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

Public Copy (revised per 6/15/10 unsealing order) Sealed Material Deleted
No. 10-3006

IN THE UNITED STATES COURT OF APPEALS


FOR THE DISTRICT OF COLUMBIA CIRCUIT

UNITED STATES OF AMERICA,


Plaintiff-Appellant,
v.
PAUL ALVIN SLOUGH,
NICHOLAS ABRAM SLATTEN,
EVAN SHAWN LIBERTY,
DUSTIN LAURENT HEARD,
DONALD WAYNE BALL,
Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA
(The Hon. Ricardo M. Urbina)

PRELIMINARY BRIEF FOR THE UNITED STATES

LANNY A. BREUER
Assistant Attorney General

GREG D. ANDRES
Acting Deputy Assistant Attorney General

JOSEPH N. KASTER DEMETRA LAMBROS


MICHAEL DITTOE Criminal Division, Appellate Section
Trial Attorneys U.S. Department of Justice
National Security Division Washington, D.C. 20530
(202) 307-5964
Case: 10-3006 Document: 1250238 Filed: 06/16/2010 Page: 2

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

A. PARTIES AND AMICI

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

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

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

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

B. RULINGS UNDER REVIEW

The United States appeals the district courts (Hon. Ricardo M. Urbina)

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

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

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

The following rulings are under review:

1. The district courts findings that the government made evidentiary

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

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

(JA__).

2. The district courts ruling that a prosecutors consideration of a

defendants immunized statement in deciding whether to recommend charges

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

and the courts findings that the government made significant non-evidentiary use
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of the defendants immunized statements in securing the indictment. Mem.Op. 75-

85 (JA__).

3. The district courts finding that any Kastigar errors were not harmless

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

C. RELATED CASES

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

Slattens and Balls motions to dismiss with prejudice based on prosecutorial

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

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

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

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

remain under seal pending the governments decision to seek appeal, but also

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

governments deadline for noticing an appeal. That opinion (JA__) in D.C. No.

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

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

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

Kastigar materials under seal (JA__). The governments appeal of that ruling in

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

Counsel is aware of no other related cases.


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Material Under Seal Deleted

TABLE OF CONTENTS

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

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

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

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

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

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

B. Blackwater, The Raven 23 Convoy, Its Rules Of Engagement,


And The Shooting At Nisur Square. . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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


.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

D. Back At Blackwater Headquarters, Several Raven 23 Guards Are


Angry And Upset,
.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

E. The Raven 23 Team Orally Reports To The State Department On


The Day Of The Shooting, And Submits Written, Sworn
Statements Two Days Later. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

F. The FBI Goes To Baghdad Under Instructions To Investigate


From Scratch, And Murphy, Mealy And Frost Tell Their
Stories To The Grand Jury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

G. A Reasonable Difference Of Opinion And A Breakdown Of The


Governments Taint Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

H. The Prosecutors Travel To Baghdad, Decide To Charge A Mass


Liability Theory, And Look Into (But Abandon) Obstruction
And False Statement Charges.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
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Material Under Seal Deleted

I. Realizing The Testimony Of Some Grand Jury Witnesses May


Have Been Affected By Exposure To The Defendants Statements,
The Government Presents A Scaled-Down Case To A Second
Grand Jury.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

J. The District Courts Opinion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

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

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

THE INDICTMENT SHOULD BE REINSTATED

I. THE DISTRICT COURT CLEARLY ERRED IN FINDING


PERVASIVE EVIDENTIARY TAINT IN THE GRAND JURY.
IN LIGHT OF THE OVERWHELMING UNTAINTED
EVIDENCE SUPPORTING PROBABLE CAUSE TO INDICT,
THE PRESENTATION OF SOME TAINTED EVIDENCE WAS
HARMLESS BEYOND A REASONABLE DOUBT. . . . . . . . . . . . 56

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

B. Kastigar and North: The Applicable Legal Principles. . . . . . 58

C. The District Court Clearly Erred In Finding That Murphy


And Frost Could Not Distinguish What They Saw In The
Square From What They Read In The Press And It Failed,
As Required By North, To Separate The Wheat Of Their
Unspoiled Memories From The Chaff Of The Immunized
Statements.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

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

2. Frosts And Murphys Isolated And Admittedly


Speculative Testimony About
First Shots Does Not Cast Doubt On
The Independence Of All Their First-Hand
Observations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

ii
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D. The District Court Clearly Erred In Finding That The


Iraqi Eyewitnesses Grand Jury Testimony Was Tainted. . . . 67

1. Background: A Sense Of The Publicity.. . . . . . . . . . . . 69

2. The District Court Failed, As North Requires, To


Examine The Content Of The Iraqi Eyewitnesses
Grand Jury Testimony And To Determine
Whether Their Identification Of The Shooters
Was Affected By Any Exposure They May Have
Had To The Press. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

E. The District Court Clearly Erred In Finding That Frosts


Journal Was Tainted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

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

2. Frost Was Motivated To Preserve His Memory


About A Momentous And Tragic Event, And
Would Have Written His Journal Regardless Of
Any Exposure To The Defendants Statements.. . . . . . 82

3. The Journal Is Not Otherwise Tainted.. . . . . . . . . . . . . 86

F. The District Court Clearly Erred In Finding That All Of


Ridgeways Grand Jury Evidence Was Tainted.. . . . . . . . . . . 88

1. Background: Ridgeways Debriefing And Grand Jury


Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

2. All Of Ridgeways Information Was Not Tainted.. . . . 92

G. The Tainted Testimony Presented To The Grand Jury Was


Harmless Beyond A Reasonable Doubt. . . . . . . . . . . . . . . . . . 94

iii
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II. THE DISTRICT COURT ERRED IN FINDING THE


GOVERNMENT MADE IMPERMISSIBLE AND SIGNIFICANT
NON-EVIDENTIARY USE OF THE DEFENDANTS
COMPELLED STATEMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

A. Standards of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

B. Where The Government Has Sufficient, Independent


Evidence To Indict, The Fifth Amendment Does Not
Require It To Prove That A Prosecutors Charging
Recommendation Was Unaffected By His Exposure
To Immunized Testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . 102

C. The District Court Clearly Erred In Finding The


Governments Exposure To Heards And Balls
Compelled Statements Played A Central Role
In The Decision To Charge Them. . . . . . . . . . . . . . . . . . . . . 107

1. The Decision To Recommend Charges Against


Heard Was Based On The Independent Evidence
Against Him, Not His September 16 Statement
And The Reference To Heards Statement In The
Prosecution Memo, Later Redacted, Was Harmless
Beyond A Reasonable Doubt.. . . . . . . . . . . . . . . . . . . 107

2. The Decision To Recommend Charges Against Ball


Was Based On The Independent Evidence Against
Him, Not His Garrity Statements. . . . . . . . . . . . . . . . 111

D. The District Court Clearly Erred In Finding The Government


Otherwise Made Non-Evidentiary Use Of The Defendants
Statements In Securing The Indictment. . . . . . . . . . . . . . . . . 113

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

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

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

iv
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TABLE OF AUTHORITIES

CASES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

United States v. Crowson, 828 F.2d 1427


(9th Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116, 121

* United States v. Daniels, 281 F.3d 168


(5th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 99, 119, 122

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

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

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

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

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

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

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

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

* United States v. Kilroy, 27 F.3d 679


(D.C. Cir. 1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58, 73, 101, 117

United States v. Koon, 34 F.3d 1416 (9th Cir. 1994),


rev'd in part on othergrounds, 518 U.S. 81 (1996). . . . . . . . . . . . . . . . . . . . . . . 3

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

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

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

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

* United States v. Montoya, 45 F.3d 1286


(9th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 79, 93, 100, 105, 116

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

* United States v. North, 910 F.2d 843 (D.C. Cir.),


modified, 920 F.2d 940 (D.C. Cir. 1990) . . . . . . . . . . . . . 5, 57, 58, 59, 60, 67, 71
80, 81, 83, 94, 101, 102,
106, 116, 118

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

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

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

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

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

* United States v. Ponds, 454 F.3d 313


(D.C. Cir. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 60, 79, 85, 96, 110, 112

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

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

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

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

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

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

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

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

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

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

STATUTES, RULES AND MISCELLANEOUS

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

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

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

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

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

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

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

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

U.S. Attorneys Manual 9-11.233. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

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GLOSSARY

Dkt. District Court Docket

DSS U.S. State Departments Diplomatic Security Service

Embassy United States Embassy in Baghdad, Iraq

Ex. Kastigar Hearing Exhibit

INP Iraqi National Police

JA Joint Appendix

Mem. Op. District Courts 12/31/09 Memorandum Opinion

RSO State Departments Regional Security Office

Square Nisur Square in Baghdad, Iraq

State State Department

Tr. Transcript

VBIED Vehicle-borne improvised explosive device


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JURISDICTION

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

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

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

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

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

ISSUES PRESENTED

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

shooting was wholly tainted by reports of the defendants immunized statements

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

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

beyond a reasonable doubt.

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

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

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

and where the defendants statements did not provide the government with

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

STATUTES AND REGULATIONS

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

are reproduced in an addendum to this brief.


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STATEMENT OF THE CASE

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

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

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

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

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

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

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

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

in Iraq, killed or wounded 34 Iraqi civilians in Baghdads Nisur Square on

September 16, 2007. See Indictment.

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

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

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

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

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

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

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

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

2
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STATEMENT OF FACTS

A. Introduction

This, in the governments view, is a case about a group of private security

guards who recklessly and unjustifiably opened fire in a crowded Baghdad square,

leaving 14 innocent Iraqi civilians dead and another 20 wounded.

It is also a case about the difficulty of bringing them to justice.

Hours after the shooting, well before the FBI was on the scene or the Justice

Department could make a considered decision about any grant of immunity, the

State Department questioned the guards about what had happened, and then

extended formal Garrity immunity for their sworn statements two days later. In

the days and weeks that followed, versions of the guards accounts were reported

in the press, raising the possibility that anyone who read the stories might thereby

be tainted.1

1
The Ninth Circuit has well described the problem this sort of situation
creates. In Garrity cases (as when a police officer is involved in a controversial
use of force), the goal of an employers questions is generally to learn the facts of
a situation as quickly as possible. United States v. Koon, 34 F.3d 1416, 1433
n.13 (9th Cir. 1994), revd in part on other grounds, 518 U.S. 81 (1996). The
questioners do not necessarily act with the care and precision of a prosecutor
weighing the benefits of compelling testimony against the risks to future
prosecutions; indeed, they may not even have the prospect of prosecution and the
requirements of the Fifth Amendment in mind. In addition, because statements
may be compelled soon after the event in question, it is far more likely that these
statements will be circulated before there is an opportunity to can testimony. Id.
3
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In navigating these waters in its effort to prosecute the Nisur Square

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

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

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

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

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

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

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

questioned the governments good faith at every turn: it found that prosecutors

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

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

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

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

fatally defective. Mem.Op. 88-89.

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

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. Material Under Seal Deleted


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

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

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

Iraq.

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

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

2
Because the Kastigar inquiry necessarily focuses on the testimony
presented to the grand jury whether any of it was tainted and, if so, whether the
taint was harmless beyond a reasonable doubt, United States v. North, 910 F.2d
843, 872-73 (D.C. Cir.) (North I), modified, 920 F.2d 940 (D.C. Cir. 1990) we
present the facts about the Nisur Square shooting through the record of the
indicting grand jury (Exhibit 1 at the Kastigar hearing). The grand jury testimony
of three of the defendants fellow guards, memorialized in 2007, is also relevant to
show what the prosecutors knew about the shooting and when they knew it,
another central question in this case. We have bound the grand jury transcripts
(GJ.Tr.) and exhibits (GJ.Ex) separately. In our final brief, we cite to the Joint
Appendix (JA) for the Kastigar transcripts and exhibits; in the preliminary brief,
we cite the Kastigar transcripts by date. E.g., 10/14/am/pg#.
5
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. Material Under Seal Deleted

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

GJ.Ex.2.

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

GJ.Ex.3 (capitalization in original).

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

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

6
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. Material Under Seal Deleted

GJ.Ex.1/14-17.

G.J.Ex.90/16

GJ.Ex.89/37

GJ.Ex.89/47-53.

GJ.Ex.92/30-33.

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

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

7
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. Material Under Seal Deleted


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

GJ.Ex.106/3-6.

Id. at 22-24.

Id. at 24-26, 35.

Id. at 32.

Id. at 24-26,

32-33.

GJ.Ex.106/38,

51, 54, 68.

8
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. Material Under Seal Deleted


Id. at 32, 36-62.

Id. at 36.

Id. at 33, 36-37.

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

Id. at 50

Id. at 37-38, 41-62.3

Id. at 41-42.

