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

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellant, v. PAUL ALVIN SLOUGH, NICHOLAS ABRAM SLATTEN, EVAN SHAWN LIBERTY, DUSTIN LAURENT HEARD, DONALD WAYNE BALL, Defendants-Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA (The Hon. Ricardo M. Urbina) PRELIMINARY BRIEF FOR THE UNITED STATES LANNY A. BREUER
Assistant Attorney General

GREG D. ANDRES
Acting Deputy Assistant Attorney General

JOSEPH N. KASTER MICHAEL DITTOE
Trial Attorneys National Security Division

DEMETRA LAMBROS
Criminal Division, Appellate Section U.S. Department of Justice Washington, D.C. 20530 (202) 307-5964

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
A. PARTIES AND AMICI The parties appearing in the district court were the United States of America as plaintiff and defendants Paul Alvin Slough, Nicholas Abram Slatten, Evan Shawn Liberty, Dustin Laurent Heard, and Donald Wayne Ball. These same parties are before this Court. There are no intervenors or amici. B. RULINGS UNDER REVIEW The United States appeals the district court’s (Hon. Ricardo M. Urbina) dismissal of the indictment in a criminal case, D.C. No. 08-0360. The court’s opinion was entered on December 31, 2009, and is reported at 677 F.Supp.2d 112 (D.D.C. 2009). The memorandum opinion (“Mem.Op.”) appears at JA__. The following rulings are under review: 1. The district court’s findings that the government made evidentiary

use of the defendants’ immunized statements in securing the indictment, in violation of Kastigar v. United States, 406 U.S. 441 (1972). Mem.Op. 51-75 (JA__). 2. The district court’s ruling that a prosecutor’s consideration of a

defendant’s immunized statement in deciding whether to recommend charges constitutes an impermissible non-evidentiary use of the statement under Kastigar, and the court’s findings that the government made significant non-evidentiary use

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of the defendants’ immunized statements in securing the indictment. Mem.Op. 7585 (JA__). 3. The district court’s finding that any Kastigar errors were not harmless

beyond a reasonable doubt. Mem.Op. 88-89 (JA__). C. RELATED CASES After the district court dismissed the indictment without prejudice, it denied Slatten’s and Ball’s motions to dismiss with prejudice based on prosecutorial misconduct. That opinion was entered on January 19, 2010 (JA__), and is reported at 679 F.Supp.2d 55 (D.D.C. 2010). The Kastigar hearing was closed to the public and the press. At the conclusion of the hearing, the district court ordered that the Kastigar materials remain under seal pending the government’s decision to seek appeal, but also ordered that the materials be unsealed on February 2, 2010, the day after the government’s deadline for noticing an appeal. That opinion (JA__) in D.C. No. 1:10-mc-00005, is reported at 677 F.Supp.2d 296 (D.D.C. 2010); id. (also ordering release of redacted pre- and post-hearing memoranda). On January 29, 2010, the court denied the joint motion by the government and defendants to maintain the Kastigar materials under seal (JA__). The government’s appeal of that ruling in Washington Post, et al., v. United States, et al., is this Court’s Case No. 10-3007. Counsel is aware of no other related cases.

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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. B. Introduction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Blackwater, The Raven 23 Convoy, Its Rules Of Engagement, And The Shooting At Nisur Square. . . . . . . . . . . . . . . . . . . . . . . . . . . 5 U.S. Colonels Boslego And Tarsa Go To The Scene, And .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Back At Blackwater Headquarters, Several Raven 23 Guards Are Angry And Upset, .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 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 The FBI Goes To Baghdad Under Instructions To Investigate “From Scratch,” And Murphy, Mealy And Frost Tell Their Stories To The Grand Jury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 A Reasonable Difference Of Opinion And A Breakdown Of The Government’s Taint Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 The Prosecutors Travel To Baghdad, Decide To Charge A “Mass Liability” Theory, And Look Into (But Abandon) Obstruction And False Statement Charges.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

C.

D.

E.

F.

G.

H.

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

J.

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. B. C. Standards of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Kastigar and North: The Applicable Legal Principles. . . . . . 58 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. 2. Background: The Tainted Testimony. . . . . . . . . . . . . . 61 Frost’s And Murphy’s 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. 2. Background: A Sense Of The Publicity.. . . . . . . . . . . . 69 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 Frost’s Journal Was Tainted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 1. 2. Background: The Frost Journal. . . . . . . . . . . . . . . . . . . 81 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 The Journal Is Not Otherwise Tainted.. . . . . . . . . . . . . 86

3. F.

The District Court Clearly Erred In Finding That All Of Ridgeway’s Grand Jury Evidence Was Tainted.. . . . . . . . . . . 88 1. Background: Ridgeway’s Debriefing And Grand Jury Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 All Of Ridgeway’s Information Was Not Tainted.. . . . 92

2. G.

The Tainted Testimony Presented To The Grand Jury Was Harmless Beyond A Reasonable Doubt. . . . . . . . . . . . . . . . . . 94

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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. B. Standards of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Where The Government Has Sufficient, Independent Evidence To Indict, The Fifth Amendment Does Not Require It To Prove That A Prosecutor’s Charging Recommendation Was Unaffected By His Exposure To Immunized Testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . 102 The District Court Clearly Erred In Finding The Government’s Exposure To Heard’s And Ball’s Compelled Statements Played A “Central Role” In The Decision To Charge Them. . . . . . . . . . . . . . . . . . . . . 107 1. The Decision To Recommend Charges Against Heard Was Based On The Independent Evidence Against Him, Not His September 16 Statement – And The Reference To Heard’s Statement In The Prosecution Memo, Later Redacted, Was Harmless Beyond A Reasonable Doubt.. . . . . . . . . . . . . . . . . . . 107 The Decision To Recommend Charges Against Ball Was Based On The Independent Evidence Against Him, Not His Garrity Statements. . . . . . . . . . . . . . . . 111

C.

2.

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. v

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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 vii

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

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GLOSSARY
Dkt. DSS Embassy Ex. INP JA Mem. Op. RSO Square State Tr. VBIED District Court Docket U.S. State Department’s Diplomatic Security Service United States Embassy in Baghdad, Iraq Kastigar Hearing Exhibit Iraqi National Police Joint Appendix District Court’s 12/31/09 Memorandum Opinion State Department’s Regional Security Office Nisur Square in Baghdad, Iraq State Department Transcript 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 Baghdad’s Nisur Square on September 16, 2007. See Indictment. After a hearing under Kastigar v. United States, 406 U.S. 441 (1972), the district court dismissed the indictment. 12/31/09 Mem.Op. (“Mem.Op.”). It found that oral statements the defendants made to the State Department on the day of the shooting were compelled under a threat of job loss under Garrity v. New Jersey, 385 U.S. 493, 500 (1967), and Kalkines v. United States, 473 F.2d 1391, 1393 (Ct. Cl. 1973) (such statements may not later be used against a public employee in a criminal proceeding), and that those and subsequent sworn statements to State were used to secure the indictment, in violation of Kastigar. This appeal followed.
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STATEMENT OF FACTS
A. Introduction

This, in the government’s view, is a case about a group of private security guards who recklessly and unjustifiably opened fire in a crowded Baghdad square, leaving 14 innocent Iraqi civilians dead and another 20 wounded. It is also a case about the difficulty of bringing them to justice. Hours after the shooting, well before the FBI was on the scene or the Justice Department could make a considered decision about any grant of immunity, the State Department questioned the guards about what had happened, and then extended formal “Garrity” immunity for their sworn statements two days later. In the days and weeks that followed, versions of the guards’ accounts were reported in the press, raising the possibility that anyone who read the stories might thereby be “tainted.”1 The Ninth Circuit has well described the problem this sort of situation creates. In Garrity cases (as when a police officer is involved in a controversial use of force), the goal of an employer’s 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), rev’d 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.
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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 government’s good faith at every turn: it found that prosecutors knowingly and deliberately ignored the advice of the taint attorneys; presented pervasively tainted evidence to the grand jury; and made significant nonevidentiary 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.

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#.
2

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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.

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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.
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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.

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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
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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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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,

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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.94/46-47, 54-55

GJ.Ex.92/91,

see id. at 48
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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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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.
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Id.

