United States v. Nicholas Slatten ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 17, 2017 Decided August 4, 2017
No. 15-3078
UNITED STATES OF AMERICA,
APPELLEE
v.
NICHOLAS ABRAM SLATTEN,
APPELLANT
Consolidated with 15-3079, 15-3080, 15-3081
Appeals from the United States District Court
for the District of Columbia
(No. 1:14-cr-00107-1)
(No. 1:08-cr-00360-1)
(No. 1:08-cr-00360-3)
(No. 1:08-cr-00360-4)
Brian M. Heberlig, appointed by the court, argued the
cause for appellants Slough, Liberty and Heard. William F.
Coffield, appointed by the court, argued the cause for appellant
Liberty. With them on the brief were Michael J. Baratz, Bruce
C. Bishop, Linda C. Bailey, David Schertler, Lisa Hertzer
Schertler, Janet Foster and Laina C. Lopez. Danny C.
Onorato, appointed by the court, entered an appearance.
2
Timothy J. Simeone, appointed by the court, argued the
cause for appellant Slatten. With him on the briefs were
Thomas G. Connolly, Steven A. Fredley and Jared P. Marx, all
appointed by the court.
Timothy P. O'Toole, Kathleen T. Wach and Addy R.
Schmitt were on the brief for amicus curiae National
Association of Criminal Defense Lawyers in support of
appellants.
Demetra Lambros, Attorney, U.S. Department of Justice,
argued the cause for appellee. With her on the brief were
Anthony Asuncion, Jay I. Bratt, John Crabb Jr., Christopher R.
Kavanaugh, Gregg A. Maisel and Jonathan M. Malis, Assistant
U.S. Attorneys.
Before: HENDERSON, ROGERS and BROWN, Circuit
Judges.
Opinion for the Court filed PER CURIAM.
Opinion concurring in Part VI filed by Circuit Judge
HENDERSON.
Opinion concurring in the judgment in Part VII and
dissenting from Part VIII filed by Circuit Judge ROGERS.
Opinion concurring in part in, and dissenting in part from,
Part II filed by Circuit Judge BROWN.
3
TABLE OF CONTENTS
I. BACKGROUND 4
II. MEJA JURISDICTION/MEJA JURY CHARGE 7
A. Jurisdiction 7
B. Jury Charge 17
III. VENUE 22
IV. NEW TRIAL MOTION 28
A. Background 28
B. Analysis 30
V. SUFFICIENCY OF THE EVIDENCE 33
A. Liberty 34
B. Slatten 40
VI. VINDICTIVE PROSECUTION 44
A. Background 44
B. Analysis 46
VII. MOTION TO SEVER 51
A. Background 52
B. Hearsay and Its Exceptions 56
VIII. EIGHTH AMENDMENT 69
A. Proportionality 70
B. Comparable Sentences 79
PER CURIAM: Nicholas Slatten, Paul Slough, Evan Liberty
and Dustin Heard (“defendants”) were contractors with
Blackwater Worldwide Security (ABlackwater@), which in 2007
was providing security services to the United States State
Department in Iraq. As a result of Baghdad shootings that
injured or killed at least 31 Iraqi civilians, Slough, Liberty and
Heard were convicted by a jury of voluntary manslaughter,
attempted manslaughter and using and discharging a firearm in
relation to a crime of violence (or aiding-and-abetting the
commission of those crimes); Slatten was convicted of first-
degree murder. They now challenge their convictions on
jurisdictional, procedural and several substantive grounds.
4
For the following reasons, we hold that the Court has
jurisdiction pursuant to the Military Extraterritorial
Jurisdiction Act (“MEJA”), 18 U.S.C. §§ 3261 et seq., and that
venue in the District of Columbia was proper. We further hold
that the district court did not abuse its discretion in denying the
defendants= motion for a new trial based on post-trial
statements of a government witness. Regarding the challenges
to the sufficiency of the evidence, we hold that the evidence
was sufficient as to all except one of Liberty’s attempted
manslaughter convictions, and that the evidence was sufficient
as to Slatten. We further hold that Slatten=s indictment charging
first-degree murder did not constitute vindictive prosecution.
The Court concludes, however, that statements made by a
co-defendant shortly following the attack, statements asserting
that he—not Slatten—fired the first shots on the day in
question, were admissible. Accordingly, the Court concludes
that the district court abused its discretion in denying Slatten’s
motion to sever his trial from that of his co-defendants and
therefore vacates his conviction and remands for a new trial.
Moreover, the Court concludes that imposition of the
mandatory thirty-year minimum under 18 U.S.C. § 924(c), as
applied here, violates the Eighth Amendment prohibition
against cruel and unusual punishment, a holding from which
Judge Rogers dissents. The Court therefore remands for the
resentencing of Slough, Liberty and Heard.
I. BACKGROUND
On September 16, 2007, a car bomb exploded in Baghdad
near a United States diplomat who was under the protection of
Blackwater, a private security firm under contract with the
State Department. The defendants were members of
Blackwater=s Raven 23 team, which was sent to provide
secondary support in the effort to evacuate the diplomat. Rather
5
than meeting the primary team at the pre-arranged checkpoint,
Raven 23 shift leader Jimmy Watson ignored his orders and
directed the team to Nisur Square, a traffic circle in downtown
Baghdad that Watson intended to Alock down.@ A car bomb had
exploded in Nisur Square earlier that year, in response to which
Iraqi security had been dramatically increased, with multiple
checkpoints at the Square=s entrances for potential threats.