3
E.g., GJ.Ex.106/70

id. at 49

id. at 48
9
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. Material Under Seal Deleted


10/23/pm/29

GJ.Ex.106/41.

GJ.Ex.106/49; id.

at 43

id. at 45

Id. at 62-67.

id. at 43, 51

Id. at 67-68.

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. Material Under Seal Deleted

10/21/am/5-6

GJ.Ex.108/21-22.

id. at 24

Id. at

23-24, 45.

id. at 23, 26, 29

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

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

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

D. Back At Blackwater Headquarters, Several Raven 23 Guards Are


Angry And Upset,

11
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. Material Under Seal Deleted

GJ.Ex.94/43-44.

Id. at 44,

46.

GJ.Ex.92/86-90.

GJ.Ex.90/57

GJ.Ex.92/87;

GJ.Ex.93/101-02.

see GJ.Ex.94/58-59

Id. GJ.Ex.92/91,

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

see id. at 48

12
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. Material Under Seal Deleted


GJ.Ex.91/51-52

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

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

see GJ.Ex.93/27

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

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

GJ.Ex.92/82-83.

Id.

GJ.Ex.93/117-20,

GJ.Ex.90/68-69.

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. Material Under Seal Deleted

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

GJ.Ex.90/69-71

Id. at

71-72

GJ.Ex.90/77.

GJ.Ex.91/18,

GJ.Ex.93/32-35.

Id.

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

14
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. Material Under Seal Deleted

GJ.Ex.93/37-40.

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

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

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

GJ.Ex.93/120-22,

GJ.Ex.94/33-34.

GJ.Ex.90/133.

E. The Raven 23 Team Orally Reports To The State Department On


The Day Of The Shooting, And Submits Written, Sworn
Statements Two Days Later.

In September 2007, State Department policy set forth reporting

requirements for employees, including private contractors, who discharged their

15
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. Material Under Seal Deleted


weapons in Baghdad. The Hunter Memorandum contemplated a two-step

process. First, various key players (including the employee who fired and

everyone in his vehicle) were to report immediately to the Regional Security

Office (RSO) at the Embassy for a debriefing. Ex.32/1. After that, the

employee who discharged his weapon was to submit a formal, sworn written

statement on a form carrying a Garrity warning. Id.4

10/16/pm/103, 115-18.

See

Lopez.Exs.2, 3; Reta.Ex.3; see also 10/15/am/7-8, 22; 10/15/pm/25-29;

4
The form, Ex.32/3, provided:

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 Departments 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 * * *.
16
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. Material Under Seal Deleted


10/16/am/37-39

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

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

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

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

Scollan.Ex.4;

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

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

10/15/pm/9-14;

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

10/16/pm/27.

17
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. Material Under Seal Deleted

Id. at 28-29.

F. The FBI Goes To Baghdad Under Instructions To Investigate


From Scratch, And Murphy, Mealy And Frost Tell Their
Stories To The Grand Jury.

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

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

see Ex.53, and a protocol

was established to guide the FBIs investigation. The agents (who had not read

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

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

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

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

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

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

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

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

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

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

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. Material Under Seal Deleted


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

10/19/pm/51.

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

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

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

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

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

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

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

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

bullets (some from victims bodies); took custody of the Raven 23 teams

weapons; and

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

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

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

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

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

19
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. Material Under Seal Deleted


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

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

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

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

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

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

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

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

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

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

10/22/pm/57, 63.

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

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

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

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

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

witnesses tremendously assisted in identifying shooters).

Blackwater, for its part, was much less helpful.

20
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. Material Under Seal Deleted


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

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

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

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

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

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

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

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

GJ.Ex.92/41-42.

GJ.Ex.92/42-44.

Id.5

GJ.Ex.94/22, 26.

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

5
In the grand jury, Frost and Murphy testified about
but acknowledged at the
Kastigar hearing that this testimony was affected by their exposure to
sworn statements. We discuss this tainted testimony infra, at 60-67.
21
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. Material Under Seal Deleted

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

GJ.Ex.90/34-35,

GJ.Ex.94/27-31.

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

GJ.Ex.92/46-49.

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

GJ.Ex.90/38.

Id. at 39-43.

GJ.Ex.92/56-65.

22
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GJ.Ex.92/62-64

id. at 76-78

GJ.Ex.90/44, 47-49

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

Id. at 39-40.

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

see GJ.Ex.92/67

See GJ.Ex.92/50-54

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

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

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

23
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. Material Under Seal Deleted

Frost.Ex.6/5.6

G. A Reasonable Difference Of Opinion And A Breakdown Of The


Governments Taint Procedures

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

October 2007, Ray Hulser, Deputy Chief of DOJs Public Integrity Section, was

assigned to be the taint attorney for the case. 10/22/pm/76-77. It was Hulsers

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

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

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

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

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

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

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

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

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

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

6
The district courts conclusion that Frosts journal was tainted is
discussed infra, at 80-88.
24
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Kastigar hearing, the question of whether a statement is compelled under Garrity

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

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

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

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

Hulsers view informed the protocol under which the FBI operated in

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

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

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

communicated to the FBI through Michael Mullaney, chief of the

Counterterrorism Section within DOJs National Security Division, who was

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

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

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

Meanwhile, AUSA Ken Kohl from the D.C. U.S. Attorneys Office was

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

Ponticiello, from DOJs National Security Division. 10/26/pm/60-61;

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

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

25
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exposed to guards statements, and had decided that non-Division lawyers should

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

State Departments promises of immunity to the Blackwater guards. 10/28/am/30

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

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

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

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

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

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

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

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

conversations raised even more questions in Kohls mind about the circumstances

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

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

lawyer from DOJs Office of Enforcement Operations (which authorizes statutory

grants of immunity) advised Kohl that, in his view, States unauthorized promises

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

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

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

26
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. Material Under Seal Deleted


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

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

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

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

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

121-22.

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

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

discovered that Blackwater management was involved in the preparation of the

written statements presented to the State Department; that

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The September 16 oral statements, to Kohls mind, were a different matter.

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

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

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

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

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

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

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

28
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the initial oral interviews are done purely because theyre trying to understand

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

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

Baghdad, Iraq in September 2007. Id. Ponticiello agreed. I didnt believe that

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

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

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

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

Unfortunately and in what the government acknowledges is a serious

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

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

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

statements to the DSS. 10/23/am/21-23. Mullaney, who communicated Hulsers

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

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

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

According to the emails, Hulsers view of the September 16 statements was

first communicated to Kohl on November 29, 2007, in the context of Hulsers role

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

29
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guard Murphys grand jury appearance on November 29, the prosecutors had

asked Hulser (via Mullaney) for Murphys statements to the DSS. 10/28/am/70.

Ponticiello received the written statement on November 28, Ex.62.#5979, but the

email containing the oral statement (to Kohl via Mullaney) did not come until the

next day and Kohl did not open it until after Murphy testified. Ex.62.#2523. In

a one-sentence parenthetical within the three-paragraph email containing

Murphys statement, Hulser conveyed his views about the September 16

statements. Id. ((While no Kalkines warning was given before these interviews, I

believe that we should treat all of their statements to the RSOs as compelled given

the practice of routinely giving the Kalkines warning to the participants in a

shooting)). Upon receiving the email that evening, Kohl responded to Mullaney:

Got it. Thanks Mike. Id. As Kohl later testified, his got it referred to

receiving the requested Murphy statement (which he had also gotten the night

before from Ponticiello) and with Murphys testimony behind him, Kohl did not

read down into the body of the email to Hulsers sentence about his general view

of the September 16 statements. 10/28/am/70-72.7

7
Earlier that week, Hulser sent the statements of Frost and Mealy,
again through Mullaney. Ex.62.#3477. This email did not state Hulsers view that
the September 16 statements should be considered potentially compelled (contrary
to the district courts suggestion, Mem.Op. 15 n.15), although it did advise caution
in questioning the witnesses to ensure their testimony was based solely on their
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. Material Under Seal Deleted


The disconnect between Hulser and the trial team continued into December

and the new year. On December 7, 2007, Mullaney told Hulser the prosecutors

wanted to interview DSS agent Carpenter and his deputy. Ex.57.#1636. Hulser

responded: because those agents reviewed and/or wrote a report based on

compelled statements, they are thoroughly tainted, and even the focus of the

investigative steps that they took would have been affected by the compelled

statements. Id. In a follow-up email to Mullaney a few minutes later, Hulser

more specifically spelled out his concerns about the September 16 statements.8

There is no indication in the email traffic that Kohl or Ponticiello received the

personal recollections, not any exposure to their fellow guards sworn statements.
Id. (recommended admonishments be made on the record). Kohl, who at the time
was in the throes of two other major cases, did not focus on Hulsers cautionary
instruction. 10/28/am/63-64, 66-69. Even without reading Hulsers advice, Kohl
nevertheless cautioned the witnesses before they went into the grand jury to be
careful to avoid referring to the other guards statements. 10/28/pm/99-103; see
10/14/pm/15

8
See Ex.57.#1636 (The RSO didnt get the written compelled
statements * * * until 9/18, so normally Id say there was a safe window following
the incident. The risk * * * is that the court may conclude that the entire
atmosphere following an incident was one of compulsion i.e., they all knew they
were going to be required to provide compelled statements (just as theyd done
following prior incidents) and so whatever they told the RSO agents (in
interviews, written reports or written statements) they believed was not voluntary.
Unfortunately, I think a court may find that belief reasonable given the consistent
practice of using the compelled forms).
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follow-up email, and on December 20, Ponticiello sent a note to Mullaney

reflecting his unawareness of Hulsers concerns about the September 16

interviews. Ponticiello informed Mullaney of the upcoming Carpenter interview

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

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

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

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

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

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

Unaware that Carpenter had been interviewed, Hulser on January 15

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

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

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

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

the system. 10/26/pm/6-9 (so I cant honestly say whether I did or I didnt); see

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

Hulsers view to him); 10/26/am/29-30.

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

was unaware of Hulsers position. At the time, Kohl was arranging to interview

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

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

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

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

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

the interview. Ex.67.#4491. Posillico said he had spoken with Tampio (Hulsers

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

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

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

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

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

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

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

not communicate this to him).

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

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

Im not it [was] not pass[ed] accurately); id. (there were miscommunica-

tions); 10/26/pm/9 (this is a breakdown on my part); id. at 24 ([i]ts clear I am

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

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

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

* * * they didnt actually get the exact advice that I had given. 10/23/am/68-89.

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

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

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

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

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

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

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

Kohl testified that, had he known Hulsers views about the September 16

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

work it out. 10/29/am/45-48. I wouldnt simultaneously be sending e-mails

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

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

See
10/19/am/91-94.
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The head-on discussion between Hulser and Kohl occurred, finally, on

April 18, 2008. 10/26/am/31-38. That month, Kohl was seeking information from

State about prior incidents involving the Blackwater guards, and in an ensuing

email exchange (the first direct contact between Kohl and Hulser), their

differences of opinion about the September 16 statements became starkly apparent.

10/28/pm/19-24. On April 11, Kohl claimed he should have access to day-of

shooting reports because they are generated within hours of the event, without

Kalkines promises, and before State opens an investigation during which sworn

statements might be requested. Ex.68.#2719-21. But even beyond his legal point,

Kohl explained why he thought he and Hulser had been on the same page about

the September 16 statements:

[Y]ou have previously approved and cleared other materials that 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 statements made by these individuals. For example, you have
approved, and we have received, the DSS notes of the interviews conducted
of each shooter on the day of the incident two days before the tainted
statements were generated.

Ex.68.#2720.

Seeing for the first time that Kohl might have the September 16 interviews

of potential defendants, Hulser stated the obvious: we need to assess whether

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weve got a problem. Ex.68.#2719; 10/23/am/9.10 Mullaney, too, sounded an

alarm. [I realized] the trial team [has] something * * * they think theyre entitled

to, and the taint team says, you shouldnt have that. 10/26/am/66-67. I

obviously know I have a problem. Id.

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

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

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

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

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

also Ex.68.#2704. Although Hulsers risk assessment differed from Kohls,

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

not converted to Hulsers position, he decided not to fight it, and his take away

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

purpose. 10/28/pm/24-25; id. at 112 (we didnt need them); 10/29/am/78-83

(we hadnt [used the 9/16 interviews] at that point, and I thought [the] better

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

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

10
See Ex.61.#2370 (Hulser: if you have notes of [9/16] interviews
* * * for any of your current subjects[,] I did not approve that.).
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46.11

Everyone also agreed that Mullaney would get out of the middle, leaving

the trial team to work directly with Hulser. 10/26/am/37; 10/28/pm/27.

According to Kohl, it was also understood that any final decisions would be made

by the prosecutors. See 10/29/am/48 (in the end, the National Security Division

has to [decide] how its going to do its case); 10/29/am/81 (Rays position has

always been it is your call); e.g., Ex.57.#1636 (Hulser to Mullaney re: overture to

Carpenter: Are you sure you need to interview them at this point?; This is your

call, of course).

