2010-01-14 D1109 MTN To Dismiss Indictment For Pros Misconduct

Case 4:03-cr-00363 Document 1109 Filed in TXSD on 01/14/10 Page 1 of 49
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UNITED STATES OF AMERICA §

§
v. §
§ Cr. No. H-03-363 (Werlein, J.)
DANIEL BAYLY and §
ROBERT S. FURST §
§
DEFENDANT ROBERT S. FURST’S

MOTION TO DISMISS INDICTMENT FOR PROSECUTORIAL MISCONDUCT
HEARING REQUESTED
TABLE OF CONTENTS
I. SUMMARY OF MOTION................................................................................................1
II. BACKGROUND ...............................................................................................................3
A. The First Trial ........................................................................................................3
1. The Barge Transaction...............................................................................3
2. The ETF’s Stated Theory of the Case........................................................4
3. The Defense Made Repeated Requests for the

Production of Brady Material, Including Some of the
Specific Brady Evidence Which Was Withheld. .......................................8
4. The ETF Made Sparse Brady Disclosures in the First

Trial............................................................................................................9
a. The April 22, 2004 Brady Letter..................................................10
b. The June 1, 2004 Brady Letter.....................................................10
c. The July 30, 2004 Brady Letter ...................................................11
5. The ETF’s Representations to this Court.................................................12
B. Hundreds of Pages of Brady Material Were Produced Years

After Furst was Tried, Sentenced, and Imprisoned..............................................13
1. In September 2007, the Government Produced Two

Partial Composite 302s for Andrew Fastow Which
Revealed Exculpatory Information Withheld from the
Defense at Trial........................................................................................14
2. In December 2007, the Government Produced 302s for

Katherine Zrike and Others Which Revealed
Exculpatory Information Withheld from the Defense at
Trial..........................................................................................................15
3. The ETF’s Brady Misconduct in the Skilling Case

Resulted in the Compelled Production of the
Handwritten Notes Underlying the Fastow Composite
302s. .........................................................................................................16
III. EXAMPLES OF EGREGIOUS AND MATERIAL BRADY

VIOLATIONS .................................................................................................................17
A. The ETF Withheld Exculpatory Evidence That Nullified Its

Case......................................................................................................................18
1. ETF (Mis)Representation #1: Did Fastow Actually

Guarantee that Enron Would Repurchase the Barges, or
Simply Obligate Enron to Use its “Best Efforts” to Help
Merrill Lynch Remarket the Barges?.......................................................18
2. ETF (Mis)Representation #2: Contrary to the

Allegations in the Indictment, Fastow Expressly Denied
Promising to Repurchase the Barge Investment. .....................................22
3. ETF (Mis)Representation #3: To Prove an Oral

Guarantee Where None Existed, the ETF Sponsored
Testimony from Fastow’s Subordinates Who the ETF
Knew Were Misinformed about the Nature of Enron’s
Obligations to Merrill Lynch. ..................................................................23
4. ETF (Mis)Representation #4: Fastow Expressly Denied

Obligating Enron to Repurchase the Barge Investment...........................26
5. ETF (Mis)Representation #5: The ETF Withheld

Exculpatory Statements by Katherine Zrike Which
Proved the Barge Transaction was a “Best Efforts” Deal........................28
a. Katherine Zrike’s exculpatory 302 was withheld

from the defense...........................................................................28
b. Katherine Zrike’s exculpatory SEC testimony

was withheld from the defense. ...................................................29
IV. LEGAL AUTHORITY ....................................................................................................35
A. The Government is Constitutionally, Ethically, and as a Matter

of Department Policy Bound to Disclose Exculpatory Evidence
to the Defense. .....................................................................................................36
B. This and Other Courts Have Dismissed Indictments for Brady

Violations Substantially Less Severe Than Those in This Case..........................38
C. The Egregious Pattern of Withholding and Manipulation of

Exculpatory Evidence Mandates Dismissal of the Indictment. ...........................41
V. CONCLUSION................................................................................................................42
TABLE OF AUTHORITIES
CASES
Berger v. United States,

295 U.S. 78 (1935)...............................................................................................................1, 22
Brady v. Maryland,
373 U.S at 87.................................................................................................................... passim
Harris v. United States,

9 F.Supp.2d 246 (S.D.N.Y. 1998)............................................................................................10
Kyles v. Whitley,
514 U.S. 419 (1995)......................................................................................................... passim
Martinez v. Wainwright,
621 F.2d 184 (5th Cir. 1980) ....................................................................................................37
United States v. Auten,

632 F.2d 478 (5th Cir. 1980) ....................................................................................................37
United States v. Broward,

594 F.2d 345 (2d Cir.), cert denied, 442 U.S. 941 (1979).......................................................36
United States v. Chapman,

524 F.3d 1073 (9th Cir. 2008) ..................................................................................................36
United States v. Dollar,

25 F. Supp. 2d 1320 (N.D. Ala. 1998).....................................................................................40
United States v. Jordan,

316 F.3d 1215 (11th Cir. 2003) ................................................................................................36
United States v. Lyons,

352 F. Supp. 2d 1231 (M.D. Fla. 2004).............................................................................40, 42
United States v. Ramming,

915 F. Supp. 854 (S.D. Tex. 1996) ..........................................................................3, 36, 39, 40
United States v. Reyes,

577 F.3d 1069 (9th Cir. 2009) ............................................................................................39, 41
United States v. Urciuoli,

470 F.Supp.2d 109 (D.R.I. 2007).............................................................................................15
United States v. Weintraub,

871 F.2d 1257 (5th Cir. 1989) .................................................................................................13
United States v. Welborn,

849 F.2d 980 (5th Cir. 1988) ....................................................................................................36
OTHER AUTHORITIES
ABA FORMAL OPINION 09-454......................................................................................................38
Holman W. Jenkins, Jr., Rethinking the Corporate Crime Spree, Wall Street Journal,
August 18, 2009 .......................................................................................................................41
UNITED STATES ATTORNEY MANUAL § 9-5.001(B).........................................................................8
UNITED STATES ATTORNEY’S MANUAL § 9-5.001(B)......................................................................8
UNITED STATES ATTORNEY’S MANUAL §9-5.001(B)(1) ................................................................37
UNITED STATES ATTORNEYS MANUAL § 9-5.001(B)(2) ................................................................38

I. SUMMARY OF MOTION
The American criminal justice system is built upon the principle that the government’s
interest “is not that it shall win a case, but that justice shall be done.” Berger v. United States,
295 U.S. 78, 88 (1935). The Enron Task Force (the “ETF”)—a team of prosecutors and
investigators formed in 2002 to address the public demand for individual accountability in the
aftermath of Enron’s collapse—investigated, indicted, and prosecuted Defendant Robert Furst
and his co-defendants with the goal to win at all costs. And the ETF “won”—Mr. Furst spent
almost a year in prison before his conviction was overturned on appeal.
But to secure victory, the ETF engaged in a campaign of misconduct which violated Mr.
Furst’s constitutional rights to due process and a fair trial. This misconduct was necessary
because the case the ETF indicted and hoped to prosecute, which would involve a sordid tale of a
well-organized conspiracy to defraud Enron and its shareholders, was not supported by the facts.
The ETF could not prove that Enron or its shareholders lost any money in the barge transaction,
because they did not. The form and mechanics of the transaction were thoroughly vetted through
hundreds of hours of negotiation by dozens of highly-competent attorneys. Witnesses
interviewed by the ETF undercut its theory of the case. In short, the barge transaction had all the
markings of a legitimate business transaction, because it was. But legitimate business
transactions do not generate convictions, and the ETF needed convictions. So, in order to ensure
victory, the ETF:
● withheld volumes of exculpatory, case-dispositive evidence which nullified its theory
of criminal liability;
● manipulated and misstated exculpatory testimony in pretrial disclosures to make it
appear inculpatory;
DEFENDANT FURST’S MOTION TO DISMISS INDICTMENT FOR PROSECUTORIAL MISCONDUCT- Page 1

● silenced witnesses by indiscriminately designating nearly all material witnesses as
unindicted co-conspirators; and
● sponsored inculpatory testimony that it knew was false.
The ETF’s conduct did not end with the return of the verdict. After trial, but before
sentencing, the ETF received additional case-dispositive, exculpatory evidence from one of the
key witnesses in the case. This evidence further nullified the ETF’s theory of criminal liability,
and exculpated Mr. Furst. Rather than disclosing this evidence to the Court, the ETF instead
withheld the evidence and brazenly asked this Court to enhance Mr. Furst’s sentence for conduct
which was negated by this and other evidence in the ETF’s possession. This misconduct
eliminates all faith in the integrity of the jury’s verdict and warrants dismissal of the Indictment.
The Justice Department’s failure to address the ETF’s pattern of misconduct is as
troubling as the misconduct itself. Indeed, the government has suggested that the misconduct
raised herein is moot because the defense obtained the exculpatory evidence before Mr. Furst’s
retrial. Such a contention demonstrates a fundamental distortion of the government’s obligations
under Brady, and smacks of an intent to play a “cat-and-mouse” game with Mr. Furst’s
constitutional rights. Turning a blind eye to the ETF’s pattern of misconduct and allowing the
retrial of Mr. Furst to proceed under the “no harm, no foul” theory would set a perilous standard
of acceptable behavior for future task forces and government prosecutors who would be tempted
to distort and hide exculpatory evidence from an accused.
Though dismissal is a severe remedy, it is one that has been employed in instances of
egregious misconduct. Recent high profile cases involving Senator Ted Stevens, Gregory Reyes,
Blackwater, and William Ruehle have all been dismissed for conduct similar to that alleged

herein. In fact, this Court has dismissed a criminal indictment for conduct substantially less
severe than that described here. United States v. Ramming, 915 F. Supp. 854 (S.D. Tex. 1996).
Although the misconduct described in this Motion is more than sufficient to justify
dismissal of the Indictment, the totality of the prosecutorial misconduct in this case, as well as
the identities of those who authorized and participated in the misconduct, are unknown. Once
the Fifth Circuit Court of Appeals compelled the government to produce previously-withheld
exculpatory evidence, much of it was produced in a manner to avoid revealing who perpetrated
the misconduct. Handwritten notes which contain some of the critical exculpatory evidence
withheld from the defense do not reflect who took the notes, or which members of the ETF were
present for the interviews. FBI memoranda of interviews (302s) departed from accepted protocol
by failing to reveal who was present for the interviews, who created the documents, and who
excised the exculpatory information.
Because of the tactics employed by the ETF and the vigor with which it fought the
compelled production of exculpatory evidence, an evidentiary hearing is necessary to determine
who is responsible for the ethical and constitutional violations committed against Mr. Furst.
II. BACKGROUND
A. The First Trial
1. The Barge Transaction
A substantial amount of time has elapsed since the first trial, and a brief review of the
transaction will provide context for the misconduct described herein. In December 1999, Merrill
Lynch purchased an equity interest in an entity that owned three off-shore power barges in
Nigeria (the “barges”) from Enron (the “barge transaction”). This interest entitled Merrill Lynch
to ninety percent of the free cash flow from the first thirty-six months of operation of the barges.

Upon receiving the call, Merrill Lynch employees, including Mr. Furst, began to vet the
transaction. Over the next few days, Merrill Lynch employees discussed the transaction
internally with their superiors, presented the transaction to a committee designated to analyze the
transaction, and consulted Merrill Lynch’s internal legal team, including Katherine Zrike. The
internal discussions resulted in the approval of the transaction subject to a conference call led by
Dan Bayly of Merrill Lynch and Andrew Fastow, Enron’s Chief Financial Officer. What Mr.
Fastow told Mr. Bayly and Merrill Lynch on this call was the lynchpin of the ETF’s case.
After the “business people” determined that a deal was feasible, the companies’
respective legal teams, comprised of in-house and outside counsel, took over to hammer out the
details. Over the span of several days, dozens of attorneys for Merrill Lynch and Enron spent
hundreds of hours negotiating and drafting the legal documentation for the barge transaction,
which closed on December 30, 1999.
In June 2000, a third party, LJM2, purchased the interest in the barges from Merrill
Lynch. On September 30, 2000, LJM2 sold the barges to AES Nigeria Holdings Limited (a third
party), for a sizeable gain of $710,000.00. Thus, no one—not Enron, its shareholders, Merrill
Lynch, or LJM2—lost money on the barge transaction.
2. The ETF’s Stated Theory of the Case
In order to appreciate the significance of the Brady material that was withheld from the
defense, it is important to understand the representations and theories of liability the ETF
submitted to the Court and jury during the first trial.
The charges against Mr. Furst stem from the allegation that:
Merrill Lynch executives knew that the ‘purchase’ was not real…. Enron
executives promised in an oral ‘handshake’ side-deal that Merrill Lynch
would receive a rate of return of approximately 22% and that Enron would
sell the barges to a third party or repurchase the barges within six months.
Because of the promises from Enron executives, Merrill Lynch’s supposed

equity investment was not truly ‘at risk’ and Enron should not have treated
the transaction as a sale from which earnings and cash flow could be
recorded [on Enron’s books] in 1999.
SECOND SUPERSEDING INDICTMENT at ¶ 13 (Docket No. 271).
At trial, the ETF repeatedly argued that, because of this alleged “oral handshake side-
deal,” Merrill Lynch’s investment was never “at risk” because it was guaranteed to be relieved of
the barges within six months. Therefore, the ETF argued, the sale of the barges was actually a
loan, Enron should not have booked earnings in 1999 for the barge transaction and, thus, Merrill
Lynch employees (including Mr. Furst1) were part of a conspiracy to falsify Enron’s books and
records.
The ETF made repeated representations to the Court and the jury about this alleged oral
guarantee throughout trial, starting in opening statements:
So the guarantee, that Enron is viewing this transaction as a bridge and

will be out of it in six months, that had to be a guarantee. And that was
the guarantee that Merrill Lynch got from Geoff [sic] McMahon…Ladies
and gentlemen, the evidence in this case will prove that this guarantee
was made and this guarantee would blow the accounting on the
deal…And the purpose of the handshake, the evidence will be, was to
confirm the deal that had been cut by Mr. McMahon. The meeting
happened on the telephone between Mr. Bayly and Andrew Fastow, the
CFO of Enron….And the evidence will prove to you, ladies and
gentlemen, that this was a guarantee and it was always treated as a
guarantee…The evidence will show you that this was a phony sale
because Enron guaranteed Merrill Lynch a specific rate of return and
that it would own the barges.
1
It is not clear how the ETF decided who to indict and prosecute in connection with the transaction. Several
Merrill Lynch business people who were involved in reviewing and approving the business merits of the
transaction were not prosecuted. Nor were any of the two dozen in-house or outside attorneys for Enron and
Merrill Lynch who negotiated and drafted the transaction documents charged. The ETF continues this puzzling
trend, as it recently dismissed the charges against Dan Bayly, the head of investment banking at Merrill Lynch
who the ETF alleged was the ultimate decision maker at Merrill Lynch and “was the one to push the deal
through the approval process.” TT at 6167:20-25.

TRIAL TRANSCRIPT (“TT”) at 403:22-404:1; 404:8-10, 22-25; 416:24-417:1; 423:24-424:2.2 And
during closing arguments:
The deal between Enron and Merrill Lynch was a sham, and the sham was
accomplished by simple means. The defendants put together written
documents to conceal the true deal. The true deal was oral, was verbally
agreed to by the parties. The documented deal was just a mask, a mask
that was designed to make the deal look legitimate, a mask that was
designed to make the deal look like a sale, a mask designed to fool
Enron’s auditors and to fool Enron’s shareholders and investors.
Id. at 6143 at 15-24.
You now know that this deal was a phony sale… You know that Enron,
through its treasurer [Jeff McMahon] and through its chief financial
officer [Andrew Fastow], made an oral guarantee to these Merrill Lynch
defendants, that they would be taken out of the barge deal by June 30,
2000…. That promise, that oral guarantee, made the deal—the real deal
a loan. And you can’t have a true sale if there is an agreement to take
them out or if you guarantee the return that they make on their
investment. It’s as simple as that, ladies and gentlemen.
Id. at 6144:4-10.
The defense, on the other hand, argued throughout the investigation and trial that Enron
did not guarantee to repurchase Merrill Lynch’s interest in the barges. Rather, Enron simply
promised to use its “best efforts” to help Merrill Lynch by remarketing the barge investment to
third parties.3
The ETF agreed that a “best efforts” or “remarketing” deal would not be illegal. During
arguments about the admissibility of expert witness testimony on accounting and legal issues,
prosecutor Matthew Friedrich represented to this Court:
2
The excerpts of the trial transcript which are cited herein are attached to the Appendix as Exhibit “A,” and are
referenced using the designation “TT:[Page Number: Line Number].”
3
The defense’s theory of the case was well-known to the ETF long before trial. Many of the Brady requests
specifically sought materials negating the ETF’s contention that Mr. Fastow and/or Mr. McMahon made any
guarantees or promises to Merrill Lynch about the barge transaction.

We have always said that the key question is one of accounting, not law.
The issue is the accounting issues that are relevant are not disputed. If it’s
just best efforts, then it would have been okay.
Id. at 4528:4-7 (emphasis added). Minutes earlier, Mr. Friedrich stated:
if it’s just a re-marketing agreement that would not have caused a

problem. We don’t dispute that either.
Id. at 4520:18-20 (emphasis added). But the ETF openly attacked the integrity of this defense,
particularly in closing arguments:
[T]he written agreement between Enron and Merrill Lynch had no re-
marketing or best-efforts provision. You heard testimony, ladies and
gentlemen, that there was some suggestion made primarily through Ms.
Zrike, who testified on behalf of Mr. Bayly, that the Merrill Lynch
defendants believed that all that Enron had committed to do was to re-
market Enron—excuse me—Merrill Lynch’s interest in the barges….
Ladies and gentlemen, nowhere in the deal documents that you’ll see,
which are in evidence – you can look through there. You can spend as
many hours as you would like. You will nowhere in those documents
ever find a reference to a re-marketing agreement or a best-efforts
provision. It’s not in there.
Id. at 6151:9-16, 6151:21 – 6152:1 (emphasis added). Thus, the issue tried to the jury was
whether (1) Fastow guaranteed Enron would repurchase the barges, which the ETF alleged
would negate any risk to Merrill Lynch’s equity and render the barge transaction a loan, not a
sale or (2) Fastow simply committed Enron to use its “best efforts” to assist Merrill Lynch in
remarketing the barges to a third party. Under the ETF’s theory, this is the difference between
(1) an illegal conspiracy to falsify the books and records of Enron and (2) a legitimate business
transaction which “would not have caused a problem” Id. at 4520:18-20.

3. The Defense Made Repeated Requests for the Production of Brady Material,
Including Some of the Specific Brady Evidence Which Was Withheld.
Both Department of Justice policy4 and federal case law require exculpatory evidence to
be produced to the defense regardless of whether a defendant requests it. See UNITED STATES
ATTORNEY’S MANUAL § 9-5.001(B); Kyles v. Whitley, 514 U.S. 419, 432-33 (1995). Here, the
defense made repeated requests—both through letters to the ETF and through motions filed with
this Court—for the production of Brady materials and exculpatory evidence, including the
following:
● November 12, 2003 Letter from David Spears (counsel for William Fuhs) to
Andrew Weissmann requesting Brady disclosures (Exhibit 2 to Docket No. 125);
● December 31, 2003 Letter from Thomas A. Hagemann (counsel for Daniel
Bayly) to Andrew Weissmann requesting Brady disclosures (Exhibit 1 to Docket
No. 125);
● January 20, 2004 Letter from Daniel Horowitz (counsel for Robert Furst) to
Andrew Weissmann requesting Brady disclosures (Exhibit 3 to Docket No. 125)
(pointing out the working relationship between the various investigating agencies,
including the FBI and SEC, and requesting handwritten notes from the interviews
conducted by these investigators);
● February 3, 2004 Letter from Hagemann to Weissmann (Exhibit 6 to Docket

No. 125) (making specific Brady requests including (1) “All testimony and notes
of interviews of any Enron, Merrill Lynch or third-party employee that suggest no
guarantee was provided during the conversation on or about December 23, 1999
between, among others, Daniel Bayly and Andrew Fastow”; (2) “all testimony
and notes of interviews of Kathy Zrike before the SEC;” and (3) “all
documents…suggesting whether Enron had ‘significant obligations’ to directly
bring about the resale of Merrill Lynch’s barge interest…”);
● Defendant Robert Furst’s Notice of Motion for Pretrial Disclosure of Brady v.

Maryland Material (March 1, 2004) (Docket No. 113) (specific requests for both
4
See UNITED STATES ATTORNEY MANUAL § 9-5.001(B), available at
http://www.justice.gov/usao/eousa/foia_reading_room/usam (2006) (attached hereto as Exhibit “aa”) (“Because
they are Constitutional obligations, Brady and Giglio evidence must be disclosed regardless of whether the
defendant makes a request for exculpatory or impeachment evidence.”). Although the provision cited here was
not memorialized in the manual until October 2006, federal case law has long held that a request by the defense
is not required to trigger the government’s obligation to produce exculpatory evidence. Kyles v. Whitley, 514
U.S. 419, 432-33 (1995).

“information indicating the passage of risk from Enron to Merrill Lynch re: the
barge investment” and “information tending to show that the Barge transaction
constituted a ‘sale.’”);
● Defendant Daniel Bayly’s Motion to Compel Government Disclosure of All

Outstanding Brady and/or Giglio Material (March 1, 2004) (Docket No. 125)
(reiterating requests from Hagemann’s February 3, 2004 letter);
● Defendants’ Emergency Motion and Request for Immediate Disclosure and/or

Hearing Due to Government’s Violation of Brady v. Maryland as to Andrew
Fastow and Other Exculpatory Witnesses (June 3, 2004) (Docket No. 236); and
● Defendant Bayly’s Motion for Production of Brady Materials Before Opening

Statements (July 21, 2004) (Docket No. 305).
After the jury’s verdict in the first trial was reversed, in connection with their
preparations for the retrial of this matter, the defense made the following additional requests for
Brady material which had not been produced:
● May 22, 2007 Letter from Paul E. Coggins to Arnold Spencer (attached hereto
as Exhibit “B”) (requesting open file discovery for the retrial of this case);
● Defendant James A. Brown’s Motion to Compel the Production of Documents

and Brady Material (August 12, 2007) (Docket No. 948) (including request for
“material which tends to confirm Fastow’s testimony that Enron did not guarantee
it would buyback the barges, or make any guarantee”); and
● Defendant Robert S. Furst’s Motion to Compel the Production of the Complete

Andrew Fastow Binders (January 15, 2008) (Docket No. 1039) (seeking, among
other things, handwritten notes and associated materials from the FBI’s interviews
of Mr. Fastow).
The defense’s requests for Brady material were clear and specific, and were targeted to
prove that the barge transaction was a legal and legitimate “best efforts” transaction.
4. The ETF Made Sparse Brady Disclosures in the First Trial.
For months, the defense’s Brady requests went unanswered. Finally, after multiple
written requests, the ETF produced three letters purporting to provide all of the Brady evidence
in its possession. Rather than provide the defense with the actual interview notes, or even the
302s for witnesses who made exculpatory statements, the ETF purported to summarize the

exculpatory information which would be provided by these witnesses. It would later become
abundantly clear that the ETF withheld from these letters volumes of case-dispositive
exculpatory information that disproved its case.
a. The April 22, 2004 Brady Letter
On April 22, 2004, the ETF provided the defense a list of twenty-nine individuals
(including almost every individual who had any substantive role in the barge transaction5) it had
designated as unindicted co-conspirators. APRIL 22, 2004 LETTER FROM ANDREW WEISSMAN TO
LAWRENCE J. ZWEIFACH, ET AL (attached hereto as Exhibit “C”). The letter did not explain why
each of these individuals was named as an unindicted co-conspirator, or provide any exculpatory
testimony for these individuals. Instead, the letter stated that “we believe that most of the
defendants are aware of the identity of most if not all of these individuals, and their role as co-
conspirators.” Later, the ETF took the position that providing this list of twenty-nine co-
conspirators to the defense satisfied its obligations under Brady.6
b. The June 1, 2004 Brady Letter
Five weeks later, the ETF supplemented its April 22, 2004 letter. In its June 1, 2004
letter, the ETF identified five individuals with exculpatory information (Kira Toone-Meertens,
5
With the benefit of hindsight, it seems clear that the designation of unindicted co-conspirators was less about
identifying those who were accused of wrongdoing, and more about chilling potential defense witnesses from
speaking with the defense. The ETF’s tactic was highly effective, as the witnesses designated as unindicted co-
conspirators declined to speak with defense counsel about the case.
6
In its response to motions seeking more complete Brady disclosures, the ETF cited a case from the Southern
District of New York, Harris v. United States, 9 F.Supp.2d 246, 276 (S.D.N.Y. 1998), which held that if a
defendant denies his role in a conspiracy, then the corroborating denials of his co-conspirators do not need to be
disclosed under Brady because the defendant is presumably aware of that corroborating information. See
GOVERNMENT’S RESPONSE TO DEFENSE “BRADY” MOTIONS filed June 3, 2004 (Docket No. 248). The ETF
distorted the Harris rationale by designating almost every person with a substantive role in the barge transaction
as a co-conspirator, thereby purporting to relieve itself of producing Brady evidence for almost all participants
in the barge transaction. This is not a proper reading of (or good faith extension of) Harris. Indeed, such a
reading would encourage prosecutors to identify witnesses with potentially exculpatory information as co-
conspirators in order to avoid their Brady obligations.

Michael Kopper, Andrew Fastow, Ramon Rodriguez, and Ben Glisan), and provided brief,
summary descriptions of their testimony. JUNE 1, 2004 LETTER FROM KATHRYN RUEMMLER TO
LAWRENCE J. ZWEIFACH, ET AL. (the “June 1, 2004 Brady Letter”) (attached hereto as Exhibit
“D”). In addition, the ETF provided 302s from the FBI interviews of two of these witnesses
(Kopper and Toone-Meertens). Notably, though the ETF also possessed 302s for two other
witnesses referenced in this letter, Glisan and Fastow, their 302s were not provided.7 Rather, the
ETF told this Court that “the information at issue is not exculpatory.” GOVERNMENT’S
RESPONSE TO DEFENSE “BRADY” MOTIONS filed June 3, 2004 (Docket No. 248).
c. The July 30, 2004 Brady Letter
The defense quickly determined that the Brady disclosures in the June 1, 2004 Brady
Letter were deficient, and filed supplemental briefing with the Court seeking to compel the ETF
to make proper Brady disclosures. Pursuant to the Court’s July 14, 2004 Order, the ETF
composed a third Brady letter in which it purported to provide “even more than is required to be
disclosed pursuant to Brady.”8 See JULY 30, 2004 LETTER FROM KATHRYN RUEMMLER TO
LAWRENCE J. ZWEIFACH, ET AL. (the “July 30, 2004 Brady Letter”) (attached hereto as Exhibit
7
The disclosure in the June 1, 2004 letter relating to Fastow, which purports to be a summary of the exculpatory
testimony from his 302, is the subject of extensive discussion below. The two 302s for Andrew Fastow, which
form the basis for some of the misconduct in this Motion, were not produced to the defense until September 28,
2007—three years after Mr. Furst was convicted.
8
Other statements in the July 30, 2004 letter hint at the ETF’s rationale with regard to the disclosure (or lack
thereof) of Brady information. The letter notes that the ETF previously disclosed several individuals who
possessed exculpatory information in April 2004. Though the ETF is not specific, this appears to refer to the
ETF’s April 22, 2004 list of 29 unindicted co-conspirators, which comprised most of the individuals who
worked on the barge transaction, but which did not contain even a generic summary of what exculpatory
evidence, if any, each possessed. In the July 30, 2004 letter, the ETF noted that “some of the witnesses [listed
in the April 2004 letter] believed there was no agreement by Enron to take out Merrill Lynch from the Nigerian
barge deal or a set rate of return simply because they were not present for inculpatory conversations. Other
witnesses are unindicted conspirators [sic] who denied knowledge that could render them guilty.” In other
words, the ETF apparently took the position that witnesses who either (1) were not present for the alleged
“inculpatory conversations” or (2) who denied that Enron made the guarantee to Merrill Lynch were co-
conspirators who were not capable of providing exculpatory information. This is not, and has never been, the
standard by which the government’s Brady obligations are measured. Indeed, if this were the case, the
government could undermine Brady by simply making a determination that a witness with exculpatory
information is non-credible.

“E”). While the ETF admitted the statements were not “a substantially verbatim recitation of the
witnesses’ statements,” it stated that “the information contained below may be similar to
information contained within FBI form 302s, notes and grand jury transcripts.” The July 30,
2004 Brady Letter included brief and summarized exculpatory testimony for twenty-two
additional witnesses.
5. The ETF’s Representations to this Court
Before, during, and after the first trial, the ETF made numerous representations to this
Court that it had fully discharged its obligations under Brady. For example:
Before trial:
• Government’s Consolidated Response to Defendants’ Pretrial Motions (March 22,

2004) (Docket No. 154)
• Pre-Trial Conference (April 15, 2004) (Transcript Docket No. 175)
• Government’s Response to Furst’s Motion to Reconsider the Court’s

Brady/Giglio Ruling (May 7, 2004) (Docket No. 189)
• Pre-Trial Conference (May 27, 2004) (Transcript Docket No. 234)
• Government’s Response to Defense Brady Motions Filed June 3, 2004 (Docket

No. 248)
• Pre-Trial Conference (June 25, 2004) (Transcript Docket No. 285)
During trial:
• Trial (TT at 1614: 5-7) (“What we did, your Honor, is to provide [Furst’s counsel]
the Giglio material, Brady material from the Fastow documentations.”)
And after trial:
• Government’s Opposition to Brown’s Request for Production of Brady Materials

(October 1, 2007) (Docket No. 986) (touting the “extraordinary and voluminous”
discovery provided to the defense in the case, claiming full compliance with
Brady, objecting to further production of Brady materials, and noting the “pains
of reversal” which stem from any failure to produce known Brady material)

• Government’s Opposition to Bayly and Furst’s Request for Production of Brady

Materials (October 12, 2007) (Docket No. 1001) (noting that, “in an effort to
avoid discovery disputes, the United States has erred on the side of caution by
turning over items the defense will likely argue it wants, even though the United
States believes that these items are not relevant”)
• Government’s Response to Defendants’ Motion to Compel Production of Fastow

Binders and Related Material (February 19, 2008) (Docket No. 1059) (objecting
to defense requests for the production of handwritten notes of Fastow interviews
ordered to be produced in the Skilling litigation, noting that “several teams of
government lawyers” concluded that “the notes did not contain Brady information
that had not otherwise been disclosed”9)
In light of the misconduct highlighted herein, these repeated, unequivocal representations
ring false. In order to secure convictions in this case, the ETF could not afford to reveal
information which would undermine its case. See United States v. Weintraub, 871 F.2d 1257,
1261 n.6 (5th Cir. 1989) (government’s failure to produce evidence after specific request is “one
factor a reviewing court may consider in assessing the materiality of the withheld evidence”).
B. Hundreds of Pages of Brady Material Were Produced Years After Furst was Tried,
Sentenced, and Imprisoned.
After Mr. Furst was sentenced and imprisoned for almost a year, the Fifth Circuit
reversed his conviction. On April 5, 2007, the ETF evidenced its intent to re-try Mr. Furst by
filing its redacted Third Superseding Indictment against Mr. Furst and two other Merrill Lynch
defendants.10 The defense resumed its efforts to obtain Brady information which it believed had
9
The exculpatory material in the handwritten notes nullified the ETF’s case. The fact that “several teams of
government lawyers” allegedly reviewed these notes and made the conscious determination not to produce them
as Brady evidence casts doubt on whether the ETF was able to conduct an appropriate Brady review. Assuming
that the ETF denies the intentional withholding of exculpatory evidence, the necessary implication is that each
of the “several teams of government lawyers” was simply incapable of identifying clear omissions and
manipulations of case-dispositive portions of these handwritten notes. As a matter of due process, each of these
two explanations is equally unsettling, and highlights the need for discovery on these matters to identify who
reviewed these notes, and whether the conduct was negligent (which would warrant, at minimum, remedial
Brady training) or intentional (which would dictate more severe consequences).
10
As noted above, the ETF recently moved to dismiss the charges against one of the other Merrill Lynch
defendants, Dan Bayly. During the first trial, the ETF argued that “it was [Bayly’s] decision to do [the barge]
deal.” TT at 6167 at 20-25, and that it was Bayly who was on the phone with Andrew Fastow during the
alleged ratification of the guarantee, TT at 6214 18-21. Yet, the ETF moved to dismiss Bayly while Furst, his
subordinate, faces re-trial.

been withheld from the defense in the first trial. Though both the government and Mr. Furst are
represented by new counsel, the focus of the requests remained the same—the defense sought a
full disclosure of exculpatory testimony by Mr. Fastow and others to show that the barge
transaction was a legal, legitimate “best efforts” deal, as opposed to the “oral guarantee” the ETF
painted it to be. See, e.g., FEBRUARY 6, 2007 LETTER FROM LAWRENCE S. ROBBINS TO ARNOLD
A. SPENCER (attached hereto as Exhibit “F”) (requesting copies of all grand jury transcripts of
present or former Merrill Lynch employees related to the barge transaction); MAY 22, 2007
LETTER FROM PAUL COGGINS TO ARNOLD A. SPENCER (attached hereto as Exhibit “B”)
(requesting open file policy for re-trial of this case); NOVEMBER 1, 2007 LETTER FROM GREG POE
TO ARNOLD A. SPENCER (attached hereto as Exhibit “G”) (reiterating previous request for grand
jury testimony of witnesses to the barge transaction). These efforts proved only partially
successful.
1. In September 2007, the Government Produced Two Partial Composite 302s

for Andrew Fastow Which Revealed Exculpatory Information Withheld
from the Defense at Trial.
On September 28, 2007—three years after trial and more than two years after Mr. Furst
was sentenced and imprisoned—AUSA Arnold Spencer emailed defense counsel two partial
composite11 302s, which were generated from the nearly one thousand hours the FBI and SEC
11
The use of composite 302s—a practice which strays from standard FBI protocol—has been criticized by other
courts because of the temptation to mischaracterize a witness’s statements:
The government's production of a composite 302 summarizing the numerous agents’ interviews of [a
witness] rather than 302’s for each individual interview is more troublesome because a composite
302 may reflect only the most recent statement made on a subject and might omit previous
statements that, arguably, may be inconsistent and, therefore, used to impeach. In addition,
composite 302’s might prevent counsel from attempting to show how a statement might have been
influenced by events occurring around the time that the statement was made. Accordingly, the
practice of providing defense counsel with composite 302’s of numerous interviews of a witness
rather than contemporaneous 302's of each interview is a perilous one that the government would
be well advised not to follow.
United States v. Urciuoli, 470 F.Supp.2d 109, 116 (D.R.I. 2007).

spent interviewing Andrew Fastow between December 200312 and January 2005. Although
these excerpts contained a substantial amount of exculpatory evidence which was not disclosed
to the defense before the first trial, the excerpt dated “1/20/04 – 1/6/05” does not disclose the
dates of the interviews, the individuals who were present, or the identity of the FBI agent(s) who
created the memorandum. Instead, the space on the form where the author identifies himself (or
herself) on the bottom of the first page is either missing or has been redacted.13 The attorneys for
Jeffrey Skilling established that the ETF destroyed any original 302s which were created from
the interviews of Mr. Fastow, as well as any working drafts of the composite 302s. See
SUPPLEMENTAL BRIEF OF DEFENDANT-APPELLANT JEFFREY K. SKILLING REGARDING ANDREW
FASTOW INTERVIEW NOTES at p. 65 (attached hereto as Exhibit “H”).
2. In December 2007, the Government Produced 302s for Katherine Zrike and
Others Which Revealed Exculpatory Information Withheld from the Defense
at Trial.
Two months later, on December 12, 2007, the government provided, for the first time,
302s and grand jury testimony for several key witnesses in the first trial, including Merrill Lynch
in-house counsel Katherine Zrike and Gary Dolan. DECEMBER 12, 2007 LETTER FROM ARNOLD
A. SPENCER TO MADELINE JOHNSON (attached hereto as Exhibit “I”). This production,
encompassing nearly 500 pages of documents, included highly-exculpatory testimony and Brady
evidence that were in the ETF’s possession before trial, and which were not provided to the
12
The first interview of Mr. Fastow occurred several months after the ETF indicted the case on a theory that Mr.
Fastow made a promise that Enron would repurchase the barges after six months. Though Mr. Fastow, in his
numerous interviews with the ETF, contradicted this theory, the ETF proceeded to trial and obtained the
convictions of Mr. Furst and his co-Defendants without disclosing what Mr. Fastow actually said about the
transaction.
13
The excerpt from the 302 dated “12/28/2003” identifies FBI Special Agent Omer J. Meisel as the author.
However, the document does not specify who attended this interview or who participated in the creation of the
memorandum.

defense. Although this production revealed substantial exculpatory evidence which the ETF
withheld from the defense at trial, the surface had just been scratched.
3. The ETF’s Brady Misconduct in the Skilling Case Resulted in the Compelled
Production of the Handwritten Notes Underlying the Fastow Composite 302s.
The ETF’s Brady transgressions were not limited to this case. But for the efforts of
counsel for Jeffrey Skilling in another criminal trial brought by the ETF, the Brady violations in
this case (at least those known to date) might never have been revealed. After repeated requests
by Mr. Skilling and multiple Fifth Circuit orders14 compelling their release, the government was
forced to disclose the FBI’s handwritten notes from the interviews of Andrew Fastow (“the
Fastow Notes”)—the same interviews which purported to form the basis for the composite 302s
produced to Mr. Furst in September 2007. Even after being compelled to produce the Fastow
Notes in the Skilling case, the ETF balked at sharing them with Mr. Furst.
When the undersigned contacted AUSA Spencer on January 2, 2008 to request a copy of
the Fastow Notes, he responded that he was awaiting permission “from Washington” to release
the notes. On January 8, 2008, Mr. Spencer stated that he did not have permission “from
Washington” to produce the Fastow Notes, and that he would not release the notes unless this
Court ordered him to do so. Thus, on January 15, 2008, Mr. Furst filed a motion in this Court
asking it to order the production of the same notes the Fifth Circuit ordered to be produced to
Skilling’s counsel. See DEFENDANT ROBERT S. FURST’S MOTION TO COMPEL THE PRODUCTION
OF THE COMPLETE ANDREW FASTOW BINDERS (Docket No. 1039).
14
The Fifth Circuit ordered the Fastow Notes to be produced under seal to Skilling’s counsel on November 1,
November 28, and December 20, 2007. See EXHIBIT “A” TO DEFENDANT ROBERT S. FURST’S MOTION TO
COMPEL THE PRODUCTION OF THE COMPLETE ANDREW FASTOW BINDERS (Docket No. 1039). After initially
questioning Judge Higginbotham’s authority to order their production, see GOVERNMENT’S MOTION FOR
RECONSIDERATION at p. 6 (attached hereto as Exhibit “O”), the government finally relented and released the
Fastow Notes to Skilling’s counsel.

In response to Mr. Furst’s motion, the ETF told this Court it had reviewed the Fastow
Notes and “concluded that they did not contain Brady information that had not been otherwise
disclosed.” GOVERNMENT’S RESPONSE TO DEFENDANTS’ MOTION TO COMPEL PRODUCTION OF
THE FASTOW BINDERS AND RELATED MATERIALS (Docket No. 1059) at 5-6. Rather, “the only
evidence that would constitute Brady would be exculpatory evidence in the [Fastow Notes] that
is not in the 302, the civil deposition or the Skilling testimony.” Id. at 6. Contrary to the ETF’s
assertion, the Fastow Notes were rife with exculpatory evidence.
On March 24, 2008, the government finally relented and produced the Fastow Notes to
Mr. Furst. See MARCH 24, 2008 LETTER FROM PATRICK STOKES TO MADELEINE JOHNSON
(attached hereto as Exhibit “J”).
The reason the ETF so vigorously fought against turning over the Fastow Notes quickly
became clear. They revealed crucial exculpatory evidence that nullified the ETF’s case, and
which had been withheld from the defense. A comparison of the Fastow Notes to the ETF’s June
1 and July 30, 2004 Brady disclosures reveals that (1) the ETF selectively excised Mr. Fastow’s
exculpatory testimony from its Brady disclosures and (2) statements attributed to Mr. Fastow in
the ETF’s Brady disclosures contained misrepresentations, mischaracterizations and
misstatements of what he told the FBI in his interviews. The ETF’s distortions and omissions of
Mr. Fastow’s exculpatory testimony are neither happenstance nor coincidence, and go to the
heart of the ETF’s case.
III. EXAMPLES OF EGREGIOUS AND MATERIAL BRADY VIOLATIONS
Although the full extent of the exculpatory information that was withheld from the
defense in the first trial is unknown, the examples below demonstrate the ETF’s extraordinary
disregard for its ethical and constitutional obligations. Given the pattern of withholding, and the
case-dispositive nature of the evidence withheld, the Court should dismiss the pending

Indictment against Mr. Furst before this case proceeds to retrial. But if the Court is not willing to
dismiss at this time, Mr. Furst respectfully requests a hearing to determine who was responsible
for, and participated in, these acts, as well as what other exculpatory evidence exists.
A. The ETF Withheld Exculpatory Evidence That Nullified Its Case.
1. ETF (Mis)Representation #1: Did Fastow Actually Guarantee that Enron

Would Repurchase the Barges, or Simply Obligate Enron to Use its “Best
Efforts” to Help Merrill Lynch Remarket the Barges?
The ETF’s case hinged on proving that Mr. Fastow guaranteed that Enron would
repurchase the barges from Merrill Lynch at a date certain and with a stated rate of return. See,
e.g. TT 404:8-10; 416:24-417:1; 423:24-424:2; 6151:9-11, 6151:21-6152:1. After all, the ETF
told this Court that “if it’s just best efforts, then it would have been okay,” TT at 4528:4-7, and
“if it’s just a re-marketing agreement that would not have caused a problem.” Id. at 4520:18-20.
This is not a matter of semantics. According to the ETF, the difference between “oral guarantee”
and “best efforts” is the difference between “guilty” and “not guilty.” 15
The Fastow Notes demonstrate that the ETF knew all along that this was a “best efforts”
deal, because Mr. Fastow told them so. In pretrial interviews, Mr. Fastow was shown an Enron
document, titled “Benefits to Enron Summary,” which purported to describe the barge
transaction. See BENEFITS TO ENRON SUMMARY, DP 036766 (attached hereto as Exhibit “K”).
The summary stated that :
“Enron sold barges to Merrill Lynch (ML) in December 1999, promising that
Merrill would be taken out by sale to another investor by June 2000. The project
could not be sold by June, so without LJM2's purchase, Enron would have had to
strain the ML/Enron relationship or repurchase the assets and reverse earnings
and funds flow on the original transaction.”
15
Although the difference between “guarantee” and “best efforts” was the critical issue at trial, neither of these
obligations were legally enforceable. After the conversation between Mr. Fastow and Merrill Lynch, the
transaction was turned over to the respective parties’ legal teams, who negotiated final transaction documents
that (1) omitted any obligation by Enron to either repurchase or remarket the barges and (2) contained a “merger
clause” which rendered any oral representations leading up to the execution of the final documents
unenforceable. The ETF successfully argued to exclude evidence regarding the merger clause from the jury.

Clearly, this was an important document for the ETF, as it purported to memorialize what
the ETF hoped to prove about the barge transaction in the case against Mr. Furst. During his
pretrial interview with the ETF, however, Mr. Fastow threw a wrench in these plans16:
DP 036766 Benefits to Enron Summary – BargeCo17

1) Re: 1st paragraph – description of transaction
2) Summary not consistent w/AF’s memory b/c not word “promise”
3) It was EN’s obligation to use “best efforts” to find 3rd party
takeout and went on to say there would be 3rd party b/c AF is manager of
3rd party.
a. B/c of ENE’s course of action over years would have taken ML
out
b. Phone call did not obligate ENE to buy out. Did not intend to
bind ENE, was binding LJM to do something. LJM was 3rd party and was
already found.
4) “Best efforts” – must do everything possible that a reasonable
businessman would do to achieve result.
a. Best efforts different from guarantee b/c still obligated to
perform. Best effort would be to find 3rd party to accomplish buyout.
16
The boxed text below is a screen shot of the FBI’s handwritten notes from its interview of Mr. Fastow, followed
by a type-written transcription prepared by defense counsel.
17
“EN” and “ENE” refer to Enron. “ML” refers to Merrill Lynch. “AF” refers to Andrew Fastow. “LJM” is the
third party which eventually purchased Merrill Lynch’s interest in the barges in June 2000.

5) Could have said “Promise to use best efforts” but don’t recall saying
that.
FASTOW NOTES at 263 (attached hereto as Exhibit “M”) (emphasis added).
According to the Fastow Notes, Mr. Fastow used the term “best efforts” at least five
times in this short excerpt to describe the barge transaction and his representations to Merrill
Lynch regarding same. But the ETF’s June 1, 2004 Brady letter—the only Brady disclosure
provided for Mr. Fastow—omitted all references to “best efforts,” and instead stated that:
Fastow does not recall using the word “promise” in his telephone call to Merrill,
but he cannot say that with certainty…Merrill did not need to hear the word
“guarantee,” but the participants in the call knew what Fastow meant. Fastow
deliberately avoided the word “guarantee” and knew that he could not give a
verbal or written guarantee on the deal without jeopardizing the accounting
treatment Enron needed…If the telephone call had been transcribed, it would have
sounded like a guarantee and blown the accounting treatment of the deal. Anyone
listening to the call would have believed that Fastow promised that Enron would
make sure Merrill would be taken out by sale to another investor by June 2000.
See Exhibit “D.” Because Mr. Fastow’s statements confirming this was a “best efforts”
transaction destroyed the ETF’s case, the ETF simply withheld the exculpatory testimony from
the June 1, 2004 Brady letter, and cast Mr. Fastow’s other statements to suggest that he made an
oral guarantee to Merrill Lynch when, in fact, he did not.
The repeated references to “best efforts” in the Fastow Notes were also excised from the
composite 302—the document that purported to be a narrative of the Fastow Notes. The 302
(which, as stated earlier, was not produced until three years after the trial) describes Mr.
Fastow’s statements on this matter as follows:
Fastow was shown the benefits to Enron summary for BargeCo bearing bates
stamp DP 036766. The summary describes BargeCo as follows:
“Enron sold barges to Merrill Lynch (ML) in December 1999,

promising that Merrill would be taken out by sale to another
investor by June 2000. The project could not be sold by June, so
without LJM2's purchase, Enron would have had to strain the

ML/Enron relationship or repurchase the assets and reverse

earnings and funds flow on the original transaction.”
…Fastow agreed that these written descriptions are a fair description of the
BargeCo deal. It is consistent for the people listening on the telephone to believe
that Enron had made that promise. Fastow does not disagree with the word
promise used in the summary…Fastow does use the phrase, "I can't say
guarantee." Its purpose is to convey the guarantee without using that word. He
has used that phrase and has never had to explain what it meant. He cannot recall
whether he used the phrase, "I can't say guarantee," in the ML call.
FASTOW FORM 302 at 40-41 (attached hereto as Exhibit “L”) (emphasis added). Just like the
June 1, 2004 Brady letter, the 302 omitted the repeated statements about “best efforts,” and made
it appear that Mr. Fastow guaranteed that Enron (or a third party) would repurchase the barges.
Significantly, a careful comparison of the Fastow Notes to the 302 reveals that the FBI
accurately transcribed Mr. Fastow’s statements both immediately before and immediately after
the “best efforts” conversation, suggesting that the excision of the critical exculpatory testimony
was surgical and deliberate.18
The ETF believed that Mr. Fastow’s exculpatory “best efforts” testimony would never
see the light of day. Because ordering the production of an agent’s handwritten notes is an
extreme remedy, the ETF likely believed that the Fastow Notes would never be revealed, which
is why it fought so hard not to produce them. Because the truth, as revealed by the Fastow
Notes, disproved the ETF’s case, it simply hid the statements from the defense. These decisions
by the ETF warped justice, and subverted its duty to ensure that “justice was done.” Berger, 295
U.S. at 88.
The rationale behind the decision to withhold these exculpatory statements may be
explained by the timing of Mr. Fastow’s statements. According to the dates on the composite
18
Again, because the ETF destroyed the original 302s and any drafts of the composite 302s, it is not possible at
this time to recreate when and how the exculpatory statements were excised. Only if the Court orders discovery
into this matter will it be possible to identify who excised these statements, who authorized the excision, and
who knew about it.

302s, Mr. Fastow made these exculpatory statements to the ETF between December 2003 and
January 2005. This case was indicted on September 16, 2003. It appears likely that the ETF
indicted this case on an “oral guarantee” theory it assumed Mr. Fastow would support (or at least
not publicly refute). When the ETF learned that Mr. Fastow’s testimony would actually
exculpate the Merrill Lynch defendants, rather than facing the embarrassment of dismissing or
substantially revising its theory of criminal liability, it simply and deliberately withheld this
exculpatory evidence from the defense and pressed forward.
2. ETF (Mis)Representation #2: Contrary to the Allegations in the Indictment,

Fastow Expressly Denied Promising to Repurchase the Barge Investment.
The omission and manipulation of Mr. Fastow’s exculpatory and case-dispositive
statements to the ETF was not happenstance. In the Indictment, the ETF alleged that Mr. Furst
and his co-defendants participated in a conspiracy to falsify Enron’s books and records because:
On or about December 23, 1999, BAYLY spoke on a conference call to Fastow in

Houston, Texas, and Fastow promised BAYLY that Enron would take Merrill
Lynch out of the deal within six months.
THIRD SUPERSEDING INDICTMENT at ¶ 31(f) (emphasis added) (Docket No. 311). Quite to the
contrary, the Fastow Notes revealed that Mr. Fastow told the ETF he made no such promise.
During his interviews with the ETF, Mr. Fastow stated that the “Benefits to Enron Summary”
referenced above was not consistent with the barge transaction because it suggested he had made
a “promise” to Merrill Lynch, when in fact he had not:
Summary not consistent w/AF’s memory b/c not word “promise”
FASTOW NOTES at 263 (emphasis added) (attached hereto as Exhibit “M”). This highly
exculpatory statement—a statement which directly contradicted the allegations made in the
Indictment—was withheld from the defense.

