United States v. Slatten, No. 15-3078

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: Per Curiam
• Citation: 865 F.3d 767
• Parties: UNITED STATES of America, Appellee v. Nicholas Abram SLATTEN, Appellant
• Docket Number: 15-3081,15-3080,C/w 15-3079,No. 15-3078
• Decision Date: 04 August 2017

865 F.3d 767

UNITED STATES of America, Appellee
v.
Nicholas Abram SLATTEN, Appellant

No. 15-3078
C/w 15-3079
15-3080
15-3081

United States Court of Appeals, District of Columbia Circuit.

Argued January 17, 2017
Decided August 4, 2017

Brian M. Heberlig, Washington, appointed by the court, argued the cause for appellants Slough, Liberty and Heard. William F. Coffield, Alexandria, appointed by the court, argued the cause for appellant Liberty. With them on the brief were Michael J. Baratz, Bruce C. Bishop, Linda C. Bailey, David Schertler, Washington, Lisa Hertzer Schertler, Janet Foster and Laina C. Lopez, Washington. Danny C. Onorato, Washington, appointed by the court, entered an appearance.

Timothy J. Simeone, Washington, appointed by the court, argued the cause for appellant Slatten. With him on the briefs were Thomas G. Connolly, Steven A. Fredley and Jared P. Marx, Washington, all appointed by the court.

Timothy P. O'Toole, Kathleen T. Wach and Addy R. Schmitt, Washington, were on the brief for amicus curiae National Association of Criminal Defense Lawyers in support of appellants.

Demetra Lambros, Attorney, U.S. Department of Justice, argued the cause for appellee. With her on the brief were Anthony Asuncion, Jay I. Bratt, John Crabb Jr., Christopher R. Kavanaugh, Gregg A. Maisel and Jonathan M. Malis, Assistant U.S. Attorneys.

Before: Henderson, Rogers and Brown, Circuit Judges.

Opinion concurring in Part VI filed by Circuit Judge Henderson.

Opinion concurring in the judgment in Part VII and dissenting from Part VIII filed by Circuit Judge Rogers.

Opinion concurring in part in, and dissenting in part from, Part II filed by Circuit Judge Brown.

Per Curiam:

TABLE OF CONTENTS

I. BACKGROUND 777

II. MEJA JURISDICTION/MEJA JURY CHARGE 778

A. Jurisdiction 778

B. Jury Charge 784

III. VENUE 784

IV. NEW TRIAL MOTION 789

A. Background 789

B. Analysis 790

V. SUFFICIENCY OF THE EVIDENCE 792

A. Liberty 792

B. Slatten 795

VI. VINDICTIVE PROSECUTION 797

A. Background 798

B. Analysis 798

VII. MOTION TO SEVER 801

A. Background 801

B. Hearsay and Its Exceptions 803

VIII. EIGHTH AMENDMENT 811

A. Proportionality 811

B. Comparable Sentences 816

Nicholas Slatten, Paul Slough, Evan Liberty and Dustin Heard ("defendants") were contractors with Blackwater Worldwide Security ("Blackwater"), which in 2007 was providing security services to the United States State Department in Iraq. As a result of Baghdad shootings that injured or killed at least 31 Iraqi civilians, Slough, Liberty and Heard were convicted by a jury of voluntary manslaughter, attempted

865 F.3d 777

manslaughter and using and discharging a firearm in relation to a crime of violence (or aiding-and-abetting the commission of those crimes); Slatten was convicted of first-degree murder. They now challenge their convictions on jurisdictional, procedural and several substantive grounds.

For the following reasons, we hold that the Court has jurisdiction pursuant to the Military Extraterritorial Jurisdiction Act ("MEJA"), 18 U.S.C. §§ 3261 et seq ., and that venue in the District of Columbia was proper. We further hold that the district court did not abuse its discretion in denying the defendants' motion for a new trial based on post-trial statements of a government witness. Regarding the challenges to the sufficiency of the evidence, we hold that the evidence was sufficient as to all except one of Liberty's attempted manslaughter convictions, and that the evidence was sufficient as to Slatten. We further hold that Slatten's indictment charging first-degree murder did not constitute vindictive prosecution.

