Public Copy (revised per 6/15/10 unsealing order) – Sealed Material Deleted No. 10-3006 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellant, v. PAUL ALVIN SLOUGH, NICHOLAS ABRAM SLATTEN, EVAN SHAWN LIBERTY, DUSTIN LAURENT HEARD, DONALD WAYNE BALL, Defendants-Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA (The Hon. Ricardo M. Urbina) PRELIMINARY BRIEF FOR THE UNITED STATES LANNY A. BREUER Assistant Attorney General GREG D. ANDRES Acting Deputy Assistant Attorney General JOSEPH N. KASTER DEMETRA LAMBROS MICHAEL DITTOE Criminal Division, Appellate Section Trial Attorneys U.S. Department of Justice National Security Division Washington, D.C. 20530 (202) 307-5964 Case: 10-3006 Document: 1250238 Filed: 06/16/2010 Page: 1
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Public Copy (revised per 6/15/10 unsealing order) – Sealed Material Deleted
No. 10-3006
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellant,
v.PAUL ALVIN SLOUGH,
NICHOLAS ABRAM SLATTEN,EVAN SHAWN LIBERTY,
DUSTIN LAURENT HEARD,DONALD WAYNE BALL,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
(The Hon. Ricardo M. Urbina)
PRELIMINARY BRIEF FOR THE UNITED STATES
LANNY A. BREUER Assistant Attorney General
GREG D. ANDRES Acting Deputy Assistant Attorney General
JOSEPH N. KASTER DEMETRA LAMBROSMICHAEL DITTOE Criminal Division, Appellate Section Trial Attorneys U.S. Department of Justice National Security Division Washington, D.C. 20530
E. The Raven 23 Team Orally Reports To The State Department OnThe Day Of The Shooting, And Submits Written, SwornStatements Two Days Later. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
F. The FBI Goes To Baghdad Under Instructions To Investigate“From Scratch,” And Murphy, Mealy And Frost Tell TheirStories To The Grand Jury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
G. A Reasonable Difference Of Opinion And A Breakdown Of TheGovernment’s Taint Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
H. The Prosecutors Travel To Baghdad, Decide To Charge A “MassLiability” Theory, And Look Into (But Abandon) ObstructionAnd False Statement Charges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
I. THE DISTRICT COURT CLEARLY ERRED IN FINDINGPERVASIVE EVIDENTIARY TAINT IN THE GRAND JURY.IN LIGHT OF THE OVERWHELMING UNTAINTED EVIDENCE SUPPORTING PROBABLE CAUSE TO INDICT, THE PRESENTATION OF SOME TAINTED EVIDENCE WASHARMLESS BEYOND A REASONABLE DOUBT. . . . . . . . . . . . 56
B. Kastigar and North: The Applicable Legal Principles. . . . . . 58
C. The District Court Clearly Erred In Finding That MurphyAnd Frost Could Not Distinguish What They Saw In TheSquare From What They Read In The Press – And It Failed,As Required By North, To Separate The Wheat Of TheirUnspoiled Memories From The Chaff Of The ImmunizedStatements.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
D. The District Court Clearly Erred In Finding That TheIraqi Eyewitnesses’ Grand Jury Testimony Was Tainted. . . . 67
1. Background: A Sense Of The Publicity.. . . . . . . . . . . . 69
2. The District Court Failed, As North Requires, ToExamine The Content Of The Iraqi Eyewitnesses’Grand Jury Testimony – And To Determine Whether Their Identification Of The ShootersWas Affected By Any Exposure They May HaveHad To The Press. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
E. The District Court Clearly Erred In Finding That Frost’sJournal Was Tainted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
2. Frost Was Motivated To Preserve His MemoryAbout A Momentous And Tragic Event, AndWould Have Written His Journal Regardless OfAny Exposure To The Defendants’ Statements.. . . . . . 82
3. The Journal Is Not Otherwise Tainted. . . . . . . . . . . . . . 86
F. The District Court Clearly Erred In Finding That All OfRidgeway’s Grand Jury Evidence Was Tainted.. . . . . . . . . . . 88
II. THE DISTRICT COURT ERRED IN FINDING THE GOVERNMENT MADE IMPERMISSIBLE AND SIGNIFICANTNON-EVIDENTIARY USE OF THE DEFENDANTS’COMPELLED STATEMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
B. Where The Government Has Sufficient, Independent Evidence To Indict, The Fifth Amendment Does NotRequire It To Prove That A Prosecutor’s ChargingRecommendation Was Unaffected By His Exposure To Immunized Testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . 102
C. The District Court Clearly Erred In Finding The Government’s Exposure To Heard’s And Ball’s Compelled Statements Played A “Central Role”In The Decision To Charge Them. . . . . . . . . . . . . . . . . . . . . 107
1. The Decision To Recommend Charges AgainstHeard Was Based On The Independent EvidenceAgainst Him, Not His September 16 Statement –And The Reference To Heard’s Statement In TheProsecution Memo, Later Redacted, Was HarmlessBeyond A Reasonable Doubt.. . . . . . . . . . . . . . . . . . . 107
2. The Decision To Recommend Charges Against BallWas Based On The Independent Evidence AgainstHim, Not His Garrity Statements. . . . . . . . . . . . . . . . 111
D. The District Court Clearly Erred In Finding The GovernmentOtherwise Made Non-Evidentiary Use Of The Defendants’Statements In Securing The Indictment. . . . . . . . . . . . . . . . . 113
This, in the government’s view, is a case about a group of private security
guards who recklessly and unjustifiably opened fire in a crowded Baghdad square,
leaving 14 innocent Iraqi civilians dead and another 20 wounded.
It is also a case about the difficulty of bringing them to justice.
Hours after the shooting, well before the FBI was on the scene or the Justice
Department could make a considered decision about any grant of immunity, the
State Department questioned the guards about what had happened, and then
extended formal “Garrity” immunity for their sworn statements two days later. In
the days and weeks that followed, versions of the guards’ accounts were reported
in the press, raising the possibility that anyone who read the stories might thereby
be “tainted.”1
The Ninth Circuit has well described the problem this sort of situation1
creates. In Garrity cases (as when a police officer is involved in a controversialuse of force), the goal of an employer’s questions “is generally to learn the facts ofa situation as quickly as possible.” United States v. Koon, 34 F.3d 1416, 1433n.13 (9 Cir. 1994), rev’d in part on other grounds, 518 U.S. 81 (1996). Theth
questioners “do not necessarily act with the care and precision of a prosecutorweighing the benefits of compelling testimony against the risks to futureprosecutions; indeed, they may not even have the prospect of prosecution and therequirements of the Fifth Amendment in mind. In addition, because statementsmay be compelled soon after the event in question, it is far more likely that thesestatements will be circulated before there is an opportunity to can testimony.” Id.
Because the Kastigar inquiry necessarily focuses on the testimony2
presented to the grand jury – whether any of it was tainted and, if so, whether thetaint was harmless beyond a reasonable doubt, United States v. North, 910 F.2d843, 872-73 (D.C. Cir.) (“North I”), modified, 920 F.2d 940 (D.C. Cir. 1990) – wepresent the facts about the Nisur Square shooting through the record of theindicting grand jury (Exhibit 1 at the Kastigar hearing). The grand jury testimonyof three of the defendants’ fellow guards, memorialized in 2007, is also relevant toshow what the prosecutors knew about the shooting and when they knew it,another central question in this case. We have bound the grand jury transcripts(“GJ.Tr.”) and exhibits (“GJ.Ex”) separately. In our final brief, we cite to the JointAppendix (JA) for the Kastigar transcripts and exhibits; in the preliminary brief,we cite the Kastigar transcripts by date. E.g., 10/14/am/pg#.
weapons in Baghdad. The “Hunter Memorandum” contemplated a two-step
process. First, various key players (including the employee who fired and
everyone in his vehicle) were to report immediately to the Regional Security
Office (“RSO”) at the Embassy for a debriefing. Ex.32/1. After that, the
employee who discharged his weapon was to submit a formal, sworn written
statement on a form carrying a Garrity warning. Id. 4
10/16/pm/103, 115-18.