Amazingly, the Fastow 302 managed to reverse his testimony on this point:
Fastow does not disagree with the word promise used in the summary
FASTOW COMPOSITE 302 at 41 (emphasis added) (see Exhibit “L”). Again, it appears likely that
the ETF indicted Mr. Furst on a theory that it later learned was false. And even if the defense
had gotten their hands on Fastow’s 302, the ETF’s case would have been protected, as the critical
exculpatory evidence had been removed. The ETF withheld and manipulated the “inconvenient”
evidence.
3. ETF (Mis)Representation #3: To Prove an Oral Guarantee Where None

Existed, the ETF Sponsored Testimony from Fastow’s Subordinates Who the
ETF Knew Were Misinformed about the Nature of Enron’s Obligations to
Merrill Lynch.
During the first trial, the ETF called two witnesses—Ben Glisan and Michael Kopper—to
prove its theory that Mr. Fastow made an oral guarantee that Enron would repurchase Merrill
Lynch’s interest in the barges within six months. Mr. Glisan and Mr. Kopper were Mr. Fastow’s
subordinates, and both testified that he informed them, sometime after the barge transaction
closed, that Enron had guaranteed to repurchase the investment from Merrill Lynch after six
months.19 For reasons that have now become clear, even though he was cooperating with the
ETF before and during the trial, the ETF chose not to call Mr. Fastow, the person who made
the alleged guarantee, as a witness.
After Mr. Kopper’s testimony concluded, defense counsel requested the production of the
portion of the Fastow 302 relating specifically to what Mr. Fastow told Mr. Kopper about the
alleged guarantee. TT at 1612: 15-21. In response, the ETF told this Court that it had provided
all the “Brady material from the Fastow documentations.” TT at 1614:1-7.
19
Neither Mr. Glisan nor Mr. Kopper were present on the December 23, 1999 phone call where Mr. Fastow
allegedly made an oral guarantee to Mr. Bayly. Rather, they testified they learned of the guarantee from Mr.
Fastow sometime after the transaction closed in December 1999.

This representation was not true. The Fastow Notes demonstrate that the ETF sponsored
testimony from Mr. Glisan and Mr. Kopper knowing that they had a false understanding of
Enron’s obligations to Merrill Lynch. According to the Fastow Notes, Mr. Fastow told his
subordinates that he made an oral guarantee that Enron would buy back Merrill Lynch’s interest
in the barges to “light a fire” under them to remarket the barges and find a third party buyer. The
following is an excerpt and type-written transcription of the relevant portion of the notes from
Mr. Fastow’s interview:
W/Subordinates
Probably used a shorthand word like promise or guarantee
2) Internally at Enron – AF [Andrew Fastow], JM [Jeffrey McMahon] and

BG [Ben Glisan] would tell Enron people there was a guarantee so to
light a fire under Int’l people – so it should be in paperwork.
3) On phone call, didn’t say EN would buy back. Rep of 3rd party.
Explicit. Internally said Enron would buy back. Unit less motivated if
knew of LJM.
FASTOW NOTES at 349 (attached hereto as Exhibit “M”).
The ETF knew that there was no oral guarantee to Merrill Lynch because Mr. Fastow had
repeatedly told them so in his interviews with the FBI. The reason the ETF called Mr. Glisan
and Mr. Kopper (as opposed to Mr. McMahon and Mr. Fastow, who allegedly made the oral

guarantee) is also clear—the only way to prove an oral guarantee where none existed was to
call Mr. Fastow’s subordinates who were led to believe that a guarantee was made.
But the ETF was not satisfied with simply calling Mr. Glisan and Mr. Kopper to testify
about their misunderstanding of the barge transaction. The ETF also used Mr. Kopper’s
testimony as an opportunity to brazenly dismiss the “best efforts” theory that the defense had
“thrown out” to the jury during trial:
MR. HEMANN: It's about – I just want to clear up what this "best efforts" term
that was thrown out by Mr. Horwitz means.
THE COURT: All right. Overruled. Let's see if we can clear it up.
BY MR. HEMANN: Are you familiar with that term?
A [BY MR. KOPPER]: Yes, I am.
Q. What is it?
A. "Best efforts" is a term -- I was most familiar with it from the days when I was
a banker, which was when you could make a commitment that you would do all
you could to -- to -- in the case of a banker, for instance, if you were making a big
syndicated loan, you would make best efforts to make sure that the syndicated
loan got sold all the way up to the number you were committing. So to simplify
it, if I was a banker that was raising a 700-million-dollar loan on behalf of a
client, I might say to the client, "We'll make our best efforts to raise $700 million.
I'm not committing to you that we'll raise $700 million. We may raise only $680
million, but we will make our best effort to reach 700." And they have not
committed that they will somehow or other, if they fall short, fill the difference.
Q. Based on your understanding of this deal, Mr. Kopper, was this a best efforts
deal?
A. No, not on my understanding.
Q. Why not?
A. Because my understanding was that it was a promise.
TT 1652:14-1653:17.

The ETF not only called witnesses it knew would testify to incorrect facts, but then used
these witnesses’ misunderstanding to undermine what they knew to be the truth—that the
transaction was a best efforts deal, and that Mr. Fastow misled his subordinates about an alleged
guarantee. The ETF’s sponsorship of false testimony by those who legitimately believed they
were telling the truth enabled it to convince the jury of an oral guarantee where none existed, and
was legally, ethically, morally, and constitutionally inexcusable.
4. ETF (Mis)Representation #4: Fastow Expressly Denied Obligating Enron to

Repurchase the Barge Investment.
The ETF used documents to bolster Mr. Glisan’s misunderstanding about the alleged oral
guarantee. As part of an email exchange among Enron employees about the efforts to remarket
the barges, on May 11, 2000, Mr. Glisan drafted an email that stated “To be clear, ENE is
obligated to get Merrill out of the deal on or before June 30. We have no ability to roll the
structure.” See Government Exhibit 532 (attached hereto as Exhibit “N”).
In the June 1, 2004 Brady letter, the ETF summarized statements made by Mr. Fastow
about this email as follows:
Fastow had not previously seen Glisan’s email dated May 11, 2000 which
stated in part, that Enron was obligated to get Merrill out of the deal on or
before June 30, 2000. Fastow was not bothered by Glisan’s use of the
word “obligated” to describe Fastow’s representation of Enron’s
agreement to get Merrill out of the Barge deal.
Once again, the Fastow Notes reveal that Mr. Fastow actually said the opposite. An
excerpt of the handwritten notes is below followed by a type-written transcription:

“Next email – BG [Ben Glisan] – 5/11/00 Didn’t see email b/4 today.
Object to word obligated. Not bothered that it is ENE with obligation”
FASTOW NOTES at 264 (emphasis added) (attached hereto as Exhibit “M”). The ETF led the
defense to believe that Mr. Fastow concurred with Mr. Glisan’s characterization of Enron’s
repurchase obligation when in fact he objected to it.
Despite knowing that (1) Mr. Glisan was falsely led to believe that Mr. Fastow had made
an oral guarantee to Merrill Lynch and (2) Mr. Fastow specifically objected to the use of the
word “obligated” in Mr. Glisan’s May 11, 2000 email, during closing arguments, the ETF used
this email (and Mr. Fastow’s affirmation) to convince the jury of the existence of an oral
guarantee:
The other thing that you know, ladies and gentlemen, right around this time
frame, Mr. Glisan told you, again, another piece of truth out of all of this truth, is
that he goes in and talks to Andy Fastow. And he says, "Just so you know, I sent a
pretty hard-line e-mail to the business unit people on the June 30th deadline." And
Mr. Fastow says to Mr. Glisan, "You did the exactly right thing because that's
what I promised we would do, is get them out by June 30th." Just another piece of
proof, ladies and gentlemen, that corroborates all of this other evidence in the
case.
TT at 6256: 4-14. Although it is unclear who manipulated the 302 and withheld this exculpatory
evidence from the defense, these acts enabled the ETF to stand before this Court and the jury and
present an argument that was directly contradicted by exculpatory evidence in its possession.

5. ETF (Mis)Representation #5: The ETF Withheld Exculpatory Statements by

Katherine Zrike Which Proved the Barge Transaction was a “Best Efforts”
Deal.
The ETF knew the barge transaction was a “best efforts” or “remarketing” deal that was
“okay” and “not a problem.” But the ETF argued to the jury that this was not a “best efforts” or
“remarketing” deal because, if it was, it would have been in the final documents that were
executed to memorialize the deal20:
[T]he written agreement between Enron and Merrill Lynch had no re-
marketing or best-efforts provision….Ladies and gentlemen…You will
nowhere in those documents ever find a reference to a re-marketing
agreement or a best-efforts provision. It’s not in there.
TT at 6151: 9-11, 6151:21 – 6152:1 (emphasis added). Consistent with the other acts set forth
herein, the ETF knew exactly why the “best efforts” and “remarketing” language was not in the
final documents, as they withheld exculpatory testimony by Merrill Lynch in-house counsel
Katherine Zrike that addressed this very point.21
a. Katherine Zrike’s exculpatory 302 was withheld from the defense.
On December 12, 2007, three years after Mr. Furst was convicted, sentenced, and
imprisoned, the government produced a 302 for Ms. Zrike. It turns out that, despite the
rhetorical question presented to the jury, the ETF knew exactly why the “best efforts” language
was not in the legal documentation:
20
Mr. Furst neither received nor reviewed the executed deal documents or any drafts thereof and there was and is
no evidence he did so. According to billing statements, inside and outside counsel for Enron and Merrill Lynch
spent hundreds of hours on the creation, negotiation, and execution of the legal documentation for the barge
transaction.
21
As stated previously, the ETF designated Ms. Zrike and twenty-eight other individuals—a group encompassing
almost everyone who played any role in the barge transaction—as unindicted co-conspirators in an effort to
discourage them from talking to the defense. According to counsel for Ms. Zrike, shortly after she told the ETF
that this was a “best efforts” transaction, the ETF altered her status from “subject” to “target.” As a result, Ms.
Zrike declined to be interviewed by the defense in advance of the first trial. The defense was, thus, forced to
call her “cold” at trial, without the benefit of the exculpatory evidence withheld by the ETF.

Merrill tried to put the re-marketing agreement in the written agreement but
Enron said it was inappropriate and it could not commit to it. The “best
efforts” agreement for selling Merrill’s position looked like Enron had to buy
back Merrill’s interest in the barges. Merrill was putting in real equity with
only Enron to re-market its position.
Zrike also wanted a “hold harmless” clause for Merrill but Enron rejected because
Merrill had to be at risk.
Marinaro or Dolan may have told Zrike that a “best efforts” clause, such as
requiring Enron to buy back Merrill’s position, is viewed by courts as too open
ended. Enron buying back Merrill’s position was not the deal with Enron.
Enron sent the agreement back and told Merrill that there could not be any
indemnification clause or “hold harmless” provisions. Zrike tried to insert a “best
efforts” clause but Enron said that it was too much of an obligation and that they
could not have this clause in the agreement.
Furst indirectly told Zrike that Enron did not give Merrill a guaranty when he
indicated that Enron had “no obligation” to get Merrill out of the deal. Furst
told her that Merrill could end up owning the barges.
FBI 302 MEMORANDUM FOR KATHERINE ZRIKE AT 10-12 (attached hereto as Exhibit “P”)
(emphasis added).
Ms. Zrike’s exculpatory statements were excised from the ETF’s July 30, 2004 Brady
Letter because, like the other testimony discussed herein, it favored the defense and disproved
the ETF’s case.22
b. Katherine Zrike’s exculpatory SEC testimony was withheld from the

defense.
The 302 was not the only exculpatory testimony from Ms. Zrike which was withheld
from the defense. As is the case with several of the witnesses in this and other Enron cases, Ms.
22
Some exculpatory statements made by Ms. Zrike were disclosed in the July 30, 2004 Brady letter. However,
the 302 and SEC testimony make clear that there was substantial additional exculpatory evidence which was not
disclosed.

Zrike testified before the Securities and Exchange Commission (“SEC”) in connection with its
parallel investigation into the barge transaction.23
Although Ms. Zrike’s SEC testimony took place on November 18, 2003, which was
nearly one year before trial, it was withheld from the defense. In fact, the government has never
provided Ms. Zrike’s SEC testimony to the defense. Rather, the opposite occurred. In August
2009, counsel for Mr. Furst obtained a copy of the transcript of Ms. Zrike’s SEC deposition from
a non-government source and gave several Brady excerpts from Ms. Zrike’s testimony to the
government.
Ms. Zrike’s SEC testimony further buttresses the fact that the barge transaction was a
permissible “best efforts” deal:
Q Earlier today and possibly last time, you mentioned that there were two
legal issues or maybe it was more, that you were involved with when you
returned from vacation regarding the purchase agreement.
Can you tell we what those were, give me more detail on that?
A These were two, I guess sort of contractual provisions that I had asked my
attorneys working on this and having contact with the lawyer to focus on.
One was trying to cover the situation where there would be a liability,
environmental liability or some sort of disaster and could we try to get an
indemnity because we were not -- while we were the owner of the E barge
company, we were not in operation of it, we were not managing the
property.
The theory that they should be liable if there was any damages, bodily
injury or environmental, and to see if we could get some protection against
us losing more than our investment, which is what I was worried about.
And the other issue that I had discussed with, again, the in-house people
and my staff, was getting some sort of further assurances clause that
23
Though the ETF has maintained that the SEC conducted an entirely separate investigation (therefore setting up
a specious argument that any Brady material in the possession of the SEC or other investigative agencies cannot
be imputed to the ETF), the reality is quite different. Agents from the SEC and FBI jointly interviewed many
witnesses about the barge transaction. Moreover, the SEC explicitly warns witnesses such as Ms. Zrike that
their testimony may be turned over to other law enforcement agencies, such as the FBI.

[Enron] would, in fact, remarket the equity and pursue the auction the
way they had promised.
SEC DEPOSITION OF KATHERINE ZRIKE at 304:12-305:10 (relevant excerpts attached hereto as
Exhibit “Q”) (emphasis added).
Ms. Zrike explained to the SEC why there was no best efforts language in the final
written documentation:
Q On the second one of those issues, can you be more specific?
A I had talked to them about putting in -- they will use their best efforts to
close the transaction with Marubeni as soon as possible, as soon as
practicable kind of language.
Q Was that of your own initiative?
A Yes.
Q Did that clause make it into the purchase agreement?
A No, it did not.
In fact, I had gotten word back from either Frank Marinaro or Gary Dolan,
I'm sorry I can't tell you which one it was, that they had tried to put that in
and that it was rejected by Enron's counsel, both of them were, but also
the best efforts clause.
***
Q Is best efforts a term of art?
A Yes.
Q Can you explain for me what that means?
A Well, it's a covenant, language that's used in contracts to sort of require

specific performance to put the other party on notice that they have to do
what's necessary to fulfill whatever the best efforts clause relates to. In
the case of the Enron E barge transaction, it was if we felt they were
dragging their feet or weren't pursuing it, we could bring up, threaten
breach of contract action and try to get them to live up to that covenant.
And best efforts is a very strong level of commitment that the parties
committing themselves to when they agree to do a best efforts clause.
Ultimately that's why they refused to agree to it.

Q Is best efforts in your mind short of a guarantee or a put obligation, for

example?
A I was focused on the covenant pursuing the sale transaction with a third
party. Not that I was trying to get them to buy it back.
***
Q Second was did you have an understanding that Enron -- putting aside
what's in the documents or not in the documents, did you have an
understanding that Enron would use its best efforts to find a permanent
buyer for the barge interest?
A Well, I had an understanding there was a businessman's understanding that

they were going to continue to pursue the sale to Marubeni or whatever
other third party they could get, yes.
Best efforts, again, is kind of like a work of art, and it has sort of
connotations to it. But they had good faith, and in their good faith they
were going to go forward and do this.
Q If I understand your earlier testimony, it wasn't just the expectation that

Enron would pursue the sale to Marubeni, but that in the event that fell
through, they would assist Merrill Lynch with an auction of that
interest, right?
A Yes. They would help us to remarket the equity to another person, yes.
***
Q When you asked for this term to be included in the documents, was it in
your mind that I’m reaching and trying to get something more than there
is. Or was it in your mind that I would like to have this there because
these what they've agreed to in principal [sic]?
A I would like to have this there because that's what they agreed to in
principal [sic].
Id. at 305:11-309:10 (emphasis added).
Ms. Zrike’s statements directly contradict the ETF’s theory that Enron made an oral
guarantee to Merrill Lynch, and demonstrate that the only oral understanding was that Enron
would use its best efforts to re-market the investment in the barges. This is a theory the
prosecution conceded during the trial would vindicate Mr. Furst:

If it’s just best efforts, then it would have been okay….
TT at 4528:4-7 (emphasis added).
If it’s just a re-marketing agreement that would not have caused a

problem. We don’t dispute that either.”
Id. at 4520:18-20. Despite its concession that a re-marketing or best efforts agreement would not
give rise to criminal liability, the ETF withheld these exculpatory statements from the defense.
6. ETF (Mis)Representation #6: At Sentencing, the ETF Withheld Statements

from Jeff McMahon that Enron Did Not Make an Oral Guarantee to Merrill
Lynch.
After successfully obtaining a conviction through the manipulation and withholding of
exculpatory evidence, the ETF continued its pattern of misconduct at sentencing. During trial,
the ETF told the Court and the jury that Jeff McMahon24, Enron’s treasurer, made a guarantee to
Merrill Lynch that Enron would repurchase its interest in the barges—a guarantee that Mr.
Fastow later ratified during a December 23, 1999 phone call. The ETF made this representation
in opening statements:
So the guarantee, that Enron is viewing this transaction as a bridge and

will be out of it in six months, that had to be a guarantee. And that was
the guarantee that Merrill Lynch got from Geoff [sic] McMahon…Ladies
and gentlemen, the evidence in this case will prove that this guarantee
was made and this guarantee would blow the accounting on the
deal…And the purpose of the handshake, the evidence will be, was to
confirm the deal that had been cut by Mr. McMahon.
TT at 403:22-404:1; 404:8-10, 22-24. And again in closing statements:
You now know that this deal was a phony sale… You know that Enron,
through its treasurer [Jeff McMahon] and through its chief financial
24
Mr. McMahon, who allegedly made the original guarantee to Merrill Lynch, was not indicted in connection
with the barge transaction. Rather, the government pursued him civilly. Without admitting or denying liability,
Mr. McMahon entered into a modest settlement with the SEC, agreeing to pay $300,000 in disgorgement and
prejudgment interest and to a five-year bar from acting as an officer or director of a public company. See EX-
ENRON CFO TAKES SEC PLEA DEAL, available at http://www.cfo.com/article.cfm/9386968. These are the
same terms that Mr. Bayly—the Merrill Lynch executive the ETF argued “made the decision” to enter into the
barge transaction—agreed to in his settlement with the SEC. TT at 6161:24-25.

officer [Andrew Fastow], made an oral guarantee to these Merrill Lynch

defendants, that they would be taken out of the barge deal by June 30,
2000….That promise, that oral guarantee, made the deal—the real deal
a loan. And you can’t have a true sale if there is an agreement to take
them out or if you guarantee the return that they make on their
investment. It’s as simple as that, ladies and gentlemen.
Id. at 6144:4-10.
After the conclusion of the trial, the ETF received a letter written on behalf of Mr.
McMahon which made clear that he made no such oral guarantee:
In sum, any language used prior to or during the [December 23, 1999]
conference call, directly or indirectly, was not understood by Mr.
McMahon to entail a commitment by Enron and its affiliated companies to
repurchase Merrill Lynch’s interest. Quite simply, Mr. McMahon did not
make any commitment to Merrill Lynch or to any other entity, at any
time, that Enron or any of its affiliated entities would purchase Merrill
Lynch’s equity position within six months, nor was he part of, directly or
indirectly, anyone else making such a commitment.
April 25, 2005 LETTER FROM WILLIAM B. DOLAN, III TO JOSEPH F. BIANCO (the “MCMAHON
LETTER”) (attached hereto as Exhibit “R”) at 9 (emphasis added).
The ETF had the letter nearly a month prior to Mr. Furst’s sentencing.25 The letter was
material not only to Mr. Furst’s conviction (and, in fact, was directly contrary to the ETF’s
theory at trial), but also to his punishment. Indeed, ETF prosecutor Kathryn Ruemmler told the
Court during the May 12, 2005 sentencing hearing that the “ultimate issue” in the trial was
whether there was a promise or guarantee that Enron would buy the barge investment back from
Merrill Lynch. TRANSCRIPT OF MAY 12, 2005 SENTENCING HEARING (“SENTENCING
TRANSCRIPT”) at 36 (attached hereto as Exhibit “S”).
25
Although the ETF did not receive this letter until after trial, it is unclear what testimony it did have about Mr.
McMahon’s denial of any oral guarantee to Merrill Lynch. This is another topic that should be explored by the
Court.

Rather than disclose Mr. McMahon’s clear and unequivocal statement on this “ultimate
issue” during the May 12, 2005 sentencing hearing, Ms. Ruemmler stood before this Court and
argued that Mr. Furst’s sentence should be enhanced for denying the existence of the
guarantee:
We strongly believe that Mr. Furst did lie. He lied about the ultimate
issue, which was the most important issue…. Mr. Furst said there was no
promises, no guarantees, that the barge transaction was high-risk because
it was equity. Not debt, not a loan. That was the ultimate issue, Your
Honor.
Id. The ETF made this statement knowing that there was no such oral guarantee, and that they
were withholding exculpatory testimony on this point. This act violated both the ETF’s duty of
candor to this Court and Mr. Furst’s constitutional right to due process.
IV. LEGAL AUTHORITY
In extraordinary situations such as this, where prosecutorial misconduct is so egregious
that it offends the integrity of the Court and the defendant suffers prejudice, the Court may
dismiss the charges against that defendant. United States v. Ramming, 915 F. Supp. 854 (S.D.
Tex. 1996) (dismissing indictment for prosecutorial misconduct); see also United States v.
Welborn, 849 F.2d 980, 985 (5th Cir. 1988) (providing that a district court may dismiss an
indictment where extraordinary government misconduct has prejudiced the defendant); United
States v. Chapman, 524 F.3d 1073, 1084 (9th Cir. 2008); United States v. Jordan, 316 F.3d 1215,
1250-51 (11th Cir. 2003); United States v. Broward, 594 F.2d 345, 351 (2d Cir.), cert denied, 442
U.S. 941 (1979).
The pattern of withholding and manipulation of exculpatory evidence mandates dismissal
of the Indictment against Mr. Furst.

A. The Government is Constitutionally, Ethically, and as a Matter of Department

Policy Bound to Disclose Exculpatory Evidence to the Defense.
Constitutional due process forbids a prosecutor from withholding “evidence favorable to
an accused…where the evidence is material to either guilt or punishment, irrespective of the
good or bad faith of the prosecution.” Brady v. Maryland, 373 U.S at 87. Evidence is “material”
under Brady if, in the absence of that evidence, the confidence of the verdict is questionable.
Kyles, 514 U.S. at 434-35.
Indeed, Department of Justice (the “Department”) policy requires prosecutors to disclose
even more than the Constitution requires, instructing that prosecutors “must take a broad view of
materiality and err on the side of disclosing exculpatory and impeaching evidence.” UNITED
STATES ATTORNEY’S MANUAL §9-5.001(B)(1).26 Under the Department’s broad view of
materiality, federal prosecutors are required to “disclose information that is inconsistent with any
element of any crime charged against the defendant or that establishes a recognized affirmative
defense, regardless of whether the prosecutor believes such information will make the difference
between conviction and acquittal of the defendant for a charged crime.” Id. at §9-5.001(C)(1).
In addition, the government must “disclose information that either casts a substantial doubt upon
the accuracy of any evidence—including but not limited to witness testimony—the prosecutor
intends to rely on to prove an element of any crime charged, or might have a significant bearing
on the admissibility of prosecution evidence. The information must be disclosed regardless of
whether it is likely to make the difference between conviction and acquittal of the defendant for a
charged crime.” Id. at §9.5001(C)(2).
A prosecutor need not have the Brady material in his own possession, but is under a
further duty to learn of any favorable evidence known to others acting on the government’s
26
Although the provision cited here was not memorialized in the manual until October 2006, it simply articulates
federal case law in existence long before that time. See Kyles, 514 U.S. at 439.

behalf in the case, including law enforcement. United States v. Auten, 632 F.2d 478, 481 (5th
Cir. 1980) (“The basic import of Brady is ... that there is an obligation on the part of the
prosecution to produce certain evidence actually or constructively in its possession or accessible
to it in the interests of inherent fairness… If disclosure were excused in instances where the
prosecution has not sought out information readily available to it, we would be inviting and
placing a premium on conduct unworthy of representatives of the United States Government.
This we decline to do.”); Martinez v. Wainwright, 621 F.2d 184, 186 (5th Cir. 1980) (affirming
district court’s grant of writ of habeas corpus for Brady violation, noting “there is no suggestion
in Brady that different ‘arms’ of the government are severable entities.”).
Department of Justice Policy makes clear that “it is the obligation of federal prosecutors,
in preparing for trial, to seek all exculpatory and impeachment information from all members of
the prosecution team…includ[ing] federal, state and local law enforcement officers and other
government officials participating in the investigation and prosecution of the criminal case
against the defendant.” UNITED STATES ATTORNEYS MANUAL § 9-5.001(B)(2). Because the
SEC sued the same individuals for the same transaction (and jointly conducted many of the
pretrial interviews in this case), the SEC undoubtedly falls within the category of the
“prosecution team,” both under federal law and Department policy.
The obligation to produce exculpatory evidence is not only constitutional, and a matter of
Department policy, but ethical as well. The American Bar Association recently issued a formal
opinion discussing the high burdens placed upon prosecutors to disclose evidence and
information favorable to the defense. ABA FORMAL OPINION 09-454 at 4 (July 8, 2009)
(attached hereto as Exhibit “T”). The formal opinion provides that:
In criminal proceedings, where the defense ordinarily has limited access to

evidence, the prosecutor’s disclosure of evidence and information favorable to the

defense promotes the proper functioning of the adversarial process, thereby

reducing the risk of false convictions.
Id. Furthermore, the prosecutor’s ethical duty to disclose evidence to the defense “is not limited
to admissible ‘evidence,’ such as physical and documentary evidence, and transcripts of
favorable testimony; it also requires disclosure of favorable ‘information.’” Id. at 5. A
prosecutor’s ethical duties require him to go beyond the minimal constitutional Brady
requirements. Id. at 1; Kyles, 514 U.S. at 437.
Just as the government is under a duty to produce exculpatory evidence to the defense, so
too is it under an obligation to refrain from making arguments to the jury that it knows to be
contradicted by the evidence. In recently affirming the dismissal of an indictment for
prosecutorial misconduct, the Ninth Circuit noted:
There is good reason for such a high standard. A prosecutor's opinion

carries with it the imprimatur of the Government and may induce the jury
to trust the Government's judgment rather than its own view of the
evidence. For this reason, it is improper for the government to present to
the jury statements or inferences it knows to be false or has very strong
reason to doubt.
United States v. Reyes, 577 F.3d 1069 (9th Cir. 2009) (citing United States v. Young, 470 U.S. 1,
18-19 (1985)) (emphasis added). Each of these duties—whether imposed by the Constitution,
ethics, Department policy, or federal case law—was repeatedly and intentionally disregarded in
this case.
B. This and Other Courts Have Dismissed Indictments for Brady Violations
Substantially Less Severe Than Those in This Case.
Several courts, including this Court, have dismissed indictments in circumstances less
extraordinary and egregious than this. In United States v. Ramming, this Court dismissed an
indictment because of prosecutorial misconduct based on the following acts: (1) the government
failed to be forthright with Brady material; (2) in drafting a 302 of witness statements, the

government “took extensive liberties, choosing conclusory words that caused the statement to fit
within the government’s theory of the case;” and (3) the prosecution withheld at least eight
transcripts of grand jury testimony that were “wrought with statements that both supported the
defendants’ theory of the case and foiled that of the government.” Ramming, 915 F. Supp. at
867-68. The Court further stated that any representation by the government that the defendants
had access to this evidence and that the evidence was neutral was “incredible,” and that such
conduct could only be committed by a person “blinded by ambition or ignoran[t] of the law and
ethics.” Id. at 868.
This Court’s opinion in Ramming is not the only example of dismissal based on
prosecutorial misconduct. In United States v. Dollar, 25 F. Supp. 2d 1320 (N.D. Ala. 1998), the
court dismissed an indictment where the prosecutor: (1) failed to disclose a pre-indictment
statement from an alleged co-conspirator taken by law enforcement officials; (2) produced a
written statement of another unindicted co-conspirator and government witness during the trial
but after the government had rested its case; (3) failed to disclose a written statement by another
unindicted co-conspirator who brought the statement with him during the trial and made it
available to the defense prior to questioning him; and (4) provided a summary of a witness
interview with law enforcement the day before he testified at trial. Id. at 1328-1331. The court
noted that “from the outset of this case, defense counsel have been unrelenting in their effort to
obtain Brady materials.” Id. at 1332. The court dismissed the case, noting the prosecution’s
breach of its duty of candor with the court, and stated that “in its understandably zealous effort to
enforce the nation’s… laws, the United States has disregarded its constitutional and statutory
obligations to the defendant and its ethical obligation to the court.” Id.

More recently, a court dismissed with prejudice an indictment for Brady violations in
United States v. Lyons, 352 F. Supp. 2d 1231 (M.D. Fla. 2004). In Lyons, the court dismissed an
indictment with prejudice where the prosecution failed to disclose “a raft of evidence material to
an adequate defense.” Id. at 1251. The Lyons court warned that “the Government would be
well-served to guard the esteem of its offices with greater vigilance, especially after it is shown
that exculpatory information was withheld, at best, by its agents’ sloppy investigative work or, at
worst, by their knowing failure to meet constitutional duties.” Id. at 1252.
In at least one instance, the Department of Justice has dismissed a case on its own accord
based upon admitted Brady violations. On June 4, 2009, the Department of Justice issued a press
release announcing that it was requesting the release of two former Alaska State Representatives
who were convicted on corruption charges. Quoting Attorney General Eric Holder, the press
release stated that “the Department did not provide information that should have been disclosed
to the defense…the Department’s mission is to do justice, not just win cases, and when we make
mistakes, it is our duty to admit and correct those mistakes.” See JUNE 4, 2009 PRESS RELEASE,
available at http://www.justice.gov/opa/pr/2009/June/09-ag-550.html (attached hereto as Exhibit
“U”).
And in perhaps the most sweeping dismissal in a prosecutorial misconduct case to date,
Judge Cormac Carney dismissed fraud and conspiracy charges against two Broadcom executives,
vacated the guilty plea of a third executive, and dismissed a related lawsuit by the SEC due to
prosecutorial misconduct which “distorted the truth-finding process and impeded the integrity of
the trial” and made a “mockery” of the defendants’ due process rights. See United States v.
Ruehle REPORTER’S TRANSCRIPT at 5195, No. 08-00139-CJC, December 15, 2009 (attached
hereto as Exhibit “V”). In the Broadcom case, the court found that the prosecutors attempted to

ice and intimidate witnesses, elicited false and misleading testimony, and committed various
Brady violations. See generally WILLIAM J. RUEHLE’S RENEWED MOTION TO DISMISS
INDICTMENT BASED ON CUMULATIVE PROSECUTORIAL MISCONDUCT (attached hereto as Exhibit
“W”).27
Finally, just this month, Judge Ricardo Urbina dismissed a high-profile manslaughter and
firearms indictment against five Blackwater security personnel based upon the government’s
“reckless violation of the defendants’ constitutional rights.” See United States v. Paul A. Slough
et al., MEMORANDUM OPINION GRANTING DEFENDANTS’ MOTION TO DISMISS INDICTMENT at 89,
No. 08-0360, January 1, 2010 (attached hereto as Exhibit “Z”). Judge Urbina determined that, in
the prosecutors’ “zeal to bring charges” against the defendants, the government withheld
“substantial exculpatory evidence” from the defense, including redacting exculpatory testimony
from witness statements presented to the grand jury. Id. The cumulative effect of the
prosecutors’ misconduct warranted dismissal of the criminal indictment. Id.
C. The Egregious Pattern of Withholding and Manipulation of Exculpatory Evidence

Mandates Dismissal of the Indictment.
The ETF committed serious and repeated Brady violations which resulted in Mr. Furst
spending nine months in prison before his conviction was overturned. See Lyons, 352 F. Supp.
2d at 1251 (dismissing indictment where Brady material was withheld for a period equal to the
sentence the defendant could serve).
27
Dismissals for prosecutorial misconduct in these and other recent high-profile cases have generated
substantial commentary from highly-respected media outlets, including a call for the Department of Justice to end its
“mindless harassment” of Mr. Furst in light of the “miasma of prosecutorial misbehavior” infecting the barge case.
See Holman W. Jenkins, Jr., Rethinking the Corporate Crime Spree, Wall Street Journal, August 18, 2009 (attached
hereto as Exhibit “X”) (referencing this case and the Reyes case, stating “From day one, both these cases were
dubious attempts to make crimes out of business judgments and misjudgments in the heat of battle. The ethical
culture of the plaintiffs’ bar is clearly infiltrating the prosecutor’s sanctum. Facts were deliberately distorted to
make criminals out of everyday citizens.”).

The ETF withheld critical exculpatory evidence confirming that the barge transaction was
a legitimate “best efforts” deal. The ETF manipulated other exculpatory statements about the
nature of Enron’s obligations to render them inculpatory. The ETF sponsored testimony that it
knew was incorrect, as it was based upon Mr. Fastow’s motivational statements to his
subordinates. The ETF withheld evidence from Ms. Zrike explaining why the “best efforts”
language was missing from the deal documents. And the ETF withheld from the Court
statements made on behalf of Mr. McMahon, which were material to Mr. Furst’s sentencing.
This evidence, had it been available to the defense in the first trial, would almost certainly have
led to a different result, and undoubtedly calls into question the integrity of the jury’s verdict.
Brady, 373 U.S. at 87; Kyles, 514 U.S. at 434-35. The surgical excision of exculpatory
testimony from the ETF’s Brady disclosures, compounded by the brazen efforts to convince the
jury of matters which were flatly contradicted by the evidence in its possession, compels the
conclusion that the misconduct was knowing and intentional.
Turning a blind eye to the ETF’s misconduct will only encourage equally egregious
conduct in this and other courts in the future. The Court should take swift and strong action and
dismiss the Indictment against Mr. Furst.
V. CONCLUSION
In dismissing the criminal indictment against Senator Ted Stevens for prosecutorial
misconduct, Judge Emmet Sullivan noted a pattern of “troubling failures to produce exculpatory
evidence in violation of the law” that has permeated the criminal justice system. United States v.
Stevens, TRANSCRIPT OF HEARING ON GOVERNMENT’S MOTION TO DISMISS INDICTMENT WITH
PREJUDICE at 8, No. 08-231, April 7, 2009 (attached hereto as Exhibit “Y”). Whether the ETF
engaged in the “gamesmanship” criticized by Judge Sullivan, faced political or public pressure to
win at all costs, or simply disregarded its ethical and constitutional duties is not clear.

Nonetheless, this Court has the discretion and duty to send a strong message to the ETF (and
others who would employ similar tactics in the future) that this conduct will not be tolerated.
Exemplifying the adage that "once is happenstance, twice is a coincidence, but three
times is a pattern," this Motion demonstrates a coordinated and deliberate pattern of
prosecutorial misconduct by the Enron Task Force. For true justice to be done, the Court should
dismiss the indictment against Mr. Furst with prejudice.
Dated: January 14, 2010 Respectfully submitted,
FISH & RICHARDSON P.C.
By: /s/ Paul E. Coggins

Paul E. Coggins
Texas Bar No. 04500700
Kiprian E. Mendrygal
Scott C. Thomas
1717 Main Street, Suite 5000
Dallas, TX 75201
Telephone: (214) 747-5070
Facsimile: (214) 747-2091
Counsel for Defendant

ROBERT S. FURST

CERTIFICATE OF CONFERENCE
I hereby certify that, on January 7, 2010, Mr. Patrick Stokes, Senior Trial Attorney for the
U.S. Department of Justice, indicated that the plaintiff opposes this Motion.
/s/ Paul E. Coggins

_________________________
CERTIFICATE OF SERVICE
The undersigned hereby certifies that true and correct copies of Robert S. Furst’s Motion
to Dismiss Indictment for Prosecutorial Misconduct has been served on January 14, 2010 on all
counsel of record who are deemed to have consented to have electronic service by the Court’s
CM/ECF system. Any other counsel of record will be served via facsimile.
/s/ Paul E. Coggins

_________________________

Case 4:03-cr-00363 Document 1109-1 Filed in TXSD on 01/14/10 Page 1 of 15
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
EXHIBIT F
EXHIBIT G
EXHIBIT H
06-20885
UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
JEFFREY K. SKILLING,
Defendant-Appellant.
SUPPLEMENTAL BRIEF OF DEFENDANT-APPELLANT JEFFREY K.

SKILLING REGARDING ANDREW FASTOW INTERVIEW NOTES
[FILED UNDER SEAL]
On Appeal From The United States District Court

For The Southern District Of Texas, Houston Division
Crim. No. H-04-25 (Lake, J.)
O’MELVENY & MYERS LLP O’MELVENY & MYERS LLP

WALTER DELLINGER DANIEL M. PETROCELLI
JONATHAN D. HACKER M. RANDALL OPPENHEIMER
MEAGHAN MCLAINE MATTHEW T. KLINE
1625 Eye Street, N.W. DAVID MARROSO
Washington, D.C. 20006 1999 Avenue of the Stars, 7th Floor
Los Angeles, California 90067
RONALD G. WOODS Telephone: (310) 553-6700
5300 Memorial, Suite 1000 Facsimile: (310) 246-6779
Houston, Texas 77007
ATTORNEYS FOR DEFENDANT-APPELLANT JEFFREY K. SKILLING

Agents’ Notes
(AE-27-381)
Composite 302
AF-3500-9 at 112
Worse still, the admission does not even appear in the version of the raw
notes the Task Force provided the district court as part of the so-called “Fastow
Binders.” We only found this evidence when we noticed gaps in the notes in the
Fastow Binders and demanded that the missing pages be produced.
The Task Force’s failure to include this interview note in the Fastow Binders
cannot be excused as an oversight. In December 2005, Skilling exposed that the
Task Force had failed to produce the original 302s for Fastow and that the Task
Force had deleted its working drafts. R:11660-70; 11920-30; R:14079-80. In
January 2006, the district court refused to provide Skilling the raw interview notes
65
EXHIBIT I
EXHIBIT J
EXHIBIT K
EXHIBIT L
-1-
FEDERAL BUREAU O F INVESTIGATION
ANDREW S . FASTOW was interviewed pursuant to a signed

Proffer Agreement over a period of time (12/18/2003, 12/19/2003,
12/22/2003, 12/23/2003, 01/04/2004, and 01/05/2004) in Brooklyn,
New York and Dallas, Texas. FASTOW was represented by David B.
Gerger .
-
Inuest~gatjonnn 12/18/2003 at New York, New York and Dallas, Texas
~ l l c# 318C-H0-59147-302 Date dictated N/A
SA Omer J Meisel
Thli d o c u m e ~ ~contams
l nenlher recommendalions nor conclusions of thr FBI It is the properly or lhe FBI and is loaned to your agenc).
11 attd its contentr are not to bc distribu~ed outsbdc )our agency
L
Niqerian Barqe Transaction:

Initially, Enron wanted the Nigerian Barge deal done by
year end 1999. FASTOW was asked if LJM2 would purchase an interest
in the Nigerian Barge deal at year end 1999 and FASTOW did not want
LJM2 involved at the time. FASTOW believed that this was a bad
investment for LJM2 because prospective investors would stay away
Conriooatlon orl:[)-i02 or -Andrew S. Fastow .On 12/18/2003 ,Paor 22
from investing in LJM2 if, during that time period, they saw that
LJM2 invested in barges in Nigerian.
JEFF MCMAHON was the lead Enron employee responsible for

the Nigerian Barge deal in 1999. Enron needed to find a third
party to purchase an interest in the Nigerian Barge deal to make
that business unit's numbers. FASTOW believes that MCMAHON reached
out to FASTOW to get him to call Merrill Lynch (ML) about
purchasing an interest in the Nigerian Barge deal from Enron.
Subsequently, FASTOW contacted ML to get them to purchase

an interest in the Nigerian Barge deal. The reason ML invested in
the Nigerian Barge deal was because of the extraordinary high level
assurance provided by FASTOW to ML that they would be taken out of
the deal within six month with their stated rate of return. In
FASTOW's discussions with ML, he eluded to the fact that he was the
GP of LJM and that if necessary, LJM would be interested in
purchasing the deal from ML. SCHYLER TILNEY, DAN BAYLY, and others
were on the telephone call from ML. DAN BOYLE, MCMAHON, and KELLY
BOOTS were probably on the telephone call from Enron.
ML would not have entered into the Nigerian Barge
transaction unless: (1) Enron would get them out of the deal within
six months; and (2) ML was given comfort that they would receive
future business from Enron for entering into the deal. FASTOW told
ML that this was an important deal for Enron and that Enron would
need to raise capital in the future, which implied that Enron would
give ML this type of business if they helped Enron on the Nigerian
Barge deal.
Regarding the buyout of ML's interest in the Barges,
FASTOW spoke to REBECCA MCDONALD, head of Enron's APACHI unit, and
she told him that they had a buyer lined up to purchase the
interest in the Barges but the third party was not yet ready.
FASTOW may have told MCDONALD that Enron had to get ML out of the
deal. Accordingly, in order to get ML out of the deal in the
specified time period, LJM2 bought out ML's interest. Enron paid
LJM2 a fee for entering into the transaction and FASTOW received an
assurance from Enron that he would receive his stated rate or
return and be bought out quickly. FASTOW believed that there was
no risk to LJM2 because Enron had a third party lined up to
purchase LJM2's interest and in a worst case scenario, Enron would
buyback LJM2's interest. FASTOW referred to this as a "warehousing
opportunity. "
of FD-302 of
Conrcnua~>on Andrew S. Fastow On12/18/2003 .Page 23
FASTOW was shown the Benefits to Enron S u m a r y for the

Bargeco deal, Bates number MK009302. ML believed that they would
be taken out of the deal because FASTOW gave ML verbal assurances
that they would be taken out in six (6) months. FASTOW read the
Description of the Transaction "Enron sold barges to Merrill Lynch
(ML) in December of 1999, promising that Merril' would be taken out
by sale to another investor by June, 2000. The project could not be
sold by June, so without LJM2's purchase Enron would have had to
strain the ML/Enron relationship or repurchase the assets and
reverse earnings and funds flow on the original transaction."
FASTOW advised that this description of the deal is the reason why
LJM2 got involved. FASTOW thinks that there was every intention
that Enron would find a buyer for ML.
FASTOW does not recall using the word "promise" in his
telephone call to ML but he cannot say that for sure. FASTOW
thought that he was being clever in his telephone conversation with
ML by using euphemisms in order to convey to ML that he was
promising to take ML out of the Barges. FASTOW stated to ML that
he (FASTOW) had an extremely high level of confidence that ML would
not lose money in the Barge deal. FASTOW talked about how he
(FASTOW) was the GP at LJM and that LJM was interested in
purchasing an interest in the Barges, but not at the end of the
quarter 1999.
In general, it was not uncommon for an Enron business
unit to ask FASTOW to call a bank to help them close a deal.
- 1-
FEDERAL BUREAU O F INVESTIGATION
Date of transcriplion 01/ 06 / 2 0 05
Andrew S. Fastow, Date of Birth July 7, 1961, accompanied

by his attorney, David Gerger, David Gerger and Associates, 700
Louisiana Street, Suite 4200, Houston, Texas, Telephone Number
(713) 224-4400, and Fax Number (713) 224-5153, was interviewed,
pursuant to a plea agreement
FD-302a (Rev. 10-6-95)
318C-HO-59147
Continuation of FD-302 of Andrew Fastow ,on 1/20/04-1/6/fie 35
Niqerian Barqes
At a Management Committee Meeting near the end of 1999,
Rebecca McDonald or Sutton of Enron's International Assets Group
wanted to sell assets to make its numbers and provided a list of
potential buyers. By the end of 1999 the BargeCo (Nigerian Barges)
deal looked unlikely because the buyer either fell through or was
never really there.
Jeff McMahon contacted Fastow and asked if LJM2 would buy
BargeCo. Fastow told McMahon that since LJM2 was doing multiple
closings and had not yet closed on all its investment capital, he
did not want to risk alienating investors by doing a deal that
sounded as bad as one named "Nigerian bargesu. He would reconsider
after all the investors had made their capital contributions.
Fastow suggested Merrill Lynch (ML) as a possible buyer
because Enron wanted to rent a balance sheet which ML could do.
Fastow and McMahon also discussed how ML's participation was
flwarehousingwor "bridge equity".
Shortly thereafter Fastow spoke to Skilling and McMahon
in Skillinglsoffice. Skilling asked Fastow why he would not do
the deal and Fastow explained that LJM2, like all other private
equity funds, raised money through a series of closings. In late
1999, Fastow had closed on only a limited group of investors.
Larger groups would close in April and May 2000. Fastow was afraid
FD-302a (Rev. 10-6-95)
Continuation of FD-302 of Andrew Fastow ,On 1/20/04-1/6/~ke 36
that if these later investors examined the 1 9 9 9 deals and saw

Nigerian Barges, it could scare them off. Fastow told Skilling
that he did not want to own the barges, but he would be interested
in doing BargeCo, sometime after the May, 2000, final closing.
The meeting concluded with McMahon agreeing to sign ML for the
deal.
Fastow later told Causey LJM2 could not do BargeCo then,
but would do it later.
Fastow and Schuyler Tilney of ML, and possibly Rob Furst
of ML, must have discussed the Nigerian barges so Tilney would know
what to tell his boss. They would have addressed why LJM2 could
not purchase the barges in 1 9 9 9 and that LJM2 focused on North
American investments.
Neither LJM2 nor ML had any business reason for buying
the barges, the only purpose was for the Enron business unit to
make its numbers.
The call to Merrill Lynch
Fastow reviewed an email containing two messages. The
original message was from Dan Boyle to Rob Furst regarding a
conference call with the message:
"Thanks Rob, I distributed the info for the call. I
will join the call as well as Andy, Jeff, and Kelley
Boots.
The second part of the email was from Robert Furst to Dan
Boyle regarding the conference call which stated the following:
"Thanks for the info. I will say that we have
represented to Sr. management that Enron is viewing our
role as an interim bridge to permanent equity and that ML
will not own the securities at June 30, 2000. A strong
statement from Andy stating that our representation is
correct is all we need. Thanks."
Either McMahon or Boyle asked Fastow to call Merrill-
Lynch (ML) to provide assurance that they would not be stuck with
the barges. Fastow is virtually certain that McMahon prepped him
for the call. It was also apparent that Rob Furst was prepped for
the call.
FD-302a (Rev.10-6-95)
Continuation of FD-302 of Andrew Fastow .On 1/20/04-1/6/,CPi%e 37
Fastow was shown an email written from Dan Boyle to

McMahon and Kelly Boots on December 22, 1999. The information
states as follows:
"The call with ML is at 9:30 a.m. CST on Thursday,
12/23/99 . . . Merrill attendees:
Dan Baily, Head of Investment Banking
Kathy Zrike, Investment Banking General Counsel
Kevin Cox, Global Credit Markets
Schuyler Tilney, Managing Director
Rob Furst, Managing Director
Enron attendees:
Andy Fastow
Jeff McMahon
Dan Boyle
Kelly Bootsn
McMahon and Tilney were present when Fastow made the
call, and Tilney and Furst may have actually been in Fastow1s
office. Fastow may have had a conversation with Schuyler Tilney
before the call.
Fastow1sprimary audience was Dan Bayly, who was also an
LJM2 investor. Fastow may have met Bayly in his office once
before, but had never dealt with him as the Merrill Lynch contact
person. Fastow does not recall what Bayly said during the call nor
does he recall Kathy Zrike being on the call.
Fastow told ML that BargeCo was a good opportunity for ML
to use its balance sheet to help Enron. ML could have a high level
of confidence that an entity was interested in the barges and that
entity, LJM2, would buy the barges after six months. Fastow
repeatedly mentioned that ML would be out by June 30, 2000.
ML1s rate of return was mentioned specifically and there
was no question what ML would receive when taken out. Enron
intended to get ML out of the deal at that specific rate of return.
Fastow would have told ML that Enron would not blow up its
relationship with ML over a $7 million deal. Fastow was also sure
that LJM 2 would get out at a specific rate of return.
Fastow could have used the phrase, "I give you my word,"
that ML would be out in six months but it would be in addition to
the highly confident or extremely confident comments Fastow was
FD-302a (Rev.10-6-95)
Continuation of FD-302 of Andrew Fastow ,On 1/20/04-1/6/~be 38
making during the call. Fastow advised that using this terminology
was, in fact, making a commitment.
Fastow does not recall telling anyone that he hated to
make calls like this one, but it is true. He hated making calls
relating to embarrassing issues or investments, because he hated
finding himself describing businesses that he opposed or could
barely support.
Although feedback is normal, Fastow cannot recall any
post-call feedback from the Enron unit. Fastow knew the call had
to be set up with the unit in advance.
Fastow does not recall anyone approaching him before the
call and saying or providing a script indicating what they needed
to hear. Nobody ever told Fastow that they had actually reached an
agreement, but Fastow never heard of any other problem and assumed
that they had reached an agreement.
Fastow reviewed Robert Furst1s 12/23/1999 Email to Dan
Boyle containing the paragraph:
"Thanks for the info. I will say we have represented to
senior management that Enron is viewing our role as an
interim bridge to permanent equity and that ML will not
own the securities at June 30, 2000. A strong statement
from Andy stating that our representation is correct is
all we need. Thanks."
Fastow's described his statements on the call as
consistent with Furst's Email.
Fastow reviewed M L 1 s December 23, 1999, letter to Jeff
McMahon bearing Bates stamp ML0280 through 0282. Fastow reviewed
the second paragraph of the first page, stating:
"As Enronls advisor, Merrill Lynch will (i) Form a U.S.
Special Purpose Entity (the "SPEU),and (ii) Fund the
purchase of the SPE of a non-controlling $28 million
equity interest in ENB, $21 million of which the SPE will
borrow from Enron or an affiliate on a non-recourse basis
(the "equity investmentn). The SPE will receive a yield
of approximately 15.00 percent per annum on $7 million of
its equity investment. The SPE or its equity interest in
FD-302a (Rev.10-6-95)
Continuation of FD-302 of Andrew Fastow ,on 1/20/04-1/6/D&e 39
ENB will be subsequently sold to third party equity

investors or purchased by Enron or an affiliate."
A section entitled, "Fees and Expenses,~contains a
paragraph which reads as follows:
"As compensation for Merrill Lynch assisting in the
structuring of the transaction, as advisor, Enron will
pay to Merrill Lynch an advisory fee (the "advisory feen)
equal to $250,000. Payment of the advisory fee will
occur upon the closing of the equity investment."
Fastow was involved in the early discussions and the
telephone call, and then participated in the deal more as it
continued. Fastow knew ML would hold the barges for only six
months and Fastow1s role was to make ML comfortable with the deal.
Fastow referred to LJM2 and his role in LJM2, and made it
clear that ML should have no doubt that they will be taken out of
the deal in six months. ML did not need to hear the word
guarantee, but they all knew what Fastow was talking about.
Fastow knew that for accounting purposes there could not be a
guarantee and that putting the barges back to Enron would prevent
true sale treatment. Fastow intentionally stayed away from the
word guarantee and knew that he couldn't give a verbal or written
guarantee on a deal. Fastow does not recall any discussion about
putting an assurance in writing. Although Fastow intentionally
left little doubt that ML would be taken out of the deal, he
intentionally did not use the word guarantee. Fastow mentioned
being General Partner (GP) of LJM during the call, but never
indicated he was not also speaking as the CFO of Enron. Anyone
listening would be correct in understanding Fastow was speaking as
Enronls CFO.
If the telephone call was transcribed, it would have
sounded like a guarantee and blown the accounting treatment of the
deal. Any legitimate accounting firm would want to know the
details of that call so it could help them in making their
determination of whether there had been a true sale.
Fastow reviewed the ML letter to Jeff McMahon dated
December 23, 1999, Bates stamped ML0280 through 0282, and a letter
from ML to Fastow dated December 29, 1999, bearing Bates stamp
ML0283 through 0287.
FD-302a (Rev. 10-6-95)
Continuation of FD-302 of Andrew Fastow ,On 1/20/04-1/6/Dke 40
Paragraph 2 of the letter to McMahon reads:

