DOJ Blackwater Brief

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

(202) 307-5964

Case: 10-3006 Document: 1250238 Filed: 06/16/2010 Page: 1

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

A. PARTIES AND AMICI

The parties appearing in the district court were the United States of America

as plaintiff and defendants Paul Alvin Slough, Nicholas Abram Slatten, Evan

Shawn Liberty, Dustin Laurent Heard, and Donald Wayne Ball. These same

parties are before this Court. There are no intervenors or amici.

B. RULINGS UNDER REVIEW

The United States appeals the district court’s (Hon. Ricardo M. Urbina)

dismissal of the indictment in a criminal case, D.C. No. 08-0360. The court’s

opinion was entered on December 31, 2009, and is reported at 677 F.Supp.2d 112

(D.D.C. 2009). The memorandum opinion (“Mem.Op.”) appears at JA__.

The following rulings are under review:

1. The district court’s findings that the government made evidentiary

use of the defendants’ immunized statements in securing the indictment, in

violation of Kastigar v. United States, 406 U.S. 441 (1972). Mem.Op. 51-75

(JA__).

2. The district court’s ruling that a prosecutor’s consideration of a

defendant’s immunized statement in deciding whether to recommend charges

constitutes an impermissible non-evidentiary use of the statement under Kastigar,

and the court’s findings that the government made significant non-evidentiary use


of the defendants’ immunized statements in securing the indictment. Mem.Op. 75-

85 (JA__).

3. The district court’s finding that any Kastigar errors were not harmless

beyond a reasonable doubt. Mem.Op. 88-89 (JA__).

C. RELATED CASES

After the district court dismissed the indictment without prejudice, it denied

Slatten’s and Ball’s motions to dismiss with prejudice based on prosecutorial

misconduct. That opinion was entered on January 19, 2010 (JA__), and is

reported at 679 F.Supp.2d 55 (D.D.C. 2010).

The Kastigar hearing was closed to the public and the press. At the

conclusion of the hearing, the district court ordered that the Kastigar materials

remain under seal pending the government’s decision to seek appeal, but also

ordered that the materials be unsealed on February 2, 2010, the day after the

government’s deadline for noticing an appeal. That opinion (JA__) in D.C. No.

1:10-mc-00005, is reported at 677 F.Supp.2d 296 (D.D.C. 2010); id. (also ordering

release of redacted pre- and post-hearing memoranda). On January 29, 2010, the

court denied the joint motion by the government and defendants to maintain the

Kastigar materials under seal (JA__). The government’s appeal of that ruling in

Washington Post, et al., v. United States, et al., is this Court’s Case No. 10-3007.

Counsel is aware of no other related cases.


Material Under Seal Deleted

TABLE OF CONTENTS

JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTES AND REGULATIONS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. Introduction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B. Blackwater, The Raven 23 Convoy, Its Rules Of Engagement,And The Shooting At Nisur Square. . . . . . . . . . . . . . . . . . . . . . . . . . . 5

C. U.S. Colonels Boslego And Tarsa Go To The Scene, And .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

D. Back At Blackwater Headquarters, Several Raven 23 Guards AreAngry And Upset, .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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


Material Under Seal Deleted

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.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

J. The District Court’s Opinion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

THE INDICTMENT SHOULD BE REINSTATED

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

A. Standards of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

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

1. Background: The Tainted Testimony. . . . . . . . . . . . . . 61

2. Frost’s And Murphy’s Isolated And AdmittedlySpeculative Testimony About First Shots Does Not Cast Doubt On The Independence Of All Their First-Hand Observations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

ii


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

1. Background: The Frost Journal. . . . . . . . . . . . . . . . . . . 81

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

1. Background: Ridgeway’s Debriefing And Grand JuryEvidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

2. All Of Ridgeway’s Information Was Not Tainted.. . . . 92

G. The Tainted Testimony Presented To The Grand Jury WasHarmless Beyond A Reasonable Doubt. . . . . . . . . . . . . . . . . . 94

iii


II. THE DISTRICT COURT ERRED IN FINDING THE GOVERNMENT MADE IMPERMISSIBLE AND SIGNIFICANTNON-EVIDENTIARY USE OF THE DEFENDANTS’COMPELLED STATEMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

A. Standards of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

iv


TABLE OF AUTHORITIES

CASES

Arizona v. Fulminante, 499 U.S. 279 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . 58, 95

Bank of Nova Scotia v. United States, 487 U.S. 250 (1988).. . . . . . . . . . . . . . . . 111

Chapman v. California, 386 U.S. 18 (1967).. . . . . . . . . . . . . . . . . . . . . . . . . . 60, 95

Chavez v. Martinez, 538 U.S. 760 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

Costello v. United States, 350 U.S. 359 (1956). . . . . . . . . . . . . . . . . . . . . . . . . . . 99

Garrity v. New Jersey, 385 U.S. 493 (1967).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Harrington v. California, 395 U.S. 250 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . 95

Kalkines v. United States, 473 F.2d 1391 (Ct. Cl. 1973). . . . . . . . . . . . . . . . . . . . . 2

* Kastigar v. United States, 406 U.S. 441 (1972).. . . . . . . . . . 2, 4, 5, 52, 57, 58, 59, 68, 71, 85, 96, 101, 103 106, 112, 113, 116

Neder v. United States, 527 U.S. 1 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

In re Stover, 40 F.3d 1096 (10th Cir. 1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

United States v. Alexander, 471 F.2d 923 (D.C. Cir. 1973). . . . . . . . . . . . . . . . . 96

United States v. Anderson, 450 A.2d 446 (D.C. 1982).. . . . . . . . . . . . . . . . . . . . 123

* United States v. Biaggi, 909 F.2d 662 (2d Cir. 1990). . . . . . . . . . . . . . . . . . . . . . 84

United States v. Branch, 91 F.3d 699 (5th Cir. 1996). . . . . . . . . . . . . . . . . . . . . 122

* Authorities upon which we chiefly rely are marked with asterisks.

v


* United States v. Byrd, 765 F.2d 1524 (11th Cir. 1985). . . . . . . . . . . . . . . . 104, 116

United States v. Caporale, 806 F.2d 1487 (11th Cir. 1986).. . . . . . . . . . . . 116, 123

United States v. Crowson, 828 F.2d 1427 (9th Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116, 121

* United States v. Daniels, 281 F.3d 168 (5th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 99, 119, 122

United States v. DeDiego, 511 F.2d 818 (D.C. Cir. 1975). . . . . . . . . . . . . . . . . . . 59

United States v. Gallo, 859 F.2d 1078 (2d Cir. 1988). . . . . . . . . . . . . . . . . . . . . . 96

United States v. Harris, 420 F.3d 467 (5th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . 97

United States v. Harris, 973 F.2d 333 (4th Cir. 1992). . . . . . . . . . . . . . . . . . . . . 116

United States v. Hasting, 461 U.S. 499 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

United States v. Helmsley, 941 F.2d 71 (2d Cir. 1991). . . . . . . . . . . . . . . . . . 57, 84

United States v. Hsia, 131 F. Supp. 2d 195 (D.D.C. 2001). . . . . . . . . . . . . . . . . 116

* United States v. Hylton, 294 F.3d 130 (D.C. Cir. 2002). . . . . . . . . . . . . . 59, 83, 84

* United States v. Kilroy, 27 F.3d 679 (D.C. Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58, 73, 101, 117

United States v. Koon, 34 F.3d 1416 (9th Cir. 1994), rev'd in part on othergrounds, 518 U.S. 81 (1996). . . . . . . . . . . . . . . . . . . . . . . 3

United States v. Lipkis, 770 F.2d 1447 (9th Cir. 1985). . . . . . . . . . . . . . . . . . . . . 64

* United States v. Mariani, 851 F.2d 595 (2d Cir. 1988). . . . . . . . 105, 116, 121, 123

United States v. McDaniel, 482 F.2d 305 (8th Cir. 1973). . . . . . . . . . . . . . . . . . 106

vi


United States v. McGuire, 45 F.3d 1177 (8th Cir. 1995). . . . . . . . . . . . . . . 116, 121

* United States v. Montoya, 45 F.3d 1286 (9th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 79, 93, 100, 105, 116

* United States v. Nanni, 59 F.3d 1425 (2d Cir. 1995). . . . . . . . . . . . . . . . 58, 84, 85

* United States v. North, 910 F.2d 843 (D.C. Cir.), modified, 920 F.2d 940 (D.C. Cir. 1990) . . . . . . . . . . . . . 5, 57, 58, 59, 60, 67, 71

80, 81, 83, 94, 101, 102,106, 116, 118

* United States v. North, 920 F.2d 940 (D.C. Cir. 1990). . . . . . . . . . . . . . . . . . 68, 71

United States v. Oruche, 484 F.3d 590 (D.C. Cir. 2007). . . . . . . . . . . . . . . . . . . 102

United States v. Pelletier, 898 F.2d 297 (2d Cir. 1990). . . . . . . . . . . . . . . . . . . . . 96

United States v. Peterson, 483 F.2d 1222 (D.C. Cir. 1973). . . . . . . . . . . . . . . . . . 97

United States v. Poindexter, 951 F.2d 369 (D.C. Cir. 1991). . . . . . . . . . . 59, 65, 66

* United States v. Ponds, 454 F.3d 313 (D.C. Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 60, 79, 85, 96, 110, 112

United States v. Rivieccio, 919 F.2d 812 (2d Cir. 1990). . . . . . . . . . . . . . . . . . . 105

United States v. Rogers, 722 F.2d 557 (9th Cir. 1983).. . . . . . . . . . . . . . . . . . 68, 96

United States v. Romano, 583 F.2d 1 (1st. Cir. 1978). . . . . . . . . . . . . . . . . . . . . 123

United States v. Schmidgall, 25 F.3d 1523 (11th Cir. 1994). . . . . . . . . . . . . . . . . 73

United States v. Semkiw, 712 F.2d 891 (3d Cir. 1983). . . . . . . . . . . . . . . . . . . . . 106

United States v. Serrano, 870 F.2d 1 (1st Cir. 1989). . . . . . . . . . . . . . . 96, 105, 116

United States v. Stock, 948 F.2d 1299 (D.C. Cir. 1991). . . . . . . . . . . . . . . . . . . . . 96

vii


United States v. Velasco, 953 F.2d 1467 (7th Cir. 1992). . . . . . . . . . . . . . . 106, 116

United States v. Wallace, 964 F.2d 1214 (D.C. Cir. 1992).. . . . . . . . . . . . . . . . . . 58

* United States v. Williams, 504 U.S. 36 (1992). . . . . . . . . . . . . . . . . . . . . . . 99, 100

STATUTES, RULES AND MISCELLANEOUS

18 U.S.C. § 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 96

18 U.S.C. § 924(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2

18 U.S.C. § 1112. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 96

18 U.S.C. § 1113. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 96

18 U.S.C. § 3231. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

18 U.S.C. § 3731. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Fed. R. Crim. P. 6(a), (f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

Fed. R. Evid. 1101(d)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

U.S. Attorney’s Manual § 9-11.233. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

viii


GLOSSARY

Dkt. District Court Docket

DSS U.S. State Department’s Diplomatic Security Service

Embassy United States Embassy in Baghdad, Iraq

Ex. Kastigar Hearing Exhibit

INP Iraqi National Police

JA Joint Appendix

Mem. Op. District Court’s 12/31/09 Memorandum Opinion

RSO State Department’s Regional Security Office

Square Nisur Square in Baghdad, Iraq

State State Department

Tr. Transcript

VBIED Vehicle-borne improvised explosive device


.