The Raven 23 convoy, which consisted of four armored
vehicles, came to a stop at the south end of the Square, and
together with Iraqi police they brought all traffic to a halt. Two
or three minutes later, witnesses heard the Apops@ of shots being
fired, and a woman screaming for her son. The car that had
been hit, a white Kia sedan, had been flagged days earlier by a
Blackwater intelligence analyst as a type that might be used as
a car bomb. According to the government, the Kia then rolled
forward and lightly bumped the vehicle in front of it. The
driver=s side of the Kia windshield had a hole in it and was
splattered with blood.
Two nearby Iraqi police officers approached the Kia on
either side, and they saw the driver=s face full of blood, with a
bullet wound in the middle of his forehead. One turned back
to the convoy, waving his hands to indicate the shooting should
stop, while the other made similar gestures as he tried to open
the driver=s door. At that point, the vehicle in front of the Kia
moved away, causing the Kia to roll forward again. Heavy
gunfire erupted from the Raven 23 convoy into the Kia, and the
Iraqi officers took cover behind their nearby kiosk. Multiple
grenades were fired at the Kia, causing it to catch fire. The
Kia passenger was shot and killed.
Indiscriminate shooting from the convoy then continued
past the Kia, to the south of the Square. Victims were hit as
they sought cover or tried to escape, giving rise to the bulk of
6
casualties that day. At some point a Raven 23 member
radioed that they were taking incoming fire, but others could
not locate any such threat. When the shooting died down, a
radio call indicated one of the Raven 23 vehicles had been
disabled and needed to be hooked up to another vehicle to be
towed. During the hook-up, a member of the Raven 23
convoy saw an Iraqi shot in the stomach while his hands were
up, by an unidentified Blackwater guard who had exited his
vehicle. Once the hook-up was complete, the Raven 23
convoy began moving slowly around the circle and north out
of the Square, where isolated shootings continued both to the
west and north. By the time the convoy finally exited the
Square, at least thirty-one Iraqi civilians had been killed or
wounded.
In the immediate aftermath of the shootings, the State
Department conducted mandatory de-briefing interviews of the
Raven 23 team. Because the testimony of certain witnesses
before the grand jury relied on those statements, the district
court dismissed the case as tainted as to all defendants. United
States v. Slough, 677 F. Supp. 2d 112, 166 (D.D.C. 2009)
(citing Kastigar v. United States, 406 U.S. 441 (1972)). This
Court agreed that the oral and written statements that resulted
from the de-briefings were compelled, and thus could not be
used directly or indirectly by the government against the
defendants who made them, but remanded the case for a more
individualized analysis of the effect of the taint. United States
v. Slough, 641 F.3d 544, 548, 554-55 (D.C. Cir. 2011).
On remand, the government used a new prosecutorial team
and convened a new grand jury, which returned indictments
against the defendants for voluntary manslaughter, attempted
manslaughter and using and discharging a firearm in relation to
a crime of violence. Slatten moved to dismiss the charges
against him as time-barred, which this Court ultimately granted
7
by writ of mandamus. In re Slatten, No. 14-3007 (D.C. Cir.
Apr. 18, 2014). The government thereafter obtained an
indictment charging Slatten with first-degree murder. The
defendants were tried jointly in the summer of 2014, and after
seven weeks of deliberation, the jury returned guilty verdicts
on all counts except three. The district court sentenced Slatten
to life imprisonment, and it sentenced Slough, Liberty and
Heard to the mandatory term of imprisonment of thirty years
for their convictions under 18 U.S.C. § 924(c), plus one day on
all of the remaining counts.
II. MEJA JURISDICTION/MEJA JURY CHARGE
We begin with the defendants’ challenges to the
applicability of MEJA. The defendants argue that they are
entitled to acquittal on all counts because MEJA does not
authorize their prosecution. Alternatively, even if their actions
do fit within MEJA’s scope, the defendants maintain that the
jury was erroneously instructed regarding MEJA. On both
claims, we disagree.
A. Jurisdiction
1. History
Historically, civilians accompanying American armed
forces overseas were subject to military court-martial for
crimes committed in a host country. See Reid v. Covert, 354
U.S. 1, 3-4 (1957) (plurality op.). In a pair of opinions,
however, the United States Supreme Court put an end to that
practice, deeming it unconstitutional because the courts-martial
failed to provide civilians with certain constitutional rights
guaranteed by the Fifth and Sixth Amendments. Id. at 5 (“[W]e
reject the idea that when the United States acts against citizens
abroad it can do so free of the Bill of Rights.”); Kinsella v.
8
Singleton, 361 U.S. 234, 249 (1960) (civilian defendant “is
protected by the specific provisions of Article III and the Fifth
and Sixth Amendments and . . . her prosecution and conviction
by court-martial [was] not constitutionally permissible”).
Thereafter, many crimes committed by civilians overseas fell
into a jurisdictional vacuum as generally our country’s criminal
statutes do not apply extraterritorially and, “[a]lthough host
foreign nations [did] have jurisdiction to prosecute such acts
committed within their nation, they frequently decline[d] to
exercise jurisdiction when an American [was] the victim or
when the crime involve[d] only property owned by
Americans.” H.R. Rep. No. 106–778, Pt. 1, at 5 (2000); accord
United States v. Arnt, 474 F.3d 1159, 1161 (9th Cir. 2007).
In 2000, the Congress began to address the “jurisdictional
gap” by enacting MEJA. H.R. Rep. No. 106–778, at 5. In its
original version, MEJA authorized the prosecution of
extraterritorial crimes committed by civilians employed by the
Department of Defense (DOD) or its contractors. See 18 U.S.C.