The SPE will receive a yield of approximately 15.00
percent per annum on $7 million of its equity investment.
The SPE or its equity interest in ENB will be
subsequently sold to third party equity investors or
purchased by Enron or an affiliate,
Those sentences were omitted from the letter to Fastow
because it discloses an accounting problem. There can be
repurchase guarantees but they have to be at market price and not
at a stated yield. However, this statement was what Fastow
conveyed to ML on the call.
Fastow believed LJM2 would be the buyer and it would
never get to the point where Enron would have to re-purchase from
ML. Fastow did not consider whether AA would learn what Fastow
said in the call. Fastow wasn't thinking that he could make an
oral guarantee. Fastow thought LJM2 was technically a third party
and so their purchase would not cause accounting problems. AA
would have wanted to know about the call and that it would have
affected the true sale treatment.
Fastow does not recall whether LJM2 had closed on the ML
partnership group's investment before the call nor does he recall
who from ML participated in their investment group. Bayly did not
mention any concern about LJM2 buying BargeCo. LJM2's presentation
contemplated participating in warehousing deals.
Fastow was shown the benefits to Enron summary for
BargeCo bearing bates stamp DP036766 and MK9302. The summary
describes BargeCo as follows:
"Enron sold barges to Merrill Lynch (ML) in December
1999, promising that Merrill would be taken out by sale
to another investor by June 2000. The project could not
be sold by June, so without LJM 2's purchase, Enron would
have had to strain the ML/Enron relationship or
repurchase the assets and reverse earnings and funds flow
on the original transaction."
The Benefits to Enron Summary bearing Bates stamp DB44150
contains a similar statement in subparagraph F as follows:
FD-302a (Rev. 10-6-95)
Continuation of FD-302 of Andrew Fastow .On 1/20/04-1/6/D%e 41
Merrill Lynch purchased BargeCo from Enron with the

understanding that they will be taken out within six
months. LJM I1 purchased Merrillls interest preserving
the relationship and as an alternative to Enron buying it
back and reversing $12 million in earnings and $28
million of funds flow taken as the original sale to
Merrill Lynch in 1999. Direct earnings of $2 million
were interest earned on seller financings.
Fastow agreed that these written descriptions are a fair
description of the BargeCo deal. It is consistent for the people
listening on the telephone to believe that Enron had made that
promise. Fastow does not disagree with the word promise used in
the summary.
Yaeger was responsible for creating these Benefits to
Enron summaries for LJM2 and any presentation Fastow would have to
make to Skilling. The summary sheets and the benefit sheets were
created from LJM2 dash sheets.
In the call, Fastow spoke as the Enron CFO and referred
to LJM2 as a third person when saying that he was "highly confident
that ML would be out by June 30."
Fastow cannot recall the phrase "bridgew being used, but
suspects it probably was because everyone knew they were talking
about a six-month period.
Fastow does use the phrase, "I can't say guarantee." Its
purpose is to convey the guarantee without using that word. He has
used that phrase and has never had to explain what it meant. He
cannot recall whether he used the phrase, "I can't say guarantee,"
in the ML call.
In the telephone call, Fastow didn't say Enron would buy
the barges back and instead represented that a third party would.
Fastow did say that "Enron will take necessary steps to make sure
you are out of this by June 30, 2000." Therefore, it was
reasonable for anyone listening to the call to think that it was
Enron that was going to buy them out. Furthermore, Fastow was
speaking as Enronls CFO when he made the statement.
The ML call was a "bear hugv conversation in which Fastow
was trying to make ML warm and comfortable about the idea of owning
the barges and that they would not be stuck with them.
FD-3O2a (Rev.10-6-95)
Continuation of FD-302 of Andrew Fastow ,On 1/20/04-1/6/D&e 42
Takinq Merrill Lynch out of BarseCo

Fastow was shown emails dated May 10, 2000, between Dan
Boyle and Sean Long, with copies to Hughes, Glisan, and Schnapper.
The email has the quote:
As we have discussed, should a strategic buyer not
materialize by June 30, 2000, APACHI will have to take
out ML and the investment in the barges will be placed on
balance sheet. This will not only have income
implications, but require a level of damage control with
AA. As you know, MLfs decision to purchase the equity
was based solely on personal assurances by Enronls senior
management to ML's vice chairman that the transaction
would not go beyond June 30, 2000.
Fastow does not recall Hughes, Schnapper, or Glisan on
the call, but they could have been. He does not recall people
speaking about AA, but if they could not find a buyer, it would
have to have been reversed.
Fastow was shown the Glisan email dated May 11, 2000, to
Sean Long and others. The email states:
To be clear, ENE is obligated to get Merrill out of the
deal on or before June 30. We have no ability to roll
the structure.
Fastow had never seen the Email before but was not
bothered that Glisan said Enron was obligated.
LJM2 did nothing to determine BargeCofs fair market
value. LJM2 determined the purchase price by paying ML the price
that ML paid plus an IRR. Nobody analyzed the market or did due
diligence or even verified the barges existed.
Enron was the marketing agent, but could not make anyone
buy at a specified time, price, or return. When Glisan stated, "We
have no ability to roll the structureIuhe was saying that the
structure that held the barges could not be extended.
Fastow was shown the Jim Hughes email to Glisan dated May
11, 2000, which states:
FD-302a(Rev. 10-6-95)
Continuation of FD-302 of Andrew Fastow ,On 1/20/04-1/6/fie 43
"We have always understood that is required. However,

the first step in any resolution is to fix the deal
underlying all of the value. If it is non-performing,
then no one will take the Merrill position and we will
inherit it. What Sean is indicating is that we are close
to not only fixing the deal, but improving it to such an
extent that the deal with the Merrill piece will be
feasible."
Jim Hughes was the number two person in EnronlsAsia,
Pacific, Africa, China division (APACHI) under Rebecca McDonald.
The statement, "If non-performing. . .we will inherit it,I1means that
Enron will buy the deal back and APACHI will have to reverse its
earnings.
As a practical matter, had LJM2 not bought the barges,
Enron would have bought them back or ensured that someone bought
them. ML would definitely be out. The subtlety to the deal was
that LJM2 was the back-up.
Fastow examined the Glisan email to Jim Hughes dated May
12, 2000, on document bates stamp ETF-BFG-00439 which states:
I understand that the underlying deal is nonperforming
and have no doubt that the work being done will enhance
the value of the project. I am suggesting, however, that
if we are not completely confident that it will be done
by June 30, then someone should be working on a backstop
as we will not be able to extend Merrill and I understand
that there are accounting ramifications if Enron
repurchases.
The Email indicates the people at Enron are not certain
that LJM2 will buy BargeCo. However, Glisan says this to ensure
the International Asset people are really trying to sell the
barges. Glisan wants them to find a third party before resorting
to LJM2.
Fastow examined an email from Dan Boyle to Sean Long
dated May 12, 2000, at 1:33 p.m which states:
The deal with ML was to get them a total annualized
return of roughly 20 percent. ML is expecting to receive
a minimum of $7.525 million when they sell there (sic)
equity on June 30, 2000 (15 percent annualized return on
FD-302a (Rev.10-6-95)
Continuation of FD-302 of Andrew Fastow ,on 1/20/04-1/6/~Ege 44
this portion). In addition, we paid ML a $250,000

advisory fee at closing which, combined with the take-out
on June 30, results in a return of approximately 20
percent. I spoke with John and Garret and Eric Boyt to
confirmed (sic) these facts. You also asked about the
internal valuation, I confirmed with John that we ran the
internal numbers at 22.5 percent, he should have access
to the models if you need them.
Fastow examined a Summary of Transaction bearing bates
stamp El76542 and a Summary of the Non-Payment Schedule bearing
bates stamp E176543. Fastow could not recall seeing either
document, but thought they looked like LJM 2 documents.
Fastow also examined "BargeCo Economicsu bearing Bates
stamped LJM29474 which explains as follows:
BargeCo Economics are based on a negotiated return with
Enron. Enron agreed to arrange a buyer for LJM 2's
equity within seven months. LJM 2 will receive a 15
percent annualized return on its investment and a
$350,000 fee.
The document confirms that LJM2 would receive the ML fee
plus $100,000. Enron paid LJM2 to warehouse BargeCo. Enron had no
business reason to be concerned about buying out a third party.
Fastow does not know if AA was told about this fee.
In the Summary of the Transaction document, Bates stamp
E176542, Fastow emphasized point 3:
Arthur Anderson (AA) felt that if the structure of the
loan to Ebarge changed in favor of LJM2, it would appear
as though Enron induced LJM2 to come into the transaction
and therefore creates the appearance that Enron, in
December199,planned on taking Merrill Lynch out after
six months.
This implies Enron discussed the deal with AA and AA told
Enron not to change the transaction because there would be a
problem. AA was advising Enron how to pay for the deal and avoid
creating the appearance of an accounting problem. Fastow does not
know if AA always knew the plan because Enron could have misled AA.
FD-302a (Rev. 10-6-95)
Continuation of FD-302 of Andrew Fastow ,On 1/20/04-1/6/,P&e 45
Fastow examined the Benefits of Enron Summary for

information on the funds flow and the earning's impact of the deal
and agreed with the description in the first paragraph stating:
LJM2 had rescued Enron and if they hadn't, Enron would have had to
buy the deal back. LJM2 bought the asset specifically for Enron's
reporting goals and with the expectation that they would be bought
out later.
Fastow and Causey were still discussing BargeCo in June,
2000, although Fastow can't recall a specific conversation.
No one objected to BargeCo or its returns because the
deal was contemplated from the beginning and was not a great
secret. However, Fastow does not know what Enron told AA. There
were no discussions or concerns about hitting an exact predicted
rate of return. Nobody even mentioned that the deal was at an
exact price. This was typical business at Enron and AA was
extremely accommodating. Enron's culture was that employees,
including advisors, attorneys and accountants viewed their jobs as
finding ways to get things done.
Fastow was shown an email from Alan Quaintance to Sean
Long dated June 1, 2000, bates stamped EC04519A0121285. Fastow
examined the paragraph which states:
I discussed the possibility of Enron providing financing
to a purchaser of ML's interest in the barge company with
Mike Jones. He further discussed the issue with Roger
Willard and had the following preliminary conclusions.
1. AA did not like the original transaction and was
extremely uncomfortable with us taking a gain. 2. AA1s
position is that if we provide any financing at all to
the purchaser of ML1s interest that they would view the
original transaction as a parking/earnings management
play. (Sham transaction. Potential for gain reversal).
Fastow did not know Mike Jones or Kim Scardino and never
heard about a problem or push-back from AA. Fastow assumes this is
a normal part of the process. The Email indicates that AA is more
likely deceived as opposed to complicit in the deal. Fastow
disagrees with the inference that ML had an interest in the deal
because ML did not want to do the deal. LJM2 did not want to do
the deal either but accepted it as warehousing for a fee. LJM2
took no steps to ensure payment and did not act like a third party.
FD-302a (Rev. 10-6-95)
Continuation of FD-302 of Andrew Fastow ,On 1/20/04-1/6/me 46
Fastow approved LJM2's warehousing of the deal and either

he or Kopper could have negotiated the $350,000 fee. Fastow knew
this was not a huge deal but Enron had to be close to making its
numbers and needed the deal to do so. Enron also wanted to improve
its credibility with ML.
Fastow was shown the LJM2 Barge LLC Summary, Bates stamp
LJM029375. The summary indicated that LJM2 had to hold the barges
for seven months. The period was chosen, because then it got Enron
over its year-end issues if the barges were not sold. A n economic
put was put into the deal between LJM2 and Enron, so it was
structured to be painful to Enron if not sold within the requisite
period.
Fastow was comfortable with Skillingls assurance that he
would not be stuck with the Nigerian barges. He wanted the
assurance from Skilling, because he could rely on it. Very few
people at Enron trusted assurances from other units. The
international asset unit had a reputation for not fulfilling
promises after they received their bonuses. Skillinglsgroup, ECT,
and Rebecca Marks' international group always distrusted each
other. Fastow was even more concerned that the international
assets unit had no incentive to sell after LJM2 took the barges.
When LJM2 agreed to take the barges, Jeff McMahon told Fastow he
was certain the Barges would be sold. In fact, when the barges
were finally sold, it was for a profit.
Causey understood the importance of the June 30 buy-out
date, because his accountants worked on the deal. Everyone
involved knew about the June 30 date and it was discussed at the
weekly senior management group staff meetings. Ken Lay, Jeff
Skilling, Causey, Rick Buy, Steve Kean, Jim Derrick, and all the
business unit heads attended that meeting. Fastow cannot recall
anyone ever asking why Enron was handling the sale of an asset that
was owned by ML and later by LJM2. Part of this may have been
because the sale from Enron to ML had a marketing agreement
concerning the vehicle.
Kopper, Fastow, and Lynn on the Enron Global Finance
Unit, worked on the deal and all knew about the June 30 date.
Fastow can't recall if Jim Hughes or Barry Schnapper knew about the
June 30 date, but believes that they did.
FDJ02a (Rev. 10-6-95)
Continuation of FD-302 of Andrew Fastow ,On 1/20/04-1/6/P!&e 47
Sellinq the Barses

Even before the LJM2 buy-out Fastow and Rebecca McDonald
discussed Enron's ability to sell the barges. Fastow did not know
McDonald well, but later worked with her on the Dahbol project.
McDonald knew that Enron wanted to take ML out. Fastow did not
recall that Boyle was on the deal and had always thought of the
Nigerian barges as a McMahon deal.
Rebecca McDonald gave updates on potential buyers to the
Management Committee. At one Management Committee meeting,
McDonald gave a list with a status report on the possible sales.
Fastow would have gotten these updates before the year-end 1999 and
again in the Spring of 2000. Fastow recalls seeing the barges
listed on an Enron list of deals that had to be finished by June 30
but he could have seen the updates either time.
Dave Delainey once suggested keeping the barges.
Fastow told Rebecca McDonald she had to sell the barges
by June 30. She assured Fastow that Enron was using its best
efforts and Fastow assured her that LJM2 would be available on June
30. McDonald said the barges were good projects and that Enron
would get buyers for them. Fastow specifically told McDonald that
LJM2 did not want to buy the barges.
Fastow had no doubt that LJM2 would not get stuck with
the barges, because McDonald indicated that Enron could probably
sell the barges and from the beginning Fastow knew it was a
warehousing and not an ownership deal. Enron also believed it was
in its best interest for LJM2 to get rid of the barges.
Causey understood the significance of the June 30 date,
because he understood why LJM2 would not buy out the Nigerian
Barges in the first place.
Fastow recalls there may have been a document created at
one point that said that Enron would buy the deal back from LJM2.
This deal was amended and altered with that provision being
deleted. Fastow can't recall ever seeing the document.
Fastow believes it was Enron who paid the fee to LJM2,
even though the barges were bought from ML. Fastow could have
discussed this fee with Causey, but does not recall it.
FD-302a (Rev. 10-6-95)
ofFD-302 of
Con~nnuat~on Andrew Fastow .on 1/20/04-1/61CF5ge 48
Fastow recalled he had been shown handwritten notes

suggesting that when LJM purchased the barge from Merrill Lynch,
there was an agreement that it would be taken out by Enron on
January 14, 2001. Fastow had a conversation with someone, possibly
McMahon, Causey, Glisan, or Kopper, or someone else, that the Enron
buyout period was set at seven months to make sure it was over year
end. This prevented a reverse of earnings in the last quarter in
the event that Enron did the buyout. In addition, it gave Enron a
full quarter to deal with the issue of the buyout.
AES purchased the barges from LJM2, but the deal was
arranged by Enron. The sale was done by the Enron group
responsible for the barges and Fastow cannot recall any meetings
with anyone from AES. The barges were the type of asset that AES
frequently dealt with.
Dan Bovle
As CFO, Fastow would not participate in meetings with Dan
Boyle. Fastow believes Boyle participated in meetings with
Schuyler Tilney and Rick Gordan of ML in Jeff Skilling's office.
Fastow can't recall whether the meeting he recalls with Gordon and
Tilney in Skilling's office pertained to the Nigerian barge or the
underwriting of LJM2.
Dan Boyle or Jeff McMahon would have asked for Fastow to
make the ML telephone call and would have briefed Fastow on what
needed to be said. Boyle could have participated in the briefing
or the call. He was a Vice President at Enron, but was at a junior
level to Fastow. Kelly Boots and Boyle would have worked on the
deal. Boots did contact Fastow at times.
Boyle was discussed at PRC but not at Fastow's level.
Michael Kopper and Jeff McMahon would have ranked Dan Boyle and the
others at his level. Boyle was a Vice President in Fastow's unit
and performed at an average to above average level. Boyle has
adopted children and once received a good citizen award from Enron.
EXHIBIT M
EXHIBIT N
EXHIBIT O
No. 06-20885
IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
__________________________
UNITED STATES OF AMERICA,

Plaintiff-Appellee
v.
JEFFREY K. SKILLING,
Defendant-Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS
THE UNITED STATES’ MOTION FOR RECONSIDERATION

BY A THREE-JUDGE PANEL OF ORDER REQUIRING IT
TO PRODUCE FBI RAW NOTES
By order entered on November 28, 2007, a judge of this Court directed the
government to produce to appellant Jeffrey K. Skilling and his counsel raw notes
taken by FBI agents during interviews with government witness Andrew Fastow
that were used to produce FBI Forms 302 memorializing the interviews. The
district court denied Skilling’s request for access to these notes, and Skilling
challenges that order on appeal. The Court’s order directing the government to
produce the notes therefore prematurely resolves an issue raised on appeal that
should be resolved by the merits panel, in violation of Federal Rule of Appellate

Procedure 27(c) and Rule 27-2 of the Rules of this Court. Moreover, there is no
basis in Federal Rule of Criminal Procedure 16, the Jencks Act, or Brady v.
Maryland, 373 U.S. 83 (1963), to order the government to produce the notes.
Accordingly, pursuant to Rule 27-2 of the Rules of this Court, the government
seeks reconsideration by a three-judge panel of the order directing their production
to Skilling. The government does not object to the order to the extent that it
requires it to submit the notes to the Court for in camera review by the merits
panel.
BACKGROUND
1. Prior to trial, the government informed Skilling and his codefendants that
it intended to call former Enron Chief Financial Officer Andrew Fastow as a
witness. More than six weeks prior to trial, the government produced to
defendants two FBI Forms 302 memorializing its interviews with Fastow.
Defendants responded with a motion asking the district court to order the
government to disclose the raw notes underlying the 302s for Fastow. On January
12, 2006, the district court ruled that “the draft summaries of Mr. Fastow’s
interviews prepared by the FBI agents and the FBI agents’ raw notes are not
Jencks Act material.” Skilling’s Record Excerpts (RE) Tab 16 at 4; R.14073. To
ensure that the notes did not contain Brady or Giglio material, the court ordered
2
the government to prepare for the court notebooks or binders containing an index
of the subjects on which the government intended to question Fastow with cross-
references to the relevant portions of the 302s and the rough notes of the FBI
agents supporting the 302s. RE Tab 16 at 5. The court explained that if Fastow
denied making a statement attributed to him in the 302, the court would examine
the rough notes to see if they contained additional impeachment material. RE Tab
16 at 6-7; R.14075-76.
The government delivered the binders to the court, and the court commented
that they were “very thorough.” R.21460. At the conclusion of Fastow’s
testimony, the court returned the binders to the government. R.22878. Defendants
never asked the court for an express ruling on whether the rough notes contained
impeachment material, and the court did not mention the issue again during trial.
At the close of trial, the jury convicted Skilling of conspiracy, securities fraud, and
other offenses.
After trial, Skilling again moved in the district court for disclosure of the
binders containing the raw notes, arguing only that “[t]here is no reason to deny
Mr. Skilling access to these materials.” Dkt. 1142; R. 38320-22. The government
agreed to make the notebooks available to this Court but opposed Skilling’s
motion for discovery. On October 27, 2006, the district court denied that motion.
3
R.42191.
2. Skilling appealed his convictions to this Court. Skilling’s brief on
appeal argues that the government “improperly refused to produce interview
notes,” that the government engaged in misconduct by refusing to produce the
notes to Skilling prior to trial, and that the district court erred in declining to order
the government to produce the notes. See Brief of Defendant-Appellant Jeffrey K.
Skilling at 200-04 & n.103 (filed Sept. 14, 2007) (excerpt attached as Exhibit 1).
By motion filed on September 15, 2007, Skilling asked this Court to direct
the government to provide the binders to the Court, but he did not ask the Court to
order the government to produce the notebooks to him. In response, the
government agreed to provide the binders to the Court. On November 1, 2007,
this Court, per Judge Higginbotham, issued an order that stated in part:
It is FURTHER ORDERED that appellant’s motion for the Court to

have the government submit the binders of FBI notes underlying the
composite FBI form 302s created for witness Andrew Fastow (The
Fastow Binders) is granted.
Exhibit 2 (attached).
Skilling then moved for clarification, asking for the first time that the Court
direct the government to provide the binders to him. On November 28, 2007, the
Court, again per Judge Higginbotham, issued an order that provides in pertinent
4
part:
The Government shall promptly file with the Court for

inclusion in the record, and provide a copy to Appellant, the so-called
Fastow Binders, subject to the following qualifications. The
Government’s interview notes with Andrew Fastow shall be included
in the record under seal but for review only by Appellant and his
counsel of record, including assistants working within the curtilage of
attorney-client privilege.
The Government’s trial examination outline for Andrew

Fastow shall be provided to the Court for in camera review by the
merits panel. This outline shall remain under seal pending further
order by the Court and shall not otherwise be made available to
Appellant or be made public.
Exhibit 3 (attached).
ARGUMENT
Pursuant to Federal Rule of Appellate Procedure 27(c) and Rule 27-2 of the
Fifth Circuit Rules, the government respectfully seeks reconsideration by a three-
judge panel of Judge Higginbotham’s order of November 28, 2007, to the extent
that it directs the government to produce FBI raw notes to Skilling and his
counsel. The government has no objection to providing the complete binders,
including the raw notes, to the Court under seal and intends to send the binders by
overnight courier to the Court on November 29, 2007.
The Court should reconsider the order because it resolves in part an issue
raised by Skilling on appeal that should be decided after full briefing and
5
argument by the merits panel. As noted above, Skilling expressly argues in his
brief to this Court that the government’s failure to produce the raw notes in
discovery constituted misconduct and that the district court erred in failing to
order the government to produce the notes. See Brief of Defendant-Appellant
Jeffrey K. Skilling at 200-04 & n.103 (filed Sept. 14, 2007). The government’s
brief counters that it properly withheld the notes and that it did not engage in
misconduct. See Brief for the United States at 190-93 (filed November 13, 2007).
By directing the government to produce the notes, the court’s November 28 order
grants Skilling a portion of the relief that he seeks from this Court on the merits of
the appeal. That order therefore violates Federal Rule of Appellate Procedure
27(c), which provides that “[a] circuit judge may act alone on any motion but may
not dismiss or otherwise determine an appeal or other proceeding.” The order also
exceeds the scope of Rule 27-2 of the Fifth Circuit Rules, which authorizes a
single judge to rule on motions raising specified procedural issues. For that
reason, the order should be vacated and the issue should be referred to the merits
panel.
Even if the order did not affect the resolution of the merits of Skilling’s
appeal, there is no basis in any applicable rule, statute, or constitutional doctrine
for ordering the government to produce the investigators’ raw notes to Skilling.
6
First, neither the notes themselves nor the Form 302s that were produced from the
notes fall within the Jencks Act. As this Court has long held, “FBI Forms 302 are
only discoverable if they contain a written, signed statement of a government
witness, or a ‘substantially verbatim recital’ of an oral statement made by a
government witness.” United States v. Williams, 998 F.2d 258, 269 (5th Cir.
1993) (citing United States v. Mora, 994 F.2d 1129, 1139 (5th Cir. 1993)).
Likewise, the rough notes used to produce those 302s are not subject to discovery
under the Jencks Act. As the Eleventh Circuit has explained,
[n]o decision of this Circuit or the former Fifth Circuit

indicates that either rough notes or the rough draft of a report
prepared by a government agent becomes Jencks Act material merely
because the agent uses them to prepare his final report. Indeed, the
case law is directly contrary to such a proposition.
United States v. Soto, 711 F.2d 1558, 1562 & n8 (11th Cir. 1983); see also United
States v. Pacheco, 489 F.2d 554, 566 (5th Cir. 1974) (“Nothing in the Jencks Act
requires that notes made in the course of an investigation be preserved after the
notes have served their purpose of assisting in the preparation of interview
reports.”). In this case, the government exceeded the requirements of the Jencks
Act by providing the 302s for Fastow’s interviews as part of its pretrial Jencks Act
discovery. But neither the 302s themselves nor the underlying rough notes are
substantially verbatim statements by Fastow, and thus the notes are not subject to
7
discovery under the Jencks Act.
Second, the raw notes are not subject to discovery under Federal Rule of
Criminal Procedure 16. Indeed, this Court held in United States v. Brown, 303
F.3d 582, 589-90 (5th Cir. 2002), that raw notes underlying a 302 of an interview
with a criminal defendant are not subject to disclosure under Federal Rule of
Criminal Procedure 16(a)(1)(A) “where the content of those notes ha[s] been been
accurately captured in a type-written report, such as a 302, that has been disclosed
to the defendant.” In this case, the notes pertain to an interview with a witness,
not the defendant, the government produced the 302s derived from the notes, and
the district court reviewed the 302s and the notes together. See also United States
v. Muhammed, 120 F.3d 688, 699 (7th Cir. 1997) (denying discovery of FBI raw
notes of interview of defendant).
Finally, the government is not obligated to produce the notes under Brady
and its progeny. Brady requires the government to produce only material
exculpatory or impeachment information. See United States v. Bagley, 473 U.S.
667, 682 (1985); see United States v. Sipe, 388 F.3d 471, 477 (5th Cir. 2004)
(setting forth elements of Brady violation); it does not create “a general
constitutional right to discovery.” Weatherford v. Bursey, 429 U.S. 545, 549
(1977). Here, the government concluded that the notes did not contain Brady or
8
Giglio information that had not been otherwise disclosed to Skilling. Pursuant to
the district court’s order, however, the government submitted the raw notes to the
district court, and the district court reviewed them during Fastow’s testimony.
That court never said or suggested that the notes contained Brady or Gigilio
information either during or after Fastow’s testimony. Moreover, Skilling was
apparently sufficiently unconcerned about this matter that he never asked the court
to rule on whether the notes contained Brady or Giglio information. In short, there
is no ground on which to order the government to produce the raw notes.
Skilling does not appear to contend otherwise. Instead, in the district court
he argued only that there is no longer any basis to withhold the notes, and in this
Court he asserts only that they may contain Brady material. But to obtain
discovery of internal government documents, Skilling must identify a rule, statute,
or provision of the Constitution that gives him the right to the document he seeks.
He has failed to identify a rule or statute requiring production of the notes, and the
district court reviewed the notes for possible Brady or Gigilo material. This Court
may review that ruling by an in camera review of the notes.
For the foregoing reasons, the government respectfully asks the Court to
vacate the order of November 28, 2007, to the extent that it directs the government
to provide the raw notes to Skilling and his counsel.
9
Respectfully submitted,
Steven A. Tyrrell
Chief, Fraud Section
______________________________
J. Douglas Wilson
Assistant United States Attorney
U.S. Department of Justice
450 Golden Gate Avenue
San Francisco, CA 94102
415-436-6778
Doug.Wilson@usdoj.gov
10
CERTIFICATE OF SERVICE
I hereby certify that on November 28, 2007, true and complete copies of the
foregoing United States’ Motion for Reconsideration were served on counsel for
the appellants at the following address and by electronic mail:
Daniel M. Petrocelli
Matthew T. Kline
O’Melveny & Myers
1999 Avenue of the Stars, 7th Floor
Los Angeles, CA 90067
310-553-6700
______________________________
J. Douglas Wilson
Assistant United States Attorney
11
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EXHIBIT S
THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UNITED STATES OF AMERICA * Criminal Action

* No. H-03-363 (3)
V. * 10:00 a.m.
* May 12, 2005
ROBERT S. FURST * HOUSTON, TEXAS
* * * * *
SENTENCING
BEFORE THE HONORABLE EWING WERLEIN, JR.
UNITED STATES DISTRICT JUDGE
APPEARANCES:
FOR THE UNITED STATES: MR. MATTHEW W. FRIEDRICH

MS. KATHRYN H. RUEMMLER
MS. SANGITA K. RAO
U.S. Department of Justice
Criminal Division
1400 New York Avenue, N.W.
BOND Building, 10th Floor
Washington, D.C. 20530
FOR DEFENDANT FURST: MR. IRA LEE SORKIN

MS. NICOLE WROBLESKI
Carter, Ledyard & Milburn, LLP
2 Wall Street
New York, N.Y. 10005
MR. R. TRENT GAITHER

Gaither & Amann
4300 Scotland
Houston, Texas 77007
MR. JOHN W. NIELDS, JR.

Howrey LLP
1299 Pennsylvania Ave. NW
Washington, D.C. 20004-2402
COURT REPORTER: MR. EDWARD L. REED
Proceedings recorded by computer stenography

Produced by computer-aided transcription
36
1 say that Mr. Furst had acknowledged during his interview with
2 the Permanent Subcommittee on Investigations that Mr. Furst had
3 acknowledged that this transaction was, in fact, a loan. Had
4 he done that, the course of this investigation would have been
5 dramatically different.
6 Your Honor, I want to speak to you procedurally
7 of some of the things that the Court raised in deciding not to
8 apply the obstruction of justice enhancement.
9 First, with respect to Mr. Hensler, the decision
10 not to elicit testimony from him about Mr. Furst's statements
11 to him at trial during the guilt phase was a tactical one.
12 Because we didn't introduce evidence of that, we agreed that it
13 was appropriate to strike the allegations from the indictment.
14 Nevertheless, we strongly believe that Mr. Furst did lie. He
15 lied about the ultimate issue, which was the most important
16 issue. He said -- and I'm just looking at paragraph -- Page 22
17 of the addendum to the PSR. Mr. Furst said there were no
18 promises, no guarantees, that the barge transaction was
19 high-risk because it was equity. Not debt, not a loan.
20 That was the ultimate issue, Your Honor. He
21 lied about it to the Permanent Subcommittee on Investigations.
22 The Permanent Subcommittee, as a result of that interview, made
23 a referral to the Department of Justice for an obstruction of
24 justice investigation. The government is prepared to bring
25 Mr. Hensler to court and to have him testify about the

EXHIBIT T
AMERICAN BAR ASSOCIATION

STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY
Formal Opinion 09-454 July 8, 2009

Prosecutor’s Duty to Disclose Evidence and Information Favorable to the Defense
Rule 3.8(d) of the Model Rules of Professional Conduct requires a prosecutor to “make timely disclosure to
the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the
accused or mitigates the offense, and, in connection with sentencing, [to] disclose to the defense and to the
tribunal all unprivileged mitigating information known to the prosecutor.” This ethical duty is separate
from disclosure obligations imposed under the Constitution, statutes, procedural rules, court rules, or court
orders. Rule 3.8(d) requires a prosecutor who knows of evidence and information favorable to the defense
to disclose it as soon as reasonably practicable so that the defense can make meaningful use of it in making
such decisions as whether to plead guilty and how to conduct its investigation. Prosecutors are not further
obligated to conduct searches or investigations for favorable evidence and information of which they are
unaware. In connection with sentencing proceedings, prosecutors must disclose known evidence and
information that might lead to a more lenient sentence unless the evidence or information is privileged.
Supervisory personnel in a prosecutor’s office must take reasonable steps under Rule 5.1 to ensure that all
lawyers in the office comply with their disclosure obligation.
There are various sources of prosecutors’ obligations to disclose evidence and other information to
defendants in a criminal prosecution. 1 Prosecutors are governed by federal constitutional provisions as
interpreted by the U.S. Supreme Court and by other courts of competent jurisdiction. Prosecutors also have
discovery obligations established by statute, procedure rules, court rules or court orders, and are subject to
discipline for violating these obligations.
Prosecutors have a separate disclosure obligation under Rule 3.8(d) of the Model Rules of
Professional Conduct, which provides: “The prosecutor in a criminal case shall . . . make timely disclosure
to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the
accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the
tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is
relieved of this responsibility by a protective order of the tribunal.” This obligation may overlap with a
prosecutor’s other legal obligations.
Rule 3.8(d) sometimes has been described as codifying the Supreme Court’s landmark decision in
Brady v. Maryland, 2 which held that criminal defendants have a due process right to receive favorable
information from the prosecution. 3 This inaccurate description may lead to the incorrect assumption that
the rule requires no more from a prosecutor than compliance with the constitutional and other legal
obligations of disclosure, which frequently are discussed by the courts in litigation. Yet despite the
importance of prosecutors fully understanding the extent of the separate obligations imposed by Rule
3.8(d), few judicial opinions, or state or local ethics opinions, provide guidance in interpreting the various
state analogs to the rule. 4 Moreover, although courts in criminal litigation frequently discuss the scope of
prosecutors’ legal obligations, they rarely address the scope of the ethics rule. 5 Finally, although courts
1
This opinion is based on the Model Rules of Professional Conduct as amended by the ABA House of Delegates through August
2009. The laws, court rules, regulations, rules of professional conduct, and opinions promulgated in individual jurisdictions are
controlling.
2
373 U.S. 83 (1963). See State v. York, 632 P.2d 1261, 1267 (Or. 1981) (Tanzer, J., concurring) (observing parenthetically that the
predecessor to Rule 3.8(d), DR 7-103(b), “merely codifies” Brady).
3
Brady, 373 U.S. at 87 (“the suppression by the prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”); see also
Kyles v. Whitley, 514 U.S. 419, 432 (1995) (“The prosecution's affirmative duty to disclose evidence favorable to a defendant can
trace its origins to early 20th-century strictures against misrepresentation and is of course most prominently associated with this
Court's decision in Brady v. Maryland.”)
4
See Arizona State Bar, Comm. on Rules of Prof’l Conduct, Op. 2001-03 (2001); Arizona State Bar, Comm. on Rules of Prof’l
Conduct, Op. 94-07 (1994); State Bar of Wisconsin, Comm. on Prof’l Ethics, Op. E-86-7 (1986).
5
See, e.g., Mastracchio v. Vose, 2000 WL 303307 *13 (D.R.I. 2000), aff'd, 274 F.3d 590 (1st Cir.2001) (prosecution's failure to
disclose nonmaterial information about witness did not violate defendant's Fourteenth Amendment rights, but came "exceedingly close
09-454 Formal Opinion 2
sometimes sanction prosecutors for violating disclosure obligations, 6 disciplinary authorities rarely proceed
against prosecutors in cases that raise interpretive questions under Rule 3.8(d), and therefore disciplinary
case law also provides little assistance.
The Committee undertakes its exploration by examining the following hypothetical.
A grand jury has charged a defendant in a multi-count indictment based on allegations

that the defendant assaulted a woman and stole her purse. The victim and one bystander,
both of whom were previously unacquainted with the defendant, identified him in a photo
array and then picked him out of a line-up. Before deciding to bring charges, the
prosecutor learned from the police that two other eyewitnesses viewed the same line-up
but stated that they did not see the perpetrator, and that a confidential informant attributed
the assault to someone else. The prosecutor interviewed the other two eyewitnesses and
concluded that they did not get a good enough look at the perpetrator to testify reliably.
In addition, he interviewed the confidential informant and concluded that he is not
credible.
Does Rule 3.8(d) require the prosecutor to disclose to defense counsel that two bystanders failed to identify
the defendant and that an informant implicated someone other than the defendant? If so, when must the
prosecutor disclose this information? Would the defendant’s consent to the prosecutor’s noncompliance
with the ethical duty eliminate the prosecutor’s disclosure obligation?
The Scope of the Pretrial Disclosure Obligation
A threshold question is whether the disclosure obligation under Rule 3.8(d) is more extensive than
the constitutional obligation of disclosure. A prosecutor’s constitutional obligation extends only to
favorable information that is “material,” i.e., evidence and information likely to lead to an acquittal. 7 In the
hypothetical, information known to the prosecutor would be favorable to the defense but is not necessarily
material under the constitutional case law. 8 The following review of the rule’s background and history
indicates that Rule 3.8(d) does not implicitly include the materiality limitation recognized in the
constitutional case law. The rule requires prosecutors to disclose favorable evidence so that the defense can
decide on its utility.
Courts recognize that lawyers who serve as public prosecutors have special obligations as
representatives “not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern
to violating [Rule 3.8]").