JURISDICTION

This is an appeal from the dismissal of an indictment in a criminal case.

The district court (Hon. Ricardo M. Urbina) had jurisdiction under 18 U.S.C.

§ 3231, and dismissed the indictment on December 31, 2009. The government

timely noticed an appeal on January 29, 2010. D.C. No.08-360 (Dkt.235). This

Court has jurisdiction under 18 U.S.C. § 3731.

ISSUES PRESENTED

1. Whether the grand jury testimony of key eyewitnesses to a deadly

shooting was wholly tainted by reports of the defendants’ immunized statements

about the incident in the press – and whether, in light of the overwhelming

untainted evidence presented to the grand jury, any Kastigar error was harmless

beyond a reasonable doubt.

2. Whether, in securing the indictment, the government made

impermissible non-evidentiary use of the defendants’ post-shooting statements,

where the indictment was supported by more than sufficient independent evidence,

and where the defendants’ statements did not provide the government with

information it did not already have or need to make its case.

STATUTES AND REGULATIONS

The charging statutes, 18 U.S.C. §§ 1112, 1113, 924(c), 2, and 3261(a)(1),

are reproduced in an addendum to this brief.


.

STATEMENT OF THE CASE

In December 2008, a federal grand jury in the District of Columbia charged

Paul Slough, Nicholas Slatten, Evan Liberty, Dustin Heard, and Donald Ball with

14 counts of voluntary manslaughter, in violation of 18 U.S.C. §§ 1112, 2, and

3261(a)(1) (the Military Extraterritorial Jurisdiction Act); 20 counts of attempted

manslaughter, in violation of 18 U.S.C. §§ 1113, 2, and 3261(a)(1); and one count

of using and discharging a firearm in relation to a crime of violence, in violation

of 18 U.S.C. §§ 924(c), 2, and 3261(a)(1). The indictment alleged that the

defendants, private security guards under contract with the U.S. State Department

in Iraq, killed or wounded 34 Iraqi civilians in Baghdad’s Nisur Square on

September 16, 2007. See Indictment.

After a hearing under Kastigar v. United States, 406 U.S. 441 (1972), the

district court dismissed the indictment. 12/31/09 Mem.Op. (“Mem.Op.”). It found

that oral statements the defendants made to the State Department on the day of the

shooting were compelled under a threat of job loss under Garrity v. New Jersey,

385 U.S. 493, 500 (1967), and Kalkines v. United States, 473 F.2d 1391, 1393 (Ct.

Cl. 1973) (such statements may not later be used against a public employee in a

criminal proceeding), and that those and subsequent sworn statements to State

were used to secure the indictment, in violation of Kastigar. This appeal followed.

2


.

STATEMENT OF FACTS

A. Introduction

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.

3


.

In navigating these waters in its effort to prosecute the Nisur Square

shooters, the government made mistakes. Its taint procedures did not work as

intended: the prosecutors, believing they were entitled to know what the guards

had said before they gave their sworn Garrity statements, sought out that

information – unaware that the taint attorney had recommended a different course.

And although the government endeavored to present an entirely “clean” case to the

grand jury, some (in our view, very isolated) tainted testimony came in.

The district court did not see it that way. In dismissing the indictment, it

questioned the government’s good faith at every turn: it found that prosecutors

knowingly and deliberately ignored the advice of the taint attorneys; presented

pervasively tainted evidence to the grand jury; and made significant non-

evidentiary use of the defendants’ Garrity statements. Mem.Op. 2-3, 51-88. It

found, in the end, that “myriad Kastigar violations” rendered the indictment

fatally defective. Mem.Op. 88-89.

The record, we respectfully submit, tells a very different story.

4


Material Under Seal Deleted.

B. Blackwater, The Raven 23 Convoy, Its Rules Of Engagement,And The Shooting At Nisur Square2

In 2007, Blackwater Worldwide (“Blackwater”) was a private company that

contracted with the State Department to provide security for U.S. personnel in

Iraq.

GJ.Tr.11/20/08/am/17-18, 61; GJ.Ex.94/10-13.

GJ.Tr.11/20/08/am/32; GJ.Exs.5, 6, GJ.Ex.106/43; GJ.Ex.90/73-74.

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#.

5



GJ.Tr.11/20/08/am/12-14.

GJ.Ex.2.

GJ.Ex.2/3, 13 (emphasis in original).

GJ.Ex.3 (capitalization in original).

GJ.Tr.11/20/08/am/60-61.

GJ.Ex.90/72-73. Id.

6



GJ.Ex.1/14-17.

G.J.Ex.90/16

GJ.Ex.89/37

GJ.Ex.89/47-53.

GJ.Ex.92/30-33.

GJ.Ex.92/34; GJ.Ex.90/18-19. Then, as the

district court put it, “a shooting incident erupted.” Mem.Op. 4.

7



C. U.S. Colonels Boslego And Tarsa Go To The Scene, And

GJ.Ex.106/3-6.

Id. at 22-24.

Id. at 24-26, 35.

Id. at 32.

Id. at 24-26,

32-33.

GJ.Ex.106/38,

51, 54, 68.

8



Id. at 32, 36-62.

Id. at 36.

Id. at 33, 36-37.

GJ.Ex.106/49-50, 69.

Id. at 50

Id. at 37-38, 41-62. 3

Id. at 41-42.

E.g., GJ.Ex.106/703

id. at 49

id. at 48

9



10/23/pm/29

GJ.Ex.106/41.

GJ.Ex.106/49; id.

at 43

id. at 45

Id. at 62-67.

id. at 43, 51

Id. at 67-68.

10



10/21/am/5-6

GJ.Ex.108/21-22.

id. at 24

Id. at

23-24, 45.

id. at 23, 26, 29

Id. at 30 , 24-30, 45, 49.

Id. at 31-36, 42, 45-46.

GJ.Tr.11/20/08/pm/6; GJ.Ex.7.

D. Back At Blackwater Headquarters, Several Raven 23 Guards AreAngry And Upset,

11



GJ.Ex.94/43-44.

Id. at 44,

46.

GJ.Ex.92/86-90.

GJ.Ex.90/57

GJ.Ex.92/87;

GJ.Ex.93/101-02.

see GJ.Ex.94/58-59

Id. GJ.Ex.92/91,

GJ.Ex.94/46-47, 54-55

see id. at 48

12



GJ.Ex.91/51-52

GJ.Ex.92/104; GJ.Ex.93/132-33.

GJ.Ex.90/9-12, 77-81; GJ.Ex.93/23; GJ.Ex.94/61-63;

see GJ.Ex.93/27

GJ.Ex.93/23, 30-32.

GJ.Ex.90/66-68, 79-81.

GJ.Ex.92/82-83.

Id.

GJ.Ex.93/117-20,

GJ.Ex.90/68-69.

13



GJ.Ex.90/50-52, 78; GJ.Ex.93/98-100.

GJ.Ex.90/69-71

Id. at

71-72

GJ.Ex.90/77.

GJ.Ex.91/18,

GJ.Ex.93/32-35.

Id.

GJ.Ex.90/65-66. Id.

14



GJ.Ex.93/37-40.

GJ.Ex.93/30, 40-41; GJ.Ex.91/46-47.

GJ.Ex.90/125; GJ.Ex.93/119-20.

See GJ.Ex.93/105, 109-111

GJ.Ex.93/120-22,

GJ.Ex.94/33-34.

GJ.Ex.90/133.

E. The Raven 23 Team Orally Reports To The State Department OnThe Day Of The Shooting, And Submits Written, SwornStatements Two Days Later.

In September 2007, State Department policy set forth reporting

requirements for employees, including private contractors, who discharged their

15



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 * * *.

16



10/16/am/37-39

10/16/pm/111-113; see also 10/14/pm/156-57

Two days later, on September 18, all the Raven 23 guards submitted written,

sworn statements on the Garrity forms to the DSS. Mem.Op. 8; 10/15/pm/91-93.

10/15/am/51-53, 10/16/am/56-57, Motley.Ex.6, Lopez.Ex.5,

Scollan.Ex.4;

10/15/am/28-38, 88-90, 10/15/pm/87-91, 10/16/pm/7, 11-21, Ex.25;

10/15/am/49-51, 94-96, 10/16/pm/119-20, 10/19/am/77-80.

10/15/pm/9-14;

10/16/am/27-28, 84-86; Ex.27; Carpenter.Ex.8.

10/16/pm/27.

17



Id. at 28-29.

F. The FBI Goes To Baghdad Under Instructions To Investigate“From Scratch,” And Murphy, Mealy And Frost Tell TheirStories To The Grand Jury.

On October 4, 2007, a team of FBI agents, led by John Patarini, flew to

Baghdad to investigate the Nisur Square shooting. 10/21/pm/63-65.

see Ex.53, and a protocol

was established to guide the FBI’s investigation. The agents (who had not read

any press reports of the event, 10/19/pm/49-51; 10/21/pm/64) were to have no

contact with any “tainted” State Department personnel (i.e., those who had worked

on or discussed the investigation in any way), and anything the FBI wanted from

State had to first be screened by a taint attorney. 10/19/pm/52-54, 60-61;

10/21/pm/64-66; Ex.28. Patarini understood that he and his team were to have no

knowledge of what the guards had told DSS agents after the shooting, either in the

oral interviews or sworn statements. 10/21/pm/64-65, 95-96, 103; see

10/19/pm/51 (Agent Murphy: “we [were] not * * * allowed to read any media,

* * * not allowed to talk to anybody about the statements the guards had made,

and not ask any questions about the statements”); 10/20/pm/17-24, 41-42. As

18



Murphy put it, “we were going to be conducting the investigation from scratch.”

10/19/pm/51.

Although State Department investigators were off limits to the FBI, the

team was permitted to speak with the U.S. military and Iraqi first responders.

10/21/pm/67-68. Patarini soon contacted Colonel Boslego, who, among other

things, provided him with pictures he had taken in the Square after the shooting.

10/21/pm/68-69, 108-110; 10/23/pm/38-47. The FBI also located and

photographed vehicles shot in the Square, and took custody of many of them.

10/21/pm/79-81; Ex.207. The FBI did two thorough grid searches of the scene;

took pictures; collected further physical evidence, including shell casings and

bullets (some from victims’ bodies); took custody of the Raven 23 team’s

weapons; and

10/21/pm/71-86; Exs.200, 207.

Boslego also introduced the FBI to Colonel Faris, the chief of security for

the Iraqi National Police. 10/19/pm/61-64. Right after the shooting, Faris

interviewed a number of eyewitnesses and memorialized their accounts in a report

for the Iraqi Prime Minister. 10/19/pm/64-65; Ex.202.

19



Ex.202. In addition to the report, Faris provided the FBI with a list of those

killed and wounded, and continued to identify witnesses and victims for the agents

to talk to. 10/19/pm/61-67; 10/21/pm/70-71, 84-85, 94-96; Ex.40. During its one-

month stay, the FBI interviewed some 75 Iraqi witnesses and victims, including

Iraqi police and military on the scene that day. 10/19/pm/66-67; Exs.207, 208. By

piecing together the witness accounts and physical evidence, the FBI was able to

map the location of the vehicles and victims struck by Raven 23’s fire.