§ 3267(1)(A) (2000). Following a series of high-profile
offenses committed by non-Defense Department contractors—
including those committed by private contractors employed by
the United States Interior Department at the Abu Ghraib prison
in Baghdad, Iraq—the Congress expanded MEJA’s scope. See
150 CONG. REC. S6863 (daily ed. June 16, 2004). Indeed, then-
United States Senator Jeff Sessions—the chief sponsor of the
2004 amendment—acknowledged that the amendment’s
purpose was to address a jurisdictional gap through which
“private contractors who may not have in every instance been
directly associated with the Department of Defense . . . might
not be prosecutable under [MEJA].” Id. Sessions noted that the
gap “highlighted [the Congress’s] need to clarify and expand
the coverage of the act” by giving “the Justice Department
authority to prosecute civilian contractors employed not only
by the Department of Defense but by any Federal agency that
9
is supporting the American military mission overseas.” Id.Senator Charles Schumer likewise noted that the proposed
amendment addressed “a dangerous loophole in our criminal
law that would have allowed civilian contractors who do the
crime to escape doing the time.” Id. at S6864.
2. Text
As amended, then, two key sections of MEJA work
together to authorize the prosecution of qualifying offenses
committed by a civilian overseas: Section 3261 and Section
3267. See 18 U.S.C. §§ 3261, 3267.
18 U.S.C. § 3261 provides:
(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.
18 U.S.C. § 3267 sets out alternative definitions of “employed
by the Armed Forces outside the United States” depending on
the defendant’s employment status. Section 3267(1)(A)(iii)(II)
applies to the defendants and provides as follows:
(1) The term “employed by the Armed Forces outside
the United States” means--
10
(A) employed as . . .
(iii) an employee of a contractor (or
subcontractor at any tier) of . . .
(II) any . . . Federal agency . . .
to the extent such employment
relates to supporting the
mission of the Department of
Defense overseas . . . .
When Section 3267(1)(A)(iii)(II) applies, we believe there are
two preliminary questions posed by MEJA’s text: 1) whether
the defendant’s criminal conduct occurred “while employed
by” a non-DOD contractor; and 2) whether his employment
(not his conduct) “relates to supporting” the DOD overseas
mission. See 18 U.S.C. §§ 3261, 3267. The latter question,
however, is subject to an additional restriction. Section
3267(1)(A)(iii)(II)’s “to the extent” clause operates as a
temporal limitation applicable only to non-DOD contractors.
See id. That is, because MEJA authorizes the prosecution of
only those crimes a defendant commits “while” employed by a
non-DOD contractor and “to the extent” such employment
relates to a DOD mission, it applies only if the defendant’s
employment at the time of the offense relates to supporting a
DOD mission. See id. (emphasis added).
Although the United States Supreme Court has yet to
address Section 3267(1)(A)(iii)(II)’s “relates to” language, it
has interpreted similar language broadly. For example, in Smith
v. United States, the Supreme Court concluded that “[t]he
phrase ‘in relation to’ is expansive,” noting that “[a]ccording
to Webster’s, ‘in relation to’ means ‘with reference to’ or ‘as
regards.’” 508 U.S. 223, 237-38 (1993). Likewise, in District
of Columbia v. Greater Washington Board of Trade, the
11
Supreme Court interpreted “relate to,” as used in the Employee
Retirement Income Security Act of 1974, to include any law
that “has a connection with or reference to” a covered benefit
plan, thereby “giv[ing] effect to the ‘deliberately expansive’
language chosen by Congress.” 506 U.S. 125, 129 (1992)
(emphasis added) (some internal quotation marks omitted)
(quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 46 (1987);
Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97 (1983)); accord
Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383
(1992) (“For purposes of the present case, the key phrase,
obviously, is ‘relating to.’ The ordinary meaning of these
words is a broad one—‘to stand in some relation; to have
bearing or concern; to pertain; refer; to bring into association
with or connection with[.]’” (citing BLACK’S LAW DICTIONARY
1158 (5th ed. 1979)). Circuit precedent, too, employs a broad
interpretation. We have noted that the “ordinary meaning” of
“relating to” is a “broad one,” see Friedman v. Sebelius, 686
F.3d 813, 820 (D.C. Cir. 2012) (internal quotation marks
omitted) (quoting Morales, 504 U.S. at 383), and that “a
statutory provision containing the phrase therefore has ‘broad
scope,’” id. (quoting Metro. Life Ins. Co. v. Mass., 471 U.S.
724, 739 (1985)).
3. Application
Having addressed both MEJA’s required elements and
expansive scope, we next consider whether the evidence was
sufficient to support jurisdiction under MEJA. 1 The district
court denied the defendants’ motion for judgment of acquittal
1
The district court concluded that MEJA adds a jurisdictional
element to the underlying offenses, which element constitutes a jury
issue that must be established by the government beyond a
reasonable doubt. See United States v. Williams, 836 F.3d 1, 6-7
(D.C. Cir. 2016).
12
on this ground and the Court must affirm so long as any
reasonable factfinder could conclude that the evidence, viewed
most favorably to the government, satisfied each element
beyond a reasonable doubt. United States v. Kayode, 254 F.3d
204, 212 (D.C. Cir. 2001); see Jackson v. Virginia, 443 U.S.
307, 319 (1979).