6
See, e.g., In re Jordan, 913 So. 2d 775, 782 (La. 2005) (prosecutor's failure to disclose witness statement that negated ability to
positively identify defendant in lineup violated state Rule 3.8(d)); N.C. State Bar v. Michael B. Nifong, No. 06 DHC 35, Amended
Findings of Fact, Conclusions of Law, and Order of Discipline (Disciplinary Hearing Comm’n of N.C. July 24, 2007) (prosecutor
withheld critical DNA test results from defense); Office of Disciplinary Counsel v. Wrenn, 790 N.E.2d 1195, 1198 (Ohio 2003)
(prosecutor failed to disclose at pretrial hearing results of DNA tests in child sexual abuse case that were favorable to defendant and
fact that that victim had changed his story); In re Grant, 541 S.E.2d 540, 540 (S.C. 2001) (prosecutor failed to fully disclose
exculpatory material and impeachment evidence regarding statements given by state's key witness in murder prosecution). Cf. Rule
3.8, cmt. [9] (“A prosecutor’s independent judgment, made in good faith, that the new evidence is not of such nature as to trigger the
obligations of sections (g) and (h), though subsequently determined to have been erroneous, does not constitute a violation of this
Rule.”)
7
See, e.g., Strickler v. Greene, 527 U.S. 263, 281-82 (1999); Kyles, 514 U.S. at 432-35, United States v. Bagley, 473 U.S. 667, 674-75
(1985).
8
“[Petitioner] must convince us that ‘there is a reasonable probability’ that the result of the trial would have been different if the
suppressed documents had been disclosed to the defense.. . . [T]he materiality inquiry is not just a matter of determining whether, after
discounting the inculpatory evidence in light of the undisclosed evidence, the remaining evidence is sufficient to support the jury's
conclusions. Rather, the question is whether ‘the favorable evidence could reasonably be taken to put the whole case in such a
different light as to undermine confidence in the verdict.’” Strickler, 527 U.S. at 290 (citations omitted); see also United States v.
Coppa, 267 F.3d 132, 142 (2d Cir. 2001) (“The result of the progression from Brady to Agurs and Bagley is that the nature of the
prosecutor’s constitutional duty to disclose has shifted from (a) an evidentiary test of materiality that can be applied rather easily to
any item of evidence (would this evidence have some tendency to undermine proof of guilt?) to (b) a result-affecting test that obliges a
prosecutor to make a prediction as to whether a reasonable probability will exist that the outcome would have been different if
disclosure had been made.”)
impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal
prosecution is not that it shall win a case, but that justice shall be done.” 9 Similarly, Comment [1] to
Model Rule 3.8 states that: “A prosecutor has the responsibility of a minister of justice and not simply that
of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded
procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions
are taken to prevent and to rectify the conviction of innocent persons.”
In 1908, more than a half-century prior to the Supreme Court’s decision in Brady v. Maryland, 10
the ABA Canons of Professional Ethics recognized that the prosecutor’s duty to see that justice is done
included an obligation not to suppress facts capable of establishing the innocence of the accused. 11 This
obligation was carried over into the ABA Model Code of Professional Responsibility, adopted in 1969, and
expanded. DR 7-103(B) provided: “A public prosecutor . . . shall make timely disclosure to counsel for the
defendant, or to the defendant if he has no counsel, of the existence of evidence, known to the prosecutor . .
. . that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the
punishment.” The ABA adopted the rule against the background of the Supreme Court’s 1963 decision in
Brady v. Maryland, but most understood that the rule did not simply codify existing constitutional law but
imposed a more demanding disclosure obligation. 12
Over the course of more than 45 years following Brady, the Supreme Court and lower courts
issued many decisions regarding the scope of prosecutors’ disclosure obligations under the Due Process
Clause. The decisions establish a constitutional minimum but do not purport to preclude jurisdictions from
adopting more demanding disclosure obligations by statute, rule of procedure, or rule of professional
conduct.
The drafters of Rule 3.8(d), in turn, made no attempt to codify the evolving constitutional case
law. Rather, the ABA Model Rules, adopted in 1983, carried over DR 7-103(B) into Rule 3.8(d) without
substantial modification. The accompanying Comments recognize that the duty of candor established by
Rule 3.8(d) arises out of the prosecutor’s obligation “to see that the defendant is accorded procedural
justice, that guilt is decided upon the basis of sufficient evidence,” 13 and most importantly, “that special
precautions are taken to prevent . . . the conviction of innocent persons.” 14 A prosecutor’s timely disclosure
of evidence and information that tends to negate the guilt of the accused or mitigate the offense promotes
the public interest in the fair and reliable resolution of criminal prosecutions. The premise of adversarial
proceedings is that the truth will emerge when each side presents the testimony, other evidence and
arguments most favorable to its position. In criminal proceedings, where the defense ordinarily has limited
9
Berger v. United States, 295 U.S. 78, 88 (1935) (discussing role of U.S. Attorney). References in U.S. judicial decisions to the
prosecutor’s obligation to seek justice date back more than 150 years. See, e.g., Rush v. Cavanaugh, 2 Pa. 187, 1845 WL 5210 *2 (Pa.
1845) (the prosecutor "is expressly bound by his official oath to behave himself in his office of attorney with all due fidelity to the
court as well as the client; and he violates it when he consciously presses for an unjust judgment: much more so when he presses for
the conviction of an innocent man.")
10
Prior to Brady, prosecutors’ disclosure obligations were well-established in federal proceedings but had not yet been extended under
the Due Process Clause to state court proceedings. See, e.g., Jencks v. United States, 353 U.S. 657, 668, n. 13 (1957), citing Canon 5
of the American Bar Association Canons of Professional Ethics (1947), for the proposition that the interest of the United States in a
criminal prosecution "is not that it shall win a case, but that justice shall be done;" United States v. Andolschek, 142 F. 2d 503, 506
(2d Cir. 1944) (L. Hand, J.) ("While we must accept it as lawful for a department of the government to suppress documents . . . we
cannot agree that this should include their suppression in a criminal prosecution, founded upon those very dealings to which the
documents relate and whose criminality they will, or may, tend to exculpate.")
11
ABA Canons of Professional Ethics, Canon 5 (1908) (“The primary duty of a lawyer engaged in public prosecution is not to
convict, but to see that justice is done. The suppression of facts or the secreting of witnesses capable of establishing the innocence of
the accused is highly reprehensible.”)
12
See, e.g., OLAVI MARU, ANNOTATED CODE OF PROFESSIONAL RESPONSIBILITY 330 (American Bar Found., 1979) (“a disparity
exists between the prosecutor’s disclosure duty as a matter of law and the prosecutor’s duty as a matter of ethics”). For example,
Brady required disclosure only upon request from the defense – a limitation that was not incorporated into the language of DR 7-
103(B), see MARU, id. at 330 – and that was eventually eliminated by the Supreme Court itself. Moreover, in United States v. Agurs,
427 U.S. 97 (1976), an opinion post-dating the adoption of DR 7-103(B), the Court held that due process is not violated unless a court
finds after the trial that evidence withheld by the prosecutor was material, in the sense that it would have established a reasonable
doubt. Experts understood that under DR 7-103(B), a prosecutor could be disciplined for withholding favorable evidence even if the
evidence did not appear likely to affect the verdict. MARU, id.
13
Rule 3.8, cmt. [1].
14
Id.
access to evidence, the prosecutor’s disclosure of evidence and information favorable to the defense
promotes the proper functioning of the adversarial process, thereby reducing the risk of false convictions.
Unlike Model Rules that expressly incorporate a legal standard, Rule 3.8(d) 15 establishes an
independent one. Courts as well as commentators have recognized that the ethical obligation is more
demanding than the constitutional obligation. 16 The ABA Standards for Criminal Justice likewise
acknowledge that prosecutors’ ethical duty of disclosure extends beyond the constitutional obligation. 17
In particular, Rule 3.8(d) is more demanding than the constitutional case law, 18 in that it requires
the disclosure of evidence or information favorable to the defense 19 without regard to the anticipated impact
of the evidence or information on a trial’s outcome. 20 The rule thereby requires prosecutors to steer clear
of the constitutional line, erring on the side of caution. 21
15
For example, Rule 3.4(a) makes it unethical for a lawyer to “unlawfully obstruct another party’s access to evidence or unlawfully
alter, destroy or conceal a document or other material having potential evidentiary value” (emphasis added), Rule 3.4(b) makes it
unethical for a lawyer to “offer an inducement to a witness that is prohibited by law” (emphasis added), and Rule 3.4(c) forbids
knowingly disobeying “an obligation under the rules of a tribunal . . . .” These provisions incorporate other law as defining the scope
of an obligation. Their function is not to establish an independent standard but to enable courts to discipline lawyers who violate
certain laws and to remind lawyers of certain legal obligations. If the drafters of the Model Rules had intended only to incorporate
other law as the predicate for Rule 3.8(d), that Rule, too, would have provided that lawyers comply with their disclosure obligations
under the law.
16
This is particularly true insofar as the constitutional cases, but not the ethics rule, establish an after-the-fact, outcome-determinative
“materiality” test. See Cone v. Bell, 129 S. Ct. 1769, 1783 n. 15 (2009) (“Although the Due Process Clause of the Fourteenth
Amendment, as interpreted by Brady, only mandates the disclosure of material evidence, the obligation to disclose evidence favorable
to the defense may arise more broadly under a prosecutor’s ethical or statutory obligations.”), citing inter alia, Rule 3.8(d); Kyles, 514
U.S. at 436 (observing that Brady “requires less of the prosecution than” Rule 3.8(d)); ANNOTATED MODEL RULES OF PROFESSIONAL
CONDUCT 375 (ABA 2007); 2 GEOFFREY C. HAZARD, JR., & W. WILLIAM HODES, THE LAW OF LAWYERING § 34-6 (3d 2001 &
Supp. 2009) (“The professional ethical duty is considerably broader than the constitutional duty announced in Brady v. Maryland . . .
and its progeny”); PETER A. JOY & KEVIN C. MCMUNIGAL, DO NO WRONG: ETHICS FOR PROSECUTORS AND DEFENDERS 145 (ABA
2009).
17
The current version provides: “A prosecutor shall not intentionally fail to make timely disclosure to the defense, at the earliest
feasible opportunity, of all evidence which tends to negate the guilt of the accused or mitigate the offense charged or which would
tend to reduce the punishment of the accused.” ABA STANDARDS FOR CRIMINAL JUSTICE, PROSECUTION FUNCTION, Standard 3-
3.11(a) (ABA 3d ed. 1993), available at http://www.abanet.org/crimjust/standards/prosecutionfunction.pdf. The accompanying
Commentary observes: “This obligation, which is virtually identical to that imposed by ABA model ethics codes, goes beyond the
corollary duty imposed upon prosecutors by constitutional law.” Id. at 96. The original version, approved in February 1971, drawing
on DR7-103(B) of the Model Code, provided: “It is unprofessional conduct for a prosecutor to fail to make timely disclosure to the
defense of the existence of evidence, known to him, supporting the innocence of the defendant. He should disclose evidence which
would tend to negate the guilt of the accused or mitigate the degree of the offense or reduce the punishment at the earliest feasible
opportunity.”
18
See, e.g., United States v. Jones, 609 F.Supp.2d 113, 118-19 (D. Mass. 2009); United States v. Acosta, 357 F. Supp. 2d 1228, 1232-
33 (D. Nev. 2005). We are aware of only two jurisdictions where courts have determined that prosecutors are not subject to discipline
under Rule 3.8(d) for withholding favorable evidence that is not material under the Brady line of cases. See In re Attorney C, 47 P.3d
1167 (Colo. 2002) (en banc) (court deferred to disciplinary board finding that prosecutor did not intentionally withhold evidence);
D.C. Rule Prof’l Conduct 3.8, cmt. 1 (“[Rule 3.8] is not intended either to restrict or to expand the obligations of prosecutors derived
from the United States Constitution, federal or District of Columbia statutes, and court rules of procedure.”)
19
Although this opinion focuses on the duty to disclose evidence and information that tends to negate the guilt of an accused, the
principles it sets forth regarding such matters as knowledge and timing apply equally to evidence and information that “mitigates the
offense.” Evidence or information mitigates the offense if it tends to show that the defendant’s level of culpability is less serious than
charged. For example, evidence that the defendant in a homicide case was provoked by the victim might mitigate the offense by
supporting an argument that the defendant is guilty of manslaughter but not murder.
20
Consequently, a court’s determination in post-trial proceedings that evidence withheld by the prosecution was not material is not
equivalent to a determination that evidence or information did not have to be disclosed under Rule 3.8(d). See, e.g., U.S. v. Barraza
Cazares, 465 F.3d 327, 333-34 (8th Cir. 2006) (finding that drug buyer’s statement that he did not know the defendant, who
accompanied seller during the transaction, was favorable to defense but not material).
21
Cf. Cone v. Bell, 129 S. Ct. at 1783 n. 15 (“As we have often observed, the prudent prosecutor will err on the side of transparency,
resolving doubtful questions in favor of disclosure.”); Kyles, 514 U.S. at 439 (prosecutors should avoid “tacking too close to the
wind”). In some jurisdictions, court rules and court orders serve a similar purpose. See, e.g., Local Rules of the U.S. Dist. Court for
the Dist. of Mass., Rule 116.2(A)(2) (defining “exculpatory information,” for purposes of the prosecutor’s pretrial disclosure
obligations under the Local Rules, to include (among other things) “all information that is material and favorable to the accused
because it tends to [c]ast doubt on defendant's guilt as to any essential element in any count in the indictment or information; [c]ast
doubt on the admissibility of evidence that the government anticipates offering in its case-in-chief, that might be subject to a motion to
suppress or exclude, which would, if allowed, be appealable . . . [or] [c]ast doubt on the credibility or accuracy of any evidence that
the government anticipates offering in its case-in-chief.”)
Under Rule 3.8(d), evidence or information ordinarily will tend to negate the guilt of the accused
if it would be relevant or useful to establishing a defense or negating the prosecution’s proof. 22 Evidence
and information subject to the rule includes both that which tends to exculpate the accused when viewed
independently and that which tends to be exculpatory when viewed in light of other evidence or
information known to the prosecutor.
Further, this ethical duty of disclosure is not limited to admissible “evidence,” such as physical
and documentary evidence, and transcripts of favorable testimony; it also requires disclosure of favorable
“information.” Though possibly inadmissible itself, favorable information may lead a defendant’s lawyer
to admissible testimony or other evidence 23 or assist him in other ways, such as in plea negotiations. In
determining whether evidence and information will tend to negate the guilt of the accused, the prosecutor
must consider not only defenses to the charges that the defendant or defense counsel has expressed an
intention to raise but also any other legally cognizable defenses. Nothing in the rule suggests a de minimis
exception to the prosecutor’s disclosure duty where, for example, the prosecutor believes that the
information has only a minimal tendency to negate the defendant’s guilt, or that the favorable evidence is
highly unreliable.
In the hypothetical, supra, where two eyewitnesses said that the defendant was not the assailant
and an informant identified someone other than the defendant as the assailant, that information would tend
to negate the defendant’s guilt regardless of the strength of the remaining evidence and even if the
prosecutor is not personally persuaded that the testimony is reliable or credible. Although the prosecutor
may believe that the eye witnesses simply failed to get a good enough look at the assailant to make an
accurate identification, the defense might present the witnesses’ testimony and argue why the jury should
consider it exculpatory. Similarly, the fact that the informant has prior convictions or is generally regarded
as untrustworthy by the police would not excuse the prosecutor from his duty to disclose the informant’s
favorable information. The defense might argue to the jury that the testimony establishes reasonable doubt.
The rule requires prosecutors to give the defense the opportunity to decide whether the evidence can be put
to effective use.
The Knowledge Requirement
Rule 3.8(d) requires disclosure only of evidence and information “known to the prosecutor.”
Knowledge means “actual knowledge,” which “may be inferred from [the] circumstances.” 24 Although “a
lawyer cannot ignore the obvious,” 25 Rule 3.8(d) does not establish a duty to undertake an investigation in
search of exculpatory evidence.
The knowledge requirement thus limits what might otherwise appear to be an obligation
substantially more onerous than prosecutors’ legal obligations under other law. Although the rule requires
22
Notably, the disclosure standard endorsed by the National District Attorneys’ Association, like that of Rule 3.8(d), omits the
constitutional standard’s materiality limitation. NATIONAL DISTRICT ATTORNEYS’ ASSOCIATION, NATIONAL PROSECUTION
STANDARDS § 53.5 (2d ed. 1991) (“The prosecutor should disclose to the defense any material or information within his actual
knowledge and within his possession which tends to negate or reduce the guilt of the defendant pertaining to the offense charged.”).
The ABA STANDARDS RELATING TO THE ADMINISTRATION OF CRIMINAL JUSTICE, THE PROSECUTION FUNCTION (3d ed. 1992), never
has included such a limitation either.
23
For example an anonymous tip that a specific individual other than the defendant committed the crime charged would be
inadmissible under hearsay rules but would enable the defense to explore the possible guilt of the alternative suspect. Likewise,
disclosure of a favorable out-of-court statement that is not admissible in itself might enable the defense to call the speaker as a witness
to present the information in admissible form. As these examples suggest, disclosure must be full enough to enable the defense to
conduct an effective investigation. It would not be sufficient to disclose that someone else was implicated without identifying who,
or to disclose that a speaker exculpated the defendant without identifying the speaker.
24
Rule 1.0(f).
25
Rule 1.13, cmt. [3], cf. ABA Formal Opinion 95-396 (“[A]ctual knowledge may be inferred from the circumstances. It follows,
therefore, that a lawyer may not avoid [knowledge of a fact] simply by closing her eyes to the obvious.”); see also ABA STANDARDS
FOR CRIMINAL JUSTICE, PROSECUTION FUNCTION, Standard 3-3.11(c) (3d ed. 1993) (“A prosecutor should not intentionally avoid
pursuit of evidence because he or she believes it will damage the prosecution’s case or aid the accused.”).
prosecutors to disclose known evidence and information that is favorable to the accused, 26 it does not
require prosecutors to conduct searches or investigations for favorable evidence that may possibly exist but
of which they are unaware. For example, prior to a guilty plea, to enable the defendant to make a well-
advised plea at the time of arraignment, a prosecutor must disclose known evidence and information that
would be relevant or useful to establishing a defense or negating the prosecution’s proof. If the prosecutor
has not yet reviewed voluminous files or obtained all police files, however, Rule 3.8 does not require the
prosecutor to review or request such files unless the prosecutor actually knows or infers from the
circumstances, or it is obvious, that the files contain favorable evidence or information. In the hypothetical,
for example, the prosecutor would have to disclose that two eyewitnesses failed to identify the defendant as
the assailant and that an informant attributed the assault to someone else, because the prosecutor knew that
information from communications with the police. Rule 3.8(d) ordinarily would not require the prosecutor
to conduct further inquiry or investigation to discover other evidence or information favorable to the
defense unless he was closing his eyes to the existence of such evidence or information. 27
The Requirement of Timely Disclosure
In general, for the disclosure of information to be timely, it must be made early enough that the
information can be used effectively. 28 Because the defense can use favorable evidence and information
most fully and effectively the sooner it is received, such evidence or information, once known to the
prosecutor, must be disclosed under Rule 3.8(d) as soon as reasonably practical.
Evidence and information disclosed under Rule 3.8(d) may be used for various purposes prior to
trial, for example, conducting a defense investigation, deciding whether to raise an affirmative defense, or
determining defense strategy in general. The obligation of timely disclosure of favorable evidence and
information requires disclosure to be made sufficiently in advance of these and similar actions and
decisions that the defense can effectively use the evidence and information. Among the most significant
purposes for which disclosure must be made under Rule 3.8(d) is to enable defense counsel to advise the
defendant regarding whether to plead guilty. 29 Because the defendant’s decision may be strongly
influenced by defense counsel’s evaluation of the strength of the prosecution’s case, 30 timely disclosure
requires the prosecutor to disclose evidence and information covered by Rule 3.8(d) prior to a guilty plea
proceeding, which may occur concurrently with the defendant’s arraignment. 31 Defendants first decide
whether to plead guilty when they are arraigned on criminal charges, and if they plead not guilty initially,
they may enter a guilty plea later. Where early disclosure, or disclosure of too much information, may
undermine an ongoing investigation or jeopardize a witness, as may be the case when an informant’s
identity would be revealed, the prosecutor may seek a protective order. 32
26
If the prosecutor knows of the existence of evidence or information relevant to a criminal prosecution, the prosecutor must disclose
it if, viewed objectively, it would tend to negate the defendant’s guilt. However, a prosecutor’s erroneous judgment that the evidence
was not favorable to the defense should not constitute a violation of the rule if the prosecutor’s judgment was made in good faith. Cf.
Rule 3.8, cmt. [9].
27
Other law may require prosecutors to make efforts to seek and review information not then known to them. Moreover, Rules 1.1
and 1.3 require prosecutors to exercise competence and diligence, which would encompass complying with discovery obligations
established by constitutional law, statutes, and court rules, and may require prosecutors to seek evidence and information not then
within their knowledge and possession.
28
Compare D.C. Rule Prof’l Conduct 3.8(d) (explicitly requiring that disclosure be made “at a time when use by the defense is
reasonably feasible”); North Dakota Rule Prof’l Conduct 3.8(d) (requiring disclosure “at the earliest practical time”); ABA
STANDARDS FOR CRIMINAL JUSTICE, PROSECUTION FUNCTION, supra note 17 (calling for disclosure “at the earliest feasible
opportunity”).
29
See ABA Model Rules of Professional Conduct 1.2(a) and 1.4(b).
30
In some state and local jurisdictions, primarily as a matter of discretion, prosecutors provide “open file” discovery to defense
counsel – that is, they provide access to all the documents in their case file including incriminating information – to facilitate the
counseling and decision-making process. In North Carolina, there is a statutory requirement of open-file discovery. See N.C. GEN.
STAT. § 15A-903 (2007); see generally Robert P. Mosteller, Exculpatory Evidence, Ethics, and the Disbarment of Mike Nifong: The
Critical Importance of Full Open-File Discovery, 15 GEO. MASON L. REV. 257 (2008).
31
See JOY & MCMUNIGAL, supra note 16 at 145 (“the language of the rule, in particular its requirement of ‘timely disclosure,’
certainly appears to mandate that prosecutors disclose favorable material during plea negotiations, if not sooner”).
32
Rule 3.8, Comment [3].
Defendant’s Acceptance of Prosecutor’s Nondisclosure
The question may arise whether a defendant’s consent to the prosecutor’s noncompliance with the
disclosure obligation under Rule 3.8(d) obviates the prosecutor’s duty to comply. 33 For example, may the
prosecutor and defendant agree that, as a condition of receiving leniency, the defendant will forgo evidence
and information that would otherwise be provided? The answer is “no.” A defendant’s consent does not
absolve a prosecutor of the duty imposed by Rule 3.8(d), and therefore a prosecutor may not solicit, accept
or rely on the defendant’s consent.
In general, a third party may not effectively absolve a lawyer of the duty to comply with his Model
Rules obligations; exceptions to this principle are provided only in the Model Rules that specifically
authorize particular lawyer conduct conditioned on consent of a client 34 or another. 35 Rule 3.8(d) is
designed not only for the defendant’s protection, but also to promote the public’s interest in the fairness and
reliability of the criminal justice system, which requires that defendants be able to make informed
decisions. Allowing a prosecutor to avoid compliance based on the defendant’s consent might undermine a
defense lawyer’s ability to advise the defendant on whether to plead guilty, 36 with the result that some
defendants (including perhaps factually innocent defendants) would make improvident decisions. On the
other hand, where the prosecution’s purpose in seeking forbearance from the ethical duty of disclosure
serves a legitimate and overriding purpose, for example, the prevention of witness tampering, the
prosecution may obtain a protective order to limit what must be disclosed. 37
The Disclosure Obligation in Connection with Sentencing
The obligation to disclose to the defense and to the tribunal, in connection with sentencing, all
unprivileged mitigating information known to the prosecutor differs in several respects from the obligation
of disclosure that apply before a guilty plea or trial.
First, the nature of the information to be disclosed is different. The duty to disclose mitigating
information refers to information that might lead to a more lenient sentence. Such information may be of
various kinds, e.g., information that suggests that the defendant’s level of involvement in a conspiracy was
less than the charges indicate, or that the defendant committed the offense in response to pressure from a
co-defendant or other third party (not as a justification but reducing his moral blameworthiness).
Second, the rule requires disclosure to the tribunal as well as to the defense. Mitigating
information may already have been put before the court at a trial, but not necessarily when the defendant
has pled guilty. When an agency prepares a pre-sentence report prior to sentencing, the prosecutor may
provide mitigating information to the relevant agency rather than to the tribunal directly, because that
ensures disclosure to the tribunal.
Third, disclosure of information that would only mitigate a sentence need not be provided before
or during the trial but only, as the rule states, “in connection with sentencing,” i.e., after a guilty plea or
33
It appears to be an unresolved question whether, as a condition of a favorable plea agreement, a prosecutor may require a defendant
entirely to waive the right under Brady to receive favorable evidence. In United States v. Ruiz, 536 U.S. 622, 628-32 (2002), the
Court held that a plea agreement could require a defendant to forgo the right recognized in Giglio v. United States, 405 U.S. 150
(1972), to evidence that could be used to impeach critical witnesses. The Court reasoned that “[i]t is particularly difficult to
characterize impeachment information as critical information of which the defendant must always be aware prior to pleading guilty
given the random way in which such information may, or may not, help a particular defendant.” 536 U.S. at 630. In any event, even
if courts were to hold that the right to favorable evidence may be entirely waived for constitutional purposes, the ethical obligations
established by Rule 3.8(d) are not coextensive with the prosecutor’s constitutional duties of disclosure, as already discussed.
34
See, e.g., Rules 1.6(a), 1.7(b)(4), 1.8(a)(3), and 1.9(a). Even then, it is often the case that protections afforded by the ethics rules can
be relinquished only up to a point, because the relevant interests are not exclusively those of the party who is willing to forgo the
rule’s protection. See, e.g., Rule 1.7(b)(1).
35
See, e.g., Rule 3.8(d) (authorizing prosecutor to withhold favorable evidence and information pursuant to judicial protective order);
Rule 4.2 (permitting communications with represented person with consent of that person’s lawyer or pursuant to court order).
36
See Rules 1.2(a) and 1.4(b).
37
The prosecution also might seek an agreement from the defense to return, and maintain the confidentiality of evidence and
information it receives.
verdict. To be timely, however, disclosure must be made sufficiently in advance of the sentencing for the
defense effectively to use it and for the tribunal fully to consider it.
Fourth, whereas prior to trial, a protective order of the court would be required for a prosecutor to
withhold favorable but privileged information, Rule 3.8(d) expressly permits the prosecutor to withhold
privileged information in connection with sentencing. 38
The Obligations of Supervisors and Other Prosecutors Who Are Not Personally Responsible for a
Criminal Prosecution
Any supervisory lawyer in the prosecutor’s office and those lawyers with managerial
responsibility are obligated to ensure that subordinate lawyers comply with all their legal and ethical
obligations. 39 Thus, supervisors who directly oversee trial prosecutors must make reasonable efforts to
ensure that those under their direct supervision meet their ethical obligations of disclosure, 40 and are
subject to discipline for ordering, ratifying or knowingly failing to correct discovery violations. 41 To
promote compliance with Rule 3.8(d) in particular, supervisory lawyers must ensure that subordinate
prosecutors are adequately trained regarding this obligation. Internal office procedures must facilitate such
compliance.
For example, when responsibility for a single criminal case is distributed among a number of
different lawyers with different lawyers having responsibility for investigating the matter, presenting the
indictment, and trying the case, supervisory lawyers must establish procedures to ensure that the prosecutor
responsible for making disclosure obtains evidence and information that must be disclosed. Internal policy
might be designed to ensure that files containing documents favorable to the defense are conveyed to the
prosecutor providing discovery to the defense, and that favorable information conveyed orally to a
prosecutor is memorialized. Otherwise, the risk would be too high that information learned by the
prosecutor conducting the investigation or the grand jury presentation would not be conveyed to the
prosecutor in subsequent proceedings, eliminating the possibility of its being disclosed. Similarly,
procedures must ensure that if a prosecutor obtains evidence in one case that would negate the defendant’s
guilt in another case, that prosecutor provides it to the colleague responsible for the other case. 42
38
The drafters apparently concluded that the interest in confidentiality protected by an applicable privilege generally outweighs a
defendant’s interest in receiving mitigating evidence in connection with a sentencing, but does not generally outweigh a defendant’s
interest in receiving favorable evidence or information at the pretrial or trial stage. The privilege exception does not apply, however,
when the prosecution must prove particular facts in a sentencing hearing in order to establish the severity of the sentence. This is true
in federal criminal cases, for example, when the prosecution must prove aggravating factors in order to justify an enhanced sentence.
Such adversarial, fact-finding proceedings are equivalent to a trial, so the duty to disclose favorable evidence and information is fully
applicable, without regard to whether the evidence or information is privileged.
39
Rules 5.1(a) and (b).
40
Rule 5.1(b).
41
Rule 5.1(c). See, e.g., In re Myers, 584 S.E.2d 357, 360 (S.C. 2003).
42
In some circumstances, a prosecutor may be subject to sanction for concealing or intentionally failing to disclose evidence or
information to the colleague responsible for making disclosure pursuant to Rule 3.8(d). See, e.g., Rule 3.4(a) (lawyer may not
unlawfully conceal a document or other material having potential evidentiary value); Rule 8.4(a) (lawyer may not knowingly induce
another lawyer to violate Rules of Professional Conduct); Rule 8.4(c) (lawyer may not engage in conduct involving deceit); Rule
8.4(d) (lawyer may not engage in conduct that is prejudicial to the administration of justice).
____________________________________________________________________________________________________________
AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ETHICS AND PROFESSIONAL

RESPONSIBILITY
321 N. Clark Street, Chicago, Illinois 60654-4714 Telephone (312)988-5300
CHAIR: Robert Mundheim, New York, NY ■ Robert A. Creamer, Evanston, IL ■ Edwin L. Felter, Jr., Denver,
CO ■ Terrence M. Franklin, Los Angeles, CA ■ Bruce A. Green, New York, NY ■ James M. McCauley,
Richmond, VA ■ Susan R. Martyn, Toledo, OH ■ Arden J. Olson, Eugene, OR ■ Mary Robinson, Downers
Grove, IL ■ Sylvia E. Stevens, Lake Oswego, OR
CENTER FOR PROFESSIONAL RESPONSIBILITY: George A. Kuhlman, Ethics Counsel; Eileen B. Libby,
Associate Ethics Counsel
©2009 by the American Bar Association. All rights reserved.
EXHIBIT U
US Justice: Print Friendly Version Page 1 of 1
Home » Briefing Room » Justice News
Department of Justice
Office of Public Affairs
FOR IMMEDIATE RELEASE Thursday, June 4, 2009
Department Asks Alaska Corruption Cases Be Remanded to District Court, Former State Representatives Be
Released
The Department of Justice today asked the U.S. Court of Appeals for the Ninth Circuit to remand the cases of former Alaska State Representatives Victor Kohring and
Peter Kott, who were convicted on corruption charges in 2007, to the District Court. The Department also asked the Court of Appeals to release the two on personal
recognizance, after the Department uncovered material that appears to be information that should have been, but was not, disclosed to the defense prior to trial.
Attorney General Eric Holder also instructed the Department’s Criminal Division to review the Department’s public corruption investigation in Alaska to ensure that all
other discovery obligations have been met.
"After a careful review of these cases, I have determined that it appears that the Department did not provide information that should have been disclosed to the defense,"
Holder said. "Department of Justice prosecutors work hard every day and perform a great service for the American people. But the Department’s mission is to do justice,
not just win cases, and when we make mistakes, it is our duty to admit and correct those mistakes. We are committed to doing that."
"The Criminal Division must ensure that defendants receive all appropriate discovery materials, and today’s action demonstrates that commitment to this responsibility,"
said Lanny A. Breuer, Assistant Attorney General of the Criminal Division. "We will continue regular discovery training for all Criminal Division prosecutors to make
certain that they perform their duties in adherence to the highest ethical standards. Every day, hundreds of career prosecutors work to uphold this Division’s proud
tradition of being vigilant, ethical and stellar in the execution of their work. This action is faithful to that tradition."
Kohring was convicted in U.S. District Court for the District of Alaska on Nov. 1, 2007, of bribery and extortion-related charges. He was sentenced on May 9, 2008, to 42
months in prison and two years of supervised release. Kott was convicted on Sept. 25, 2007, of bribery and extortion-related charges and was sentenced on 72 months in
prison and three years of supervised release.
In April, after the dismissal of charges against former Sen. Theodore F. Stevens, Attorney General Holder instituted comprehensive steps to enhance the Department’s
compliance with rules that require the government to turn over evidence to the defense in criminal cases.
Since the launch of those reforms, the Department has been providing supplemental training to federal prosecutors on discovery obligations and has established a working
group of senior prosecutors and Department officials from each component to review discovery practices and the need for additional improvements, resources and
training.
09-550 Attorney General

EXHIBIT V
Page 5192
CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION
THE HON. CORMAC J. CARNEY, JUDGE PRESIDING
UNITED STATES OF AMERICA, )

)
PLAINTIFF, )
)
VS. ) NO. SACR 08-00139-CJC
WILLIAM J. RUEHLE, )
DEFENDANT. )
_________________________________)
REPORTER'S TRANSCRIPT OF PROCEEDINGS
SANTA ANA, CALIFORNIA
TUESDAY,DECEMBER 15, 2009
9:00
MARIA BEESLEY-DELLANEVE, CSR 9132

OFFICIAL FEDERAL REPORTER
RONALD REAGAN FEDERAL BUILDING
411 W. 4TH STREET, ROOM 1-053
SANTA ANA, CA 92701
(714) 564-9259
Electronically signed by Maria Beesley (501-187-561-9309) b77c98fa-adc9-4fd7-81c3-4a4be6f7a375

Page 5193
1 APPEARANCES:
2 FOR THE PLAINTIFF: GEORGE S. CARDONA
UNITED STATES ATTORNEY
3 BY: ANDREW STOLPER
AND ROBB ADKINS,
4 GREG STAPLES,
ASSISTANT UNITED STATES ATTORNEY
5 411 W. 4TH STREET, 8TH FLOOR
SANTA ANA, CALIFORNIA 92701
6
7
8
9
10 FOR THE DEFENDANT RUEHLE: SKADDEN ARPS SLATE MEAGHER
BY: RICHARD MARMARO, ESQ.
11 AND JACK DICANIO, ESQ.
MATTHEW UMHOFER, ESQ.
12 300 SOUTH GRAND AVENUE
LOS ANGELES, CALIFORNIA 90071
13 (213)687-5535
14 FOR HENRY SAMUELI: MCDERMOTT WILL & EMERY
BY: GORDON GREENBERG, ESQ.
15 2049 CENTURY PARK EAST, SUITE 3800
LOS ANGELES, CALIFORNIA 90067-3218
16 (310) 551-9398
17
FOR HENRY NICHOLAS: WILLIAMS & CONNOLLY LLP
18 BY: BRENDAN SULLIVAN, ESQ.
725 TWELFTH STREET N.W.
19 WASHINGTON D.C. 20005
(202) 434-5460
20
21 FOR DAVID DULL: QUINN EMANUEL URQUHART OLVER & HEDGES
BY: JAMES ASPERGER, ESQ.
22 AND SETH ARONSON, ESQ.
865 S. FIGUEROA ST 10TH FL
23 LOS ANGELES, CALIFORNIA 90017
24
25

Page 5194
1 SANTA ANA, CALIFORNIA; TUESDAY, DECEMBER 15, 2009
2 -OOO-
3 THE CLERK: ITEM NUMBER ONE, SACR 08-139-CJC. UNITED
4 STATES VERSUS WILLIAM J. RUEHLE.
5 COUNSEL, PLEASE STATE YOUR APPEARANCES FOR THE RECORD.
6 MR. ADKINS: GOOD MORNING, YOUR HONOR. ROBB ADKINS,
7 GEORGE CARDONA, ANDREW STOLPER, AND GREG STAPLES ON BEHALF OF THE
8 UNITED STATES.
9 THE COURT: GOOD MORNING, GENTLEMEN.
10 MR. MARMARO: GOOD MORNING, YOUR HONOR. RICHARD MARMARO
11 AND JACK DICANIO FOR MR. RUEHLE, WHO IS PRESENT.
12 THE COURT: GOOD MORNING.
13 AND I THINK WE HAVE SOME OTHER LAWYERS; RIGHT? AND
14 PARTIES?
15 MR. SULLIVAN, I SEE YOU THERE, SIR.
16 MR. SULLIVAN: BRENDAN SULLIVAN OF WILLIAMS AND CONNOLLY
17 FOR DR. HENRY NICHOLAS.
18 MR. ASPERGER: GOOD MORNING, YOUR HONOR. JIM ASPERGER
19 AND SETH ARONSON FOR MR. DULL.
20 MR. GREENBERG: GORDON GREENBERG ON BEHALF OF DR. HENRY
21 SAMUELI, WHO IS PRESENT BEFORE THE COURT.
22 THE COURT: GOOD MORNING TO ALL OF YOU.
23 WHAT I THOUGHT I WOULD DO IS READ INTO THE RECORD MY
24 DECISION, AND THEN I'LL GIVE EVERYONE A NOTICE AND OPPORTUNITY TO
25 SAY WHATEVER THEY WANT TO SAY ON THE RECORD.

Page 5195
1 I HEARD ALL THE EVIDENCE PRESENT AT MR. RUEHLE'S TRIAL
2 AND AT THE EVIDENTIARY HEARINGS. I NOW KNOW THE ENTIRE STORY OF
3 WHAT HAPPENED. THIS DECISION SUPERSEDES ANY PRIOR FINDINGS,
4 RULINGS OR CREDIBILITY DETERMINATION THAT I HAD MADE ON A PARTIAL
5 RECORD WITHOUT THE BENEFIT OF ALL THE FACTS.
6 BASED ON THE COMPLETE RECORD NOW BEFORE ME, I FIND THAT
7 THE GOVERNMENT HAS INTIMIDATED AND IMPROPERLY INFLUENCED THE THREE
8 WITNESSES CRITICAL TO MR. RUEHLE'S DEFENSE. THE CUMULATIVE EFFECT
9 OF THAT MISCONDUCT HAS DISTORTED THE TRUTH-FINDING PROCESS AND
10 COMPROMISED THE INTEGRITY OF THE TRIAL.
11 TO SUBMIT THIS CASE TO THE JURY WOULD MAKE A MOCKERY OF
12 MR. RUEHLE'S CONSTITUTIONAL RIGHT TO COMPULSORY PROCESS AND A FAIR
13 TRIAL. THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION
14 GUARANTEES THE ACCUSED THE RIGHT TO COMPULSORY PROCESS FOR
15 WITNESSES IN ITS DEFENSE. FOR THIS CONSTITUTIONAL RIGHT TO HAVE
16 TRUE MEANING, THE GOVERNMENT MUST NOT DO ANYTHING TO INTIMIDATE OR
17 IMPROPERLY INFLUENCE WITNESSES. SADLY, GOVERNMENT DID SO IN THIS
18 CASE.
19 MR. RUEHLE'S PRIMARY DEFENSE HERE HAS BEEN THAT HE HAD
20 NO CRIMINAL INTENT TO VIOLATE THE SECURITIES LAWS. TO SUCCEED, IT
21 WAS IMPERATIVE FOR MR. RUEHLE TO CALL THE THREE AVAILABLE
22 WITNESSES WHO HAD KNOWLEDGE OF BROADCOM'S STOCK-OPTION GRANTING
23 PRACTICES. THOSE THREE WITNESSES WERE NANCY TULLOS, THE VICE
24 PRESIDENT OF HUMAN RESOURCES; DAVID DULL, THE GENERAL COUNSEL; AND
25 DR. HENRY SAMUELI, COFOUNDER AND CHIEF TECHNICAL OFFICER. FOR

Page 5196
1 WHATEVER REASON, THE GOVERNMENT INTIMIDATED AND IMPROPERLY
2 INFLUENCED EACH OF THEM.
3 LET ME FIRST FOCUS ON MS. TULLOS. AFTER MS. TULLOS
4 DECLINED TO COOPERATE WITH THE GOVERNMENT, THE LEAD PROSECUTOR
5 CALLED THE GENERAL COUNSEL OF MS. TULLOS' NEW EMPLOYER AND MADE
6 INAPPROPRIATE STATEMENTS TO HIM THAT CAUSED MS. TULLOS TO LOSE HER
7 JOB.
8 AFTER THOSE EVENTS IN A REVERSE PROFFER SESSION THAT
9 LEFT HER UNDERSTANDABLY SCARED, MS. TULLOS ENTERED INTO AN UNUSUAL
10 COOPERATION PLEA AGREEMENT CONTAINING A QUESTIONABLE FACTUAL
11 BASIS, THAT SEVEN YEARS BEFORE ANY GOVERNMENT INVESTIGATION
12 COMMENCED INTO BROADCOM, MS. TULLOS OBSTRUCTED JUSTICE BY ASKING
13 AN EMPLOYEE TO DELETE AN E-MAIL THAT MS. TULLOS HERSELF NEVER
14 DELETED AND, IN FACT, COPIED TO ANOTHER PERSON.
15 THE GOVERNMENT ALSO TOLD MS. TULLOS THAT SHE WOULD HAVE
16 TO PLEAD TO A FELONY BECAUSE IT LOOKED MORE CONVINCING TO A JURY.
17 AND, MOST TROUBLING, THE GOVERNMENT MET WITH MS. TULLOS ON 26
18 SEPARATE OCCASIONS AND SUBJECTED HER TO GRUELING INTERROGATION
19 DURING WHICH THE GOVERNMENT INTERJECTED ITS VIEWS OF THE EVIDENCE
20 AND, AT LEAST ON ONE OCCASION, TOLD HER THAT SHE WOULD NOT RECEIVE
21 THE BENEFITS OF COOPERATION UNLESS SHE TESTIFIED DIFFERENTLY THAN
22 SHE HAD INITIALLY IN AN EARLIER SESSION.
23 NOT SURPRISINGLY, MS. TULLOS' TESTIMONY AT TRIAL CAME
24 OFF SCRIPTED AND NOT CONSISTENT WITH THE EXTENSIVE E-MAIL TRAIL
25 BROUGHT OUT DURING CROSS-EXAMINATION.

Page 5197
1 I HAVE ABSOLUTELY NO CONFIDENCE THAT ANY PORTION OF MS.
2 TULLOS'S TESTIMONY WAS BASED ON HER OWN INDEPENDENT RECOLLECTION
3 OF EVENTS AS OPPOSED TO WHAT THE GOVERNMENT THOUGHT HER
4 RECOLLECTION SHOULD BE ON THOSE EVENTS.
5 LET ME NEXT FOCUS ON MR. DULL. THE GOVERNMENT BELIEVED
6 THAT MR. DULL WAS A COCONSPIRATOR YET IT DECIDED NOT TO SEEK
7 CHARGES AGAINST HIM FOR SECURITIES FRAUD. IN EFFECT, THE
8 GOVERNMENT LEFT MR. DULL HANGING IN THE WIND AND UNCERTAIN OF HIS
9 FATE FOR ALMOST TWO YEARS. DURING TRIAL, I GRANTED MR. DULL
10 IMMUNITY SO HE COULD TESTIFY FOR THE DEFENSE.
11 AFTER I HAD DONE SO, THE LEAD PROSECUTOR CONTACTED
12 COUNSEL FOR MR. DULL AND THREATENED TO PROSECUTE MR. DULL IF HE
13 TESTIFIED CONSISTENTLY WITH HIS PRIOR TESTIMONY BEFORE THE SEC.
14 COMPOUNDING HIS MISCONDUCT, THE LEAD PROSECUTOR ATTEMPTED TO
15 NEGOTIATE THE TESTIMONY OF MR. DULL BY, AMONG OTHER THINGS,
16 PROMISING A SOFT CROSS IF MR. DULL INCRIMINATED OR DISPARAGED MR.
17 RUEHLE. THE LEAD PROSECUTOR SOMEHOW FORGOT THAT TRUTH IS NEVER
18 NEGOTIABLE.
19 FINALLY, LET ME FOCUS ON DR. SAMUELI. THE
20 UNCONTROVERTED EVIDENCE AT TRIAL ESTABLISHED THAT DR. SAMUELI WAS
21 A BRILLIANT ENGINEER AND A MAN OF INCREDIBLE INTEGRITY. THERE WAS
22 NO EVIDENCE AT TRIAL TO SUGGEST THAT DR. SAMUELI DID ANYTHING
23 WRONG, LET ALONE CRIMINAL. YET, THE GOVERNMENT EMBARKED ON A
24 CAMPAIGN OF INTIMIDATION AND OTHER MISCONDUCT TO EMBARRASS HIM AND
25 BRING HIM DOWN.

Page 5198
1 AMONG OTHER WRONGFUL ACTS THE GOVERNMENT, ONE,
2 UNREASONABLY DEMANDED THAT DR. SAMUELI SUBMIT TO AS MANY AS 30
3 GRUELING INTERROGATIONS BY THE LEAD PROSECUTOR.
4 TWO, FALSELY STATED AND IMPROPERLY LEAKED TO THE MEDIA
5 THAT DR. SAMUELI WAS NOT COOPERATING IN THE GOVERNMENT'S
6 INVESTIGATION.
7 THREE, IMPROPERLY PRESSURED BROADCOM TO TERMINATE DR.
8 SAMUELI'S EMPLOYMENT AND REMOVE HIM FROM THE BOARD.
9 FOUR, MISLED DR. SAMUELI INTO BELIEVING THAT THE LEAD
10 PROSECUTOR WOULD BE REPLACED BECAUSE OF MISCONDUCT.
11 FIVE, OBTAINED AN INFLAMMATORY INDICTMENT THAT REFERRED
12 TO DR. SAMUELI 72 TIMES AND ACCUSED HIM OF BEING AN UNINDICTED
13 COCONSPIRATOR WHEN THE GOVERNMENT NEW, OR SHOULD HAVE KNOWN, THAT
14 HE DID NOTHING WRONG.
15 AND SEVEN, CRAFTED AN UNCONSCIONABLE PLEA AGREEMENT
16 PURSUANT TO WHICH DR. SAMUELI WOULD PLEAD GUILTY TO A CRIME HE DID
17 NOT COMMIT AND PAY A RIDICULOUS SUM OF $12 MILLION TO THE UNITED
18 STATES TREASURY.
19 ONE MUST CONCLUDE THAT THE GOVERNMENT ENGAGED IN THIS
20 MISCONDUCT TO PRESSURE DR. SAMUELI TO FALSELY ADMIT GUILT AND
21 INCRIMINATE MR. RUEHLE OR, IF HE WAS UNWILLING TO MAKE SUCH A
22 FALSE ADMISSION AND INCRIMINATION, TO DESTROY DR. SAMUELI'S
23 CREDIBILITY AS A WITNESS FOR MR. RUEHLE.
24 NEEDLESS TO SAY, THE GOVERNMENT'S TREATMENT OF DR.
25 SAMUELI WAS SHAMEFUL AND CONTRARY TO AMERICAN VALUES OF DECENCY

Page 5199
1 AND JUSTICE.
2 IN LIGHT OF MY FINDING OF GOVERNMENT MISCONDUCT AND
3 DENIAL OF MR. RUEHLE'S CONSTITUTIONAL RIGHT TO COMPULSORY PROCESS,
4 I MUST NOW EXERCISE MY SUPERVISORY AUTHORITY AND ISSUE THE
5 FOLLOWING ORDER:
6 NUMBER ONE, I'M GOING TO DISMISS, WITH PREJUDICE, THE
7 STOCK-OPTION BACKDATING INDICTMENT AGAINST MR. RUEHLE AND ENTER A
8 JUDGMENT OF ACQUITTAL. THIS DISMISSAL AND JUDGMENT ARE BASED ON
9 TWO SEPARATE, BUT RELATED GROUNDS.
10 FIRST, AS I PREVIOUSLY STATED, THE GOVERNMENT MISCONDUCT
11 HAS DEPRIVED MR. RUEHLE OF THE RIGHT TO COMPULSORY PROCESS AND A
12 FAIR TRIAL. AND SECOND, THERE IS INSUFFICIENT EVIDENCE TO SUSTAIN
13 A CONVICTION AGAINST MR. RUEHLE. BECAUSE THE GOVERNMENT
14 IMPROPERLY INFLUENCED MS. TULLOS, HER TRIAL TESTIMONY IS
15 UNRELIABLE AND MUST BE STRICKEN.
16 WITHOUT MS. TULLOS' TAINTED TESTIMONY THERE IS
17 INSUFFICIENT EVIDENCE THAT MR. RUEHLE HAD THE CRIMINAL INTENT
18 NECESSARY TO VIOLATE ANY OF THE LAWS ALLEGED IN THE INDICTMENT.
19 I SHOULD NOTE THAT THIS LATTER GROUND PROHIBITS THE
20 GOVERNMENT FROM PROSECUTING MR. RUEHLE AGAIN FOR ANY CRIME RELATED
21 TO THE STOCK OPTION PRACTICES AT BROADCOM. TO DO SO WOULD VIOLATE
22 THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT.
23 NUMBER TWO, I'M GOING TO DISMISS, WITH PREJUDICE, THE
24 STOCK-OPTION BACKDATING INDICTMENT AGAINST DR. NICHOLAS. THE
25 THREE WITNESSES THAT MR. RUEHLE NEEDED TO PROVE HIS INNOCENCE ARE

Page 5200
1 THE SAME THREE WITNESSES THAT DR. NICHOLAS NEEDS TO PROVE HIS
2 INNOCENCE. CONSEQUENTLY, DR. NICHOLAS IS DENIED HIS RIGHT TO
3 COMPULSORY PROCESS AND HE CANNOT RECEIVE A FAIR TRIAL.
4 NUMBER THREE, I'M GOING TO ORDER GOVERNMENT TO SHOW
5 CAUSE, ON FEBRUARY 2, 2010, AT 9:00 A.M. WHY THE DRUG DIRECTION
6 INDICTMENT AGAINST DR. NICHOLAS SHOULD NOT BE DISMISSED. THE
7 THREE MATERIAL WITNESSES IN THE STOCK-OPTION BACKDATING CASE WILL
8 UNDOUBTEDLY BE WITNESSES IN THE DRUG DISTRIBUTION CASE, BUT I'M
9 NOT SURE WHETHER THE DIFFERENT NATURE OF THE DRUG CHARGES REDUCES
10 THE PREJUDICE TO DR. NICHOLAS SO HE CAN STILL EXERCISE HIS RIGHT
11 TO COMPULSORY PROCESS AND RECEIVE A FAIR TRIAL.
12 I DO ASK THAT THE GOVERNMENT KEEP IN MIND TWO ISSUES IN
13 ITS DECISION WHETHER TO GO FORWARD WITH THE DRUG DISTRIBUTION CASE
14 AGAINST DR. NICHOLAS. FIRST, THERE WILL BE OTHER EVIDENCE OF
15 GOVERNMENT MISCONDUCT INTRODUCED AT THAT TRIAL, SUCH AS THE
16 GOVERNMENT'S THREAT TO ISSUE A GRAND JURY SUBPOENA TO DR.
17 NICHOLAS' 13-YEAR-OLD-SON AND FORCE THE BOY TO TESTIFY AGAINST HIS
18 FATHER.
19 AND SECOND, DR. NICHOLAS'S E-MAIL TO HIS FORMER WIFE
20 ENTITLED "BRETT'S HOME RUN" WILL NOT BE ADMITTED AT TRIAL UNDER
21 ANY CIRCUMSTANCE. THE E-MAIL IS VERY PRIVATE AND PERSONAL AND
22 WILL NOT BE PUBLICLY AIRED IN THIS COURT AGAIN.
23 FOUR, I'M GOING TO LIFT THE STAY IMPOSED IN THE SEC
24 CIVIL STOCK-OPTION BACKDATING CASE AND DISMISS THAT COMPLAINT
25 WITHOUT PREJUDICE. THE SEC HAS 30 DAYS TO FILE AN AMENDED

Page 5201
1 COMPLAINT. I DO, HOWEVER, DISCOURAGE THE SEC FROM PROCEEDING
2 FURTHER WITH THE CASE.
3 THE GOVERNMENT'S MISCONDUCT HAS COMPROMISED THE
4 INTEGRITY AND LEGITIMACY OF THE CASE AND THE EVIDENCE AT MR.
5 RUEHLE'S TRIAL ESTABLISHED THE SEC WILL HAVE GREAT DIFFICULTY
6 PROVING THAT THE DEFENDANTS ACTED WITH THE RECKLESS SCIENTER.
7 THE ACCOUNTING STANDARDS AND GUIDELINES UP WERE NOT
8 CLEAR, AND THERE WAS CONSIDERABLE DEBATE IN THE HIGH-TECH INDUSTRY
9 AS TO THE PROPER ACCOUNTING TREATMENT FOR STOCK OPTION GRANTS.
10 INDEED, APPLE AND MICROSOFT WERE ENGAGING IN THE EXACT SAME
11 PRACTICES AS THOSE OF BROADCOM.
12 NOW, I'M SURE THERE ARE GOING TO BE MANY PEOPLE WHO ARE
13 GOING TO BE CRITICAL OF MY DECISION IN THIS CASE AND ARGUE THAT
14 I'M BEING TOO HARD ON THE GOVERNMENT. I STRONGLY DISAGREE. I
15 HAVE A SOLEMN OBLIGATION TO HOLD THE GOVERNMENT TO THE
16 CONSTITUTION. I'M DOING NOTHING MORE AND NOTHING LESS. AND I ASK
17 MY CRITICS TO PUT THEMSELVES IN THE SHOES OF THE ACCUSED.
18 YOU ARE CHARGED WITH SERIOUS CRIMES AND, IF CONVICTED ON
19 THEM, YOU WILL SPEND THE REST OF YOUR LIFE IN PRISON. YOU ONLY
20 HAVE THREE WITNESSES TO PROVE YOUR INNOCENCE AND GOVERNMENT HAS
21 INTIMIDATED AND IMPROPERLY INFLUENCED EACH ONE OF THEM. IS THAT
22 FAIR? IS THAT JUSTICE? I SAY ABSOLUTELY NOT.
23 I'D LIKE TO CONCLUDE WITH THE POWERFUL AND INSIGHTFUL
24 PASSAGE FROM THE U.S. SUPREME COURT IN THE CASE OF BERGER V.
25 UNITED STATES.

Page 5202
1 "THE UNITED STATES ATTORNEY IS THE REPRESENTATIVE, NOT
2 OF AN ORDINARY PARTY TO A CONTROVERSY, BUT OF A SOVEREIGNTY WHOSE
3 OBLIGATION TO GOVERN IMPARTIALLY IS AS COMPELLING AS ITS
4 OBLIGATION TO GOVERN AT ALL, AND WHOSE INTEREST, THEREFORE, IN A
5 CRIMINAL PROSECUTION IS NOT THAT IT SHALL WIN A CASE, BUT THAT
6 JUSTICE SHALL BE DONE. AS SUCH, HE IS IN A PECULIAR AND A VERY
7 DEFINITE SENSE THE SERVANT OF THE LAW, THE TWOFOLD AIM OF WHICH IS
8 THAT GUILT SHALL NOT ESCAPE OR INNOCENT SUFFER.
9 HE MAY PROSECUTE WITH EARNESTNESS AND VIGOR. INDEED, HE
10 SHOULD DO SO. BUT WHILE HE MAY STRIKE HARD BLOWS, HE IS NOT AT
11 LIBERTY TO STRIKE FOUL ONES. IT IS MUCH HIS DUTY TO REFRAIN FROM
12 IMPROPER METHODS CALCULATED TO PRODUCE A WRONGFUL CONVICTION AS IT
13 IS TO USE EVERY LEGITIMATE MEANS TO BRING ABOUT A JUST ONE."
14 I SINCERELY REGRET THAT THE GOVERNMENT DID NOT HEED THE
15 RIGHTEOUS WORDS OF THE SUPREME COURT.
16 MR. MARMARO, I'LL HEAR FROM YOU FIRST, SIR, IF THERE IS
17 ANYTHING YOU OR MR. RUEHLE WOULD LIKE TO STATE ON THE RECORD.
18 MR. MARMARO: YOUR HONOR, IT'S VERY DIFFICULTY
19 OBVIOUSLY, HAVING HEARD THE COURT'S COMMENTS, TO GIVE A COMPOSED
20 RESPONSE OR A STATEMENT, BUT I JUST WANT TO SAY ONE THING, YOUR
21 HONOR. YOU HAVE SAID ALL ALONG THAT YOU WANTED TO HEAR THE WHOLE
22 STORY. BUT IF IT WEREN'T FOR WHAT YOU DID, WE WOULD NOT HAVE
23 HEARD THE WHOLE STORY. IF IT WEREN'T FOR YOUR DECISION TO GRANT
24 DEFENSE WITNESSES IMMUNITY, WE WOULD NOT HAVE HEARD FROM DR.
25 SAMUELI AND MR. DULL. AND YOU WOULD HAVE BEEN STUCK WITH ONLY

Page 5203
1 PART OF THE STORY.
2 SO IN A VERY LARGE SENSE, YOUR HONOR, WHAT HAPPENED,
3 WHAT YOU ANNOUNCED TODAY IS THE DIRECT RESULT OF WHAT YOU DID.
4 AND I HAVE TO TELL YOU, YOUR HONOR, 34 YEARS AGO TODAY,
5 TO THE DAY, DECEMBER 15, 1975, I PASSED THE BAR. WHAT HAPPENED IN
6 THIS COURT WAS VERY DIFFICULT TO WATCH, BUT WHAT HAPPENED TODAY
7 RESTORES MY FAITH AND I CAN HONESTLY SAY I HAVE NEVER BEEN MORE
8 PROUD TO BE A LAWYER.
9 THE COURT: MR. SULLIVAN, I KNOW I'M PROBABLY CATCHING
10 YOU A LITTLE OFF GUARD, BUT GIVEN THE MANY ORDERS THAT I HAVE
11 ISSUED, I DON'T KNOW IF THERE IS ANYTHING YOU WOULD LIKE TO SAY ON
12 THE RECORD, SIR.
13 MR. SULLIVAN: OF COURSE, MR. MARMARO IS A YOUNG LAWYER.
14 I HAVE BEEN DOING THIS 42 YEARS, BUT I ADOPT HIS MOVING WORDS.
15 I GUESS THAT WHEN I WAS A YOUNG LAWYER, I WAS NAIVE AND
16 I THOUGHT THAT FAIRNESS WAS ASSURED IN OUR COURTROOMS BECAUSE OUR
17 FOUNDING FATHERS HAD DEVISED THIS MAGICAL CONSTITUTION AND THIS
18 MAGICAL BILL OF RIGHTS, AND SOMEHOW IF THE GOVERNMENT LIVED BY
19 THAT, THAT WE WOULD ALWAYS BE JUST FINE. BUT I WAS NAIVE. I
20 LEARNED IN SHORT ORDER THAT THE ONLY THING THAT ASSURES FAIRNESS
21 IN THE COURTROOM ARE JUDGES WITH COURAGE TO KEEP THEIR EYES OPEN,
22 WATCH WHAT IS HAPPENING, KEEP AN OPEN MIND AND MAKE FAIR
23 DECISIONS, FAIR TO BOTH SIDES.
24 AND, YOUR HONOR, I STAND IN AWE OF WHAT YOU HAVE DONE
25 HERE TODAY BASED UPON THE MANY DAYS OF TEDIOUS TRIAL THAT WE HAVE

Page 5204
1 SEEN.
2 I'LL ADD ONLY ONE THING TO YOUR SUPREME COURT ARGUMENT.
3 AND WE ALL KNOW, WITHOUT SAYING, THAT THERE ARE MANY, MANY FINE
4 MEN AND WOMEN IN GOVERNMENT SERVICE, IN PROSECUTOR'S OFFICES AND
5 ALSO IN THE FBI. AND WE APPLAUD THEM. AND SOMETIMES WE DO SEE
6 THE KIND OF MISCONDUCT ON THE PART OF AN INDIVIDUAL OR SEVERAL
7 INDIVIDUALS.
8 BUT I'M REMINDED WHEN I HEARD YOUR SUPREME COURT QUOTE,
9 HOW SIMILAR IT WAS TO THE QUOTE I HEARD EIGHT MONTHS AGO, APRIL 8,
10 2008, FROM THE ATTORNEY GENERAL HIMSELF, A MESSAGE THAT WAS
11 DELIVERED TO ALL STATE DEPARTMENT U.S. ATTORNEYS. AND I QUOTE
12 HIM.
13 "YOUR JOB AS U.S. ATTORNEYS IS NOT TO CONVICT PEOPLE,
14 YOUR JOB IS NOT TO WIN CASES. YOUR JOB IS TO DO JUSTICE. YOUR
15 JOB IS IN EVERY CASE, EVERY DECISION THAT YOU MAKE, TO DO THE
16 RIGHT THING. ANYBODY WHO ASKS YOU TO DO SOMETHING OTHER THAN THAT
17 IS TO BE IGNORED. ANY POLICY THAT IS AT TENSION WITH THAT IS TO
18 BE QUESTIONED AND BROUGHT TO MY ATTENTION."
19 THE MESSAGE DELIVERED BY THIS COURT TODAY HAD BEEN HEARD
20 THROUGHOUT THE COUNTRY BY ALL WHO ENFORCE THE LAW, AND WE ARE ALL
21 BETTER OFF AND THE SYSTEM OF JUSTICE WILL BE BETTER OFF FOR THE
22 COURAGE DEMONSTRATED IN THIS COURT ON THIS DATE. THANK YOU.
23 THE COURT: MR. GREENBERG, IS THERE ANYTHING YOU WOULD
24 LIKE TO SAY ON BEHALF OF DR. SAMUELI?
25 MR. GREENBERG: THANK YOU, YOUR HONOR.