10/22/pm/55-63; 10/19/pm/71; 10/21/pm/98-99. Later, FBI technicians performed

trajectory analyses, 10/22/pm/61-62; 10/21/pm/79-80, and concluded that the

shooting had come from inside the circle outward, not toward the convoy.

10/22/pm/57, 63.

The October interviews of the Iraqi witnesses also gave the FBI a working

understanding of who had fired in the Square. 10/21/pm/116-17. As Patarini

explained, while the witnesses did not know the shooters by name, they were able

to describe a vehicle by its order in the convoy, and identify a shooter by his

position in the vehicle, and sometimes by a physical description. Id. (Iraqi

witnesses “tremendously” assisted in identifying shooters).

Blackwater, for its part, was much less helpful.

20



GJ.Ex.94/64; Ex.208. Although Frost, Mealy and Murphy did not give statements

to the FBI during that trip, Mealy and Frost signaled that they wanted to talk, and

Murphy, who was in the United States, was also identified as a potential

cooperating witness. 10/19/pm/57-59; 10/21/pm/103-05. These three turret

gunners, in the FBI’s mind, plainly had a story to tell. 10/21/pm/103-05.

Mealy, Frost and Murphy appeared in the grand jury in November and

December 2007, and filled in key details of what had happened in Nisur Square.

GJ.Ex.89/58-59; GJ.Ex.94/21-22;

GJ.Ex.92/41-42.

GJ.Ex.92/42-44.

Id. 5

GJ.Ex.94/22, 26.

GJ.Ex.92/44-45; GJ.Ex.94/23-24, 46.

In the grand jury, Frost and Murphy testified about 5

but acknowledged at theKastigar hearing that this testimony was affected by their exposure to

sworn statements. We discuss this tainted testimony infra, at 60-67.

21



GJ.Ex.92/44, 104; GJ.Ex.93/93-95.

GJ.Ex.90/34-35,

GJ.Ex.94/27-31.

Id. at 29; id. at 27-30, 55-56

GJ.Ex.92/46-49.

GJ.Ex.92/54-55; see GJ.Ex.90/37, 138

GJ.Ex.90/38.

Id. at 39-43.

GJ.Ex.92/56-65.

22



GJ.Ex.92/62-64

id. at 76-78

GJ.Ex.90/44, 47-49

GJ.Ex.94/37-40, 56-57.

Id. at 39-40.

GJ.Ex.90/50-52. Id. at 51-52

see GJ.Ex.92/67

See GJ.Ex.92/50-54

GJ.Ex.93/125 GJ.Ex.89/62-63

E.g., GJ.Ex.90/59-60;

GJ.Ex.94/32-35; GJ.Ex.93/113.

23



Frost.Ex.6/5. 6

G. A Reasonable Difference Of Opinion And A Breakdown Of TheGovernment’s Taint Procedures

As noted, the Garrity issue surfaced early in the investigation, and in

October 2007, Ray Hulser, Deputy Chief of DOJ’s Public Integrity Section, was

assigned to be the “taint attorney” for the case. 10/22/pm/76-77. It was Hulser’s

job to review information that surfaced about the shooting, including in media

accounts and from the State, Defense, and Iraqi investigations, and to screen out

for the “clean team” of investigators and prosecutors any references to the Raven

23 guards’ potentially compelled statements. 10/22/pm/80-86, 105-09. In the

early days of his involvement, Hulser learned the guards gave oral statements to

DSS agents on the day of the shooting, and written, sworn statements later.

10/22/pm/79-80. Not knowing the details of how the early interviews were

conducted, Hulser advised that all the guards’ statements be deemed off limits.

10/22/pm/95-96, 103-105 (“It seemed to me that even the earliest statements * * *

might later be deemed by a court to be compelled”). As Hulser explained at the

The district court’s conclusion that Frost’s journal was tainted is6

discussed infra, at 80-88.

24


.

Kastigar hearing, the question of whether a statement is compelled under Garrity

is “very fact-based,” id., and before all the facts were in, he advised caution.

10/22/pm/96 (“at this point * * * I was * * * going to be very cautious about what

they would be exposed to”); 10/23/am/4-5 (same); see Hulser.Ex.6; Ex.57.##1453,

1658 (“I have been taking a conservative approach” to pre-sworn statements).

Hulser’s view informed the protocol under which the FBI operated in

Baghdad in October, and in accordance with which the Bureau had no contact with

the DSS agents who had worked on the investigation, and avoided media stories

about the incident. 10/22/pm/80-93, 96-99; Hulser.Ex.2. Hulser’s views were

communicated to the FBI through Michael Mullaney, chief of the

Counterterrorism Section within DOJ’s National Security Division, who was

assigned to serve as the liaison between the taint team (Hulser, Jessie Tampio at

State, and a DOJ lawyer in Baghdad) and the investigative and prosecutive team.

10/22/pm/99-101; 10/23/pm/102-114; 10/26/am/23-25.

Meanwhile, AUSA Ken Kohl from the D.C. U.S. Attorney’s Office was

assigned as the lead prosecutor in November 2007, to be joined by Stephen

Ponticiello, from DOJ’s National Security Division. 10/26/pm/60-61;

10/27/pm/104-05. When Kohl received the assignment, he knew Garrity was an

issue, see 10/27/pm/106-08 (knew members of DOJ’s Criminal Division had been

25


.

exposed to guards’ statements, and had decided that non-Division lawyers should

handle the case) – and he also knew there was considerable controversy over the

State Department’s promises of immunity to the Blackwater guards. 10/28/am/30

(“we knew [an official at State] had been fired” because the warnings had not been

properly authorized); see Def.Ex.29. Kohl also knew that taint attorney Hulser

(whom Kohl had never met) would be screening materials the prosecutors needed,

10/27/pm/110-11; 10/28/am/59-62, and that Mullaney would operate as the

middleman between Hulser and the trial team. 10/26/am/23-25; 10/26/pm/65, 78;

10/28/pm/94-95; 10/23/am/4-6.

Upon receiving the case, Kohl researched Garrity, and also contacted

experts on immunity issues he knew in Main Justice. 10/27/pm/111-21. These

conversations raised even more questions in Kohl’s mind about the circumstances

of the guards’ statements to State, and whether the guards could reasonably

believe they had been granted immunity in giving them. 10/27/pm/112-16. One

lawyer from DOJ’s Office of Enforcement Operations (which authorizes statutory

grants of immunity) advised Kohl that, in his view, State’s unauthorized promises

of immunity would not bind prosecutors. Id.; Ex.64.#4321-23. Another National

Security Division lawyer, who had dealt with difficult Garrity issues, had a similar

view – and also believed “there is a strong argument” that Garrity immunity

26



should not be protected to the same degree as immunity granted by law

enforcement officials. 10/27/pm/117-21; Ex.64.#4347-49 (danger that

organization can “compel[]” statements to shield its employees from prosecution).

Based on his preliminary research, Kohl resolved to learn more about the

circumstances surrounding the guards’ statements to the DSS. 10/27/pm/116-17,

121-22.

He soon learned more – and then some – when Frost, Mealy and Murphy

testified in the grand jury in November and December 2007. For one thing, Kohl

discovered that Blackwater management was involved in the preparation of the

written statements presented to the State Department; that

GJ.Ex.90/100-02; GJ.Ex.93/12-17, 42-44, 51-53; GJ.Ex.92/99-100;

GJ.Ex.91/13-15; see 10/27/pm/118 (Kohl suspected Blackwater was “extending

these promises to itself and then presenting it on a platter to the State Department

to ratify”). Frost, Mealy and Murphy also felt they were being penalized by

Blackwater for reporting their concerns about the shooting. 10/28/am/27;

GJ.Ex.90/113, 125; Patarini.Ex.11

27



And the guards also believed what they had told Blackwater about the

shooting had been withheld from State. 10/28/am/28; e.g., GJ.Ex.90/103-110

GJ.Ex.93/49-51, 55-59

From early on, thus, Kohl had “serious concerns about obstruction” by

Blackwater. 10/28/am/26-28. And although he was suspicious about how they

were written, Kohl believed he and his team should avoid all exposure to the

September 18 sworn statements. See 10/27/pm/108; 10/28/pm/14; 10/29/am/17,

33-34; e.g., Ex.62.##5161, 4366. To this day, the prosecutors have never seen

them. 10/28/pm/14, 17, 49; 10/27/pm/26; 11/2/am/79-80.

The September 16 oral statements, to Kohl’s mind, were a different matter.

As more Raven 23 guards testified in the grand jury, Kohl learned that whenever a

Blackwater guard is involved in a shooting, he and a team leader are called upon

to give immediate feedback to the State Department so State can make a quick

assessment of the situation and any attendant threat. 10/28/pm/6-7. These initial

interviews, Kohl also learned, are typically brief, unaccompanied by threats of job

loss or promises of immunity, and not intended to assess criminality or otherwise

pursue an administrative action against a shooter. 10/28/pm/10-12. As he saw it,

28


.

the “initial oral interviews are done purely because they’re trying to understand

what happened” – and “if ever there was [an agency] * * * that had a critical * * *

operational need” for “immediate feedback, * * * it was the U.S. embassy in

Baghdad, Iraq in September 2007.” Id. Ponticiello agreed. “I didn’t believe that

any time any contractor * * * talk[ed] to a DSS agent it would equal a compelled

statement.” 10/27/am/41. As a result of what they learned, Kohl believed he

could be privy to the initial interviews. 10/28/pm/13; 10/26/pm/79-81

(Ponticiello: “we felt we were on safe ground in looking at the oral statements”).

Unfortunately – and in what the government acknowledges is a serious

breakdown in its taint procedures – the prosecutors were unaware that their view

of the September 16 statements was not shared by Hulser. As noted, in October,

Hulser gave the FBI its “marching orders” to steer clear of all the defendants’

statements to the DSS. 10/23/am/21-23. Mullaney, who communicated Hulser’s

directives to the FBI, did not have a similar conversation with the prosecutors, and

Hulser’s October emails were not sent to them. 10/26/am/73-74; 10/27/am/64-66;

10/28/am/71; 10/28/pm/68-71, 112-14; 10/22/pm/109.

According to the emails, Hulser’s view of the September 16 statements was

first communicated to Kohl on November 29, 2007, in the context of Hulser’s role

as pre-screener of materials for the prosecution team. In preparation for Raven 23

29


.

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

30



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”).

31


.

follow-up email, and on December 20, Ponticiello sent a note to Mullaney

reflecting his unawareness of Hulser’s concerns about the September 16

interviews. Ponticiello informed Mullaney of the upcoming Carpenter interview

(set for January 10), noted that Carpenter had an “investigatory binder” containing

“notes of [the] oral interviews” conducted prior to the warned, written statements,

and asked that the binder be reviewed by Hulser to screen out “any information

that might involve or be derived from the written statements.” Ex.60.#2204.

Mullaney did not tell Ponticiello to cancel the interview, and it was conducted as

scheduled. 10/26/am/27-28; 10/26/pm/81.

Unaware that Carpenter had been interviewed, Hulser on January 15

reiterated his view about the September 16 statements to Mullaney, and declined

to give him Carpenter’s notes. 10/23/am/35-36; Ex.57.#1658. Although Mullaney

testified that he would assume he forwarded the email to the prosecutors, and that

that was his practice, he acknowledged that a forwarded email was not found in

the system. 10/26/pm/6-9 (“so I can’t honestly say whether I did or I didn’t”); see

10/29/am/44-46 (Kohl: did not receive email; Mullaney did not communicate

Hulser’s view to him); 10/26/am/29-30.