See
Lopez.Exs.2, 3; Reta.Ex.3; see also 10/15/am/7-8, 22; 10/15/pm/25-29;
The form, Ex.32/3, provided:4
I understand that this statement is made in furtherance of an officialadministrative inquiry regarding potential misconduct or improperperformance of official duties and that disciplinary action, includingdismissal from the Department’s Worldwide Personnel Protective Servicescontract, may be undertaken if I refuse to provide this statement or fail to doso fully and truthfully. I further understand that neither my statements norany information or evidence gained by reason of my statements can be usedagainst me in a criminal proceeding * * *.
guard Murphy’s grand jury appearance on November 29, the prosecutors had
asked Hulser (via Mullaney) for Murphy’s statements to the DSS. 10/28/am/70.
Ponticiello received the written statement on November 28, Ex.62.#5979, but the
email containing the oral statement (to Kohl via Mullaney) did not come until the
next day – and Kohl did not open it until after Murphy testified. Ex.62.#2523. In
a one-sentence parenthetical within the three-paragraph email containing
Murphy’s statement, Hulser conveyed his views about the September 16
statements. Id. ((“While no Kalkines warning was given before these interviews, I
believe that we should treat all of their statements to the RSOs as compelled given
the practice of routinely giving the Kalkines warning to the participants in a
shooting”)). Upon receiving the email that evening, Kohl responded to Mullaney:
“Got it. Thanks Mike.” Id. As Kohl later testified, his “got it” referred to
receiving the requested Murphy statement (which he had also “gotten” the night
before from Ponticiello) – and with Murphy’s testimony behind him, Kohl did not
read down into the body of the email to Hulser’s sentence about his general view
of the September 16 statements. 10/28/am/70-72. 7
Earlier that week, Hulser sent the statements of Frost and Mealy,7
again through Mullaney. Ex.62.#3477. This email did not state Hulser’s view thatthe September 16 statements should be considered potentially compelled (contraryto the district court’s suggestion, Mem.Op. 15 n.15), although it did advise cautionin questioning the witnesses to ensure their testimony was based solely on their
The disconnect between Hulser and the trial team continued into December
and the new year. On December 7, 2007, Mullaney told Hulser the prosecutors
wanted to interview DSS agent Carpenter and his deputy. Ex.57.#1636. Hulser
responded: because those agents “reviewed and/or wrote a report based on
compelled statements, they are thoroughly tainted, and even the focus of the
investigative steps that they took would have been affected by the compelled
statements.” Id. In a follow-up email to Mullaney a few minutes later, Hulser
more specifically spelled out his concerns about the September 16 statements. 8
There is no indication in the email traffic that Kohl or Ponticiello received the
personal recollections, not any exposure to their fellow guards’ sworn statements. Id. (recommended admonishments be made on the record). Kohl, who at the timewas in the throes of two other major cases, did not focus on Hulser’s cautionaryinstruction. 10/28/am/63-64, 66-69. Even without reading Hulser’s advice, Kohlnevertheless cautioned the witnesses before they went into the grand jury to becareful to avoid referring to the other guards’ statements. 10/28/pm/99-103; see10/14/pm/15
See Ex.57.#1636 (“The RSO didn’t get the written compelled8
statements * * * until 9/18, so normally I’d say there was a safe window followingthe incident. The risk * * * is that the court may conclude that the entireatmosphere following an incident was one of compulsion – i.e., they all knew theywere going to be required to provide compelled statements (just as they’d donefollowing prior incidents) and so whatever they told the RSO agents (ininterviews, written reports or written statements) they believed was not voluntary. Unfortunately, I think a court may find that belief reasonable given the consistentpractice of using the compelled forms”).
The “head-on” discussion between Hulser and Kohl occurred, finally, on
April 18, 2008. 10/26/am/31-38. That month, Kohl was seeking information from
State about prior incidents involving the Blackwater guards, and in an ensuing
email exchange (the first direct contact between Kohl and Hulser), their
differences of opinion about the September 16 statements became starkly apparent.
10/28/pm/19-24. On April 11, Kohl claimed he should have access to day-of
shooting reports because they are generated within hours of the event, without
Kalkines promises, and before State opens an investigation during which sworn
statements might be requested. Ex.68.#2719-21. But even beyond his legal point,
Kohl explained why he thought he and Hulser had been on the same page about
the September 16 statements:
[Y]ou have previously approved and cleared other materials that containstatements made by the targets of our investigation, on the theory that thereports and notes were generated prior to the existence of the swornKalkines statements made by these individuals. For example, you haveapproved, and we have received, the DSS notes of the interviews conductedof each shooter on the day of the incident – two days before the taintedstatements were generated.
Ex.68.#2720.
Seeing for the first time that Kohl might have the September 16 interviews
of potential defendants, Hulser stated the obvious: “we need to assess whether
Everyone also agreed that Mullaney would “get out of the middle,” leaving
the trial team to work directly with Hulser. 10/26/am/37; 10/28/pm/27.
According to Kohl, it was also understood that any final decisions would be made
by the prosecutors. See 10/29/am/48 (“in the end, the National Security Division
has to [decide] how it’s going to do its case”); 10/29/am/81 (“Ray’s position has
always been it is your call”); e.g., Ex.57.#1636 (Hulser to Mullaney re: overture to
Carpenter: “Are you sure you need to interview them at this point?”; “This is your
call, of course”).
Kohl also believed that the matter of the interview notes could be11
revisited later, 10/28/pm/24-25, and although Hulser did not testify to that precisepoint, that is consistent with Hulser’s acknowledgment, throughout theinvestigation, that time or developing facts might change the risk calculation vis-a-vis the September 16 statements. See 10/23/am/72-73 (advice in April 2008 wasthat no use be made of oral statements “at this point”); 10/23/am/10-12 (“[a]gain,this is a fact-based inquiry * * * So it’s certainly something I would expect theteam to evaluate at different stages along the way,” balancing the potential valueof the statements against the possibility they could later be deemed compelled);10/22/pm/104-05 (“it’s always about risk assessment”; conclusion aboutcompulsion could change over time); 10/22/pm/111 (“in evaluating the risks, youcan decide later that you absolutely must talk to [tainted investigators]”); accord10/22/pm/112; 10/23/am/38; Hulser.Ex.6; Ex.57.#1636.
Mullaney, too, recalled the group agreed to continue the investigationwithout the September 16 statements, but that the matter would be subject tofurther review. 10/26/pm/22-24; 10/26/am/37-38 (same).
from the first vehicle (Mealy and Ball’s) to the west of the Square, indicating to
the government that Ball had shot west (since Mealy did not fire). 10/28/am/47-
48, 51-52; 10/27/pm/80-84. Also at the time, Kohl was adjusting his theory of the
case: having first set out to identify which shooter was responsible for which
victim, he decided to pursue instead a mass liability theory – that is, he would seek
to charge those who joined the shooting even if he could not specifically identify
who or where they shot. 10/28/am/40-41, 52-53 (realized that attempt to match
each shooter with specific victim was “setting the bar too high”). As the district
court described the government’s theory a month before the Kastigar hearing:
I think there’s this theory of * * * mass liability, this kind of joint or groupliability, that when everybody’s shooting into a situation and people die,then all those people are responsible for the deaths even if one is not able toidentify whose bullet killed whom.
