US v. Slough

• Decision Date: 19 January 2010
• Docket Number: Criminal Action No. 08-0360 (RMU).
• Citation: 679 F. Supp.2d 55
• Parties: UNITED STATES of America v. Paul A. SLOUGH et al., Defendants.
• Court: U.S. District Court — District of Columbia

679 F.Supp.2d 55

UNITED STATES of America v. Paul A. SLOUGH et al., Defendants.

Criminal Action No. 08-0360 (RMU).

United States District Court, District of Columbia.

January 19, 2010.

Barry Jonas, Michael John Dittoe, Stephen Ponticiello, Joseph Nicholas Kaster, U.S. Department of Justice, John Crabb, Jr., Jonathan Martin Malis, Kenneth C. Kohl, U.S. Attorney's Office, Paul Edward Ahern, U.S. Department of Justice Federal Programs Branch, Washington, DC, for Plaintiff.

David Schertler, Danny C. Onorato, Veronica Renzi Jennings, Schertler & Onorato, L.L.P., Mark Joseph Hulkower, Steptoe & Johnson LLP, Steven J. McCool, Mallon & McCool, LLC, Washington, DC, for Defendants.

MEMORANDUM OPINION

Denying the Motions of Defendants Slatten and Ball to Dismiss the Indictment With Prejudice

RICARDO M. URBINA, District Judge.

I. INTRODUCTION

This matter is before the court on the motions of defendants Nicholas Slatten and Donald Ball ("the defendants") to dismiss the indictment against them with prejudice. The government obtained an indictment against the defendants and three other individuals, charging them with multiple counts of voluntary manslaughter and firearms violations based on their alleged role in a shooting that occurred in Baghdad, Iraq on September 16, 2007. On December 31, 2009, the court dismissed the indictment in its entirety because the government had failed to prove that it had not used compelled, immunized information in the course of obtaining the indictment. Although the court concluded that much of the government's evidence was tainted, it did not bar the government from seeking another indictment based solely on untainted evidence.

In the motions now before the court, defendants Slatten and Ball contend that the indictment should be dismissed against them with prejudice—meaning that the government could not attempt to re-indict them—because there is insufficient untainted evidence to support another indictment and because the prosecutors committed gross misconduct in obtaining the original indictment. Because the court finds no legal justification warranting dismissal with prejudice, the court denies the defendants' motions.

II. FACTUAL AND PROCEDURAL BACKGROUND

By way of brief background,¹ the defendants were security guards employed by Blackwater Worldwide, a private company that provided security services to U.S. employees operating in Iraq. On September 16, 2007, the defendants were part of a Blackwater convoy, operating under the call sign Raven 23, that was involved in a shooting that occurred in a traffic circle in downtown Baghdad. The shooting resulted in the death and injury of more than thirty people. On December 4, 2008, a grand jury returned a thirty-five count indictment against the defendants and three other individuals, charging them with voluntary manslaughter and firearms violations. See generally Indictment.

Beginning on October 14, 2009, the court held a three-week long Kastigar hearing, during which the government attempted to prove that it had made no impermissible use of any compelled, immunized testimony in obtaining the indictment. See Mem. Op. (Dec. 31, 2009) at 2, 677 F.Supp.2d 112, 115 (D.D.C.2009); Kastigar v. United States, 406 U.S. 441, 460, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) (holding that "once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence'") (quoting Murphy v. Waterfront Comm'n, 378 U.S. 52, 79 n. 18, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964)). On December 31, 2009, following extensive post-hearing briefing, the court dismissed the indictment in its entirety, concluding that the government had failed to prove that it had not used compelled, immunized statements in obtaining the indictment. See generally Mem. Op. (Dec. 31, 2009), 677 F.Supp.2d 112. The court did not, however, bar the government from seeking a subsequent indictment based on untainted evidence, although it did conclude that much of the evidence relied on to obtain the first indictment was tainted. See generally id.

