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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA :::v. : Criminal Action No.: 08-0360 (RMU):PAUL A. SLOUGH

et al

., ::Defendants. :

MEMORANDUM OPINIONG

RANTING THE

EFENDANTS

’

OTION TO

ISMISS THE

NDICTMENT

;

ENYING AS

OOT THE

OVERNMENT

’

OTION TO

ISMISS THE

NDICTMENT

GAINST

EFENDANT

LATTEN

ITHOUT

REJUDICE

[T]he basic purposes that lie behind the privilege against self-incrimination do not relateto protecting the innocent from conviction, but rather to preserving the integrity of a judicial system in which even the guilty are not to be convicted unless the prosecutionshoulder the entire load

I. INTRODUCTION

The defendants have been charged with voluntary manslaughter and firearms violationsarising out of a shooting that occurred in Baghdad, Iraq on September 16, 2007. They contendthat in the course of this prosecution, the government violated their constitutional rights byutilizing statements they made to Department of State investigators, which were compelled undera threat of job loss. The government has acknowledged that many of these statements qualify ascompelled statements under

Garrity v. New Jersey

, 385 U.S. 493 (1967), which held that theFifth Amendment privilege against self-incrimination bars the government from using statementscompelled under a threat of job loss in a subsequent criminal prosecution. The Fifth Amendmentautomatically confers use and derivative use immunity on statements compelled under

Garrity

;this means that in seeking an indictment from a grand jury or a conviction at trial, the

Tehan v. U.S. ex rel. Shott

, 382 U.S. 406, 415 (1966).

Case 1:08-cr-00360-RMU Document 217 Filed 12/31/09 Page 1 of 90

2government is prohibited from using such compelled statements or any evidence obtained as aresult of those statements.The government has also acknowledged that its investigators, prosecutors and keywitnesses were exposed to (and, indeed, aggressively sought out) many of the statements givenby the defendants to State Department investigators. Under the binding precedent of theSupreme Court in

Kastigar v. United States

, 406 U.S. 441 (1971) and this Circuit in

United States v. North

, 910 F.2d 843 (D.C. Cir. 1990), the burden fell to the government to prove that itmade no use whatsoever of these immunized statements or that any such use was harmlessbeyond any reasonable doubt.Beginning on October 14, 2009, this court convened a

Kastigar

hearing to explorewhether the government had made any use of compelled statements during its prosecution of thedefendants. During this hearing, which spanned three weeks, the parties presented testimonyfrom twenty-five witnesses, including the government’s entire prosecution team, the lead FBIagents in charge of the investigation and all five defendants. The parties offered hundreds of exhibits into evidence and submitted voluminous pre- and post-hearing memoranda.From this extensive presentation of evidence and argument, the following conclusionsineluctably emerge. In their zeal to bring charges against the defendants in this case, theprosecutors and investigators aggressively sought out statements the defendants had beencompelled to make to government investigators in the immediate aftermath of the shooting andin the subsequent investigation. In so doing, the government’s trial team repeatedly disregardedthe warnings of experienced, senior prosecutors, assigned to the case specifically to advise thetrial team on

Garrity

and

Kastigar

issues, that this course of action threatened the viability of theprosecution. The government used the defendants’ compelled statements to guide its charging

Case 1:08-cr-00360-RMU Document 217 Filed 12/31/09 Page 2 of 90

3decisions, to formulate its theory of the case, to develop investigatory leads and, ultimately, toobtain the indictment in this case. The government’s key witnesses immersed themselves in thedefendants’ compelled statements, and the evidence adduced at the

Kastigar

hearing plainlydemonstrated that these compelled statements shaped portions of the witnesses’ testimony to theindicting grand jury.

The explanations offered by the prosecutors and investigators in anattempt to justify their actions and persuade the court that they did not use the defendants’compelled testimony were all too often contradictory, unbelievable and lacking in credibility.In short, the government has utterly failed to prove that it made no impermissible use of the defendants’ statements or that such use was harmless beyond a reasonable doubt.Accordingly, the court must dismiss the indictment against all of the defendants.

II. BACKGROUNDA. Factual Background1. The Nisur Square Incident

The defendants – Paul Slough, Evan Liberty, Dustin Heard, Donald Ball and NicholasSlatten – were security guards employed by Blackwater Worldwide (“Blackwater”), a privatecompany that provided security services to U.S. government employees operating in Iraq.Govt’s Pre-Hr’g Mem. at 2. On September 16, 2007, the defendants were part of a BlackwaterTactical Support Team answering to the call sign “Raven 23,” whose function was to provideback-up fire support for other Blackwater personal security details operating in Baghdad.

In fact, the government has conceded that key testimony used to indict defendant Nicholas Slattenresulted from the exposure of grand jury witnesses to his compelled statements, and has movedfor leave to dismiss the indictment against that defendant.

See generally

Govt’s Mot. for Leave toDismiss Indictment Without Prejudice Against Def. Slatten.

Case 1:08-cr-00360-RMU Document 217 Filed 12/31/09 Page 3 of 90