See 9/14/2009.Tr.62; accord Ex.401.#1353 (GJ.Tr.11/20/08/am minutes). Thus,
despite the discrepancies in the testimony about other shots, Kohl decided in April
that Ball should be added as a target. See 10/28/am/52-53 (“if they joined in this
gunfight * * * [t]hey’re going to be sent target letters”); Ex.70.
In February 2008, Kohl also decided to investigate possible obstruction by
Blackwater. As he had learned, Frost, Mealy and Murphy believed that they were
being penalized for coming forward, and that Blackwater had withheld critical
investigation, and no obstruction charges were presented to the grand jury.
10/22/am/13-14. 13
In late August 2008, Kohl asked the FBI for the reports the team had
previously received on the Raven 23 guards’ September 16 statements.
10/28/pm/31-35; 10/22/pm/39-44. At this point, Kohl had made his case for
manslaughter charges, and was considering whether to add false statement
charges. Id.; Patarini.Ex.57. As Patarini explained, because “we already had
* * * the physical evidence, * * * [and] the witnesses, Iraqis, military, others,” the
only point in looking at the September 16 statements was to consider false
statement charges. 10/22/pm/59-60. In the end, the team did not present such
charges to the grand jury. 10/28/pm/34-35.
I. Realizing The Testimony Of Some Grand Jury Witnesses MayHave Been Affected By Exposure To The Defendants’ Statements,The Government Presents A Scaled-Down Case To A SecondGrand Jury.
Ex.308.#5895-96. When
Hulser testified that had he known about the search warrant request13
(he did not), he might have authorized it so long as the results could be filteredfirst. 10/23/am/28-29. Earlier in 2008, when Kohl received drafts of unsignedstatements from Blackwater in response to a subpoena, he sent them on to Hulserwithout reading them. 10/28/pm/14-17; see 10/26/pm/88-89; Ex.215.#3905(Ponticiello; same).
Because the second grand jury was presented with a much abbreviated case,
it heard neither all the inculpatory, nor all the exculpatory, evidence from the first
grand jury. As for the exculpatory testimony, however (i.e., that the convoy had16
taken fire), the government introduced evidence that made the same point.
See GJ.Tr.11/25/08/56-60
GJ.Ex.96. 17
E.g., 11/3/am/10 (Raven 23 guard Vargas: “maybe like five seconds16
after we pulled into our positions, we started taking fire”); id. at 12-13 (Skinner:heard gunfire and saw “two distinct separate muzzle flashes”); id. at 17 (Childers:did not see, but heard, incoming gunfire); id. at 18 (Randall: “I saw a couplerounds impact the side of the” command vehicle).
Ridgeway and the Iraqi eyewitnesses were not tainted by press accounts of the
statements. Mem.Op. 66-75. The court made no findings of taint, one way or the
other, as to the testimony of Raven 23 guard Mealy, and Colonels Boslego and
Tarsa.
Most of the Kastigar hearing and the court’s opinion focused on the
September 16 statements: in addition to finding they were Garrity-compelled, the
court found the trial team had “recklessly” pursued them in “direct contravention”
of taint attorney Hulser’s directives. Mem.Op. 13-20, 75-85. Importantly, the18
court did not find the government’s exposure to any of the defendants’ statements
led to the presentation of any evidence in the grand jury. Its findings of
evidentiary taint, rather, were premised on the witnesses’ exposure to the
defendants’ statements via the media, not the prosecutors. See Mem.Op. 51-75.
The prosecutors’ pursuit of the September 16 statements, thus, only figured into
the court’s analysis regarding non-evidentiary use. On that issue, the court found
the government’s exposure to Heard’s and Ball’s compelled statements played a
“central role” in the decision to charge them, Mem.Op. 75-78, and that in light of
While the court did not dispute the prosecutors’ testimony that they18
had not seen the September 18 statements, it found that during the investigation,the team learned information derived from some of the defendants’ laterstatements to DSS investigators. Mem.Op. 79-80.
the government’s “aggressive” pursuit of the statements, it “utter[ly] fail[ed]” to
show, vis-a-vis all the defendants, that it made no significant non-evidentiary use
of them. Mem.Op. 78-85. The court concluded that the government’s evidentiary
and non-evidentiary Kastigar errors were not harmless beyond a reasonable doubt.
Mem.Op. 88-89. 19
SUMMARY OF ARGUMENT
Below, the government argued that the September 16 statements were not
“compelled” under Garrity and thus not subject to Kastigar. We are not renewing
that argument here. As the district court’s opinion makes clear, the government’s
Before the district court ruled, the government moved to dismiss the19
indictment against Slatten without prejudice. D.C.No.10-00005(Dkt.30). Itconcluded that, based on Frost’s testimony at the Kastigar hearing, his grand jurytestimony had been affected by Frost’s exposure toSlatten’s compelled statement, see infra, at 61-62, and that it could not confidentlysay the presentation of the tainted testimony was harmless beyond a reasonabledoubt. In response, Slatten moved for dismissal with prejudice, allegingprosecutorial misconduct. Dkt.34. The court denied that motion, as well as asimilar one from Ball. D.C.No.08-360(Dkt.231).
In dismissing the indictment against all defendants, the court dismissed asmoot the government’s motion to dismiss against Slatten. Mem.Op. 90 n.67. Although we are not revisiting our view that this indictment is insufficient as toSlatten, we hold open the prospect of reindicting him with untainted evidence notpresented to this grand jury. Slatten thus remains in this appeal because thecourt’s broad disqualification of evidence (e.g., all of Frost’s and Murphy’stestimony, including ) bears not only onwhether the case may proceed against the other defendants, but on the viability ofany future indictment of Slatten as well.
all who joined the shooting should be held accountable, regardless of where,
particularly, they may have shot.
As the government concedes, its taint procedures broke down: believing
they were entitled to see the guards’ September 16 statements, the prosecutors
sought them out. However, the district court’s essential finding – that because
they pursued the statements, the prosecutors must have made significant non-
evidentiary use of them – is wrong as a matter of fact, law and logic.
ARGUMENT
THE INDICTMENT SHOULD BE REINSTATED.
I. THE DISTRICT COURT CLEARLY ERRED IN FINDINGPERVASIVE EVIDENTIARY TAINT IN THE GRAND JURY. INLIGHT OF THE OVERWHELMING UNTAINTED EVIDENCESUPPORTING PROBABLE CAUSE TO INDICT, THEPRESENTATION OF SOME TAINTED EVIDENCE WASHARMLESS BEYOND A REASONABLE DOUBT.
10/21/am/69.
Many people were in Nisur Square shortly after noon – and when the Raven 23
convoy left some 15 minutes later, many lives had been lost, broken or forever
changed. The grand jury was presented with vivid and often emotional accounts
from those who bore witness to what happened that day. To be sure, in the days
and weeks that followed, press accounts alluded to, and sometimes directly quoted
from independent sources, and determine whether the Kastigar error was harmless
beyond a reasonable doubt. North I, 910 F.2d at 873; Ponds, 454 F.3d at 328-29
(“the degree of the Kastigar violation” must be assessed). If the error did not
“‘contribute to the [outcome]’” (here, the grand jury’s decision to indict), the
indictment should not be dismissed. See Ponds, 454 F.3d at 328 (quoting
Chapman v. California, 386 U.S. 18, 24 (1967)).