Prior to the issuance of the court's ruling, while the parties were still preparing post-hearing briefing, the government filed a motion under Federal Rule of Criminal Procedure 48(a) for leave to dismiss the indictment against defendant Slatten without prejudice. See generally Govt's Mot. for Leave to Dismiss Indictment Against Def. Slatten Without Prejudice. In its motion, the government conceded that it had used tainted evidence to obtain the indictment against defendant Slatten.² In response, defendant Slatten filed this motion to dismiss the indictment with prejudice, in which he argues that the government lacks sufficient untainted evidence to sustain charges against him and that the government committed gross misconduct in obtaining the indictment. See generally Def. Slatten's Mot. for Dismissal With Prejudice ("Slatten Mot.").³ On the same day, defendant Ball filed a motion seeking to dismiss the indictment against him with prejudice, also citing prosecutorial misconduct. See generally Def. Ball's Mot. to Dismiss the Indictment ("Ball Mot."). The government opposes both motions. See generally Govt's Reply Brief in Support of its Mot. for Leave of Court to Dismiss Indictment Without Prejudice ("Govt's Opp'n to Slatten Mot."); Govt's Opp'n to Def. Ball's Mot. to Dismiss the Indictment Based on Allegations of Prosecutorial Misconduct ("Govt's Opp'n to Ball Mot.").

III. ANALYSIS

A. The Court Declines to Dismiss the Indictment Against Defendant Slatten With Prejudice On the Grounds That the Government Lacks a Prosecutable Case Against Him

Defendant Slatten contends that the court should dismiss the indictment against him with prejudice because the government does not have a prosecutable case against him. Slatten Mot. at 6-12. He notes that the government has conceded that the testimony of Adam Frost, a fellow Raven 23 member who testified against Slatten, was tainted because it was influenced by Frost's exposure to Slatten's compelled statements. Id. at 7. He also argues that the grand jury testimony of Matthew Murphy, another Raven 23 member, was similarly tainted.⁴ Id. at 8. Without the testimony of Frost and Murphy, Slatten argues, the government simply has no case against him. Id. at 9.

The government responds that whether or not there is enough untainted evidence to support charges against defendant Slatten is an issue that the court may not adjudicate before a grand jury has even considered whether to re-indict. Govt's Opp'n to Slatten Mot. at 4-7. It maintains that defendant Slatten is asking the court to undertake a pretrial assessment of potential evidence against him, an endeavor that would run afoul of binding precedent. Id. at 5. The government suggests that there may be sufficient untainted evidence to sustain an indictment against defendant Slatten. Id. at 6-7.

In most instances, the dismissal of an indictment does not bar the government from seeking re-indictment if, in so doing, it can cure the defect that required the dismissal of the original indictment. See, e.g., United States v. Ball, 163 U.S. 662, 672, 16 S.Ct. 1192, 41 L.Ed. 300 (1896) (holding that a defendant who procures a reversal of his conviction because of a fatally defective indictment "may be tried anew ... upon another indictment, for the same offense of which he had been convicted"); In re Nofziger, 925 F.2d 428, 435 (D.C.Cir.1991) (observing that "a defendant whose conviction is reversed on appeal for an insufficient indictment may be retried upon another indictment charging the same offense as that which was reversed") (citing Ball). Ordinarily, the dismissal of an indictment based on a Kastigar violation falls within this general rule. See United States v. Palumbo, 897 F.2d 245, 251 (7th Cir.1990) (dismissing the indictment based on the government's failure to meet its Kastigar burden and noting that the government would have to demonstrate that any subsequent indictment was based on evidence derived from legitimate independent sources); United States v. Dornau, 491 F.2d 473, 477 (2d Cir.1974) (observing that even if the district court properly dismissed the indictment based on a Kastigar violation, that would not necessarily preclude the government from attempting to re-indict the defendant by having a prosecutor who had not been exposed to the tainted evidence present independently derived evidence to a different grand jury); cf. United States v. De Diego, 511 F.2d 818, 824 (D.C.Cir. 1975) (holding that the trial court erred in dismissing an indictment with prejudice for a Kastigar violation without holding a Kastigar hearing and noting that even if the court concluded that part of the evidence was tainted, the prosecutors could have chosen to proceed to trial using only the admittedly untainted evidence). In other words, after an indictment has been dismissed on Kastigar grounds, the government may seek to cure the Kastigar problem by attempting to obtain an indictment untainted by immunized material.⁵ See Dornau, 491 F.2d at 477.

Defendant Slatten argues that the court should depart from this rule and prohibit re-indictment because without the tainted evidence, the government simply has no case against him. See Slatten Mot. at 6-12. Yet such a ruling would require the court to make a determination, prior to any proffer by the government to a grand jury, petit jury or this court, that there is insufficient untainted evidence to sustain charges against defendant Slatten. Settled precedent prohibits the court from proceeding down this speculative path. Cf. Costello v. United States, 350 U.S. 359, 363-64, 76 S.Ct. 406, 100 L.Ed. 397 (1956) (holding that the courts lack the authority to invalidate indictments based on the...