Indeed, on January 17 (two days later), a Kohl email reveals that he, too,

was unaware of Hulser’s position. At the time, Kohl was arranging to interview

32


.

Lisa Lopez, one of the DSS agents who had conducted some of the September 16

interviews. 10/28/pm/17-19; Ex.67.#4491. In anticipation of the meeting, Kohl

asked Mike Posillico, a “clean” point of contact at State, to make sure “all the DSS

investigator notes, bullets, and write-ups of the interviews” predating the

September 18 statements “are turned over to Ray Hulser” so they could be used in

the interview. Ex.67.#4491. Posillico said he had spoken with Tampio (Hulser’s

counterpart at State), who “forwarded same to Ray already,” and also told Kohl

that Lopez would bring her notes to the meeting. Ex.67.#4488-89.

Hulser, meanwhile, was unaware that arrangements had been made for

Lopez to hand over her notes. 10/23/am/34-35. In fact, when Mullaney separately

asked for the notes in February, Hulser demurred, and reiterated his view about the

September 16 statements. Hulser.Ex.6. Again, there is no indication that Hulser’s

email was forwarded to the trial team. See 10/29/am/57-59 (Kohl: Mullaney did

not communicate this to him).

As Mullaney admitted at the Kastigar hearing, it was a mistake for him to

have operated as a go-between. 10/26/am/64-65; id. at 65 (“not all the information

– I’m not – it [was] not pass[ed] accurately”); id. (“there were miscommunica-

tions”); 10/26/pm/9 (“this is a breakdown on my part”); id. at 24 (“[i]t’s clear I am

not a help to the process”); id. at 43 (trial team was “not well served by having me

33



in the middle”). Looking back on it, Hulser, too, saw that while it first appeared

that the prosecutors were “intentionally disregarding” his advice, it “seems to me

* * * they didn’t actually get the exact advice that I had given.” 10/23/am/68-89.

The trial team interviewed Lopez on January 25, and, as arranged, she gave

them her notes. 10/29/am/51-53. Again, based on his emails with Posillico, Kohl

thought Hulser had cleared Lopez’s notes for his review. See 10/29/am/35-37, 42-

43, 51-55 (because he received Lopez’s notes after asking that they be screened by

Hulser, Kohl thought “we had gotten a green light from [Hulser] on the 9/16

interviews”); accord 10/28/pm/112-14; 10/29/am/36.

See Ex.70 (2/1/08 investigative update).

Kohl testified that, had he known Hulser’s views about the September 16

statements differed from his, he would have had a “head-on discussion” to try to

work it out. 10/29/am/45-48. “I wouldn’t simultaneously be sending e-mails

asking for Lopez’s notes to be cleared while there [are] e-mails going in the

opposite direction from Ray.” 10/29/am/46-47.9

9

See10/19/am/91-94.

34


.

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

35


.

we’ve got a problem.” Ex.68.#2719; 10/23/am/9. Mullaney, too, sounded an10

alarm. “[I realized] the trial team [has] something * * * they think they’re entitled

to, and the taint team says, you shouldn’t have that.” 10/26/am/66-67. “I

obviously know I have a problem.” Id.

At their April 18 meeting, Hulser continued to maintain that the September

16 statements were potentially compelled, and advised that the prosecutors should

not risk using them. 10/23/am/8-9, 45. Kohl countered that because the early

interviews were routine, unwarned, and preceded any investigation, the

government had a good chance of demonstrating they were not compelled. Id.; see

also Ex.68.#2704. Although Hulser’s risk assessment differed from Kohl’s,

Hulser agreed Kohl’s position was reasonable. 10/23/am/8. And while Kohl was

not converted to Hulser’s position, he decided not to fight it, and his “take away”

from the meeting was that the statements would not be used for any investigative

purpose. 10/28/pm/24-25; id. at 112 (“we didn’t need them”); 10/29/am/78-83

(“we hadn’t [used the 9/16 interviews] at that point, and I thought [the] better

course [was] to not use them”). Hulser also left with the view that the team would

not make any investigative use of the pre-September 18 interviews. 10/23/am/42,

See Ex.61.#2370 (Hulser: “if you have notes of [9/16] interviews 10

* * * for any of your current subjects[,] I did not approve that.”).

36


.

46. 11

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).

37



H. The Prosecutors Travel To Baghdad, Decide To Charge A “MassLiability” Theory, And Look Into (But Abandon) ObstructionAnd False Statement Charges.

Starting in December 2007, Kohl prepared periodic updates for his superiors

in the U.S. Attorney’s Office and DOJ’s National Security Division. 10/28/am/21-

24; see Ex.70. In the first three, 12/14/07, 1/10/08, 2/1/08, he listed four Raven 23

guards – Liberty, Slough, Slatten and Ridgeway – as potentially facing

manslaughter charges. Id. Although Kohl knew from Murphy, Frost and Mealy

that Heard and Ball had also shot, he had not decided whether to recommend that

they be charged. 10/28/am/25. Indeed, at that point, while the cooperating guards

were saying Liberty, Slough, Slatten, and Ridgeway had “crossed the line,” they

were speaking sympathetically about Heard and Ball – and Kohl took their views

seriously and was proceeding carefully. 10/28/am/25-26. Also at the time, the

prosecutors had not decided whether to charge the shooting at the white Kia.

10/26/pm/85-86.

See

GJ.Ex.90/133; GJ.Ex.93/93-95.

Kohl and Ponticiello went to Baghdad with the FBI in February 2008,

10/27/am/28-29, to visit the scene and, primarily, to interview the Iraqi victims,

witnesses, and U.S. military who had been in the Square on the 16 . 10/27/pm/77-th

38


.

80; 10/28/am/31, 37-39. Also, believing they were justified in learning about the

guards’ immediate post-shooting statements (this was three months before the

April meeting with Hulser), the team interviewed the DSS agents who had

conducted the September 16 interviews, and asked about the guards’ statements.

10/27/pm/45-49; Ex.70 (3/10/2008 update).

During the trip, two other interviews struck Kohl. He spoke to the surviving

passenger of the box truck that was right next to the Kia, examined the two cars,

and saw for himself (based on a small indentation on the truck), that the Kia would

have been moving slowly. 10/28/am/43-46. Kohl also met with Colonel Boslego,

who, among other things, explained that firing an M-203 grenade in a civilian

environment is “virtually per se reckless.” 10/28/am/42; 10/29/am/14. Kohl knew

from Heard’s admissions to his teammates and from forensics that Heard had fired

an M-203, 10/28/am/42; 10/27/am/45-46, so despite the other guards’ positive

feelings about him, Kohl added Heard as a target in March. 10/28/am/42; Ex.70.

Ball, however, was a closer call. Although Kohl had decided in February

that the shooting at the Kia was unjustified, his core witnesses still gave those who

had shot at that car the benefit of the doubt. 10/28/am/46-47. Also, there was a

discrepancy in how the witnesses were seeing things: his fellow guards believed

Ball’s shots were limited to the Kia, but several Iraqi witnesses saw fire coming

39


.

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

40



information from the State Department. 10/28/am/27-28. Also, Kohl was

suspicious that Blackwater had been “very much entangled” in the preparation of

the September 18 statements, 10/28/am/28, 30, and he wanted to examine the

exchanges between Blackwater management and the guards on the matter.

10/28/pm/37-44 (“my concern * * * was manipulation of the statements”). Kohl

also thought it likely the guards would have conveyed details of the shooting to

family, friends and other Blackwater personnel. 10/28/pm/39.

Thus, Kohl prepared, and Patarini swore out, an affidavit for a search

warrant of all the Raven 23 guards’ email accounts. 10/22/pm/8; Patarini.Ex.21;

see 10/22/pm/13-14, 64-67 (Patarini: search warrant related to broader

investigation into obstruction by Blackwater management). Patarini first looked12

at the search warrant materials in spring or summer 2008, 10/22/pm/17-19, and

when he did, he saw drafts of Slatten’s and Ball’s September 18 statements.

10/22/am/10-12, 39-40; 10/22/pm/17, 46. Kohl thereafter tabled this aspect of the

12

Patarini.Ex.21 ¶ 15;

id. at ¶¶ 17-18

Id. at ¶19; see also id. at ¶ 22

41



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).

42


.

AUSA Jon Malis joined the prosecution team at the end of August 2008, he

reviewed the transcripts and saw that some witnesses’ testimony may have been

affected by exposure to the guards’ compelled statements. 11/2/am/6, 21-22.

Defense counsel, also, raised Garrity/Kastigar concerns with the prosecutors,

10/29/am/106, so a Kastigar hearing was clearly in the offing. 10/29/am/113.

In fall 2008, Kohl and Malis met with Hulser and Karla Dobinsky, an

experienced DOJ Garrity lawyer, and decided to present a streamlined case to a

second, “clean” grand jury. 11/2/am/23-29; 10/26/pm/37 (Mullaney: presentation

would be “as bare bones as possible”). The prosecutors wanted to tap only those

witnesses they felt confident would survive a Kastigar hearing (i.e., who, under

oath, would and could testify that their accounts were based on firsthand, wholly

independent knowledge) – and they quickly returned to Frost, Murphy and Mealy.

11/2/am/22-28.

Although other Raven 23 guards had also provided testimony against the

defendants, the prosecutors were less confident about how they would hold up at a

hearing. See 10/29/am/113-14 (Kohl: “there’s incredible pressure on these * * *

contractors in terms of job loss and intimidation”). The prosecutors were also

concerned that other witnesses, friends of the defendants and hostile to the

government, might try to sabotage the case by telling the Kastigar court that their

43



grand jury testimony was tainted. 11/3/am/69-70; 11/3/pm/5-9; see 10/29/am/112-

14 (Kohl: noting “great potential for mischief”). So with Hulser and Dobinsky’s

guidance, the team redacted from the earlier testimony transcripts of Frost, Mealy

and Murphy statements that appeared to be influenced or shaped by the men’s

exposure to the defendants’ compelled statements. 11/2/am/29-41; 11/2/pm/30-

33; 10/23/am/58-59. And as Malis explained to his supervisors, for purposes of

the presentation to the new grand jury, both the September 16 and September 18

statements were entirely off limits. 11/2/am/68-70; Ex.308.#5941-43.

The second grand jury convened on November 20, 2008. The only live

witness was “clean” FBI Agent Robyn Powell, who had not seen any of the

defendants’ statements, oral or written. Ex.308.#5942; 10/22/am/45.

See

GJ.Tr.11/20/08/am/22-24, 74-75; 11/20/08/pm/8-9; 12/2/08/pm/3-4.

GJ.Tr.11/20/08/am/4-24, 76-78; 11/20/08/pm/9-

37; 11/25/08/3-40.

44



Id.; see GJ.Exs.4, 9-16, 18-21, 23-32,

36-42, 46-50, 52-66, 71-74, 76-79 GJ.Exs.87B-R, 88C-P,

101-05

GJ.Exs.8, 22, 32, 33-35, 43-45, 51, 67-68, 75, 82-84

.14

GJ.Tr.11/20/08/pm/17-18, 28-29; GJ.Tr.11/25/08/am/8-9; see

GJ.Ex.1 at 2, 3, 5-6); id. at 4-14

14

GJ.Ex.85

45



15

GJ.Tr.11/20/08/am/24-60; GJ.Tr.12/2/08/am/6-7,

12; Ex.401.##1374, 1358-60 (minutes).