C. The District Court Clearly Erred In Finding That Murphy AndFrost Could Not Distinguish What They Saw In The Square FromWhat They Read In The Press – And It Failed, As Required ByNorth, To Separate The Wheat Of Their Unspoiled MemoriesFrom The Chaff Of The Immunized Statements.
2. Frost’s And Murphy’s Isolated And Admittedly SpeculativeTestimony About DoesNot Cast Doubt On The Independence Of All Their First-Hand Observations.
This is simply not a case, like Poindexter, where a witness (Oliver North)
completely steeped himself in immunized testimony concerning a complicated
series of events (the sale of arms to Iran, the illicit diversion of proceeds to the
Nicaraguan contras, the attempted cover-up) spanning several years. See 951 F.2d
In not even considering any of this evidence, the district court relied20
on its finding that Frost and Murphy were “thoroughly immersed” in all thedefendants’ compelled statements. Mem.Op. 52; id. at 52-53 (stressing“unbounded exposure” to statements). Although we do not mean to quibble withthe court,
the court’s emphasis on their “total immersion” inall the defendants’ statements paints a greatly distorted picture. Without doubt,the events of Nisur Square received widespread publicity.
see infra, at 69-70
E.g., Def.Ex.2. One broadcast, forwarded by a Raven 23 guard to his teammates,claimed to have all 19 sworn statements, but contrary to the court’s suggestion,Mem.Op. 52,
See 10/14/pm/109-10Murphy.Ex.8
To say that Murphy and Frost “immersed” themselves in the defendants’statements because they read these and other stories is to make a significant andmistaken leap of fact, See10/21/pm/39
But even more importantly, it is the specifics of adefendant’s statement (e.g.,
) – not press accounts carrying more general assertions about – that bear on Murphy’s and Frost’s testimony (e.g.,
). The district court’s reliance on “total immersion”indiscriminately lumped all that together, and further skewed its analysis.
“demonstrably free from taint,” Mem.Op. 57, is not to be somehow disqualified by
association. And a finding of taint does not relieve the court of its obligation to
determine, line-by-line and item-by-item if necessary, the testimony that is taint-
free. North I, 910 F.2d at 872-73. Here, with no such inquiry, the court threw out
the good with the bad – which is exactly what North says it may not do.21
D. The District Court Clearly Erred In Finding That The IraqiEyewitnesses’ Grand Jury Testimony Was Tainted.
As noted, when the FBI went to Baghdad in October 2007, Colonel Faris
introduced the agents to many Iraqis who were in Nisur Square during the
shooting. On the basis of the Iraqi eyewitness interviews, the FBI developed a
working understanding of who in the convoy had shot – and a number of the
witnesses’ accounts were incorporated into a summary of evidence against each
defendant presented to the grand jury. See 10/21/pm/116-17; GJ.Ex.107.
At the Kastigar hearing, and over objection, the court ruled that the
government did not need to present all the Iraqi witnesses for cross-examination.
The court chides the government, among other things, for not21
memorializing its witnesses’ testimony at the outset of the investigation and notadvising them in October 2007 not to seek out press reports. Mem.Op. 58-59. The court fails to note, however, that even by its own reading of the record, theRaven 23 guards were exposed to the compelled statements in September 2007,before the FBI set foot in Baghdad, and that almost all the guards (on the advice ofBlackwater) refused to give statements to the FBI on that trip.
10/19/pm/40-47, 78-84. As the court recognized, the government may meet its
Kastigar burden through hearsay, 10/19/pm/45-47 – and indeed, this Court has
said the government may try to show “in any fashion” or through “use of any
techniques” that a witness’s evidence was not tainted. United States v. North, 920
F.2d 940, 943 (D.C. Cir. 1990) (“North II”). 22
In the end, however, the court found the testimony of all the Iraqi
eyewitnesses who helped identify the shooters was tainted. Its reasoning was
essentially three-fold: 1) that the defendants’ compelled statements were “widely
reported” in the weeks following the shooting; 2) that several Iraqis admitted to
being exposed to the statements, thus illustrating the taint problem; and 3) that the
FBI’s protocols for ensuring that the other witnesses’ testimony had not been
affected by the publicity were deficient. Mem.Op. 71-75. Again, the court clearly
erred. 23
See also United States v. Daniels, 281 F.3d 168, 181 (5 Cir. 2002)22 th
(Kastigar evidence presented via FBI reports, grand jury transcripts and caseagent’s testimony); United States v. Montoya, 45 F.3d 1286, 1299 (9 Cir. 1995)th
(government bore Kastigar burden via declarations and documents; norequirement that hearsay witnesses be presented for cross-examination); UnitedStates v. Rogers, 722 F.2d 557, 560 (9 Cir. 1983) (declarations).th
As the court found, the Nisur Square shooting generated instant headlines.
Def.Ex.35
Def.Ex.23
Id. accord
Def.Exs.22, 34, 36.
24
Id. at 1-14. The district court does not appear to have addressed thistestimony in dismissing the indictment, focusing instead on those who helpedidentify the shooters. See Mem.Op. 71 (government “presented the statements oftwenty-two Iraqi witnesses * * * to support the government’s allegations againstevery defendant”) (citing GJ.Ex.107,
); id. (“defendants maintain thegovernment’s failure to present these witnesses for cross-examination * * *requires dismissal of the indictment”). In any event, for the reasons discussed, tothe extent the court factored the testimony of these other Iraqis into its dismissaldecision, it similarly erred.
2. The District Court Failed, As North Requires, To ExamineThe Content Of The Iraqi Eyewitnesses’ Grand JuryTestimony – And To Determine Whether TheirIdentification Of The Shooters Was Affected By AnyExposure They May Have Had To The Press.
In finding that the grand jury testimony of all the Iraqis who helped identify
the shooters tainted the indictment, the court focused on their likely exposure to
the “widely reported” press accounts of the guards’ statements (i.e., “that they
were responding to hostile fire”) in the weeks following the shooting. Mem.Op.
72. Putting aside several of the court’s ancillary assumptions, see infra, n.28, its
analysis falters on a most basic level. As this Court has held, it is not a witness’s
mere exposure to immunized testimony that taints him. The relevant Kastigar
inquiry, rather, is whether the content of his testimony was affected or shaped by
that exposure. See North II, 920 F.2d at 942 (Kastigar “call[s] for an inquiry * * *
into the content and circumstances of witnesses’ testimony”); id. (court must
determine “what additional knowledge, if any” witness gleaned from exposure to
immunized testimony) (citation, quotation omitted); id. at 943 (government must
prove witness “did not draw upon the immunized testimony to use it against the
defendant”); id. at 946; North I, 910 F.2d at 872. 26
Of course, if a witness is motivated to testify based on exposure to an26
immunized statement, his testimony may be thereby tainted. North II, 920 F.2d at942. Here, the court did not suggest that the Iraqis who were in Nisur Square on
As noted, the Iraqi eyewitness accounts were summarized in the grand jury
by FBI Agent Powell. 27
See,
e.g., GJ.Tr.12/2/08/pm/20-23
id. at 26-27
id. at 6-7, 11
id. at 42-44
GJ.Ex.107/1-8.