We begin with two unchallenged elements. It is
undisputed that all of the charges against all four defendants
are within MEJA’s scope as it relates to included offenses. See
supra 6-7; 18 U.S.C. § 3261(a). Moreover, all four defendants
were employed by Blackwater Security Consulting, LLC, a
contractor of the United States Department of State. JA 3743,
3760, 3776, 3794, 1228-29. At the time of the Nisur Square
attack, they were therefore “employee[s] of a contractor (or
subcontractor at any tier) of . . . [a] Federal agency.” See 18
U.S.C. § 3267(1)(A)(iii)(II). The remaining question is
whether that employment, at the time of the attack, related to
supporting DOD’s mission.
The government sufficiently established the DOD’s
overseas mission. By 2007, “the mission of the Department of
Defense overseas”—specifically, in Iraq—went beyond
military operations against the insurgency. Id. Witnesses
testified that the Defense Department mission was to rebuild
the war-torn country, including the fostering of economic and
political stability. United States Army Colonel Michael Tarsa
testified that the military’s goal was to “stimulat[e] local
governance” by “identifying local leaders [and] trying to
organize them.” JA 1374. Tarsa also recounted that the military
sought to improve the Iraqis’ “quality of life” by “restoring
essential services, sewer, water, electricity [and] trash
removal” and by “foster[ing] economic development,” all with
the hope that such restoration would “dissuad[e] people from
joining the insurgency.” JA 1373-77. Tarsa’s testimony was
13
echoed by United States Marine Corps Officer Shelby Lasater,
who testified that, as the United States’ presence in Iraq
continued, the mission became “to rebuild the country and set
up a government.” JA 1478-79. Then-Deputy Secretary of
Defense Gordon England affirmed that the Defense
Department “strategy” was to “help the Iraqi people build a
new Iraq with constitutional representative government that
respects civil rights and has security forces sufficient to
maintain domestic order and keep Iraq from becoming a safe
haven for terrorists.” JA 2949.
The government also produced abundant evidence that the
defendants’ Blackwater employment supported the
Department of Defense’s expanded mission at the time of the
Nisur Square attack. Paralleling the testimony of Tarsa, Lasater
and England, Blackwater guard Matthew Murphy testified that
Blackwater’s “clients . . . the State Department [were] trying to
bring along the country, . . . trying to mentor the Iraqi
government and . . . get them up and running.” JA 1044.
England also testified that the “U.S. Government had to rely on
all of its departments and agencies in order to achieve the
mission in Iraq.” JA 2950. The State Department was an
important part of the rebuilding effort the Defense Department
was engaged in; its diplomats were helping the Iraqis restore
their country. Blackwater employed the defendants to provide
security for the diplomats whose work plainly supported the
DOD mission. The defendants’ employment, then, “relate[d]
to”—that is, had a “connection with or reference to,” see
Greater Wash. Bd. of Trade, 506 U.S. at 129 (internal quotation
marks omitted)—supporting the Defense Department’s
rebuilding mission.
In addition, the defendants’ contracts required them to
complete unspecified “security-related duties requested by
Blackwater or [the State Department] in support of the
14
Engagement.” JA 3761. This necessarily requires
consideration of the types of duties that Blackwater or the State
Department in fact requested in order to determine whether
they “relate[] to supporting the mission of the Department of
Defense.” 18 U.S.C. § 3267(1)(A)(iii)(II). The evidence
showed that, consistent with this contract provision,
Blackwater employees were assigned to assist distressed
military units during firefights, train Army security escorts and
provide escorts to Provincial Reconstruction Teams when
Army escorts were unavailable. JA 1622-23, 1762-64, 2956.
Although it may be true that the defendants did not themselves
participate in these assignments, this evidence nevertheless
illustrated for the jury the types of “security-related duties”
within the scope of the defendants’ employment. JA 3761.
The defendants’ employment “relate[d] to supporting the
[DOD overseas] mission” in another way; it allowed military
personnel previously responsible for providing State
Department security to concentrate exclusively on their
rebuilding mission. See 18 U.S.C. § 3267(1)(A)(iii)(II). Tarsa
affirmed that the Defense Department was “able to reduce the
amount of [its] platoons . . . . dedicated for Department of State
security convoy missions” as “Blackwater took the majority of
those tasks.” JA 1381. The platoons were then able to return to,
inter alia, “the continued development of the Iraqi security
forces.” JA 1382. United States Army Lieutenant Peter
Decareau and England corroborated Tarsa’s testimony. JA
2581 (testimony of Army Lieutenant Peter Decareau) (agreeing
that “from roughly February 2007 going forward, [Decareau’s]
company and platoons within it did not need to provide [State
Department] escort service missions anymore,” allowing his
platoon “to focus on what [he] described as civil affairs and . .
. night operation missions”); JA 2952 (testimony of Deputy
Secretary Gordon England) (before Blackwater’s arrival, State
Department “was draining personnel from the DOD mission”).
15
Again, then, the defendants’ employment, which increased the
manpower available to the military by replacing military
personnel previously assigned to guard State Department
personnel, had some “bearing or concern” regarding—that is,
“relate[d] to”—supporting the Defense Department mission.
See Morales, 504 U.S. at 383 (internal quotation marks
omitted) (citing BLACK’S LAW DICTIONARY 1158 (5th ed.
1979)). Providing security to State Department personnel who
themselves acted jointly with the Defense Department to aid
the Iraqi people and whose protection would have continued to
require military personnel but for the defendants’ employment
necessarily “relate[d] to” supporting the Defense Department’s
mission.