11
Kohl also believed that the matter of the interview notes could be
revisited later, 10/28/pm/24-25, and although Hulser did not testify to that precise
point, that is consistent with Hulsers acknowledgment, throughout the
investigation, that time or developing facts might change the risk calculation vis-a-
vis the September 16 statements. See 10/23/am/72-73 (advice in April 2008 was
that no use be made of oral statements at this point); 10/23/am/10-12 ([a]gain,
this is a fact-based inquiry * * * So its certainly something I would expect the
team to evaluate at different stages along the way, balancing the potential value
of the statements against the possibility they could later be deemed compelled);
10/22/pm/104-05 (its always about risk assessment; conclusion about
compulsion could change over time); 10/22/pm/111 (in evaluating the risks, you
can decide later that you absolutely must talk to [tainted investigators]); accord
10/22/pm/112; 10/23/am/38; Hulser.Ex.6; Ex.57.#1636.

Mullaney, too, recalled the group agreed to continue the investigation


without the September 16 statements, but that the matter would be subject to
further review. 10/26/pm/22-24; 10/26/am/37-38 (same).
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H. The Prosecutors Travel To Baghdad, Decide To Charge A Mass
Liability Theory, And Look Into (But Abandon) Obstruction
And False Statement Charges.

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

in the U.S. Attorneys Office and DOJs National Security Division. 10/28/am/21-

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

guards Liberty, Slough, Slatten and Ridgeway as potentially facing

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

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

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

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

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

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

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

10/26/pm/85-86.

See

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

from Heards admissions to his teammates and from forensics that Heard had fired

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

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

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

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

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

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

Balls shots were limited to the Kia, but several Iraqi witnesses saw fire coming

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from the first vehicle (Mealy and Balls) to the west of the Square, indicating to

the government that Ball had shot west (since Mealy did not fire). 10/28/am/47-

48, 51-52; 10/27/pm/80-84. Also at the time, Kohl was adjusting his theory of the

case: having first set out to identify which shooter was responsible for which

victim, he decided to pursue instead a mass liability theory that is, he would seek

to charge those who joined the shooting even if he could not specifically identify

who or where they shot. 10/28/am/40-41, 52-53 (realized that attempt to match

each shooter with specific victim was setting the bar too high). As the district

court described the governments theory a month before the Kastigar hearing:

I think theres this theory of * * * mass liability, this kind of joint or group
liability, that when everybodys shooting into a situation and people die,
then all those people are responsible for the deaths even if one is not able to
identify whose bullet killed whom.

See 9/14/2009.Tr.62; accord Ex.401.#1353 (GJ.Tr.11/20/08/am minutes). Thus,

despite the discrepancies in the testimony about other shots, Kohl decided in April

that Ball should be added as a target. See 10/28/am/52-53 (if they joined in this

gunfight * * * [t]heyre going to be sent target letters); Ex.70.

In February 2008, Kohl also decided to investigate possible obstruction by

Blackwater. As he had learned, Frost, Mealy and Murphy believed that they were

being penalized for coming forward, and that Blackwater had withheld critical

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

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

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

exchanges between Blackwater management and the guards on the matter.

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

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

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

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

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

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

investigation into obstruction by Blackwater management).12 Patarini first looked

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

when he did, he saw drafts of Slattens and Balls September 18 statements.

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

12

Patarini.Ex.21 15;

id. at 17-18

Id. at 19; see also id. at 22

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investigation, and no obstruction charges were presented to the grand jury.

10/22/am/13-14.13

In late August 2008, Kohl asked the FBI for the reports the team had

previously received on the Raven 23 guards September 16 statements.

10/28/pm/31-35; 10/22/pm/39-44. At this point, Kohl had made his case for

manslaughter charges, and was considering whether to add false statement

charges. Id.; Patarini.Ex.57. As Patarini explained, because we already had

* * * the physical evidence, * * * [and] the witnesses, Iraqis, military, others, the

only point in looking at the September 16 statements was to consider false

statement charges. 10/22/pm/59-60. In the end, the team did not present such

charges to the grand jury. 10/28/pm/34-35.

I. Realizing The Testimony Of Some Grand Jury Witnesses May


Have Been Affected By Exposure To The Defendants Statements,
The Government Presents A Scaled-Down Case To A Second
Grand Jury.

Ex.308.#5895-96. When

13
Hulser testified that had he known about the search warrant request
(he did not), he might have authorized it so long as the results could be filtered
first. 10/23/am/28-29. Earlier in 2008, when Kohl received drafts of unsigned
statements from Blackwater in response to a subpoena, he sent them on to Hulser
without reading them. 10/28/pm/14-17; see 10/26/pm/88-89; Ex.215.#3905
(Ponticiello; same).
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AUSA Jon Malis joined the prosecution team at the end of August 2008, he

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

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

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

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

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

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

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

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

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

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

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

11/2/am/22-28.

Although other Raven 23 guards had also provided testimony against the

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

hearing. See 10/29/am/113-14 (Kohl: theres incredible pressure on these * * *

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

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

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

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

14 (Kohl: noting great potential for mischief). So with Hulser and Dobinskys

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

and Murphy statements that appeared to be influenced or shaped by the mens

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

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

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

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

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

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

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

See

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

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

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

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

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

101-05

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

.14

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

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

14

GJ.Ex.85
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15

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

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

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

15

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

GJ.Ex.99/4-5.

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

id. at 19-20

Id. at 15-16.

Id.
at 19-20.

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

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id.,

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

31-36, 44.

Because the second grand jury was presented with a much abbreviated case,

it heard neither all the inculpatory, nor all the exculpatory, evidence from the first

grand jury.16 As for the exculpatory testimony, however (i.e., that the convoy had

taken fire), the government introduced evidence that made the same point.

See GJ.Tr.11/25/08/56-60

GJ.Ex.96.17

16
E.g., 11/3/am/10 (Raven 23 guard Vargas: maybe like five seconds
after we pulled into our positions, we started taking fire); id. at 12-13 (Skinner:
heard gunfire and saw two distinct separate muzzle flashes); id. at 17 (Childers:
did not see, but heard, incoming gunfire); id. at 18 (Randall: I saw a couple
rounds impact the side of the command vehicle).
17
See also GJ.Tr.11/25/08/76-79

GJ.Tr.12/2/08/am/12-13
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e.g., GJ.Tr.11/20/08/am/41

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

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

42, 44

accord

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

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

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

on the self-defense issue).

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

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

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

See Indictment.

J. The District Courts Opinion

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

threshold, it rejected the governments view that the guards September 16

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

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

because they had previously reported shootings on forms bearing the Garrity

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

rules on September 16) with Govt Post-Hearing Mem. 17-26 (arguing that first

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

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

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

as part of an investigation into their conduct).

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

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

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

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

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Ridgeway and the Iraqi eyewitnesses were not tainted by press accounts of the

statements. Mem.Op. 66-75. The court made no findings of taint, one way or the

other, as to the testimony of Raven 23 guard Mealy, and Colonels Boslego and

Tarsa.

Most of the Kastigar hearing and the courts opinion focused on the

September 16 statements: in addition to finding they were Garrity-compelled, the

court found the trial team had recklessly pursued them in direct contravention

of taint attorney Hulsers directives. Mem.Op. 13-20, 75-85.18 Importantly, the

court did not find the governments exposure to any of the defendants statements

led to the presentation of any evidence in the grand jury. Its findings of

evidentiary taint, rather, were premised on the witnesses exposure to the

defendants statements via the media, not the prosecutors. See Mem.Op. 51-75.

The prosecutors pursuit of the September 16 statements, thus, only figured into

the courts analysis regarding non-evidentiary use. On that issue, the court found

the governments exposure to Heards and Balls compelled statements played a

central role in the decision to charge them, Mem.Op. 75-78, and that in light of

18
While the court did not dispute the prosecutors testimony that they
had not seen the September 18 statements, it found that during the investigation,
the team learned information derived from some of the defendants later
statements to DSS investigators. Mem.Op. 79-80.
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the governments aggressive pursuit of the statements, it utter[ly] fail[ed] to

show, vis-a-vis all the defendants, that it made no significant non-evidentiary use

of them. Mem.Op. 78-85. The court concluded that the governments evidentiary

and non-evidentiary Kastigar errors were not harmless beyond a reasonable doubt.

Mem.Op. 88-89.19

SUMMARY OF ARGUMENT

Below, the government argued that the September 16 statements were not

compelled under Garrity and thus not subject to Kastigar. We are not renewing

that argument here. As the district courts opinion makes clear, the governments

19
Before the district court ruled, the government moved to dismiss the
indictment against Slatten without prejudice. D.C.No.10-00005(Dkt.30). It
concluded that, based on Frosts testimony at the Kastigar hearing, his grand jury
testimony had been affected by Frosts exposure to
Slattens compelled statement, see infra, at 61-62, and that it could not confidently
say the presentation of the tainted testimony was harmless beyond a reasonable
doubt. In response, Slatten moved for dismissal with prejudice, alleging
prosecutorial misconduct. Dkt.34. The court denied that motion, as well as a
similar one from Ball. D.C.No.08-360(Dkt.231).

In dismissing the indictment against all defendants, the court dismissed as


moot the governments motion to dismiss against Slatten. Mem.Op. 90 n.67.
Although we are not revisiting our view that this indictment is insufficient as to
Slatten, we hold open the prospect of reindicting him with untainted evidence not
presented to this grand jury. Slatten thus remains in this appeal because the
courts broad disqualification of evidence (e.g., all of Frosts and Murphys
testimony, including ) bears not only on
whether the case may proceed against the other defendants, but on the viability of
any future indictment of Slatten as well.
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exposure to the September 16 statements did not result in any evidentiary taint in

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

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

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

defendants statements in securing this indictment. And because the governments

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

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

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

1. Contrary to the district courts findings, the lions share of the

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

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

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

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

admitted that bits of their grand jury testimony against

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

rest of Murphys and Frosts testimony, in contrast, was first-hand and anything

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

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

inquiry this Court requires.

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

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

American press) referring to the defendants Garrity statements.

Because the content of the Iraqi

witnesses testimony ( ) bore no relation to the stories

( ), the witnesses testimony was

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

reported in the press.

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

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

thereafter.

The court found that even if that was his principal

motivation, the journal was tainted because Frosts exposure to the defendants

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

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

regardless of what he may have read in the news, the journal survives Kastigars

test for wholly independent evidence.

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

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

manslaughter counts.

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

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

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

Murphy, Frost and Ridgeways accounts, as well as the evidence from the Iraqi

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

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

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

Ball was harmless beyond a reasonable doubt.

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

significant non-evidentiary use of the defendants Garrity statements.

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

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

recommending charges, a prosecutors thinking was unaffected by his exposure to

a defendants immunized statement.

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

was based not on the governments exposure to their Garrity statements, but on

the independent evidence against them, and the defendants September 16

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

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

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

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

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

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

information the court deemed so important (the defendants specification of

particular targets) was irrelevant to the governments theory of the case by which

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all who joined the shooting should be held accountable, regardless of where,

particularly, they may have shot.

As the government concedes, its taint procedures broke down: believing

they were entitled to see the guards September 16 statements, the prosecutors

sought them out. However, the district courts essential finding that because

they pursued the statements, the prosecutors must have made significant non-

evidentiary use of them is wrong as a matter of fact, law and logic.

ARGUMENT

THE INDICTMENT SHOULD BE REINSTATED .

I. THE DISTRICT COURT CLEARLY ERRED IN FINDING


PERVASIVE EVIDENTIARY TAINT IN THE GRAND JURY. IN
LIGHT OF THE OVERWHELMING UNTAINTED EVIDENCE
SUPPORTING PROBABLE CAUSE TO INDICT, THE
PRESENTATION OF SOME TAINTED EVIDENCE WAS
HARMLESS BEYOND A REASONABLE DOUBT.

10/21/am/69.

Many people were in Nisur Square shortly after noon and when the Raven 23

convoy left some 15 minutes later, many lives had been lost, broken or forever

changed. The grand jury was presented with vivid and often emotional accounts

from those who bore witness to what happened that day. To be sure, in the days

and weeks that followed, press accounts alluded to, and sometimes directly quoted

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from, the defendants Garrity statements. And, yes, this Courts Kastigar

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

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

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

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

this Courts teachings.

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

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

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

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

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

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

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

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

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

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

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

was harmless beyond a reasonable doubt.

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A. Standards of Review

A finding that the government used a defendants immunized testimony is

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

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

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

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

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

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

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

This Court may review the record de novo to determine an errors

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

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

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

affidavit is legal question, reviewed de novo).

