, Slatten claims the government improperly called attention to the fact that the undersigned approved his 2013 immunity order pursuant to his duties as the Chief Judge of this District. Troublingly, the government promised the defense to redact any reference to the undersigned from Watson's immunity order, but with Watson on the stand, the government went ahead and told the jury anyways:

Q: . . . And then in March-March 8th, 2013, you get immunity?
A: Yes.
Q: Do you remember that? Okay. So-and actually a federal district judge, this judge right here, Judge Lamberth, signs an order saying you are compelled to testify in front of the grand jury. And that is March 8th 2013?
A: Yes sir.[103]

         A best prosecutorial practice? No. But it wasn't prejudicial error either, since the Court issued the following curative instruction later that day:

Before lunch, the government elicited testimony from Mr. Watson that I issued an immunity order compelling Mr. Watson to testify before the grand jury. You are instructed that a judge's role in granting immunity and ordering testimony before a grand jury is purely ministerial, and the Court must issue the order upon a request from the prosecution. The decision as to whether or when to grant immunity to a witness rests exclusively with the prosecution. The fact that I signed Mr. Watson's immunity order when I was chief judge of the court should play no role in your consideration.[104]

See United States v. Burroughs, 935 F.2d 292, 295 (D.C. Cir. 1991) (“Unless there is some good reason for finding otherwise, and here there is none, trial courts and appellate courts proceed on the basis that the jury does comply [with curative instructions].”).[105]

         Third, Slatten objects to the government's closing-argument exhortation to credit Watson's grand jury testimony more than his live testimony because he was neither confronted by Slatten nor subjected to cross-examination before the grand jury:

Many of these men got up there and talked to you about how important it is in their minds to serve with other individuals in the Armed Forces, and in the trenches, that bond, that camaraderie is strong. How difficult would that be to get in open court like this and say something that might hurt a brother in arms? In the grand jury, though, your obligation is to tell the truth, and there is no one facing you down, and that truth may come a little bit easier in the grand jury.[106]

         Regardless of whether this statement amounts to legal error, [107] the Court does not think the Department of Justice should be in the business of shading a defendant's confrontation right, our legal system's “principal means of undermining the credibility of a witness whose testimony is false or inaccurate, ” United States v. Salerno, 505 U.S. 317, 328 (1992) (Stevens, J., dissenting), and “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” 5 J. Wigmore, Evidence § 1367 (Chadbourn rev. 1974). That said, “[t]he touchstone of a prosecutorial misconduct claim is prejudice: the court must consider ‘the probable effect the prosecutor's [statements] would have had on the jury's ability to judge the evidence fairly.'” United States v. Thomas, 114 F.3d 228, 246 (D.C. Cir. 1997) (alteration in original) (quoting United States v. Young, 470 U.S. 1, 12 (1985)). “To determine whether improper remarks by the prosecutor have substantially prejudiced a defendant's trial, the court looks to ‘the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the improper remarks.'” Id. (quoting United States v. Williams-Davis, 90 F.3d 490, 507 (D.C. Cir. 1996)). Here, the Court's instructions corrected the prosecutor's fleeting misstatement with an instruction directing jurors to “consider a witness' prior sworn testimony, taken under oath, as evidence similar to in-court testimony” but to “not give [it] more weight or credit than the testimony you heard presented during trial. . . . [Y]ou may give this evidence such weight in your judgment as it's otherwise fairly entitled to receive.”[108] Slatten does not explain-and the Court does not see-how this instruction failed to cure any error.

         C. Neither the government nor the Court prevented Slatten from corroborating Paul Slough's statements.

         On appeal from his first conviction, Slatten persuaded the D.C. Circuit to allow Slough's statements to State Department investigators under Rule 807, prompting the panel to vacate Slatten's conviction and remand for retrial. Now, Slatten claims the government and the Court frustrated his attempts to corroborate those statements. But the three issues he raises do not justify a new trial.

         The first concerns the government's cross-examination of Lisa Lopez, a State Department employee who interviewed Slough after the shooting. Slatten called Lopez to lay a foundation for admitting Slough's statements. On cross-examination, the government threw a ball from left field:

Q: Were you personally aware that at least one member of the team wanted to prosecute Mr. Slough for making false statements to the Department of State?
A: No.
Q: You were not aware of that?
A: No.[109]

         The government recognized this question (at least) impermissibly invited Lopez to opine on another witness's credibility. See Gov't's Mem. Opp'n 24, ECF No. 1259. So did the Court, promptly instructing the jury that “[t]he government suggested that a State Department agent thought Mr. Slough should be prosecuted for making false statements . . . . That suggestion was improper. You should disregard that suggestion in its entirety.”[110] Thus the question now is whether this instruction staved off any prejudice. The Court thinks it did, “given the brevity of the offending testimony and the clarity of [the Court's] instruction[].” United States v. McLendon, 378 F.3d 1109, 1114 (D.C. Cir. 2004).

         The second issue challenges the government's cross-examination of Brandon Giroux, an FBI ballistics expert Slatten called as an expert witness to trace a shell recovered from Nisour Square to Slough's rifle.[111] Giroux's role was limited-he neither personally retrieved the shell from Nisour Square nor personally seized Slough's firearm, testing both later in the FBI laboratory. So the government briefly cross-examined him on this relative lack of personal knowledge:

Q: . . . Do you know for a fact whether that [round] was recovered from Nisour Square? A: No, I do not.
Q: Do you know where in Nisour Square it was recovered? A: No, I do not.
* * *
Q: And similarly, whether [the rifle you examined] is the weapon that Mr. Slough actually had or used on September 16th, 2007, you have no knowledge of that?
A: That's correct.
Q: And sir, for all of these cartridge casings . . . you similarly do not know when those cartridge casings were fired?
A: That's correct.
* * *
Q: And you don't know, frankly where they were collected from?
A: That's correct.[112]

         This is garden-variety cross-examination, not legal error.

         The third issue revisits the Court's decision to exclude hearsay testimony indicating Slough felt remorse for his role in the incident. Specifically, Slatten argues the Court should have admitted this testimony as evidence of Slough's state of mind under Rule 803(3), or as a prior consistent statement under Rules 806 and 801. But neither exception to the hearsay rule applies.

         Although Rule 803(3) permits “a statement of the declarant's then existing state of mind, ” it excludes “a statement of memory or belief to prove the fact remembered or believed.” In other words, it does not permit the declarant to relate what caused the state of mind. So although testimony limited just to Slough's remorse may have been admissible under Rule 803(3), the testimony Slatten planned to elicit-“Did Mr. Slough approach you ...


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