GJ.Tr.11/20/08/am/61-72; GJ.Ex.1/32-37.

15

GJ.Tr.12/2/08/am/8.

GJ.Ex.99/4-5.

Id. at 7-9, 12-15; id. at 19

id. at 19-20

Id. at 15-16.

Id.at 19-20.

Id. at 21-22 See GJ.Tr.11/20/08/pm/27

46



id.,

GJ.Tr.12/2/08/pm/12-17, 24-25,

31-36, 44.

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).

See also GJ.Tr.11/25/08/76-79 17

GJ.Tr.12/2/08/am/12-13

47



e.g., GJ.Tr.11/20/08/am/41

E.g., GJ.Ex.94/32-35

GJ.Tr.11/20/08/am/

42, 44

accord

GJ.Ex.89/61-62; GJ.Ex.90/35, 46, 59-62

GJ.Ex.93/113 See also 11/3/am/31-34 (Malis:

believing the guards’ claim was self-defense, “we presented exculpatory evidence

on the self-defense issue”).

GJ.Tr.12/2/08/pm/3-45; GJ.Ex.107. On

48


.

December 4, 2008, the grand jury found probable cause to charge the defendants

with manslaughter, attempted manslaughter, as well as the Section 924(c) count.

See Indictment.

J. The District Court’s Opinion

On December 31, 2009, the district court dismissed the indictment. At the

threshold, it rejected the government’s view that the guards’ September 16

statements were not compelled under Garrity. Compare Mem.Op. 31-46 (finding

that all the guards believed the first DSS interviews were not voluntary, and that

because they had previously reported shootings on forms bearing the Garrity

warnings, they reasonably believed they were operating under the same ground

rules on September 16) with Gov’t Post-Hearing Mem. 17-26 (arguing that first

debriefings were not Garrity-compelled because they were part of the guards’

routine, job-related reporting obligations, designed to get an immediate sense of

what had happened, and that the guards would not reasonably have viewed them

as part of an investigation into their conduct).

The court also found, in details we discuss in our challenge to its rulings,

that all the grand jury testimony of Murphy and Frost, as well as Frost’s journal,

were tainted by their exposure to the defendants’ compelled statements in the

news. Mem.Op. 51-66. The court similarly found the government failed to show

49


.

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.

50



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.

51



exposure to the September 16 statements did not result in any evidentiary taint in

the grand jury, but was relevant only to the issue of non-evidentiary use. As we

contend, even if Kastigar prohibits non-evidentiary use (an open question in this

circuit), the government did not make prejudicial non-evidentiary use of the

defendants’ statements in securing this indictment. And because the government’s

exposure to the September 16 statements did not infect the indictment – and as our

case has been wholly built without them – we claim no right, should this Court

reinstate the indictment, to use the statements in any way.

1. Contrary to the district court’s findings, the lion’s share of the

evidence presented to the grand jury was free of Kastigar taint. In fact, only very

small and isolated portions of testimony were tainted – and, as to the rest, the

record demonstrates a lack of taint by a preponderance of the evidence.

a. At the Kastigar hearing, Raven 23 guards Murphy and Frost

admitted that bits of their grand jury testimony against –

–

may have been affected by reading reports of their statements in the press. The

rest of Murphy’s and Frost’s testimony, in contrast, was first-hand and anything

but speculative. By disqualifying all their testimony against all the defendants, the

52



district court clearly erred – and it also failed to conduct the careful Kastigar

inquiry this Court requires.

b. The district court clearly erred in finding that the grand jury

accounts of the percipient Iraqi eyewitnesses were tainted by stories (in the

American press) referring to the defendants’ Garrity statements.

Because the content of the Iraqi

witnesses’ testimony ( ) bore no relation to the stories

( ), the witnesses’ testimony was

not tainted by any exposure they may have had to the immunized statements as

reported in the press.

c. After the shooting, Raven 23 guard Frost wrote a detailed and

emotional account of what happened in the Square and at Blackwater camp shortly

thereafter.

The court found that even if that was his principal

motivation, the journal was tainted because Frost’s exposure to the defendants’

53



statements in the press also played a role in his decision to write. That finding is

clearly erroneous. Because Frost would have written his journal anyway,

regardless of what he may have read in the news, the journal survives Kastigar’s

test for wholly independent evidence.

d. The district court clearly erred in disqualifying all the grand

jury evidence of Raven 23 guard Jeremy Ridgeway, who pleaded guilty to two

manslaughter counts.

e. Rightly viewed, the overwhelming evidence in the grand jury –

the physical evidence, the testimony of Raven 23 guard Mealy and Colonels

Boslego and Tarsa (none of which the court found was tainted), the bulk of the

Murphy, Frost and Ridgeway’s accounts, as well as the evidence from the Iraqi

eyewitnesses – was not tainted. Given the strength of that evidence and the

relative insignificance of the tainted testimony, the grand jury would have found

54


.

probable cause to indict, and any Kastigar error as to Slough, Liberty, Heard, and

Ball was harmless beyond a reasonable doubt.

2. The district court also erred in finding the government made

“significant non-evidentiary use” of the defendants’ Garrity statements.

Where, as here, an indictment is supported by sufficient and wholly independent

evidence, the Fifth Amendment does not require the government to prove that, in

recommending charges, a prosecutor’s thinking was unaffected by his exposure to

a defendant’s immunized statement.

In any event, the decision to recommend charges against Heard and Ball

was based not on the government’s exposure to their Garrity statements, but on

the independent evidence against them, and the defendants’ September 16

statements did not otherwise guide this investigation and prosecution. By the end

of 2007 – well before prosecutors saw the statements – the defendants had been

identified as shooters (by Frost, Mealy, Murphy and the Iraqi eyewitnesses), and

the FBI also knew, based on interviews and the physical evidence, where the

group had shot. The statements, thus, did not provide the government with a

“wealth of valuable information,” as the district court thought; in fact, the

information the court deemed so important (the defendants’ specification of

particular targets) was irrelevant to the government’s theory of the case – by which

55



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

56


.

from, the defendants’ Garrity statements. And, yes, this Court’s Kastigar

requirements are particularly demanding. See United States v. Helmsley, 941 F.2d

71, 82-83 (2d Cir. 1991). But they are not insurmountable – and by disqualifying

in toto the testimony of percipient eyewitnesses to a singularly violent and

unforgettable event, the district court was true to neither the letter nor the spirit of

this Court’s teachings.

In North I, 910 F.2d at 860-864, the grand jury and trial witnesses “soaked”

themselves in immunized testimony to refresh their memories about who had said

or done what years earlier in a series of complicated foreign policy transactions.

Even then, the Court did not foreclose the prosecution under Kastigar, but

remanded for an inquiry into what testimony was tainted and what was not, and

then, if necessary, into harmlessness. Id. at 872-73. Here, the court not only failed

to appreciate the difference between a single, uniquely dramatic event and

countless meetings spanning several years, it also did not conduct the careful

Kastigar inquiry North requires. Contrary to its decision, the overwhelming

majority of testimony in the grand jury was free of Kastigar taint – and given the

strength of that evidence, any Kastigar error as to Slough, Liberty, Heard, and Ball

was harmless beyond a reasonable doubt.

57


.

A. Standards of Review

A finding that the government “used” a defendant’s immunized testimony is

factual, reviewed for clear error. North I, 910 F.2d at 855. A finding is clearly

erroneous “when although there is evidence to support it, the reviewing court on

the entire evidence is left with the definite and firm conviction that a mistake has

been committed.” United States v. Wallace, 964 F.2d 1214, 1217 n.3 (D.C. Cir.

1992) (citation, quotation omitted); id. (standard is “not without content”); United

States v. Kilroy, 27 F.3d 679, 687 (D.C. Cir. 1994) (finding is also clearly

erroneous if “induced by an erroneous view of the law”).

This Court may review the record de novo to determine an error’s

harmlessness. Arizona v. Fulminante, 499 U.S. 279, 295-96 (1991); see also

United States v. Nanni, 59 F.3d 1425, 1433 (2d Cir. 1995) (in evaluating Kastigar

error, whether untainted evidence supported probable cause for search-warrant

affidavit is legal question, reviewed de novo).

B. Kastigar and North: The Applicable Legal Principles

Under Kastigar, when the government prosecutes a previously immunized

witness, it is prohibited from using not only the immunized testimony itself

against the witness, but any evidence derived “directly or indirectly therefrom.”

North I, 910 F.2d at 853-54. In such a case, the government must prove, by a

58


.

preponderance of the evidence, that “‘all of the evidence it proposes to use was

derived from legitimate independent sources.’” Id. at 854 (quoting Kastigar, 406

U.S. at 461-62). The burden is heavy and this Court has set the bar high: the

government must show its witnesses’ testimony was not “refreshed[,] * * *

shaped, altered, or affected” by their exposure to the immunized testimony. Id. at

860-61, 863; United States v. Poindexter, 951 F.2d 369, 373 (D.C. Cir. 1991).

Nor can immunized testimony be used to obtain investigatory leads, United States

v. Ponds, 454 F.3d 313, 327-28 (D.C. Cir. 2006); focus an investigation on the

witness, id.; or motivate another witness to give incriminating testimony. United

States v. Hylton, 294 F.3d 130, 134 (D.C. Cir. 2002).

The Kastigar inquiry is searching in other respects as well. Not only must

the court “inquire into the content as well as the sources of the grand jury * * *

testimony,” it must do so witness-by-witness – and, if necessary, “line-by-line and

item-by-item.” North I, 910 F.2d at 872 (emphasis in original); id. at 862 (in order

to “separate the wheat of the witnesses’ unspoiled memory from the chaff of [the]

immunized testimony”); United States v. DeDiego, 511 F.2d 818, 822 (D.C. Cir.

1975) (court must “separate[] the tainted from the untainted”). If the government

fails to carry its Kastigar burden as to “any item or part of [a witness’s]

testimony,” the court must then evaluate the tainted evidence in light of evidence

59



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.

10/14/pm/6-9, 55-57, 64-65; 10/21/am/82; 10/21/pm/25-

26; see 10/14/pm/74, 77 As the hearing also revealed,

two pieces of Frost’s and Murphy’s grand jury testimony against Slatten and/or

Slough were affected by their exposure to those men’s statements. See Mem.Op.

53-56. Based on that evidence of taint – and its notion that Frost and Murphy

were “thoroughly immersed” in all the defendants’ statements – the court found

they were unable to segregate what they actually saw in Baghdad from what they

60



had read in the press, and disqualified all their testimony against all the

defendants. Mem.Op. 52, 57-58. In so doing, the court clearly erred.

1. Background: The Tainted Testimony

GJ.Ex.89/58, 60.

GJ.Ex.89/60; see also GJ.Ex.90/24-25

id. at 31

GJ.Ex.94/20-22.

Id. at 22-23.

61



GJ.Ex.94/23

id.

id. at 21-22

see GJ.Ex.94/54

10/14/pm/103-06; see 10/21/pm/30, 44

10/14/pm/112-16.

2. Frost’s And Murphy’s Isolated And Admittedly SpeculativeTestimony About DoesNot Cast Doubt On The Independence Of All Their First-Hand Observations.