E.g.,
GJ.Tr.12/2/08/pm/6-9
the 16 were somehow motivated to talk to investigators based on something theyth
may have later read in the press. The court, rather, seems to have assumed theobvious: the Iraqi witnesses were motivated not by anything they read, butbecause they or their friends and loved ones were shot at, wounded, or killed thatday.
Thus, the district court’s reliance on the wide dissemination of these reports
misconceives the Kastigar inquiry – for even if the Iraqi witnesses were exposed
to such reports (even pervasively so), that exposure could not have affected their
particular identification of the shooters.28
28
The government need not negate “all abstract possibility of taint,” United States v.Schmidgall, 25 F.3d 1523, 1529 (11 Cir. 1994), and these fewth
stories represent no more than that. See Kilroy, 27 F.3d at 687 (government’sKastigar burden not defeated where record silent as to whether auditor who wasprompted to investigate defendant’s fraud had read article relating to hisimmunized statements). Indeed, even more generally, there is nothing to suggestthat Arabic-speaking Iraqis, see 10/15/am/89; 10/16/pm/19; 10/19/pm/69(interviews conducted through interpreters), were logging onto the ABC website,reading The Times, or otherwise following the American press. And although thedefense said it understood that Al-Jazera had Blackwater accounts on its websiteand that “it’s very likely” the Iraqi witnesses were exposed to the defendants’statements, 10/19/pm/42-43, none of the defense media exhibits included any
The district court’s failure to appreciate North’s requisite focus on the
content of a witness’s testimony was also apparent at the Kastigar hearing. Before
the hearing, the government provided the defense with all the underlying
statements of the Iraqi witnesses, 10/19/pm/76-78, 81, 84-86, and at the hearing, it
attempted to present a brief synopsis of its prospective trial witnesses’ testimony
to show the independent basis for their knowledge. See 10/19/pm/79-80 (“the
purpose is to show this witness * * * will be able to say, for example, that he saw
* * * four vehicles, and three * * * were firing. Or he only saw two vehicles, and
one * * * was firing.”); accord 10/16/pm/20-21. The defense objected to “getting
into the merits of what the witness said,” 10/19/pm/81, and the court sustained the
objection. 10/19/pm/81-82, 84, 87. When the government asked that the court
simply be allowed to look at its chart summarizing the Iraqis’ testimony, the
defense again objected. 10/19/pm/87-88 (“this contains information * * * the
Arabic accounts. See Def.Exs.1-46. Moreover, when Kohl interviewed the Iraqiwitnesses, he was struck by how many did not have access to the internet or knowhow to type a website address into a computer. 10/28/pm/81-82.
The court’s opinion further (and more specifically) reveals its error. In
finding that all the Iraqi witnesses were tainted, the court focused on a few who
were exposed to the defendants’ statements. Mem.Op. 72-73. These, the court
reasoned, illustrated the taint problem vis-a-vis all the Iraqis, id. – but, in fact, the
court’s examples better illustrate how its analysis went wrong. Take, for instance,
Hassan Jabir Salman, a victim of the shooting who told reporters from the
hospital, “[i]t is not true when they say they were attacked. We did not hear any
gunshots before they started shooting.” Mem.Op. 72 (quoting Def.Ex.43).
Salman’s statement was tainted, according to the court, because it “appears to have
been a direct response to the defendants’ compelled accounts that they had
encountered incoming fire[.]” Id. Even if true, the court’s observation misses the
point. Not only is an interview from a hospital bed not the same thing as a
statement to the grand jury,
In light of that ruling, the government redacted the substance from its29
chart, and presented another piece of its evidence: that in pretrial interviews inJune 2009, nearly all the Iraqi witnesses said they had never seen the defendants’statements. 10/19/pm/72-76, 87-98; Ex.23; see 11/2/am/74-78 (AUSA Malis,explaining detailed protocol for questioning witnesses about possible exposure tostatements); Ex.45; 10/19/pm/67-71; 10/20/pm/27-28 (FBI Agent Murphy,explaining efforts in October 2007 to ensure witnesses spoke only about what they“saw with their own eyes [or] * * * heard with their own ears”).
Finally, the court pointed to Sarham Deab Abdul Moniem Da-Zubaidi, who
was exposed to information from the defendants’ statements from DSS agents.
Mem.Op. 73 (agents told him “the Blackwater guards said he was pushing the
[Kia] towards the convoy”). But the court’s conclusion that “allegations made by
Da-Zubaidi were specifically included in the summary of evidence against Slough
and Ball,” id. (citing GJ.Ex.107/1, 7), again misconstrues the inquiry – for the
content of Da-Zubaidi’s allegations
had nothing to do with the pushing of any car. 31
Throughout its opinion, the district court emphasized that news reports
conveying the substance of the defendants’ compelled statements – “that they were
responding to hostile fire” – were widely reported, and thus spreading Kastigar
taint. See Mem.Op. 61-62, 63 n.46, 72.
GJ.Ex.107; see GJ.Ex.1
31
See Ex.302. The court found that Da-Zubaidi’sexposure through those interviews is “hardly surprising,” given Agent Carpenter’sacknowledgment that some questions “‘may have been formed as a result ofinformation provided by [Raven] 23.’” Mem.Op. 73 n.56 (quotingCarpenter.Ex.8). The court failed, however, to quote the remainder of Carpenter’ssentence –
2. Frost Was Motivated To Preserve His Memory About AMomentous And Tragic Event, And Would Have WrittenHis Journal Regardless Of Any Exposure To TheDefendants’ Statements.
(harmless-error inquiry “mandates consideration of the entire record”). As this35
Court has elsewhere put it, the “core of the [constitutional harmlessness] inquiry is
the strength of the government’s residual case.” United States v. Stock, 948 F.2d
1299, 1302 (D.C. Cir. 1991).
Here, the grand jury was charged with deciding whether there was probable
cause to believe the defendants committed voluntary manslaughter – that is, the
“unlawful killing of a human being without malice * * * [u]pon a sudden quarrel
or heat of passion,” 18 U.S.C. § 1112(a), and attempted manslaughter, 18 U.S.C.
§ 1113, as well as aiding and abetting liability. And while the law
does not
punish an honest and reasonable act of self-defense, if a shooter does not honestly
believe he is in danger of serious bodily injury, or if his honest belief is
unreasonable, the law holds him accountable. See United States v. Alexander, 471
See also Ponds, 454 F.3d at 329 (use of Kastigar evidence harmless if35
“in light of evidence from independent sources, [it] was so unimportant andinsignificant” that it had “little, if any, likelihood of having changed the result ofthe proceeding”) (citation, quotation omitted); United States v. Pelletier, 898 F.2d297, 303 (2d Cir. 1990) (in deciding whether to dismiss indictment, court mustassess “extent of use of the immunized testimony” in light of other evidencebefore the grand jury); Rogers, 722 F.2d at 560 (Kastigar error in grand juryharmless “in light of the more than adequate untainted evidence to support theindictment”); accord United States v. Serrano, 870 F.2d 1, 16 (1 Cir. 1989)st
(noting “substantial untainted evidence presented to the grand jury”); UnitedStates v. Gallo, 859 F.2d 1078, 1083-84 (2d Cir. 1988).
F.2d 923, 942 (D.C. Cir. 1973); United States v. Peterson, 483 F.2d 1222, 1229-30
(D.C. Cir. 1973) (“the law of self-defense is a law of necessity * * * and never
must the necessity be greater than when the force employed defensively is
deadly[.] * * * The defender must have believed that he was in imminent peril of
death or serious bodily harm, and that his response was necessary to save himself
therefrom. These beliefs must not only have been honestly entertained, but also
objectively reasonable in light of the surrounding circumstances”) (citation,
quotation omitted). 36
Here, the government’s “residual case” on behalf of its manslaughter
charges was overwhelming. The physical evidence alone –
– told a powerful story. Colonels Boslego and
Tarsa (whose testimony the court did not find was tainted) further filled in the
picture.