Page 5205
1 I'M IN A DANGEROUS POSITION, A LAWYER WHO IS BREATHLESS.
2 I REALLY -- MY BREATH IS TAKEN AWAY BECAUSE, ECHOING THE
3 SENTIMENTS OF MY COLLEAGUES HERE, THIS TRULY IS A TURNING POINT, I
4 BELIEVE, THAT WILL BE HEARD THROUGHOUT THE COUNTRY.
5 I SAT AT THAT TABLE AS A PROSECUTOR AND ENJOYED IT. IT
6 WAS THE GREATEST JOB I HAD IN MY LIFE. THE MOST ENJOYABLE BECAUSE
7 THE PRESUMPTION OF CREDIBILITY, YOU ARE CLOAKED WITH IT FROM THE
8 MOMENT THAT YOU WALK INTO THE COURTROOM. USUALLY, FROM THE
9 JUDGE'S PERSPECTIVE, FRANKLY FROM THE CLERK'S PERSPECTIVE, IT'S
10 YOUR CREDIBILITY TO LOSE.
11 AND IT'S A TREMENDOUS BURDEN DOING IT ON THE OTHER SIDE
12 OF THE EQUATION, YOUR HONOR, TO PIERCE THAT. AND TODAY THE
13 COURT'S ACKNOWLEDGMENT, ESPECIALLY IN LIGHT OF WHERE WE STARTED IN
14 THIS CASE, YOUR HONOR, WHICH I CAN ONLY SAY TO YOUR HONOR, THAT
15 IT'S REMARKABLE BECAUSE IN A PUBLIC SETTING, YOUR HONOR HAS SET
16 THE RECORD STRAIGHT AND INDICATED INITIALLY THAT IT WANTED TO HEAR
17 THE FACTS OF THIS AND REJECTED OUR PLEA, AND I COULD ONLY BE
18 THANKFUL FOR THAT.
19 I SAY THAT TO YOU SINCERELY BECAUSE IT TAKES NOT ONLY A
20 TREMENDOUS JUDGE, BUT A TREMENDOUS HUMAN BEING TO RECOGNIZE THAT
21 THAT WAS, FRANKLY, THE WRONG DECISION, IF I MAY SAY SO, YOUR
22 HONOR, AT THE TIME IN TERMS OF HOW IT WAS POSTURED AT THAT TIME.
23 AND I THANK YOUR HONOR FOR LISTENING CAREFULLY AND
24 KEEPING AN OPEN MIND, AND TRULY LOOKING AT THE EVIDENCE, AND
25 UNDERSTANDING AND GETTING TO THE POINT OF EXACTLY WHAT HAPPENED

Page 5206
1 HERE.
2 AND I THINK THAT OUR JUSTICE SYSTEM WILL EMBRACE THIS.
3 THERE HAVE BEEN MANY CIRCUMSTANCES AROUND THE COUNTRY MOST
4 RECENTLY WHERE A NUMBER OF CASES HAVE BEEN TOSSED BECAUSE OF
5 PROSECUTORS PLACING THEIR THUMB ON THE SCALES OF JUSTICE. AND
6 SADLY, THE OFFICE THAT I LOVED SO MUCH, HERE, WHICH IS A
7 TREMENDOUS OFFICE, THE U.S. ATTORNEY'S OFFICE, DID SO IN THIS
8 CASE.
9 AND I THANK YOUR HONOR FOR THE COURAGE TO GO FORWARD AND
10 SET THE RECORD STRAIGHT. I HAVE REPRESENTED A HUMAN BEING HERE
11 THAT I HAVE NEVER HAD MORE RESPECT FOR, OF ANYONE I HAVE
12 REPRESENTED. AND NO DISRESPECT TO ANYONE ELSE. HE TRULY IS A
13 WONDERFUL HUMAN BEING. AND I HAVE WATCHED THE FAMILY GO THROUGH
14 THIS PROCESS FOR THREE AND A HALF YEARS. AND IT'S BEEN UGLY. AND
15 IT JUST GOT UGLIER AND UGLIER UNTIL TODAY IN WHICH WE CAN ALL GO
16 HOME AND CELEBRATE.
17 THANK YOU, YOUR HONOR.
18 THE COURT: MR. ASPERGER?
19 MR. SLOAN: THANK YOU, YOUR HONOR.
20 AS THE COURT KNOWS, MR. ARONSON AND I AND MR. DULL HAVE,
21 IN MANY WAYS, BEEN BYSTANDERS TO THESE CRIMINAL PROCEEDINGS, BUT
22 THIS HAS NONETHELESS BEEN EXTREMELY CHALLENGING AS I'M SURE THE
23 COURT IS WELL AWARE, FOR MR. DULL AND HIS FAMILY. AND WE APPLAUD
24 THE COURT. WE ECHO WHAT OUR COLLEAGUES HAVE SAID AND APPLAUD THE
25 COURT FOR THE GREAT COURAGE THAT THE COURT HAS SHOWN IN ITS RULING

Page 5207
1 TODAY.
2 ONE OF THE THINGS THAT STRUCK ME IN THE LAST TWO WEEKS
3 WAS WHEN THE COURT SAID THAT YOU'RE HERE TO DO JUSTICE, TO DO THE
4 RIGHT THING, AND THAT'S WHY YOU TOOK THE BENCH. THAT'S WHY I WAS
5 A FEDERAL PROSECUTOR FOR 10 YEARS, YOUR HONOR, AND WAS PROUD TO BE
6 ABLE TO SAY I REPRESENT THE UNITED STATES OF AMERICA. IT'S WHY,
7 IN REPRESENTING MR. DULL AND TRYING TO SUPPORT HIM AND HIS FAMILY,
8 WE'RE VERY PROUD TO BE REPRESENTING A MAN OF SUCH INTEGRITY WHO
9 WAS ALWAYS THERE TO DO THE RIGHT THING.
10 AND THIS WILL BE A GREAT RELIEF OF THE BURDENS AND
11 TRYING CIRCUMSTANCES THAT HE HAS HAD TO GO THROUGH.
12 AND I WILL ECHO WHAT, AGAIN, MR. MARMARO AND
13 MR. SULLIVAN AND MR. GREENBERG HAD SAID. IT'S JUDGES LIKE YOU WHO
14 HAVE SHOWN THE COURAGE TO MAKE THE RULING THAT YOU HAVE MADE; TO
15 DO THE RIGHT THING; TO LOOK AT THE FACTS WITH AN OPEN MIND; AND TO
16 BE OPEN TO CHANGING YOUR VIEW OF THE FACTS AND COMING UP WITH
17 DOING THE RIGHT THING AND DOING FAIRNESS THAT RESTORES OUR FAITH
18 IN THE SYSTEM OF JUSTICE.
19 AGAIN, IT STRUCK ME THAT THE BIGGEST DISAPPOINTMENT FOR
20 MR. DULL, WHEN THE EVENTS THAT HAPPENED OCCURRED IN THIS CASE, WAS
21 HIS PROFOUND DISAPPOINTMENT IN OUR JUSTICE SYSTEM. I'M SURE I
22 SPEAK FOR HIM AS FOR ALL OF US THAT YOUR RULING TODAY DOES RESTORE
23 THAT FAITH, AND WE'RE VERY GRATEFUL FOR IT, YOUR HONOR.
24 AS THE COURT IS WELL AWARE, WE HAVE A PROPOSED ORDER
25 THAT WHENEVER YOU FEEL IT APPROPRIATE TO TAKE UP, WE CAN, BUT I

Page 5208
1 REALIZE TODAY IS NOT THE TIME.
2 THANK YOU, YOUR HONOR.
3 THE COURT: VERY WELL.
4 I SINCERELY APPRECIATE ALL THE COMPLIMENTS THAT COUNSEL
5 HAVE GIVEN, ESPECIALLY THEY'RE FROM THE TITANS IN THE LEGAL
6 PROFESSION. SO THEY MEAN A LOT TO ME. BUT IT'S REALLY IMPORTANT
7 I THINK, TO ME, THAT YOU AND MR. RUEHLE, DR. NICHOLAS, MR. DULL,
8 AND DR. SAMUELI REALIZE, I DON'T NEED TO BE COMPLIMENTED. THE
9 WISDOM, THE BRILLIANCE WAS IN THE FRAMERS OF OUR CONSTITUTION.
10 I'M JUST DOING MY JOB.
11 MR. ADKINS, IS THERE ANYTHING THE GOVERNMENT WOULD LIKE
12 TO SAY? MR. CARDONA?
13 MR. CARDONA: YOUR HONOR, VERY BRIEFLY. FIRST, AS YOU
14 KNOW, THIS IS THE FIRST TIME I HAVE BEEN DOWN HERE IN THIS CASE.
15 I APOLOGIZE FOR NOT HAVING BEEN OVER HERE THE LAST TWO WEEKS WHEN
16 THESE EVENTS WERE GOING DOWN. I WOULD HAVE HOPED I COULD HAVE
17 SAID SOMETHING THAT MIGHT HAVE CONVINCED THE COURT TO RULE
18 DIFFERENTLY THAN IT DID TODAY.
19 I DON'T KNOW IF YOU WERE TOLD, BUT I WAS OUT OF, FIRST
20 THE STATE AND OUT OF THE COUNTRY SO COULD NOT BE HERE.
21 THE COURT: I WAS.
22 MR. ADKINS: WITH THAT, YOUR HONOR, OBVIOUSLY WE HAVE
23 HEARD YOUR DECISION. RESPECTFULLY, WE DISAGREE WITH IT. I DON'T
24 THINK THAT WILL COME AS A SURPRISE TO YOU. WE HAVE SUBMITTED OUR
25 PAPERS. WE BELIEVE WE HAVE SET FORTH OUR POSITION IN OUR PAPERS

Page 5209
1 AND THE OTHER PLEADINGS. AND I DON'T BELIEVE THERE IS ANY POINT
2 IN SAYING ANYTHING FURTHER HERE. YOU UNDERSTAND OUR POSITIONS. I
3 UNDERSTAND YOU DISAGREE WITH THEM. I HOPE YOU UNDERSTAND WE
4 DISAGREE WITH YOUR RULING AND WE WILL NEED TO DECIDE WHAT WE DO
5 NEXT. THANK YOU.
6 THE COURT: AND I APPRECIATE THAT, SIR.
7 ALL RIGHT. I DON'T THINK ANYTHING NEEDS TO BE SAID
8 FURTHER OTHER THAN, MR. RUEHLE, YOU ARE A FREE MAN.
9 THE DEFENDANT: THANK YOU, YOUR HONOR.
10 (WHEREUPON THE PROCEEDINGS WERE ADJOURNED AT 9:33.)
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Page 5210
1
2 -OOO-
4 CERTIFICATE
6 I HEREBY CERTIFY THAT PURSUANT TO SECTION 753, TITLE 28,
7 UNITED STATES CODE, THE FOREGOING IS A TRUE AND CORRECT TRANSCRIPT
8 OF THE STENOGRAPHICALLY REPORTED PROCEEDINGS HELD IN THE
9 ABOVE-ENTITLED MATTER.
10
11 DATE: DECEMBER 15, 2009
12
13
__________________________________
14 MARIA DELLANEVE, U.S. COURT REPORTER
CSR NO. 9132
15
16
17
18
19
20
21
22
23
24
25

EXHIBIT W
EXHIBIT X
Holman Jenkins: Rethinking the Corporate Crime Spree - WSJ.com Page 1 of 2
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OPINION: BUSINESS WORLD AUGUST 18, 2009, 6:56 P.M. ET
Rethinking the Corporate Crime Spree

The ethics of the plaintiffs' bar infects prosecutors.
By HOLMAN W. JENKINS, JR.
One of the pleasures of government is the opportunity occasionally to do justice. Team Obama has two such
opportunities before it.
Yesterday, a federal appeals court overturned the landmark backdating conviction of former Brocade CEO Greg Reyes o
grounds of prosecutorial misconduct. His case has been remanded for retrial, but this was a Bush-era prosecution and
the Obama Justice Department should feel no pride of authorship for a case about which it's impossible to feel much
pride. Mr. Reyes should be allowed to go in peace.
In court, the government insisted over and over that Mr. Reyes had misled his own finance department about the use o
"lookbacks" to grant employees "in the money" options without having to expense them (a senseless accounting rule at
the time). Never mind that this story flew in the face of the publicly known facts or that the government's sole witness, a
junior finance department official, later recanted, saying she had been bullied by prosecutors. Hilariously, even as Justi
argued in one courtroom that Brocade's finance department had been kept "in the dark" about backdating, the SEC was
simultaneously impaling two former heads of Brocade's finance department for aiding, abetting and benefiting from
backdating.
In a final indignity, after Mr. Reyes's conviction, the government admitted it knew its central contention was false, than
to numerous, immunized statements from finance department officials. As Justice official Amber Rosen told the appeal
panel in oral argument this past May: "Defendants aren't entitled to a perfect trial. . . . Misstatements happen."
We won't belabor the media's own role in making a mountain out of this particular molehill. Hundreds of executives an
companies have been implicated in backdating, but Mr. Reyes was singled out for criminal prosecution on the grounds
he'd concealed the practice from his own staff. In fact, all the evidence shows backdating was a routine, accepted, mostl
uncontroversial practice at Brocade and dozens of other Silicon Valley companies whose CEOs have not been subjected
criminal prosecution.
The second opportunity for Team Obama to render an act of justice concerns the cases of two former Merrill bankers,
Daniel Bayly and Robert Furst, who just learned the government will try them again in February, in what amounts to
mindless harassment after their previous convictions were thrown out. A miasma of prosecutorial misbehavior hangs
over this case too.
The Merrill bankers were charged in their original trial with participating in a "sham" transaction by which Merrill
bought some barge-mounted power plants from Enron in Nigeria in 1999. Allegedly, no risk was transferred because, in
phone call, Enron CFO Andy Fastow had promised to protect Merrill from loss and guaranteed a reasonable return. In
Holman Jenkins: Rethinking the Corporate Crime Spree - WSJ.com Page 2 of 2
essence, if so, the sale was a disguised loan to Enron.
However, the government's case on this vital point consisted of hearsay from Enron employees and emails between
people who weren't party to the phone call. Kept from the defense, it later emerged, were FBI notes with Mr. Fastow in
which he explicitly denied making such a promise. As Mr. Fastow explained it, he only later fibbed to Enron colleagues
about such a promise in order to "light a fire" under them to find a permanent owner of the barges.
All this may still sound fishy, but fishy is not the same as illegal. The $12 million profit generated by the sale was not
material to Enron's books, despite the government's claim to the contrary. At the time, Enron was a squabbling, chaotic
company torn between Jeff Skilling, who favored an "asset-light" trading model, and Rebecca Mark, who ran its
international operations and favored what proved to be disastrous investments in fixed infrastructure, such as the barges
and a related Nigerian power plant, commitments that Mr. Skilling promptly began dumping after Ms. Mark left in 2000.
Why it was so urgent that someone, anyone be found in 1999 to take the barges off Enron's hands may be hard, after the
fact, to fathom. But then hard to fathom after the fact are the company's internal dynamics and how it might have served
Mr. Skilling's purpose in moving Enron in a new direction.
In any case, if sin there was, it was on Enron's part, not the Merrill bankers, even more so given evidence of prosecutorial
misconduct in withholding the Fastow notes.
From day one, both these cases were dubious attempts to make crimes out of business judgments and misjudgments in
the heat of battle. The ethical culture of the plaintiffs' bar is clearly infiltrating the prosecutor's sanctum. Facts were
deliberately distorted to make criminals out of everyday citizens. Nor are these episodes mere ancient history. Similar
temptations will surely arise from the subprime meltdown. Let's hope Team Obama draws the right lessons.
***
Correction: Ford Motor Co. says I misinterpreted a footnote in its 10-K as meaning that, in the event of bankruptcy, for
every 50 cents that goes collectively to the common shareholders, holders of the Ford family shares are entitled to $1.
Ford says the rule, as fully spelled out in its Certificate of Incorporation, actually means each family share would collect
$1 only after each common share collects 50 cents. I defer to Ford's reading.
Copyright 2009 Dow Jones & Company, Inc. All Rights Reserved
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EXHIBIT Y
EXHIBIT Z

FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :

:
:
v. : Criminal Action No.: 08-0360 (RMU)
:
PAUL A. SLOUGH et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING THE DEFENDANTS’ MOTION TO DISMISS THE INDICTMENT;

DENYING AS MOOT THE GOVERNMENT’S MOTION TO DISMISS THE INDICTMENT
AGAINST DEFENDANT SLATTEN WITHOUT PREJUDICE
[T]he basic purposes that lie behind the privilege against self-incrimination do not relate
to protecting the innocent from conviction, but rather to preserving the integrity of a
judicial system in which even the guilty are not to be convicted unless the prosecution
1
shoulder the entire load.
I. INTRODUCTION
The defendants have been charged with voluntary manslaughter and firearms violations
arising out of a shooting that occurred in Baghdad, Iraq on September 16, 2007. They contend
that in the course of this prosecution, the government violated their constitutional rights by
utilizing statements they made to Department of State investigators, which were compelled under
a threat of job loss. The government has acknowledged that many of these statements qualify as
compelled statements under Garrity v. New Jersey, 385 U.S. 493 (1967), which held that the
Fifth Amendment privilege against self-incrimination bars the government from using statements
compelled under a threat of job loss in a subsequent criminal prosecution. The Fifth Amendment
automatically confers use and derivative use immunity on statements compelled under Garrity;
this means that in seeking an indictment from a grand jury or a conviction at trial, the
1
Tehan v. U.S. ex rel. Shott, 382 U.S. 406, 415 (1966).
government is prohibited from using such compelled statements or any evidence obtained as a
result of those statements.
The government has also acknowledged that its investigators, prosecutors and key
witnesses were exposed to (and, indeed, aggressively sought out) many of the statements given
by the defendants to State Department investigators. Under the binding precedent of the
Supreme Court in Kastigar v. United States, 406 U.S. 441 (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 it
made no use whatsoever of these immunized statements or that any such use was harmless
beyond any reasonable doubt.
Beginning on October 14, 2009, this court convened a Kastigar hearing to explore
whether the government had made any use of compelled statements during its prosecution of the
defendants. During this hearing, which spanned three weeks, the parties presented testimony
from twenty-five witnesses, including the government’s entire prosecution team, the lead FBI
agents in charge of the investigation and all five defendants. The parties offered hundreds of
exhibits into evidence and submitted voluminous pre- and post-hearing memoranda.
From this extensive presentation of evidence and argument, the following conclusions
ineluctably emerge. In their zeal to bring charges against the defendants in this case, the
prosecutors and investigators aggressively sought out statements the defendants had been
compelled to make to government investigators in the immediate aftermath of the shooting and
in the subsequent investigation. In so doing, the government’s trial team repeatedly disregarded
the warnings of experienced, senior prosecutors, assigned to the case specifically to advise the
trial team on Garrity and Kastigar issues, that this course of action threatened the viability of the
prosecution. The government used the defendants’ compelled statements to guide its charging
2
decisions, to formulate its theory of the case, to develop investigatory leads and, ultimately, to
obtain the indictment in this case. The government’s key witnesses immersed themselves in the
defendants’ compelled statements, and the evidence adduced at the Kastigar hearing plainly
demonstrated that these compelled statements shaped portions of the witnesses’ testimony to the
indicting grand jury.2 The explanations offered by the prosecutors and investigators in an
attempt to justify their actions and persuade the court that they did not use the defendants’
compelled testimony were all too often contradictory, unbelievable and lacking in credibility.
In short, the government has utterly failed to prove that it made no impermissible use of
the defendants’ statements or that such use was harmless beyond a reasonable doubt.
Accordingly, the court must dismiss the indictment against all of the defendants.
II. BACKGROUND
A. Factual Background
1. The Nisur Square Incident
The defendants – Paul Slough, Evan Liberty, Dustin Heard, Donald Ball and Nicholas
Slatten – were security guards employed by Blackwater Worldwide (“Blackwater”), a private
company that provided security services to U.S. government employees operating in Iraq.
Govt’s Pre-Hr’g Mem. at 2. On September 16, 2007, the defendants were part of a Blackwater
Tactical Support Team answering to the call sign “Raven 23,” whose function was to provide
back-up fire support for other Blackwater personal security details operating in Baghdad. Id.
2
In fact, the government has conceded that key testimony used to indict defendant Nicholas Slatten
resulted from the exposure of grand jury witnesses to his compelled statements, and has moved
for leave to dismiss the indictment against that defendant. See generally Govt’s Mot. for Leave to
Dismiss Indictment Without Prejudice Against Def. Slatten.
3
The Raven 23 convoy consisted of four vehicles. Govt’s Ex. 2.3 Defendant Ball
functioned as the rear turret gunner on the lead vehicle. Id. Defendants Liberty, Slough and
Slatten were positioned in the third vehicle as the driver, turret gunner and designated defensive
marksman (or sniper) respectively. Id. Defendant Heard was the rear turret gunner in the fourth
vehicle. Id. Jeremy Ridgeway, who pleaded guilty to charges stemming from the incident and
has been cooperating with the government, functioned as the lead turret gunner in the fourth
vehicle. Id. The defendants were armed with machine guns, grenade launchers, rifles and
pistols. Govt’s Post-Hr’g Mem. (“Govt’s Mem.”) at 2.
Shortly before noon on September 16, 2007, Raven 23 received a message that a vehicle-
borne improvised explosive device (“VBIED”) had detonated in the vicinity of a compound in
which U.S. officials were meeting with Iraqi officials. Defs.’ Mot. for an Evidentiary Hr’g
Under Garrity and Kastigar at 4. The Raven 23 convoy subsequently took up positions in Nisur
Square, a traffic circle located just outside the International Zone in downtown Baghdad, to
secure an evacuation route for the American officials and the Blackwater team providing their
security. Id. Soon after the Raven 23 vehicles entered the traffic circle, a shooting incident
erupted, during which the defendants allegedly shot and killed fourteen persons and wounded
twenty others. Govt’s Mem. at 2. The government contends that the dead and wounded were
unarmed civilians who were the victims of unprovoked violence by the defendants. The
defendants maintain that they came under attack by insurgents and that their actions constituted a
legitimate response to a mortal threat.
The paroxysm of violence that occurred on September 16, 2007 in Nisur Square triggered
immediate responses that would have far-reaching consequences. As discussed below, the State
3
Citations to “Govt’s Ex. ___” refer to the exhibits introduced by the government during the
Kastigar hearing.
4
Department, the U.S. military and Iraqi forces commenced immediate inquiries into the shooting.
Media began investigating the incident, interviewing eyewitnesses and probing sources in the
U.S. government. And ultimately, the decision was made to commence a criminal prosecution
against the defendants in this case.
2. The Defendants’ September 16, 2007 Statements to State Department Investigators
Hours after the shooting, the Department of State’s Diplomatic Security Service (“DSS”)
directed all the members of the Raven 23 convoy to submit to interviews at the State Department
offices in Baghdad, which are referred to by U.S. personnel as “the Palace.” Hr’g Tr., Oct. 14,
2009 p.m. at 20; 4 Hr’g Tr., Oct. 19, 2009 a.m. at 99-100; Defs.’ Post-Hr’g Mem. (“Defs.’
Mem.”) at 5; Govt’s Mem. at 3. DSS Special Agent Theodore Carpenter oversaw these
interviews, see Govt’s Mem. at 5, which were conducted by DSS Special Agents Michael
Scollan, Lisa Lopez, Mario Reta and David Motley, see Defs.’ Mem. at 6-7.
The September 16, 2007 interviews delved into the particulars of the Nisur Square
shooting. The defendants and the other members of the Raven 23 convoy provided the
interviewing DSS agents with detailed accounts of the actions they purportedly took at Nisur
Square. From these accounts, the DSS agents subsequently prepared two “Memorandum
Reports of Interviews” that memorialized these oral statements. See generally Defs.’ Reta Ex. 35
(Mem. Report of Interview, Sept. 16, 2007); Defs.’ Lopez Ex. 3 (Mem. Report of Interview,
Sept. 16, 2007).
4
Citations to the record of the Kastigar hearing will be indicated by specifying the date of the
hearing session and whether the session took place in the morning or afternoon.
5
With the court’s permission, the defendants organized and labeled their exhibits by witness rather
than proceeding sequentially. Citations to “Defs.’ [witness] Ex. ___” refer to the exhibits
introduced by the defendants during the Kastigar hearing.
5
During the September 16, 2007 interviews, four of the five defendants acknowledged that
they had fired their weapons at Nisur Square. Defendant Slough, the turret gunner in the third
vehicle in the convoy, reportedly stated to DSS agents that
[a] white vehicle approached the team at a high rate of speed and would not stop
despite his hand signals and throwing a water bottle. Other civilians tried to wave
the vehicle down, but it still would not stop. [Slough] engaged and hit the driver.
An Iraqi Policeman, wearing [a] blue button down shirt and black pants, began to
push the vehicle towards [the] team. [Slough] engaged [the] vehicle a second
time and [the] Iraqi Policeman ran away. [Slough] then witnessed muzzle flashes
from a shack, returned fire, and hit the individual.
Defs.’ Lopez Ex. 3 at 1.
Defendant Slatten, also stationed in the third vehicle, reportedly told the DSS agents that
the Raven 23 convoy began “receiving small arms fire from the left side of their vehicles by two
individuals in the tree line. [Slatten] returned fire with two rounds hitting one of the
individuals.” Id. Defendant Heard, positioned in the rear vehicle, stated that he “fired on the
white vehicle that refused to stop with approximately one full magazine from [his] M-4. He then
saw muzzle flashes from an individual several meters behind [the] white vehicle and engaged
[that individual] with five to ten rounds from [his] M-4. He continued to receive fire from the
individual and responded with one round from his 203.”6 Id. Defendant Ball acknowledged to
DSS Agents Scollan and Reta that he fired two rounds into the driver’s door of the white vehicle
engaged by Slough and Heard. Defs.’ Reta Ex. 3 at 2.
Defendant Liberty did not acknowledge firing his weapon during his September 16, 2007
interview. See id. at 3-4. He did, however, disclose that the convoy “started receiving small
arms fire from the six o’clock position,” that he “saw two to three Iraqi Police officers with AK-
47s shooting at Raven 23 members,” and that he “saw one Iraqi Police combatant neutralized at
6
“203” refers to the M203 grenade launcher, which, according to U.S. Army Colonel David
Boslego, fires a high explosive grenade approximately 350 meters with a lethal radius of
approximately five meters. Hr’g Tr., Oct. 23, 2009 p.m. at 29.
6
the guard shack, approximately 25 meters away, and a second neutralized in the south-east
corner of the traffic circle.” Id. He specified that “most of the hostile activity toward Raven-23
. . . came from his 7 to 9 o’clock position.” Id.
3. The Hunter Memorandum
The September 16, 2007 interviews appear to have been conducted in connection with the
reporting procedures set forth in a State Department memorandum authored by Regional
Security Officer Mark Hunter and titled “WPPS[7] On-Duty Discharge of Firearm Reporting
Procedures” (“the Hunter Memorandum”). See Govt’s Ex. 32 at 1-2; Govt’s Mem. at 4. The
Hunter Memorandum required all Blackwater personnel involved in a shooting incident to report
immediately to the Regional Security Office Tactical Operations Center for a debriefing by State
Department officials. Govt’s Ex. 32 at 1. After the debriefing, any employee who discharged
his weapon was to be given a form, a template for which was attached to the Hunter
Memorandum, on which to prepare a written statement. Id. The form, which bore the heading
“Sworn Statement,” provided as follows:
I, _____________, hereby make the following statement at the request of

_____________, who has been identified to me as a Special Agent of the U.S.
Department of State, Diplomatic Security Service. I understand that this
statement is made in furtherance of an official administrative inquiry regarding
potential misconduct or improper performance of official duties and that
disciplinary action, including dismissal from the Department’s Worldwide
Personnel Protective Services contract, may be undertaken if I refuse to provide
this statement or fail to do so fully and truthfully. I further understand that
neither my statements nor any information or evidence gained by reason of my
statements can be used against me in a criminal proceeding, except that if I
knowingly and willfully provide false statements or information, I may be
criminally prosecuted for that action under 18 United States Code, Section 1001.
Id. at 3 (emphasis added). This admonishment – that an employee must make a statement or face
termination but that any statement so made cannot be used in a subsequent criminal prosecution
7
The term “WPPS” stands for “Worldwide Personnel Protective Services,” and refers to the
contract for protective services between Blackwater and the Department of State.
7
– is commonly referred to as a “Garrity warning” or “Kalkines warning.” See Garrity, 385 U.S.
at 500; Kalkines v. United States, 473 F.2d 1391, 1393 (Ct. Cl. 1973) (holding that prosecutors
may not use statements compelled under a threat of removal from office or use any information
derived from those statements). Prior to the Nisur Square shooting, all of the defendants had
been involved in previous shooting incidents, after which they had been required to provide a
sworn written statement on the form described above. See Hr’g Tr., Oct. 27, 2009 a.m. at 10-11;
Hr’g Tr., Nov. 3, 2009 p.m. at 49-50, 82-83, 117, 136-37.
4. The Defendants’ September 18, 2007 Written Statements and

the State Department’s Continuing Investigation
On September 18, 2007, the defendants and their fellow Raven 23 team members
submitted written statements regarding their actions at Nisur Square to the State Department on
the Hunter Memorandum form.8 Defs.’ Hulser Ex. 17 at 3 (Letter from Prosecutor Joseph Kaster
to Defense Counsel, June 30, 2009) (“Govt’s June 30, 2009 Letter”). The defendants’ September
18 written statements expanded on the oral statements they gave to DSS investigators on
September 16. See generally Slough Stmt. (Sept. 18, 2007); Slatten Stmt. (Sept. 18, 2007); Ball
Stmt. (Sept. 18, 2007); Heard Stmt. (Sept. 18, 2007); Liberty Stmt. (Sept. 18, 2007); see also
Defs.’ Farrington Ex. 4.
On September 18, 2007, at the Iraqi National Police (“INP”) Headquarters, DSS
investigators also interviewed fourteen Iraqi nationals who claimed to have witnessed the Nisur
Square incident. Defs.’ Carpenter Ex. 8. The interviewees were identified by the INP and many
were INP officers or traffic policemen posted at Nisur Square at the time of the incident. Id. In a
memorandum summarizing these interviews, Agent Carpenter stated that “[s]ome of the
8
As discussed below, the government has conceded that the written statements submitted by the
defendants on September 18, 2007, and all subsequent oral statements given to DSS agents,
constitute compelled statements under Garrity v. New Jersey, 385 U.S. 493 (1967). See infra Part
III.B.1; see also Govt’s Mem. at 17.
8
questions asked of these witnesses may have been formed as a result of information provided by
[Raven] 23, but was limited due to not wanting to divulge what we had been told by [Raven] 23
and to just get the witnesses’ observations of the incident.” Id.
Over the following days, defendants Slough, Slatten, Ball and Heard submitted to
additional questioning by DSS agents regarding their actions at Nisur Square. See Defs.’
Carpenter Ex. 9; Defs.’ Lopez Ex. 5; Govt’s Mem. at 6. On September 20, 2007, several DSS
investigators, including Agent Carpenter, interviewed these four defendants in an effort to focus
on “the specific details” of the Nisur Square incident in light of the sworn statements submitted
two days earlier. See Defs.’ Carpenter Ex. 9. Later that day, DSS investigators conducted an
incident scene investigation at the Nisur Square traffic circle. Defs.’ Carpenter Ex. 8. DSS
investigators took photographs, interviewed additional witness and collected physical evidence
for analysis. Id.
On September 23, 2007, Agents Carpenter and Scollan re-interviewed Slough “to clarify
details relating to the threat types and locations engaged by Slough, weapons used to engage the
threats, and the number of rounds fired at each threat.” See Defs.’ Scollan Ex. 4 (Mem. Report
of Interview, Sept. 23, 2007) at 1. The interview report states that at the outset of the interview,
“Carpenter admonished Slough of the Kalkine warning concerning the administrative nature of
the investigation, and reminded him, that should he provide a false statement, he could be
criminally prosecuted for giving the false statement.” Id. During this interview, Slough
acknowledged for the first time that he had fired an M203 grenade at the white sedan. Id. at 2.
On September 24, 2007, DSS agents conducted additional re-interviews of Slough, Heard
and Ball to specifically address the number of grenades fired during the Nisur Square incident.
See Defs.’ Scollan Ex. 5. During these interviews, the defendants were shown photographs of
9
the scene as well as aerial photographs of the traffic circle and were asked to specify the
directions in which they had fired their weapons and the locations of the threats they had
allegedly seen. Id.
5. Dissemination of the Defendants’ Statements Made to DSS Investigators
Because of the nature of use immunity, Garrity statements may present thorny legal
issues, even when the statement, itself, has not been introduced at trial or even seen by
the prosecution team. This is true because an internal investigator, or other person
having access to the Garrity statement, may reveal its contents to a federal investigator,
prosecution witness, or the media – sometimes without revealing its source. When this
9
happens, it is possible that the testimony of other witnesses may become contaminated.
Media reports regarding the Nisur Square shooting began to appear almost immediately
after the incident. Several of these early reports included statements from State Department
officials asserting that Raven 23 had been engaged in a firefight at Nisur Square and that its
actions were taken to neutralize various insurgent threats. See, e.g., Defs.’ Media Exs. 22, 23,
24, 25.10 Some of these articles made specific reference to the fact that some Raven 23 team
members claimed that they had received incoming fire. See Defs.’ Media Ex. 28.
In the following days, the defendants’ September 18 written statements, which the
government has conceded were compelled under Garrity, were leaked to the media and
disseminated globally in news reports. See, e.g., Defs.’ Media Exs. 2, 6, 7. The earliest of these
reports was a September 28, 2007 article in which ABC News reported that it had obtained
“sworn statements given to State Department investigators” in which Blackwater personnel
described the events that had occurred at Nisur Square. Defs.’ Media Ex. 2. The report quoted
from the defendants’ September 18 written statements. Id. Later, the Washington Post
9
Govt’s Ex. 308 at DOJ_005791 (excerpt from DOJ Criminal Civil Rights manual).
10
The defendants introduced into evidence a collection of newspaper articles and other media
accounts regarding the Nisur Square incident. Citations to “Defs.’ Media Ex. ___” refer to these
documents.
10
published an article contrasting the accounts of the four Raven 23 team members with those of
Iraqi eyewitnesses. Defs.’ Media Ex. 13. On November 14, 2007, ABC News posted Slough’s
September 18 written statement, in its entirety, on its website. Defs.’ Media Ex. 7. Ultimately,
portions of the defendants’ September 18 statements appeared in reports by ABC News
(including in a nationally broadcast television segment), MSNBC/Newsweek, the Washington
Post, the New York Times and Time/CNN, among other sources. See Defs.’ Media Exs. 2, 6, 7,
13, 14, 23.
Press accounts regarding the Nisur Square incident pervaded the national news in both
Iraq and the United States for two weeks. Through these reports, Adam Frost, Matthew Murphy
and Mark Mealy – members of the Raven 23 convoy and key witnesses for the prosecution –
were repeatedly exposed to the defendants’ September 18 written statements. Frost and Murphy
both acknowledged reading the September 18 statements of Slatten and Slough, Hr’g Tr., Oct.
21, 2009 p.m. at 25-26; Hr’g Tr., Oct. 14, 2009 p.m. at 6, and seeing countless news articles
regarding the incident through their “Google News” alerts, many of which referenced and quoted
the defendants’ sworn statements, Hr’g Tr., Oct. 21, 2009 p.m. at 26-27; Hr’g Tr., Oct. 14, 2009
p.m. at 27. Likewise, Mealy acknowledged that he may have read the sworn written statements
of other Raven 23 team members. Hr’g Tr., Oct. 19, 2009 a.m. at 54.
6. The Investigations by Iraqi Forces, the U.S. Military and the Prosecution
Immediately after the Raven 23 convoy left Nisur Square on September 16, 2007, INP
officers entered the traffic circle and commenced an investigation. Govt’s Mem. at 7. These
officers began collecting physical evidence, including shell casings and spent ammunition
magazines, one of which had the name “Liberty” written on it. Id. In addition, Iraqi police
interviewed victims and eyewitnesses, including fellow INP officers. Id.
11
Within thirty minutes of the shootings, U.S. Army Colonel David Boslego, who had been
responsible for training the INP and was present at INP Headquarters, also arrived at the Nisur
Square traffic circle. Id. Colonel Boslego examined the scene for evidence of an insurgent
attack. Id. Although he found no evidence of insurgent activity, he discovered numerous
American shell casings, a spent M203 grenade cartridge and two spent magazines bearing the
name “Liberty.” Id. at 7-8.
Another high-ranking American officer, Colonel Michael Tarsa, arrived to inspect the
scene within an hour after the incident. Id. at 8. Colonel Tarsa was the battalion commander
responsible for operations in the area of Baghdad that included Nisur Square. Hr’g Tr., Oct. 21,
2009 a.m. at 13-14. Like Colonel Boslego, Colonel Tarsa observed numerous shell casings but
found no evidence of an insurgent attack. Id. at 25-26.
In early October 2007, FBI investigators arrived in Baghdad to investigate the Nisur
Square shooting. Govt’s Ex. 207. Over the next several weeks, FBI investigators interviewed
over seventy-five Iraqi witnesses and victims identified by the INP. Govt’s Mem. at 7. The FBI
also conducted dozens of interviews of Blackwater personnel, U.S. military police and INP
officers. Hr’g Tr., Oct. 21, 2009 p.m. 102-03. FBI investigators collected physical evidence
from the scene, such as shell casings, bullet fragments and weapons, and examined the vehicles
allegedly fired on by the defendants, the Raven 23 vehicles and the defendants’ weapons. Govt’s
Mem. at 9.
Among the Blackwater personnel interviewed were members of the Raven 23 convoy
still present in Iraq. Hr’g Tr., Oct. 21, 2009 p.m. at 103-04. Three of the individuals interviewed
– Adam Frost, Matt Murphy and Mark Mealy – had raised concerns about the events at Nisur
Square with their Blackwater supervisors in the immediate aftermath of the shooting. Hr’g Tr.,
12
Oct. 14, 2009 a.m. at 34-35. All three expressed a willingness to cooperate with the
government’s investigation. Hr’g Tr., Oct. 21, 2009 p.m. at 114; Hr’g Tr., Oct. 19, 2009 a.m. at
26; Govt’s Ex. 207 at 11.
7. Hulser’s Cautionary Intervention
A defendant’s rights under Garrity are protected, in part, by self-policing by government

prosecutors. This happens, in large measure, by prosecutors having potential Garrity
materials reviewed and redacted by persons who are not part of the prosecution team.11
On September 26, 2007, representatives of the FBI and the Department of Justice
(“DOJ”) Criminal Division met with State Department representatives to discuss the preliminary
findings of the DSS investigation into the Nisur Square shooting. Defs.’ Mot. for Evidentiary
Hr’g Under Kastigar and Garrity, Ex. 23 (Letter from Prosecutor Joseph Kaster to Defense
Counsel, May 29, 2009) (“Govt’s May 29, 2009 Letter”) at 2. At that meeting, State Department
representatives distributed copies of a DSS report that summarized the State Department’s initial
findings, including information gained from the oral and written statements provided by the
defendants to DSS investigators. Id.
On September 28, 2007, the State Department’s Office of Legal Counsel contacted the
DOJ’s Criminal Division and expressed concern that some of the information used to prepare the
DSS report may have been based on compelled statements made by Blackwater personnel. Id.
In light of these concerns, the government assigned to the case a team of prosecutors and
investigators who had not participated in the September 26, 2007 meeting and had not been
exposed to the information discussed at that meeting. Id. The government barred the DOJ
Criminal Division from further involvement in the case and assigned prosecutors in the
Counterterrorism Section of the National Security Division (and later the United States
Attorney’s Office for the District of Columbia) to investigate the Nisur Square shooting. Id.;
11
Govt’s Ex. 308 at DOJ_005797 (excerpt from DOJ Criminal Civil Rights manual).
13
Hr’g Tr., Oct. 22, 2009 p.m. at 78. Assistant United States Attorney Kenneth Kohl was assigned
to lead the new trial team, to be assisted by Department of Justice trial attorney Stephen
Ponticello.12 Defs.’ Mem. at 26. FBI Special Agent John Patarini was assigned as the team
leader and case agent for the investigative team. Hr’g Tr., Oct. 21, 2009 p.m. at 63-64.
In early October 2007, Raymond Hulser, a Deputy Chief in the Public Integrity Section
of the Criminal Division, was assigned as the “taint attorney” for the Nisur Square investigation.
Govt’s May 29, 2009 Letter at 3. He was selected for that role because of his experience with
Garrity and Kastigar issues. Hr’g Tr., Oct. 23, 2009 a.m. at 17-18. As head of the “taint team,”
Hulser was charged with “prevent[ing] the prosecutors and investigators who were to handle the
investigation from being exposed to potentially compelled statements or information derived
from such statements” by pre-screening information obtained from sources including the State
Department, Blackwater and the media, prior to the disclosure of such information to the trial
team. Govt’s May 29, 2009 Letter at 3. In addition, in October 2007, Hulser and Jesse Tampio,
a State Department attorney, drafted a written protocol to govern the use of information derived
from DSS personnel in the course of the investigation. Id.; see Defs.’ Hulser Ex. 2. The
protocol was designed to prevent the FBI investigative team operating in Baghdad from exposure
to information derived from any potentially compelled statements obtained by DSS investigators.
Govt’s Mem. at 6; Defs.’ Hulser Ex. 2.
12
Assistant United States Attorney Jonathan Malis joined the team in the summer of 2008. Defs.’
Mem. at 26.
14
8. Failure of the Government’s Taint Procedures
Unless the government relies solely upon evidence obtained prior to the immunized
testimony, the principles of Kastigar generally require (as a practical matter) a showing
that prosecuting officials and their agents were aware of the immunity problem and
followed reliable procedures for segregating the immunized testimony and its fruits from
officials pursuing any subsequent investigations.13
By all accounts, these prophylactic measures fell well short of expectations, particularly
with respect to the defendants’ September 16, 2007 oral statements to DSS investigators.
Throughout the investigation, Hulser repeatedly advised the trial team not to obtain or rely on
any information derived from the defendants’ September 16 oral interview statements. For
instance, on November 29, 2007, Hulser wrote an e-mail to Michael Mullaney, a Section Chief
within the DOJ’s National Security Division,14 in which he stated that “[w]hile no Kalkines
warning was given before [the September 16, 2007] interviews, I believe that we should treat all
of their statements to the [DSS agents] as compelled given the practice of routinely giving the
Kalkines warning to the participants in a shooting.” Defs.’ Kohl Ex. 10. Mullaney forwarded
Hulser’s e-mail to Kohl, who responded, “Got it. Thanks Mike.”15 Id.
On December 10, 2007, Hulser wrote to Mullaney expressing concern about the trial
team’s intention to interview Agent Carpenter and other DSS agents who had interviewed the
defendants and participated in the Nisur Square investigation. See Govt’s Ex. 57 at 1. As Hulser
explained, “[g]iven that they took, reviewed and/or wrote a report based on compelled
13
United States v. Hampton, 775 F.2d 1479, 1490 (11th Cir. 1985).
14
At the outset of the investigation, Mullaney served as a liaison between the taint team and the trial
team, and all communications between Hulser and Kohl were transmitted through Mullaney.
Hr’g Tr., Oct. 23, 2009 a.m. at 99-100; Govt’s Mem. at 13.
15
Kohl testified that although he responded to Mullaney’s forward, he did not, in fact, read Hulser’s
e-mail advising the trial team not to use the September 16 oral statements. Hr’g Tr., Oct. 28,
2009 p.m. at 122-23. This was the second e-mail from Hulser containing similar advice that Kohl
received in one week, see Defs.’ Kohl Ex. 9; he also claimed not to have read the prior e-mail
because he was too busy, Hr’g Tr., Oct. 28, 2009 p.m. at 122-23.
15
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. (emphasis added).
On January 15, 2008, Hulser again wrote to Mullaney, advising him that he viewed “any
statements taken after the 9/16 incident whether they occurred before or after the sworn, written
statements” as potentially compelled. Defs.’ Hulser Ex. 10. Hulser reasoned that “[g]iven the
routine practice of getting compelled written statements following shooting incidents, and given
that the Team 23 members had themselves provided compelled statements following prior
incidents, the Team 23 members may claim that they thought all of their post-shooting
statements and interviews were compelled, regardless of the form in which they were taken or
the order in which they provided them.” Id. Hulser then reiterated that
the FBI needs to understand that in interviewing Ted Carpenter, who was
involved in the initial investigation and who is thoroughly tainted, there is a
substantial risk that the FBI will be tainted. It is not only Ted’s written interview
reports and notes that contain tainted materials; rather, his thought processes, the
focus of his investigation, what he looked at and when – these may all have been
influenced by compelled statements. We’ve got an uphill battle on this Garrity
issue, and the burden of proof is ours, so we need to be particularly cautious.
Id. (emphasis added).
Likewise, on February 4, 2008, Hulser wrote an e-mail to Mullaney stating that he
believed “any statement given by the 9/16 participants following the incident, whether in the
form of interviews, after-action-reports, or written statements with Kalkines warnings should be
treated as compelled because of the pervasive practice of compelling them to give statements
after every incident.” Defs.’ Hulser Ex. 6. In a separate e-mail also sent on February 4, 2008,
Hulser advised Mullaney that he did not plan to provide the trial team with any reports of Agent
Lopez’s interviews of the defendants “or any summary or spot reports, as those materials may
contain information from compelled (or arguably compelled) statements of the individuals who
16
remain subjects” of the investigation.16 Defs.’ Kohl Ex. 16.
In direct contravention of Hulser’s unequivocal warnings, in January and February 2008,
the government’s trial team interviewed all of the DSS agents who had conducted the September
16, 2007 interviews and specifically inquired about the details of the defendants’ statements
during those interviews. Defs.’ Mem. at 28; Govt’s Mem. at 13-14. For instance, on January 11,
2008, the trial team interviewed Agent Carpenter, whom Hulser had specifically described as
“thoroughly tainted,” Defs.’ Hulser Ex. 10, and obtained information regarding the defendants’
statements to DSS investigators, Hr’g Tr., Oct. 19, 2009 a.m. at 30. Two weeks later, the trial
team interviewed Agent Lopez and obtained her interview notes from the interviews conducted
on September 16, 2007. Hr’g Tr., Oct. 15, 2009 p.m. at 60-61. Indeed, Kohl testified that both
he and his investigators were exposed to a tremendous amount of information from the
defendants’ September 16, 2007 interview statements.17 Hr’g Tr., Oct. 29, 2009 a.m. at 115.
Furthermore, in February 2008, prosecutors used the defendants’ September 16, 2007
statements to obtain a search warrant authorizing the government to search the e-mail accounts
of the Raven 23 team members to obtain unsigned drafts of their September 18, 2007 written
statements.18 See Defs.’ Mem. at 31-32; see generally Govt’s Ex. 288. To demonstrate probable
cause justifying the search, Agent Patarini noted in his affidavit that “within hours after the
16
Kohl testified that Mullaney never forwarded him the February 4, 2008 e-mail from Hulser
regarding Lopez’s interview notes. Hr’g Tr., Oct. 29, 2009 a.m. at 58-59. Mullaney testified that
although he had no specific recollection of forwarding the e-mail in question, it was his custom to
forward Hulser’s e-mails to the trial team. Hr’g Tr., Oct. 26, 2009 p.m. at 8-9.
17
As discussed below, the government’s trial team also acquired information regarding the
defendants’ post-September 16 statements to DSS investigators, which the government has
conceded are compelled under Garrity. See infra Part III.C.2.
18
The search warrant application was ostensibly made as part of an investigation into potential
obstruction of justice charges against Blackwater managers. See Govt’s Mem. at 15; Govt’s Ex.
288 at 9-10; Hr’g Tr., Oct. 28, 2009 p.m. at 44.
17
incident, all 19 members of [Raven 23] were interviewed by agents of the [DSS]” and that
“[t]hese interviews confirmed that only a few of the guards actually fired their weapons.” Govt’s
Ex. 288 at 8. Hulser was never informed about the search warrant and never approved the use of
the September 16 interview statements to obtain the search warrant for the September 18 written
statements.19 Hr’g Tr., Oct. 23, 2009 a.m. at 28-29. Hulser testified that had he been informed,
he would not have permitted the trial team to view any records obtained from the search prior to
screening by a taint attorney. Id.
Agent Patarini executed the search warrant on February 15, 2008 and obtained drafts of
the September 18 written statements of defendants Ball and Slatten. Hr’g Tr., Oct. 22, 2009 p.m.
at 14-17. Agent Patarini reviewed the draft statements in the spring or summer of 2008 and
included those statements in a binder of search warrant materials he provided to the prosecution
team. Id. at 17-22; Hr’g Tr., Oct. 28, 2009 p.m. at 46. Kohl testified that he admonished Agent
Patarini for reviewing the draft statements and directed him not to disclose the contents of those
statements. Hr’g Tr., Oct. 28, 2009 p.m. at 46. However, Agent Patarini testified on this point
and before the court that the search warrant was “a project driven by [Kohl].” Hr’g Tr., Oct. 22,
2009 p.m. at 23.
The divergent views of Hulser and Kohl regarding the status and viability of the
defendants’ September 16 interview statements came to the fore in April 2008. On April 11,
2008, Kohl wrote to Hulser expressing frustration at Hulser’s reluctance to approve the trial
team’s use of “incident reports,” given his understanding that Hulser had “previously approved
and cleared other materials that contain statements made by the targets of our investigation, on
the theory that the reports and notes were generated prior to the existence of the sworn Kalkines
19
Hulser stated that he did not learn of the search warrant until less than a week before testifying at
the Kastigar hearing. Hr’g Tr., Oct. 23, 2009 a.m. at 28-29.
18
statements made by these individuals.” Defs.’ Hulser Ex. 8. Hulser responded that he had never
approved the use of such statements by the defendants. Id.20 Three days later, Hulser wrote to
Kohl reiterating that his “concern about the immediate debriefs and reports [was] that they were
just one part of a mandatory and compelled process to get information after the shooting
incidents.” Defs.’ Hulser Ex. 9.
On April 18, 2008, Kohl and Hulser met to discuss their disagreement over the taint
issue. Hr’g Tr., Oct. 29, 2009 a.m. at 78; see Defs.’ Kohl Ex. 21. At the conclusion of this
meeting, Kohl and Hulser agreed that for all future requests for information from the prosecution
team, Kohl alone would determine what investigative materials should be provided directly to
the trial team and what materials should be provided to Hulser for screening. See Defs.’ Kohl
Ex. 21.
Despite these efforts, “miscommunications” – as the government charitably deems them
– persisted even after the April 18, 2008 meeting. For instance, Kohl testified that during the
meeting, Hulser “said he wished [the trial team] could have delayed as long as possible before [it
was] exposed to” the defendants’ September 16 interview statements, but that he did not
expressly prohibit the trial team from making use of those statements.21 Hr’ Tr., Oct. 29, 2009
a.m. at 79. Hulser, on the other hand, testified that during the April 18, 2008 meeting, he advised
Kohl to make no use whatsoever of the defendants’ September 16 interview statements already
in his possession. Hr’g Tr., Oct. 23, 2009 a.m. at 42.
20
Hulser wrote to Kohl, “I’m concerned if you have notes of interviews regarding 9/16 for any of
your current subjects. I did not approve that.” Defs.’ Hulser Ex. 8.
21
Although Kohl testified that Hulser did not expressly prohibit the trial team from using the
defendants’ September 16 interview statements, he testified that after the April 18, 2008 meeting,
he decided on his own that he would make no use of those statements. Hr’g Tr., Oct. 29, 2009
a.m. at 79-80.
19
In July 2008, Kohl approached counsel for defendant Heard to discuss whether Heard
would be willing to cooperate with the government’s investigation. Hr’g Tr., Oct. 29, 2009 a.m.
at 161-62. During that meeting, Kohl referenced statements made by Heard during his
September 16 interview – specifically, his failure to disclose firing an M203 grenade during his
initial interview followed by his admission to DSS investigators later that evening that he had, in
fact, fired a grenade. Id. at 162-63. Kohl testified that he raised this fact during the plea
discussions because he viewed it as evidence reflecting Heard’s consciousness of guilt. Id. at
163.
Furthermore, in August 2008, Kohl requested and obtained information regarding the
defendants’ September 16 interview statements to DSS investigators – namely, the two
“Memorandum Reports of Interviews” prepared by the interviewing DSS agents. Hr’g Tr., Oct.
29, 2009 a.m. at 165-66; Govt’s June 30, 2009 Letter at 4. Kohl read these documents in the
course of considering whether a false statements charge should be brought against the
defendants. Govt’s June 30, 2009 Letter at 4. Hulser testified that he had no recollection of
being advised of this request.22 Hr’g Tr., Oct. 23, 2009 p.m. at 43.
9. The First and Second Grand Juries
The Fifth Amendment guarantees that no civilian may be brought to trial . . . ‘unless on a
presentment or indictment of a Grand Jury.’ This constitutional guarantee presupposes
an investigative body acting independently of either prosecuting attorney or judge, whose
mission is to clear the innocent, no less than to bring to trial those who may be guilty.23
22
In addition, in the summer of 2008, Kohl and Malis each purchased a copy of a book entitled
Blackwater – The Rise of the World’s Most Powerful Mercenary Army, by Jeremy Scahill.
Govt’s June 30, 2009 Letter at 4. The introduction of the book contained witness accounts by
Blackwater guards concerning the Nisur Square shooting. Id. The government maintains that
Kohl and Malis each stopped reading the introduction before encountering any of these accounts.
Id.
23
See United States v. Dionisio, 410 U.S. 1, 16-17 (1973) (internal citations and quotation marks
omitted).
20
A grand jury was convened in late November 2007, at which Frost, Murphy and Mealy
testified, along with other members of the Raven 23 convoy. Govt’s Mem. at 10. Kohl and
Ponticello were aware before these witnesses testified that media outlets had disseminated the
defendants’ September 18 written statements in news reports and articles, and that many of the
witnesses they intended to call, including Frost, Murphy and Mealy, had been exposed to the
defendants’ written statements. Govt’s June 30, 2009 Letter at 5. Recognizing these concerns,
the government advised the witnesses before they took the stand to testify based on what they
had personally seen and heard, and not to disclose to the grand jury any information obtained
from the sworn written statements of other Raven 23 team members. Id.
Prior to asking the grand jury to return the indictment, the trial team reviewed the grand
jury record to determine whether any Garrity evidence had been presented. Id. The government
concluded that despite the admonishments given to the witnesses, the grand jury may have been
exposed to such evidence, specifically through the testimony of Frost, Murphy, Mealy and other
members of the Raven 23 convoy. Id.; Hr’g Tr., Nov. 2, 2009 a.m. at 21-22. Consequently, the
government elected to withdraw the case from this grand jury and to re-present the case to a
second grand jury. Govt’s June 30, 2009 Letter at 5.
In preparation for the second grand jury, prosecutors Kohl and Malis met with Hulser and
Karla Dobinski, a recognized DOJ Garrity expert, regarding the taint issue. Hr’g Tr., Nov. 2,
2009 a.m. at 8, 29. The prosecutors decided that, among the Blackwater witnesses, they would
rely solely on the testimony of Frost, Murphy and Mealy, purportedly because the prosecutors
were the most confident that these three witnesses could survive a Kastigar hearing. Id. at 24.
Rather than have these witnesses take the stand again, however, the prosecutors chose to provide
the second grand jury with transcripts of their testimony at the first grand jury, redacted to
21
remove references to information derived from the defendants’ compelled statements. Id. at 31-
32. Prosecutor Malis was responsible for making these redactions, in consultation with Hulser
and Dobinski. Id. In addition, the prosecutors decided to have Robyn Powell, an FBI agent
without any knowledge of or exposure to the case, summarize evidence for the second grand
jury. Id. at 29-30.
The second grand jury was convened in late November 2008. Agent Powell, the sole live
witness presented to the second grand jury, summarized evidence from Iraqi witnesses, as well as
information from cooperating witness Ridgeway, who by this time had entered a guilty plea, and
summarized portions of the prior grand jury testimony of Frost, Murphy and Mealy. See
generally Govt’s Ex. 1. In addition, the prosecutors presented the second grand jury with
redacted transcripts of the prior grand jury testimony of Frost, Murphy and Mealy, along with
summaries prepared by the prosecutors of the evidence against each defendant. See generally id.
By proceeding in this fashion, the prosecutors withheld from the second grand jury
substantial exculpatory evidence that had been presented to the first grand jury. For instance,
Raven 23 team members Thomas Vargas, Jeremy Skinner, Daniel Childers and Edward Randall
all testified before the first grand jury that the Raven 23 convoy responded to incoming fire.
Vargas testified before the first grand jury that approximately “five seconds after we pulled into
our positions, we started taking fire” and that he “could hear AK-47 fire” and “immediately saw
two insurgents.” Hr’g Tr., Nov. 3, 2009 a.m. at 10. Skinner likewise testified that he heard
gunfire and saw “two distinct separate muzzle flashes” fired by insurgents at the Raven 23
convoy. Id. at 12. Childers testified that he heard incoming gunfire coming from his seven to
eight o’clock position. Id. at 17. And Randall testified that the Raven 23 convoy took fire from
the south and southwest and that he saw a round impact the side of one of the vehicles. Id. at 18-
22
19. Although Malis acknowledged that this testimony corroborated the defendants’ self-defense
theory, none of this testimony was presented to the second grand jury. Id. at 10-19. Indeed,
Malis testified that he chose not to present the testimony of these witnesses to the second grand
jury because the testimony indicated that the witnesses were “hostile” to the prosecution. Hr’g
Tr., Nov. 2, 2009 a.m. at 22. DOJ guidelines require prosecutors to present exculpatory evidence
to the grand jury. United States Attorneys’ Manual § 9-11.233 (stating that “[i]t is the policy of
the Department of Justice . . . that when a prosecutor conducting a grand jury inquiry is
personally aware of substantial evidence that directly negates the guilt of a subject of the
investigation, the prosecutor must present or otherwise disclose such evidence to the grand jury
before seeking an indictment against such a person”).
The government also redacted exculpatory portions of the testimony of Frost, Murphy
and Mealy. For instance, Murphy testified at the first grand jury that even though he was
positioned close to defendant Ball, he never saw Ball fire his weapon and that Ball certainly
“wasn’t just shooting wildly” if he was shooting at all. Hr’g Tr., Nov. 2, 2009 p.m. at 115-16.
The prosecutors redacted this testimony from the transcripts presented to the second grand jury,
even though Malis acknowledged that it was exculpatory and had nothing whatsoever to do with
the taint issue. Id. at 116.
Furthermore, the evidence summaries presented to the second grand jury presented
distorted versions of the testimony on which they were based. For example, in the summary of
evidence against defendant Slatten, the prosecutors stated that “Matt Murphy and Adam Frost
recall that the first thing they heard at Nisur Square was the sound of two shots coming from the
command vehicle, which they recognized as Slatten’s ‘heavy caliber’ sniper rifle.” GJ Ex. 107.24
Agent Powell told the second grand jury that “[a]ccording to Frost, the initial rounds that were
24
Citations to “GJ Ex. __” refer to the exhibits presented to the second grand jury.
23
fi[r]ed according to him sounded like they were from Slatten’s sniper rifle.” Hr’g Tr., Oct. 21,
2009 p.m. at 25. In reality, Frost had testified at the first grand jury that it was his “pure
speculation” that those “two pops” were rifle fire.25 Id. at 23-24. At the Kastigar hearing, Frost
testified that Agent Powell’s “summary” of his testimony was inaccurate. Id. at 25.
Finally, Kohl informed the second grand jury at the outset of the proceedings that each of
the defendants had given sworn testimony to State Department investigators in the immediate
aftermath of the incident, but that “in exchange for them giving those statements, the U.S.
government promised, essentially . . . that [it] wouldn’t use those statements against them in a
criminal proceeding.” Hr’g Tr., Nov. 3, 2009 a.m. at 22. This prompts the question – why did
the prosecutors go out of their way to tell the grand jury that the defendants had made statements
in exchange for immunity? The government’s explanation – that the prosecutors were
attempting to determine if any grand jurors had been tainted by the defendants’ statements,
Govt’s Reply Mem. at 17 – is unpersuasive, to say the least, as the prosecutors obviously could
have inquired into whether any grand jurors had been exposed to the defendants’ statements
without revealing that the defendants had claimed immunity. It is reasonable to believe that the
purpose of these disclosures was to color the grand jury’s thinking by telling it of the existence,
if not the content, of withheld incriminating statements made by the targets of the prosecution.
On December 4, 2008, the second grand jury returned an indictment against the
defendants, charging them with voluntary manslaughter and weapons violations based on the
Nisur Square incident. See generally Indictment.
25
The government has acknowledged that Frost’s “speculation” was based on his exposure to
Slatten’s sworn written statement. See Govt’s Mot. for Leave to Dismiss Indictment Without
Prejudice Against Def. Slatten at 1.
24
B. Procedural History
In early May 2009, the government filed a “Motion for a Garrity Hearing in Lieu of a
Pretrial Kastigar Hearing,” in which it argued that the defendants’ statements to DSS
investigators should not be analyzed as immunized statements, which would require the court to
hold a Kastigar hearing to permit the government to prove it made no use of those statements.
See generally Govt’s Mot. for a Garrity Hr’g in Lieu of a Pretrial Kastigar Hr’g. On July 22,
2009, the court denied the government’s motion, concluding that there had been inadequate
briefing on the legal and factual foundation for the application of Kastigar. Mem. Order (July
22, 2009) at 4. The court set aside dates for a Kastigar hearing and ordered the defendants to file
a motion setting forth a firm foundation for their assertion that immunized testimony was
improperly utilized in this case. Id.
Following extensive briefing, the court issued a sealed memorandum opinion on
September 8, 2009, holding that any Garrity compelled statements made by the defendants were
entitled to use and derivative use immunity, and that the defendants had laid a firm foundation
that immunized testimony was used in the investigation and prosecution of this case. See
generally Mem. Op. (Sept. 8, 2009); infra Part III.A.2. Accordingly, the court ordered that a
Kastigar hearing be held on the dates set aside in the court’s prior order.26
The hearing, which commenced on October 14, 200927 and concluded three weeks later,
explored two principal issues: (1) whether the defendants’ September 16, 2007 interview
26
The court also rejected the government’s request to delay the Kastigar hearing until after trial,
noting that there was little sense in proceeding to a potentially lengthy trial while the validity of
the indictment remained in question. See Mem. Op. (Sept. 8, 2009) at 20-22.
27
At the outset of the hearing, the court ordered that the hearing be held in camera to prevent the
disclosure of tainted information and confidential grand jury materials. See United States v. De
Diego, 511 F.2d 818, 824 (D.C. Cir. 1975) (noting with approval the practice of holding taint
hearings in camera).
25
statements to DSS investigators constituted compelled statements under Garrity and (2) whether
the government had made any impermissible use of any Garrity compelled statements. The
parties acknowledged that the defendants had the burden of persuasion on the first issue while
the government had the burden of persuasion on the second.
Approximately three weeks after the hearing concluded, while the parties were still
engaged in post-hearing briefing, the government moved for leave to dismiss the indictment
against defendant Slatten without prejudice, conceding that the evidence which came to light at
the Kastigar hearing did not satisfy its Kastigar burden against that defendant. Slatten
subsequently cross-moved for dismissal of the claims against him with prejudice, based on the
absence of sufficient untainted evidence to support a subsequent indictment as well as
prosecutorial misconduct in obtaining the indictment. Two weeks later, defendant Ball also filed
a motion to dismiss the indictment against him with prejudice, alleging prosecutorial
misconduct.28
III. ANALYSIS
A. Legal Framework
1. Legal Standard for the Application of Kastigar
In Kastigar v. United States, 406 U.S. 441 (1971), the Supreme Court held that
‘Once a defendant demonstrates that he has testified, under a state grant of