B. Kastigar and North: The Applicable Legal Principles

Under Kastigar, when the government prosecutes a previously immunized

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

fails to carry its Kastigar burden as to any item or part of [a witnesss]

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

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from independent sources, and determine whether the Kastigar error was harmless

beyond a reasonable doubt. North I, 910 F.2d at 873; Ponds, 454 F.3d at 328-29

(the degree of the Kastigar violation must be assessed). If the error did not

contribute to the [outcome] (here, the grand jurys decision to indict), the

indictment should not be dismissed. See Ponds, 454 F.3d at 328 (quoting

Chapman v. California, 386 U.S. 18, 24 (1967)).

C. The District Court Clearly Erred In Finding That Murphy And


Frost Could Not Distinguish What They Saw In The Square From
What They Read In The Press And It Failed, As Required By
North, To Separate The Wheat Of Their Unspoiled Memories
From The Chaff Of The Immunized Statements.

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

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

two pieces of Frosts and Murphys grand jury testimony against Slatten and/or

Slough were affected by their exposure to those mens statements. See Mem.Op.

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

were thoroughly immersed in all the defendants statements the court found

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

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

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

1. Background: The Tainted Testimony

GJ.Ex.89/58, 60.

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

id. at 31

GJ.Ex.94/20-22.

Id. at 22-23.

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GJ.Ex.94/23

id.

id. at 21-22

see GJ.Ex.94/54

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

10/14/pm/112-16.

2. Frosts And Murphys Isolated And Admittedly Speculative


Testimony About Does
Not Cast Doubt On The Independence Of All Their First-
Hand Observations.

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GJ.Ex.94/21-

23.

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

GJ.Ex.94/23-24

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

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

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

GJ.Ex.90/57

See supra, at

12-15.

Cf. United States v.

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

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

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

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20

This is simply not a case, like Poindexter, where a witness (Oliver North)

completely steeped himself in immunized testimony concerning a complicated

series of events (the sale of arms to Iran, the illicit diversion of proceeds to the

Nicaraguan contras, the attempted cover-up) spanning several years. See 951 F.2d

20
In not even considering any of this evidence, the district court relied
on its finding that Frost and Murphy were thoroughly immersed in all the
defendants compelled statements. Mem.Op. 52; id. at 52-53 (stressing
unbounded exposure to statements). Although we do not mean to quibble with
the court,
the courts emphasis on their total immersion in
all the defendants statements paints a greatly distorted picture. Without doubt,
the events of Nisur Square received widespread publicity.

see infra, at 69-70

E.g., Def.Ex.2. One broadcast, forwarded by a Raven 23 guard to his teammates,


claimed to have all 19 sworn statements, but contrary to the courts suggestion,
Mem.Op. 52,
See 10/14/pm/109-10
Murphy.Ex.8

To say that Murphy and Frost immersed themselves in the defendants


statements because they read these and other stories is to make a significant and
mistaken leap of fact, See
10/21/pm/39
But even more importantly, it is the specifics of a
defendants statement (e.g.,
) not press accounts carrying more general assertions about
that bear on Murphys and Frosts testimony (e.g.,
). The district courts reliance on total immersion
indiscriminately lumped all that together, and further skewed its analysis.
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at 371-72, 375-76. Here, Murphy and Frost testified about one brief, uniquely

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

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

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

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

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

recollection from it, 951 F.2d at 375

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

See supra, at 61-62.

The government, of course, may not point to a witnesss untainted evidence

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

the converse, contrary to the district courts apparent assumption, is also not true.

Where some of a witnesss testimony is tainted, the testimony that is

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demonstrably free from taint, Mem.Op. 57, is not to be somehow disqualified by

association. And a finding of taint does not relieve the court of its obligation to

determine, line-by-line and item-by-item if necessary, the testimony that is taint-

free. North I, 910 F.2d at 872-73. Here, with no such inquiry, the court threw out

the good with the bad which is exactly what North says it may not do.21

D. The District Court Clearly Erred In Finding That The Iraqi


Eyewitnesses Grand Jury Testimony Was Tainted.

As noted, when the FBI went to Baghdad in October 2007, Colonel Faris

introduced the agents to many Iraqis who were in Nisur Square during the

shooting. On the basis of the Iraqi eyewitness interviews, the FBI developed a

working understanding of who in the convoy had shot and a number of the

witnesses accounts were incorporated into a summary of evidence against each

defendant presented to the grand jury. See 10/21/pm/116-17; GJ.Ex.107.

At the Kastigar hearing, and over objection, the court ruled that the

government did not need to present all the Iraqi witnesses for cross-examination.

21
The court chides the government, among other things, for not
memorializing its witnesses testimony at the outset of the investigation and not
advising them in October 2007 not to seek out press reports. Mem.Op. 58-59.
The court fails to note, however, that even by its own reading of the record, the
Raven 23 guards were exposed to the compelled statements in September 2007,
before the FBI set foot in Baghdad, and that almost all the guards (on the advice of
Blackwater) refused to give statements to the FBI on that trip.
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10/19/pm/40-47, 78-84. As the court recognized, the government may meet its

Kastigar burden through hearsay, 10/19/pm/45-47 and indeed, this Court has

said the government may try to show in any fashion or through use of any

techniques that a witnesss evidence was not tainted. United States v. North, 920

F.2d 940, 943 (D.C. Cir. 1990) (North II).22

In the end, however, the court found the testimony of all the Iraqi

eyewitnesses who helped identify the shooters was tainted. Its reasoning was

essentially three-fold: 1) that the defendants compelled statements were widely

reported in the weeks following the shooting; 2) that several Iraqis admitted to

being exposed to the statements, thus illustrating the taint problem; and 3) that the

FBIs protocols for ensuring that the other witnesses testimony had not been

affected by the publicity were deficient. Mem.Op. 71-75. Again, the court clearly

erred.23

22
See also United States v. Daniels, 281 F.3d 168, 181 (5th Cir. 2002)
(Kastigar evidence presented via FBI reports, grand jury transcripts and case
agents testimony); United States v. Montoya, 45 F.3d 1286, 1299 (9th Cir. 1995)
(government bore Kastigar burden via declarations and documents; no
requirement that hearsay witnesses be presented for cross-examination); United
States v. Rogers, 722 F.2d 557, 560 (9th Cir. 1983) (declarations).
23

See GJ.Ex.1

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1. Background: A Sense Of The Publicity

As the court found, the Nisur Square shooting generated instant headlines.

Def.Ex.35

Def.Ex.23

Id. accord

Def.Exs.22, 34, 36.


24

Id. at 1-14. The district court does not appear to have addressed this
testimony in dismissing the indictment, focusing instead on those who helped
identify the shooters. See Mem.Op. 71 (government presented the statements of
twenty-two Iraqi witnesses * * * to support the governments allegations against
every defendant) (citing GJ.Ex.107,
); id. (defendants maintain the
governments failure to present these witnesses for cross-examination * * *
requires dismissal of the indictment). In any event, for the reasons discussed, to
the extent the court factored the testimony of these other Iraqis into its dismissal
decision, it similarly erred.
24
E.g., Def.Ex.30
Def.Ex.25
Def.Ex.40
Def.Ex.44
accord Def.Exs.5, 24, 26, 27, 28, 31, 32, 33, 37, 38, 39, 42, 45.
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Def.Ex.2.

Murphy.Ex.9.25

Def.Ex.7.

Id.

Def.Ex.8, 14

Def.Ex.9, 15.

25
See

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

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


Def.Exs.11, 12.
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2. The District Court Failed, As North Requires, To Examine


The Content Of The Iraqi Eyewitnesses Grand Jury
Testimony And To Determine Whether Their
Identification Of The Shooters Was Affected By Any
Exposure They May Have Had To The Press.

In finding that the grand jury testimony of all the Iraqis who helped identify

the shooters tainted the indictment, the court focused on their likely exposure to

the widely reported press accounts of the guards statements (i.e., that they

were responding to hostile fire) in the weeks following the shooting. Mem.Op.

72. Putting aside several of the courts ancillary assumptions, see infra, n.28, its

analysis falters on a most basic level. As this Court has held, it is not a witnesss

mere exposure to immunized testimony that taints him. The relevant Kastigar

inquiry, rather, is whether the content of his testimony was affected or shaped by

that exposure. See North II, 920 F.2d at 942 (Kastigar call[s] for an inquiry * * *

into the content and circumstances of witnesses testimony); id. (court must

determine what additional knowledge, if any witness gleaned from exposure to

immunized testimony) (citation, quotation omitted); id. at 943 (government must

prove witness did not draw upon the immunized testimony to use it against the

defendant); id. at 946; North I, 910 F.2d at 872.26

26
Of course, if a witness is motivated to testify based on exposure to an
immunized statement, his testimony may be thereby tainted. North II, 920 F.2d at
942. Here, the court did not suggest that the Iraqis who were in Nisur Square on
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As noted, the Iraqi eyewitness accounts were summarized in the grand jury

by FBI Agent Powell.27

See,

e.g., GJ.Tr.12/2/08/pm/20-23

id. at 26-27

id. at 6-7, 11

id. at 42-44

GJ.Ex.107/1-8.

E.g.,

GJ.Tr.12/2/08/pm/6-9

the 16th were somehow motivated to talk to investigators based on something they
may have later read in the press. The court, rather, seems to have assumed the
obvious: the Iraqi witnesses were motivated not by anything they read, but
because they or their friends and loved ones were shot at, wounded, or killed that
day.
27
See GJ.Tr.11/20/08/am/74-75
GJ.Tr.11/20/08/am/74-78;
11/20/08/pm/9-37; 11/25/08/3-40; 12/2/08/pm/3-49.
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id. at 11

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

Thus, the district courts reliance on the wide dissemination of these reports

misconceives the Kastigar inquiry for even if the Iraqi witnesses were exposed

to such reports (even pervasively so), that exposure could not have affected their

particular identification of the shooters.28

28

The government need not negate all abstract possibility of taint, United States v.
Schmidgall, 25 F.3d 1523, 1529 (11th Cir. 1994), and these few
stories represent no more than that. See Kilroy, 27 F.3d at 687 (governments
Kastigar burden not defeated where record silent as to whether auditor who was
prompted to investigate defendants fraud had read article relating to his
immunized statements). Indeed, even more generally, there is nothing to suggest
that Arabic-speaking Iraqis, see 10/15/am/89; 10/16/pm/19; 10/19/pm/69
(interviews conducted through interpreters), were logging onto the ABC website,
reading The Times, or otherwise following the American press. And although the
defense said it understood that Al-Jazera had Blackwater accounts on its website
and that its very likely the Iraqi witnesses were exposed to the defendants
statements, 10/19/pm/42-43, none of the defense media exhibits included any
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The district courts failure to appreciate Norths requisite focus on the

content of a witnesss testimony was also apparent at the Kastigar hearing. Before

the hearing, the government provided the defense with all the underlying

statements of the Iraqi witnesses, 10/19/pm/76-78, 81, 84-86, and at the hearing, it

attempted to present a brief synopsis of its prospective trial witnesses testimony

to show the independent basis for their knowledge. See 10/19/pm/79-80 (the

purpose is to show this witness * * * will be able to say, for example, that he saw

* * * four vehicles, and three * * * were firing. Or he only saw two vehicles, and

one * * * was firing.); accord 10/16/pm/20-21. The defense objected to getting

into the merits of what the witness said, 10/19/pm/81, and the court sustained the

objection. 10/19/pm/81-82, 84, 87. When the government asked that the court

simply be allowed to look at its chart summarizing the Iraqis testimony, the

defense again objected. 10/19/pm/87-88 (this contains information * * * the

Arabic accounts. See Def.Exs.1-46. Moreover, when Kohl interviewed the Iraqi
witnesses, he was struck by how many did not have access to the internet or know
how to type a website address into a computer. 10/28/pm/81-82.

Ex.23

GJ.Ex.107/1-2.
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Court has ruled should not be admitted).29

The courts opinion further (and more specifically) reveals its error. In

finding that all the Iraqi witnesses were tainted, the court focused on a few who

were exposed to the defendants statements. Mem.Op. 72-73. These, the court

reasoned, illustrated the taint problem vis-a-vis all the Iraqis, id. but, in fact, the

courts examples better illustrate how its analysis went wrong. Take, for instance,

Hassan Jabir Salman, a victim of the shooting who told reporters from the

hospital, [i]t is not true when they say they were attacked. We did not hear any

gunshots before they started shooting. Mem.Op. 72 (quoting Def.Ex.43).