See also United States v. Harris, 420 F.3d 467, 476 (5 Cir. 2005)36 th
(“[t]he term ‘heat of passion’ means a passion of fear or rage in which thedefendant loses his normal self-control as a result of circumstances that wouldprovoke such a passion in an ordinary person, but which did not justify the use ofdeadly force”).
evidence would * * * transform[] [the grand jury] from an accusatory to an
adjudicatory body”).
Here, the tainted testimony in the grand jury paled in comparison to what,
rightly viewed, was untainted. And given the strength of the untainted evidence,
this Court should conclude as to Slough, Liberty, Heard, and Ball that any
Kastigar error was harmless beyond a reasonable doubt.38
Both at the Kastigar hearing and in its opinion, the court sharply38
criticized the government for not presenting exculpatory evidence to the grandjury. Mem.Op. 22-24; e.g., 11/2/pm/78. Although the issue did not overtly figureinto the court’s taint analysis, it plainly affected the court’s thinking. Indeed, in ahearing that was very much on the clock, e.g., 10/22/pm/63 (“you have eightminutes”); 10/23/am/83 (“wind it up”); 10/23/pm/96 (“only 16 seconds left”), thecourt devoted the better part of a day to determining whether, in choosing whattestimony to present to the second grand jury, the government excludedexculpatory evidence. See 11/3/am/5-20, 31-75; 11/3/pm/4-38; 11/3/am/16 (“[I]t’simportant. * * * [I]ts implications * * * affect * * * some of the other judgmentsI’m going to make * * * .”); id. (“I find that this exculpatory line of questioning * * * is very relevant for a host of reasons, many of which touch upon theKastigar/Garrity issue.”).
To the extent the court found the issue “very relevant,” it did so wrongly. As Williams makes clear, the government is not legally obliged to present anyexculpatory evidence to the grand jury. Notwithstanding the Williams rule,however, it is DOJ policy that “when a prosecutor conducting a grand jury inquiryis personally aware of substantial evidence that directly negates the guilt of asubject of the investigation, the prosecutor must present or otherwise disclose suchevidence to the grand jury before seeking an indictment[.]” U.S. Attorneys’Manual § 9-11.233. While these guidelines do not provide a basis for dismissingan indictment, e.g., Montoya, 45 F.3d at 1295, the prosecutors here did take theirobligation seriously, see 11/3/am/31-34 (Malis) – and, as described, supra, at 47-48, presented substantial exculpatory evidence to the grand jury. The court’s
at 860. This Court evaluates harmlessness de novo. See United States v. Oruche,
484 F.3d 590, 600-01 (D.C. Cir. 2007).
B. Where The Government Has Sufficient, Independent Evidence ToIndict, The Fifth Amendment Does Not Require It To Prove ThatA Prosecutor’s Charging Recommendation Was Unaffected ByHis Exposure To Immunized Testimony.
As this Court has noted, a prosecutor’s consideration of an immunized
statement in “deciding to initiate prosecution” could constitute a non-evidentiary
use of that statement. North I, 910 F.2d at 857. Ruling that such non-evidentiary
use is impermissible, the district court dismissed the indictment against Heard and
Ball upon finding that the government’s decision to charge them was prompted by
its exposure to their Garrity statements. Mem.Op. 75-78. This Court need not
decide whether all manner of non-evidentiary use is permissible under Kastigar –
but it should decide that where, as here, an indictment is supported by sufficient
evidence derived from wholly independent sources, the government need not show
that a prosecutor’s charging recommendation was unaffected by his exposure to an
immunized statement.
This position follows from familiar Fifth Amendment principles. The
Amendment provides that “[n]o person * * * shall be compelled in any criminal
case to be a witness against himself.” U.S. Const. amend. V. This core
into the prosecutor’s thought processes in deciding whether to recommend charges
– for to make him prove that his thinking was unaffected by exposure to an
immunized statement would blur the important line between use and transactional
immunity.
United States v. Byrd, 765 F.2d 1524 (11 Cir. 1985), is particularlyth
instructive. There, after an indictment was dismissed against a defendant who
gave immunized testimony to the grand jury, the prosecutor who elicited the
testimony participated in the decision to reindict. Id. at 1529-31. The court found
no Kastigar violation:
Kastigar [does not] require a court to inquire into a prosecutor’s motives inseeking indictment. So long as all the evidence presented to the grand juryis derived from legitimate sources independent of the defendant’simmunized testimony, and the grand jury finds that independent evidencesufficient to warrant the return of an indictment, the defendant’s privilegeagainst self-incrimination has not been violated. At a minimum, theexistence of independent evidence sufficient to establish probable cause toindict must be deemed to raise a presumption that the decision to indict wasnot tainted. Any other result would be the equivalent of transactionalimmunity, for it is almost impossible to conceive of a method whereby thegovernment could demonstrate by a preponderance of the evidence that theimmunized testimony did not indirectly enter into a subsequent decision toprosecute.
Id. at 1530-31; id. (Fifth Amendment is not concerned “with the exercise of
a defendant transactional immunity once it is shown that government attorneys or
investigators * * * were exposed to the immunized testimony”); see also United
States v. Velasco, 953 F.2d 1467, 1474 (7 Cir. 1992) (“the mere tangentialth
influence that privileged information may have on the prosecutor’s thought
process in preparing for trial is not an impermissible ‘use’ of that information”).39
As these decisions recognize, Kastigar does not require prosecutors to
prove that, in seeking an indictment, their thinking was unaffected by immunized
testimony. The purpose of use immunity is not to immunize a witness from
prosecution, but to leave both him and the government in “substantially the same
position” they would have been in had the witness claimed his privilege against
self-incrimination. Kastigar, 406 U.S. at 458-59. The return of an indictment
fully supported by wholly independent evidence does just that. In fact, to dismiss
such an indictment based on an examination of the prosecutor’s motives in
recommending it would put the defendant in a better position than he would have
As this Court has noted, the Eighth and Third Circuits have taken a39
very restrictive view of non-evidentiary use of immunized testimony, see North I,910 F.2d at 857-860 (discussing United States v. McDaniel, 482 F.2d 305 (8 Cir.th
1973), and United States v. Semkiw, 712 F.2d 891 (3d Cir. 1983)), but as thedistrict court recognized, this Court appears to have rejected a blanket prohibition. Mem.Op. 29 (citing North I, 910 F.2d at 859-60).
been in had he claimed his privilege, in contravention of settled Fifth Amendment
principles.
C. The District Court Clearly Erred In Finding The Government’sExposure To Heard’s And Ball’s Compelled Statements Played A“Central Role” In The Decision To Charge Them.
Even if this Court believes Kastigar prohibits a prosecutor’s non-
evidentiary use of compelled testimony in deciding whether to recommend
charges, the district court clearly erred in concluding that the government made
such prejudicial non-evidentiary use here.
1. The Decision To Recommend Charges Against Heard WasBased On The Independent Evidence Against Him, Not HisSeptember 16 Statement – And The Reference To Heard’sStatement In The Prosecution Memo, Later Redacted, WasHarmless Beyond A Reasonable Doubt.
Kohl added Heard to his target list in March 2008. 10/28/am/39-40; Ex.70.