4. Defendants’ Arguments
The defendants attempt to narrow MEJA’s scope by
reading the “to the extent” language of 18 U.S.C. §
3267(1)(A)(iii)(II) and the “while employed” language of 18
U.S.C. § 3261 as more than a temporal limitation. They argue
that MEJA applied “only in the limited capacities or at those
limited times” when Blackwater guards actively and directly
supported the Defense Department mission. Joint Appellants’
Br. 59. That is, they claim that MEJA required the jury to
consider not their employment but instead their challenged
actions to determine whether those actions—that is, securing
Nisur Square—supported the Defense Department mission. Id.
at 41, 58-60. But, as noted, MEJA’s scope is not so narrow.
Instead, the most natural conjunctive reading of “while
employed by,” as used in 18 U.S.C. § 3261, and “to the extent,”
as used in 18 U.S.C. § 3267, is one that interprets these
provisions as establishing that the point in time when the
defendants’ actions occurred is the benchmark by which their
16
employment’s relation to a DOD mission is measured. 2 See
supra 10. The defendants’ misreading of the statute to require
that their challenged actions must relate to a Defense
Department mission violates both MEJA’s text and its purpose.
MEJA’s goal, after all, was to close “a dangerous loophole in
our criminal law that would have allowed civilian contractors
who do the crime to escape doing the time.” 150 CONG. REC.
S6863.
Alternatively, the defendants maintain that we should look
not to their on-the-ground actions but only to their Blackwater
contract to determine whether they were “employed by the
Armed Forces outside the United States.” Joint Appellants’ Br.
50-52. Because their contract required them to provide security
for State Department personnel, rather than to further a Defense
Department mission, they argue that MEJA does not authorize
their prosecution. Id. at 53. We decline to take such a cramped
view of MEJA’s text given the “deliberately expansive”
language used by the Congress. See Greater Wash. Bd. of
Trade, 506 U.S. at 129.
Finally, the defendants insist that the rule of lenity requires
construing MEJA in their favor. The rule of lenity, however,
applies only if, “after considering text, structure, history, and
purpose, there remains a grievous ambiguity or uncertainty in
2
Although we agree with our dissenting colleague that MEJA’s
“to the extent” phrase is limiting language meant to distinguish
between DOD and non-DOD contractors, see BROWN, J., Dissent
Op. 2, we need not reach the question of the potential criminal
liability vel non under MEJA’s “to the extent” restriction of a non-
DOD contractor, say, a State Department food service contractor
whose employee assaults another while off-duty or while serving
meals to State Department employees in Iraq. All we decide today is
that these defendants’ criminal liability fits within MEJA’s scope.
17
the statute such that the Court must simply guess as to what
Congress intended.” Maracich v. Spears, 133 S. Ct. 2191, 2209
(2013) (internal quotation marks omitted) (quoting Barber v.
Thomas, 560 U.S. 474, 488 (2010)); accord Reno v. Koray, 515
U.S. 50, 65 (1995) (rule of lenity applies “only if . . . [the Court]
can make no more than a guess as to what Congress intended”
(internal quotation marks omitted)). “The rule [of lenity] comes
into operation at the end of the process of construing what
Congress has expressed, not at the beginning as an overriding
consideration of being lenient to wrongdoers.” Maracich, 133
S. Ct. at 2209 (alteration in original) (quoting Callanan v.
United States, 364 U.S. 587, 596 (1961)). Although the phrase
“relates to” gives MEJA a broad scope, breadth does not equal
ambiguity. See Penn. Dep’t of Corr. v. Yeskey, 524 U.S. 206,
212 (1998) (“[T]he fact that a statute can be applied in
situations not expressly anticipated by Congress does not
demonstrate ambiguity. It demonstrates breadth.” (internal
quotation marks omitted)). Moreover, to the extent—if any—
that MEJA’s text is ambiguous, MEJA’s “context, structure,
history, and purpose resolve it.” Abramski v. United States, 134
S. Ct. 2259, 2272 n.10 (2014); see supra at 7-9. We conclude
that the rule of lenity is inapplicable here.
B. Jury Charge
The defendants also challenge the district court’s jury
instructions regarding MEJA. “Whether the district court
properly instructed the jury is ‘a question of law that we review
de novo.’” United States v. Ring, 706 F.3d 460, 465 (D.C. Cir.
2013) (quoting United States v. Orenuga, 430 F.3d 1158, 1166
(D.C. Cir. 2005)). Our responsibility is to “determine whether,
taken as a whole, [the instructions] accurately state the
governing law and provide the jury with sufficient
understanding of the issues and applicable standards.” United
States v. DeFries, 129 F.3d 1293, 1304 (D.C. Cir. 1997)
18
(alteration in original) (emphasis added); accord Ring, 706
F.3d at 465. An “improper instruction on an element of the
offense violates the Sixth Amendment’s jury trial guarantee.”
Neder v. United States, 527 U.S. 1, 13 (1999).
The district court instructed the jury on the meaning of
“employed by the Armed Forces outside the United States” as
follows:
[T]he definition of ‘employed by the Armed
Forces outside the United States’ includes not
only a direct employee or contractor of the
Armed Forces of the United States, but also a
contractor (including a subcontractor at any
tier) or an employee of a contractor (or
subcontractor at any tier) of any Federal agency
of the United States Government to the extent:
(1) such employment relates to
supporting the mission of the
Department of Defense overseas . . . .
...
[T]he Government may prove that the
defendant was ‘employed by the Armed Forces’
by establishing that:
(a) the defendant was employed as a
contractor, or an employee of a
contractor (including a
subcontractor at any tier) of any
federal agency, and
(b) that the defendant’s employment
related to supporting the mission of
the Department of Defense overseas.
19
JA 497-98.
