US v. Slough

• Decision Date: 31 December 2009
• Docket Number: Criminal Action No.: 08-0360 (RMU).
• Citation: 677 F. Supp.2d 112
• Parties: UNITED STATES of America v. Paul A. SLOUGH et al., Defendants.
• Court: U.S. District Court — District of Columbia

677 F.Supp.2d 112

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

Criminal Action No.: 08-0360 (RMU).

United States District Court, District of Columbia.

December 31, 2009.

Barry Jonas, John Crabb, Jr., Jonathan Martin Malis, Kenneth C. Kohl, Michael John Dittoe, Paul Edward Ahern, Stephen Ponticello, Joseph Nicholas Kaster, U.S. Department of Justice, Washington, DC, for United States of America.

Mark Joseph Hulkower and Bruce C. Bishop, Steptoe & Johnson LLP, Washington, DC, David Schertler, Danny C. Onoratto, Veronica Renzi Jennings, Schertler & Onoratto LLP, Steven J. McCool, Mallon & McCool Baltimore, MD, for Defendants.

MEMORANDUM OPINION

GRANTING THE DEFENDANTS' MOTION TO DISMISS THE INDICTMENT; DENYING AS MOOT THE GOVERNMENT'S MOTION TO DISMISS THE INDICTMENT AGAINST DEFENDANT SLATTEN WITHOUT PREJUDICE

RICARDO M. URBINA, District Judge.

The basic purposes that lie behind the privilege against self-incrimination do not relate to protecting the innocent from conviction, but rather to preserving the integrity of a judicial system in which even the guilty are not to be convicted unless the prosecution shoulder the entire load.¹

I. INTRODUCTION

The defendants have been charged with voluntary manslaughter and firearms violations arising out of a shooting that occurred in Baghdad, Iraq on September 16, 2007. They contend that in the course of this prosecution, the government violated their constitutional rights by utilizing statements they made to Department of State investigators, which were compelled under a threat of job loss. The government has acknowledged that many of these statements qualify as compelled statements under Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), which held that the Fifth Amendment privilege against self-incrimination bars the government from using statements compelled under a threat of job loss in a subsequent criminal prosecution. The Fifth Amendment automatically confers use and derivative use immunity on statements compelled under Garrity; this means that in seeking an indictment from a grand jury or a conviction at trial, the government is prohibited from using such compelled statements or any evidence obtained as a result of those statements.

The government has also acknowledged that its investigators, prosecutors and key witnesses were exposed to (and, indeed, aggressively sought out) many of the statements given by the defendants to State Department investigators. Under the binding precedent of the Supreme Court in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) and this Circuit in United States v. North, 910 F.2d 843 (D.C.Cir.1990), the burden fell to the government to prove that it made no use whatsoever of these immunized statements or that any such use was harmless beyond any reasonable doubt.

Beginning on October 14, 2009, this court convened a Kastigar hearing to explore whether the government had made any use of compelled statements during its prosecution of the defendants. During this hearing, which spanned three weeks, the parties presented testimony from twenty-five witnesses, including the government's entire prosecution team, the lead FBI agents in charge of the investigation and all five defendants. The parties offered hundreds of exhibits into evidence and submitted voluminous pre- and post-hearing memoranda.

From this extensive presentation of evidence and argument, the following conclusions ineluctably emerge. In their zeal to bring charges against the defendants in this case, the prosecutors and investigators aggressively sought out statements the defendants had been compelled to make to government investigators in the immediate aftermath of the shooting and in the subsequent investigation. In so doing, the government's trial team repeatedly disregarded the warnings of experienced, senior prosecutors, assigned to the case specifically to advise the trial team on Garrity and Kastigar issues, that this course of action threatened the viability of the prosecution. The government used the defendants' compelled statements to guide its charging decisions, to formulate its theory of the case, to develop investigatory leads and, ultimately, to obtain the indictment in this case. The government's key witnesses immersed themselves in the defendants' compelled statements, and the evidence adduced at the Kastigar hearing plainly demonstrated that these compelled statements shaped portions of the witnesses' testimony to the indicting grand jury.² The explanations offered by the prosecutors and investigators in an attempt to justify their actions and persuade the court that they did not use the defendants' compelled testimony were all too often contradictory, unbelievable and lacking in credibility.

In short, the government has utterly failed to prove that it made no impermissible use of the defendants' statements or that such use was harmless beyond a reasonable doubt. Accordingly, the court must dismiss the indictment against all of the defendants.

