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 ...