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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
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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 Department’s Worldwide Personnel Protective Services contract, may be undertaken if I refuse to provide this statement or fail to do so fully and truthfully. I further understand that neither my statements nor any information or evidence gained by reason of my statements can be used against me in a criminal proceeding * * *.
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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.
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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 FBI’s investigation. The agents (who had not read any press reports of the event, 10/19/pm/49-51; 10/21/pm/64) were to have no contact with any “tainted” State Department personnel (i.e., those who had worked on or discussed the investigation in any way), and anything the FBI wanted from State had to first be screened by a taint attorney. 10/19/pm/52-54, 60-61; 10/21/pm/64-66; Ex.28. Patarini understood that he and his team were to have no knowledge of what the guards had told DSS agents after the shooting, either in the oral interviews or sworn statements. 10/21/pm/64-65, 95-96, 103; see 10/19/pm/51 (Agent Murphy: “we [were] not * * * allowed to read any media, * * * not allowed to talk to anybody about the statements the guards had made, and not ask any questions about the statements”); 10/20/pm/17-24, 41-42. As
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Murphy put it, “we were going to be conducting the investigation from scratch.” 10/19/pm/51. Although State Department investigators were off limits to the FBI, the team was permitted to speak with the U.S. military and Iraqi first responders. 10/21/pm/67-68. Patarini soon contacted Colonel Boslego, who, among other things, provided him with pictures he had taken in the Square after the shooting. 10/21/pm/68-69, 108-110; 10/23/pm/38-47. The FBI also located and photographed vehicles shot in the Square, and took custody of many of them. 10/21/pm/79-81; Ex.207. The FBI did two thorough grid searches of the scene; took pictures; collected further physical evidence, including shell casings and bullets (some from victims’ bodies); took custody of the Raven 23 team’s weapons; and 10/21/pm/71-86; Exs.200, 207. Boslego also introduced the FBI to Colonel Faris, the chief of security for the Iraqi National Police. 10/19/pm/61-64. Right after the shooting, Faris interviewed a number of eyewitnesses and memorialized their accounts in a report for the Iraqi Prime Minister. 10/19/pm/64-65; Ex.202.

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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 onemonth stay, the FBI interviewed some 75 Iraqi witnesses and victims, including Iraqi police and military on the scene that day. 10/19/pm/66-67; Exs.207, 208. By piecing together the witness accounts and physical evidence, the FBI was able to map the location of the vehicles and victims struck by Raven 23’s fire. 10/22/pm/55-63; 10/19/pm/71; 10/21/pm/98-99. Later, FBI technicians performed trajectory analyses, 10/22/pm/61-62; 10/21/pm/79-80, and concluded that the shooting had come from inside the circle outward, not toward the convoy. 10/22/pm/57, 63. The October interviews of the Iraqi witnesses also gave the FBI a working understanding of who had fired in the Square. 10/21/pm/116-17. As Patarini explained, while the witnesses did not know the shooters by name, they were able to describe a vehicle by its order in the convoy, and identify a shooter by his position in the vehicle, and sometimes by a physical description. Id. (Iraqi witnesses “tremendously” assisted in identifying shooters). Blackwater, for its part, was much less helpful.

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GJ.Ex.94/64; Ex.208. Although Frost, Mealy and Murphy did not give statements to the FBI during that trip, Mealy and Frost signaled that they wanted to talk, and Murphy, who was in the United States, was also identified as a potential cooperating witness. 10/19/pm/57-59; 10/21/pm/103-05. These three turret gunners, in the FBI’s mind, plainly had a story to tell. 10/21/pm/103-05. Mealy, Frost and Murphy appeared in the grand jury in November and December 2007, and filled in key details of what had happened in Nisur Square.

GJ.Ex.89/58-59; GJ.Ex.94/21-22; GJ.Ex.92/41-42. GJ.Ex.92/42-44.

Id.5 GJ.Ex.94/22, 26.

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

In the grand jury, Frost and Murphy testified about 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.
5

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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.
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Material Under Seal Deleted 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. see GJ.Ex.92/67

Id. at 51-52

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.
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Frost.Ex.6/5.6 G. A Reasonable Difference Of Opinion And A Breakdown Of The Government’s Taint Procedures

As noted, the Garrity issue surfaced early in the investigation, and in October 2007, Ray Hulser, Deputy Chief of DOJ’s Public Integrity Section, was assigned to be the “taint attorney” for the case. 10/22/pm/76-77. It was Hulser’s job to review information that surfaced about the shooting, including in media accounts and from the State, Defense, and Iraqi investigations, and to screen out for the “clean team” of investigators and prosecutors any references to the Raven 23 guards’ potentially compelled statements. 10/22/pm/80-86, 105-09. In the early days of his involvement, Hulser learned the guards gave oral statements to DSS agents on the day of the shooting, and written, sworn statements later. 10/22/pm/79-80. Not knowing the details of how the early interviews were conducted, Hulser advised that all the guards’ statements be deemed off limits. 10/22/pm/95-96, 103-105 (“It seemed to me that even the earliest statements * * * might later be deemed by a court to be compelled”). As Hulser explained at the The district court’s conclusion that Frost’s journal was tainted is discussed infra, at 80-88.
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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). Hulser’s view informed the protocol under which the FBI operated in Baghdad in October, and in accordance with which the Bureau had no contact with the DSS agents who had worked on the investigation, and avoided media stories about the incident. 10/22/pm/80-93, 96-99; Hulser.Ex.2. Hulser’s views were communicated to the FBI through Michael Mullaney, chief of the Counterterrorism Section within DOJ’s National Security Division, who was assigned to serve as the liaison between the taint team (Hulser, Jessie Tampio at State, and a DOJ lawyer in Baghdad) and the investigative and prosecutive team. 10/22/pm/99-101; 10/23/pm/102-114; 10/26/am/23-25. Meanwhile, AUSA Ken Kohl from the D.C. U.S. Attorney’s Office was assigned as the lead prosecutor in November 2007, to be joined by Stephen Ponticiello, from DOJ’s National Security Division. 10/26/pm/60-61; 10/27/pm/104-05. When Kohl received the assignment, he knew Garrity was an issue, see 10/27/pm/106-08 (knew members of DOJ’s Criminal Division had been
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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 Department’s promises of immunity to the Blackwater guards. 10/28/am/30 (“we knew [an official at State] had been fired” because the warnings had not been properly authorized); see Def.Ex.29. Kohl also knew that taint attorney Hulser (whom Kohl had never met) would be screening materials the prosecutors needed, 10/27/pm/110-11; 10/28/am/59-62, and that Mullaney would operate as the middleman between Hulser and the trial team. 10/26/am/23-25; 10/26/pm/65, 78; 10/28/pm/94-95; 10/23/am/4-6. Upon receiving the case, Kohl researched Garrity, and also contacted experts on immunity issues he knew in Main Justice. 10/27/pm/111-21. These conversations raised even more questions in Kohl’s mind about the circumstances of the guards’ statements to State, and whether the guards could reasonably believe they had been granted immunity in giving them. 10/27/pm/112-16. One lawyer from DOJ’s Office of Enforcement Operations (which authorizes statutory grants of immunity) advised Kohl that, in his view, State’s unauthorized promises of immunity would not bind prosecutors. Id.; Ex.64.#4321-23. Another National Security Division lawyer, who had dealt with difficult Garrity issues, had a similar view – and also believed “there is a strong argument” that Garrity immunity
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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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Material Under Seal Deleted And the guards also believed what they had told Blackwater about the

shooting had been withheld from State. 10/28/am/28; e.g., GJ.Ex.90/103-110 GJ.Ex.93/49-51, 55-59

From early on, thus, Kohl had “serious concerns about obstruction” by Blackwater. 10/28/am/26-28. And although he was suspicious about how they were written, Kohl believed he and his team should avoid all exposure to the September 18 sworn statements. See 10/27/pm/108; 10/28/pm/14; 10/29/am/17, 33-34; e.g., Ex.62.##5161, 4366. To this day, the prosecutors have never seen them. 10/28/pm/14, 17, 49; 10/27/pm/26; 11/2/am/79-80. The September 16 oral statements, to Kohl’s mind, were a different matter. As more Raven 23 guards testified in the grand jury, Kohl learned that whenever a Blackwater guard is involved in a shooting, he and a team leader are called upon to give immediate feedback to the State Department so State can make a quick assessment of the situation and any attendant threat. 10/28/pm/6-7. These initial interviews, Kohl also learned, are typically brief, unaccompanied by threats of job loss or promises of immunity, and not intended to assess criminality or otherwise pursue an administrative action against a shooter. 10/28/pm/10-12. As he saw it,
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the “initial oral interviews are done purely because they’re trying to understand what happened” – and “if ever there was [an agency] * * * that had a critical * * * operational need” for “immediate feedback, * * * it was the U.S. embassy in Baghdad, Iraq in September 2007.” Id. Ponticiello agreed. “I didn’t believe that any time any contractor * * * talk[ed] to a DSS agent it would equal a compelled statement.” 10/27/am/41. As a result of what they learned, Kohl believed he could be privy to the initial interviews. 10/28/pm/13; 10/26/pm/79-81 (Ponticiello: “we felt we were on safe ground in looking at the oral statements”). Unfortunately – and in what the government acknowledges is a serious breakdown in its taint procedures – the prosecutors were unaware that their view of the September 16 statements was not shared by Hulser. As noted, in October, Hulser gave the FBI its “marching orders” to steer clear of all the defendants’ statements to the DSS. 10/23/am/21-23. Mullaney, who communicated Hulser’s directives to the FBI, did not have a similar conversation with the prosecutors, and Hulser’s October emails were not sent to them. 10/26/am/73-74; 10/27/am/64-66; 10/28/am/71; 10/28/pm/68-71, 112-14; 10/22/pm/109. According to the emails, Hulser’s view of the September 16 statements was first communicated to Kohl on November 29, 2007, in the context of Hulser’s role as pre-screener of materials for the prosecution team. In preparation for Raven 23
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guard Murphy’s grand jury appearance on November 29, the prosecutors had asked Hulser (via Mullaney) for Murphy’s statements to the DSS. 10/28/am/70. Ponticiello received the written statement on November 28, Ex.62.#5979, but the email containing the oral statement (to Kohl via Mullaney) did not come until the next day – and Kohl did not open it until after Murphy testified. Ex.62.#2523. In a one-sentence parenthetical within the three-paragraph email containing Murphy’s statement, Hulser conveyed his views about the September 16 statements. Id. ((“While no Kalkines warning was given before these interviews, I believe that we should treat all of their statements to the RSOs as compelled given the practice of routinely giving the Kalkines warning to the participants in a shooting”)). Upon receiving the email that evening, Kohl responded to Mullaney: “Got it. Thanks Mike.” Id. As Kohl later testified, his “got it” referred to receiving the requested Murphy statement (which he had also “gotten” the night before from Ponticiello) – and with Murphy’s testimony behind him, Kohl did not read down into the body of the email to Hulser’s sentence about his general view of the September 16 statements. 10/28/am/70-72.7