The challenged jury instruction was not erroneous. First,
it quoted MEJA’s “to the extent” clause verbatim:
“‘[E]mployed by the Armed Forces outside the United States’
includes . . . an employee of a contractor . . . of any Federal
agency of the United States Government to the extent . . . such
employment relates to supporting the mission of the
Department of Defense overseas.” Id. (emphasis added); see
18 U.S.C. §§ 3261, 3267. Granted, the instruction also stated
that the government could establish jurisdiction if the jury
found “the defendant’s employment related to supporting the
[DOD] mission,” JA 498; taken out of context, a juror could
conceivably understand the latter statement to mean
jurisdiction would exist if “the defendant’s employment [at
any time] related to supporting the mission” of DOD, see id.But we “do not read the language thus criticized in isolation.”
Jones v. United States, 404 F.2d 212, 215-16 (D.C. Cir. 1968);
see also Cupp v. Naughten, 414 U.S. 141, 147-48 (1973). To
the contrary, we have “long recognized that one ambiguous
part of an instruction may be made clear by another
unambiguous part of the same instruction,” United States v.
Gaviria, 116 F.3d 1498, 1510 (D.C. Cir. 1997), and the “to the
extent” language unambiguously precludes an erroneous, all-
or-nothing understanding of the statute, see John Hancock
Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86,
104-05, 109 (1993).
The defendants’ challenge to the instruction largely
repeats their argument against the applicability of MEJA itself.
For example, they argue the district court erred in failing to
instruct the jury that it could consider only their contract
employment to determine whether they were “employed by the
Armed Forces . . . .” Joint Appellants’ Br. 66-68. The
defendants also revive their claim that, even if the jury could
20
consider evidence aliunde their employment contract, it should
have been instructed that MEJA applied only when the
defendants were acting within the scope of their employment
and only if their specific acts supported the DOD mission. Id.
at 64-66. To that end, they proposed the following instruction:
[I]f you find that part of a defendant’s contract
employment for the Department of State related to
supporting the mission of the Department of
Defense, and part of his contract employment did not
relate to supporting the mission of the Department of
Defense, you must consider whether the work the
defendant was performing at the time of the conduct
charged in the indictment related to supporting the
mission of the Department of Defense in Iraq. For
purposes of this case, a Defendant is ‘employed by
the Armed Forces of the United States’ only if the
contract employment he was performing at the time
of the charged conduct related to supporting the
mission of the Department of Defense in Iraq.
JA 473. In construing MEJA’s text, the Court earlier rejected
the premise underlying the defendants’ instruction, see supra
15-16, and continues to do so in this context.
The defendants’ remaining argument is that the district
court “grievously erred” by failing to instruct the jury expressly
that diplomatic security is a State Department responsibility.
Joint Appellants’ Br. 68. They note that 22 U.S.C. §§ 4801-02assigns to the Secretary of State responsibility for “the security
of diplomatic operations . . . abroad,” id. § 4801(b)(1), and
requires the Secretary to implement measures “to provide for
the security of United States Government operations of a
diplomatic nature,” id. § 4802(a)(1). For the defendants, there
is a “fundamental conflict between that statutory assignment of
21
responsibility [to the State Department] and MEJA’s
requirement that the defendants’ contract employment relate to
supporting the Defense Department’s mission.” Joint
Appellants’ Br. 74-75. The defendants offered the following
instruction:
The Defendants in this case were independent
subcontractors employed by the Department of
State to provide personal security to State
Department personnel in Baghdad, Iraq. By
law, the provision of personal security to State
Department personnel overseas is the
responsibility of the Department of State.
JA 475.
The defendants fail to recognize, however, that State
Department contractors—and their employees—could help
meet the State Department’s duty to provide security for
diplomatic operations abroad and, at the same time, support the
Defense Department’s overseas mission. Blackwater without
question employed the defendants to protect State Department
personnel, see, e.g., JA 1169-74, 1853-54, 3861; the critical
question for the jury, however, was whether, in carrying out
that responsibility, the defendants’ employment also “relate[d]
to supporting the mission of the Department of Defense
overseas,” see 18 U.S.C. § 3267(1)(A)(iii)(II). We agree with
the district court that the defendants’ proposed instruction
“would just be confusing to the jury.” JA 3279-80. The district
court’s charge, “taken as a whole . . . accurately state[d] the
governing law and provide[d] the jury with sufficient
understanding of the issues and applicable standards.” DeFries,
129 F.3d at 1304.
22
III. VENUE
The defendants next complain the District of Columbia
was an improper venue for their trials. On November 18,
2008, the United States District Court for the District of
Columbia issued an arrest warrant for Ridgeway, and
Ridgeway voluntarily flew to Washington, D.C. from
California. Once he arrived in Washington, he was met by an
FBI agent, formally booked and taken to district court to plead
guilty to one count of voluntary manslaughter and one count of
attempted voluntary manslaughter. While Ridgeway was not
put in handcuffs when apprehended by the FBI, he testified he
believed he was under arrest. After pleading guilty, Ridgeway
was permitted to return to his home.
If an offense is committed outside the United States and
involves charges against multiple people, Congress has
declared venue to be proper in the district where any of the joint
offenders are first arrested. 18 U.S.C. § 3238. The
defendants argue the government improperly used the arrest of
Jeremy Ridgeway, one of the other turret gunners who fired in
Nisur Square, to satisfy the venue statute because (1) Ridgeway
was not arrested in connection with their charged offenses, (2)
he was not a “joint offender” with the defendants and (3) the
government impermissibly manufactured venue in the District
of Columbia.