immunity, to matters related to the federal prosecution, the federal authorities
have the burden of showing that their evidence is not tainted by establishing that
they had an independent legitimate source for the disputed evidence.’
This burden of proof . . . is not limited to negation of taint; rather, it imposes on

the prosecution the affirmative duty to prove that the evidence it proposes to use
28
The court will address the motions of Ball and Slatten to dismiss the indictment with prejudice in
a separate memorandum opinion.
26
is derived from a legitimate source wholly independent of the compelled

testimony.
Id. at 460 (quoting Murphy v. Waterfront Comm’n, 378 U.S. 52, 79 n.18 (1964)). As this Circuit
has noted, “[w]hen the government proceeds to prosecute a previously immunized witness, it has
‘the heavy burden of proving that all of the evidence it proposes to use was derived from
legitimate independent sources.’” United States v. North, 910 F.2d 843, 854 (D.C. Cir. 1990)
(“North I”) (quoting Kastigar, 406 U.S. at 461-62), reh’g denied, 920 F.2d 940 (D.C. Cir. 1990)
(“North II”).
“A trial court must normally hold a hearing (a ‘Kastigar hearing’) for the purpose of
allowing the government to demonstrate that it obtained all of the evidence it proposes to use
from sources independent of the compelled testimony.” Id. (citing United States v. Rinaldi, 808
F.2d 1579, 1584 (D.C. Cir. 1987)). During the hearing, the government must show that for each
witness on whom it relies, “no use whatsoever was made of any of the immunized testimony
either by the witness or by the [prosecutor] in questioning the witness.” Id. at 872-73 (noting
that this inquiry “must proceed witness-by-witness; if necessary, it will proceed line-by-line and
item-by-item”) (emphasis added).29 “Unless the District Court can make express findings that
the government has carried this heavy burden as to the content of all of the testimony of each
witness, that testimony cannot survive a Kastigar test.” Id. at 873.
In articulating the reach of Kastigar’s prohibition on the “use” of immunized testimony,
the Circuit has distinguished between “evidentiary” and “nonevidentiary” use. See North I, 910
F.2d at 856-61. Evidentiary use of immunized testimony includes the direct presentation of
immunized testimony to the grand or petit jury, as well as any derivative (or indirect) use of the
29
The Kastigar hearing may be held “pre-trial, post-trial, mid-trial (as evidence is offered), or
[through] some combination of these methods,” although “[a] pre-trial hearing is the most
common choice.” United States v. North, 910 F.2d 843, 872-73 (D.C. Cir. 1990).
27
immunized testimony. See United States v. Hubbell, 530 U.S. 27, 41 (2000) (observing that the
introduction of evidence derived from immunized sources “would surely be a prohibited ‘use’ of
the immunized act of production”). Derivative evidentiary use includes the exposure of
witnesses to immunized testimony “to refresh their memories, or otherwise to focus their
thoughts, organize their testimony, or alter their prior or contemporaneous statements,” North I,
910 F.2d at 860; see also North II, 942 F.2d at 942 (noting that “Kastigar is . . . violated
whenever the prosecution puts on a witness whose testimony is shaped, directly or indirectly, by
compelled testimony, regardless of how or by whom he was exposed to that compelled
testimony”). Evidentiary use also includes the use of immunized testimony to obtain
investigatory leads, see United States v. Hubbell, 167 F.3d 552, 585 (D.C. Cir. 1999), and to
influence a witness to testify, see United States v. Hylton, 294 F.3d 130, 134 (D.C. Cir. 2002).
Nonevidentiary use, by contrast, is that which does not culminate directly or indirectly in
the presentation of evidence against the immunized person. North I, 910 F.2d at 857. Such use
includes “assistance in focusing the investigation, deciding to initiate prosecution, refusing to
plea bargain, interpreting evidence, planning cross-examination and otherwise generally
planning trial strategy.” Id. Although Kastigar clearly prohibits the government from making
any direct or indirect evidentiary use of immunized testimony, see Kastigar, 406 U.S. at 460, it
“does not expressly discuss the propriety of nonevidentiary use,” North I, 910 F.2d at 858. The
Circuit declined to resolve the issue in North I, see id. at 860 (assuming without deciding that
Kastigar bars nonevidentiary use of immunized testimony), and has yet to squarely address the
issue, see United States v. Kilroy, 27 F.3d 679, 687 n.7 (D.C. Cir. 1994).
Nonetheless, the court derives significant guidance regarding the permissible bounds of
nonevidentiary use in the Circuit’s discussion of the issue in North I. The Circuit began its
28
analysis by rejecting the rule articulated in United States v. McDaniel, 482 F.2d 305 (8th Cir.
1973), which held that any nonevidentiary use necessarily violates the Fifth Amendment. See
North I, 910 F.2d at 858-59 (citing McDaniel, 482 F.2d at 311). The Circuit noted its agreement
with the holdings of other circuits that “a prosecution is not foreclosed merely because the
‘immunized testimony might have tangentially influenced the prosecutor’s thought processes in
preparing for the indictment and preparing for trial.’” Id. at 859 (quoting United States v.
Mariani, 851 F.2d 595, 600 (2d Cir. 1988)); see also United States v. Serrano, 870 F.2d 1, 16
(1st Cir. 1989) (concluding that the McDaniel approach “would in effect grant a defendant
transactional immunity once it is shown that government attorneys or investigators involved in
the prosecution were exposed to the immunized testimony”). At the same time, the Circuit stated
that insofar as the authorities criticizing McDaniel “may be read as establishing a rule that
Kastigar allows nonevidentiary use of compelled testimony under all circumstances, we find
those cases troubling.” North I, 910 F.2d at 859-60; cf. Kastigar, 406 U.S. at 458-59 (observing
that in order not to violate the Fifth Amendment privilege against self-incrimination, “immunity
from use and derivative use [must] ‘leave[] the witness and the Federal Government in
substantially the same position as if the witness had claimed his privilege’ in the absence of a
grant of immunity”) (quoting Murphy, 378 U.S. at 79). Ultimately, the Circuit concluded in
North I that given the absence of significant prosecutorial exposure to the immunized testimony
in that case, the Circuit was not required to resolve the issue because the prosecution “could not
have made significant nonevidentiary use” of the testimony. North I, 910 F.2d at 860.
The Circuit’s analysis in North I suggests that although no Kastigar violation occurs
when a prosecutor’s fleeting exposure to immunized testimony has a merely tangential influence
on his or her thoughts about a case, a Kastigar violation may result when a prosecutor has had
29
significant exposure to immunized testimony and makes significant nonevidentiary use of that
testimony. See id. at 859-60; see also United States v. Hsia, 131 F. Supp. 2d 195, 201-02
(D.D.C. 2001) (holding that Kastigar and North prohibit nonevidentiary uses of immunized
testimony, in the context of a case in which the government made no effort to insulate the
prosecution from the compelled testimony); cf. United States v. Daniels, 281 F.3d 168, 182 (5th
Cir. 2002) (observing that “[t]here may be some cases in which the exposure of a prosecution
team to a defendant’s immunized testimony is so prejudicial that it requires disqualification of
the entire prosecution team”); United States v. Barker, 542 F.2d 479, 484 n.9 (8th Cir. 1976)
(observing that in McDaniel, access to immunized testimony “had been obtained at a very early
stage in the investigatory process”); United States v. McGuire, 45 F.3d 1177, 1183 (8th Cir.
1995) (holding that McDaniel is limited to the “unusual circumstances” present in that case).
The government’s burden at a Kastigar hearing, though “heavy,” is not insurmountable.
The government must demonstrate by a preponderance of the evidence that it made no use of the
defendants’ testimony, a burden that the government may satisfy by showing that witnesses were
never exposed to immunized testimony or that the allegedly tainted testimony contains no
evidence that was not “canned” (or memorialized by investigators) before such exposure
occurred. See North I, 910 F.2d at 872 (cautioning that “the government has to meet its proof
only by a preponderance of the evidence, but any failure to meet that standard must result in
exclusion of the testimony”). In addition, if the government has used immunized testimony,
“[d]ismissal of the indictment or vacation of the conviction is not necessary where the use is
found to be harmless beyond a reasonable doubt.” United States v. Ponds, 454 F.3d 313, 328
(D.C. Cir. 2006). If, however, “the government has in fact introduced trial evidence that fails the
30
Kastigar analysis, then the defendant is entitled to a new trial. If the same is true as to grand jury
evidence, then the indictment must be dismissed.” North I, 910 F.2d at 873.
2. Legal Standard for the Application of Kastigar to Garrity Statements
In Garrity v. New Jersey, 385 U.S. 493 (1967), the Supreme Court held that the Fifth
Amendment privilege against self-incrimination barred the use of statements obtained from
police officers under a threat of job loss in a subsequent criminal proceeding. Id. at 500 (holding
that “[t]he option to lose [one’s] means of livelihood or to pay the penalty of self-incrimination is
the antithesis of free choice to speak out or remain silent”). The parties in this case supplied
extensive briefing on whether the protections of Kastigar applied to Garrity compelled
statements.
As noted in this court’s September 8, 2009 memorandum opinion, see generally Mem.
Op. (Sept. 8, 2009), although Garrity does not expressly invoke the protections of Kastigar,
every circuit to have addressed the issue has held that “a government employee who has been
threatened with an adverse employment action by her employer for failure to answer questions
put to her by her employer receives immunity from the use of her statements or their fruits in
subsequent criminal proceedings,” Sher v. Dep’t of Veterans Affairs, 488 F.3d 489, 501-02 &
n.12 (1st Cir. 2007); In re Grand Jury Proceedings (Kinamon), 45 F.3d 343, 348 (9th Cir. 1995)
(holding that statements obtained from an employee who was required to answer questions under
a threat of dismissal were subject to use and derivative use immunity); In re Grand Jury
Subpoenas (Stover), 40 F.3d 1096, 1102-03 (10th Cir. 1994) (observing that “Garrity’s
protection . . . acts to immunize . . . compelled statements, as it prohibits their subsequent use
against the officer so as not offend the Fifth Amendment Privilege” and that this prohibition
“provides a comprehensive safeguard, barring the use of compelled testimony as an
31
‘investigatory lead,’ and also barring the use of any evidence obtained by focusing investigation
on a witness as a result of his compelled disclosures”) (quoting Kastigar, 406 U.S. at 460); In re
Grand Jury Proceedings (Cohen), 975 F.2d 1488, 1490 (11th Cir. 1992) (observing that
“[i]mmunity under Garrity prevents any statements made in the course of the internal
investigation from being used against the officers in subsequent criminal proceedings”);
Uniformed Sanitation Men Ass’n v. Comm’r of Sanitation of the City of N.Y., 426 F.2d 619, 626
(2d Cir. 1970) (stating that in Garrity, “the very act of the attorney general in telling the witness
that he would be subject to removal if he refused to answer was held to have conferred . . .
immunity”).
Furthermore, courts have uniformly held that “if a criminal defendant . . . demonstrates
that she was compelled to testify by her government employer, ‘the government must show that
any evidence used or derived has a legitimate source wholly independent of the compelled
testimony.’” United States v. Moten, 551 F.3d 763, 766 (8th Cir. 2008) (quoting Kastigar, 406
U.S. at 460); Doe, 478 F.3d 581, 583-84 (4th Cir. 2007) (noting that if a police officer believed
statements compelled under Garrity “were used to indict him, he would be entitled to a Kastigar
hearing, at which the government would bear the burden of ‘prov[ing] that the evidence it
proposes to use is derived from a legitimate source wholly independent of the compelled
testimony’”) (quoting Kastigar, 406 U.S. at 441); Kinamon, 45 F.3d at 348 (ordering the district
court to conduct a Kastigar hearing to determine whether statements obtained by threat of job
loss were improperly used in a grand jury proceeding); Stover, 40 F.3d at 1103 (holding that “[i]f
an officer, whose compelled statement [under Garrity] has been considered by the grand jury,
ultimately is indicted, that officer will be able to challenge the indictment and the government
will be required to prove that its evidence derives entirely from legitimate sources or that the
32
grand jury’s exposure to the officer’s statement was harmless”). Thus, the court concluded that
statements compelled under Garrity are entitled to the full panoply of protections that Kastigar
provides to other immunized statements. See generally Mem. Op. (Sept. 8, 2009).
B. The Defendants’ September 16 Interview Statements Were Compelled
At the outset of the Kastigar hearing, the government conceded that the defendants’
September 18 written statements and all of the defendants’ subsequent statements to DSS
investigators constituted compelled statements under Garrity.30 See Hr’g Tr., Oct. 14, 2009 a.m.
at 6-10. In light of the court’s September 8, 2009 ruling, the government acknowledged its
obligation to demonstrate that it had made no use or derivative use of those statements. Id. The
government has maintained, however, that any statements that the defendants made during their
September 16, 2007 interviews were not compelled under Garrity and are therefore not entitled
to any form of immunity. Id.; Govt’s Mem. at 17. This court disagrees.
To demonstrate compulsion under Garrity, a public employee must show (1) that he
subjectively believed his statements were compelled by the threat of job loss and (2) that this
belief was objectively reasonable. See United States v. Friedrick, 842 F.2d 382, 395 (D.C. Cir.
1988); accord United States v. Vangates, 287 F.3d 1315, 1321-22 (11th Cir. 2002). The
government does not dispute that the defendants subjectively believed that they would have been
terminated had they refused to submit to questioning from DSS agents on September 16, 2007.31
Govt’s Mem. at 18. Rather, the government contends that the defendants’ belief was not
objectively reasonable because on September 16, the DSS agents were merely documenting (and
30
Indeed, the undisputed evidence and the governing law overwhelmingly support the conclusion
that these statements were compelled for purposes of Garrity. See generally infra Part III.B.1.
31
Each defendant testified during the Kastigar hearing that he believed that he had no choice but to
submit to questioning by DSS agents on September 16, and that he would have been terminated
from his job had he refused. Defs.’ Mem. at 5.
33
not investigating) the Nisur Square incident. Id. at 23-26. In a similar vein, the government
argues that the September 16 statements resulted from routine, job-related reporting requirements
that do not implicate Garrity. Id. at 18-23. The defendants point out that ample evidence
supports the reasonable objectiveness of their belief that refusing to submit to the September 16,
2007 intterviews would have meant termination, and assert that that the September 16 interviews
were anything but routine. See Defs.’ Mem. at 5-7; Defs.’ Post-Hr’g Reply Mem. (“Defs.’ Reply
Mem.”) at 3-6.
1. The Objective Reasonableness of the Defendants’ Belief That Their

September 16 Interview Statements Were Compelled
Under the Totality of the Circumstances
When an employee has been expressly advised by his employer that he must submit to
questioning or face termination, his belief that he will be terminated for refusing to comply is
objectively reasonable. See Vangates, 287 F.3d at 1321 (observing that “Garrity is more easily
applied to situations ‘[w]here the state has directly presented the defendant with the Hobson’s
choice of either making an incriminating statement or being fired’ than to cases . . . in which
there has been no direct threat of termination”) (citing United States v. Camacho, 739 F. Supp.
1504, 1515 (S.D. Fla. 1990)). This Circuit has made clear, however, that the absence of an
express Garrity warning does not indicate a lack of objective reasonableness. See Friedrick, 842
F.2d at 395-96. The defendant in Friedrick was an FBI agent under investigation for suspected
misconduct. Id. at 384. Between June and September 1985, he was subjected to a series of
interviews, during which he was provided with an FBI Form 645, which advised the agent that
his refusal to provide information could result in dismissal, but that the government could not use
any information provided against the agent in a subsequent criminal prosecution. Id. at 385-87.
In January 1986, the FBI again interviewed the defendant, this time without presenting him with
34
a Form 645 or mentioning immunity in any way. Id. at 387. The district court held that the
statements made by the defendant during the January 1986 interviews were inadmissible, despite
the absence of express Garrity warnings, based on the Fifth Amendment principles articulated in
Garrity and Kastigar. Id. at 395-96.
The Circuit affirmed, concluding that under the totality of circumstances, the defendant
reasonably believed that the same rules that had applied during the interviews in the fall of 1985
also governed the January 1986 interviews. Id. at 396-97. The Circuit noted that the defendant’s
supervisors directed him to appear in Washington D.C. for the January 1986 interviews in
precisely the same manner in which he had been ordered to appear for his previous interviews.
Id. The Circuit also noted that the defendant had been ordered to appear for “further interviews,”
indicating that the January 1986 interviews were a continuation of the interviews conducted in
the fall of 1985. Id. The Circuit considered the absence of a Form 645 at the January 1986
interviews to be of little moment, as the defendant reasonably would have expected the
interviewing agents to advise him if the nature of the interviews had changed, given the
pervasive practice of providing him with Form 645 warnings during prior interviews. Id. (stating
that “studied silence in this context is consistent with a continuation of the already established
pattern; it is emphatically not a signal of an investigative volte face”). In summary, the Circuit
explained that
[t]he reason for our conclusion is simple and straightforward: Friedrick was at all
times during the questioning an FBI employee who was under orders from his
superiors in the Bureau to attend and participate in the interviews. Friedrick had
not been invited to come to Washington. He was instructed to appear, just as he
had been several times previously. Friedrick was plainly in Washington . . . in the
capacity of an FBI employee who had no choice but to answer questions or else
risk being fired.
Id. at 398.
35
During the hearing held in this case, the court was presented with substantial evidence
indicating that it was objectively reasonable for the defendants to believe that that they would be
fired if they refused to answer questions on September 16, 2007. Agent Carpenter testified that
he directed all the Raven 23 team members to come to the Palace for questioning, and that he did
not consider this instruction to be voluntary. Hr’g Tr., Oct. 19, 2009 a.m. at 99-100. Moreover,
every Raven 23 team member who appeared at the hearing – including Mealy, Murphy and
Frost, who testified on behalf of the prosecution – testified that they were directed to submit to
questioning on September 16, 2007 and that they understood that their refusal to answer the DSS
agents’ questions would have resulted in termination. Mealy testified that although he had no
specific recollection, he “must have been directed” to submit to questioning on September 16,
2007. Id. at 44-45. He further testified that he understood that he “very well could have been
fired” had he refused to answer the DSS agents’ questions on that date. Id. Murphy testified that
that he was directed to appear for his September 16, 2007 interview and that it was “a given” that
his refusal to submit to questioning that day would result in his termination. Hr’g Tr., Oct. 14,
2009 p.m. at 22.
Frost submitted an affidavit in which he stated that
[o]n September 16, 2007, I was ordered, along with the other members of Raven
23, by Blackwater management to report to the United States Embassy in
Baghdad to provide a verbal statement to Department of State investigators
describing my actions during the Nisour Square incident. I understood this order
to be mandatory – that being interviewed was required by the Department of
State, and was a condition of my employment. I understood then, and believe
now, that had I refused the order I would have been terminated.
36
Frost Ex. 1 ¶ 5.32 At the Kastigar hearing, Frost testified that he still believed this portion of his
declaration to be accurate and that he understood, at the time he gave his September 16 interview
statement to the DSS investigators, that he was required to do so. Hr’g Tr., Oct. 21, 2009 p.m. at
6-9.
Daniel Childers, another Raven 23 team member, testified that he was ordered to appear
for an interview on September 16, 2007, that he did not believe that he had a choice in the matter
and that he understood at the time that if he had refused to submit to questioning, he would have
been fired. Hr’g Tr., Oct. 29, 2009 p.m. at 19-21. And although he did not testify at the
Kastigar hearing, the government has conceded that cooperating witness Ridgeway “does
subjectively believe that the members of Raven 23 could have had their contracts terminated if
they did not provide statements to DSS.” Govt’s June 30, 2009 Letter at 9. The fact that every
testifying Raven 23 member, including all those supporting the government’s prosecution,
corroborated the defendants’ subjective belief that they would have been terminated had they
refused to submit to questioning strongly indicates that their subjective belief was objectively
reasonable.
This uniformly held belief among Raven 23 likely resulted from their prior experiences
with the reporting procedures outlined in the Hunter Memorandum. The Hunter Memorandum,
which all Raven 23 members received when they arrived in Iraq, required Blackwater personnel
to report any incident of firearms discharge to State Department officials, to submit to oral
debriefing following the incident and to provide a sworn written statement on a form attached to
32
Like Frost, Mealy also signed a declaration stating that he “was ordered” to provide a verbal
statement to DSS investigators on September 16, that he understood the order to be “mandatory”
and a “condition of [his] employment” and that he believed his refusal to comply would have
resulted in his termination. Mealy Decl. ¶ 5, Aug. 1, 2009.
37
the memorandum. Govt’s Ex. 32 at 1-3. That form contained the following express Garrity
warning:
I understand that this statement is made in furtherance of an official

administrative inquiry regarding potential misconduct or improper performance of
official duties and that disciplinary action, including dismissal from the
Department’s Worldwide Personnel Protective Services contract, may be
undertaken if I refuse to provide this statement or fail to do so fully and truthfully.
I further understand that neither my statements nor any information or evidence
gained by reason of my statements can be used against me in a criminal
proceeding.
Id. at 3. Thus, the Hunter Memorandum expressly required Blackwater personnel to provide
sworn written statements to State Department officials following any incident of firearms
discharge or face termination. Id. The Hunter Memorandum did not specify that the threat of
job loss applied only to the obligation to provide a sworn written statement to the State
Department and not to any prior or subsequent statements requested by the State Department
investigators regarding that incident. See generally id.
Prior to September 16, 2007, all of the defendants had been involved in shooting
incidents, after which they had been required to provide sworn written statements under the
express Garrity warning on the State Department form. See Hr’g Tr., Oct. 27, 2009 a.m. at 10-
11; Hr’g Tr., Nov. 3, 2009 p.m. at 49-50, 82-83, 117, 136-37. During the September 16, 2007
interviews, the DSS agents did not advise the Raven 23 team members that the interviews were
voluntary or that they were not required to answer questions. Hr’g Tr., Oct. 15, 2009 a.m. at 75;
Hr’g Tr., Oct. 15, 2009 p.m. at 40-41, 121. In fact, Agent Scollan testified that under the rules
38
then in place,33 the defendants should have been provided Garrity warnings during the
September 16, 2007 interviews. Hr’g Tr., Oct. 15, 2009 a.m. at 86-87. Under these
circumstances, and in light of their prior experiences, it was reasonable for the defendants (and
the other members of Raven 23) to believe that their September 16 interview statements, like
statements they had provided after other shooting incidents, were compelled under threat of job
loss.
Furthermore, although the interviewing DSS agents testified that they did not warn the
defendants that they would be fired if they refused to answer the agents’ questions, id. at 8; Hr’g
Tr., Oct. 15, 2009 p.m. at 25, three of the defendants testified that the interviewing DSS agents
told them that their statements could not be used against them in a criminal proceeding, see Hr’g
Tr., Nov. 3, 2009 p.m. at 52, 116-17, 137-38. These admonitions were consistent with the
Garrity warning contained on the State Department form, and reasonably could have contributed
to a belief by those defendants that the same conditions applied to statements made during the
September 16, 2007 interviews as well.
In sum, the facts adduced at the Kastigar hearing bring this case squarely within the
bounds of Friedrick. As in Friedrick, the defendants in this case were directed to submit to
questioning. As in Friedrick, the defendants had provided sworn statements on prior occasions
under express Garrity warnings. And as in Friedrick, the defendants were not advised that the
ground rules had changed – more specifically, that the rules that had governed the defendants’
other post-incident statements to the State Department did not apply on September 16, 2007.
33
Following the DSS investigation into the Nisur Square incident, the State Department changed its
procedures to prohibit DSS agents from providing Garrity warnings without permission from
supervisors. Hr’g Tr., Oct. 15, 2009 a.m. at 85-86. Indeed, the current State Department
guidelines provide that “[p]rior to conducting an interview with any [private security contractor]
involved in a serious incident, the investigator will provide a Warning and Assurance to
Employee Requested to Provide Information on a Voluntary Basis (Form DS 7619).” Govt’s Ex.
35 at 8.
39
Furthermore, three of the defendants in this case testified that they were expressly told during
their September 16, 2007 interviews that their statements could not be used against them in a
criminal proceeding. Moreover, the defendants elicited corroborating testimony from friendly
and hostile witnesses alike, all of whom testified that they too believed that they were required to
submit to questioning on September 16, 2007 under threat of job loss. The court is persuaded
that this evidence establishes the objective reasonableness of the defendants’ belief that they
were required to submit to questioning or face job loss.
2. The Government’s Reliance on United States v. Cook and Related Authorities
The government contends that the September 16 interview statements do not implicate
Garrity because they resulted from mundane, job-related reporting requirements, not unlike the
obligation to report a missing or stolen weapon. See Govt’s Mem. at 19-23. Indeed, routine,
contemporaneously-prepared incident reports are generally not considered compelled Garrity
statements. See, e.g., United States v. Cook, 526 F. Supp. 2d 1, 8-9 (D.D.C. 2007) (rejecting the
defendant’s Garrity challenge to a use-of-force report that he was ordered to prepare after an
individual in his custody complained that the defendant had assaulted him), aff’d 2009 WL
1528508 (D.C. Cir. Apr. 21, 2009); see also Devine v. Goodstein, 680 F.2d 243, 246-47 (D.C.
Cir. 1982); United States v. Ruiz, 579 F.2d 670, 675-76 (1st Cir. 1978); Watson v. County of
Riverside, 976 F. Supp. 951, 954-55 (C.D. Cal. 1997). Yet the government’s reliance on Cook
and related authorities is misplaced, as those cases are distinguishable from this matter in at least
two critical respects.
a. The September 16, 2007 Interviews Were Far From Routine
First, Cook and the related authorities cited by the government rest on the principle that
the element of compulsion is absent when a report is so routine that a defendant could not have
40
reasonably believed that the report could form the basis of a criminal prosecution. See Cook, 526
F. Supp. 2d at 8 (observing that “Garrity does not stand for the proposition that a statement made
in a standard report is coerced whenever an officer faces both the remote possibility of criminal
prosecution if he files the report and the arguably even more speculative possibility of
termination if he declines to do so”);34 see also Devine, 680 F.2d at 247 (observing that Garrity
only protects against “disclosures that the witness reasonably believes could be used in a
criminal prosecution or could lead to other evidence that might be so used”); Watson, 976 F.
Supp. at 955 (noting that the element of compulsion was absent because the creation of the arrest
report was simply a product of the defendant’s normal job requirements).
The September 16, 2007 interviews, however, were anything but routine. Most
obviously, the interviews were conducted in response to an extraordinarily violent shooting
incident that resulted in the death or injury of more than thirty people. See Govt’s Mem. at 2.
As just one example, Agent Lopez testified that she had never before encountered anything like
the Nisur Square incident and that she did not view it as a routine situation. Hr’g Tr., Oct. 15,
2009 p.m. at 39-40.
Furthermore, by all accounts, it was out of the ordinary for DSS agents to conduct
interviews of all the members of a unit following a shooting incident. Agent Carpenter testified
that he had never before directed every member of a detail to submit to questioning as he did on
September 16, 2007, and that he was unaware of any prior instance in which that procedure had
been followed. Hr’g Tr., Oct. 19, 2009 a.m. at 99-100. David Farrington, another DSS agent
who assisted in the DSS investigation, testified that he was unaware of any incident in which
every member of a unit was interviewed following a shooting incident. Hr’g Tr., Oct. 19, 2009
34
The Cook court noted that the defendant’s purported fear of termination was objectively
unreasonable, as removal was an unlikely sanction for refusing to submit a report under
applicable guidelines. See United States v. Cook, 526 F. Supp. 2d 1, 7-8 (D.D.C. 2007).
41
p.m. at 57-58. Raven 23 team member Childers also testified that it was unusual for the entire
team to be asked to report for oral interviews. Hr’g Tr., Oct. 23, 2009 a.m. at 20.
In fact, there was considerable doubt as to whether it was, in practice, standard procedure
for oral interviews to be conducted after shooting incidents at all. Defendant Slough testified
that although he had been involved in two prior shooting incidents in Iraq, September 16, 2007
was the first time he had been required to give an oral statement to DSS agents and the first time
his entire unit had been required to submit to questioning following a shooting incident. Hr’g
Tr., Nov. 3, 2009 p.m. at 49-51. Likewise, defendant Ball testified that although he had provided
written statements following incidents involving the discharge of a weapon on at least two prior
occasions, he had never been interviewed by a State Department agent. Id. at 135-36.
Prosecutor Ponticello testified that the September 16, 2007 interviews were “the first time we
heard that oral interviews were given,” that “it was either Mr. Frost or Mr. Mealy [who] may
have testified that it was unusual for that to happen,” Hr’g Tr., Oct. 26, 2009 p.m. at 72-73, and
that based on his understanding, the process of having the Raven 23 members go to the U.S.
Embassy for questioning was not routine, Hr’g Tr., Oct. 27, 2009 p.m. at 57-58. Agent
Carpenter testified that when he reviewed the case files of prior shooting incidents, he found that
they “consisted mainly of the statements of those involved that had fired their weapon, an after-
action report by the team leader, and maybe a statement from another teammate in the detail
42
[who] . . . was there at the incident.”35 Hr’g Tr., Oct. 16, 2009 p.m. at 105. This evidence
indicates that the defendants’ September 16 oral interview statements were not the product of
routine, after-incident reporting, like the statements at issue in Cook.
b. The September 16, 2007 Were Conducted as Part of the DSS Investigation
The second distinguishing feature of Cook and the other cases cited by the government is
that they concerned statements generated prior to the initiation of any investigation into the
defendant’s conduct. See Cook, 526 F. Supp. 2d at 8 (observing that “the presumption
underlying Garrity and its progeny is that the subject employee is under investigation at the time
the challenged statement is made”); see also Devine, 680 F.2d at 247; Ruiz, 579 F.2d at 675-76;
Watson, 976 F. Supp. 2d at 954-55.36 In this case, however, there is ample evidence that the
September 16, 2007 interviews were conducted as part of an investigation into the defendants’
actions at Nisur Square. As an initial matter, the government admits that the shooting was
extraordinary in its violence and points out that in its immediate aftermath, U.S. and Iraqi forces
flooded the traffic circle and began documenting the scene and collecting physical evidence.
35
The State Department firearms policy, which the government introduced during the Kastigar
hearing, provides no support for the government’s position. See generally Govt’s Ex. 52
(“Department of State Deadly Force and Firearms Policy”). Although the firearms policy
required State Department employees to “orally report [firearms] discharge immediately to his or
her direct supervisor,” it did not provide for routine interviews by DSS investigators following
such an incident. See id. at 13-14. In fact, the firearms policy states that an employee “shall be
advised of the right to have his or her own representative present at any meeting when the
[employee] is asked by authorized officials to provide information regarding his or her discharge
of a firearm.” Id. at 13. This indicates that the State Department recognized that any questioning
by DSS investigators following a shooting incident could expose the employee to peril.
36
The government also relies on United States v. Trevino, 215 Fed. Appx. 319 (5th Cir. 2007), a
case in which the Fifth Circuit found no coercion when an off-duty officer was called into the
station for questioning and escorted into the interrogation room by the Chief of Police. Id. at 321-
22. Yet in reaching its conclusion, the court looked to the “surrounding circumstances,
specifically focusing on whether the questioning was coercive,” and based its holding on the fact
that there were no supervisors present during the questioning and that the defendant was told
before questioning began that he was free to leave the interrogation room at any time. Id. at 322
(citing Friedrick, 842 F.2d at 395). Trevino is therefore plainly inapposite.
43
Govt’s Mem. at 2, 7-8. Two experienced, high-ranking U.S. military officers, Colonels Boslego
and Tarsa, arrived on the scene less than an hour after the incident and reportedly found little
evidence of insurgent activity. Id. Accordingly, the specter of improper and potentially criminal
conduct was apparent to government officials almost immediately after the incident.
Agent Carpenter testified that from September 16, 2007 onward, he and his agents “were
conducting an investigation. We were trying to get to what happened that day. My initial
indications [were] that . . . Blackwater personnel were responding to some type of ambush, and I
was trying to get to that issue.” Hr’g Tr., Oct. 19, 2009 p.m. at 103-04. Accordingly, Agent
Carpenter acknowledged in his investigative report that “[o]n September 16, 2007, the Regional
Security Office (RSO) initiated an administrative investigation into the application of deadly
force by Personal Protective Specialists (PSS) assigned to [Raven 23].” Defs.’ Carpenter Ex.
6(a) at 1.
The fact that the DSS agents were not merely “documenting” the shooting on September
16, 2007 is further illustrated by current State Department investigative guidelines. These
guidelines provide for an initial debriefing following any serious incident “for the purpose of
gathering information needed to assure appropriate incident response and management, and to
assure that the operational responsibilities of the RSO related to the security of mission personnel
are properly carried out” – in other words, expressly the type of routine initial debriefing that the
government argues was taking place on September 16, 2007. Govt’s Ex. 35 at 4. Yet these
guidelines require only “the Shift Leader” and the “Tactical Commander,” rather than every
member of the detail, to report for this initial debriefing. Id. This procedure, of course, is
consistent with the purpose of routine State Department debriefing, which is “to learn quickly the
44
key and readily-available facts of an incident (who, what, when, where).” Id. The debriefing is
expressly “not intended to cover all known details.” Id.
Agent Carpenter testified that immediately after the Raven 23 convoy returned to the
U.S. Embassy, Jim Watson and Cory Wainscott, Raven 23’s Shift Leader and Tactical
Commander, see Govt’s Ex. 2, provided an initial debriefing to summarize the events that had
occurred at Nisur Square. Hr’g Tr., Oct. 16, 2009 p.m. at 115-16. Although Agent Carpenter
acknowledged that this debriefing provided him with a “basic understanding” of what had
occurred, he nonetheless ordered all nineteen members of Raven 23 to appear for interviews to
obtain additional details about the incident. Id. at 116.
More fundamentally, it is beyond dispute that at some point, Agent Carpenter and his
DSS agents were conducting a full blown investigation into the defendants’ actions at Nisur
Square. Hr’g Tr., Oct. 19, 2009 p.m. at 103-04. In the days following the shooting, these agents
repeatedly interviewed those Raven 23 members who had acknowledged firing their weapons to
obtain details of their accounts. See Defs.’ Scollan Exs. 3-5; Defs.’ Lopez Ex. 5. They also
conducted a physical search of Nisur Square to test the shooters’ accounts. Defs.’ Carpenter Ex.
8. The court sees no persuasive justification for treating the defendants’ September 16 interview
statements – which were taken by the same agents who conducted the subsequent investigation
and concerned the same events described in subsequent compelled statements – as wholly
distinct from the investigation that followed. Rather, the court is persuaded that the September
16, 2007 interviews comprised the initial stage of an administrative investigation into a uniquely
violent event, an investigation that continued over several days and culminated in the preparation
of the investigative report prepared by Agent Carpenter and provided to the Justice Department.
45
In light of the evidence described above, the court concludes that the September 16, 2007
interviews were not conducted pursuant to any routine, standardized reporting requirement, but
were instead taken as part of the DSS investigation into Raven 23’s actions at Nisur Square.
Accordingly, the government’s reliance on Cook and similar authorities is misplaced.
3. The Allegedly False and Exculpatory Nature of the Accounts
Lastly, the government argues that the defendants’ September 16 interview statements (as
well as their subsequent oral and written statements to DSS investigators) are not entitled to Fifth
Amendment protection because they contain nothing more than the defendants’ false,
exculpatory accounts of the events at Nisur Square. Govt’s Mem. at 25, 44 n.203. The
defendants respond that the content of the defendants’ statements has no bearing on whether
Garrity applies. Defs.’ Mem. at 5-6; Defs.’ Reply Mem. at 22-24.
The government’s assertion that the falsity of the defendants’ statements renders
inapplicable the Fifth Amendment privilege against self-incrimination requires little discussion.
The Supreme Court has held that the question of coercion under the self-incrimination clause “is
to be answered with complete disregard of whether or not [the accused] in fact spoke the truth.”
Rogers v. Richmond, 365 U.S. 534, 544 (1961); Shotwell Mfg. Co. v. United States, 371 U.S.
341, 351 & n.10 (1963) (concluding that although the self-incrimination clause did not prohibit
prosecutorial use of false statements made pursuant to a voluntary disclosure policy, “[a] quite
different case would be presented if an offer of immunity had been specifically directed to
petitioners in the context of an investigation, accusation, or prosecution” because “the truth or
falsity of such a disclosure would then be irrelevant to the question of its admissibility”); North I,
46
910 F.2d at 861 (observing that “Kastigar addresses ‘use,’ not ‘truth’”).37
The authorities cited by the government indicate only that the Fifth Amendment does not
prohibit the government from prosecuting a defendant for making a false statement under a grant
of immunity. See United States v. Apfelbaum, 445 U.S. 115, 121-22 (1980) (observing that the
federal immunity statute “makes no distinction between truthful and untruthful statements made
during the course of the immunized testimony” but instead “creates a blanket exception from the
bar against the use of immunized testimony in cases in which the witness is subsequently
prosecuted for making false statements”); cf. Brogan v. United States, 522 U.S. 398, 404 (1998)
(affirming the defendant’s conviction for making a false statement because “neither the text nor
the spirit of the Fifth Amendment confers a privilege to lie”); United States v. Knox, 396 U.S. 77,
82 (1969) (holding that the Fifth Amendment did not prohibit the use of a compelled statement in
a prosecution for submitting false information on a federal form); United States v. White, 887
F.2d 267, 273-74 (D.C. Cir. 1989) (affirming the defendant’s conviction for making a false
statement); United States v. Veal, 153 F.3d 1233, 1240 (11th Cir. 1998) (holding that Garrity
does not prohibit a subsequent perjury or obstruction of justice charge if a witness makes a false
statement); Cook, 526 F. Supp. 2d at 9 (noting that even if the defendant could demonstrate that
Garrity applied to statements made in a written reports, Garrity would not prevent the
introduction of his reports as evidence in connection with the false statements and obstruction of
justice charges levied against him). Accordingly, the court concludes that the alleged falsity of
37
The court finds the Friedrick case illustrative with respect to this issue. The January 1986
interviews at issue in Friedrick were conducted over four days. 842 F.2d at 387-88. During the
first day of questioning, the defendant largely maintained that he had not committed any
wrongdoing. Id. But on the second day of questioning in January 1986, the defendant admitted
that the heart of his original account, which he had repeated the day before, was a fabrication. Id.
at 388. The Circuit held that all of the defendant’s January 1986 statements were inadmissible
under Garrity, drawing no distinction between the admittedly false statements made on the first
day of questioning and the inculpatory statements that followed. Id. at 402.
47
certain portions of the defendants’ statements to DSS investigators has no bearing on whether
these statements are compelled for purposes of Garrity and Kastigar.
As for the exculpatory nature of the defendants’ accounts, the Supreme Court has stated
that “[t]he Fifth Amendment prohibits only compelled testimony that is incriminating.” Hiibel v.
Sixth Judicial Dist. Court of Nev., Humboldt County, 542 U.S. 177, 189 (2004) (emphasis
added). Yet the Court has defined “incrimination” broadly to encompass not only “answers that
would in themselves support a conviction . . . but likewise . . . those which would furnish a link
in the chain of evidence needed to prosecute the [defendant].” Hoffman v. United States, 341
U.S. 479, 486 (1951). “Compelled testimony that communicates information that may ‘lead to
incriminating evidence’ is privileged even if the information itself is not inculpatory.” Hubbell,
530 U.S. at 38 (quoting Doe v. United States, 487 U.S. 201, 208 n.6 (1988)); Kastigar, 406 U.S.
at 445 (remarking that the Fifth Amendment privilege against self-incrimination “protects
against any disclosures that the witness reasonably believes could be used in a criminal
prosecution or could lead to other evidence that might be so used”) (emphasis added).
Indeed, the Supreme Court has made clear that it has “never held that the privilege is
unavailable to those who claim innocence. To the contrary, [the Court has] emphasized that one
of the Fifth Amendment’s ‘basic functions . . . is to protect innocent men . . . who otherwise
might be ensnared by ambiguous circumstances.’” Ohio v. Reiner, 532 U.S. 17, 21 (2001)
(reversing the Supreme Court of Ohio’s holding that a witness’s assertion of innocence deprived
her of her Fifth Amendment privilege against self-incrimination) (quoting Grunewald v. United
States, 353 U.S. 391, 421 (1957) (internal quotation marks omitted). The defendant in Reiner,
who had been convicted of involuntary manslaughter in connection with the death of his son,
claimed that his son’s babysitter was the individual responsible for the death. Id. at 18. Because
48
the babysitter indicated that she would assert her Fifth Amendment privilege if called to testify,
the trial court granted the government’s request that she be given transactional immunity for her
testimony. Id. At trial, she testified that she had had no involvement in the child’s death and had
not caused any of his injuries. Id. at 18-19. The Supreme Court of Ohio held that the trial
court’s grant of immunity was unlawful because the fact that the witness asserted her innocence
made it impossible for her to invoke a Fifth Amendment privilege against self-incrimination. Id.
at 19. The Supreme Court reversed, noting that “[i]t need only be evident from the implications
of the question, in the setting in which it is asked, that a responsive answer to the question or an
explanation of why it cannot be answered might be dangerous because injurious disclosure could
result.” Id. (quoting Hoffman, 341 U.S. at 486). The Court concluded that the babysitter had
reasonable cause to believe that her answers could expose her to risk if questioned at trial, given
that she had spent extended periods of time alone with the victim immediately preceding his
injuries, she was with the victim within the potential timeframe of the fatal trauma and the
defense’s theory was that she was responsible for the child’s death. Id. at 22.
For the reasons previously discussed, see supra Part III.B.1, the court concludes that it
was evident to the defendants, based on the circumstances under which they made their
statements to DSS investigators, that their answers could have resulted in injurious disclosure.
More specifically, these statements, given to government investigators immediately after an
extraordinarily violent incident in which they had all played some role, disclosed a host of
information potentially injurious to each of the defendants, including the fact that he fired his
weapons, the type of weapons he used and the directions in which he fired. Even the statements
made by defendant Liberty, who did not acknowledge firing his weapon, revealed particular
details of the insurgent activity he allegedly saw and the specific locations of the threats he
49
allegedly perceived. There is little doubt that some or all of this information could form a link in
the chain of evidence used against the defendants, and at the very least, could have led to the
discovery of inculpatory evidence. See Hubbell, 530 U.S. at 38; Hoffman, 341 U.S. at 486.
In each of the authorities on which the government relies, the court’s determination that
there was no Kastigar violation turned not on the fact that the immunized statement was
exculpatory, but rather on the fact that the prosecution did not use the defendant’s statement
against him or her. See United States v. Bartel, 19 F.3d 1105, 1113 (6th Cir. 1994) (holding that
the government had met its Kastigar burden and that the defendant’s “exculpatory, non-
incriminating testimony did not contribute in any conceivable manner to his being indicted”);
United States v. Caporale, 806 F.2d 1487, 1518 (11th Cir. 1986) (noting that the immunized
testimony “was self-serving and of no real value in the subsequent investigation”); United States
v. Anderson, 450 A.2d 446, 451 (D.C. 1982) (finding that prosecutors did not use the defendant’s
exculpatory account to obtain investigatory leads or to focus the investigation). The government
has cited to no authority indicating that the exculpatory nature of a defendant’s statement
automatically renders the Fifth Amendment privilege against self-incrimination inapplicable, and
indeed, such a holding would be inconsistent with the Supreme Court’s reasoning in Reiner. See
Reiner, 532 U.S. at 21; cf. Illinois v. Perkins, 496 U.S. 292, 303 (1990) (noting that the
government “may not use statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination”) (quoting Miranda v. Arizona, 384
U.S. 436, 444 (1966)). Accordingly, the mere fact that the defendants maintained their
innocence in the statements given to the DSS investigators does not preclude them from invoking
the Fifth Amendment protections articulated in Garrity and Kastigar.
50
C. The Government Failed to Prove by a Preponderance of the Evidence That It Made No