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

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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 Hulser’s cautionary instruction. 10/28/am/63-64, 66-69. Even without reading Hulser’s 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 See Ex.57.#1636 (“The RSO didn’t get the written compelled statements * * * until 9/18, so normally I’d 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 they’d 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”).
8

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follow-up email, and on December 20, Ponticiello sent a note to Mullaney reflecting his unawareness of Hulser’s concerns about the September 16 interviews. Ponticiello informed Mullaney of the upcoming Carpenter interview (set for January 10), noted that Carpenter had an “investigatory binder” containing “notes of [the] oral interviews” conducted prior to the warned, written statements, and asked that the binder be reviewed by Hulser to screen out “any information that might involve or be derived from the written statements.” Ex.60.#2204. Mullaney did not tell Ponticiello to cancel the interview, and it was conducted as scheduled. 10/26/am/27-28; 10/26/pm/81. Unaware that Carpenter had been interviewed, Hulser on January 15 reiterated his view about the September 16 statements to Mullaney, and declined to give him Carpenter’s notes. 10/23/am/35-36; Ex.57.#1658. Although Mullaney testified that he would assume he forwarded the email to the prosecutors, and that that was his practice, he acknowledged that a forwarded email was not found in the system. 10/26/pm/6-9 (“so I can’t honestly say whether I did or I didn’t”); see 10/29/am/44-46 (Kohl: did not receive email; Mullaney did not communicate Hulser’s view to him); 10/26/am/29-30. Indeed, on January 17 (two days later), a Kohl email reveals that he, too, was unaware of Hulser’s position. At the time, Kohl was arranging to interview
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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 (Hulser’s counterpart at State), who “forwarded same to Ray already,” and also told Kohl that Lopez would bring her notes to the meeting. Ex.67.#4488-89. Hulser, meanwhile, was unaware that arrangements had been made for Lopez to hand over her notes. 10/23/am/34-35. In fact, when Mullaney separately asked for the notes in February, Hulser demurred, and reiterated his view about the September 16 statements. Hulser.Ex.6. Again, there is no indication that Hulser’s email was forwarded to the trial team. See 10/29/am/57-59 (Kohl: Mullaney did not communicate this to him). As Mullaney admitted at the Kastigar hearing, it was a mistake for him to have operated as a go-between. 10/26/am/64-65; id. at 65 (“not all the information – I’m not – it [was] not pass[ed] accurately”); id. (“there were miscommunications”); 10/26/pm/9 (“this is a breakdown on my part”); id. at 24 (“[i]t’s clear I am not a help to the process”); id. at 43 (trial team was “not well served by having me
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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 didn’t actually get the exact advice that I had given.” 10/23/am/68-89. The trial team interviewed Lopez on January 25, and, as arranged, she gave them her notes. 10/29/am/51-53. Again, based on his emails with Posillico, Kohl thought Hulser had cleared Lopez’s notes for his review. See 10/29/am/35-37, 4243, 51-55 (because he received Lopez’s notes after asking that they be screened by Hulser, Kohl thought “we had gotten a green light from [Hulser] on the 9/16 interviews”); accord 10/28/pm/112-14; 10/29/am/36.

See Ex.70 (2/1/08 investigative update). Kohl testified that, had he known Hulser’s views about the September 16 statements differed from his, he would have had a “head-on discussion” to try to work it out. 10/29/am/45-48. “I wouldn’t simultaneously be sending e-mails asking for Lopez’s notes to be cleared while there [are] e-mails going in the opposite direction from Ray.” 10/29/am/46-47.9

9

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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we’ve 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 they’re entitled to, and the taint team says, you shouldn’t have that.” 10/26/am/66-67. “I obviously know I have a problem.” Id. At their April 18 meeting, Hulser continued to maintain that the September 16 statements were potentially compelled, and advised that the prosecutors should not risk using them. 10/23/am/8-9, 45. Kohl countered that because the early interviews were routine, unwarned, and preceded any investigation, the government had a good chance of demonstrating they were not compelled. Id.; see also Ex.68.#2704. Although Hulser’s risk assessment differed from Kohl’s, Hulser agreed Kohl’s position was reasonable. 10/23/am/8. And while Kohl was not converted to Hulser’s position, he decided not to fight it, and his “take away” from the meeting was that the statements would not be used for any investigative purpose. 10/28/pm/24-25; id. at 112 (“we didn’t need them”); 10/29/am/78-83 (“we hadn’t [used the 9/16 interviews] at that point, and I thought [the] better course [was] to not use them”). Hulser also left with the view that the team would not make any investigative use of the pre-September 18 interviews. 10/23/am/42,

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

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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 it’s going to do its case”); 10/29/am/81 (“Ray’s position has always been it is your call”); e.g., Ex.57.#1636 (Hulser to Mullaney re: overture to Carpenter: “Are you sure you need to interview them at this point?”; “This is your call, of course”).

Kohl also believed that the matter of the interview notes could be revisited later, 10/28/pm/24-25, and although Hulser did not testify to that precise point, that is consistent with Hulser’s acknowledgment, throughout the investigation, that time or developing facts might change the risk calculation vis-avis 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 it’s 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 (“it’s 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.
11

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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Material Under Seal Deleted 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. Attorney’s Office and DOJ’s National Security Division. 10/28/am/2124; 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/7738

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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 Heard’s admissions to his teammates and from forensics that Heard had fired an M-203, 10/28/am/42; 10/27/am/45-46, so despite the other guards’ positive feelings about him, Kohl added Heard as a target in March. 10/28/am/42; Ex.70. Ball, however, was a closer call. Although Kohl had decided in February that the shooting at the Kia was unjustified, his core witnesses still gave those who had shot at that car the benefit of the doubt. 10/28/am/46-47. Also, there was a discrepancy in how the witnesses were seeing things: his fellow guards believed Ball’s shots were limited to the Kia, but several Iraqi witnesses saw fire coming
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from the first vehicle (Mealy and Ball’s) to the west of the Square, indicating to the government that Ball had shot west (since Mealy did not fire). 10/28/am/4748, 51-52; 10/27/pm/80-84. Also at the time, Kohl was adjusting his theory of the case: having first set out to identify which shooter was responsible for which victim, he decided to pursue instead a mass liability theory – that is, he would seek to charge those who joined the shooting even if he could not specifically identify who or where they shot. 10/28/am/40-41, 52-53 (realized that attempt to match each shooter with specific victim was “setting the bar too high”). As the district court described the government’s theory a month before the Kastigar hearing: I think there’s this theory of * * * mass liability, this kind of joint or group liability, that when everybody’s shooting into a situation and people die, then all those people are responsible for the deaths even if one is not able 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]hey’re going to be sent target letters”); Ex.70. In February 2008, Kohl also decided to investigate possible obstruction by Blackwater. As he had learned, Frost, Mealy and Murphy believed that they were being penalized for coming forward, and that Blackwater had withheld critical

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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 Slatten’s and Ball’s September 18 statements. 10/22/am/10-12, 39-40; 10/22/pm/17, 46. Kohl thereafter tabled this aspect of the

12

Patarini.Ex.21 ¶ 15; id. at ¶¶ 17-18 Id. at ¶19; see also id. at ¶ 22

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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 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).
13