Since the parties dispute the meaning of the phrases “joint
offender” and “is arrested” in the venue statute, we focus on
the statute’s text. Section 3238 states, “[t]he trial of all
offenses begun or committed . . . out of the jurisdiction of any
particular State or district[] shall be in the district in which the
offender, or any one of two or more joint offenders, is
arrested.” Id. “The Government bears the burden of
establishing by a preponderance of the evidence that venue is
23
proper with respect to each count charged against the
defendant[s].” United States v. Morgan, 393 F.3d 192, 195
(D.C. Cir. 2004). When reviewing whether venue was
properly established, this Court views the evidence “in the light
most favorable to the Government.” Id. In order to assure
the case would be heard in the District of Columbia, the
government entered into a plea agreement with Ridgeway and
arranged for him to travel to the District of Columbia from his
home in California to be arrested.
While this Court has not specifically defined “arrested” in
the context of Section 3238, our sister circuits have consistently
interpreted it to mean situations “‘where the defendant is first
restrained of his liberty in connection with the offense
charged.’” United States v. Wharton, 320 F.3d 526, 537 (5th
Cir. 2003) (quoting United States v. Erdos, 474 F.2d 157, 160
(4th Cir. 1973)). We believe this definition is correct and that
the test is easily satisfied here. The record shows the district
court issued the arrest warrant for Ridgeway. On the same
day, he was arrested by the FBI in the District of Columbia and
formally booked. The defendants argue Ridgeway’s freedom
was never restrained because he voluntarily flew across the
country from California and was never put in handcuffs or
confined in a cell, but this misconstrues the meaning of arrest.
Supreme Court precedent makes clear an arrest can either
be carried out with “physical force [against a suspect] . . . or,
where that is absent, submission to the assertion of authority.”
California v. Hodari D., 499 U.S. 621, 626 (1991). What
really matters is whether a “reasonable person would have
believed that he was not free to leave.” United States v.
Mendenhall, 446 U.S. 544, 554 (1980). Here, Ridgeway
testified he understood himself to be under arrest when he was
seized by the FBI upon arrival in the District of Columbia.
Any reasonable person in Ridgeway’s position would have
24
understood he was not free to leave. 3 Ridgeway was first
arrested in the District of Columbia; and that arrest established
venue here.
The defendants interpret the phrase “joint offender” to
mean each offender must possess “a mutual intent” with others
to commit a crime. Joint Appellants’ Br. 97–98. Because
Ridgeway did not form this mutual intent, they claim he was
not a joint offender. They rely primarily on the fact that many
of the cases examining Section 3238 have involved
collaborative criminal schemes. See, e.g., United States v.
Levy Auto Parts of Can., 787 F.2d 946, 948–49 (4th Cir. 1986)
(involving a conspiracy to sell munitions); United States v.
Hong Vo, 978 F. Supp. 2d 49, 64 (D.D.C. 2013) (involving a
conspiracy to commit visa fraud).
However, this interpretation impermissibly narrows
Section 3238 to one category of offenses. As noted by the
district court, Black’s Law Dictionary defines a joint offense as
a crime “committed by the participation of two or more
persons.” BLACK’S LAW DICTIONARY 838 (6th ed. 1990).
While the defendants are certainly correct that a joint crime can
be committed by several defendants with a mutual intent to
achieve a criminal goal, this is not the only type of crime in
which a group may participate. In fact, Federal Rule of
Criminal Procedure 8(b) allows multiple defendants to be
charged with the same offense “if they are alleged to have
participated in the same act or transaction, or in the same series
of acts or transactions, constituting an offense or offenses.”
3
Judge Rogers concurs that the objective standard for an arrest
has been met here, see Hodari D., 499 U.S. at 628, in light of
testimony that upon meeting FBI Agent John Patarini in Washington,
D.C., Ridgeway was handed an arrest warrant, told he was under
arrest, and further told “If you can behave yourself, I will not put
these [handcuffs] on you.” 7/31/14 (PM) Tr. 12:12-18.
25
Accordingly, instead of limiting “joint offender” to one
category of offenses that requires participation by multiple
people, a more natural reading of the statutory text
encompasses not only people with a mutual intent to commit a
crime, but also anyone who has joined others in participating
in the same act or transaction constituting a crime or crimes.
This interpretation is further supported by this Court’s
preference for joint trials in cases involving multiple
defendants. See United States v. Manner, 887 F.2d 317, 324
(D.C. Cir. 1989). We have explained joint trials “promote
efficiency” and noted that “this preference is especially strong
when the respective charges require presentation of much the
same evidence, testimony of the same witnesses, and involve
[multiple] defendants who are charged . . . with participating in
the same illegal acts.” United States v. Wilson, 605 F.3d 985,
1015, 1016 (D.C. Cir. 2010). These rationales are especially
compelling in a case like this. Ridgeway was working in the
relevant convoy on the day of the Nisur Square attack, and,
with other defendants, he opened fire on the civilians in Nisur
Square. Thus, in order to convict Ridgeway, the government
would be required to present the same evidence and to rely
upon testimony from the same witnesses as they would for the
other defendants. Also, concerns for efficiency are especially
compelling here because many of the witnesses reside in Iraq.
Multiple trials would mean arranging multiple international
trips for the witnesses, which would likely be both difficult to
schedule and costly. Thus, our interpretation of Section 3238
is consistent with both the text of the statute and the general
preference for joint trials. 4 We conclude “joint offenders”
4
We also note this interpretation is consistent with Section
3238’s legislative history. See S. Rep. No. 88-146 at 1–2 (1963),
reprinted in 1963 U.S.C.C.A.N. 660, 660–61 (stating Congress
desired to amend Section 3238 to avoid the “substantial burden” and
“unnecessar[y] expens[es]” imposed by requiring the government to
26
encompasses all defendants who participated in the same act or
transaction constituting the charged crimes.
