U.S. v. Slough

• Decision Date: 19 July 2011
• Docket Number: No. 10–3006.,10–3006.
• Citation: 641 F.3d 544,395 U.S.App.D.C. 178
• Parties: UNITED STATES of America, Appellantv.Paul Alvin SLOUGH, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

641 F.3d 544

395 U.S.App.D.C. 178

UNITED STATES of America, Appellant

v.Paul Alvin SLOUGH, et al., Appellees.

No. 10–3006.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 8, 2011.Decided April 22, 2011.Rehearing En Banc Denied July 19, 2011.

Appeal from the United States District Court for the District of Columbia (No. 1:08–cr–00360).Demetra Lambros, Attorney, U.S. Department of Justice, argued the cause for appellant. With her on the briefs were Lanny A. Breuer, Assistant Attorney General, and Joseph N. Kaster, Trial Attorney. Roy W. McLeese III, Assistant U.S. Attorney, entered an appearance.Bruce C. Bishop argued the cause for appellees. With him on the brief were Mark J. Hulkower, Brian M. Heberlig, Thomas G. Connolly, Christopher J. Wright, Timothy J. Simeone, William Coffield, Steven J. McCool, David Schertler, Danny C. Onorato and Lisa Hertzer Schertler.Before: GINSBURG and GARLAND, Circuit Judges, and WILLIAMS, Senior Circuit Judge.Opinion for the court filed by Senior Circuit Judge WILLIAMS.WILLIAMS, Senior Circuit Judge:

The district court dismissed an indictment against the five defendants on the ground that the evidence presented to the grand jury, and indeed the decision to prosecute two of the defendants, were tainted by statements of the defendants that for purposes of this appeal are conceded to have been compelled within the meaning of Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). We reverse and remand as to four of the defendants; the government itself moved to dismiss the indictment against Nicholas Slatten, without prejudice to possible later re-indictment, and the district court's grant of the motion has taken Slatten out of the case for now. United States v. Slough, 677 F.Supp.2d 112, 115–116 & n. 2 (D.D.C.2009).

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On September 16, 2007 a car bomb exploded near the Izdihar Compound in Baghdad, where a U.S. diplomat was conferring with Iraqi officials. American security officials ordered a team from Blackwater Worldwide to evacuate the diplomat to the Green Zone. See U.S. Department of State, U.S. Embassy Baghdad, (Draft) Use of Deadly Force Incident at Nisur Square—Baghdad: Preliminary Report and Findings, Sept. 23, 2007, at 2. Another Blackwater team, Raven 23, headed out of the Green Zone to block traffic at the Nisur Square traffic circle and thus assure the diplomat's safe passage back. (In fact, because a checkpoint had fortuitously been closed, the escort convoy never passed through Nisur Square.) Id. Raven 23 positioned its four vehicles on the south side of the Square and its members started gesturing to stop traffic. Shots were fired; the dispute over who fired at whom and when is the substantive crux of the criminal case underlying this appeal. When the shooting stopped, 14 Iraqi civilians were dead and 20 wounded. Slough, 677 F.Supp.2d at 116.

Within hours of the incident, the Department of State's Diplomatic Security Service (“DSS”) conducted brief interviews with each of the 19 members of Raven 23. Id. at 117. Among the 19 were the five defendants in this case, Paul Slough, Nicholas Slatten, Evan Liberty, Dustin Heard and Donald Ball. [Redacted.] ^*

On September 18, 2007, two days after the incident, all Raven 23 members submitted sworn written statements to the State Department, using a form that included a guarantee that the statement and the information or evidence derived therefrom would not be used in a criminal proceeding against the signer. Slough, 677 F.Supp.2d at 118–19. The government conceded before the district court that under Garrity the September 18 statements must be treated as having been compelled; as to the September 16 statements, the district court so found and the government does not appeal that finding. ¹

The incident almost immediately became the focus of media attention in both the United States and Iraq. Some of the early articles, published within a few days of the incident, reported that the Blackwater team was attacked, and purported to quote from and otherwise rely on a State Department “incident report,” presumably prepared at least in part on the basis of the interviews and statements. See, e.g., Adam Zagorin & Brian Bennett, Iraq Limits Blackwater's Operations, Time, Sep. 17, 2007, http:// www. time. com/ time/ world/ article/ 0, 8599, 1662586, 00. html; Sabrina Tavernise, U.S. Contractor Banned by Iraq Over Shootings, N.Y. Times, Sept. 18, 2007, at A1. These very same articles, however, also cite Blackwater representatives as making the same assertion ( [Redacted.] ). See Tavernise. The articles also cite Iraqi officials' statements that Blackwater guards used excessive force. Joshua Partlow & Walter Pincus, Iraq Bans Security Contractor, Wash. Post,, Sept. 18, 2007, at A1; Sinan Salaheddin, Iraq Plans Review of Foreign Security Firm Status, Assoc. Press, Sept. 18, 2007.