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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: “there’s incredible pressure on these * * * contractors in terms of job loss and intimidation”). The prosecutors were also concerned that other witnesses, friends of the defendants and hostile to the government, might try to sabotage the case by telling the Kastigar court that their
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grand jury testimony was tainted. 11/3/am/69-70; 11/3/pm/5-9; see 10/29/am/11214 (Kohl: noting “great potential for mischief”). So with Hulser and Dobinsky’s guidance, the team redacted from the earlier testimony transcripts of Frost, Mealy and Murphy statements that appeared to be influenced or shaped by the men’s exposure to the defendants’ compelled statements. 11/2/am/29-41; 11/2/pm/3033; 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/937; 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, 76-79 101-05 GJ.Exs.8, 22, 32, 33-35, 43-45, 51, 67-68, 75, 82-84 .14 GJ.Exs.87B-R, 88C-P,

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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Material Under Seal Deleted 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

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).
16 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 Court’s Opinion

On December 31, 2009, the district court dismissed the indictment. At the threshold, it rejected the government’s view that the guards’ September 16 statements were not compelled under Garrity. Compare Mem.Op. 31-46 (finding that all the guards believed the first DSS interviews were not voluntary, and that because they had previously reported shootings on forms bearing the Garrity warnings, they reasonably believed they were operating under the same ground rules on September 16) with Gov’t Post-Hearing Mem. 17-26 (arguing that first debriefings were not Garrity-compelled because they were part of the guards’ routine, job-related reporting obligations, designed to get an immediate sense of what had happened, and that the guards would not reasonably have viewed them as part of an investigation into their conduct). The court also found, in details we discuss in our challenge to its rulings, that all the grand jury testimony of Murphy and Frost, as well as Frost’s journal, were tainted by their exposure to the defendants’ compelled statements in the news. Mem.Op. 51-66. The court similarly found the government failed to show
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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 court’s opinion focused on the September 16 statements: in addition to finding they were Garrity-compelled, the court found the trial team had “recklessly” pursued them in “direct contravention” of taint attorney Hulser’s directives. Mem.Op. 13-20, 75-85.18 Importantly, the court did not find the government’s exposure to any of the defendants’ statements led to the presentation of any evidence in the grand jury. Its findings of evidentiary taint, rather, were premised on the witnesses’ exposure to the defendants’ statements via the media, not the prosecutors. See Mem.Op. 51-75. The prosecutors’ pursuit of the September 16 statements, thus, only figured into the court’s analysis regarding non-evidentiary use. On that issue, the court found the government’s exposure to Heard’s and Ball’s compelled statements played a “central role” in the decision to charge them, Mem.Op. 75-78, and that in light of

While the court did not dispute the prosecutors’ testimony that 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.
18

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the government’s “aggressive” pursuit of the statements, it “utter[ly] fail[ed]” to show, vis-a-vis all the defendants, that it made no significant non-evidentiary use of them. Mem.Op. 78-85. The court concluded that the government’s evidentiary and non-evidentiary Kastigar errors were not harmless beyond a reasonable doubt. Mem.Op. 88-89.19

SUMMARY OF ARGUMENT
Below, the government argued that the September 16 statements were not “compelled” under Garrity and thus not subject to Kastigar. We are not renewing that argument here. As the district court’s opinion makes clear, the government’s Before the district court ruled, the government moved to dismiss the indictment against Slatten without prejudice. D.C.No.10-00005(Dkt.30). It concluded that, based on Frost’s testimony at the Kastigar hearing, his grand jury testimony had been affected by Frost’s exposure to Slatten’s 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).
19

In dismissing the indictment against all defendants, the court dismissed as moot the government’s motion to dismiss against Slatten. Mem.Op. 90 n.67. Although we are not revisiting our view that this indictment is insufficient as 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 court’s broad disqualification of evidence (e.g., all of Frost’s and Murphy’s 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 government’s exposure to the September 16 statements did not infect the indictment – and as our case has been wholly built without them – we claim no right, should this Court reinstate the indictment, to use the statements in any way. 1. Contrary to the district court’s findings, the lion’s share of the

evidence presented to the grand jury was free of Kastigar taint. In fact, only very small and isolated portions of testimony were tainted – and, as to the rest, the record demonstrates a lack of taint by a preponderance of the evidence. a. At the Kastigar hearing, Raven 23 guards Murphy and Frost – – may have been affected by reading reports of their statements in the press. The rest of Murphy’s and Frost’s testimony, in contrast, was first-hand and anything but speculative. By disqualifying all their testimony against all the defendants, the

admitted that bits of their grand jury testimony against

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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 Frost’s 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 Kastigar’s test for wholly independent evidence. d. The district court clearly erred in disqualifying all the grand

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

e.

Rightly viewed, the overwhelming evidence in the grand jury –

the physical evidence, the testimony of Raven 23 guard Mealy and Colonels Boslego and Tarsa (none of which the court found was tainted), the bulk of the Murphy, Frost and Ridgeway’s accounts, as well as the evidence from the Iraqi eyewitnesses – was not tainted. Given the strength of that evidence and the relative insignificance of the tainted testimony, the grand jury would have found

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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 prosecutor’s thinking was unaffected by his exposure to a defendant’s immunized statement. In any event, the decision to recommend charges against Heard and Ball was based not on the government’s exposure to their Garrity statements, but on the independent evidence against them, and the defendants’ September 16 statements did not otherwise guide this investigation and prosecution. By the end of 2007 – well before prosecutors saw the statements – the defendants had been identified as shooters (by Frost, Mealy, Murphy and the Iraqi eyewitnesses), and the FBI also knew, based on interviews and the physical evidence, where the group had shot. The statements, thus, did not provide the government with a “wealth of valuable information,” as the district court thought; in fact, the information the court deemed so important (the defendants’ specification of particular targets) was irrelevant to the government’s theory of the case – by which
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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 court’s essential finding – that because they pursued the statements, the prosecutors must have made significant nonevidentiary 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 Court’s Kastigar requirements are particularly demanding. See United States v. Helmsley, 941 F.2d 71, 82-83 (2d Cir. 1991). But they are not insurmountable – and by disqualifying in toto the testimony of percipient eyewitnesses to a singularly violent and unforgettable event, the district court was true to neither the letter nor the spirit of this Court’s teachings. In North I, 910 F.2d at 860-864, the grand jury and trial witnesses “soaked” themselves in immunized testimony to refresh their memories about who had said or done what years earlier in a series of complicated foreign policy transactions. Even then, the Court did not foreclose the prosecution under Kastigar, but remanded for an inquiry into what testimony was tainted and what was not, and then, if necessary, into harmlessness. Id. at 872-73. Here, the court not only failed to appreciate the difference between a single, uniquely dramatic event and countless meetings spanning several years, it also did not conduct the careful Kastigar inquiry North requires. Contrary to its decision, the overwhelming majority of testimony in the grand jury was free of Kastigar taint – and given the strength of that evidence, any Kastigar error as to Slough, Liberty, Heard, and Ball was harmless beyond a reasonable doubt.

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A.

Standards of Review

A finding that the government “used” a defendant’s immunized testimony is factual, reviewed for clear error. North I, 910 F.2d at 855. A finding is clearly erroneous “when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. Wallace, 964 F.2d 1214, 1217 n.3 (D.C. Cir. 1992) (citation, quotation omitted); id. (standard is “not without content”); United States v. Kilroy, 27 F.3d 679, 687 (D.C. Cir. 1994) (finding is also clearly erroneous if “induced by an erroneous view of the law”). This Court may review the record de novo to determine an error’s harmlessness. Arizona v. Fulminante, 499 U.S. 279, 295-96 (1991); see also United States v. Nanni, 59 F.3d 1425, 1433 (2d Cir. 1995) (in evaluating Kastigar error, whether untainted evidence supported probable cause for search-warrant affidavit is legal question, reviewed de novo). B. Kastigar and North: The Applicable Legal Principles

Under Kastigar, when the government prosecutes a previously immunized witness, it is prohibited from using not only the immunized testimony itself against the witness, but any evidence derived “directly or indirectly therefrom.” North I, 910 F.2d at 853-54. In such a case, the government must prove, by a
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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 witness’s] 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 jury’s decision to indict), the indictment should not be dismissed. See Ponds, 454 F.3d at 328 (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). C. The District Court Clearly Erred In Finding That Murphy 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/2526; see 10/14/pm/74, 77 As the hearing also revealed,

two pieces of Frost’s and Murphy’s grand jury testimony against Slatten and/or Slough were affected by their exposure to those men’s statements. See Mem.Op. 53-56. Based on that evidence of taint – and its notion that Frost and Murphy were “thoroughly immersed” in all the defendants’ statements – the court found they were unable to segregate what they actually saw in Baghdad from what they

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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. Frost’s And Murphy’s Isolated And Admittedly Speculative Testimony About Does Not Cast Doubt On The Independence Of All Their FirstHand Observations.

