United States v. Santiago

• Decision Date: 13 August 2013
• Docket Number: No. 13 CR 39(CM).,13 CR 39(CM).
• Citation: 966 F.Supp.2d 247
• Parties: UNITED STATES of America, v. Wilfredo SANTIAGO, Defendant.
• Court: U.S. District Court — Southern District of New York

966 F.Supp.2d 247

UNITED STATES of America,

v.Wilfredo SANTIAGO, Defendant.

No. 13 CR 39(CM).

United States District Court,

S.D. New York.

Aug. 13, 2013.

A. Damian Williams, Katherine Rachel Goldstein, U.S. Attorney's Office, New York, NY, Matthew C. Singer, United States Department of Justice, Washington, DC, for United States of America.

Andrew John Finn, Philip L. Weinstein, Federal Defenders of New York Inc., James R. Devita, Annalisa Miron, Federal Defenders of New York, Denise R. Rosenhaft, New York, NY, for Defendant.

DECISION AND ORDER DIRECTING A HEARING ON DEFENDANT'S MOTIONS TO SUPPRESS AND TO DISMISS INDICTMENT

McMAHON, District Judge:

Wilfredo Santiago is charged with one count of reckless assault in violation of 18 U.S.C. § 113(a)(6), and two counts of making false statements in violation of 18 U.S.C. § 1001(a)(2). The assault charge stems from the 2008 shooting of Michael Carpeso (at the time, a Navy Corpsman) by Santiago (at the time, a corporal in the United States Marine Corps) while the two men were serving together in the same fighting unit in Iraq. The allegedly false statements were made to a Lieutenant who was conducting a Line of Duty (“LOD”) investigation and to the Naval Criminal Investigative Service (“NCIS”) agents, to whom Defendant subsequently admitted being the shooter.

Defendant has moved to suppress the statements he made to his Lieutenant and to NCIS investigators, on the ground that such statements were obtained in violation of Article 31 of the Uniform Code of Military Justice, 10 U.S.C. § 831 (“Article 31”) and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defendant also seeks dismissal of the Indictment on the ground that the Marine Corps and the United States Department of Justice intentionally delayed prosecution to gain a tactical advantage and deprive him of “favorable rights” under Article 31. (Deft. Memo at 17).

The court finds this case troubling, and the Government's response to my inquiries has done little to mitigate my unease. Defendant was plainly amenable to court-martial for this shooting (which no one suggests was anything other than accidental). He was a serviceman stationed in a war zone, who admitted discharging a weapon that seriously injured another serviceman. At first, he denied to investigating officers that he discharged his weapon. These are offenses under the Uniform Code of Military Justice (UCMJ). Defendant's commanding officer had the absolute right to choose to prosecute—or to impose discipline short of prosecution pursuant to Article 15 of the UCMJ—or to treat the matter in another fashion.

Defendant was not court-martialed. The Government represents that the convening authority had in fact decided to prosecute, but intended that the court-martial be convened after Defendant returned to the United States, only to have the matter fall through the cracks due to “a communication breakdown within the Marine Corps.” (Govt. letter to Court dated March 8, 2013). The Assistant United States Attorney is of course not competent to testify about such matters, and I cannot accept his evidentiary statement in the absence of sworn testimony to back it up—particularly because (based on the limited information available to me at this time and a modicum of research into the military law) it appears that Santiago may not have been apprised of his Article 31 rights (including his right to remain silent) in a timely fashion. If true, both his statement to his Lieutenant and his subsequent admission to NCIS agents might well be inadmissible at a court-martial. Were that the case, the Corps—lacking an eyewitness who could testify that Santiago behaved recklessly—might have concluded that successful prosecution was impossible. In this civilian court, where Article 31 (a stringent rule whose protections kick in at a much earlier point than Miranda v. Arizona ) does not apply, any such difficulty evaporates.

How this court became involved, in 2013, in an internal military matter involving conduct committed in Iraq in 2008, is its own conundrum. The Government claims jurisdiction under the Military Extraterritorial Jurisdiction Act (MEJA), 18 U.S.C. § 3261—a statute passed to fill in a “jurisdictional gap” that left extraterritorial crimes committed principally by persons who were never subject to the UCMJ, such as civilian dependents and military contractors, unprosecutable. This court has culled through cases brought under MEJA since its passage; I have located only three cases brought under MEJA against a former serviceman, and this is the first indictment of a former serviceman for conduct known to military authorities while the defendant was amenable to court-martial. The parties have not come to grips with the issue of whether MEJA jurisdiction extends, or was intended to extend, to a serviceman whose alleged crimes were known to, and could have been prosecuted by, the Marine Corps during his term of service.