The Court concludes, however, that statements made by a co-defendant shortly following the attack, statements asserting that he—not Slatten—fired the first shots on the day in question, were admissible. Accordingly, the Court concludes that the district court abused its discretion in denying Slatten's motion to sever his trial from that of his co-defendants and therefore vacates his conviction and remands for a new trial. Moreover, the Court concludes that imposition of the mandatory thirty-year minimum under 18 U.S.C. § 924(c), as applied here, violates the Eighth Amendment prohibition against cruel and unusual punishment, a holding from which Judge Rogers dissents. The Court therefore remands for the resentencing of Slough, Liberty and Heard.

I. BACKGROUND

On September 16, 2007, a car bomb exploded in Baghdad near a United States diplomat who was under the protection of Blackwater, a private security firm under contract with the State Department. The defendants were members of Blackwater's Raven 23 team, which was sent to provide secondary support in the effort to evacuate the diplomat. Rather than meeting the primary team at the pre-arranged checkpoint, Raven 23 shift leader Jimmy Watson ignored his orders and directed the team to Nisur Square, a traffic circle in downtown Baghdad that Watson intended to "lock down." A car bomb had exploded in Nisur Square earlier that year, in response to which Iraqi security had been dramatically increased, with multiple checkpoints at the Square's entrances for potential threats.

The Raven 23 convoy, which consisted of four armored vehicles, came to a stop at the south end of the Square, and together with Iraqi police they brought all traffic to a halt. Two or three minutes later, witnesses heard the "pops" of shots being fired, and a woman screaming for her son. The car that had been hit, a white Kia sedan, had been flagged days earlier by a Blackwater intelligence analyst as a type that might be used as a car bomb. According to the government, the Kia then rolled forward and lightly bumped the vehicle in front of it. The driver's side of the Kia windshield had a hole in it and was splattered with blood.

Two nearby Iraqi police officers approached the Kia on either side, and they saw the driver's face full of blood, with a bullet wound in the middle of his forehead. One turned back to the convoy, waving his hands to indicate the shooting should stop, while the other made similar gestures as he tried to open the driver's door. At that point, the vehicle in front of the Kia moved away, causing the Kia to roll forward

865 F.3d 778

again. Heavy gunfire erupted from the Raven 23 convoy into the Kia, and the Iraqi officers took cover behind their nearby kiosk. Multiple grenades were fired at the Kia, causing it to catch fire. The Kia passenger was shot and killed.

Indiscriminate shooting from the convoy then continued past the Kia, to the south of the Square. Victims were hit as they sought cover or tried to escape, giving rise to the bulk of casualties that day. At some point a Raven 23 member radioed that they were taking incoming fire, but others could not locate any such threat. When the shooting died down, a radio call indicated one of the Raven 23 vehicles had been disabled and needed to be hooked up to another vehicle to be towed. During the hook-up, a member of the Raven 23 convoy saw an Iraqi shot in the stomach while his hands were up, by an unidentified Blackwater guard who had exited his vehicle. Once the hook-up was complete, the Raven 23 convoy began moving slowly around the circle and north out of the Square, where isolated shootings continued both to the west and north. By the time the convoy finally exited the Square, at least thirty-one Iraqi civilians had been killed or wounded.

In the immediate aftermath of the shootings, the State Department conducted mandatory de-briefing interviews of the Raven 23 team. Because the testimony of certain witnesses before the grand jury relied on those statements, the district court dismissed the case as tainted as to all defendants. United States v. Slough , 677 F.Supp.2d 112, 166 (D.D.C. 2009) (citing Kastigar v. United States , 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) ). This Court agreed that the oral and written statements that resulted from the de-briefings were compelled, and thus could not be used directly or indirectly by the government against the defendants who made them, but remanded the case for a more individualized analysis of the effect of the taint. United States v. Slough , 641 F.3d 544, 548, 554-55 (D.C. Cir. 2011).

On remand, the government used a new prosecutorial team and convened a new grand jury, which returned indictments against the defendants for voluntary manslaughter, attempted manslaughter and using and discharging a firearm in relation to a crime of violence. Slatten moved to dismiss the charges against him as time-barred, which this Court ultimately granted by writ of mandamus. In re Slatten , No. 14-3007 (D.C. Cir. Apr. 18, 2014). The government thereafter obtained an indictment charging Slatten with first-degree murder. The defendants were tried jointly in the summer of 2014, and after seven weeks of deliberation, the jury returned guilty verdicts on all counts except three. The district court sentenced Slatten to life imprisonment, and it sentenced Slough, Liberty and Heard to the mandatory term of imprisonment of thirty years for their convictions under ...