As he explained, that decision was made after the February 2008 trip to Baghdad –
in which Colonel Boslego told Kohl that launching a grenade in a busy square was
“virtually per se reckless,” and after which Kohl concluded that the shooting into
the Kia was unjustified (despite the benefit of the doubt given by Frost and Mealy
on the matter). 10/28/am/42-46. As Kohl further explained, Frost, Mealy and
Murphy were also speaking sympathetically about Heard and Ball, so although
80 pages, the government summarized its evidence against each defendant.
10/29/am/166-68, 173-74.
See 10/29/am/167-183; e.g., Kohl.Ex.70. After vetting by the taint
attorneys, this subsection was deleted from the final memo, and in an email to his
superiors, Kohl noted the change and said the “prosecution recommendation” was
based “on the other evidence in the case.” 10/29/am/183-84; 11/2/am/63-65;
Ex.69.#4464; Ex.308.#5901-02; see also 10/29/pm/5-7 (Kohl: Heard’s statement
never came up in any discussions with supervisors).40
Given the strength of its evidence against Heard
see GJ.Ex.107/3-4), it
is clear that this one subsection, deleted before the final prosecutive decision was
At the Kastigar hearing, the government attempted to admit the entire40
final (redacted) prosecution memo, which detailed the government’s otherevidence against Heard (and the others). See 10/29/pm/14-17. The court,however, sustained the defense objection to the memo’s admission. Id.
approved without the Kastigar evidence – they were – or whether the grand jury
would have indicted without mention of the evidence. It did. 41
2. The Decision To Recommend Charges Against BallWas Based On The Independent Evidence AgainstHim, Not His Garrity Statements.
Kohl added Ball to his target list in April 2008. 10/28/am/40; Ex.70. Kohl
explained that he did so based on several factors: the decision to charge the Kia;
the decision to pursue a mass liability theory (by which all shooters would be held
responsible); and the decision to credit the Iraqi witnesses who saw shooting from
vehicle 1 (which the government attributed to Ball) west of the circle. See supra,
at 39-40.
The court dismissed Kohl’s explanation, and again found that the timing of
the government’s exposure to Ball’s Garrity statements better explained his
addition as a target. Mem.Op. 77-78. The government was first exposed to Ball’s
September 16 statement in January and February 2008, and the FBI saw an
unsigned draft of Ball’s written statement, acquired through the search warrant, in
Similarly, even if Kohl’s overture to Heard’s counsel regarding plea41
negotiations, and his suggestion that Heard might be interested in talking becauseof what he had said to Lopez, see 10/29/am/161-165, could be considered animpermissible non-evidentiary “use,” Mem.Op. 76, it was plainly harmless –because those discussions went nowhere. Cf. Bank of Nova Scotia v. UnitedStates, 487 U.S. 250, 255 (1988) (“a district court exceeds its powers in dismissingan indictment for prosecutorial misconduct not prejudicial to the defendant”).
exposure to them could not have driven any charging decision because the
statements told the government nothing it had not already and independently
known for months.
D. The District Court Clearly Erred In Finding The GovernmentOtherwise Made Non-Evidentiary Use Of The Defendants’Statements In Securing The Indictment.
The district court also found, as to all defendants, that the government failed
to show it made “no significant non-evidentiary use” of their post-shooting
statements, and ruled that dismissal of the indictment was separately required for
that reason as well. Mem.Op. 78-85. Two basic judgments informed the court’s
thinking. First, the court essentially found bad faith by the government – that is,
that the trial team “aggressively sought” and “went to great lengths” to obtain
information gleaned from the defendants’ compelled statements “in direct
contravention” of taint attorney Hulser’s directives. Mem.Op. 79-82; id. at 83
(“Kohl and the rest of the trial team purposefully flouted the advice of the taint
team”); Mem.Op. 2 (the “trial team repeatedly disregarded the warnings of
experienced, senior prosecutors”); Mem.Op. 17 (same). Most of the court’s
discussion, in fact, is devoted to this point – as it reviewed at length the
government’s efforts to obtain the statements, and harshly rejected Kohl’s
most important prosecution. And the government does not dispute that it actively
sought the defendants’ September 16 statements. We do, however, take issue with
the court’s characterization of the trial team’s conduct on that matter. As we have
endeavored to explain, Kohl in good faith believed, based on what he knew of the
law and the facts, that the September 16 statements were not “compelled” for
Garrity purposes. Indeed, Hulser agreed, despite having himself taken a more
“conservative approach,” that Kohl’s position was reasonable. 10/23/am/8. And
although the court mocks the government’s description of events as a
“miscommunication,” Mem.Op. 82, that is what the record fairly shows –
especially given Kohl’s emails indicating that he, in fact, believed Hulser had
cleared his use of the September 16 statements. E.g., Ex.68.#2719-20. Hulser,
notably, read the emails that way, too. See 10/23/am/68 (“it seems to me, looking
at the emails, that [the prosecution team] didn’t actually get the exact advice that I
had given”). 42
Despite the obvious importance of our disagreement with the court about
the government’s conduct, it is, in the end, not the central point – and the court’s
Although the district court clearly credited Hulser’s testimony, e.g.,42
10/23/pm/13 (“[t]his is an honest witness”), it failed to mention Hulser’s ownsense that the trial team had not gotten his advice, and his view that Kohl’ssubstantive position vis-a-vis the September 16 statements was reasonable.
same). This is simply not a case where a prosecutor’s knowledge of immunized43
testimony “help[ed] explicate evidence theretofore unintelligible,” “expos[ed] as
significant facts once thought irrelevant,” “indicate[d] which witnesses to call, and
in what order,” or “help[ed] in developing opening and closing arguments.” North
While barely mentioning the FBI’s physical evidence, see Mem.Op.43
12, the court discussed at some length its view that the physical evidence collectedby DSS agents on September 20, and later given to the FBI, was tainted by theagents’ exposure to the defendants’ statements. Mem.Op. 86-88; see Ex.27
Ex.275. Concluding that the evidence “may have been highly relevant to thecriminal case,” the court found its use constituted “yet another Kastigarviolation.” Mem.Op. 87-88. This finding, again, is untethered to the record:
GJ.Ex.87A-E, 88C,88G see GJ.Tr.11/25/08/49-55,GJ.Ex.88F – none of the physical evidence collected by the DSS was presented tothe grand jury.
The district court also reiterated its criticism of the February 2008 searchwarrant project and the August 2008 consideration of false statement chargesbased on the September 16 statements. Mem.Op. 80-81. Again, however, nothingcame of either: none of the material was presented to the grand jury, and noobstruction or false statement charges were brought.
non-evidentiary value. See McGuire, 45 F.3d at 1183 (“immunized testimony
which merely confirms information previously known to government agents from
independent sources does not preclude prosecution”) (citation, quotation omitted);
Mariani, 851 F.2d at 600 (prosecutor’s prior knowledge of substantially all
information covered in immunized testimony forecloses possibility that he used
it); Crowson, 828 F.2d at 1432 (where government can prove prior, independent
source for its evidence, “the non-evidentiary purposes of trial strategy, etc., would
seemingly have been developed anyway”).44
But even more importantly, the government’s theory of the case simply did
not turn on the type of information the court thought so valuable. As noted, the
government charged the case on a “mass” liability theory: it was (and is) the
government’s view that all the shooters should be held responsible because each
joined in one reckless and unjustified shooting spree, aiding and abetting each
other. That theory does not require proof that any defendant was responsible for
See also Ex.64.#4367-69 (Kohl to supervisors: “the shooters were44
already identified by the time the prosecution team was exposed to [the 9/16]statements (through, for example, the recovery of Liberty’s magazine at the scene* * *, the Iraqi witness identifications of the shooters based on vehicle and/orturret positions, and the accounts of Blackwater witnesses provided to the FBIand/or the grand jury prior to the exposure of the prosecution team) ** * the oralstatements were not used to develop any leads, confront any witnesses, orotherwise develop other evidence * * * [and] the oral statements themselves werevery brief and largely exculpatory”).