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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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This is simply not a case, like Poindexter, where a witness (Oliver North) completely steeped himself in immunized testimony concerning a complicated series of events (the sale of arms to Iran, the illicit diversion of proceeds to the Nicaraguan contras, the attempted cover-up) spanning several years. See 951 F.2d In not even considering any of this evidence, the district court 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 court’s 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.
20

see infra, at 69-70 E.g., Def.Ex.2. One broadcast, forwarded by a Raven 23 guard to his teammates, claimed to have all 19 sworn statements, but contrary to the court’s suggestion, Mem.Op. 52, See 10/14/pm/109-10 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 defendant’s statement (e.g., ) – not press accounts carrying more general assertions about – that bear on Murphy’s and Frost’s testimony (e.g., ). The district court’s reliance on “total immersion” indiscriminately lumped all that together, and further skewed its analysis.
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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 witness’s untainted evidence in an effort to validate his tainted evidence. See Poindexter, 951 F.2d at 376. But the converse, contrary to the district court’s apparent assumption, is also not true. Where some of a witness’s testimony is tainted, the testimony that is
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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 taintfree. 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.

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.
21

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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 witness’s evidence was not tainted. United States v. North, 920 F.2d 940, 943 (D.C. Cir. 1990) (“North II”).22 In the end, however, the court found the testimony of all the Iraqi eyewitnesses who helped identify the shooters was tainted. Its reasoning was essentially three-fold: 1) that the defendants’ compelled statements were “widely reported” in the weeks following the shooting; 2) that several Iraqis admitted to being exposed to the statements, thus illustrating the taint problem; and 3) that the FBI’s protocols for ensuring that the other witnesses’ testimony had not been affected by the publicity were deficient. Mem.Op. 71-75. Again, the court clearly erred.23 See also United States v. Daniels, 281 F.3d 168, 181 (5th Cir. 2002) (Kastigar evidence presented via FBI reports, grand jury transcripts and case agent’s 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).
22 23

See GJ.Ex.1

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As the court found, the Nisur Square shooting generated instant headlines. Def.Ex.35

Def.Ex.23 Id. Def.Exs.22, 34, 36.
24

accord

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 government’s allegations against every defendant”) (citing GJ.Ex.107, ); id. (“defendants maintain the government’s 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.40

Def.Ex.25 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 court’s ancillary assumptions, see infra, n.28, its analysis falters on a most basic level. As this Court has held, it is not a witness’s mere exposure to immunized testimony that taints him. The relevant Kastigar inquiry, rather, is whether the content of his testimony was affected or shaped by that exposure. See North II, 920 F.2d at 942 (Kastigar “call[s] for an inquiry * * * into the content and circumstances of witnesses’ testimony”); id. (court must determine “what additional knowledge, if any” witness gleaned from exposure to immunized testimony) (citation, quotation omitted); id. at 943 (government must prove witness “did not draw upon the immunized testimony to use it against the defendant”); id. at 946; North I, 910 F.2d at 872.26 Of course, if a witness is motivated to testify based on exposure to 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
26

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Material Under Seal Deleted 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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Material Under Seal Deleted id. at 11 GJ.Tr.12/2/08/am/4

Thus, the district court’s reliance on the wide dissemination of these reports misconceives the Kastigar inquiry – for even if the Iraqi witnesses were exposed to such reports (even pervasively so), that exposure could not have affected their particular identification of the shooters.28

28

The government need not negate “all abstract possibility of taint,” United States v. Schmidgall, 25 F.3d 1523, 1529 (11th Cir. 1994), and these few stories represent no more than that. See Kilroy, 27 F.3d at 687 (government’s Kastigar burden not defeated where record silent as to whether auditor who was prompted to investigate defendant’s 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 “it’s very likely” the Iraqi witnesses were exposed to the defendants’ statements, 10/19/pm/42-43, none of the defense media exhibits included any
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Material Under Seal Deleted The district court’s failure to appreciate North’s requisite focus on the

content of a witness’s testimony was also apparent at the Kastigar hearing. Before the hearing, the government provided the defense with all the underlying statements of the Iraqi witnesses, 10/19/pm/76-78, 81, 84-86, and at the hearing, it attempted to present a brief synopsis of its prospective trial witnesses’ testimony to show the independent basis for their knowledge. See 10/19/pm/79-80 (“the purpose is to show this witness * * * will be able to say, for example, that he saw * * * four vehicles, and three * * * were firing. Or he only saw two vehicles, and one * * * was firing.”); accord 10/16/pm/20-21. The defense objected to “getting into the merits of what the witness said,” 10/19/pm/81, and the court sustained the objection. 10/19/pm/81-82, 84, 87. When the government asked that the court simply be allowed to look at its chart summarizing the Iraqis’ testimony, the defense again objected. 10/19/pm/87-88 (“this contains information * * * the

Arabic accounts. See Def.Exs.1-46. Moreover, when Kohl interviewed the 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 court’s opinion further (and more specifically) reveals its error. In finding that all the Iraqi witnesses were tainted, the court focused on a few who were exposed to the defendants’ statements. Mem.Op. 72-73. These, the court reasoned, illustrated the taint problem vis-a-vis all the Iraqis, id. – but, in fact, the court’s examples better illustrate how its analysis went wrong. Take, for instance, Hassan Jabir Salman, a victim of the shooting who told reporters from the hospital, “[i]t is not true when they say they were attacked. We did not hear any gunshots before they started shooting.” Mem.Op. 72 (quoting Def.Ex.43). Salman’s statement was tainted, according to the court, because it “appears to have been a direct response to the defendants’ compelled accounts that they had encountered incoming fire[.]” Id. Even if true, the court’s observation misses the point. Not only is an interview from a hospital bed not the same thing as a statement to the grand jury,

In light of that ruling, the government redacted the substance from 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”).
29

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GJ.Ex.1 The court’s treatment of Dr. Haitham Al-Rubaie, whose wife and son were killed in the Square, was similarly flawed. C.Murphy.Ex.25. As the court found, his reference to “Paul” was surely derived from his exposure to the Mem.Op. 73 n.55 – but, again, that answers the wrong question. The government did not intend to call Dr. Al-Rubaie to identify Slough as a shooter (he, of course, could not, as he was not in the Square on the 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

Because the Kastigar hearing aimed not only to determine whether the indictment was tainted, but to give guidance on prospective trial evidence,
30

Ex.23/2-3.
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Material Under Seal Deleted Finally, the court pointed to Sarham Deab Abdul Moniem Da-Zubaidi, who

was exposed to information from the defendants’ statements from DSS agents. Mem.Op. 73 (agents told him “the Blackwater guards said he was pushing the [Kia] towards the convoy”). But the court’s conclusion that “allegations made by Da-Zubaidi were specifically included in the summary of evidence against Slough and Ball,” id. (citing GJ.Ex.107/1, 7), again misconstrues the inquiry – for the content of Da-Zubaidi’s allegations had nothing to do with the pushing of any car.31 Throughout its opinion, the district court emphasized that news reports conveying the substance of the defendants’ compelled statements – “that they were responding to hostile fire” – were widely reported, and thus spreading Kastigar taint. See Mem.Op. 61-62, 63 n.46, 72. GJ.Ex.107; see GJ.Ex.1

31

See Ex.302. The court found that Da-Zubaidi’s exposure through those interviews is “hardly surprising,” given Agent Carpenter’s 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 Carpenter’s 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 court’s 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. Lopez.Ex.2 Reta.Ex.3

E.g.,

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 convoy’s assault see GJ.Ex.90/63 or, perhaps most importantly, whether the guards’ response was in proportion to anything that may have been coming their way. See GJ.Ex.106/43-49, 54. But the central point remains: the defendants did not “own” the particular fact regarding incoming fire – and any comment by a witness on, or any question by an investigator about, incoming fire did not thereby taint the testimony or infect the witness. See Montoya, 45 F.3d at 1292 (“Use immunity does not protect the substance of compelled testimony, it only protects against the use of compulsory testimony as a source of evidence.”); accord Ponds, 454 F.3d at 328. Investigators clearly had an independent basis –

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Material Under Seal Deleted – for asking about incoming fire.

And they also had common sense. As Agent Patarini put it, the Blackwater guards were not going to say, “we were angry that day so we just mowed down these * * * people because we were pissed off at them.” 10/22/pm/25. Self-defense, he knew, was obviously the issue. Id.; see 10/27/pm/17 (Ponticiello; same). The district court’s across-the-board disqualification of the Iraqi witnesses, based on its failure to consider the “content as well as the sources” of their grand jury testimony, North I, 910 F.2d at 872, was induced by a mistaken view of the law, and thus clearly erroneous. E. The District Court Clearly Erred In Finding That Frost’s 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 Court’s Kastigar teachings, justify these rulings. 1. Background: The Frost Journal

E.g., Frost.Ex.6/5 id.

id.

Frost.Ex.6/6,

Id. at 6-7.