Finally, in order to decide the motion to dismiss the indictment in this case of first impression, it is imperative that the court understand why Defendant was not court-martialed (put otherwise, what that “failure of communication” really was). Due to the resulting delay, Santiago has lost the ability to call as a witness the only person who was in the room with him and Carpeso, and who saw exactly what happened. No less an authority than the United States Supreme Court has held that a due process challenge to a delayed indictment can only be decided after analysis of the reason for the delay; the record needs considerable amplification, both factual and legal, before I can consider and rule on Defendant's motion to dismiss the indictment.

Background

The Government expects the evidence to show the following:

In January 2008, Santiago was stationed at Camp Echo in Iraq. There were approximately fifteen men in Defendant's team. They were assigned to periodic rotations at a Marine outpost in Ad Diwaniyah, Iraq (the “Outpost”). Michael Carpeso, a Navy Hospital Corpsman and the only non-Marine, was the team medic.

On January 26, 2008, Carpeso and Defendant traveled to the Outpost, where team leader Captain Benjamin Drude, First Lieutenant Blair Cellon, and a local Iraqi interpreter known as “Hollywood” were located. That day, Defendant, Cellon, and Hollywood went out on a mission with local Iraqi soldiers. Carpeso stayed in the trailer and provided radio support.

Prior to leaving, Cellon ordered Carpeso to turn over his M9 and three magazines so a local Iraqi soldier could use them on the mission. When the mission was complete, Cellon instructed Defendant to return Carpeso's M9 and magazines. Defendant entered the trailer and gave the M9 and magazines to Carpeso, who was sitting on a cot across from Hollywood. Defendant, Carpeso, and Hollywood were the only people in the trailer at the time.

As Carpeso bent down to place the magazines in his pants pocket, he heard a loud noise and was hit in the face. Carpeso did not initially think he had been shot; he thought an air conditioning unit had blown-up and hit him. In fact, a bullet from Defendant's M9 had struck Carpeso's head at close range. The bullet entered Carpeso's left temple, ruptured his left eye, traversed his nasal cavity, and exited through his right cheek. The bullet then pierced the wall of the trailer, ricocheted only feet away from another Marine who was walking toward the trailer, and rested in a barrier that was meant to protect the Outpost from external attack.

Moments after Carpeso was shot, Captain Drude went to the trailer and found Carpeso crouched down on the floor. Drude asked what had happened; Santiago told Drude that Carpeso had shot himself. Drude does not recall that Carpeso contradicted Santiago at the time.

Santiago, Cellon, and Drude rushed Carpeso back to Camp Echo, where Carpeso was medivaced to a hospital for surgery. When the transport was complete, Cellon and Drude took a team, including Santiago, back to the Outpost to clean up the trailer. Cellon took photos of the trailer prior to cleaning it.

Statements to Lieutenant Wang

That same evening, Drude assigned First Lieutenant David Wang (“Wang”) to conduct a preliminary administrative inquiry in order to determine whether Carpeso was entitled to receive certain benefits. This is what is known as a “line of duty/misconduct” inquiry; its purpose is to ascertain whether the injury was received in the line of duty and whether it resulted from misconduct on the part of Carpeso, the injured party. It is not a criminal investigation.

Wang has filed a declaration under oath with this court, averring that he was told Carpeso had shot himself, and he was ordered to determine whether Carpeso had done so deliberately or accidentally. (See Declaration of David Wang (“Wang Decl.”) at ¶ 3.)

On January 27, 2008, the day after the shooting, Wang personally interviewed all persons with knowledge about the incident (Defendant, Carpeso, Drude, Cellon, Hollywood, and Carpeso's treating physician) and obtained their written statements (Wang Decl. at ¶ 5.) Before interviewing Santiago, Drude, and Cellon, Wang advised them of their Privacy Act rights. He told them that their statements were voluntary and that information they provided would not be kept confidential. All three signed a form acknowledging this warning before giving any oral or written statement. (See Wang Decl. at ¶ 6.) All three servicemen were armed during the interviews and were, according to Wang, free to leave his presence at any time. ( Id. at ¶ 7)

During his interview, Santiago told Wang that he was walking to his cot when he heard a gunshot. He turned around and saw that Carpeso was shot:

As I was moving to my rack I heard [a] gunshot. I did not hear a chambering of a round or anything like that. After I heard the round go off, I turned around saw [sic] blood coming from his face, turned around to get a pressure dressing from my...