Salmans statement was tainted, according to the court, because it appears to have

been a direct response to the defendants compelled accounts that they had

encountered incoming fire[.] Id. Even if true, the courts observation misses the

point. Not only is an interview from a hospital bed not the same thing as a

statement to the grand jury,

29
In light of that ruling, the government redacted the substance from its
chart, and presented another piece of its evidence: that in pretrial interviews in
June 2009, nearly all the Iraqi witnesses said they had never seen the defendants
statements. 10/19/pm/72-76, 87-98; Ex.23; see 11/2/am/74-78 (AUSA Malis,
explaining detailed protocol for questioning witnesses about possible exposure to
statements); Ex.45; 10/19/pm/67-71; 10/20/pm/27-28 (FBI Agent Murphy,
explaining efforts in October 2007 to ensure witnesses spoke only about what they
saw with their own eyes [or] * * * heard with their own ears).
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GJ.Ex.1

The courts treatment of Dr. Haitham Al-Rubaie, whose wife and son were

killed in the Square, was similarly flawed.

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

reference to Paul was surely derived from his exposure to the

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

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

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

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

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

30
Because the Kastigar hearing aimed not only to determine whether
the indictment was tainted, but to give guidance on prospective trial evidence,

Ex.23/2-3.
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Finally, the court pointed to Sarham Deab Abdul Moniem Da-Zubaidi, who

was exposed to information from the defendants statements from DSS agents.

Mem.Op. 73 (agents told him the Blackwater guards said he was pushing the

[Kia] towards the convoy). But the courts conclusion that allegations made by

Da-Zubaidi were specifically included in the summary of evidence against Slough

and Ball, id. (citing GJ.Ex.107/1, 7), again misconstrues the inquiry for the

content of Da-Zubaidis allegations

had nothing to do with the pushing of any car.31

Throughout its opinion, the district court emphasized that news reports

conveying the substance of the defendants compelled statements that they were

responding to hostile fire were widely reported, and thus spreading Kastigar

taint. See Mem.Op. 61-62, 63 n.46, 72.

GJ.Ex.107; see GJ.Ex.1

31

See Ex.302. The court found that Da-Zubaidis


exposure through those interviews is hardly surprising, given Agent Carpenters
acknowledgment that some questions may have been formed as a result of
information provided by [Raven] 23. Mem.Op. 73 n.56 (quoting
Carpenter.Ex.8). The court failed, however, to quote the remainder of Carpenters
sentence

Carpenter.Ex.8.

10/19/am/76-77; 10/19/pm/8-9.
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10/19/pm/8-9.32 Under the courts

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

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

of thinking.

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

Lopez.Ex.2

Reta.Ex.3

See Ex.252

id.

id. id.

10/15/pm/37-39

The FBI received the log in October 2007,

32
See GJ.Tr.12/2/08/am/4
GJ.Tr.11/20/08/pm/29

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10/21/pm/86-88, 94

See supra, at 48.

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

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

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

whether any Iraqi shooting was in response to the convoys assault

see GJ.Ex.90/63

or, perhaps most importantly,

whether the guards response was

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

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

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

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

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

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

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

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

Investigators clearly had an independent basis

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for asking about incoming fire.

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

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

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

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

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

The district courts across-the-board disqualification of the Iraqi witnesses,

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

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

law, and thus clearly erroneous.

E. The District Court Clearly Erred In Finding That Frosts Journal


Was Tainted.

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

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

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

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

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

Mem.Op. 64-66. Neither the facts, nor this Courts Kastigar teachings, justify

these rulings.

1. Background: The Frost Journal

E.g.,

Frost.Ex.6/5

id.

id.

Frost.Ex.6/6,

Id. at 6-7.

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Frost.Ex.6/1.

2. Frost Was Motivated To Preserve His Memory About A


Momentous And Tragic Event, And Would Have Written
His Journal Regardless Of Any Exposure To The
Defendants Statements.

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

41

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Id.33

In disqualifying Frosts journal, the district court misread this Courts

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

and cooperated only after being confronted with the defendants immunized

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

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

second congressional appearance, revised his previous testimony after studying

Norths immunized testimony, and testified for the government at Norths trial.

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

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

criminal defendant in a criminal case.

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

33

See 10/21/pm/41-42

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

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

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

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

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

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

to immunized testimony was a cause of the witnesss decision to testify)

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

Even accepting the courts characterization of Frosts second, tainted

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

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

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

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

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

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

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

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

provided adverse testimony entirely apart from the motivating effect of the

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

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

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

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

Ponds, 454 F.3d at 328, this Court cited Nanni approvingly and Nannis

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

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

any motivating effect of a defendants immunized testimony then, as Kastigar

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

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

position.

10/21/am/77

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

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

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

focusing on whether Frosts exposure to the press played any part in his decision

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

erred.

3. The Journal Is Not Otherwise Tainted.

The court also clearly misread the October 5 entry,

Frost.Ex.6/8-9.

Id.

The court read this passage as conveying Frosts anger that the defendants

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

their compelled statements. Mem.Op. 64.

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See 10/21/am/76-77

GJ.Ex.90/109

GJ.Ex.90/103-110;

10/21/pm/49. And again,

Frost would have written this entry regardless of what he may

have read of the defendants statements.

The court was equally wrong in finding the content of Frosts journal was

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

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

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

writing. Mem.Op. 66.

10/21/am/82-83;

10/21/pm/28-29 see

Def.Ex.2.

10/21/pm/26

(contrary to the courts finding, Mem.Op. 64)

See Def.Ex.7.

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Frost.Ex.6/3, 5.

Frosts journal gives no indication that it was based on the content of any

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

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

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

defendants statements on the journals content, the court wrongly disqualified it.

F. The District Court Clearly Erred In Finding That All Of


Ridgeways Grand Jury Evidence Was Tainted.

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

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

found that all Ridgeways grand jury evidence was tainted by his exposure to press

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

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

court clearly erred.

1. Background: Ridgeways Debriefing And Grand Jury


Evidence

In October 2008, Ridgeway and the government entered into plea

discussions. Because the government assumed Ridgeway had been exposed to

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

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

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

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

telling us was independent of whatever he may have read, and that if he wasnt

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

about that at some length). Ridgeway said he saw Slattens statement when they

walked them over to the Embassy, and saw Sloughs on the internet one or two

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

Heards. Id.

Because Ridgeway was uncertain whether he could separate what Slatten

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

questions about Slattens actions in the Square. 11/2/am/15-16. As for Slough

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and Heard, Ridgeway said he independently remembered what they did and told

him about the shooting, and that any later exposure to their statements did not

affect his memory. 11/2/am/16-18. In a later session, one of Ridgeways lawyers

represented that, as to Slough, while Ridgeway knew what he saw and heard and

what others had told him, there was a Kastigar risk relating to details regarding

specific targets. 11/2/pm/101-103 (lawyer: Ridgeway able to speak to general

shooting directions).

GJ.Ex.1/32/-27

9, 12.

See 14

11

4.

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GJ.Tr.12/2/08/pm/12-16.

Id. at 14-16.

Id. at 17.

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

Id. at 34-35; see id.

Id. at 35.

Id. at 31-32.

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Id. at 32-33; see also id.

Id. at 44.

2. All of Ridgeways Information Was Not Tainted.

The government did not call Ridgeway at the Kastigar hearing. And we

concede, as to Slough

that the district court did

not clearly err in finding the government did not meet its Kastigar burden with

respect to that aspect of Ridgeways evidence.

Again, however, the court wrongly disqualified all of Ridgeways evidence

without giving it a more careful look.

Compare GJ.Ex.94/22

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with GJ.Ex.92/43-44, 50 and

Frost.Ex.6/3 (journal)

See Montoya, 45 F.3d at 1292 (immunity does not protect substance of

compelled testimony, only its use as a source of evidence).

and his proffer was

derived not from the defendants statements, but from his own admissions of guilt.

See 9/18 statement.

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As North teaches, one rotten apple does not spoil the whole barrel. And if

the government fails to carry its Kastigar burden as to some item or part of a

witnesss testimony, that does not mean it has failed across-the-board. Separating

the tainted from the untainted may be laborious. See North I, 910 F.2d at 861. But

it is what North requires, and what the court failed to do.

G. The Tainted Testimony Presented To The Grand Jury Was


Harmless Beyond A Reasonable Doubt.

Given its view that the testimony of key grand jury witnesses (Murphy,

Frost and his journal, the Iraqis, Ridgeway) was entirely tainted, the district court,

not surprisingly, devoted scant attention to the question of harmlessness.

Mem.Op. 88-89. Given the clear errors in its findings of taint, however,

harmlessness now takes on central importance and the courts determination

needs to be reassessed.34

With the advice and guidance of two taint attorneys, the government

endeavored to present the second grand jury with taint-free testimony. As we

acknowledge, the government was not wholly successful, but as we argue, the

tainted testimony was isolated and narrow:

34
In finding a lack of harmlessness, the court also cited what it believed
were the governments impermissible non-evidentiary uses of the compelled
statements. Mem.Op. 88-89. We discuss non-evidentiary use infra, at 101-123.
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A constitutional error is harmless when it appears beyond a reasonable

doubt that the error complained of did not contribute to the [outcome] obtained.

Neder v. United States, 527 U.S. 1, 15 (1999) (quoting Chapman, 386 U.S. at 24).

In determining whether an error contributed to an outcome (here, the grand jurys

decision to indict), the record must be viewed as a whole, and the tainted evidence

weighed in light of the untainted. See, e.g., Fulminante, 499 U.S. at 310 (When

reviewing the erroneous admission of an involuntary confession, the appellate

court * * * reviews the remainder of the evidence against the defendant to

determine whether the admission of the confession was harmless beyond a

reasonable doubt); id. at 307-08 (unconstitutionally admitted evidence to be

quantitatively assessed in the context of other evidence); Harrington v.

California, 395 U.S. 250, 254-55 (1969) (evidence apart from that erroneously

admitted was so overwhelming that constitutional error was harmless beyond a

reasonable doubt); United States v. Hasting, 461 U.S. 499, 509 n.7 (1983)

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(harmless-error inquiry mandates consideration of the entire record).35 As this

Court has elsewhere put it, the core of the [constitutional harmlessness] inquiry is

the strength of the governments residual case. United States v. Stock, 948 F.2d

1299, 1302 (D.C. Cir. 1991).

Here, the grand jury was charged with deciding whether there was probable

cause to believe the defendants committed voluntary manslaughter that is, the

unlawful killing of a human being without malice * * * [u]pon a sudden quarrel

or heat of passion, 18 U.S.C. 1112(a), and attempted manslaughter, 18 U.S.C.

1113, as well as aiding and abetting liability. And while the law

does not

punish an honest and reasonable act of self-defense, if a shooter does not honestly

believe he is in danger of serious bodily injury, or if his honest belief is

unreasonable, the law holds him accountable. See United States v. Alexander, 471

35
See also Ponds, 454 F.3d at 329 (use of Kastigar evidence harmless if
in light of evidence from independent sources, [it] was so unimportant and
insignificant that it had little, if any, likelihood of having changed the result of
the proceeding) (citation, quotation omitted); United States v. Pelletier, 898 F.2d
297, 303 (2d Cir. 1990) (in deciding whether to dismiss indictment, court must
assess extent of use of the immunized testimony in light of other evidence
before the grand jury); Rogers, 722 F.2d at 560 (Kastigar error in grand jury
harmless in light of the more than adequate untainted evidence to support the
indictment); accord United States v. Serrano, 870 F.2d 1, 16 (1st Cir. 1989)
(noting substantial untainted evidence presented to the grand jury); United
States v. Gallo, 859 F.2d 1078, 1083-84 (2d Cir. 1988).
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F.2d 923, 942 (D.C. Cir. 1973); United States v. Peterson, 483 F.2d 1222, 1229-30

(D.C. Cir. 1973) (the law of self-defense is a law of necessity * * * and never

must the necessity be greater than when the force employed defensively is

deadly[.] * * * The defender must have believed that he was in imminent peril of

death or serious bodily harm, and that his response was necessary to save himself

therefrom. These beliefs must not only have been honestly entertained, but also

objectively reasonable in light of the surrounding circumstances) (citation,

quotation omitted).36

Here, the governments residual case on behalf of its manslaughter

charges was overwhelming. The physical evidence alone

told a powerful story. Colonels Boslego and

Tarsa (whose testimony the court did not find was tainted) further filled in the

picture.

36
See also United States v. Harris, 420 F.3d 467, 476 (5th Cir. 2005)
([t]he term heat of passion means a passion of fear or rage in which the
defendant loses his normal self-control as a result of circumstances that would
provoke such a passion in an ordinary person, but which did not justify the use of
deadly force).
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E.g., GJ.Ex.106/70

id. at 53

GJ.Ex.108/24 id. at 42

Raven 23 guard Mealy, who the court also did not find was tainted,

provided some of the most central testimony in the grand jury.37

e.g., GJ.Ex.92/89-90

As we argue, the great majority of Murphys and Frosts

testimony e.g., GJ.Ex.94/43-46

should also appropriately weigh on the untainted side of the scale, as

should Ridgeways proffer and evidence against So it is,

too, with the Iraqi witnesses.