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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 41

10/21/pm/40-

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Id.33 In disqualifying Frost’s journal, the district court misread this Court’s Kastigar “motivation” cases. In Hylton, a key government witness pleaded guilty and cooperated only after being confronted with the defendant’s immunized statements. 294 F.3d at 132-134 (witness “felt betrayed and that he had no choice”). And in North, National Security Advisor Robert McFarlane requested a second congressional appearance, revised his previous testimony after studying North’s immunized testimony, and testified for the government at North’s trial. North I, 910 F.2d at 864. In direct response to immunized testimony, these witnesses came forward with incriminating and/or revised evidence against a criminal defendant in a criminal case.

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

33

See 10/21/pm/41-42

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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 witness’s decision to testify”) (quoting Hylton, 294 F.3d at 134). Even accepting the court’s characterization of Frost’s second, “tainted” motivation, it still wrongly disqualified the journal, as the Second Circuit has reasoned in several “dual motivation” cases. In Nanni, 59 F.3d at 1432, the court ruled that if an investigation “could have been motivated by both tainted and independent factors,” the government could sustain its Kastigar burden if it “would have taken the same steps entirely apart from the motivating effect of the immunized testimony.” Applying that test to a witness with dual motives, the court held in United States v. Biaggi, 909 F.2d 662, 689 (2d Cir. 1990), that “the Government should have the opportunity to [show] the witness would have provided adverse testimony entirely apart from the motivating effect of the immunized testimony.” See also Helmsley, 941 F.2d at 83 (“where the grant of
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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 Nanni’s reasoning fully comports with the central rationale of Kastigar. For if a witness (like Frost) would have testified anyway – that is, entirely separate and apart from any “motivating effect” of a defendant’s immunized testimony – then, as Kastigar would have it, the defendant is in “substantially the same position as if [he] had claimed his privilege.” 406 U.S. at 458-59. In fact, he is in exactly the same position.

10/21/am/77 10/21/pm/41; see also GJ.Ex.90/6

Frost, thus, would have written his journal regardless of what he may (or may not)
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have read of the others’ accounts. In failing to ask this question – and by instead focusing on whether Frost’s exposure to the press played any part in his decision to put pen to paper – the court misconceived the legal standard and thereby clearly erred. 3. The Journal Is Not Otherwise Tainted.

The court also clearly misread the October 5 entry, Frost.Ex.6/8-9.

Id. The court read this passage as conveying Frost’s anger that the defendants had not given truthful accounts, and that it was thus motivated by his exposure to their compelled statements. Mem.Op. 64.
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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 Frost’s journal was tainted by his exposure to the statements. Mem.Op. 65-66. In so finding, the court cited each of the defendants’ full September 18 statements, which, it emphasized, “dealt with precisely the same events about which [Frost] was writing.” Mem.Op. 66. 10/21/am/82-83; 10/21/pm/28-29 Def.Ex.2. 10/21/pm/26 (contrary to the court’s finding, Mem.Op. 64) See Def.Ex.7.
87

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Frost.Ex.6/3, 5. Frost’s journal gives no indication that it was based on the content of any compelled statement – or that is anything other than what it purports to be: a heartfelt, first-hand and contemporaneous narrative of the events as he himself witnessed them. By overstating and/or simply speculating about the impact of the defendants’ statements on the journal’s content, the court wrongly disqualified it. F. The District Court Clearly Erred In Finding That All Of Ridgeway’s Grand Jury Evidence Was Tainted.

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

GJ.Ex.1/32-37; GJ.Tr.12/2/08/pm/12-17, 24-25, 31-36, 41, 44. The district court found that all Ridgeway’s grand jury evidence was tainted by his exposure to press coverage of the defendants’ statements. Mem.Op. 66-71. Again, in making no

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effort to separate what may have been tainted from what, plainly, was not, the court clearly erred. 1. Background: Ridgeway’s 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 wasn’t sure about * * * separating it out in his own mind, not to tell us”); id. (“we talked about that at some length”). Ridgeway said he saw Slatten’s statement when they walked them over to the Embassy, and saw Slough’s on the internet one or two months later. 11/2/am/14-18. He was not sure whether he might have seen Heard’s. Id. Because Ridgeway was uncertain whether he could separate what Slatten had told him from what he had read, prosecutors did not ask Ridgeway any questions about Slatten’s actions in the Square. 11/2/am/15-16. As for Slough

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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 Ridgeway’s lawyers represented that, as to Slough, while Ridgeway knew what he saw and heard and what others had told him, there was a “Kastigar risk” relating to “details regarding specific targets.” 11/2/pm/101-103 (lawyer: Ridgeway “able to speak to general shooting directions”).

GJ.Ex.1/32/-27

¶¶ 9, 12.

See ¶ 14 ¶ 11

¶ 4.
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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 44. 2. All of Ridgeway’s Information Was Not Tainted.

The government did not call Ridgeway at the Kastigar hearing. And we concede, as to Slough –

– that the district court did not clearly err in finding the government did not meet its Kastigar burden with respect to that aspect of Ridgeway’s evidence. Again, however, the court wrongly disqualified all of Ridgeway’s evidence without giving it a more careful look.

Compare GJ.Ex.94/22
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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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Material Under Seal Deleted As North teaches, one rotten apple does not spoil the whole barrel. And if

the government fails to carry its Kastigar burden as to some item or part of a witness’s testimony, that does not mean it has failed across-the-board. Separating the tainted from the untainted may be laborious. See North I, 910 F.2d at 861. But it is what North requires, and what the court failed to do. G. The Tainted Testimony Presented To The Grand Jury 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 court’s determination needs to be reassessed.34 With the advice and guidance of two taint attorneys, the government endeavored to present the second grand jury with taint-free testimony. As we acknowledge, the government was not wholly successful, but as we argue, the tainted testimony was isolated and narrow:

In finding a lack of harmlessness, the court also cited what it believed were the government’s impermissible non-evidentiary uses of the compelled statements. Mem.Op. 88-89. We discuss non-evidentiary use infra, at 101-123.
34

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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 jury’s decision to indict), the record must be viewed as a whole, and the tainted evidence weighed in light of the untainted. See, e.g., Fulminante, 499 U.S. at 310 (“When reviewing the erroneous admission of an involuntary confession, the appellate court * * * reviews the remainder of the evidence against the defendant to determine whether the admission of the confession was harmless beyond a reasonable doubt”); id. at 307-08 (unconstitutionally admitted evidence to be “quantitatively assessed in the context of other evidence”); Harrington v. California, 395 U.S. 250, 254-55 (1969) (evidence apart from that erroneously admitted “was so overwhelming” that constitutional error was harmless beyond a reasonable doubt); United States v. Hasting, 461 U.S. 499, 509 n.7 (1983)

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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 government’s residual case.” United States v. Stock, 948 F.2d 1299, 1302 (D.C. Cir. 1991). Here, the grand jury was charged with deciding whether there was probable cause to believe the defendants committed voluntary manslaughter – that is, the “unlawful killing of a human being without malice * * * [u]pon a sudden quarrel or heat of passion,” 18 U.S.C. § 1112(a), and attempted manslaughter, 18 U.S.C. § 1113, as well as aiding and abetting liability. And while the law does not punish an honest and reasonable act of self-defense, if a shooter does not honestly believe he is in danger of serious bodily injury, or if his honest belief is unreasonable, the law holds him accountable. See United States v. Alexander, 471 See also Ponds, 454 F.3d at 329 (use of Kastigar evidence harmless 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).
35

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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 government’s “residual case” on behalf of its manslaughter charges was overwhelming. The physical evidence alone –

– told a powerful story. Colonels Boslego and Tarsa (whose testimony the court did not find was tainted) further filled in the picture.

See also United States v. Harris, 420 F.3d 467, 476 (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”).
36

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id. at 53 GJ.Ex.108/24 id. at 42

Raven 23 guard Mealy, who the court also did not find was tainted, provided some of the most central testimony in the grand jury.37 e.g., GJ.Ex.92/89-90

As we argue, the great majority of Murphy’s and Frost’s testimony – e.g., GJ.Ex.94/43-46

– should also appropriately weigh on the untainted side of the scale, as should Ridgeway’s proffer and evidence against too, with the Iraqi witnesses. So it is,

The court found the extent of Mealy’s exposure to the defendants’ statements was “less clear” than Frost’s and Murphy’s. Mem.Op. 52 n.38. 10/19/am/26-28; see 10/19/am/47-48, 53-54 Mealy.Ex.1/1-5.
37

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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 agent’s summary of evidence, e.g., Daniels, 281 F.3d at 176, and hearsay, Costello v. United States, 350 U.S. 359, 363 (1956); see also Fed.R.Evid. 1101(d)(2) (rules of evidence do not apply in grand jury). And it need not hear any exculpatory evidence on the target’s behalf. See United States v. Williams, 504 U.S. 36, 51-55 (1992) (“It is axiomatic that the grand jury sits not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge”); id. (“to make the assessment it has always been thought sufficient to hear only the prosecutor’s side”); id. (“requiring the prosecutor to present exculpatory as well as inculpatory
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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

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 court’s taint analysis, it plainly affected the court’s 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]t’s important. * * * [I]ts implications * * * affect * * * some of the other judgments I’m going to make * * * .”); id. (“I find that this exculpatory line of questioning * * * is very relevant for a host of reasons, many of which touch upon the Kastigar/Garrity issue.”).
38

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 4748, presented substantial exculpatory evidence to the grand jury. The court’s
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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 Heard’s and Ball’s Garrity statements in deciding to charge them, Mem.Op. 7578, and that all the defendants’ statements “guided the government’s investigation and prosecution.” Mem.Op. 78-85. The court erred under both the law and facts. A. Standards of Review

Whether, and to what extent, the Fifth Amendment prohibits nonevidentiary 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 court’s 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 Prosecutor’s Charging Recommendation Was Unaffected By His Exposure To Immunized Testimony.