II. BACKGROUND

A. Factual Background

1. The Nisur Square Incident

The defendants—Paul Slough, Evan Liberty, Dustin Heard, Donald Ball and Nicholas Slatten—were security guards employed by Blackwater Worldwide ("Blackwater"), a private company that provided security services to U.S. government employees operating in Iraq. Govt's Pre-Hr'g Mem. at 2. On September 16, 2007, the defendants were part of a Blackwater Tactical Support Team answering to the call sign "Raven 23," whose function was to provide back-up fire support for other Blackwater personal security details operating in Baghdad. Id.

The Raven 23 convoy consisted of four vehicles. Govt's Ex. 2.³ Defendant Ball functioned as the rear turret gunner on the lead vehicle. Id. Defendants Liberty, Slough and Slatten were positioned in the third vehicle as the driver, turret gunner and designated defensive marksman (or sniper) respectively. Id. Defendant Heard was the rear turret gunner in the fourth vehicle. Id. Jeremy Ridgeway, who pleaded guilty to charges stemming from the incident and has been cooperating with the government, functioned as the lead turret gunner in the fourth vehicle. Id. The defendants were armed with machine guns, grenade launchers, rifles and pistols. Govt's Post-Hr'g Mem. ("Govt's Mem.") at 2.

Shortly before noon on September 16, 2007, Raven 23 received a message that a vehicle-borne improvised explosive device ("VBIED") had detonated in the vicinity of a compound in which U.S. officials were meeting with Iraqi officials. Defs.' Mot. for an Evidentiary Hr'g Under Garrity and Kastigar at 4. The Raven 23 convoy subsequently took up positions in Nisur Square, a traffic circle located just outside the International Zone in downtown Baghdad, to secure an evacuation route for the American officials and the Blackwater team providing their security. Id. Soon after the Raven 23 vehicles entered the traffic circle, a shooting incident erupted, during which the defendants allegedly shot and killed fourteen persons and wounded twenty others. Govt's Mem. at 2. The government contends that the dead and wounded were unarmed civilians who were the victims of unprovoked violence by the defendants. The defendants maintain that they came under attack by insurgents and that their actions constituted a legitimate response to a mortal threat.

The paroxysm of violence that occurred on September 16, 2007 in Nisur Square triggered immediate responses that would have far-reaching consequences. As discussed below, the State Department, the U.S. military and Iraqi forces commenced immediate inquiries into the shooting. Media began investigating the incident, interviewing eyewitnesses and probing sources in the U.S. government. And ultimately, the decision was made to commence a criminal prosecution against the defendants in this case.

2. The Defendants' September 16, 2007 Statements to State Department Investigators

Hours after the shooting, the Department of State's Diplomatic Security Service ("DSS") directed all the members of the Raven 23 convoy to submit to interviews at the State Department offices in Baghdad, which are referred to by U.S. personnel as "the Palace." Hr'g Tr., Oct. 14, 2009 p.m. at 20;⁴ Hr'g Tr., Oct. 19, 2009 a.m. at 99-100; Defs.' Post-Hr'g Mem. ("Defs.' Mem.") at 5; Govt's Mem. at 3. DSS Special Agent Theodore Carpenter oversaw these interviews, see Govt's Mem. at 5, which were conducted by DSS Special Agents Michael Scollan, Lisa Lopez, Mario Reta and David Motley, see Defs.' Mem. at 6-7.

The September 16, 2007 interviews delved into the particulars of the Nisur Square shooting. The defendants and the other members of the Raven 23 convoy provided the interviewing DSS agents with detailed accounts of the actions they purportedly took at Nisur Square. From these accounts, the DSS agents subsequently prepared two "Memorandum Reports of Interviews" that memorialized these oral statements. See generally Defs.' Reta Ex. 3⁵ (Mem. Report of Interview, Sept. 16, 2007); Defs.' Lopez Ex. 3 (Mem. Report of Interview, Sept. 16, 2007).

During the September 16, 2007 interviews, four of the five defendants acknowledged that they had fired their weapons at Nisur Square. Defendant Slough, the turret gunner in the third vehicle in the convoy, reportedly stated to DSS agents that

a white vehicle approached the team at a high rate of speed and would not stop despite his hand signals and throwing a water bottle. Other civilians tried to wave the vehicle down, but it still would not stop. Slough engaged and hit the driver. An Iraqi Policeman, wearing a blue button down shirt and black pants, began to push the vehicle towards the team. Slough engaged the vehicle a second time and the Iraqi Policeman ran away. Slough then witnessed muzzle flashes from a shack, returned fire, and hit the individual.

Defs.' Lopez Ex. 3 at 1.

Defendant Slatten, also stationed in the third...