The September 18 written statements were also leaked to the media. On September 28, 2007, ABC News reported that it had obtained all 19 of the September 18 sworn statements and quoted from some of them. See The Blotter, First Images of Controversial Blackwater Incident, ABC News, Sept. 28, 2007, http:// blogs. abcnews. com/ theblotter/ 2007/ 09/ exclusivefirst. html. Defendant Slough's statement was later posted online in its entirety, [Redacted.], and news reports by ABC News and the New York Times, among others, reproduced parts of defendants' and other team members' September 18 statements. [Redacted.]

The witnesses that the government relied on most heavily before the grand jury—Raven 23 members Adam Frost, Matthew Murphy and Mark Mealy—admitted to having read these news reports, and it soon became apparent that parts of their testimony may have been tainted by their exposure. In an effort to safeguard its case, the government decided to present a redacted case to a second grand jury, which returned an indictment against the defendants, finding that there was probable cause to believe that defendants committed (and attempted to commit) voluntary manslaughter and weapons violations. Slough, 677 F.Supp.2d at 127–28.

The defendants moved to dismiss the indictment as tainted. As required by Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), the district court held a hearing to determine the existence and extent of any taint. It found that exposure to defendants' statements had tainted much of the evidence presented to the second grand jury—the testimony of security guards Frost and Murphy and Iraqi witnesses and victims, Frost's written journal, the factual proffer and debriefing of Jeremy Ridgeway (a Raven 23 member who had been indicted and had pleaded guilty), and physical evidence recovered by DSS from the scene of the crime—and had also tainted the prosecutors' decision to indict defendants Heard and Ball. The district court thus dismissed the indictment as to all five defendants. The government now appeals. We review the district court's findings that the government used a defendant's immunized statement for clear error, United States v. North, 910 F.2d 843, 855 (D.C.Cir.1990) (“ North I ”), a standard that is met for any finding that was “induced by an erroneous view of the law,” United States v. Kilroy, 27 F.3d 679, 687 (D.C.Cir.1994) (internal quotations omitted).

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The Fifth Amendment bars the government from compelling self-incriminating testimony from individuals. If the government nevertheless decides to require an individual to testify, it must offer him immunity that puts him in “substantially the same position as if [he] had claimed his privilege.” See Kastigar, 406 U.S. at 458–59, 92 S.Ct. 1653. In a later prosecution of the individual, the government cannot use his immunized testimony itself or any evidence that was tainted—substantively derived, “shaped, altered, or affected,” North I, 910 F.2d at 863—by exposure to the immunized testimony. Nor can the government use it to develop investigatory leads, to focus an investigation on a witness, Kastigar, 406 U.S. at 460, 92 S.Ct. 1653, or to motivate another witness to give incriminating testimony. United States v. Rinaldi, 808 F.2d 1579, 1584 n. 7 (D.C.Cir.1987). In North itself, for example, after North gave his immunized testimony former National Security Advisor Robert C. McFarlane had requested a second hearing before special investigating committees “in order to respond” thereto, and we found error in the district court's having admitted McFarlane's trial testimony without having determined “what use—if any” he had made of North's. North I, 910 F.2d at 864. More generally, evidentiary content (potentially including a witness's whole testimony, as where his very availability was derived from or caused by immunized statements) will share the constitutional ban on use of the immunized statements. Kilroy, 27 F.3d at 687. Below we deal explicitly with situations where evidence's content or availability is derived from both immunized statements and independent factors.

In building a case against a defendant who received use immunity for his statements, the government must prove, by a preponderance of the evidence, that “all of the evidence it proposes to use was derived from legitimate independent sources.” North I, 910 F.2d at 854 (quoting Kastigar, 406 U.S. at 461–62, 92 S.Ct. 1653, internal quotations omitted). As the district court observed, proof that a witness was “never exposed to immunized testimony” or that the investigators memorialized (or “canned”) a witness's testimony before exposure, Slough, 677 F.Supp.2d at 132 (citing North I, 910 F.2d at 872), would obviously satisfy the requirement. But a failure by the government to make either showing does not end the district court's inquiry. North I requires the court to parse the evidence “witness-by-witness” and “if necessary, ... line-by-line and item-by-item,” 910 F.2d at 872, and to “separate the wheat of the witnesses' unspoiled...