United States v. Slatten

• Decision Date: 30 July 2019
• Docket Number: Criminal Case No. 14-107
• Citation: 395 F.Supp.3d 45
• Parties: UNITED STATES of America v. Nicholas A. SLATTEN, Defendant.
• Court: U.S. District Court — District of Columbia

395 F.Supp.3d 45

UNITED STATES of America

v.Nicholas A. SLATTEN, Defendant.

Criminal Case No. 14-107

United States District Court, District of Columbia.

Signed July 30, 2019

Alexandra Stalimene Hughes, Michael Justin Friedman, T. Patrick Martin, David Brian Goodhand, David Joseph Mudd, Fernando Campoamor-Sanchez, John Crabb, Jr., Karen Patricia Seifert, Kenneth Clair Kohl, Maia Luckner Miller, United States Attorney's Office, Washington, DC, for United States of America.

Amy Mason Saharia, Barry Steven Simon, Dane Hal Butswinkas, Krystal R. Commons, Patrick J. Looby, Simon A. Latcovich, Tobin Joe Romero, Williams & Connolly LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

Royce C. Lamberth, United States District Judge

I. Slatten's Motion for Judgment of Acquittal...54

A. The record establishes Slatten committed each element of first-degree murder...54

1. The record adequately establishes Slatten unlawfully killed Al-Rubia'y...55

2. The record establishes Slatten acted with malice aforethought...68

3. The record establishes Slatten acted with premeditation...70

B. The jury's verdict accords with the weight of the evidence...72

C. Jurisdiction and venue are proper...73

II. Slatten's Motion for a New Trial...74

A. Matthew Murphy's testimony does not require a new trial because any error was harmless...74

1. Rules 602 and 701 permit Murphy's testimony...75

2. [Redacted]...76

3. The government's failure to stop Murphy from speculating about whether Slatten used a suppressor was egregious but harmless...77

B. The government properly relied on Jimmy Watson's testimony...81

1. Johnson did not preclude Watson's testimony...83

2. Any misuse of Watson's grand jury testimony was harmless...83

C. Neither the government nor the Court prevented Slatten from corroborating Paul Slough's statements...86

D. The government did not mislead the jury regarding witness availability...88

E. The government's re-direct examination of Sarhan Moniem did not mislead the jury...91

F. No legal error resulted from Scott Patterson's testimony...93

1. The government's closing argument properly referenced Patterson's comparison of SR-25 and M-4 rounds...93

2. Patterson properly testified about AK-47 impact marks on steel armor...94

G. The government properly presented evidence under Rule 404(b)...96

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...96

2. The government accurately represented this evidence during its summation...98

3. The Court properly instructed the jury about this evidence...99

H. Slatten's groundless witness tampering claim merits neither an evidentiary hearing nor a new trial...100

I. The government's garbled presumption-of-innocence argument did not affect Slatten...102

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...103

K. To the extent the Court erroneously rebuked defense counsel, it was harmless...106

L. To the extent the government's summation hit below the belt, it was harmless...109

M. The Court properly instructed the jury...111

N. Slatten's juror misconduct allegation does not justify an evidentiary hearing...114

O. The government adequately disclosed classified information...116

III. Conclusion...116

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 , 990 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (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, 87 S.Ct. 483, 17 L.Ed.2d 362 (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....