62



GJ.Ex.94/21-

23.

GJ.Ex.94/39-40; GJ.Ex.90/50-52.

GJ.Ex.94/23-24

10/14/pm/125-26; see also 10/14/pm/45

See 10/15/am/57-59, 68-69; 9/18 statement.

63



e.g., GJ.Ex.94/43-44

GJ.Ex.90/57

See supra, at

12-15.

Cf. United States v.

Lipkis, 770 F.2d 1447, 1451 (9 Cir. 1985) (where witness is exposed to twoth

substantially identical statements, one immunized and one not, the government

need not prove his testimony was based only on the non-immunized statements).

64



20

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.

65



at 371-72, 375-76. Here, Murphy and Frost testified about one brief, uniquely

vivid and unforgettable event – an “extraordinarily violent incident,” as the district

court put it. Mem.Op. 49. The great bulk of their testimony, unlike the two pieces

of tainted testimony, relayed their direct (and often emotional) first-hand

observations. Also unlike Oliver North – who, having “studied [the

immunized testimony] very carefully,” said he could not segregate his own

recollection from it, 951 F.2d at 375 –

10/14/pm/16; 10/21/am/97.

See supra, at 61-62.

The government, of course, may not point to a witness’s untainted evidence

in an effort to validate his tainted evidence. See Poindexter, 951 F.2d at 376. But

the converse, contrary to the district court’s apparent assumption, is also not true.

Where some of a witness’s testimony is tainted, the testimony that is

66


.

“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.

67



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

23

See GJ.Ex.1

68



1. Background: A Sense Of The Publicity

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.

E.g., Def.Ex.30 24

Def.Ex.25 Def.Ex.40

Def.Ex.44 accord Def.Exs.5, 24, 26, 27, 28, 31, 32, 33, 37, 38, 39, 42, 45.

69



Def.Ex.2.

Murphy.Ex.9.25

Def.Ex.7.

Id.

Def.Ex.8, 14

Def.Ex.9, 15.

See 25

E.g., Def.Ex.4 Def.Ex.6

Def.Ex.11, 12, 13; see also Def.Ex.2 Def.Exs.11, 12.

70


.

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

71



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.

See GJ.Tr.11/20/08/am/74-7527

GJ.Tr.11/20/08/am/74-78;11/20/08/pm/9-37; 11/25/08/3-40; 12/2/08/pm/3-49.

72



id. at 11

GJ.Tr.12/2/08/am/4

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

73



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.

Ex.23

GJ.Ex.107/1-2.

74



Court has ruled should not be admitted”). 29

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”).

75



GJ.Ex.1

The court’s treatment of Dr. Haitham Al-Rubaie, whose wife and son were

killed in the Square, was similarly flawed.

C.Murphy.Ex.25. As the court found, his

reference to “Paul” was surely derived from his exposure to the

Mem.Op. 73 n.55 – but, again, that answers the wrong question. The

government did not intend to call Dr. Al-Rubaie to identify Slough as a shooter

(he, of course, could not, as he was not in the Square on the 16 ), but to identifyth

two victims alleged in the indictment. And, in any event, as a non-percipient

witness, Al-Rubaie provided no evidence in the grand jury. 30

Because the Kastigar hearing aimed not only to determine whether30

the indictment was tainted, but to give guidance on prospective trial evidence,

Ex.23/2-3.

76



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 –

Carpenter.Ex.8.

10/19/am/76-77; 10/19/pm/8-9.

77



10/19/pm/8-9. Under the court’s32

reasoning, any statement regarding, or any question about, hostile or incoming fire

would be consequently tainted. Both the record and logic, however, belie that sort

of thinking.

See Mem.Op. 6-7. E.g.,

Lopez.Ex.2

Reta.Ex.3

See Ex.252

id.

id. id.

10/15/pm/37-39

The FBI received the log in October 2007,

See GJ.Tr.12/2/08/am/432

GJ.Tr.11/20/08/pm/29

78



10/21/pm/86-88, 94

See supra, at 48.

The real question, and one that would obviously take center stage at any

trial, is what the claims of incoming fire actually meant: i.e., whether the guards,

in fact, were fired upon (or whether they mistakenly reported on their own fire);

whether any Iraqi shooting was in response to the convoy’s assault

see GJ.Ex.90/63

or, perhaps most importantly,

whether the guards’ response was

in proportion to anything that may have been coming their way. See

GJ.Ex.106/43-49, 54.

But the central point remains: the defendants did not “own” the particular

fact regarding incoming fire – and any comment by a witness on, or any question

by an investigator about, incoming fire did not thereby taint the testimony or infect

the witness. See Montoya, 45 F.3d at 1292 (“Use immunity does not protect the

substance of compelled testimony, it only protects against the use of compulsory

testimony as a source of evidence.”); accord Ponds, 454 F.3d at 328.

Investigators clearly had an independent basis –

79



– for asking about incoming fire.

And they also had common sense. As Agent Patarini put it, the

Blackwater guards were not going to say, “we were angry that day so we just

mowed down these * * * people because we were pissed off at them.”

10/22/pm/25. Self-defense, he knew, was obviously the issue. Id.; see

10/27/pm/17 (Ponticiello; same).

The district court’s across-the-board disqualification of the Iraqi witnesses,

based on its failure to consider the “content as well as the sources” of their grand

jury testimony, North I, 910 F.2d at 872, was induced by a mistaken view of the

law, and thus clearly erroneous.

E. The District Court Clearly Erred In Finding That Frost’s JournalWas Tainted.

Frost.Ex.6. The district court found that because Frost was motivated

to write the journal, “at least in part,” in response to news reports based on the

defendants’ compelled statements (i.e.,“that Raven 23 took action after coming

under small arms fire”), the journal was tainted. Mem.Op. 61-64. The court also

80



found the government failed to show the content of the journal was untainted.

Mem.Op. 64-66. Neither the facts, nor this Court’s Kastigar teachings, justify

these rulings.

1. Background: The Frost Journal

E.g.,

Frost.Ex.6/5

id.

id.

Frost.Ex.6/6,

Id. at 6-7.

81



Frost.Ex.6/1.

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.

10/21/am/90 10/21/pm/40-

41

82



Id. 33

In disqualifying Frost’s journal, the district court misread this Court’s

Kastigar “motivation” cases. In Hylton, a key government witness pleaded guilty

and cooperated only after being confronted with the defendant’s immunized

statements. 294 F.3d at 132-134 (witness “felt betrayed and that he had no

choice”). And in North, National Security Advisor Robert McFarlane requested a

second congressional appearance, revised his previous testimony after studying

North’s immunized testimony, and testified for the government at North’s trial.

North I, 910 F.2d at 864. In direct response to immunized testimony, these

witnesses came forward with incriminating and/or revised evidence against a

criminal defendant in a criminal case.

E.g., GJ.Ex.90/6

33

See 10/21/pm/41-42

83


.

But even more importantly, Hylton and North did not involve witnesses

with dual motivations (one tainted and one not) for their testimony. The district

court read the cases, however, to hold that even if Frost was principally motivated

to preserve his recollection, if another motivation (to respond to press accounts

based on the defendants’ statements) played any part in his decision to write, the

journal was tainted. Mem.Op. 61, 63-64 (Kastigar violated “whenever exposure

to immunized testimony was ‘a cause’ of the witness’s decision to testify”)

(quoting Hylton, 294 F.3d at 134).

Even accepting the court’s characterization of Frost’s second, “tainted”

motivation, it still wrongly disqualified the journal, as the Second Circuit has

reasoned in several “dual motivation” cases. In Nanni, 59 F.3d at 1432, the court

ruled that if an investigation “could have been motivated by both tainted and

independent factors,” the government could sustain its Kastigar burden if it

“would have taken the same steps entirely apart from the motivating effect of the

immunized testimony.” Applying that test to a witness with dual motives, the

court held in United States v. Biaggi, 909 F.2d 662, 689 (2d Cir. 1990), that “the

Government should have the opportunity to [show] the witness would have

provided adverse testimony entirely apart from the motivating effect of the

immunized testimony.” See also Helmsley, 941 F.2d at 83 (“where the grant of

84



immunity * * * compels testimony that angers a [witness] * * * and causes [the

witness] to implicate the immunized witness by testimony that would otherwise

not have been given, a Fifth Amendment violation occurs”) (emphasis added). In

Ponds, 454 F.3d at 328, this Court cited Nanni approvingly – and Nanni’s

reasoning fully comports with the central rationale of Kastigar. For if a witness

(like Frost) would have testified anyway – that is, entirely separate and apart from

any “motivating effect” of a defendant’s immunized testimony – then, as Kastigar

would have it, the defendant is in “substantially the same position as if [he] had

claimed his privilege.” 406 U.S. at 458-59. In fact, he is in exactly the same

position.

10/21/am/77

10/21/pm/41; see also GJ.Ex.90/6

Frost, thus, would have written his journal regardless of what he may (or may not)

85



have read of the others’ accounts. In failing to ask this question – and by instead

focusing on whether Frost’s exposure to the press played any part in his decision

to put pen to paper – the court misconceived the legal standard and thereby clearly

erred.

3. The Journal Is Not Otherwise Tainted.

The court also clearly misread the October 5 entry,

Frost.Ex.6/8-9.

Id.

The court read this passage as conveying Frost’s anger that the defendants

had not given truthful accounts, and that it was thus motivated by his exposure to

their compelled statements. Mem.Op. 64.

86



See 10/21/am/76-77

GJ.Ex.90/109

GJ.Ex.90/103-110;

10/21/pm/49. And again,

Frost would have written this entry regardless of what he may

have read of the defendants’ statements.

The court was equally wrong in finding the content of Frost’s journal was

tainted by his exposure to the statements. Mem.Op. 65-66. In so finding, the

court cited each of the defendants’ full September 18 statements, which, it

emphasized, “dealt with precisely the same events about which [Frost] was

writing.” Mem.Op. 66.

10/21/am/82-83;

10/21/pm/28-29 see

Def.Ex.2.

10/21/pm/26

(contrary to the court’s finding, Mem.Op. 64)

See Def.Ex.7.

87



Frost.Ex.6/3, 5.

Frost’s journal gives no indication that it was based on the content of any

compelled statement – or that is anything other than what it purports to be: a

heartfelt, first-hand and contemporaneous narrative of the events as he himself

witnessed them. By overstating and/or simply speculating about the impact of the

defendants’ statements on the journal’s content, the court wrongly disqualified it.

F. The District Court Clearly Erred In Finding That All OfRidgeway’s Grand Jury Evidence Was Tainted.

GJ.Tr.11/20/08/am/61-62; 12/2/08/pm/12, 15.

GJ.Ex.1/32-37; GJ.Tr.12/2/08/pm/12-17, 24-25, 31-36, 41, 44. The district court

found that all Ridgeway’s grand jury evidence was tainted by his exposure to press

coverage of the defendants’ statements. Mem.Op. 66-71. Again, in making no

88


.

effort to separate what may have been tainted from what, plainly, was not, the

court clearly erred.