As this Court has noted, a prosecutor’s consideration of an immunized statement in “deciding to initiate prosecution” could constitute a non-evidentiary use of that statement. North I, 910 F.2d at 857. Ruling that such non-evidentiary use is impermissible, the district court dismissed the indictment against Heard and Ball upon finding that the government’s decision to charge them was prompted by its exposure to their Garrity statements. Mem.Op. 75-78. This Court need not decide whether all manner of non-evidentiary use is permissible under Kastigar – but it should decide that where, as here, an indictment is supported by sufficient evidence derived from wholly independent sources, the government need not show that a prosecutor’s charging recommendation was unaffected by his exposure to an immunized statement. This position follows from familiar Fifth Amendment principles. The Amendment provides that “[n]o person * * * shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. This core

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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 Amendment’s Self-Incrimination Clause because his statements were never admitted as testimony against him in a criminal case”); see also id. at 777 (“the text of the Fifth Amendment * * * focuses on courtroom use” of a compelled, selfincriminating 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 (useimmunity 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 prosecutor’s thought processes in deciding whether to recommend charges – for to make him prove that his thinking was unaffected by exposure to an immunized statement would blur the important line between use and transactional immunity. United States v. Byrd, 765 F.2d 1524 (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 prosecutor’s motives in seeking indictment. So long as all the evidence presented to the grand jury is derived from legitimate sources independent of the defendant’s immunized testimony, and the grand jury finds that independent evidence sufficient to warrant the return of an indictment, the defendant’s 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 prosecutor’s thought processes in preparing the indictment and preparing for trial.” Id. at 600. “In view of the government’s convincing proof that the evidence upon which it based its prosecution * * * came from legitimate independent sources, we cannot see how the * * * prosecutors’ knowledge of Mariani’s immunized testimony could be considered impermissible use of that testimony.” Id. at 601; accord United States v. Rivieccio, 919 F.2d 812, 815 (2d Cir. 1990). In Montoya, 45 F.3d at 1296, an AUSA included excerpts of immunized testimony in his application to the Attorney General in seeking permission to prosecute. The Ninth Circuit refused to dismiss the indictment on the basis of that “use,” finding it “too remote from the criminal proceeding,” and noting that the AUSA’s request also “detail[ed] the independent sources of evidence necessary to prosecute.” Id. at 1297. In Serrano, 870 F.2d at 17-18, the First Circuit declined to consider an unpreserved claim of non-evidentiary use in the decision to indict, partly because the claim was not compelling enough to warrant consideration for the first time on appeal. See id. at 17 (dismissing an indictment on that basis “would in effect grant
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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 prosecutor’s thought process in preparing for trial is not an impermissible ‘use’ of that information”).39 As these decisions recognize, Kastigar does not require prosecutors to prove that, in seeking an indictment, their thinking was unaffected by immunized testimony. The purpose of use immunity is not to immunize a witness from prosecution, but to leave both him and the government in “substantially the same position” they would have been in had the witness claimed his privilege against self-incrimination. Kastigar, 406 U.S. at 458-59. The return of an indictment fully supported by wholly independent evidence does just that. In fact, to dismiss such an indictment based on an examination of the prosecutor’s motives in recommending it would put the defendant in a better position than he would have

As this Court has noted, the Eighth and Third Circuits have taken 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).
39

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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 Government’s Exposure To Heard’s And Ball’s Compelled Statements Played A “Central Role” In The Decision To Charge Them.

Even if this Court believes Kastigar prohibits a prosecutor’s nonevidentiary 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 Heard’s 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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Kohl knew earlier that Heard had shot, he was taking their counsel seriously and proceeding carefully. 10/28/am/25-26. The district court rejected those explanations and found the charging decision was better explained by the timing of the prosecution’s exposure to Heard’s September 16 statement. Mem.Op. 75-77. The timing, however, actually belies the court’s finding. The government was first exposed to Heard’s September 16 statement on January 10, 2008, when Ponticiello interviewed Carpenter. 10/26/pm/90-93.

Ex.215.#3906; 10/27/pm/43-44. The team, including Kohl, also met with Lopez, and learned that same information, on January 25. 10/27/am/26-27.

See Ex.70. If, as the district court believed, the government’s decision to target Heard was driven by its exposure to his September 16 statement, the government would have made the decision when, in fact, it was exposed to the statement. But it did not. The court further found that references to Heard’s September 16 statement in drafts of the prosecution memo also showed the statement played a central role in the charging decision. Mem.Op. 75-76. In the memo, which covered some 70108

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80 pages, the government summarized its evidence against each defendant. 10/29/am/166-68, 173-74.

See 10/29/am/167-183; e.g., Kohl.Ex.70. After vetting by the taint attorneys, this subsection was deleted from the final memo, and in an email to his superiors, Kohl noted the change and said the “prosecution recommendation” was based “on the other evidence in the case.” 10/29/am/183-84; 11/2/am/63-65; Ex.69.#4464; Ex.308.#5901-02; see also 10/29/pm/5-7 (Kohl: Heard’s statement never came up in any discussions with supervisors).40 Given the strength of its evidence against Heard

see GJ.Ex.107/3-4), it is clear that this one subsection, deleted before the final prosecutive decision was

At the Kastigar hearing, the government attempted to admit the entire final (redacted) prosecution memo, which detailed the government’s other evidence against Heard (and the others). See 10/29/pm/14-17. The court, however, sustained the defense objection to the memo’s admission. Id.
40

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made, did not drive any charging decision. Or, by the same token, any role Heard’s statements may have played in the minds of prosecutors as reflected in earlier drafts of the memo was harmless beyond a reasonable doubt. Ponds is instructive. There, evidence derived from a defendant’s immunized statements was included in a search-warrant affidavit that, in turn, led investigators to the primary evidence used to indict. 454 F.3d at 327-28. In remanding for a Kastigar harmlessness determination, this Court set the standard for the inquiry – and held the government had to prove beyond a reasonable doubt that its case “would have been vigorously pursued, and the search warrant sought and obtained, had the government not relied on” the Kastigar evidence. Id. at 328-29. The government can meet that standard here: its case against Heard was strong, it had already decided to seek charges against all the Nisur Square shooters, and the subsection relating to Heard’s September 16 statement was inconsequential in light of its other evidence. See id. at 328. And, of course, the references to Heard’s statement were neither in the final memo submitted to the official decision-makers nor presented to the grand jury. Thus, this Court need not even ask, as in Ponds, whether the charges against Heard would have been

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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 Kohl’s explanation, and again found that the timing of the government’s exposure to Ball’s Garrity statements better explained his addition as a target. Mem.Op. 77-78. The government was first exposed to Ball’s September 16 statement in January and February 2008, and the FBI saw an unsigned draft of Ball’s written statement, acquired through the search warrant, in

Similarly, even if Kohl’s overture to Heard’s counsel regarding 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”).
41

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the spring or summer. See 10/15/pm/101-02, 118-19; 10/22/pm/17-19; 10/26/pm/91-93. The court found Ball’s statements to the DSS played a “central role” in the charging decision because Ball was added to Kohl’s list after the government saw these statements, and because no new evidence against Ball had surfaced between the March and April updates. Mem.Op. 77-78. Again, however, the record refutes that finding, and again, Ponds provides an apt analogy: “The government is free to use a piece of information that appears in an immunized document if it can accomplish its ‘affirmative duty’ of proving the information was ‘derived from a legitimate source wholly independent of the compelled testimony.’” 454 F.3d at 328 (quoting Kastigar, 406 U.S. at 460).

GJ.Ex.93/93-95). Reta.Ex.3.