any particular shots at any particular victim. As the Fifth Circuit found in the
analogous case of the Branch Davidian killing of several ATF agents:
In a prosecution for aiding and abetting a crime, the Government need notidentify a specific person or group of individuals as the principal. * * * Tothe contrary, the Government need only show that the substantive offensehad been committed by someone and that the defendant aided and abettedhim. * * * The Government never claimed to be able to prove who fired thespecific rounds that killed the four ATF agents. The inability to identify theactual gunmen, however, does not negate the evidence proving thatsomeone in the compound killed the agents. * * * We find no difficulty inholding that actively participating in a gunbattle in which a gunman kills afederal officer can aid and abet that killing.
United States v. Branch, 91 F.3d 699, 732 (5 Cir. 1996) (citation, quotationth
omitted).
Thus, the “wealth” of information the defendants’ statements may (or may
not) have provided about specific targets was not only redundant of what the
government already knew, it was essentially irrelevant to its theory of the case.
And where, as here, immunized statements are of little use (indeed, the
government viewed these as incomplete, false and self-serving), it is simply not
reasonable to assume – let alone deem it a foregone conclusion, as did the district
court – that the government made significant non-evidentiary use of the
statements. See, e.g., Daniels, 281 F.3d at 182 (prosecutors’ exposure to
immunized testimony did not prejudice defendant, where testimony contained no
The district court, plainly, was unhappy with the government. In its
displeasure (whether fair or not), the court lost sight of the central Kastigar
inquiry – which asks whether, how, and to what extent a defendant’s immunized
testimony was actually used against him – and unjustifiably drew the curtain on a
meritorious prosecution. As we explain, the indictment was not fatally tainted by
either evidentiary or non-evidentiary Kastigar error. It should be reinstated.
Respectfully submitted,
LANNY A. BREUER Assistant Attorney General
GREG D. ANDRES Acting Deputy Assistant Attorney General
________/s/___________________JOSEPH N. KASTER DEMETRA LAMBROSMICHAEL DITTOE Attorney Trial Attorneys National Security Division U.S. Department of Justice
(a) Manslaughter is the unlawful killing of a human being without malice. It is of two kinds:
Voluntary–Upon a sudden quarrel or heat of passion.Involuntary–In the commission of an unlawful act not amounting to a
felony, or in the commission in an unlawful manner, or without due caution andcircumspection, of a lawful act which might produce death.
(b) Within the special maritime and territorial jurisdiction of the UnitedStates,
Whoever is guilty of voluntary manslaughter, shall be fined under this titleor imprisoned not more than 15 years, or both;
Whoever is guilty of involuntary manslaughter, shall be fined under thistitle or imprisoned not more than 8 years, or both.
18 U.S.C. § 1113. Attempt to commit murder or manslaughter
Except as provided in section 113 of this title, whoever, within the specialmaritime and territorial jurisdiction of the United States, attempts to commitmurder or manslaughter, shall, for an attempt to commit murder be imprisoned notmore than twenty years or fined under this title, or both, and for an attempt tocommit manslaughter be imprisoned not more than seven years or fined under thistitle, or both.
18 U.S.C. § 924(c). Penalties
(1)(A) Except to the extent that a greater minimum sentence is otherwiseprovided by this subsection or by any other provision of law, any person who,during and in relation to any crime of violence or drug trafficking crime (includinga crime of violence or drug trafficking crime that provides for an enhancedpunishment if committed by the use of a deadly or dangerous weapon or device)for which the person may be prosecuted in a court of the United States, uses orcarries a firearm, or who, in furtherance of any such crime, possesses a firearm,shall, in addition to the punishment provided for such crime of violence or drugtrafficking crime–
(i) be sentenced to a term of imprisonment of not less than 5 years;(ii) if the firearm is brandished, be sentenced to a term of imprisonment of
not less than 7 years; and(iii) if the firearm is discharged, be sentenced to a term of imprisonment of
not less than 10 years.(B) If the firearm possessed by a person convicted of a violation of this
subsection–(i) is a short-barreled rifle, short-barreled shot-gun, or semiautomatic assault
weapon, the person shall be sentenced to a term of imprisonment of not less than10 years; or
(ii) is a machinegun or a destructive device, or is equipped with a firearmsilencer or firearm muffler, the person shall be sentenced to a term ofimprisonment of not less than 30 years.
(c) In the case of a second or subsequent conviction under this subsection,the person shall–
(i) be sentenced to a term of imprisonment of not less than 25 years; and(ii) if the firearm involved is a machinegun or a destructive device, or is
equipped with a firearm silencer or firearm muffler, be sentenced to imprisonmentfor life.
(D) Notwithstanding any other provision of law–(i) a court shall not place on probation any person convicted of a violation
of this subsection; and(ii) no term of imprisonment imposed on a person under this subsection
shall run concurrently with any other term of imprisonment imposed on theperson, including any term of imprisonment imposed for the crime of violence ordrug trafficking crime during which the firearm was used, carried, or possessed.* * *
(3) For purposes of this subsection the term “crime of violence” means anoffense that is a felony and–
(A) has as an element the use, attempted use, or threatened use of physicalforce against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force againstthe person or property of another may be used in the course of committing theoffense.
(4) For purposes of this subsection, the term “brandish” means, with respectto a firearm, to display all or part of the firearm, or otherwise make the presence ofthe firearm known to another person, in order to intimidate that person, regardlessof whether the firearm is directly visible to that person.
(5) Except to the extent that a greater minimum sentence is otherwiseprovided under this subsection, or by any other provision of law, any person who,during and in relation to any crime of violence or drug trafficking crime (including
a crime of violence or drug trafficking crime that provides for an enhancedpunishment if committed by the use of a deadly or dangerous weapon or device)for which the person may be prosecuted in a court of the United States, uses orcarries armor piercing ammunition, or who, in furtherance of any such crimepossesses armor piercing ammunition, shall, in addition to the punishmentprovided for such crime of violence or drug trafficking crime or conviction underthis section–
(A) be sentenced to a term of imprisonment of not less than 15 years; and(B) if death results from the use of such ammunition–(i) if the killing is murder (as defined in section 1111), be punished by death
or sentenced to a term of imprisonment for any term of years or for life; and(ii) if the killing is manslaughter (as defined in section 1112), be punished
as provided in section 1112.
18 U.S.C. § 2. Principals
(a) Whoever commits an offense against the United States or aids, abets,counsels, commands, induces or procures its commission, is punishable as aprincipal.
(b) Whoever willfully causes an act to be done which if directly performedby him or another would be an offense against the United States, is punishable as aprincipal.
18 U.S.C. § 3261(a)(1). Criminal offenses committed by certain members ofthe Armed Forces and by persons employed by or accompanying the ArmedForces outside the United States
(a) Whoever engages in conduct outside the United States that wouldconstitute an offense punishable by imprisonment for more than 1 year if theconduct had been engaged in within the special maritime and territorialjurisdiction of the United States–
(1) while employed by or accompanying the Armed Forces outside theUnited States * * *shall be punished as provided for that offense.