1. Background: Ridgeway’s Debriefing And Grand JuryEvidence

In October 2008, Ridgeway and the government entered into plea

discussions. Because the government assumed Ridgeway had been exposed to

some of his fellow guards’ statements, the initial discussions focused on whether,

how and when he may have seen the statements in order to ensure the

independence of his memory. 11/2/am/13-15, 20-21 (Malis: repeatedly

emphasized that Ridgeway “needed to be 100 percent certain that what he was

telling us was independent of whatever he may have read, and that if he wasn’t

sure about * * * separating it out in his own mind, not to tell us”); id. (“we talked

about that at some length”). Ridgeway said he saw Slatten’s statement when they

walked them over to the Embassy, and saw Slough’s on the internet one or two

months later. 11/2/am/14-18. He was not sure whether he might have seen

Heard’s. Id.

Because Ridgeway was uncertain whether he could separate what Slatten

had told him from what he had read, prosecutors did not ask Ridgeway any

questions about Slatten’s actions in the Square. 11/2/am/15-16. As for Slough

89



and Heard, Ridgeway said he independently remembered what they did and told

him about the shooting, and that any later exposure to their statements did not

affect his memory. 11/2/am/16-18. In a later session, one of Ridgeway’s lawyers

represented that, as to Slough, while Ridgeway knew what he saw and heard and

what others had told him, there was a “Kastigar risk” relating to “details regarding

specific targets.” 11/2/pm/101-103 (lawyer: Ridgeway “able to speak to general

shooting directions”).

GJ.Ex.1/32/-27

¶¶ 9, 12.

See ¶ 14

¶ 11

¶ 4.

90



GJ.Tr.12/2/08/pm/12-16.

Id. at 14-16.

Id. at 17.

GJ.Tr.12/2/08/pm/24-25.

Id. at 34-35; see id.

Id. at 35.

Id. at 31-32.

91



Id. at 32-33; see also id.

Id. at 44.

2. All of Ridgeway’s Information Was Not Tainted.

The government did not call Ridgeway at the Kastigar hearing. And we

concede, as to Slough –

– that the district court did

not clearly err in finding the government did not meet its Kastigar burden with

respect to that aspect of Ridgeway’s evidence.

Again, however, the court wrongly disqualified all of Ridgeway’s evidence

without giving it a more careful look.

Compare GJ.Ex.94/22

92



with GJ.Ex.92/43-44, 50 and

Frost.Ex.6/3 (journal)

See Montoya, 45 F.3d at 1292 (immunity does not protect substance of

compelled testimony, only its use as a source of evidence).

and his proffer was

derived not from the defendants’ statements, but from his own admissions of guilt.

See 9/18 statement.

93



As North teaches, one rotten apple does not spoil the whole barrel. And if

the government fails to carry its Kastigar burden as to some item or part of a

witness’s testimony, that does not mean it has failed across-the-board. Separating

the tainted from the untainted may be laborious. See North I, 910 F.2d at 861. But

it is what North requires, and what the court failed to do.

G. The Tainted Testimony Presented To The Grand Jury WasHarmless Beyond A Reasonable Doubt.

Given its view that the testimony of key grand jury witnesses (Murphy,

Frost and his journal, the Iraqis, Ridgeway) was entirely tainted, the district court,

not surprisingly, devoted scant attention to the question of harmlessness.

Mem.Op. 88-89. Given the clear errors in its findings of taint, however,

harmlessness now takes on central importance – and the court’s determination

needs to be reassessed. 34

With the advice and guidance of two taint attorneys, the government

endeavored to present the second grand jury with taint-free testimony. As we

acknowledge, the government was not wholly successful, but as we argue, the

tainted testimony was isolated and narrow:

In finding a lack of harmlessness, the court also cited what it believed34

were the government’s impermissible non-evidentiary uses of the compelledstatements. Mem.Op. 88-89. We discuss non-evidentiary use infra, at 101-123.

94



A constitutional error is harmless when “it appears ‘beyond a reasonable

doubt that the error complained of did not contribute to the [outcome] obtained.’”

Neder v. United States, 527 U.S. 1, 15 (1999) (quoting Chapman, 386 U.S. at 24).

In determining whether an error contributed to an outcome (here, the grand jury’s

decision to indict), the record must be viewed as a whole, and the tainted evidence

weighed in light of the untainted. See, e.g., Fulminante, 499 U.S. at 310 (“When

reviewing the erroneous admission of an involuntary confession, the appellate

court * * * reviews the remainder of the evidence against the defendant to

determine whether the admission of the confession was harmless beyond a

reasonable doubt”); id. at 307-08 (unconstitutionally admitted evidence to be

“quantitatively assessed in the context of other evidence”); Harrington v.

California, 395 U.S. 250, 254-55 (1969) (evidence apart from that erroneously

admitted “was so overwhelming” that constitutional error was harmless beyond a

reasonable doubt); United States v. Hasting, 461 U.S. 499, 509 n.7 (1983)

95



(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).

96



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”).

97



E.g., GJ.Ex.106/70

id. at 53

GJ.Ex.108/24 id. at 42

Raven 23 guard Mealy, who the court also did not find was tainted,

provided some of the most central testimony in the grand jury. 37

e.g., GJ.Ex.92/89-90

As we argue, the great majority of Murphy’s and Frost’s

testimony – e.g., GJ.Ex.94/43-46

– should also appropriately weigh on the untainted side of the scale, as

should Ridgeway’s proffer and evidence against So it is,

too, with the Iraqi witnesses.

The court found the extent of Mealy’s exposure to the defendants’37

statements was “less clear” than Frost’s and Murphy’s. Mem.Op. 52 n.38. 10/19/am/26-28; see 10/19/am/47-48,

53-54 Mealy.Ex.1/1-5.

98



And because the testimony of many other Iraqis (identifying the shooters

or describing what happened to them or others in the Square) was wholly

unrelated to the leaked accounts of the defendants’ statements, their evidence, too,

rightfully supports the indictment.

The grand jury is not the final arbiter of the facts. It sits only to find

probable cause to believe the defendant committed a crime – and then, only by

majority vote. See Fed.R.Crim.P. 6(a), (f). It may rely on an agent’s summary of

evidence, e.g., Daniels, 281 F.3d at 176, and hearsay, Costello v. United States,

350 U.S. 359, 363 (1956); see also Fed.R.Evid. 1101(d)(2) (rules of evidence do

not apply in grand jury). And it need not hear any exculpatory evidence on the

target’s behalf. See United States v. Williams, 504 U.S. 36, 51-55 (1992) (“It is

axiomatic that the grand jury sits not to determine guilt or innocence, but to assess

whether there is adequate basis for bringing a criminal charge”); id. (“to make the

assessment it has always been thought sufficient to hear only the prosecutor’s

side”); id. (“requiring the prosecutor to present exculpatory as well as inculpatory

99


.

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

100


.

II. THE DISTRICT COURT ERRED IN FINDING THE GOVERNMENTMADE IMPERMISSIBLE AND SIGNIFICANT NON-EVIDENTIARYUSE OF THE DEFENDANTS’ COMPELLED STATEMENTS.

While Kastigar prohibits direct and derivative evidentiary use of immunized

testimony, it does not address non-evidentiary use. See North I, 910 F.2d at 858.

This Court, too, has twice declined to reach the issue. Id. at 860; Kilroy, 27 F.3d

at 687. The district court held that Kastigar prohibits “significant non-evidentiary

use” of compelled testimony, and found the government made such use here.

Mem.Op. 29-30, 75-85. The court found that the government impermissibly used

Heard’s and Ball’s Garrity statements in deciding to charge them, Mem.Op. 75-

78, and that all the defendants’ statements “guided the government’s investigation

and prosecution.” Mem.Op. 78-85. The court erred under both the law and facts.

A. Standards of Review

Whether, and to what extent, the Fifth Amendment prohibits non-

evidentiary use of an immunized statement is a legal question, reviewed de novo.

See North I, 910 F.2d at 856-60. Whether the government made non-evidentiary

use of such statements is a factual determination, reviewed for clear error. See id.

analysis of the issue was wrong as a matter of both law and fact – and the errorappears, again, to have infected the court’s overall view of the case.

101


.

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

102


.

constitutional right is safeguarded by an “evidentiary privilege” that allows a

witness to insist that his testimony be “immunized from use and derivative use in a

future criminal proceeding before it is compelled.” Chavez v. Martinez, 538 U.S.

760, 770-71 (2003) (plurality) (citing Kastigar, 406 U.S. at 453); see id. at 767

(Martinez “was never made to be a ‘witness’ against himself in violation of the

Fifth Amendment’s Self-Incrimination Clause because his statements were never

admitted as testimony against him in a criminal case”); see also id. at 777 (“the

text of the Fifth Amendment * * * focuses on courtroom use” of a compelled, self-

incriminating statement and affords “evidentiary protection” against such use)

(Souter, J., concurring in the judgment, with Breyer, J.).

As Kastigar makes clear, its prohibition on use and derivative use immunity

does not encompass the “considerably broader” protection of transactional

immunity, “which accords full immunity from prosecution for the offense to which

the compelled testimony relates.” 406 U.S. at 453. Because the granting of use

immunity presupposes the possibility of a later prosecution, see id. at 462 (use-

immunity is not “an amnesty grant”), the bringing of an indictment whose

sufficiency rests on evidence “derived from a legitimate source wholly

independent of the compelled testimony,” id. at 460, comports with the Fifth

Amendment. In such a case, the Fifth Amendment should not require an inquiry

103


.

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

prosecutorial discretion”).

104


.

Other courts agree. In United States v. Mariani, 851 F.2d 595 (2d Cir.

1988), the Second Circuit found that a prosecution should not be foreclosed

because immunized testimony “tangentially influenced the prosecutor’s thought

processes in preparing the indictment and preparing for trial.” Id. at 600. “In view

of the government’s convincing proof that the evidence upon which it based its

prosecution * * * came from legitimate independent sources, we cannot see how

the * * * prosecutors’ knowledge of Mariani’s immunized testimony could be

considered impermissible use of that testimony.” Id. at 601; accord United States

v. Rivieccio, 919 F.2d 812, 815 (2d Cir. 1990).

In Montoya, 45 F.3d at 1296, an AUSA included excerpts of immunized

testimony in his application to the Attorney General in seeking permission to

prosecute. The Ninth Circuit refused to dismiss the indictment on the basis of that

“use,” finding it “too remote from the criminal proceeding,” and noting that the

AUSA’s request also “detail[ed] the independent sources of evidence necessary to

prosecute.” Id. at 1297.

In Serrano, 870 F.2d at 17-18, the First Circuit declined to consider an

unpreserved claim of non-evidentiary use in the decision to indict, partly because

the claim was not compelling enough to warrant consideration for the first time on

appeal. See id. at 17 (dismissing an indictment on that basis “would in effect grant

105


.

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).

106


.

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

107



Kohl knew earlier that Heard had shot, he was taking their counsel seriously and

proceeding carefully. 10/28/am/25-26.

The district court rejected those explanations and found the charging

decision was better explained by the timing of the prosecution’s exposure to

Heard’s September 16 statement. Mem.Op. 75-77. The timing, however, actually

belies the court’s finding. The government was first exposed to Heard’s

September 16 statement on January 10, 2008, when Ponticiello interviewed

Carpenter. 10/26/pm/90-93.

Ex.215.#3906; 10/27/pm/43-44. The team, including Kohl, also met

with Lopez, and learned that same information, on January 25. 10/27/am/26-27.

See Ex.70. If, as the district court believed, the

government’s decision to target Heard was driven by its exposure to his September

16 statement, the government would have made the decision when, in fact, it was

exposed to the statement. But it did not.