Patarini.Ex.20. Thus, the court’s notion that Ball’s statements were the “central reason” for the charging recommendation because they provided the only new evidence against him between March and April is simply wrong. There was nothing new at all in Ball’s statements. And the government’s
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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 court’s thinking. First, the court essentially found bad faith by the government – that is, that the trial team “aggressively sought” and “went to great lengths” to obtain information gleaned from the defendants’ compelled statements “in direct contravention” of taint attorney Hulser’s directives. Mem.Op. 79-82; id. at 83 (“Kohl and the rest of the trial team purposefully flouted the advice of the taint team”); Mem.Op. 2 (the “trial team repeatedly disregarded the warnings of experienced, senior prosecutors”); Mem.Op. 17 (same). Most of the court’s discussion, in fact, is devoted to this point – as it reviewed at length the government’s efforts to obtain the statements, and harshly rejected Kohl’s explanations for his actions. Mem.Op. 78-84.
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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 court’s opinion (here and elsewhere, see Mem.Op. 13-20), is devoted to its view of the government’s “reckless” pursuit of the September 16 statements, it did not find these efforts led to the presentation of any evidence against any defendant in the grand jury. See Mem.Op. 51-75. The government’s pursuit of the statements, rather, was relevant only to the court’s analysis regarding non-evidentiary use. Mem.Op. 75-85. And here, the court’s essential reasoning – that the government must have made significant nonevidentiary 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 court’s characterization of the trial team’s conduct on that matter. As we have endeavored to explain, Kohl in good faith believed, based on what he knew of the law and the facts, that the September 16 statements were not “compelled” for Garrity purposes. Indeed, Hulser agreed, despite having himself taken a more “conservative approach,” that Kohl’s position was reasonable. 10/23/am/8. And although the court mocks the government’s description of events as a “miscommunication,” Mem.Op. 82, that is what the record fairly shows – especially given Kohl’s emails indicating that he, in fact, believed Hulser had cleared his use of the September 16 statements. E.g., Ex.68.#2719-20. Hulser, notably, read the emails that way, too. See 10/23/am/68 (“it seems to me, looking at the emails, that [the prosecution team] didn’t actually get the exact advice that I had given”).42 Despite the obvious importance of our disagreement with the court about the government’s conduct, it is, in the end, not the central point – and the court’s

Although the district court clearly credited Hulser’s testimony, e.g., 10/23/pm/13 (“[t]his is an honest witness”), it failed to mention Hulser’s own sense that the trial team had not gotten his advice, and his view that Kohl’s substantive position vis-a-vis the September 16 statements was reasonable.
42

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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) (prosecutor’s “good or bad faith” immaterial to Kastigar inquiry). And while the government’s mere assertion that it did not use immunized testimony is generally insufficient to establish non-use, see United States v. Harris, 973 F.2d 333, 336 (4th Cir. 1992), mere speculation does not defeat the government’s burden either. See Mariani, 851 F.2d at 601 (reversing “conjectural and insubstantial” findings of non-evidentiary use); Serrano, 870 F.2d at 18 (rejecting notion that “mere possibility of nonevidentiary use” warrants indictment’s dismissal); Byrd, 765 F.2d at 1529 (government need not “negate all
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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 Comm’n, 406 U.S. 472, 478 (1972)). Any determination regarding use requires a more considered inquiry. And here, three things are relevant: the substance of the defendants’ September 16 statements; the timing of the prosecutors’ first exposure to them (in January and February 2008); and what effect, if any, that exposure had on the presentation to the second grand jury. As noted, the prosecutors worked with the taint attorneys to present a “bare bones,” four-day case to the second grand jury. And they drew on the previous testimony of five key witnesses – Raven 23 guards Murphy, Mealy and Frost, and Colonels Boslego and Tarsa – as well as the Iraqis who helped identify the shooters and/or gave their on-the-scene accounts of what happened in the Square, and Ridgeway, who pleaded guilty shortly before the grand jury convened. The key witnesses were identified by the FBI in fall 2007, and the testimony of Murphy, Mealy and Frost, moreover, was memorialized in November and December 2007 – well before the prosecutors were exposed to the defendants’ statements. Thus, the prosecutors’ knowledge of the defendants’ statements did not lead them to the grand jury witnesses, nor did it steer them to
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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/2931, 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 prosecutor’s 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 While barely mentioning the FBI’s 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
43

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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I, 910 F.2d at 857-58. And again, the government did not need to see anyone’s statement to know the guards would claim self-defense. See Daniels, 281 F.3d at 182 (prosecutor’s exposure to immunized statement inconsequential where defendant effectively had only one defense, and “a competent prosecutor would need no special insight or information to discern” it). The court’s finding that the government “must have” made significant nonevidentiary 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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government’s case. The most important piece of information imparted by the statements – – was independently known by the

government well before prosecutors saw the statements, from the Iraqi witness interviews in October 2007 and the testimony of Frost, Murphy and Mealy in November and December. 10/28/am/18-19. The government also knew in October 2007, again based on its own investigation and before any exposure to the defendants’ statements, where the shots had been fired – and thus where the shooters would claim to have seen any possible threats. As Patarini explained, based on its search of the Square, the seizure (or photographs) of vehicles, and the interviews of U.S. military and Iraqi witnesses in 2007, the FBI had a fairly comprehensive picture of the shooting. See 10/21/pm/79-82; 10/22/pm/55-58, 61-63; 10/22/pm/57 (physical evidence told “us which direction * * * the fire came from, and also g[a]ve us a volume of fire”); 10/22/pm/58 (knew from Iraqis and U.S. military where vehicles had been in the Square); see also 10/27/pm/90-91 (Ponticiello: “if they’re claiming they were being shot at, we knew the direction where [the guards] were shooting because there were obviously bullets in the vehicles that were shot at”); id. at 17. That the government knew, before seeing any statement, who the shooters were and where the shots had been fired itself rendered the statements of scant
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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 (prosecutor’s prior knowledge of substantially all information covered in immunized testimony forecloses possibility that he used it); Crowson, 828 F.2d at 1432 (where government can prove prior, independent source for its evidence, “the non-evidentiary purposes of trial strategy, etc., would seemingly have been developed anyway”).44 But even more importantly, the government’s theory of the case simply did not turn on the type of information the court thought so valuable. As noted, the government charged the case on a “mass” liability theory: it was (and is) the government’s view that all the shooters should be held responsible because each joined in one reckless and unjustified shooting spree, aiding and abetting each other. That theory does not require proof that any defendant was responsible for

See also Ex.64.#4367-69 (Kohl to supervisors: “the shooters were already identified by the time the prosecution team was exposed to [the 9/16] statements (through, for example, the recovery of Liberty’s magazine at the scene * * *, the Iraqi witness identifications of the shooters based on vehicle and/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”).
44

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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 defendant’s immunized admissions where it had no need for them); Caporale, 806 F.2d at 1518-19 (no Kastigar violation where defendant’s immunized testimony was “self-serving and of no real value” to the investigation); United States v. Anderson, 450 A.2d 446, 451 (D.C. 1982) (where defendant’s immunized statement “was both suspect and exculpatory, an inquiry into the subjective thinking of the prosecuting authorities would be especially meaningless”); United States v. Romano, 583 F.2d 1, 8 (1st Cir. 1978) (“there was nothing to suggest that the Government needed [the defendant’s] testimony to help make out its case”). To be sure, as Hulser (and others) testified, prosecutors in a non-Kastigar case like this would surely want any immediate post-shooting statements, 10/23/am/31-32 – and the prosecutors, believing themselves entitled to them, naturally sought the statements out here. But that does not mean the statements were used by – or were of any real use to – the government in making its case or presenting it to the grand jury.

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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 defendant’s immunized testimony was actually used against him – and unjustifiably drew the curtain on a meritorious prosecution. As we explain, the indictment was not fatally tainted by either evidentiary or non-evidentiary Kastigar error. It should be reinstated. Respectfully submitted,

LANNY A. BREUER Assistant Attorney General GREG D. ANDRES Acting Deputy Assistant Attorney General

JOSEPH N. KASTER MICHAEL DITTOE Trial Attorneys National Security Division

________/s/___________________ DEMETRA LAMBROS Attorney 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 Court’s Order of May 21, 2010, the Preliminary Brief for the United States contains 30,000 words, excluding the parts exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and D.C. Circuit Rule 32(a)(2). The brief has been prepared in a proportionally spaced typeface (Times New Roman, 14-point).

___________/s/______________ DEMETRA LAMBROS

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CERTIFICATE OF SERVICE
I certify that, on June 16, 2010, I served the revised Public Copy of the Government’s Preliminary Brief on counsel for all parties via the Court’s ECF system. I also separately sent hard copies to all counsel via first class mail.

_________/s/________________ DEMETRA 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

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ADDENDUM: STATUTES 18 U.S.C. § 1112. Manslaughter (a) Manslaughter is the unlawful killing of a human being without malice. It is of two kinds: Voluntary–Upon a sudden quarrel or heat of passion. Involuntary–In the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution 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

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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

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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.

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