Impermissible Use of the Defendants’ Compelled Garrity Statements
The defendants maintain that the government made impermissible evidentiary and
nonevidentiary use of the defendants’ compelled Garrity statements in prosecuting this case.
Noting that the prosecutors, investigators and government witnesses were thoroughly exposed to
the defendants’ compelled statements, they contend that the taint of the defendants’ compelled
statements has infiltrated nearly every aspect of this prosecution and that as a result, the
indictment must be dismissed. The government asserts, however, that it made no impermissible
use of the defendants’ compelled statements and that any such use that may have occurred was
harmless beyond a reasonable doubt. The court now turns to the specific categories of potential
“use” that form the heart of this dispute.
1. Evidentiary Use of the Defendants’ Garrity Statements
a. The Statements of Frost and Murphy Before the First and Second
Grand Jury Were Tainted
Without question, the testimony of Frost, Murphy and Mealy played a critical role in the
government’s presentations to the first and second grand juries. These witnesses identified
which members of the Raven 23 convoy were the shooters, provided detailed accounts of the
events that occurred at Nisur Square and testified regarding the absence of any threat justifying
the defendants’ actions. See generally GJ Exs. 89-94. Among all of the Raven 23 team
members who testified at the first grand jury, the prosecutors chose to rely solely on the
testimony of Frost, Murphy and Mealy to obtain the indictment from the second grand jury. See
generally id.
51
It is equally clear that by the time they testified at the first grand jury, Frost and Murphy
had been thoroughly immersed in the defendants’ compelled Garrity statements.38 Media reports
alluding to the statements made to DSS investigators began to appear almost immediately after
the incident, see, e.g., Defs.’ Media Exs. 23, 28, and excerpts from the defendants’ written
statements began to appear shortly thereafter, see, e.g., Defs.’ Media Exs. 2, 6, 7, 13, 14, 23.
Frost indicated that in the days following the shooting, he read numerous news reports on the
Internet regarding the events at Nisur Square. Defs.’ Frost Ex. 6 at 1. Frost and Murphy both set
up “Google News” alerts, through which they were e-mailed multiple news articles each day
regarding the Nisur Square incident. Hr’g Tr., Oct. 21, 2009 p.m. at 26-27; Hr’g Tr., Oct. 14,
2009 p.m. at 27. Frost and Murphy both acknowledged reading the September 18 written
statements of defendants Slatten and Slough, and Murphy further acknowledged reading the
written statement of defendant Ball as well, all of which had been posted on the Internet. Hr’g
Tr., Oct. 21, 2009 p.m. at 25-26; Hr’g Tr., Oct. 14, 2009 p.m. at 6, 74-75, 88-89. And on
October 2, 2007, Frost and Murphy received an e-mail from Raven 23 team member Edward
Randall containing a link to an ABC News televised report, which purported to be based on the
written statements of all nineteen Raven 23 members and quoted extensively from several
statements, including Slough’s. See Defs.’ Murphy Ex. 8; Hr’g Tr., Oct. 14, 2009 p.m. at 7.
Neither Frost nor Murphy recalled ever being warned by the government’s trial team to avoid
exposure to news coverage about the incident or to the sworn statements given by the defendants.
Hr’g Tr., Oct. 14, 2009 p.m. at 64; Hr’g Tr., Oct. 21, 2009 p.m. at 27.
At the Kastigar hearing, both Frost and Murphy testified that despite their unbounded
38
Although Mealy also acknowledged that he may have read the compelled statements of other
Raven 23 team members in media accounts, see Hr’g Tr., Oct. 19, 2009 a.m. at 54, the extent of
his exposure to those statements is less clear.
52
exposure to the defendants’ compelled statements, they could testify based on their personal
recollections alone and segregate any information learned from the compelled statements they
had read. Hr’g Tr., Oct. 14, 2009 p.m. at 16; Hr’g Tr., Oct. 21, 2009 a.m. at 97. Yet when
government prosecutors reviewed the testimony given by Frost and Murphy to the first grand
jury, they saw signs that numerous portions of the testimony were influenced by the witnesses’
exposure to the defendants’ compelled statements. Govt’s June 30, 2009 Letter at 5.
Although the prosecutors redacted some tainted material from the transcripts before
presenting them to the second grand jury, Defs.’ Kohl Ex. 46 at 10-12, the efficacy of these
efforts was necessarily limited by the fact that the prosecutors and taint attorneys could only
identify taint apparent on the face of the transcripts. The shortcomings of this process were
exposed at the Kastigar hearing, during which the defendants identified several instances in
which the prosecutors failed to redact – and therefore presented to the second grand jury –
portions of testimony from Frost and Murphy that had been shaped by their exposure to the
defendants’ compelled statements.
The starkest examples concern the testimony regarding defendant Slatten. Frost wrote in
his September 18, 2007 statement that at the beginning of the shooting, he heard “two pops”
coming from either the command vehicle or the follow vehicle, which he assumed were “pen
flares,” a type of warning flare fired as a signal to nearby vehicles not to approach. Defs.’ Frost
Ex. 7; Hr’g Tr., Oct. 21, 2009 p.m. at 11-12. When he appeared before the first grand jury on
November 27, 2007, however, Frost testified that although he had originally thought that the two
pops had been pen flares, “if [he] had to guess right now, [he would] say that those two pops
were from the sniper rifle out of the command vehicle.”39 GJ Ex. 89 at 60. Frost would again
39
Defendant Slatten was the only member of the Raven 23 convoy armed with a sniper rifle. Hr’g
Tr., Oct. 21, 2009 p.m. at 28.
53
testify before the first grand jury that although his conclusion was not based on any damage that
he saw, and although he never saw Slatten fire his weapon, the two pops “sounded like a 308
[sniper] rifle” and that “the sniper rifle is what [he thought] it was.” GJ Ex. 90 at 25. Again,
Frost would later testify, “[b]ased on the sound, I think it was his – I think it was the rifle,”
referring to Slatten’s sniper rifle. Id. at 90. None of this testimony was redacted from the
transcript that was presented to the second grand jury. GJ Ex. 89 at 60; GJ Ex. 90 at 25, 90.
Likewise, in the first moments of the Nisur Square shooting, Murphy also heard several
“loud pops” and immediately turned to others in his vehicle to ask if they were the sound of pen
flares.40 Hr’g Tr., Oct. 14, 2009 p.m. at 91-93. Yet Murphy testified before the first grand jury
that although he could not be certain, he believed the two loud pops were shots fired from
Slatten’s sniper rifle. GJ Ex. 94 at 22. This testimony was also presented to the second grand
jury.41 See id.
Thus, in the immediate aftermath of the incident, neither Frost nor Murphy indicated that
he believed that the loud pops were shots fired by defendant Slatten and, in fact, both witnesses’
immediate reaction was that the loud pops were likely pen flares. Yet when they testified before
the first grand jury two months later, both men testified that they believed the two loud pops
were shots fired by Slatten from his sniper rifle.
40
Mealy also testified at the grand jury that “the first thing that happened significantly was I heard
what I thought was some pen flares being fired from behind me.” GJ Ex. 92 at 37.
41
Agent Powell testified at the second grand jury that “[a]ccording to Murphy and Frost, the initial
rounds that were fired . . . sounded to them like they were from Slatten’s sniper rifle.” Govt’s Ex.
1 (Grand Jury Tr., Dec. 2, 2008 p.m. at 38). Frost testified that this summary of testimony was
inaccurate, in that it failed to reflect the qualifications he had given in connection with his
testimony to the first grand jury. See Hr’g Tr., Oct. 21, 2009 p.m. at 24-25.
54
Both Frost and Murphy acknowledged reading the sworn written statement given by
Slatten to State Department investigators, in which he acknowledged firing his sniper rifle at
threats he allegedly perceived at Nisur Square. Hr’g Tr., Oct. 14, 2009 p.m. at 6-7, 55; Hr’g Tr.,
Oct. 21, 2009 a.m. at 82; Hr’g Tr., Oct. 21, 2009 p.m. at 26. Thus, the evidence overwhelmingly
suggests that the evolution of Frost and Murphy’s recollections of the events at Nisur Square
resulted from their exposure to Slatten’s written statement.42
These witnesses’ inability to disaggregate what they had personally witnessed from what
they later read about the incident was further evidenced by Murphy’s testimony regarding
defendant Slough. Murphy testified before the first grand jury that immediately after he heard
the “two pops,” he “heard automatic weapons fire coming from [he] believe[d] Paul Slough, but
[he] wasn’t looking back at the time.” GJ Ex. 94 at 23. At the Kastigar hearing, Murphy
acknowledged that his testimony may have been influenced by his exposure to Slough’s written
statement:
Q: [A]t the time you gave this testimony you had already read Paul Slough’s
sworn statement?
A: I believe so.
Q: And you knew from that sworn statement that he acknowledged firing at
the white Kia at the outset of the incident, didn’t you?
A: I would have, yeah.
Q: So this testimony where you represented you believed it was Paul Slough
firing, but you didn’t see who was shooting it, was influenced in part by
what you read; isn’t that fair to say?
A: Yeah, that would be fair to say.
Hr’g Tr., Oct. 14, 2009 p.m. at 115.
42
Indeed, the government has acknowledged as much, having moved for leave to dismiss the
indictment against Slatten based on the presentation of this tainted testimony before the second
grand jury. See Govt’s Reply Mem. at 11 n.33.
55
On redirect examination, Murphy reiterated that he assumed that defendant Slough had
fired the initial burst of automatic gunfire based on the direction from which he heard the shots
coming. Id. at 125. But this fact underscores the scope of impermissible use that Kastigar
prohibits. For even if Murphy’s first impression as to the source of the initial burst of automatic
gunfire was based solely on his perception of the incident, his testimony at the Kastigar hearing
indicates that he found confirmation for that initial impression in Slough’s own account of the
incident, and that this influenced his testimony that he “believed” that Slough had fired the initial
burst of automatic gunfire at the white Kia. Id. at 115; GJ Ex. 94 at 23. This constitutes a
squarely impermissible evidentiary use of Slough’s compelled statement. See North I, 910 F.2d
at 861 (stating that “[i]f the government uses immunized testimony to refresh the recollection of
a witness (or to sharpen his memory or focus his thought) when the witness testifies before a
grand jury . . . then the government clearly has used the immunized testimony”).
As it did with the tainted testimony regarding Slatten, the prosecution presented
Murphy’s tainted testimony from the first grand jury to the second grand jury. See GJ Ex. 94 at
23. This occurred because the taint was not apparent on the face of the transcript and because
the prosecution made no effort before presenting Frost and Murphy to the first grand jury to
ascertain the extent to which they could segregate their personal recollections from the accounts
they had read.43 Accordingly, the court concludes that the government made impermissible
evidentiary use of the compelled statements of Slatten and Slough to obtain the indictment
against them.
43
Frost testified that prior to his appearance before the first grand jury in November 2007, no
government taint attorneys met with him to determine whether he had seen any of the defendants’
written statements. Hr’g Tr., Oct. 21, 2009 p.m. at 40. Prosecutor Ponticello testified that prior
to putting Frost and Mealy on the stand, the prosecutors did not ask them about their exposure to
the defendants’ compelled statements. Hr’g Tr., Oct. 21, 2009 a.m. at 69.
56
Moreover, the evidence described above casts substantial doubt on the assertions of
Murphy and Frost that they were able to segregate what they had seen and heard from what they
had read of all of the defendants’ compelled accounts. Although the government emphasizes
that Frost and Murphy personally witnessed many of the events about which they testified,
Govt’s Mem. at 29-32; Govt’s Post-Hr’g Reply Mem. (“Govt’s Reply Mem.”) at 20, this fact
would be insufficient to satisfy the government’s burden, as Kastigar bars the use of immunized
statements to shape in any way the evidence presented to the grand jury. See Hylton, 294 F.3d at
134 (observing that the government “must demonstrate that witnesses who testified against the
defendant were not influenced – ‘shaped, altered, or affected’ – by that information”); United
States v. Poindexter, 951 F.2d 369, 376 (D.C. Cir. 1992) (holding that it is the government’s
burden “to demonstrate that the immunized testimony did not influence the witness”) (emphasis
omitted); North II, 920 F.2d at 942 (observing that Kastigar is violated “whenever the
prosecution puts on a witness whose testimony is shaped, directly or indirectly, by compelled
testimony”). The evidence described above reveals the manner in which the defendants’
compelled statements could (and did) influence these witnesses’ testimony in ways not apparent
on the face of the transcript. And even if the government could identify specific areas of
testimony that were demonstrably free from taint, this fact would hardly establish that the
witnesses’ exposure did not influence other areas of their testimony. See Poindexter, 951 F.2d at
376 (observing that “where a substantially exposed witness does not persuasively claim that he
can segregate the effects of his exposure, the prosecution does not meet its burden merely by
pointing to other statements of the same witness that were not themselves shown to be
[]tainted”).
57
Given the fact that Frost and Murphy were exposed to dozens of media accounts based on
all of the defendants’ compelled statements, the fact that the prosecutors identified numerous
instances in which Frost and Murphy testified based on the defendants’ statements (despite
having been admonished not to do so), and the fact that the defendants identified multiple other
instances in which tainted testimony was presented to the second grand jury because the taint
was not readily apparent from the transcript of the first grand jury, the court finds unpersuasive
the claims that Frost and Murphy were able to segregate the effects of their exposure to the
defendants’ compelled statements. In addition, the court concludes that the haphazard measures
taken by the government to salvage this testimony before presenting it to the second grand jury
were sorely deficient, as was starkly demonstrated at the Kastigar hearing. Therefore, the
government has failed to carry its burden of demonstrating by a preponderance of the evidence
that the compelled statements of the defendants, to which Frost and Murphy were concededly
exposed, did not in any way influence their testimony as it was presented to the second grand
jury.
Although it is not necessary for the court to assign fault to find that a Kastigar violation
occurred, see North II, 920 F.2d at 942, the court notes that the government could have taken
certain common sense precautions before presenting its case to the first and second grand juries
to mitigate the risk posed by the taint issue. The prosecutors and investigators were, after all,
aware from the very moment they were assigned to this case in late September 2007 that there
was a significant taint problem in this case, one that prompted the entire Criminal Division of the
Justice Department to recuse itself from this prosecution. See Govt’s May 29, 2009 Letter at 2.
The prosecutors and investigators could have memorialized any relevant testimony at the outset
of the investigation to create a record establishing the absence of taint. Cf. North I, 910 F.2d at
58
943 (observing that if the prosecution fails to “can” a witness’s testimony prior to his or her
exposure to immunized testimony, “it may well be extremely difficult for the prosecutor to
sustain its burden of proof that a witness exposed to immunized testimony has not shaped his or
her testimony in light of the exposure, or . . . been motivated to come forward and testify in light
of the immunized testimony”). Failing that, the government could have directed taint attorneys
to meet with the potentially tainted witnesses before they testified at the grand jury to probe the
extent to which they could testify based on personal recollection and identify areas in which their
recollections were intertwined with information gleaned from the defendants’ compelled
statement. See id. at 863 (noting that “[a] central problem in this case is that many grand jury
and trial witnesses were thoroughly soaked in [the defendant’s] immunized testimony, but no
effort was made to determine what effect, if any, this extensive exposure had on their
testimony”). At a bare minimum, the government’s trial team could have advised the witnesses
in October 2007 not to seek out press reports containing the defendants’ compelled accounts to
DSS investigators. The prosecutors and investigators in this case took none of these precautions
and the result was a clear violation of the defendants’ constitutional rights. Absent a showing of
harmlessness beyond a reasonable doubt, the dismissal of the indictment is the only permissible
result.
b. The Frost Journal Was Tainted
During both grand jury proceedings, the government relied on a document prepared by
Frost titled “16 September 2007: G87 traffic circle (A true account of the events as witnessed on
my part)” (“the Frost Journal”). GJ Ex. 1 at 39-47; see generally Govt’s Ex. 51. The document
is comprised of nine single-spaced typewritten pages in two parts: the first dated September 21,
2007, and the second dated October 3, 2007. See generally Govt’s Ex. 51. The parties did not
59
submit evidence concerning how long it took Frost to compose each part of the document or if
and when Frost revised either portion of the document. See Hr’g Tr., Oct. 21, 2009 a.m. at 88-
94; Hr’g Tr. Oct. 21, 2009 p.m. at 12-14, 40-42.
The Frost Journal contains a detailed account of the Nisur Square incident, told from
Frost’s perspective, including the events leading up to and immediately following the shooting.
See generally Govt’s Ex. 51. The government takes the position that the Frost Journal
constitutes an independent, untainted account, Govt’s Mem. at 31; Govt’s Reply at 20-21, while
the defendants assert that the document was tainted because it was drafted in response to the
defendants’ compelled statements, Defs.’ Mem. at 14-15.
The Circuit has made clear that Kastigar prohibits prosecutors from using immunized
testimony to influence a witness’s decision to testify. See Hylton, 294 F.3d at 134 (stating that it
is “rather obvious, under Kastigar and North, that if Hylton’s [immunized] statements were a
cause of Wright’s decision to plead and testify against Hylton, Wright’s testimony was
impermissible even if the government had prior knowledge of Wright’s role”); see also North I,
910 F.2d at 864 (noting that the testimony of Robert McFarlane, a key government witness,
constituted an impermissible evidentiary use because his testimony was motivated by and
directly responded to immunized testimony given by the defendant); North II, 920 F.2d at 942
(holding that “even where a witness testifies from personal knowledge, use within the meaning
of Kastigar may occur . . . if the immunized testimony influenced the witness’ decision to
testify”).
The Frost Journal begins with four paragraphs explaining Frost’s motivation for
authoring the account:
60
It is now the 21st of September and I feel that I must put my eyewitness account of
what I have seen down on paper, so that as time goes further on my recollection is
not diminished on those sad events.
Since that Sunday I have read numerous articles on the internet about the events
of that day. From the NY Times, LA Times, AP, UPI, Reuters, and various other
outlets. I have seen on various forum discussions on what happened based on
those news stories and the obligatory opinions offered with the no real idea of
what truly happened out there.
Many times I have hit the respond key and typed my message out only to stop,
rethink and delete what I had written.
As of now, 5 days after the event, it seems that the [State Department] and
[Blackwater] are locked into their stories and the real story will forever stay
shrouded from the public[.]
Govt’s Ex. 51 at 1.
The foregoing indicates that at least two motivations compelled Frost to write the journal.
The first was his desire to preserve his recollection. See id. The second, however, was his desire
to respond to news reports reflecting the false “stories” of the State Department and Blackwater;
he devotes three out of four paragraphs of the introduction to describing the latter. See id.
Frost’s testimony at the Kastigar hearing confirmed the dual motivations underlying his
creation of the journal. He testified that the “main reason” he wrote the account was to
memorialize the events to “keep everything straight.” Hr’g Tr., Oct. 21, 2009 a.m. at 90; Hr’g
Tr., Oct. 21, 2009 p.m. at 41. He also, however, acknowledged that part of his motivation
resulted from his review of news articles which he felt were inaccurate and his desire to set the
record straight. Hr’g Tr., Oct. 21, 2009 p.m. at 41.
A review of the media accounts published between September 16, 2007 and September
21, 2007 reveals that the State Department’s “story” was that Raven 23 took action after coming
61
under small arms fire,44 an account that was clearly based on the content of the defendants’
compelled statements to State Department investigators.45 For instance, on September 17, 2007,
Time/CNN reported that it “had obtained an incident report prepared by the U.S. government
describing the firefight” which stated that “the motorcade was engaged with small arms fire from
several locations” and that the convoy “returned fire to several identified targets” before leaving
the area. Defs.’ Media Ex. 23. On September 19, 2007, ABC News produced a report stating
that officials were investigating “how many, if any, bullet holes there are in the Blackwater
vehicles, to confirm the Blackwater guards’ version of events that they were fired upon.” Defs.’
Media Ex. 28. Likewise, on September 21, 2007, the Los Angeles Times published a statement
from a State Department spokesperson indicating that the Raven 23 convoy “came under attack,
and there was defensive fire as a result of that.” Defs.’ Media Ex. 40. This evidence indicates
that the Frost Journal was prepared, at least in part, as a response to the accounts given by the
defendants and other Raven 23 members, which were conveyed to the media through the State
44
Indeed, Frost recalled that the press accounts he read in the immediate aftermath of the incident
included reports that the Raven 23 convoy had received incoming fire. Hr’g Tr., Oct. 21, 2009
p.m. at 45-46.
45
The government itself points out that the physical investigation conducted in the immediate
aftermath of the incident suggested that there had not been any insurgent activity at Nisur Square
on the afternoon of September 16, 2007. See Govt’s Mem. at 7-8.
62
Department.46
The government points out that Frost demonstrated a desire to give his account of the
incident before he was exposed to any such media accounts; in the immediate aftermath of the
incident, Frost contacted Wainscott, his superior in Raven 23, to tell him that he felt
uncomfortable about the things he had seen, and met with other members of the convoy who also
had concerns about what had transpired. Hr’g Tr., Oct. 21, 2009 a.m. at 71-75. Indeed, the court
has no doubt that Frost’s feelings about the events of September 16, 2007 instilled in him a
desire to tell his story and may well have played a role in his decision to write the Frost Journal.
See id. at 90-91.
Yet the Circuit has never suggested that Kastigar applies only in circumstances in which
a witness’s exposure to immunized testimony was the sole or principal cause of his decision to
provide inculpatory evidence against the defendant. To the contrary, the Circuit has made clear
that a Kastigar violation occurs whenever exposure to immunized testimony was “a cause” of the
witness’s decision to testify, see Hylton, 294 F.3d at 134, and that impermissible use within the
meaning of Kastigar occurs when the immunized testimony “influences” the witness’s decision
to testify, see North II, 920 F.2d at 942. This much is easily established by the opening
46
This situation is readily distinguishable from United States v. Helmsley, 941 F.2d 71 (2d Cir.
1991), in which the defendant’s immunized testimony motivated a reporter to publish an article
about the defendant unrelated to that testimony, which in turn prompted the prosecution against
the defendant, id. at 82. The Second Circuit held that no Kastigar violation had occurred because
there was no connection between the content of the defendant’s immunized testimony and any
evidence used in the prosecution. Id.; see also United States v. Kilroy, 27 F.3d 679, 588 (D.C.
Cir. 1994) (holding Kastigar does not apply “to situations in which the publicity concerning
immunized testimony triggers a purely private investigation into an entirely different matter”)
(quoting Helmsley, 941 F.2d at 83). Here, by contrast, not only did the content of the defendants’
statements – specifically, the fact that they were allegedly responding to small arms fire – play a
motivating role in the creation of the Frost Journal; they were actually alluded to in the journal.
See Govt’s Ex. 51 at 1. This constitutes an impermissible evidentiary use of the defendants’
compelled statements. See Helmsley, 941 F.2d at 83 (noting that “where the grant of immunity in
the course of an investigation 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”).
63
paragraphs of the Frost Journal and his testimony at the Kastigar hearing. Because the
defendants’ compelled statements were a cause of Frost’s decision to draft the Frost Journal, it is
tainted and its use in the grand jury was impermissible.47
In the October 3, 2007 portion of the Frost Journal – written after the contents of the
defendants’ September 18 written statements appeared in news reports and after Slough’s written
statement had been posted to the Internet – Frost expressed his anger that the defendants had not,
in his view, given truthful accounts to DSS investigators:
‘You guys did nothing wrong out there, and we’ve been completely honest with
the State Department with their investigation[,]’ [t]he [Blackwater manager]
stated. I thought to myself, you [guys] have been anything but honest with the
State Department and their investigation . . . . We’ve been praised . . . for being
honest, coming forward and ‘doing the right thing’, however they haven’t done
the right thing by telling the State Department what they knew . . . . I left the
office with a rage building inside me.
Govt’s Ex. 51 at 8.
This passage makes clear that the October 3, 2007 portion of his account was motivated
by his exposure to the defendants’ compelled statements. Moreover, it casts significant doubt on
Frost’s cooperation with prosecutors. The meeting described in this portion of the Frost Journal
took place immediately before the FBI came to conduct interviews of the Raven 23 team
members, including Frost. Hr’g Tr., Oct. 21, 2009 a.m. at 94-95. The government relied heavily
47
In fact, Dobinski, a member of the taint team, advised the prosecutors not to use the Frost Journal
in the second grand jury, explaining that “the intro . . . refers to the media accounts (I.e.
Compelled statements) and says he wants to memorialize his recollection (presumably because
the media accounts were not revealing what really happened) – This smacks of the McFarlane
situation in North[.]” Govt’s Ex. 308. Dobinski predicted that the Frost Journal would “certainly
draw Kastigar fire from the defense and whoever defends it is going to have to attempt to explain
this possible government-inflicted taint of the (second) grand jury.” Id. After prosecutor Malis, a
member of the trial team, expressed his disagreement, Dobinski noted that her sense “of the
reasons Frost wrote his journal was that in his mind neither he nor the others had told the full
story. It would seem that how he suspected the full story was not told was because of what he
though he knew about the others’ compelled statements.” Id. Dobinski’s advice, like so much
advice of the taint team, was disregarded. Instead, the trial team chose to test the boundaries of
permissible use of questionable testimony and ignore the warnings of fellow prosecutors tasked
with advising them on precisely these issues. In so doing, it skated over the line.
64
on Frost because during his initial FBI interview, Frost left Agent Patarini with the “impression
that [he] had . . . a story that he would like to tell, and under the right circumstances he would tell
that to us.”48 Hr’g Tr., Oct. 21, 2009 p.m. at 104-05. The evidence thus suggests that as with
McFarlane in North I, Frost’s desire to cooperate with investigators, communicated to Agent
Patarini during his initial interview, was motivated by his desire to correct what he saw as
falsehoods in the defendants’ compelled accounts. This too reflects impermissible use of the
defendants’ compelled statements.
Moreover, the government failed to establish at the Kastigar hearing that the defendants’
compelled statements did not affect the content of the account contained in the Frost Journal.
Media reports reflecting the defendants’ compelled written statements began appearing on
September 28, 2007. See Defs.’ Media Ex. 2. Frost acknowledged reading the sworn written
statements of Slatten and Slough, and was exposed to numerous media accounts regarding the
Nisur Square shooting. Hr’g Tr., Oct. 21, 2009 a.m. at 82-83. Although it appears that Frost
began writing his account before the defendants’ compelled statements appeared in the news
media on September 28, 2007, there was no testimony or other evidence indicating that he
completed the September 21, 2007 portion of the journal, which spans seven single-spaced
pages, prior to his exposure to the defendants’ compelled statements. See id. at 64-98; Hr’g Tr.,
Oct. 21, 2009 a.m. at 88-94; Hr’g Tr. Oct. 21, 2009 p.m. at 12-14, 40-42; Govt’s Ex. 51 at 1-7.
Nor did the government present any evidence that Frost did not alter or amend the Frost Journal
at any time after his exposure. See Hr’g Tr., Oct. 21, 2009 a.m. at 64-98; Hr’g Tr., Oct. 21, 2009
p.m. at 1-61.
48
Frost did not suggest that any of his fellow Raven 23 members had committed any wrongdoing
during his September 16 interview with DSS agents or in his subsequent written statement. See
Defs.’ Reta Ex. 3; Defs.’ Frost Ex. 7; see also Hr’g Tr., Oct. 21, 2009 p.m. at 49-50.
65
This does not represent some “abstract possibility of taint.” See United States v. Byrd,
765 F.2d 1524, 1529 (11th Cir. 1985) (holding that the district court erred in finding a Kastigar
violation based on the mere “possibility” that the investigating agent had used the defendant’s
immunized testimony, despite the fact that all of the evidence relied on by the government had
been obtained prior to the time the defendant gave his immunized testimony). Frost was exposed
to the defendants’ compelled accounts during the time he was writing the Frost Journal. See
Govt’s Ex. 51 at 1-9; Hr’g Tr., Oct. 21, 2009 a.m. at 82-83. Those compelled statements dealt
with precisely the same events about which he was writing.49 See generally Govt’s Ex. 51;
Slough Stmt. (Sept. 18, 2007); Slatten Stmt. (Sept. 18, 2007); Ball Stmt. (Sept. 18, 2007); Heard
Stmt. (Sept. 18, 2007); Liberty Stmt. (Sept. 18, 2007). Furthermore, it is clear from the October
3, 2007 portion of the Frost Journal that the falsity of the defendants’ statements to the DSS
investigators had a powerful effect on Frost. See Govt’s Ex. 51 at 8-9. Under these
circumstances, it was clearly the government’s burden to show that this account was not affected
by Frost’s exposure to the defendants’ compelled statements. See Hylton, 294 F.3d at 134. The
government’s failure to meet this burden leaves the court with no choice but to find yet another
impermissible use of compelled testimony.
c. The Information Provided by Cooperating Witness Ridgeway Was Tainted
The government also relied heavily on information provided by cooperating witness
Ridgeway to obtain the indictment against the defendants. The prosecutors provided the second
grand jury with Ridgeway’s factual proffer in support of his guilty plea, which contained a
detailed account of the Nisur Square shooting and characterized the incident as an unprovoked
49
The Frost Journal describes in detail the actions and movements of Iraqi civilians and Iraqi police
officers in the traffic circle during the shooting, see Govt’s Ex. 51 at 3-5, descriptions that clearly
could have been shaped by (or written in response to) the defendants’ compelled statements
which Frost read around that time.
66
and unjustified assault on innocent civilians. See GJ Ex. 1 at 32-38; Govt’s Ex. 311 (Grand Jury
Tr., Nov. 20, 2008 a.m. at 63-72). The Ridgeway factual proffer devoted particular attention to
the engagement of the white Kia, concluding that “a reasonable person . . . would have
recognized that the white Kia did not exhibit any indicia of a VBIED attacker as provided in the
Missions Firearm Policy.” GJ Ex. 1 at 37.
The government also presented the second grand jury (through Agent Powell)50 with
statements given by Ridgeway to the FBI that provided detailed allegations against all of the
defendants other than Slatten. Govt’s Ex. 311 (Grand Jury Tr., Dec. 2, 2008 p.m. at 12-13).
Through Agent Powell, Ridgeway informed the second grand jury that Slough had fired an
M203 grenade at the white Kia and had fired at other locations around Nisur Square, id. at 13-14,
that Liberty admitted firing his weapon out of his driver’s porthole, id. at 31-32, that Heard fired
his machine gun at various targets to the south of the circle and also fired a grenade, id. at 34-36,
and that Ball admitted firing two shots at the white Kia sedan, id. at 44.
The defendants posit that by declining to call Ridgeway to testify at the Kastigar hearing,
the government failed to carry its burden and the indictment must be dismissed in its entirety.
Defs.’ Mem. at 8-12. They contend that North I prohibits the court from relying on mere
warnings and hearsay to conclude that the government has met its Kastigar burden, and requires
the government to submit every witness who testified at the grand jury to cross-examination at a
Kastigar hearing.51 Id. at 11-12.
50
To its credit, the government does not attempt to argue that the fact that Ridgeway did not testify
live at the second grand jury relieves the government of its burden to establish the absence of
taint for his statements. See generally Govt’s Mem.; Govt’s Reply Mem.
51
The defendants also assert – and the government does not dispute – that Ridgeway was in
Washington D.C. during the Kastigar hearing and that Ridgeway’s cooperation agreement
requires him to testify for the government upon request. Defs.’ Mem. at 12; see generally Govt’s
Reply Mem.
67
The government asserts that it may meet its Kastigar burden by relying on a combination
of different types of evidence, including live witnesses, documents and hearsay testimony.
Govt’s Reply Mem. at 5. The government notes that the court denied the defendants’ objections
to the introduction of hearsay testimony to establish the absence of taint for both Ridgeway and
the Iraqi witnesses, on the grounds that hearsay evidence is admissible at a pretrial suppression
hearing.52 Id. at 4; Hr’g Tr., Oct. 19, 2009 p.m. at 47; Hr’g Tr., Nov. 2, 2009 a.m. at 14.
Although North I demands that the Kastigar inquiry proceed “witness by witness,” North
I, 910 F.2d at 872-73, it is unclear whether the Circuit intended to adopt a categorical rule that in
every case, the government must present every potentially exposed grand jury witness for live
testimony at a Kastigar hearing. North I and North II make clear that the district court may not
substitute an in camera review for an adversarial hearing, during which the defendant may probe
whether the government has met its Kastigar burden. See id.; North II, 920 F.2d at 943-44. Yet
the Circuit has emphasized the flexibility to be afforded the government in attempting to meet its
Kastigar burden, noting that the court has never meant to suggest “that the prosecutor was barred
from trying to show in any fashion that a witness’ testimony was not influenced by the
immunized testimony.” North II, 920 F.2d at 943 (emphasis added) (stating also that the court
has never intended to preclude the government’s use of “any techniques” to meet its burden).53
On the other hand, North II indicates that one of the deficiencies of the in camera review relied
on by the district court was that “this ‘review’ neatly avoided any cross-examination of witnesses
52
See United States v. Raddatz, 447 U.S. 667, 679 (1980) (stating that “[a]t a suppression hearing,
the court may rely on hearsay and other evidence, even though that evidence would not be
admissible at trial”).
53
At least two circuits have explicitly held that the government can meet its Kastigar burden
without the live testimony of the potentially tainted witness. See United States v. Montoya, 45
F.3d 1286, 1299 (9th Cir. 1995); United States v. Provenzano, 620 F.2d 985, 1005-06 (3d Cir.
1980).
68
who were admittedly exposed to the immunized testimony.” Id. at 943-44 (deeming the notion
that the district court’s in camera review could take the place of an adversarial hearing “quite a
remarkable proposition”).
Ultimately, the court need not resolve this issue because even assuming that the
government may meet its Kastigar burden through documentary evidence and hearsay and
without the live testimony of the potentially tainted witness, the evidence offered by the
government with respect to cooperating witness Ridgeway failed to establish that it made no use
of the defendants’ compelled statements when it presented evidence from Ridgeway to the
second grand jury. As an initial matter, it is undisputed that Ridgeway was exposed to the
defendants’ compelled statements. The government has acknowledged that Ridgeway saw the
September 18 written statements of Slatten and Heard soon after the incident, and that he
encountered Slough’s September 18 written statement in media reports in November 2007.
Govt’s June 30, 2009 Letter at 9. Ridgeway also received the October 2, 2007 e-mail from
Randall containing a link to an ABC News televised report which purported to based on all
nineteen Raven 23 members’ accounts. Defs.’ Murphy Ex. 9. In addition, Ridgeway read press
coverage and participated in Internet chat rooms that contained references to defendant Slough’s
sworn statement. See Govt’s Ex. 312.
The evidence indicates that Ridgeway’s exposure to these statements was not fleeting,
but may very well have affected his recollection of the events at Nisur Square. During a
December 2008 interview with the prosecution team, Ridgeway’s attorney advised Kohl and
Malis that there were “Kastigar risks” associated with Ridgeway’s recollection of specific targets
fired on by Slough. Hr’g Tr., Nov. 2, 2009 p.m. at 101-04. Malis testified that he understood
Ridgeway’s lawyer to be saying that if Ridgeway provided the government with information on
69
those topics, there was a risk he would be providing information that resulted from his exposure
to compelled testimony. Id. at 103.
In the face of this potential taint, the government relies solely on the following to meet its
burden: its admonition to Ridgeway to limit his statements to his personal recollection, see Hr’g
Tr., Nov. 2, 2009 a.m. at 13-16, 20-21; Ridgeway’s assertion that he could do so (for all the
defendants other than Slatten),54 id. at 15-16; and the fact that that Ridgeway directly observed
many of the events about which he testified, Govt’s Reply Mem. at 9. Yet this Circuit has made
abundantly clear that mere admonitions and conclusory assertions are insufficient to establish the
absence of taint. North I, 910 F.2d at 868 (holding that “the District Court’s reliance on
warnings to witnesses (to avoid testifying as to anything they had learned from North’s
immunized testimony) was not sufficient to ensure that North’s testimony was not used”); see
also Poindexter, 951 F.2d at 375-76 (holding that the district court’s instruction to a witness not
to “go into other people’s testimony” was not sufficient to ensure the absence of taint). In
addition, as previously discussed, the government’s burden is not limited to merely showing that
the witness possessed an independent basis from which he might have testified. See Hylton, 294
F.3d at 134. Rather, the government must prove that the witness’s exposure to compelled
statements did not – in any way – influence the testimony he gave to the grand jury. See id.;
North II, 920 F.2d at 942.
54
The government chose not to seek information from Ridgeway about defendant Slatten because
during the prosecution’s first interview with Ridgeway, he “expressed some uncertainty about
whether or not he could separate in his mind what it is Mr. Slatten had said to Mr. Ridgeway
immediately after the shooting from what Mr. Ridgeway had read.” Hr’g Tr., Nov. 2, 2009 a.m.
at 15. Yet it appears that the government simply accepted Ridgeway’s assertion that he could
separate what he had seen from what he had read regarding the other defendants, id. at 15-16,
despite his acknowledged inability to segregate his memory with respect to Slatten, id. at 15, and
despite the fact that Ridgeway’s own attorney advised Malis that he believed there were Kastigar
risks associated with his client’s testimony about Slough’s firing on specific targets, Hr’g Tr.,
Nov. 2, 2009 p.m. at 101-04.
70
Thus, the fact that Ridgeway was present at Nisur Square is insufficient to demonstrate
the absence of taint. Instead, the government was required to prove that every one of the detailed
allegations that Ridgeway made against the defendants was not influenced in any way by his
prior exposure to their compelled statements. See Hylton, 294 F.3d at 134; Poindexter, 951 F.2d
at 376. The government has utterly failed to meet this burden, a striking failure given the
significance of this witness to the overall prosecution of this case. Ridgeway acknowledged
having read the sworn written statements of Slough, Slatten and Heard; he appears to have been
exposed to media accounts based on the compelled statements of all the defendants; and he
provided specific inculpatory testimony against every defendant except Slatten. The
government’s failure to prove that it made no evidentiary use of the compelled statements
through Ridgeway constitutes a clear Kastigar violation.
d. The Statements of Iraqi Witnesses Presented to the Second Grand Jury Were Tainted
The government also presented the statements of twenty-two Iraqi witnesses to the
second grand jury. See generally Govt’s Ex. 1. The statements of these Iraqi witnesses were
used to support the government’s allegations against every defendant. See generally GJ Ex. 107.
As it did with cooperating witness Ridgeway, the government attempted to meet its Kastigar
burden with respect to these witnesses solely through hearsay testimony. See Hr’g Tr., Oct. 19,
2009 p.m. at 48-98; Hr’g Tr., Oct. 20, 2009 p.m. at 1-109. The defendants maintain that the
government’s failure to present these witnesses for cross-examination at the Kastigar hearing
necessarily requires the dismissal of the indictment, Defs.’ Mem. at 19, while the government
avers that it was neither feasible nor necessary to have all the Iraqi witnesses testify at the
Kastigar hearing, Govt’s Reply Mem. at 4-11.
71
Once again, however, the court need not reach the issue because even assuming the
government could meet its heavy Kastigar burden through hearsay testimony alone, the evidence
offered by the government failed to demonstrate that the defendants’ compelled statements did
not in any way influence the statements given by these Iraqi witnesses. As previously discussed,
the defendants’ September 18 written statements were widely reported in the media in the weeks
following the incident, and reports conveying the substance of the defendants’ accounts to DSS
agents – that they were responding to hostile fire – began to appear almost immediately after the
incident. The government does not dispute that the Nisur Square incident was notorious in Iraq
or that media coverage of the incident saturated Baghdad. See Defs.’ Mem. at 17; see generally
Govt’s Mem.; Govt’s Reply. FBI Special Agent Carolyn Murphy, one of the agents who
interviewed Iraqi witnesses in October 2007, acknowledged the pervasiveness of the media
coverage in Iraq about the incident, stating “that there had been reports on the news about it, that
people were talking about it.” Hr’g Tr., Oct. 19, 2009 p.m. at 69.
At least one Iraqi witness, Hassan Jabir Salman, made statements reflecting his exposure
to the defendants’ compelled accounts. Salman, who was shot at Nisur Square, spoke to
reporters from his hospital bed and stated that “[i]t is not true when they say that they were
attacked. We did not hear any gunshots before they started shooting.” Defs.’ Media Ex. 43 at 1.
This statement, which was widely reported, see, e.g., Defs.’ Media Exs. 39, 40, 43, appears to
have been a direct response to the defendants’ compelled accounts that they had encountered
incoming fire on September 16, 2007.
The FBI’s records indicate that five of the Iraqi witnesses interviewed in June 2009
72
acknowledged being exposed to the statements of Raven 23 members.55 See Govt’s Ex. 23. The
statements of three of these five witnesses were presented to the second grand jury. See GJ Ex.
1; see generally GJ Ex. 107. At least one such witness, Sarhan Deab Abdul Moniem Da-
Zubaidi, acknowledged having been exposed to specific information from the defendants’
compelled statements through a prior interview with DSS agents. See Hr’g Tr., Oct. 19, 2009
p.m. at 94-95. In June 2009, Da-Zubaidi informed FBI investigators that when he was
interviewed by DSS agents prior to his October 2007 interview with the FBI, “he had been told
by investigators that the Blackwater guards had said that he was pushing the [white Kia] towards
their convoy.”56 Id. at 95. Allegations made by Da-Zubaidi were specifically included in the
summary of evidence against Slough and Ball. See GJ Ex. 107 at 1, 7.
At the Kastigar hearing, the government attempted to establish that all of the Iraqi
witnesses on whom it relied were free from taint solely through the hearsay testimony of Agent
Murphy. See Hr’g Tr., Oct. 19, 2009 p.m. at 48-98; Hr’g Tr., Oct. 20, 2009 p.m. at 1-109. In
October 2007, Agent Murphy was part of a team of FBI investigators that traveled to Iraqi to
conduct interviews of Iraqi eyewitnesses identified by the INP. Hr’g Tr., Oct. 19, 2009 p.m. at
64-66. Although Agent Murphy testified that she and her fellow investigators admonished the
witnesses not to relay information obtained through press accounts, see id. at 69-70, notable is
the fact that not a single FBI investigative report for those interviews reflects that such an
admonishment was given, see Hr’g Tr., Oct. 20, 2009 p.m. at 59-62. At any rate, as previously
55
One of the witnesses interviewed by the FBI in June 2009, Dr. Haitham Al-Rubaie, father of the
occupants of the white Kia, told Blackwater and an Iraqi judge that his family members were
killed by a Blackwater guard named “Paul,” Defs.’ C. Murphy Ex. 25, information he likely
learned through his exposure to Slough’s compelled statements, see Govt’s Ex. 25.
56
Da-Zubaidi’s exposure through the DSS interviews is hardly surprising, given Agent Carpenter’s
acknowledgement that some of the questions the DSS agents asked the Iraqi witnesses during
their investigation “may have been formed as a result of information provided by [Raven] 23.”
Defs.’ Carpenter Ex. 8.
73
discussed, mere admonishments are patently insufficient to demonstrate the absence of taint. See
North I, 910 F.2d at 868; Poindexter, 951 F.2d at 375-76. Agent Murphy identified no other
steps taken by the FBI agents in October 2007 to ensure that they were not receiving tainted
information from the witnesses they interviewed. See Hr’g Tr., Oct. 19, 2009 p.m. at 66-71.
In June 2009, Agent Murphy returned to Iraq with an FBI investigative team to conduct
additional pretrial interviews of certain Iraqi witnesses. Id. at 72. On June 10, 2009, Agent
Murphy circulated an e-mail to the prosecution team and fellow investigators, regarding
“[w]itness admonishments,” Govt’s Ex. 45, which established a three-step taint protocol for
these interviews: (1) the witness was admonished to provide information only from his or her
personal recollection; (2) the witness was asked whether he or she had been exposed to media
accounts or the defendants’ statements; and (3) if affirmative, the witness was asked whether this
exposure had influenced his or her memory or affected his or her decision to cooperate with
investigators, see id. There is no evidence that the FBI interviewers conducted any type of
probing inquiry into whether exposure to the defendants’ compelled statements influenced the
witnesses’ recollections. Rather, it appears that if a witness answered that his or her memory
was not influenced by exposure to compelled testimony, the inquiry ended. See id.; Hr’g Tr.,
Oct. 19, 2009 p.m. at 93-94. This perfunctory protocol falls far short of establishing that the
witnesses’ testimony was not influenced in any way by their exposure to the defendants’
compelled statements.
In sum, the government failed to establish that the Iraqi witnesses it presented to the
second grand jury were not in any way influenced by their previous exposure to the defendants’
compelled statements. This evidentiary use of tainted information constitutes yet another
74
Kastigar violation.57
2. Nonevidentiary Use of the Defendants’ Compelled Garrity Statements
a. The Defendants’ Garrity Statements Prompted the