37
The court found the extent of Mealys exposure to the defendants
statements was less clear than Frosts and Murphys. Mem.Op. 52 n.38.
10/19/am/26-28; see 10/19/am/47-48,
53-54
Mealy.Ex.1/1-5.
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And because the testimony of many other Iraqis (identifying the shooters

or describing what happened to them or others in the Square) was wholly

unrelated to the leaked accounts of the defendants statements, their evidence, too,

rightfully supports the indictment.

The grand jury is not the final arbiter of the facts. It sits only to find

probable cause to believe the defendant committed a crime and then, only by

majority vote. See Fed.R.Crim.P. 6(a), (f). It may rely on an agents summary of

evidence, e.g., Daniels, 281 F.3d at 176, and hearsay, Costello v. United States,

350 U.S. 359, 363 (1956); see also Fed.R.Evid. 1101(d)(2) (rules of evidence do

not apply in grand jury). And it need not hear any exculpatory evidence on the

targets behalf. See United States v. Williams, 504 U.S. 36, 51-55 (1992) (It is

axiomatic that the grand jury sits not to determine guilt or innocence, but to assess

whether there is adequate basis for bringing a criminal charge); id. (to make the

assessment it has always been thought sufficient to hear only the prosecutors

side); id. (requiring the prosecutor to present exculpatory as well as inculpatory

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evidence would * * * transform[] [the grand jury] from an accusatory to an

adjudicatory body).

Here, the tainted testimony in the grand jury paled in comparison to what,

rightly viewed, was untainted. And given the strength of the untainted evidence,

this Court should conclude as to Slough, Liberty, Heard, and Ball that any

Kastigar error was harmless beyond a reasonable doubt.38

38
Both at the Kastigar hearing and in its opinion, the court sharply
criticized the government for not presenting exculpatory evidence to the grand
jury. Mem.Op. 22-24; e.g., 11/2/pm/78. Although the issue did not overtly figure
into the courts taint analysis, it plainly affected the courts thinking. Indeed, in a
hearing that was very much on the clock, e.g., 10/22/pm/63 (you have eight
minutes); 10/23/am/83 (wind it up); 10/23/pm/96 (only 16 seconds left), the
court devoted the better part of a day to determining whether, in choosing what
testimony to present to the second grand jury, the government excluded
exculpatory evidence. See 11/3/am/5-20, 31-75; 11/3/pm/4-38; 11/3/am/16 ([I]ts
important. * * * [I]ts implications * * * affect * * * some of the other judgments
Im going to make * * * .); id. (I find that this exculpatory line of questioning
* * * is very relevant for a host of reasons, many of which touch upon the
Kastigar/Garrity issue.).

To the extent the court found the issue very relevant, it did so wrongly.
As Williams makes clear, the government is not legally obliged to present any
exculpatory evidence to the grand jury. Notwithstanding the Williams rule,
however, it is DOJ policy 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[.] U.S. Attorneys
Manual 9-11.233. While these guidelines do not provide a basis for dismissing
an indictment, e.g., Montoya, 45 F.3d at 1295, the prosecutors here did take their
obligation seriously, see 11/3/am/31-34 (Malis) and, as described, supra, at 47-
48, presented substantial exculpatory evidence to the grand jury. The courts
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II. THE DISTRICT COURT ERRED IN FINDING THE GOVERNMENT


MADE IMPERMISSIBLE AND SIGNIFICANT NON-EVIDENTIARY
USE OF THE DEFENDANTS COMPELLED STATEMENTS.

While Kastigar prohibits direct and derivative evidentiary use of immunized

testimony, it does not address non-evidentiary use. See North I, 910 F.2d at 858.

This Court, too, has twice declined to reach the issue. Id. at 860; Kilroy, 27 F.3d

at 687. The district court held that Kastigar prohibits significant non-evidentiary

use of compelled testimony, and found the government made such use here.

Mem.Op. 29-30, 75-85. The court found that the government impermissibly used

Heards and Balls Garrity statements in deciding to charge them, Mem.Op. 75-

78, and that all the defendants statements guided the governments investigation

and prosecution. Mem.Op. 78-85. The court erred under both the law and facts.

A. Standards of Review

Whether, and to what extent, the Fifth Amendment prohibits non-

evidentiary use of an immunized statement is a legal question, reviewed de novo.

See North I, 910 F.2d at 856-60. Whether the government made non-evidentiary

use of such statements is a factual determination, reviewed for clear error. See id.

analysis of the issue was wrong as a matter of both law and fact and the error
appears, again, to have infected the courts overall view of the case.
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at 860. This Court evaluates harmlessness de novo. See United States v. Oruche,

484 F.3d 590, 600-01 (D.C. Cir. 2007).

B. Where The Government Has Sufficient, Independent Evidence To


Indict, The Fifth Amendment Does Not Require It To Prove That
A Prosecutors Charging Recommendation Was Unaffected By
His Exposure To Immunized Testimony.

As this Court has noted, a prosecutors consideration of an immunized

statement in deciding to initiate prosecution could constitute a non-evidentiary

use of that statement. North I, 910 F.2d at 857. Ruling that such non-evidentiary

use is impermissible, the district court dismissed the indictment against Heard and

Ball upon finding that the governments decision to charge them was prompted by

its exposure to their Garrity statements. Mem.Op. 75-78. This Court need not

decide whether all manner of non-evidentiary use is permissible under Kastigar

but it should decide that where, as here, an indictment is supported by sufficient

evidence derived from wholly independent sources, the government need not show

that a prosecutors charging recommendation was unaffected by his exposure to an

immunized statement.

This position follows from familiar Fifth Amendment principles. The

Amendment provides that [n]o person * * * shall be compelled in any criminal

case to be a witness against himself. U.S. Const. amend. V. This core

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constitutional right is safeguarded by an evidentiary privilege that allows a

witness to insist that his testimony be immunized from use and derivative use in a

future criminal proceeding before it is compelled. Chavez v. Martinez, 538 U.S.

760, 770-71 (2003) (plurality) (citing Kastigar, 406 U.S. at 453); see id. at 767

(Martinez was never made to be a witness against himself in violation of the

Fifth Amendments Self-Incrimination Clause because his statements were never

admitted as testimony against him in a criminal case); see also id. at 777 (the

text of the Fifth Amendment * * * focuses on courtroom use of a compelled, self-

incriminating statement and affords evidentiary protection against such use)

(Souter, J., concurring in the judgment, with Breyer, J.).

As Kastigar makes clear, its prohibition on use and derivative use immunity

does not encompass the considerably broader protection of transactional

immunity, which accords full immunity from prosecution for the offense to which

the compelled testimony relates. 406 U.S. at 453. Because the granting of use

immunity presupposes the possibility of a later prosecution, see id. at 462 (use-

immunity is not an amnesty grant), the bringing of an indictment whose

sufficiency rests on evidence derived from a legitimate source wholly

independent of the compelled testimony, id. at 460, comports with the Fifth

Amendment. In such a case, the Fifth Amendment should not require an inquiry

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into the prosecutors thought processes in deciding whether to recommend charges

for to make him prove that his thinking was unaffected by exposure to an

immunized statement would blur the important line between use and transactional

immunity.

United States v. Byrd, 765 F.2d 1524 (11th Cir. 1985), is particularly

instructive. There, after an indictment was dismissed against a defendant who

gave immunized testimony to the grand jury, the prosecutor who elicited the

testimony participated in the decision to reindict. Id. at 1529-31. The court found

no Kastigar violation:

Kastigar [does not] require a court to inquire into a prosecutors motives in


seeking indictment. So long as all the evidence presented to the grand jury
is derived from legitimate sources independent of the defendants
immunized testimony, and the grand jury finds that independent evidence
sufficient to warrant the return of an indictment, the defendants privilege
against self-incrimination has not been violated. At a minimum, the
existence of independent evidence sufficient to establish probable cause to
indict must be deemed to raise a presumption that the decision to indict was
not tainted. Any other result would be the equivalent of transactional
immunity, for it is almost impossible to conceive of a method whereby the
government could demonstrate by a preponderance of the evidence that the
immunized testimony did not indirectly enter into a subsequent decision to
prosecute.

Id. at 1530-31; id. (Fifth Amendment is not concerned with the exercise of

prosecutorial discretion).

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Other courts agree. In United States v. Mariani, 851 F.2d 595 (2d Cir.

1988), the Second Circuit found that a prosecution should not be foreclosed

because immunized testimony tangentially influenced the prosecutors thought

processes in preparing the indictment and preparing for trial. Id. at 600. In view

of the governments convincing proof that the evidence upon which it based its

prosecution * * * came from legitimate independent sources, we cannot see how

the * * * prosecutors knowledge of Marianis immunized testimony could be

considered impermissible use of that testimony. Id. at 601; accord United States

v. Rivieccio, 919 F.2d 812, 815 (2d Cir. 1990).

In Montoya, 45 F.3d at 1296, an AUSA included excerpts of immunized

testimony in his application to the Attorney General in seeking permission to

prosecute. The Ninth Circuit refused to dismiss the indictment on the basis of that

use, finding it too remote from the criminal proceeding, and noting that the

AUSAs request also detail[ed] the independent sources of evidence necessary to

prosecute. Id. at 1297.

In Serrano, 870 F.2d at 17-18, the First Circuit declined to consider an

unpreserved claim of non-evidentiary use in the decision to indict, partly because

the claim was not compelling enough to warrant consideration for the first time on

appeal. See id. at 17 (dismissing an indictment on that basis would in effect grant

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a defendant transactional immunity once it is shown that government attorneys or

investigators * * * were exposed to the immunized testimony); see also United

States v. Velasco, 953 F.2d 1467, 1474 (7th Cir. 1992) (the mere tangential

influence that privileged information may have on the prosecutors thought

process in preparing for trial is not an impermissible use of that information).39

As these decisions recognize, Kastigar does not require prosecutors to

prove that, in seeking an indictment, their thinking was unaffected by immunized

testimony. The purpose of use immunity is not to immunize a witness from

prosecution, but to leave both him and the government in substantially the same

position they would have been in had the witness claimed his privilege against

self-incrimination. Kastigar, 406 U.S. at 458-59. The return of an indictment

fully supported by wholly independent evidence does just that. In fact, to dismiss

such an indictment based on an examination of the prosecutors motives in

recommending it would put the defendant in a better position than he would have

39
As this Court has noted, the Eighth and Third Circuits have taken a
very restrictive view of non-evidentiary use of immunized testimony, see North I,
910 F.2d at 857-860 (discussing United States v. McDaniel, 482 F.2d 305 (8th Cir.
1973), and United States v. Semkiw, 712 F.2d 891 (3d Cir. 1983)), but as the
district court recognized, this Court appears to have rejected a blanket prohibition.
Mem.Op. 29 (citing North I, 910 F.2d at 859-60).
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been in had he claimed his privilege, in contravention of settled Fifth Amendment

principles.

C. The District Court Clearly Erred In Finding The Governments


Exposure To Heards And Balls Compelled Statements Played A
Central Role In The Decision To Charge Them.

Even if this Court believes Kastigar prohibits a prosecutors non-

evidentiary use of compelled testimony in deciding whether to recommend

charges, the district court clearly erred in concluding that the government made

such prejudicial non-evidentiary use here.

1. The Decision To Recommend Charges Against Heard Was


Based On The Independent Evidence Against Him, Not His
September 16 Statement And The Reference To Heards
Statement In The Prosecution Memo, Later Redacted, Was
Harmless Beyond A Reasonable Doubt.

Kohl added Heard to his target list in March 2008. 10/28/am/39-40; Ex.70.

As he explained, that decision was made after the February 2008 trip to Baghdad

in which Colonel Boslego told Kohl that launching a grenade in a busy square was

virtually per se reckless, and after which Kohl concluded that the shooting into

the Kia was unjustified (despite the benefit of the doubt given by Frost and Mealy

on the matter). 10/28/am/42-46. As Kohl further explained, Frost, Mealy and

Murphy were also speaking sympathetically about Heard and Ball, so although

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. Material Under Seal Deleted


Kohl knew earlier that Heard had shot, he was taking their counsel seriously and

proceeding carefully. 10/28/am/25-26.

The district court rejected those explanations and found the charging

decision was better explained by the timing of the prosecutions exposure to

Heards September 16 statement. Mem.Op. 75-77. The timing, however, actually

belies the courts finding. The government was first exposed to Heards

September 16 statement on January 10, 2008, when Ponticiello interviewed

Carpenter. 10/26/pm/90-93.

Ex.215.#3906; 10/27/pm/43-44. The team, including Kohl, also met

with Lopez, and learned that same information, on January 25. 10/27/am/26-27.