The court further found that references to Heard’s September 16 statement

in drafts of the prosecution memo also showed the statement played a central role

in the charging decision. Mem.Op. 75-76. In the memo, which covered some 70-

108



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.

109


.

made, did not drive any charging decision. Or, by the same token, any role

Heard’s statements may have played in the minds of prosecutors as reflected in

earlier drafts of the memo was harmless beyond a reasonable doubt. Ponds is

instructive. There, evidence derived from a defendant’s immunized statements

was included in a search-warrant affidavit that, in turn, led investigators to the

primary evidence used to indict. 454 F.3d at 327-28. In remanding for a Kastigar

harmlessness determination, this Court set the standard for the inquiry – and held

the government had to prove beyond a reasonable doubt that its case “would have

been vigorously pursued, and the search warrant sought and obtained, had the

government not relied on” the Kastigar evidence. Id. at 328-29.

The government can meet that standard here: its case against Heard was

strong, it had already decided to seek charges against all the Nisur Square

shooters, and the subsection relating to Heard’s September 16 statement was

inconsequential in light of its other evidence. See id. at 328. And, of course, the

references to Heard’s statement were neither in the final memo submitted to the

official decision-makers nor presented to the grand jury. Thus, this Court need not

even ask, as in Ponds, whether the charges against Heard would have been

110


.

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”).

111



the spring or summer. See 10/15/pm/101-02, 118-19; 10/22/pm/17-19;

10/26/pm/91-93. The court found Ball’s statements to the DSS played a “central

role” in the charging decision because Ball was added to Kohl’s list after the

government saw these statements, and because no new evidence against Ball had

surfaced between the March and April updates. Mem.Op. 77-78.

Again, however, the record refutes that finding, and again, Ponds provides

an apt analogy: “The government is free to use a piece of information that appears

in an immunized document if it can accomplish its ‘affirmative duty’ of proving

the information was ‘derived from a legitimate source wholly independent of the

compelled testimony.’” 454 F.3d at 328 (quoting Kastigar, 406 U.S. at 460).

GJ.Ex.93/93-95).

Reta.Ex.3.

Patarini.Ex.20. Thus, the court’s notion that Ball’s statements

were the “central reason” for the charging recommendation because they provided

the only new evidence against him between March and April is simply wrong.

There was nothing new at all in Ball’s statements. And the government’s

112


.

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

explanations for his actions. Mem.Op. 78-84.

113


.

Second, the court found that, given their “early, ongoing and intentional

immersion” in the statements, which provided a “wealth of information” and

“clear[ly] * * * [had] value to the prosecution,” the prosecutors’ denials of having

made significant non-evidentiary use of them were not credible. Mem.Op. 83-85

(“It simply defies common sense that the prosecution would go to such incredible

lengths to obtain the defendants’ compelled statements, flouting the advice of the

taint team * * * and then make no use whatsoever of the fruits of their efforts.”);

accord Mem.Op. 85 n.64.

Importantly, although much of the court’s opinion (here and elsewhere, see

Mem.Op. 13-20), is devoted to its view of the government’s “reckless” pursuit of

the September 16 statements, it did not find these efforts led to the presentation of

any evidence against any defendant in the grand jury. See Mem.Op. 51-75. The

government’s pursuit of the statements, rather, was relevant only to the court’s

analysis regarding non-evidentiary use. Mem.Op. 75-85. And here, the court’s

essential reasoning – that the government must have made significant non-

evidentiary use of the statements because it aggressively went after them – is

supported by neither the record, the law, nor logic.

As we acknowledged at the outset, the government made mistakes during

this investigation, and it obviously regrets the missteps that have imperiled this

114


.

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.

115


.

near singular focus on the matter misapprehends the Kastigar analysis. As this

Court has made clear, the Kastigar inquiry turns not on whether a prosecutor in

good faith knew or believed that testimony was immunized, but on whether the

testimony was, in fact, used against the defendant. North I, 910 F.2d at 859, 865;

see also Montoya, 45 F.3d at 1292-93 (“[t]he question is not whether the

prosecutor was aware of the contents of the immunized testimony, but whether he

used the testimony in any way to build a case against the defendant”); accord

United States v. McGuire, 45 F.3d 1177, 1183 (8 Cir. 1995); Velasco, 953 F.2d atth

1474; United States v. Caporale, 806 F.2d 1487, 1518 (11 Cir. 1986); Unitedth

States v. Crowson, 828 F.2d 1427, 1430 (9 Cir. 1987); United States v. Hsia, 131th

F.Supp.2d 195, 201 (D.D.C. 2001) (prosecutor’s “good or bad faith” immaterial to

Kastigar inquiry).

And while the government’s mere assertion that it did not use immunized

testimony is generally insufficient to establish non-use, see United States v.

Harris, 973 F.2d 333, 336 (4 Cir. 1992), mere speculation does not defeat theth

government’s burden either. See Mariani, 851 F.2d at 601 (reversing “conjectural

and insubstantial” findings of non-evidentiary use); Serrano, 870 F.2d at 18

(rejecting notion that “mere possibility of nonevidentiary use” warrants

indictment’s dismissal); Byrd, 765 F.2d at 1529 (government need not “negate all

116


.

abstract ‘possibility’ of taint”); Kilroy, 27 F.3d at 687-88; cf. In re Stover, 40 F.3d

1096, 1103 (10 Cir. 1994) (“[i]t is axiomatic that the Fifth Amendment protectsth

against ‘real dangers, not remote and speculative possibilities’”) (quoting Zicarelli

v. New Jersey Investigation Comm’n, 406 U.S. 472, 478 (1972)).

Any determination regarding use requires a more considered inquiry. And

here, three things are relevant: the substance of the defendants’ September 16

statements; the timing of the prosecutors’ first exposure to them (in January and

February 2008); and what effect, if any, that exposure had on the presentation to

the second grand jury. As noted, the prosecutors worked with the taint attorneys

to present a “bare bones,” four-day case to the second grand jury. And they drew

on the previous testimony of five key witnesses – Raven 23 guards Murphy,

Mealy and Frost, and Colonels Boslego and Tarsa – as well as the Iraqis who

helped identify the shooters and/or gave their on-the-scene accounts of what

happened in the Square, and Ridgeway, who pleaded guilty shortly before the

grand jury convened. The key witnesses were identified by the FBI in fall 2007,

and the testimony of Murphy, Mealy and Frost, moreover, was memorialized in

November and December 2007 – well before the prosecutors were exposed to the

defendants’ statements. Thus, the prosecutors’ knowledge of the defendants’

statements did not lead them to the grand jury witnesses, nor did it steer them to

117



any of the considerable physical evidence presented to the grand jury, which the

FBI had largely gathered in 2007. See 10/22/pm/55-63, 67-68 (Patarini:

developed no witnesses, no physical evidence as a result of later exposure to

defendants’ statements); 10/20/pm/107-09 (Agent Murphy; same); 10/28/pm/29-

31, 49-51 (Kohl; same); 11/2/am/80-83 (Malis; same); 10/27/pm/101 (Ponticiello;

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.

118



I, 910 F.2d at 857-58. And again, the government did not need to see anyone’s

statement to know the guards would claim self-defense. See Daniels, 281 F.3d at

182 (prosecutor’s exposure to immunized statement inconsequential where

defendant effectively had only one defense, and “a competent prosecutor would

need no special insight or information to discern” it).

The court’s finding that the government “must have” made significant non-

evidentiary use of the defendants’ statements was also largely driven by its

assumption that the “specific information” included in the statements was of

significant value to the case. E.g., Mem.Op. 83 (“it is abundantly clear that the

defendants’ compelled statements did have a value to the prosecution”); Mem.Op.

84 (statements provided “a wealth of valuable information”); Mem.Op. 49. In so

finding, the court

Mem.Op. 83.

The court is half right: the September 16 statements

See Mem.Op. 5-7

The court is

wrong, however, in concluding that any of this was of significant value to the

119



government’s case. The most important piece of information imparted by the

statements – – was independently known by the

government well before prosecutors saw the statements, from the Iraqi witness

interviews in October 2007 and the testimony of Frost, Murphy and Mealy in

November and December. 10/28/am/18-19.

The government also knew in October 2007, again based on its own

investigation and before any exposure to the defendants’ statements, where the

shots had been fired – and thus where the shooters would claim to have seen any

possible threats. As Patarini explained, based on its search of the Square, the

seizure (or photographs) of vehicles, and the interviews of U.S. military and Iraqi

witnesses in 2007, the FBI had a fairly comprehensive picture of the shooting. See

10/21/pm/79-82; 10/22/pm/55-58, 61-63; 10/22/pm/57 (physical evidence told “us

which direction * * * the fire came from, and also g[a]ve us a volume of fire”);

10/22/pm/58 (knew from Iraqis and U.S. military where vehicles had been in the

Square); see also 10/27/pm/90-91 (Ponticiello: “if they’re claiming they were

being shot at, we knew the direction where [the guards] were shooting because

there were obviously bullets in the vehicles that were shot at”); id. at 17.

That the government knew, before seeing any statement, who the shooters

were and where the shots had been fired itself rendered the statements of scant

120


.

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”).

121


.

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

122


.

relevant information not independently available); Mariani, 851 F.2d at 601

(government did not make impermissible non-evidentiary use of defendant’s

immunized admissions where it had no need for them); Caporale, 806 F.2d at

1518-19 (no Kastigar violation where defendant’s immunized testimony was

“self-serving and of no real value” to the investigation); United States v.

Anderson, 450 A.2d 446, 451 (D.C. 1982) (where defendant’s immunized

statement “was both suspect and exculpatory, an inquiry into the subjective

thinking of the prosecuting authorities would be especially meaningless”); United

States v. Romano, 583 F.2d 1, 8 (1 Cir. 1978) (“there was nothing to suggest thatst

the Government needed [the defendant’s] testimony to help make out its case”).

To be sure, as Hulser (and others) testified, prosecutors in a non-Kastigar

case like this would surely want any immediate post-shooting statements,

10/23/am/31-32 – and the prosecutors, believing themselves entitled to them,

naturally sought the statements out here. But that does not mean the statements

were used by – or were of any real use to – the government in making its case or

presenting it to the grand jury.

123


.

CONCLUSION

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

Criminal Division, Appellate Section 950 Pennsylvania Ave., NW #1264 Washington, D.C. 20530 (202) 307-5964

[email protected]

June 16, 2010

124


mailto:[email protected]

.

CERTIFICATE OF COMPLIANCE

I hereby certify that, pursuant to this Court’s Order of May 21, 2010, the

Preliminary Brief for the United States contains 30,000 words, excluding the parts

exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and D.C. Circuit Rule 32(a)(2). The

brief has been prepared in a proportionally spaced typeface (Times New Roman,

14-point).

___________/s/______________DEMETRA LAMBROS

125


.

CERTIFICATE OF SERVICE

I certify that, on June 16, 2010, I served the revised Public Copy of the

Government’s Preliminary Brief on counsel for all parties via the Court’s ECF

system. I also separately sent hard copies to all counsel via first class mail.

_________/s/________________DEMETRA LAMBROSAttorney, U.S. Department of JusticeCriminal Appellate Section950 Pennsylvania Ave., NWRoom 1264Washington, D.C. 20530(202) [email protected]

126


mailto:[email protected]

ADDENDUM


ADDENDUM: STATUTES

18 U.S.C. § 1112. Manslaughter

(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.


Documents

DOJ Blackwater Brief