Decisionto Charge Defendants Heard and Ball
The defendants contend that the trial team’s exposure to the compelled statements of
Heard and Ball played a central role in the government’s decision to include them as targets of
the prosecution. Defs.’ Mem. at 35-36. They note that although the prosecution had identified
both Heard and Ball as shooters by the end of 2007, the trial team did not add them as targets of
the prosecution until after they had obtained and reviewed the defendants’ compelled statements.
Id. The government insists that the decisions to charge Heard and Ball were based on the
discovery of evidence in early 2008 unrelated to the defendants’ compelled statements. Govt’s
Mem. at 40-41.
An examination of the evidence reveals that although the government’s trial team had
identified defendant Heard as a shooter by December 2007, he was not listed as a target of the
prosecution in the trial team’s internal investigative updates until March 2008, Govt’s Ex. 70,
after the prosecutors had completed their interviews of the DSS agents in January and February
2008. Moreover, Kohl’s draft prosecution memorandum makes clear that Heard’s September 16
interview statement played a central role in the decision to add him as a target of the prosecution.
See Defs.’ Kohl Exs. 68-71, 73. The prosecution memorandum quotes extensively from Heard’s
57
In its post-hearing memoranda, the government asserts that if the court deems it necessary to hear
from Ridgeway or the Iraqi witnesses before trial, the court should allow the government to bring
these witnesses here to supplement the record with a discrete Kastigar inquiry. Govt’s Reply
Mem. at 9 n.30. The government’s suggestion amounts to a request that it be permitted to make
its showing at the Kastigar hearing however it wants, and then if it fails to meet its burden on the
first try, it get another chance to make its showing, either at trial or through a supplemental
pretrial proceeding. The unfairness of this approach is manifest. The court sees no reason to
permit the government a second bite at the apple with respect to Ridgeway or the Iraqi witnesses,
any more than it sees a reason to permit the government to re-examine Frost or Murphy or any
other witness who testified at the Kastigar hearing.
75
September 16 interview statement, including his descriptions of firing machine guns at the white
Kia and at an alleged insurgent. Id. Moreover, the memorandum specifically notes that after
completing his interview, Heard returned to the interview room approximately forty-five minutes
later of his own accord “extremely upset” and disclosed to DSS agents additional details
regarding his actions, including the fact that he had fired an M203 grenade. Id. The prosecution
memorandum states that Heard’s “initial reluctance” to provide full disclosure demonstrated his
“consciousness of guilt” and showed that he “knew his actions [in Nisur Square] were excessive
and reckless.” 58 Id.
The weight that Kohl placed on Heard’s September 16 statement is further revealed in
Kohl’s specific reference to that statement when attempting to persuade Heard to cooperate with
the government in the summer of 2008. Hr’g Tr., Oct. 29, 2009 a.m. at 161-64. Hulser, the head
of the taint team and a senior prosecutor, testified that he did not authorize Kohl to use Heard’s
September 16 statements in this manner. Hr’g Tr., Oct. 23, 2009 a.m. at 77.
Kohl testified that his decision to add Heard as a target resulted from two developments:
first, his “discovery” in February 2008 that the white Kia was traveling at a slow rate of speed
and thus did not pose a threat to the convoy, and second, his conversation with Colonel Boslego
regarding the inherent impropriety of firing an M203 grenade in an urban area. Hr’g Tr., Oct.
28, 2009 a.m. at 41-48. Notably, Frost, Mealy and Murphy had all already testified in late 2007
58
This discussion appeared in a late draft of the prosecution memorandum that was circulated to
Kohl’s supervisors, with the instructions to review it promptly because the trial team hoped to
present the case to a grand jury the following week. Hr’g Tr., Oct. 29, 2009 a.m. at 180-84; see
Defs.’ Kohl Ex. 73. The discussion was subsequently removed on the advice of Hulser and
Dobinski. See Defs.’ Kohl Ex. 76.
76
that the white Kia was traveling slowly,59 and Murphy even testified that he believed it was not a
threat. GJ Ex. 94 at 22. In fact, during his examination of Mealy at the first grand jury, Kohl
challenged Mealy’s assertion that the engagement of the white Kia may have been justified,
eliciting testimony from Mealy about the escalation of force rules and the speed at which the Kia
was moving. GJ Ex. 92 at 50-54.
Ponticello testified that Heard became a target once the prosecutors decided to “charge
the white Kia” and mentioned nothing about Kohl’s conversation with Colonel Boslego. Hr’g
Tr., Oct. 27, 2009 p.m. at 41. Indeed, when asked to confirm that Heard’s statement to the DSS
investigators caused the government to target him, Ponticello responded, “I can’t say that that’s
the only basis.” Id. at 53. Thus, Ponticello acknowledged what is readily apparent from the
timing of Heard’s addition to the target list, as well as from Kohl’s references to that statement in
the prosecution memorandum – that Heard’s September 16 interview statement played a
substantial role in the government’s decision to focus on him as a target of the prosecution.
Though there is less direct evidence regarding the decision to charge defendant Ball, the
evidence indicates that statements he gave to DSS investigators played a central role in that
decision as well. Ball was not listed as a target of the investigation until the investigative update
of April 24, 2008. See Govt’s Ex. 70. By that time, the trial team had interviewed DSS agents
regarding the compelled statements of Ball and the other defendants. In addition, it appears that
in April 2008, prosecutors and investigators reviewed an unsigned draft of Ball’s September 18
written statement, which had been acquired through the execution of the search warrant based on
59
Frost wrote in his journal, which was provided to prosecutors in late 2007, that he “looked over
[his] shoulder in time to see a white passenger car slowly rolling forward.” Govt’s Ex. 51 at 3.
Frost also testified at the first grand jury that the white Kia was moving so slowly that “you could
walk and . . . keep up with it.” GJ Ex. 90 at 24. Mealy likewise testified that the white Kia “was
slowly rolling forward.” GJ Ex. 92 at 42.
77
the defendants’ September 16 oral statements.60 Ponticello could identify no evidence against
Ball obtained between the March 10, 2008 investigative update, which does not list Ball as a
target of the investigation, and the April 24, 2008 investigative update, which names Ball as a
target for the first time. Hr’g Tr., Oct. 27, 2009 p.m. at 31-34; see Govt’s Ex. 70.
The sole reason offered by the government to explain its decision to add Ball as a target
in late April 2008 is, again, the trial team’s “discovery” in February 2008 that the white Kia was
traveling at a slow rate of speed. Govt’s Mem. at 40. Yet, as previously discussed, this asserted
justification is simply not credible. Thus, the government has failed to carry its burden to show
that it did not use Ball’s compelled statements to focus the prosecution on him. To the contrary,
the common sense inference to be drawn from this evidence, given the timing of the decisions
and the government’s failure to offer a credible explanation to the contrary, is that Ball’s
disclosures to DSS agents played a determinative role in the government’s decision to prosecute
him. This significant and tangible nonevidentiary use of the compelled testimony of Heard and
Ball is barred by Kastigar and Garrity.
b. The Defendants’ Garrity Statements Guided the

Government’s Investigation and Prosecution
The defendants argue that in light of the government’s persistent efforts to obtain the
defendants’ compelled statements and the value of these statements to the prosecution, it is
simply implausible that the government did not make significant use of these statements to steer
its investigation and to shape its view of the case. Defs.’ Mem. at 38. The government
maintains that regardless of whatever exposure they may have had to the defendants’ compelled
statements, the prosecutors and investigators made no investigative or strategic use of these
60
Agent Patarini acknowledged that he may have read the statement as early as March 2008. Hr’g
Tr., Oct. 22, 2009 p.m. at 19. Kohl testified that by the time he met with Agent Patarini in April
2008, Agent Patarini had already read Ball’s written statement. Hr’g Tr., Oct. 28, 2009 p.m. at
46-47.
78
compelled statements. Govt’s Reply Mem. at 12-17. The government asserts in its own defense
that the trial team’s exposure to these statements resulted from a mere “miscommunication”
between Kohl and Hulser, Govt’s Mem. at 13, and that this exposure did not reveal any
information that was not already known to the government or that was of any use to the
prosecution, id. at 41-45.
The evidence presented during the Kastigar hearing leaves no doubt that the trial team
went to great lengths to obtain information gleaned from the defendants’ compelled statements.
In January and February 2008, the trial team traveled to Iraq and interviewed all of the DSS
agents involved in the Nisur Square investigation. On January 11, 2008, the trial team
interviewed Agent Carpenter, who disclosed specific information concerning the content of the
defendants’ compelled statements. Hr’g Tr., Oct. 19, 2009 a.m. at 30. This information included
disclosures made by the defendants during their September 16, 2007 interviews. Id. This
information also included descriptions of specific targets that Slough fired at north of the traffic
circle, which Slough did not disclose during his September 16, 2007 interview but revealed in
subsequent interviews with DSS agents. Id. at 30-35.
On January 25, 2008, the trial team interviewed Agent Lopez. Defs.’ Lopez Ex. 6.
During this interview, the trial team obtained information regarding the specific threats identified
by Slough in his compelled statements. Hr’g Tr., Oct. 15, 2009 p.m. at 60-61. Agent Lopez also
disclosed that Heard had initially stated that he did not fire an M203 grenade, but returned later,
“very upset about the incident,” and disclosed the full extent of his involvement. Defs.’ Lopez
Ex. 6. In addition, Kohl obtained from Agent Lopez a copy of her interview notes from the
September 16, 2007 interviews she had conducted. Govt’s June 30, 2009 Letter at 4.
79
The trial team asked Agent Farrington to provide them with his opinion about what had
happened at Nisur Square, a view that he acknowledged was shaped by his review of the
defendants’ compelled testimony during the DSS investigation, including a summary of their
September 18 written statements and their post-September 18 re-interviews. Hr’g Tr., Oct. 16,
2009 p.m. at 84-85, 91-92; Defs.’ Farrington Ex. 4.
The trial team questioned Agent Motley about the re-interviews of the defendants
conducted on September 20, 2007, during which the defendants pointed out on a map the various
directions from which they had purportedly taken fire. Hr’g Tr., Oct. 16, 2009 a.m. at 71-72.
Ponticello testified that the trial team did not seek a copy of the map marked by the defendants
because they recognized that it contained tainted information. Hr’g Tr., Oct. 27, 2009 p.m. at 63.
Yet, incredibly, during the trial team’s interview of Agent Motley, the trial team provided Agent
Motley with an aerial map of Nisur Square and had him circle the locations that had been
identified by the defendants on the admittedly tainted map.61 Id. at 66.
In February 2008, the trial team used information from the defendants’ September 16
interview statements to obtain search warrants for unsigned copies of the defendants’ sworn
written statements.62 Hr’g Tr., Oct. 22, 2009 p.m. at 17-21. Agent Patarini acknowledged
reading the written statements of Ball and Heard and providing copies of these statements to the
prosecutors. Id. at 22. The government’s only explanation for the search warrant project was
61
Prosecutor Ponticello testified that during the interviews of the DSS agents in early 2008, his
understanding was that only the defendants’ September 18 written statements were out of bounds,
and that he was not prohibited from obtaining the defendants’ subsequent interview statements to
DSS investigators. Hr’g Tr., Oct. 27, 2009 a.m. at 72. The government has, of course, conceded
that the defendants’ September 18 written statements and all subsequent statements they made to
DSS investigators constitute compelled Garrity statements. Hr’g Tr., Oct. 14, 2009 a.m. at 6-10.
62
Kohl testified that he discussed using the search warrants to target the defendants’ September 18
written statements in meetings with the Assistant Attorney General. Hr’g Tr., Oct. 28, 2009 a.m.
at 26-27. Yet neither Ponticello nor Mullaney, who attended the same meetings, recalled any
such discussions. Hr’g Tr., Oct. 26, 2009 p.m. at 30; Hr’g Tr., Oct. 27, 2009 p.m. at 8-10.
80
that it was designed to investigate potential false statement prosecutions. See Govt’s Mem. at
15; Govt’s Ex. 288 at 9-10; Hr’g Tr., Oct. 28, 2009 p.m. at 44. But Kohl himself acknowledged
that it was inappropriate for him to view the September 18 statements in connection with a false
statements prosecution while still considering a prosecution based on the activities disclosed in
those statements, Hr’g Tr., Oct. 28, 2009 p.m. at 70, and that the search warrant project was
“close to the line, absolutely,” Hr’g Tr., Oct. 29, 2009 a.m. at 32-33.
In August 2008, months after Kohl and Hulser met to resolve the purported
“miscommunication” between them regarding exposure to tainted evidence, Kohl obtained and
read two “Memorandum Reports of Interviews” memorializing the statements given by the
defendants during their September 16, 2007 interviews. Id. at 165-66. Kohl testified that this
action was in keeping with the understanding he reached with Hulser at the April 2008 meeting.
Id. at 79. But this assertion was flatly contradicted by Hulser, who testified that his position
regarding the September 16 interview statements never changed and that he never authorized the
trial team to obtain notes from those interviews. Hr’g Tr., Oct. 23, 2009 a.m. at 42.
It is clear from this evidence that beginning in the first months of the investigation and
throughout its duration, the trial team aggressively sought out and obtained the substance not
only of the defendants’ September 16 interview statements, but also of the defendants’
subsequent statements to the DSS investigators, which the government has never disputed were
compelled and tainted. The trial team members immersed themselves in the defendants’
compelled statements long before obtaining the indictment in December 2008.
All of the trial team’s efforts to obtain the contents of the defendants’ compelled
statements were taken in direct contravention of the clear directives given by taint attorney
Hulser. Between November 2007 and April 2008 (when Kohl and Hulser agreed that Kohl
81
would decide what information would be sent to Hulser for screening), Hulser repeatedly advised
the trial team to refrain from any contact with the DSS investigators and not to seek out
information derived from the tainted DSS investigation, including the defendants’ September 16
oral statements. See, e.g., Govt’s Ex. 57; Defs.’ Kohl Exs. 9-10. Hulser never authorized the
trial team’s interviews of the DSS agents in early 2008, did not approve the trial team’s efforts to
obtain records and notes from the defendants’ September 16, 2007 interviews and never
sanctioned the use of the defendants’ September 16 interview statements to obtain the search
warrant for the defendants’ September 18 written statements. Hr’g Tr., Oct. 23, 2009 a.m. at 28-
29.
The government attempts to characterize Kohl’s failure to heed Hulser’s directives as a
mere “miscommunication.” Yet to accept this characterization, the court would have to accept
the following: that Kohl, a seasoned and accomplished prosecutor, failed to read multiple e-mails
from senior prosecutors regarding a high profile case, including one e-mail to which Kohl
responded “Got it,” see Defs.’ Kohl Ex. 10; Govt’s Ex. 57; that Mullaney, a Section Chief in the
DOJ National Security Division, failed to forward to Kohl numerous e-mails from Hulser
containing critical information regarding the investigation, despite Mullaney’s testimony that it
was his practice to forward any such e-mails, Hr’g Tr., Oct. 26, 2009 p.m. at 8-9; and that after
his April 2008 meeting with Hulser, Kohl understood that he could use the defendants’
September 16 statements so long as the trial team’s exposure to these statements was “delay[ed]
as long as possible,” Hr’g Tr., Oct. 29, 2009 a.m. at 79, an understanding diametrically at odds
with Hulser’s sworn recollection of the meeting, Hr’g Tr., Oct. 23, 2009 a.m. at 42, and contrary
to all of Hulser’s prior advice on the issue, see, e.g., Defs.’ Kohl Ex. 10. These inconsistent,
extraordinary explanations smack of post hoc rationalization and are simply implausible. The
82
only conclusion the court can draw from this evidence is that Kohl and the rest of the trial team
purposefully flouted the advice of the taint team when obtaining the substance of the defendants’
compelled statements, and in so doing, knowingly endangered the viability of the prosecution.63
The government argues that the trial team could not, as a matter of law, have used the
defendants’ compelled statements because the statements only contained exculpatory
information. Govt’s Mem. at 43-44. Yet, as the court has already observed, in each of the
authorities on which the government relies to support this assertion, the determination that there
was no Kastigar violation resulted from the fact that the statement was not useful to the
prosecution under the circumstances of that case. See, e.g., Bartel, 19 F.3d at 1113; Caporale,
806 F.2d at 1518. In this case, by contrast, it is abundantly clear that the defendants’ compelled
statements did have a value to the prosecution. Defendants Slough, Slatten, Heard and Ball
acknowledged having fired their weapons and specified the types of weapons they had used, the
number of shots they had fired and the directions in which they had fired. See supra Part II.A.2.
All of the defendants specified in great detail the locations of the various insurgent threats they
had allegedly seen and specified the directions from which they had purportedly taken fire. See
id. Agent Patarini testified that he may have used the information he obtained from the
defendants’ statements to DSS investigators in questioning witnesses. Hr’g Tr., Oct. 22, 2009
p.m. at 70. Ponticello testified that he sought the defendants’ September 16 interview statements
because he wanted to use them in the investigation and that he did make “ancillary” use of them.
Hr’g Tr., Oct. 27, 2009 p.m. at 22, 77-78. Hulser, an experienced senior prosecutor, testified that
63
This reckless behavior was in keeping in with the way the prosecution conducted itself
throughout the grand jury process, as it withheld the testimony of numerous percipient witnesses
who had provided substantial exculpatory evidence to the first grand jury, presented the second
grand jury with distorted and self-serving “summaries” of the accounts of other witnesses and
implied to the second grand jury that the defendants had given inculpatory statements to State
Department investigators which the government could not disclose to the grand jury because they
were given “in exchange for immunity.” See supra Part II.A.9.
83
although a defendant’s mere denial of involvement may be of no real use, the defendants’
statements in this case specified who they were shooting at and who was shooting back at them,
and all of this was “valuable information.” Hr’g Tr., Oct. 23, 2009 a.m. at 30-32. As Hulser
testified, “[i]f I were conducting an investigation without any taint at all, I would expect to have
those statements, I would want to have those statements.” Id. at 32.
In the face of the unrefuted evidence that the trial team risked the entire prosecution in
aggressively seeking out the defendants’ compelled statements, which provided a wealth of
valuable information, the government asks this court to credit the conclusory assertions of Kohl
and the rest of the trial team that they made no use of these statements to further the prosecution.
Govt’s Mem. at 14, 41. The government asks too much. See United States v. Schmidgall, 25
F.3d 1523, 1528 (11th Cir. 1994) (observing that “a government agent’s bare denials that he used
the immunized testimony are insufficient to meet the government’s burden”); United States v.
Harris, 973 F.2d 333, 336 (4th Cir. 1992) (noting that “the government’s mere representations”
that it made no use of immunized testimony “standing alone are generally insufficient to carry its
burden”); Hsia, 131 F. Supp. 2d at 209 (observing that “courts have universally held . . . the
government’s protestation that the immunized testimony did not affect its prosecution of the
immunized witness to be insufficient, no matter how sincere”). 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 taking actions that even Kohl acknowledged
84
came “close to the line,” and then make no use whatsoever of the fruits of their efforts.64
These facts do not describe a case of fleeting exposure late in the game that may have
tangentially affected the trial team’s thought processes. See North I, 910 F.2d at 859. Rather,
they reveal that the trial team went to great lengths and knowingly took great risks, at the early
stages of the prosecution, to obtain statements that provided a wealth of information valuable to
the prosecution. Given the prosecution’s early, ongoing and intentional immersion in the
defendants’ compelled statements, the government bore the burden of demonstrating that it made
no significant nonevidentiary use of the defendants’ statements. See Harris, 973 F.2d at 336
(holding that the prosecution failed to meet its Kastigar burden because its failure to follow
reliable taint procedures left it “unable to eliminate the significant possibility that it used . . .
compelled testimony as an ‘investigatory lead’); cf. North I, 910 F.2d at 860 (concluding that the
prosecution “could not have made significant nonevidentiary use” of the tainted information
because there had been no significant exposure to that information); Barker, 542 F.2d at 484 n.9
(suggesting that holding of McDaniel – that any nonevidentiary use was impermissible – applied
only in the limited circumstance in which immunized testimony “had been obtained at a very
early stage in the investigatory process”). The government’s utter failure to meet this burden
requires dismissal of the indictment against all the defendants. See North I, 910 F.2d at 859-60;
Hsia, 131 F. Supp. 2d at 201-02 (dismissing the indictment based on the prosecutions’ failure to
demonstrate that it made no nonevidentiary use of the defendant’s compelled statements).
64
Indeed, Kohl testified that until his April 2008 meeting with Hulser, he believed that the
September 16 interviews were “fair game.” Hr’g Tr., Oct. 28, 2009 p.m. at 13. But if Kohl
actually believed that the September 16 statements were fair game, it seems highly unlikely that
the trial team would not have used those statements in guiding their investigation and prosecution
of the case.
85
c. The Defendants’ Garrity Statements Tainted the Physical Evidence Recovered from
Nisur Square by DSS Investigators
As previously discussed, in the days following the Nisur Square incident, the DSS agents
conducted a search of the traffic circle and collected physical evidence. See supra Part II.A.2.
The defendants contend that the prosecution’s use of physical evidence derived from the DSS
investigation is tainted. Defs.’ Mem. at 32-34. The government responds that the DSS search
for physical evidence was not guided by the defendants’ compelled statements. Govt’s Reply
Mem. at 16. Furthermore, the government contends that in light of the multiple, extensive
searches conducted by the U.S. military and the FBI, any evidence recovered by the DSS agents
would inevitably have been discovered independent of the DSS search. Id.
The evidence strongly indicates that the physical search conducted by DSS investigators
was guided by the defendants’ compelled statements. On September 20, 2007, DSS investigators
interviewed the four defendants who had acknowledged firing their weapons to focus on “the
specific details” of the written accounts they had given on September 18, 2007. See Defs.’
Carpenter Ex. 9. Agent Farrington testified that Agent Carpenter directed them to obtain these
“specific details” to assist the DSS agents in the physical search of the Nisur Square traffic circle
conducted later that day.65 Hr’g Tr., Oct. 16, 2009 p.m. at 22-23. Agent Motley informed the
trial team that the physical search of the Nisur Square area was based on the defendants’ oral
statements to investigators on September 20, 2007, and was designed to test the accounts given
by the defendants. Hr’g Tr., Oct. 16, 2009 a.m. at 73. And although Agent Carpenter testified
that there were no areas of Nisur Square that his agents would not have searched but for the
65
Agent Farrington testified, “[w]e were headed out to the scene that day . . . and my understanding
is that Ted Carpenter wanted to get specific details about the incident to help us with our search.”
Hr’g Tr., Oct. 16, 2009 p.m. at 22. Later, Agent Farrington testified that “[w]e were going out to
the scene that day, and [Carpenter] wanted to nail down what had happened so we might be able
to appreciate the scene a little bit better.” Id. at 23.
86
information provided in the September 16, 2007 interviews, Hr’g Tr., Oct. 19, 2009 p.m. at 38,
he clearly stated in his investigative report that “[f]rom [Raven] 23 statements we obtained
information concerning their direction of fire and opposing fire. We searched in these areas and
collected what appeared to be AK-47 shell casings and material from a white 4 door sedan.
Photographs of the area were taken to include bullet strikes and the AK-47 shell casings that
were collected.” Id. Accordingly, the court discerns that the physical evidence derived from the
DSS investigation of the Nisur Square environment was tainted by the defendant’s compelled
Garrity statements.
As for the government’s claim of inevitable discovery, the court notes that Nisur Square
was not sealed as a closed crime scene between the shooting on September 16, 2007 and the
arrival of FBI investigators several weeks later. Defs.’ Mem. at 33. Agent Scollan testified that
when he visited the scene shortly after the incident, he noticed an Iraqi man, possibly a police
officer, who appeared to be walking through the scene and picking up objects that may have
been evidence. Hr’g Tr., Oct. 15, 2009 a.m. at 99-100. Agent Scollan testified that the scene
“was extremely clean – picked clean as if it was being groomed for a garden.” Id. at 99. Under
these circumstances, the court deems the government’s claims of inevitable discovery
unpersuasive.
The government does not dispute that the physical evidence recovered from the scene
was passed on to the prosecutors and investigators. See Defs.’ Mem. at 33; Govt’s Reply Mem.
at 15-16; Govt’s Ex. 275. Moreover, the DSS search was aimed at testing the veracity of the
defendants’ accounts and was guided by the specific details disclosed in those accounts, see Hr’g
Tr., Oct. 16, 2009 p.m. at 22-24, which would suggest that the evidence recovered through this
search may have been highly relevant to the criminal case eventually brought against the
87
defendants. Indeed, the government has never argued otherwise. The trial team’s exposure to
this potentially significant physical evidence triggers the government’s obligation to demonstrate
that it has made no significant use of this evidence. See North I, 910 F.2d at 860; Hsia, 131 F.
Supp. 2d at 201-02. The government’s failure to do so constitutes yet another Kastigar violation.
3. The Government’s Myriad Kastigar Violations Cannot Be Excused as Harmless Error
Before dismissing an indictment based on Kastigar violations, the court must determine
whether the government’s use of immunized testimony was harmless beyond a reasonable doubt.
See Ponds, 454 F.3d at 328-29 (citing North I, 910 F.2d at 854). “Where . . . immunized
evidence emerges early in the investigation, the court must determine whether the government
‘would have taken the same steps entirely apart from the motivating effect of the immunized
testimony.’” Id. (quoting United States v. Nanni, 59 F.3d 1425, 1433 (2d Cir. 1995)). “The
government cannot escape its error simply by showing the availability of ‘wholly independent’
evidence from which it might have procured indictment or convictions had it not used the
immunized testimony,” but must instead demonstrate beyond a reasonable doubt that the
prosecution would have been vigorously pursued, and the same investigative steps taken, had the
government not relied on immunized material. Id. (quoting United States v. Pelletier, 89 F.2d
297, 303 (2d Cir. 1990)). “Unless the government’s use of Kastigar evidence, in light of
evidence obtained from independent sources, was so unimportant and insignificant and has so
little, if any, likelihood of having changed the result of the proceeding that it may be deemed
harmless,” the violation of the defendant’s constitutional rights cannot be excused as harmless
beyond a reasonable doubt. Id. (citing United States v. Gallo, 859 F.2d 1078, 1082 (2d Cir.
1988)) (internal quotation marks omitted).
88
Just a few examples suffice to show that the government has utterly failed to make this
demanding showing as to any defendant. Defendant Slough’s compelled statements influenced
the grand jury testimony of Murphy and likely tainted the information provided by cooperating
witness Ridgeway and many Iraqi witnesses to the second grand jury. Defendant Slatten’s
compelled statements shaped the grand jury testimony of Frost and Murphy, whose testimony
comprised the near entirety of the evidence presented against him at the second grand jury. See
GJ Ex. 107 at 6-7. The compelled statements of defendants Ball and Heard played a
determinative role in the government’s decision to focus the prosecution on them. The
compelled statement of defendant Liberty and the other defendants motivated the creation of the
Frost Journal, influenced Frost’s decision to cooperate with the government, guided the
questioning of witnesses during the investigation, resulted in the discovery of physical evidence
and provided the government with a version of events that each defendant was locked into and
helped steer the investigation.66 In sum, far from being unimportant and insubstantial, the
defendants’ compelled statements pervaded nearly every aspect of the government’s
investigation and prosecution, and the government’s use of those statements appears to have
played a critical role in the indictment against each of the defendants. Accordingly, the court
declines to excuse the government’s reckless violation of the defendants’ constitutional rights as
harmless error.
66
The court notes that the indictment in this case does not contain individualized charges against
each defendant. See generally Indictment. Instead, the government seeks to hold the defendants
collectively responsible for all the dead and wounded at Nisur Square under a concerted action
theory. See Govt’s Mot. for Clarification and/or Reconsideration at 2-3. As should be clear from
the foregoing discussion, the court’s determination that the indictment is fatally tainted applies to
the defendants collectively as well as to each individual defendant charged with participating in
the concerted action.
89
IV. CONCLUSION
Before the beginning of jury deliberations, a judge instructs the jury that it must perform
its duty to deliberate “without prejudice, fear, sympathy or favoritism.” A judge has a
concomitant obligation. When a judge, upon close examination of the procedures that bring a
criminal matter before the court, concludes that the process aimed at bringing the accused to trial
has compromised the constitutional rights of the accused, it behooves the court to grant relief in
the fashion prescribed by law. Such is the case here.
For the reasons discussed in this Memorandum Opinion, the court grants the defendants’
motion to dismiss the indictment.67 An Order consistent with this Memorandum Opinion is
separately and contemporaneously issued this 31st day of December, 2009.
RICARDO M. URBINA
United States District Judge
67
Because the court dismisses the indictment against all of the defendants, including defendant
Slatten, it denies as moot the government’s motion for leave to dismiss the indictment against
defendant Slatten without prejudice.
90
EXHIBIT aa
USAM 9-5.000 Issues Related to Trials and Other Court Proceedings Page 1 of 10
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9-5.000
ISSUES RELATED TO TRIALS AND OTHER
COURT PROCEEDINGS
9-5.001 Policy Regarding Disclosure of Exculpatory and Impeachment Information
9-5.100 Policy Regarding the Disclosure to Prosecutors of Potential Impeachment
Information Concerning Law Enforcement Agency Witnesses ("Giglio
Policy")
9-5.110 Testimony of FBI Laboratory Examiners
9-5.150 Authorization to Close Judicial Proceedings to Members of the Press and
Public
9-5.001 Policy Regarding Disclosure of Exculpatory and Impeachment

Information
A. Purpose. Consistent with applicable federal statutes, rules, and case law, the
policy set forth here is intended to promote regularity in disclosure practices,
through the reasoned and guided exercise of prosecutorial judgment and
discretion by attorneys for the government, with respect to the government's
obligation both to disclose exculpatory and impeachment information to
criminal defendants and to seek a just result in every case. The policy is
intended to ensure timely disclosure of an appropriate scope of exculpatory
and impeachment information so as to ensure that trials are fair. The policy,
however, recognizes that other interests, such as witness security and national
security, are also critically important, see USAM 9-21.000, and that if
disclosure prior to trial might jeopardize these interests, disclosure may be
delayed or restricted (e.g. pursuant to the Classified Information Procedures
Act). This policy is not a substitute for researching the legal issues that may
arise in an individual case. Additionally, this policy does not alter or supersede
the policy that requires prosecutors to disclose "substantial evidence that
directly negates the guilt of a subject of the investigation" to the grand jury
before seeking an indictment, see USAM 9-11.233.
B. Constitutional obligation to ensure a fair trial and disclose material

exculpatory and impeachment evidence. Government disclosure of
material exculpatory and impeachment evidence is part of the constitutional
guarantee to a fair trial. Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v.
United States, 405 U.S. 150, 154 (1972). The law requires the disclosure of
exculpatory and impeachment evidence when such evidence is material to guilt
or punishment. Brady, 373 U.S. at 87; Giglio, 405 U.S. at 154. Because they
are Constitutional obligations, Brady and Giglio evidence must be disclosed

regardless of whether the defendant makes a request for exculpatory or
impeachment evidence. Kyles v. Whitley, 514 U.S. 419, 432-33 (1995).
Neither the Constitution nor this policy, however, creates a general discovery
right for trial preparation or plea negotiations. U.S. v. Ruiz, 536 U.S. 622, 629
(2002); Weatherford v. Bursey, 429 U.S. 545, 559 (1977).
1. Materiality and Admissibility. Exculpatory and impeachment evidence is

material to a finding of guilt—and thus the Constitution requires
disclosure—when there is a reasonable probability that effective use of the
evidence will result in an acquittal. United States v. Bagley, 475 U.S. 667,
676 (1985). Recognizing that it is sometimes difficult to assess the
materiality of evidence before trial, prosecutors generally must take a
broad view of materiality and err on the side of disclosing exculpatory and
impeaching evidence. Kyles, 514 U.S. at 439. While ordinarily, evidence
that would not be admissible at trial need not be disclosed, this policy
encourages prosecutors to err on the side of disclosure if admissibility is a
close question.
2. The prosecution team. It is the obligation of federal prosecutors, in

preparing for trial, to seek all exculpatory and impeachment information
from all the members of the prosecution team. Members of the
prosecution team include federal, state, and local law enforcement officers
and other government officials participating in the investigation and
prosecution of the criminal case against the defendant. Kyles, 514 U.S. at
437.
C. Disclosure of exculpatory and impeachment information beyond that

which is constitutionally and legally required. Department policy
recognizes that a fair trial will often include examination of relevant
exculpatory or impeachment information that is significantly probative of the
issues before the court but that may not, on its own, result in an acquittal or,
as is often colloquially expressed, make the difference between guilt and
innocence. As a result, this policy requires disclosure by prosecutors of
information beyond that which is "material" to guilt as articulated in Kyles v.
Whitley, 514 U.S. 419 (1995), and Strickler v. Greene, 527 U.S. 263, 280-81
(1999). The policy recognizes, however, that a trial should not involve the
consideration of information which is irrelevant or not significantly probative of
the issues before the court and should not involve spurious issues or
arguments which serve to divert the trial process from examining the genuine
issues. Information that goes only to such matters does not advance the
purpose of a trial and thus is not subject to disclosure.
1. Additional exculpatory information that must be disclosed. A

prosecutor must disclose information that is inconsistent with any element
of any crime charged against the defendant or that establishes a
recognized affirmative defense, regardless of whether the prosecutor
believes such information will make the difference between conviction and
acquittal of the defendant for a charged crime.
2. Additional impeachment information that must be disclosed. A

prosecutor must disclose information that either casts a substantial doubt
upon the accuracy of any evidence—including but not limited to witness
testimony—the prosecutor intends to rely on to prove an element of any
crime charged, or might have a significant bearing on the admissibility of
prosecution evidence. This information must be disclosed regardless of
whether it is likely to make the difference between conviction and acquittal
of the defendant for a charged crime.
3. Information. Unlike the requirements of Brady and its progeny, which

focus on evidence, the disclosure requirement of this section applies to
information regardless of whether the information subject to disclosure
would itself constitute admissible evidence.
4. Cumulative impact of items of information. While items of information

viewed in isolation may not reasonably be seen as meeting the standards
outlined in paragraphs 1 and 2 above, several items together can have
such an effect. If this is the case, all such items must be disclosed.
D. Timing of disclosure. Due process requires that disclosure of exculpatory and

impeachment evidence material to guilt or innocence be made in sufficient time
to permit the defendant to make effective use of that information at trial. See,
e.g. Weatherford v. Bursey, 429 U.S. 545, 559 (1997); United States v. Farley,
2 F.3d 645, 654 (6th Cir. 1993). In most cases, the disclosures required by the
Constitution and this policy will be made in advance of trial.
1. Exculpatory information. Exculpatory information must be disclosed

reasonably promptly after it is discovered. This policy recognizes that
exculpatory information that includes classified or otherwise sensitive
national security material may require certain protective measures that
may cause disclosure to be delayed or restricted (e.g. pursuant to the
Classified Information Procedures Act).
2. Impeachment information. Impeachment information, which depends

on the prosecutor's decision on who is or may be called as a government
witness, will typically be disclosed at a reasonable time before trial to allow
the trial to proceed efficiently. In some cases, however, a prosecutor may
have to balance the goals of early disclosure against other significant
interests—such as witness security and national security—and may
conclude that it is not appropriate to provide early disclosure. In such
cases, required disclosures may be made at a time and in a manner
consistent with the policy embodied in the Jencks Act, 18 U.S.C. § 3500.
3. Exculpatory or impeachment information casting doubt upon

sentencing factors. Exculpatory and impeachment information that casts

doubt upon proof of an aggravating factor at sentencing, but that does not
relate to proof of guilt, must be disclosed no later than the court's initial
presentence investigation.
4. Supervisory approval and notice to the defendant. A prosecutor must

obtain supervisory approval not to disclose impeachment information
before trial or not to disclose exculpatory information reasonably promptly
because of its classified nature. Upon such approval, notice must be
provided to the defendant of the time and manner by which disclosure of
the exculpatory or impeachment information will be made.
E. Comment. This policy establishes guidelines for the exercise of judgment and
discretion by attorneys for the government in determining what information to
disclose to a criminal defendant pursuant to the government's disclosure
obligation as set out in Brady v. Maryland and Giglio v. United States and its
obligation to seek justice in every case. As the Supreme Court has explained,
disclosure is required when evidence in the possession of the prosecutor or
prosecution team is material to guilt, innocence or punishment. This policy
encourages prosecutors to err on the side of disclosure in close questions of
materiality and identifies standards that favor greater disclosure in advance of
trial through the production of exculpatory information that is inconsistent with
any element of any charged crime and impeachment information that casts a
substantial doubt upon either the accuracy of any evidence the government
intends to rely on to prove an element of any charged crime or that might have
a significant bearing on the admissibility of prosecution evidence. Under this
policy, the government's disclosure will exceed its constitutional obligations.
This expanded disclosure policy, however, does not create a general right of
discovery in criminal cases. Nor does it provide defendants with any additional
rights or remedies. Where it is unclear whether evidence or information should
be disclosed, prosecutors are encouraged to reveal such information to
defendants or to the court for inspection in camera and, where applicable, seek
a protective order from the Court. By doing so, prosecutors will ensure
confidence in fair trials and verdicts. Prosecutors are also encouraged to
undertake periodic training concerning the government's disclosure obligation
and the emerging case law surrounding that obligation.
See also Criminal Resource Manual 165 ("Guidance for Prosecutors Regarding
Criminal Discovery").
[updated January 2010] [cited in USAM 9-5.100; Criminal Resource Manual 165]
9-5.100 Policy Regarding the Disclosure to Prosecutors of Potential

Impeachment Information Concerning Law Enforcement
Agency Witnesses ("Giglio Policy")
On December 9, 1996, the Attorney General issued a Policy regarding the
Disclosure to Prosecutors of Potential Impeachment Information Concerning Law
Enforcement Agency Witnesses ("Giglio Policy"). It applies to all Department of

Justice Investigative agencies that are named in the Preface, below. On October 19,
2006, the Attorney General amended this policy to conform to the Department's
new policy regarding disclosure of exculpatory and impeachment information, see
USAM 9-5.001.
The Secretary of the Treasury has issued the same policy for all Treasury
investigative agencies.
Policy Regarding the Disclosure to Prosecutors of Potential Impeachment

Information Concerning Law Enforcement Agency Witnesses ("Giglio
Policy")
Preface: The following policy is established for: the Federal Bureau of

Investigation, Drug Enforcement Administration, Bureau of Alcohol, Tobacco,
Firearms and Explosives, the United States Marshals Service, the Department of
Justice Office of the Inspector General, and the Department of Justice Office of
Professional Responsibility ("the investigative agencies"). It addresses their
disclosure of potential impeachment information to the United States Attorneys'
Offices and Department of Justice litigating sections with authority to prosecute
criminal cases ("Department of Justice prosecuting offices"). The purposes of this
policy are to ensure that prosecutors receive sufficient information to meet their
obligations under Giglio v. United States, 405 U.S. 150 (1972), and to ensure that
trials are fair, while protecting the legitimate privacy rights of Government
employees. NOTE: This policy is not intended to create or confer any rights,
privileges, or benefits to prospective or actual witnesses or defendants. It is also
not intended to have the force of law. United States v. Caceres, 440 U.S. 741
(1979).
The exact parameters of potential impeachment information are not easily

determined. Potential impeachment information, however, has been generally
defined as impeaching information which is material to the defense. It also includes
information that either casts a substantial doubt upon the accuracy of any
evidence—including witness testimony—the prosecutor intends to rely on to prove
an element of any crime charged, or might have a significant bearing on the
admissibility of prosecution evidence. This information may include but is not
strictly limited to: (a) specific instances of conduct of a witness for the purpose of
attacking the witness' credibility or character for truthfulness; (b) evidence in the
form of opinion or reputation as to a witness' character for truthfulness; (c) prior
inconsistent statements; and (d) information that may be used to suggest that a
witness is biased.
This policy is not intended to replace the obligation of individual agency

employees to inform prosecuting attorneys with whom they work of potential
impeachment information prior to providing a sworn statement or testimony in any
investigation or case. In the majority of investigations and cases in which agency
employees may be affiants or witnesses, it is expected that the prosecuting
attorney will be able to obtain all potential impeachment information directly from
agency witnesses during the normal course of investigations and/or preparation for
hearings or trials.
Procedures for Disclosing Potential Impeachment Information Relating to

Department of Justice Employees
1. Obligation to Disclose Potential Impeachment Information. It is

expected that a prosecutor generally will be able to obtain all potential
impeachment information directly from potential agency witnesses and/or
affiants. Each investigative agency employee is obligated to inform prosecutors
with whom they work of potential impeachment information as early as
possible prior to providing a sworn statement or testimony in any criminal
investigation or case. Each investigative agency should ensure that its
employees fulfill this obligation. Nevertheless, in some cases, a prosecutor may
also decide to request potential impeachment information from the
investigative agency. This policy sets forth procedures for those cases in which
a prosecutor decides to make such a request.
2. Agency Officials. Each of the investigative agencies shall designate an

appropriate official(s) to serve as the point(s) of contact concerning
Department of Justice employees' potential impeachment information ("the
Agency Official"). Each Agency Official shall consult periodically with the
relevant Requesting Officials about Supreme Court caselaw, circuit caselaw,
and district court rulings and practice governing the definition and disclosure of
impeachment information.
3. Requesting Officials. Each of the Department of Justice prosecuting offices

shall designate an appropriate senior official(s) to serve as the point(s) of
contact concerning potential impeachment information ("the Requesting
Official"). Each Requesting Official shall inform the relevant Agency Officials
about Supreme Court caselaw, circuit caselaw, and district court rulings and
practice governing the definition and disclosure of impeachment information.
4. Request to Agency Officials. When a prosecutor determines that it is

necessary to request potential impeachment information from an Agency
Official(s) relating to an agency employee identified as a potential witness or
affiant ("the employee") in a specific criminal case or investigation, the
prosecutor shall notify the appropriate Requesting Official. Upon receiving such
notification, the Requesting Official may request potential impeachment
information relating to the employee from the employing Agency Official(s) and
the designated Agency Official(s) in the Department of Justice Office of the
Inspector General ("OIG") and the Department of Justice Office of Professional
Responsibility ("DOJ-OPR").
5. Agency Review and Disclosure. Upon receiving the request described in

Paragraph 4, the Agency Official(s) from the employing agency, the OIG and
DOJ- OPR shall each conduct a review, in accordance with its respective agency
plan, for potential impeachment information regarding the identified employee.
The employing Agency Official(s), the OIG and DOJ-OPR shall advise the
Requesting Official of: (a) any finding of misconduct that reflects upon the
truthfulness or possible bias of the employee, including a finding of lack of
candor during an administrative inquiry; (b) any past or pending criminal
charge brought against the employee; and (c) any credible allegation of
misconduct that reflects upon the truthfulness or possible bias of the employee
that is the subject of a pending investigation.
6. Treatment of Allegations Which Are Unsubstantiated, Not Credible, or

Have Resulted in Exoneration. Allegations that cannot be substantiated, are
not credible, or have resulted in the exoneration of an employee generally are
not considered to be potential impeachment information. Upon request, such
information which reflects upon the truthfulness or bias of the employee, to the
extent maintained by the agency, will be provided to the prosecuting office
under the following circumstances: (a) when the Requesting Official advises
the Agency Official that it is required by a Court decision in the district where
the investigation or case is being pursued; (b) when, on or after the effective
date of this policy: (i) the allegation was made by a federal prosecutor,
magistrate judge, or judge; or (ii) the allegation received publicity; (c) when
the Requesting Official and the Agency Official agree that such disclosure is
appropriate, based upon exceptional circumstances involving the nature of the
case or the role of the agency witness; or (d) when disclosure is otherwise
deemed appropriate by the agency. The agency is responsible for advising the
prosecuting office, to the extent determined, whether any aforementioned
allegation is unsubstantiated, not credible, or resulted in the employee's
exoneration.
Note. With regard to allegations disclosed to a prosecuting office under this

paragraph, the head of the prosecuting office shall ensure that special care is
taken to protect the confidentiality of such information and the privacy
interests and reputations of agency employee- witnesses, in accordance with
paragraph 13 below. At the conclusion of the case, if such information was not
disclosed to the defense, the head of the prosecuting office shall ensure that all
materials received from an investigative agency regarding the allegation,
including any and all copies, are expeditiously returned to the investigative
agency. This does not prohibit a prosecuting office from keeping motions,
responses, legal memoranda, court orders, and internal office memoranda or
correspondence, in the relevant criminal case file(s).
7. Prosecuting Office Records. Department of Justice prosecuting offices shall

not retain in any system of records that can be accessed by the identity of an
employee, potential impeachment information that was provided by an agency,
except where the information was disclosed to defense counsel. This policy
does not prohibit Department of Justice prosecuting offices from keeping
motions and Court orders and supporting documents in the relevant criminal
case file.
8. Copies to Agencies. When potential impeachment information received from

Agency Officials has been disclosed to a Court or defense counsel, the
information disclosed, along with any judicial rulings and related pleadings,
shall be provided to the Agency Official that provided the information and to
the employing Agency Official for retention in the employing agency's system
of records. The agency shall maintain judicial rulings and related pleadings on
information that was disclosed to the Court but not to the defense in a manner
that allows expeditious access upon the request of the Requesting Official.
9. Record Retention. When potential impeachment information received from

Agency Officials has been disclosed to defense counsel, the information
disclosed, along with any judicial rulings and related pleadings, may be
retained by the Requesting Official, together with any related correspondence
or memoranda, in a system of records that can be accessed by the identity of
the employee.
10. Updating Records. Before any federal prosecutor uses or relies upon
information included in the prosecuting office's system of records, the
Requesting Official shall contact the relevant Agency Official(s) to determine
the status of the potential impeachment information and shall add any
additional information provided to the prosecuting office's system of records.
11. Continuing Duty to Disclose. Each agency plan shall include provisions
which will assure that, once a request for potential impeachment information
has been made, the prosecuting office will be made aware of any additional
potential impeachment information that arises after such request and during
the pendency of the specific criminal case or investigation in which the
employee is a potential witness or affiant. A prosecuting office which has made
a request for potential impeachment information shall promptly notify the
relevant agency when the specific criminal case or investigation for which the
request was made ends in a judgment or declination, at which time the
agency's duty to disclose shall cease.
12. Removal of Records Upon Transfer, Reassignment, or Retirement of

Employee. Upon being notified that an employee has retired, been transferred
to an office in another judicial district, or been reassigned to a position in which
the employee will neither be an affiant nor witness, and subsequent to the
resolution of any litigation pending in the prosecuting office in which the
employee could be an affiant or witness, the Requesting Official shall remove
from the prosecuting office's system of records any record that can be
accessed by the identity of the employee.
13. Prosecuting Office Plans to Implement Policy. Within 120 days of the
effective date of this policy, each prosecuting office shall develop a plan to
implement this policy. The plan shall include provisions that require: (a)
communication by the prosecuting office with the agency about the disclosure
of potential impeachment information to the Court or defense counsel,
including allowing the agency to express its views on whether certain
information should be disclosed to the Court or defense counsel; (b) preserving
the security and confidentiality of potential impeachment information through
proper storage and restricted access within a prosecuting office; (c) when
appropriate, seeking an ex parte, in camera review and decision by the Court
regarding whether potential impeachment information must be disclosed to
defense counsel; (d) when appropriate, seeking protective orders to limit the
use and further dissemination of potential impeachment information by defense
counsel; and, (e) allowing the relevant agencies the timely opportunity to fully
express their views.
14. Investigative Agency Plans to Implement Policy. Within 120 days of the
effective date of this policy, each of the investigative agencies shall develop a
plan to effectuate this policy.
See also Criminal Resource Manual 165 ("Guidance for Prosecutors Regarding
Criminal Discovery").
[updated January 2010] [cited in Criminal Resource Manual 165]
9-5.110 Testimony of FBI Laboratory Examiners

In situations where FBI laboratory examinations have resulted in findings
having no apparent probative value, yet defense counsel intends to subpoena the
examiner to testify the United States Attorney (USA) should inform defense counsel
of the FBI's policy requiring payment of the examiner's travel expenses by defense
counsel. The USA should also attempt to secure a stipulation concerning this
testimony. This will avoid needless expenditures of time and money attendant to
the appearance of the examiner in court.
[updated December 2006]
9-5.150 Authorization to Close Judicial Proceedings to Members of the

Press and Public
Procedures and standards regarding the closure of judicial proceedings to
members of the press and public are set forth in 28 C.F.R. § 50.9. Government
attorneys may not move for or consent to the closure of any criminal proceeding
without the express prior authorization of the Deputy Attorney General.
There is a strong presumption against closing proceedings, and the

Department foresees very few cases in which closure would be warranted. Only
when a closed proceeding is plainly essential to the interests of justice should a
Government attorney seek authorization from the Deputy Attorney General to move
for or consent to closure of a judicial proceeding. Government attorneys should be
mindful of the right of the public to attend judicial proceedings and the of the
Department's obligation to the fair administration of justice.
Any request for authorization to move for or consent to closure, in addition to

setting forth the relevant and procedural background, should include a detailed
explanation of the need for closure, addressing each of the factors set forth in 28
C.F.R. § 50.9(c)(1)-(6). In particular, the request should address in detail how an
open proceeding will create a substantial likelihood of danger to specified
individuals; how ongoing investigations will be jeopardized; or how a person's right
to a fair trial will be impaired. The request must also consider reasonable
alternatives to closure, such as delaying the proceeding, if possible, until the
reasons justifying closure cease to exist. The applicable form is in the
Criminal Resource Manual at 161.
Whenever authorization to close a judicial proceeding is being sought pursuant

to 28 C.F.R. § 50.9 in a case or matter under the supervision of the Criminal
Division, the request should be directed to the Policy and Statutory Enforcement
Unit, Office of Enforcement Operations. In cases or matters under the supervision
of other divisions of the Department of Justice, the appropriate division should be
contacted.
Because of the vital public interest in open judicial proceedings, every 60 days
after termination of any proceeding closed pursuant to 28 C.F.R. § 50.9,
Government attorneys must review the records of the proceedings to determine
whether the reasons for closure still apply. As soon as the justification for closure
ceases to exist, the Government must file an appropriate motion to have the
records unsealed. See 28 C.F.R. § 50.9(f). While the Criminal Division monitors
compliance with this requirement, it is the affirmative obligation of the U.S.
Attorney's Offices to ensure that sealed records are reviewed in accordance with the
regulation's requirements. U.S. Attorney's Offices should acknowledge this
obligation in any request for authorization to move for or consent to closure.
[updated October 2008]

2010-01-14 D1109 MTN To Dismiss Indictment For Pros Misconduct

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2010-01-14 D1109 MTN To Dismiss Indictment For Pros Misconduct

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Case 4:03-cr-00363 Document 1109 Filed in TXSD on 01/14/10 Page 1 of 49

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA §

DEFENDANT ROBERT S. FURST’S

II. BACKGROUND ...............................................................................................................3

A. The First Trial ........................................................................................................3

1. The Barge Transaction...............................................................................3

2. The ETF’s Stated Theory of the Case........................................................4

3. The Defense Made Repeated Requests for the

4. The ETF Made Sparse Brady Disclosures in the First

a. The April 22, 2004 Brady Letter..................................................10

b. The June 1, 2004 Brady Letter.....................................................10

c. The July 30, 2004 Brady Letter ...................................................11

5. The ETF’s Representations to this Court.................................................12

B. Hundreds of Pages of Brady Material Were Produced Years

1. In September 2007, the Government Produced Two

2. In December 2007, the Government Produced 302s for

3. The ETF’s Brady Misconduct in the Skilling Case

III. EXAMPLES OF EGREGIOUS AND MATERIAL BRADY

A. The ETF Withheld Exculpatory Evidence That Nullified Its

1. ETF (Mis)Representation #1: Did Fastow Actually

2. ETF (Mis)Representation #2: Contrary to the

3. ETF (Mis)Representation #3: To Prove an Oral

4. ETF (Mis)Representation #4: Fastow Expressly Denied

5. ETF (Mis)Representation #5: The ETF Withheld

a. Katherine Zrike’s exculpatory 302 was withheld

b. Katherine Zrike’s exculpatory SEC testimony

IV. LEGAL AUTHORITY ....................................................................................................35

A. The Government is Constitutionally, Ethically, and as a Matter

B. This and Other Courts Have Dismissed Indictments for Brady

C. The Egregious Pattern of Withholding and Manipulation of

Berger v. United States,

Harris v. United States,

United States v. Auten,

United States v. Broward,

United States v. Chapman,

United States v. Dollar,

United States v. Jordan,

United States v. Lyons,

United States v. Ramming,

United States v. Reyes,

United States v. Urciuoli,

United States v. Weintraub,

United States v. Welborn,

ABA FORMAL OPINION 09-454......................................................................................................38

UNITED STATES ATTORNEY MANUAL § 9-5.001(B).........................................................................8

UNITED STATES ATTORNEY’S MANUAL § 9-5.001(B)......................................................................8

UNITED STATES ATTORNEY’S MANUAL §9-5.001(B)(1) ................................................................37

UNITED STATES ATTORNEYS MANUAL § 9-5.001(B)(2) ................................................................38

aftermath of Enron’s collapse—investigated, indicted, and prosecuted Defendant Robert Furst

almost a year in prison before his conviction was overturned on appeal.

hundreds of hours of negotiation by dozens of highly-competent attorneys. Witnesses

markings of a legitimate business transaction, because it was. But legitimate business

victory, the ETF:

● withheld volumes of exculpatory, case-dispositive evidence which nullified its theory

● manipulated and misstated exculpatory testimony in pretrial disclosures to make it

DEFENDANT FURST’S MOTION TO DISMISS INDICTMENT FOR PROSECUTORIAL MISCONDUCT- Page 1

● silenced witnesses by indiscriminately designating nearly all material witnesses as

unindicted co-conspirators; and

● sponsored inculpatory testimony that it knew was false.

The Justice Department’s failure to address the ETF’s pattern of misconduct is as

retrial. Such a contention demonstrates a fundamental distortion of the government’s obligations

to distort and hide exculpatory evidence from an accused.