See Ex.70. If, as the district court believed, the

governments decision to target Heard was driven by its exposure to his September

16 statement, the government would have made the decision when, in fact, it was

exposed to the statement. But it did not.

The court further found that references to Heards September 16 statement

in drafts of the prosecution memo also showed the statement played a central role

in the charging decision. Mem.Op. 75-76. In the memo, which covered some 70-

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. Material Under Seal Deleted


80 pages, the government summarized its evidence against each defendant.

10/29/am/166-68, 173-74.

See 10/29/am/167-183; e.g., Kohl.Ex.70. After vetting by the taint

attorneys, this subsection was deleted from the final memo, and in an email to his

superiors, Kohl noted the change and said the prosecution recommendation was

based on the other evidence in the case. 10/29/am/183-84; 11/2/am/63-65;

Ex.69.#4464; Ex.308.#5901-02; see also 10/29/pm/5-7 (Kohl: Heards statement

never came up in any discussions with supervisors).40

Given the strength of its evidence against Heard

see GJ.Ex.107/3-4), it

is clear that this one subsection, deleted before the final prosecutive decision was

40
At the Kastigar hearing, the government attempted to admit the entire
final (redacted) prosecution memo, which detailed the governments other
evidence against Heard (and the others). See 10/29/pm/14-17. The court,
however, sustained the defense objection to the memos admission. Id.
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made, did not drive any charging decision. Or, by the same token, any role

Heards statements may have played in the minds of prosecutors as reflected in

earlier drafts of the memo was harmless beyond a reasonable doubt. Ponds is

instructive. There, evidence derived from a defendants immunized statements

was included in a search-warrant affidavit that, in turn, led investigators to the

primary evidence used to indict. 454 F.3d at 327-28. In remanding for a Kastigar

harmlessness determination, this Court set the standard for the inquiry and held

the government had to prove beyond a reasonable doubt that its case would have

been vigorously pursued, and the search warrant sought and obtained, had the

government not relied on the Kastigar evidence. Id. at 328-29.

The government can meet that standard here: its case against Heard was

strong, it had already decided to seek charges against all the Nisur Square

shooters, and the subsection relating to Heards September 16 statement was

inconsequential in light of its other evidence. See id. at 328. And, of course, the

references to Heards statement were neither in the final memo submitted to the

official decision-makers nor presented to the grand jury. Thus, this Court need not

even ask, as in Ponds, whether the charges against Heard would have been

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approved without the Kastigar evidence they were or whether the grand jury

would have indicted without mention of the evidence. It did.41

2. The Decision To Recommend Charges Against Ball


Was Based On The Independent Evidence Against
Him, Not His Garrity Statements.

Kohl added Ball to his target list in April 2008. 10/28/am/40; Ex.70. Kohl

explained that he did so based on several factors: the decision to charge the Kia;

the decision to pursue a mass liability theory (by which all shooters would be held

responsible); and the decision to credit the Iraqi witnesses who saw shooting from

vehicle 1 (which the government attributed to Ball) west of the circle. See supra,

at 39-40.

The court dismissed Kohls explanation, and again found that the timing of

the governments exposure to Balls Garrity statements better explained his

addition as a target. Mem.Op. 77-78. The government was first exposed to Balls

September 16 statement in January and February 2008, and the FBI saw an

unsigned draft of Balls written statement, acquired through the search warrant, in

41
Similarly, even if Kohls overture to Heards counsel regarding plea
negotiations, and his suggestion that Heard might be interested in talking because
of what he had said to Lopez, see 10/29/am/161-165, could be considered an
impermissible non-evidentiary use, Mem.Op. 76, it was plainly harmless
because those discussions went nowhere. Cf. Bank of Nova Scotia v. United
States, 487 U.S. 250, 255 (1988) (a district court exceeds its powers in dismissing
an indictment for prosecutorial misconduct not prejudicial to the defendant).
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. Material Under Seal Deleted


the spring or summer. See 10/15/pm/101-02, 118-19; 10/22/pm/17-19;

10/26/pm/91-93. The court found Balls statements to the DSS played a central

role in the charging decision because Ball was added to Kohls list after the

government saw these statements, and because no new evidence against Ball had

surfaced between the March and April updates. Mem.Op. 77-78.

Again, however, the record refutes that finding, and again, Ponds provides

an apt analogy: The government is free to use a piece of information that appears

in an immunized document if it can accomplish its affirmative duty of proving

the information was derived from a legitimate source wholly independent of the

compelled testimony. 454 F.3d at 328 (quoting Kastigar, 406 U.S. at 460).

GJ.Ex.93/93-95).

Reta.Ex.3.

Patarini.Ex.20. Thus, the courts notion that Balls statements

were the central reason for the charging recommendation because they provided

the only new evidence against him between March and April is simply wrong.

There was nothing new at all in Balls statements. And the governments

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exposure to them could not have driven any charging decision because the

statements told the government nothing it had not already and independently

known for months.

D. The District Court Clearly Erred In Finding The Government


Otherwise Made Non-Evidentiary Use Of The Defendants
Statements In Securing The Indictment.

The district court also found, as to all defendants, that the government failed

to show it made no significant non-evidentiary use of their post-shooting

statements, and ruled that dismissal of the indictment was separately required for

that reason as well. Mem.Op. 78-85. Two basic judgments informed the courts

thinking. First, the court essentially found bad faith by the government that is,

that the trial team aggressively sought and went to great lengths to obtain

information gleaned from the defendants compelled statements in direct

contravention of taint attorney Hulsers directives. Mem.Op. 79-82; id. at 83

(Kohl and the rest of the trial team purposefully flouted the advice of the taint

team); Mem.Op. 2 (the trial team repeatedly disregarded the warnings of

experienced, senior prosecutors); Mem.Op. 17 (same). Most of the courts

discussion, in fact, is devoted to this point as it reviewed at length the

governments efforts to obtain the statements, and harshly rejected Kohls

explanations for his actions. Mem.Op. 78-84.

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Second, the court found that, given their early, ongoing and intentional

immersion in the statements, which provided a wealth of information and

clear[ly] * * * [had] value to the prosecution, the prosecutors denials of having

made significant non-evidentiary use of them were not credible. Mem.Op. 83-85

(It simply defies common sense that the prosecution would go to such incredible

lengths to obtain the defendants compelled statements, flouting the advice of the

taint team * * * and then make no use whatsoever of the fruits of their efforts.);

accord Mem.Op. 85 n.64.

Importantly, although much of the courts opinion (here and elsewhere, see

Mem.Op. 13-20), is devoted to its view of the governments reckless pursuit of

the September 16 statements, it did not find these efforts led to the presentation of

any evidence against any defendant in the grand jury. See Mem.Op. 51-75. The

governments pursuit of the statements, rather, was relevant only to the courts

analysis regarding non-evidentiary use. Mem.Op. 75-85. And here, the courts

essential reasoning that the government must have made significant non-

evidentiary use of the statements because it aggressively went after them is

supported by neither the record, the law, nor logic.

As we acknowledged at the outset, the government made mistakes during

this investigation, and it obviously regrets the missteps that have imperiled this

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most important prosecution. And the government does not dispute that it actively

sought the defendants September 16 statements. We do, however, take issue with

the courts characterization of the trial teams conduct on that matter. As we have

endeavored to explain, Kohl in good faith believed, based on what he knew of the

law and the facts, that the September 16 statements were not compelled for

Garrity purposes. Indeed, Hulser agreed, despite having himself taken a more

conservative approach, that Kohls position was reasonable. 10/23/am/8. And

although the court mocks the governments description of events as a

miscommunication, Mem.Op. 82, that is what the record fairly shows

especially given Kohls emails indicating that he, in fact, believed Hulser had

cleared his use of the September 16 statements. E.g., Ex.68.#2719-20. Hulser,

notably, read the emails that way, too. See 10/23/am/68 (it seems to me, looking

at the emails, that [the prosecution team] didnt actually get the exact advice that I

had given).42

Despite the obvious importance of our disagreement with the court about

the governments conduct, it is, in the end, not the central point and the courts

42
Although the district court clearly credited Hulsers testimony, e.g.,
10/23/pm/13 ([t]his is an honest witness), it failed to mention Hulsers own
sense that the trial team had not gotten his advice, and his view that Kohls
substantive position vis-a-vis the September 16 statements was reasonable.
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near singular focus on the matter misapprehends the Kastigar analysis. As this

Court has made clear, the Kastigar inquiry turns not on whether a prosecutor in

good faith knew or believed that testimony was immunized, but on whether the

testimony was, in fact, used against the defendant. North I, 910 F.2d at 859, 865;

see also Montoya, 45 F.3d at 1292-93 ([t]he question is not whether the

prosecutor was aware of the contents of the immunized testimony, but whether he

used the testimony in any way to build a case against the defendant); accord

United States v. McGuire, 45 F.3d 1177, 1183 (8th Cir. 1995); Velasco, 953 F.2d at

1474; United States v. Caporale, 806 F.2d 1487, 1518 (11th Cir. 1986); United

States v. Crowson, 828 F.2d 1427, 1430 (9th Cir. 1987); United States v. Hsia, 131

F.Supp.2d 195, 201 (D.D.C. 2001) (prosecutors good or bad faith immaterial to

Kastigar inquiry).

And while the governments mere assertion that it did not use immunized

testimony is generally insufficient to establish non-use, see United States v.

Harris, 973 F.2d 333, 336 (4th Cir. 1992), mere speculation does not defeat the

governments burden either. See Mariani, 851 F.2d at 601 (reversing conjectural

and insubstantial findings of non-evidentiary use); Serrano, 870 F.2d at 18

(rejecting notion that mere possibility of nonevidentiary use warrants

indictments dismissal); Byrd, 765 F.2d at 1529 (government need not negate all

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abstract possibility of taint); Kilroy, 27 F.3d at 687-88; cf. In re Stover, 40 F.3d

1096, 1103 (10th Cir. 1994) ([i]t is axiomatic that the Fifth Amendment protects

against real dangers, not remote and speculative possibilities) (quoting Zicarelli

v. New Jersey Investigation Commn, 406 U.S. 472, 478 (1972)).

Any determination regarding use requires a more considered inquiry. And

here, three things are relevant: the substance of the defendants September 16

statements; the timing of the prosecutors first exposure to them (in January and

February 2008); and what effect, if any, that exposure had on the presentation to

the second grand jury. As noted, the prosecutors worked with the taint attorneys

to present a bare bones, four-day case to the second grand jury. And they drew

on the previous testimony of five key witnesses Raven 23 guards Murphy,

Mealy and Frost, and Colonels Boslego and Tarsa as well as the Iraqis who

helped identify the shooters and/or gave their on-the-scene accounts of what

happened in the Square, and Ridgeway, who pleaded guilty shortly before the

grand jury convened. The key witnesses were identified by the FBI in fall 2007,

and the testimony of Murphy, Mealy and Frost, moreover, was memorialized in

November and December 2007 well before the prosecutors were exposed to the

defendants statements. Thus, the prosecutors knowledge of the defendants

statements did not lead them to the grand jury witnesses, nor did it steer them to

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. Material Under Seal Deleted


any of the considerable physical evidence presented to the grand jury, which the

FBI had largely gathered in 2007. See 10/22/pm/55-63, 67-68 (Patarini:

developed no witnesses, no physical evidence as a result of later exposure to

defendants statements); 10/20/pm/107-09 (Agent Murphy; same); 10/28/pm/29-

31, 49-51 (Kohl; same); 11/2/am/80-83 (Malis; same); 10/27/pm/101 (Ponticiello;

same).43 This is simply not a case where a prosecutors knowledge of immunized

testimony help[ed] explicate evidence theretofore unintelligible, expos[ed] as

significant facts once thought irrelevant, indicate[d] which witnesses to call, and

in what order, or help[ed] in developing opening and closing arguments. North

43
While barely mentioning the FBIs physical evidence, see Mem.Op.
12, the court discussed at some length its view that the physical evidence collected
by DSS agents on September 20, and later given to the FBI, was tainted by the
agents exposure to the defendants statements. Mem.Op. 86-88; see Ex.27

Ex.275. Concluding that the evidence may have been highly relevant to the
criminal case, the court found its use constituted yet another Kastigar
violation. Mem.Op. 87-88. This finding, again, is untethered to the record:

GJ.Ex.87A-E, 88C,
88G see GJ.Tr.11/25/08/49-55,
GJ.Ex.88F none of the physical evidence collected by the DSS was presented to
the grand jury.

The district court also reiterated its criticism of the February 2008 search
warrant project and the August 2008 consideration of false statement charges
based on the September 16 statements. Mem.Op. 80-81. Again, however, nothing
came of either: none of the material was presented to the grand jury, and no
obstruction or false statement charges were brought.
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. Material Under Seal Deleted


I, 910 F.2d at 857-58. And again, the government did not need to see anyones

statement to know the guards would claim self-defense. See Daniels, 281 F.3d at

182 (prosecutors exposure to immunized statement inconsequential where

defendant effectively had only one defense, and a competent prosecutor would

need no special insight or information to discern it).

The courts finding that the government must have made significant non-

evidentiary use of the defendants statements was also largely driven by its

assumption that the specific information included in the statements was of

significant value to the case. E.g., Mem.Op. 83 (it is abundantly clear that the

defendants compelled statements did have a value to the prosecution); Mem.Op.

84 (statements provided a wealth of valuable information); Mem.Op. 49. In so

finding, the court

Mem.Op. 83.

The court is half right: the September 16 statements

See Mem.Op. 5-7

The court is

wrong, however, in concluding that any of this was of significant value to the

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. Material Under Seal Deleted


governments case. The most important piece of information imparted by the

statements was independently known by the

government well before prosecutors saw the statements, from the Iraqi witness

interviews in October 2007 and the testimony of Frost, Murphy and Mealy in

November and December. 10/28/am/18-19.

The government also knew in October 2007, again based on its own

investigation and before any exposure to the defendants statements, where the

shots had been fired and thus where the shooters would claim to have seen any

possible threats. As Patarini explained, based on its search of the Square, the

seizure (or photographs) of vehicles, and the interviews of U.S. military and Iraqi

witnesses in 2007, the FBI had a fairly comprehensive picture of the shooting. See

10/21/pm/79-82; 10/22/pm/55-58, 61-63; 10/22/pm/57 (physical evidence told us

which direction * * * the fire came from, and also g[a]ve us a volume of fire);

10/22/pm/58 (knew from Iraqis and U.S. military where vehicles had been in the

Square); see also 10/27/pm/90-91 (Ponticiello: if theyre claiming they were

being shot at, we knew the direction where [the guards] were shooting because

there were obviously bullets in the vehicles that were shot at); id. at 17.

That the government knew, before seeing any statement, who the shooters

were and where the shots had been fired itself rendered the statements of scant

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non-evidentiary value. See McGuire, 45 F.3d at 1183 (immunized testimony

which merely confirms information previously known to government agents from

independent sources does not preclude prosecution) (citation, quotation omitted);

Mariani, 851 F.2d at 600 (prosecutors prior knowledge of substantially all

information covered in immunized testimony forecloses possibility that he used

it); Crowson, 828 F.2d at 1432 (where government can prove prior, independent

source for its evidence, the non-evidentiary purposes of trial strategy, etc., would

seemingly have been developed anyway).44

But even more importantly, the governments theory of the case simply did

not turn on the type of information the court thought so valuable. As noted, the

government charged the case on a mass liability theory: it was (and is) the

governments view that all the shooters should be held responsible because each

joined in one reckless and unjustified shooting spree, aiding and abetting each

other. That theory does not require proof that any defendant was responsible for

44
See also Ex.64.#4367-69 (Kohl to supervisors: the shooters were
already identified by the time the prosecution team was exposed to [the 9/16]
statements (through, for example, the recovery of Libertys magazine at the scene
* * *, the Iraqi witness identifications of the shooters based on vehicle and/or
turret positions, and the accounts of Blackwater witnesses provided to the FBI
and/or the grand jury prior to the exposure of the prosecution team) ** * the oral
statements were not used to develop any leads, confront any witnesses, or
otherwise develop other evidence * * * [and] the oral statements themselves were
very brief and largely exculpatory).
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any particular shots at any particular victim. As the Fifth Circuit found in the

analogous case of the Branch Davidian killing of several ATF agents:

In a prosecution for aiding and abetting a crime, the Government need not
identify a specific person or group of individuals as the principal. * * * To
the contrary, the Government need only show that the substantive offense
had been committed by someone and that the defendant aided and abetted
him. * * * The Government never claimed to be able to prove who fired the
specific rounds that killed the four ATF agents. The inability to identify the
actual gunmen, however, does not negate the evidence proving that
someone in the compound killed the agents. * * * We find no difficulty in
holding that actively participating in a gunbattle in which a gunman kills a
federal officer can aid and abet that killing.

United States v. Branch, 91 F.3d 699, 732 (5th Cir. 1996) (citation, quotation

omitted).

Thus, the wealth of information the defendants statements may (or may

not) have provided about specific targets was not only redundant of what the

government already knew, it was essentially irrelevant to its theory of the case.

And where, as here, immunized statements are of little use (indeed, the

government viewed these as incomplete, false and self-serving), it is simply not

reasonable to assume let alone deem it a foregone conclusion, as did the district

court that the government made significant non-evidentiary use of the

statements. See, e.g., Daniels, 281 F.3d at 182 (prosecutors exposure to

immunized testimony did not prejudice defendant, where testimony contained no

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relevant information not independently available); Mariani, 851 F.2d at 601

(government did not make impermissible non-evidentiary use of defendants

immunized admissions where it had no need for them); Caporale, 806 F.2d at

1518-19 (no Kastigar violation where defendants immunized testimony was

self-serving and of no real value to the investigation); United States v.

Anderson, 450 A.2d 446, 451 (D.C. 1982) (where defendants immunized

statement was both suspect and exculpatory, an inquiry into the subjective

thinking of the prosecuting authorities would be especially meaningless); United

States v. Romano, 583 F.2d 1, 8 (1st Cir. 1978) (there was nothing to suggest that

the Government needed [the defendants] testimony to help make out its case).

To be sure, as Hulser (and others) testified, prosecutors in a non-Kastigar

case like this would surely want any immediate post-shooting statements,

10/23/am/31-32 and the prosecutors, believing themselves entitled to them,

naturally sought the statements out here. But that does not mean the statements

were used by or were of any real use to the government in making its case or

presenting it to the grand jury.

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CONCLUSION

The district court, plainly, was unhappy with the government. In its

displeasure (whether fair or not), the court lost sight of the central Kastigar

inquiry which asks whether, how, and to what extent a defendants immunized

testimony was actually used against him and unjustifiably drew the curtain on a

meritorious prosecution. As we explain, the indictment was not fatally tainted by

either evidentiary or non-evidentiary Kastigar error. It should be reinstated.

Respectfully submitted,

LANNY A. BREUER
Assistant Attorney General

GREG D. ANDRES
Acting Deputy Assistant Attorney General

________/s/___________________
JOSEPH N. KASTER DEMETRA LAMBROS
MICHAEL DITTOE Attorney
Trial Attorneys
National Security Division U.S. Department of Justice
Criminal Division, Appellate Section
950 Pennsylvania Ave., NW #1264
Washington, D.C. 20530
(202) 307-5964
Demetra.Lambros@usdoj.gov

June 16, 2010

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CERTIFICATE OF COMPLIANCE

I hereby certify that, pursuant to this Courts Order of May 21, 2010, the

Preliminary Brief for the United States contains 30,000 words, excluding the parts

exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and D.C. Circuit Rule 32(a)(2). The

brief has been prepared in a proportionally spaced typeface (Times New Roman,

14-point).

___________/s/______________
DEMETRA LAMBROS

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CERTIFICATE OF SERVICE

I certify that, on June 16, 2010, I served the revised Public Copy of the

Governments Preliminary Brief on counsel for all parties via the Courts ECF

system. I also separately sent hard copies to all counsel via first class mail.

_________/s/________________
DEMETRA LAMBROS
Attorney, U.S. Department of Justice
Criminal Appellate Section
950 Pennsylvania Ave., NW
Room 1264
Washington, D.C. 20530
(202) 307-5964
Demetra.Lambros@usdoj.gov

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ADDENDUM
Case: 10-3006 Document: 1250238 Filed: 06/16/2010 Page: 140

ADDENDUM: STATUTES

18 U.S.C. 1112. Manslaughter

(a) Manslaughter is the unlawful killing of a human being without malice.


It is of two kinds:
VoluntaryUpon a sudden quarrel or heat of passion.
InvoluntaryIn the commission of an unlawful act not amounting to a
felony, or in the commission in an unlawful manner, or without due caution and
circumspection, of a lawful act which might produce death.
(b) Within the special maritime and territorial jurisdiction of the United
States,
Whoever is guilty of voluntary manslaughter, shall be fined under this title
or imprisoned not more than 15 years, or both;
Whoever is guilty of involuntary manslaughter, shall be fined under this
title or imprisoned not more than 8 years, or both.

18 U.S.C. 1113. Attempt to commit murder or manslaughter

Except as provided in section 113 of this title, whoever, within the special
maritime and territorial jurisdiction of the United States, attempts to commit
murder or manslaughter, shall, for an attempt to commit murder be imprisoned not
more than twenty years or fined under this title, or both, and for an attempt to
commit manslaughter be imprisoned not more than seven years or fined under this
title, or both.

18 U.S.C. 924(c). Penalties

(1)(A) Except to the extent that a greater minimum sentence is otherwise


provided by this subsection or by any other provision of law, any person who,
during and in relation to any crime of violence or drug trafficking crime (including
a crime of violence or drug trafficking crime that provides for an enhanced
punishment if committed by the use of a deadly or dangerous weapon or device)
for which the person may be prosecuted in a court of the United States, uses or
carries a firearm, or who, in furtherance of any such crime, possesses a firearm,
shall, in addition to the punishment provided for such crime of violence or drug
trafficking crime
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of
Case: 10-3006 Document: 1250238 Filed: 06/16/2010 Page: 141

not less than 7 years; and


(iii) if the firearm is discharged, be sentenced to a term of imprisonment of
not less than 10 years.
(B) If the firearm possessed by a person convicted of a violation of this
subsection
(i) is a short-barreled rifle, short-barreled shot-gun, or semiautomatic assault
weapon, the person shall be sentenced to a term of imprisonment of not less than
10 years; or
(ii) is a machinegun or a destructive device, or is equipped with a firearm
silencer or firearm muffler, the person shall be sentenced to a term of
imprisonment of not less than 30 years.
(c) In the case of a second or subsequent conviction under this subsection,
the person shall
(i) be sentenced to a term of imprisonment of not less than 25 years; and
(ii) if the firearm involved is a machinegun or a destructive device, or is
equipped with a firearm silencer or firearm muffler, be sentenced to imprisonment
for life.
(D) Notwithstanding any other provision of law
(i) a court shall not place on probation any person convicted of a violation
of this subsection; and
(ii) no term of imprisonment imposed on a person under this subsection
shall run concurrently with any other term of imprisonment imposed on the
person, including any term of imprisonment imposed for the crime of violence or
drug trafficking crime during which the firearm was used, carried, or possessed.
***
(3) For purposes of this subsection the term crime of violence means an
offense that is a felony and
(A) has as an element the use, attempted use, or threatened use of physical
force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against
the person or property of another may be used in the course of committing the
offense.
(4) For purposes of this subsection, the term brandish means, with respect
to a firearm, to display all or part of the firearm, or otherwise make the presence of
the firearm known to another person, in order to intimidate that person, regardless
of whether the firearm is directly visible to that person.
(5) Except to the extent that a greater minimum sentence is otherwise
provided under this subsection, or by any other provision of law, any person who,
during and in relation to any crime of violence or drug trafficking crime (including
Case: 10-3006 Document: 1250238 Filed: 06/16/2010 Page: 142

a crime of violence or drug trafficking crime that provides for an enhanced


punishment if committed by the use of a deadly or dangerous weapon or device)
for which the person may be prosecuted in a court of the United States, uses or
carries armor piercing ammunition, or who, in furtherance of any such crime
possesses armor piercing ammunition, shall, in addition to the punishment
provided for such crime of violence or drug trafficking crime or conviction under
this section
(A) be sentenced to a term of imprisonment of not less than 15 years; and
(B) if death results from the use of such ammunition
(i) if the killing is murder (as defined in section 1111), be punished by death
or sentenced to a term of imprisonment for any term of years or for life; and
(ii) if the killing is manslaughter (as defined in section 1112), be punished
as provided in section 1112.

18 U.S.C. 2. Principals

(a) Whoever commits an offense against the United States or aids, abets,
counsels, commands, induces or procures its commission, is punishable as a
principal.
(b) Whoever willfully causes an act to be done which if directly performed
by him or another would be an offense against the United States, is punishable as a
principal.

18 U.S.C. 3261(a)(1). Criminal offenses committed by certain members of


the Armed Forces and by persons employed by or accompanying the Armed
Forces outside the United States

(a) Whoever engages in conduct outside the United States that would
constitute an offense punishable by imprisonment for more than 1 year if the
conduct had been engaged in within the special maritime and territorial
jurisdiction of the United States
(1) while employed by or accompanying the Armed Forces outside the
United States * * *
shall be punished as provided for that offense.