Thus, it is clear Ridgeway was a joint offender.
Testimony at trial established Ridgeway was present in Nisur
Square as a member of the Raven 23 convoy and that he fired
at civilians to the south, to the west and finally to the north.
Ridgeway participated in the “same series of acts or
transactions” that gave rise to the prosecution, FED. R. CRIM. P.
8(b), which makes him a joint offender. The defendants’
emphasis on personal participation in every count returned by
the grand jury focuses on the wrong thing. Although it is true
that the government must show that “venue is proper with
respect to each count charged,” United States v. Lam Kwong-
Wah, 924 F.2d 298, 301 (D.C. Cir. 1991), it does not follow
that Ridgeway must have personally participated in each act
giving rise to each count. Section 3238 requires that
Ridgeway be a “joint offender,” which is satisfied by his
participation in the same series of acts or transactions giving
rise to those counts, i.e., Ridgeway’s persistent, multi-
directional shooting throughout the entire Nisur Square attack.
18 U.S.C. § 3238; see also FED. R. CRIM. P. 8(b) (“All
defendants need not be charged in each count.”). Because
Ridgeway clearly did participate in the Nisur Square shootings,
he was a joint offender within the meaning of Section 3238.
Likewise, the defendants’ claim that the government
manufactured venue, while appealing on an intuitive level, fails
in light of the congressional design of Section 3238. The text
of the statute gives the government a choice regarding
prosecution of an extraterritorial crime: either arresting a
arrange and finance multiple trips to the United States for overseas
witnesses for multiple trials). Thus, it appears the legislature meant
what it plainly said.
27
cooperative defendant in a jurisdiction of the government’s
choosing or seeking an indictment in the district where a
defendant resides. See 18 U.S.C. § 3238 (stating venue “shall
be in the district in which the offender, or any one of two or
more joint offenders, is arrested”); see also United States v.
Gurr, 471 F.3d 144, 155 (D.C. Cir. 2006) (reading Section
3238’s clauses disjunctively). Thus, by choosing to arrest
Ridgeway in the District of Columbia, the government simply
exercised the choice given to it under the statute. Something
more is required to sustain a claim that venue has been
manufactured. See United States v. Spriggs, 102 F.3d 1245,
1250–51 (D.C. Cir. 1996). For example, “where the key
events occur in one district, but the prosecution, preferring trial
elsewhere, lures a defendant to a distant district for some minor
event simply to establish venue,” a claim of manufactured
venue might have traction. Id. at 1251. However, Section
3238 forecloses that scenario here by explicitly allowing the
government to choose where to arrest a cooperative joint
offender. Thus, venue was proper in the District of
Columbia. 5
5
Equally unpersuasive is the defendants’ contention that the
district court committed reversible error by ruling on the venue issue
itself instead of presenting the question to the jury. Venue becomes
a jury question if a defendant raises a genuine issue of material fact
regarding venue. See United States v. Fahnbulleh, 752 F.3d 470,
477 (D.C. Cir. 2014). Here, the defendants failed to do so. The
parties do not dispute what happened—i.e. that Ridgeway
participated throughout the Baghdad shootings and that he flew from
California to the District of Columbia and was arrested once he
arrived there—they dispute the legal significance of those facts.
The defendants disagree with the district court’s interpretation of the
phrases “joint offender” and “arrest,” which, as discussed above,
were correctly considered. Therefore, the district court did not err
by withholding this issue from the jury.
28
IV. NEW TRIAL MOTION
A. Background
The defendants say the district court abused its discretion
in denying a new trial based on the victim impact statement
(“VIS”) from Officer Monem that appeared to contradict his
testimony at trial.
During the trial, the government called Sarhan Dheyab
Abdul Monem, an Iraqi police officer, to testify about his
observations in Nisur Square during the attack. Before the
shooting began, Monem was stationed at a traffic kiosk located
close to where the Raven 23 caravan had stopped. Monem
testified that, after he heard shots being fired from the Raven
23 caravan, he heard a scream coming from the Kia, so he
approached the vehicle. As he neared the Kia, he saw its
driver had been shot in the head. After examining the driver’s
injury, Monem testified he moved in front of the convoy and
attempted to tell them to stop shooting by speaking to them in
Arabic and waving his hands. When this had no effect,
Monem stated he returned to the Kia and attempted to help the
Kia’s passenger, who was weeping and holding the body of the
driver. According to Monem, the car began to slowly move
forward, which caused the Raven 23 squad to begin firing at
the Kia again. When the second burst of gunfire erupted,
Monem fled back to his kiosk and hid behind it to shield
himself from the bullets.
After the defendants were convicted, the government
solicited victim impact evidence from Iraqis who were present
in Nisur Square on the day of the attack, including Monem.
The purpose of this evidence was to allow victims and
witnesses to describe how the Nisur Square shootings had
affected them, including “feelings of anger, rage, blaming self,
29
. . . helplessness, [and] vulnerability.” JA 4032. In his VIS,
Monem wrote about his guilt for not being able to help the
Kia’s occupants; but, he also painted a different picture of what
happened that day. Contrary to his testimony at trial,
Monem’s VIS stated he “remained in [his] traffic cabin unable
to move nor think.” JA 637. The VIS also stated Monem
heard the driver of the Kia pleading with his mother to get out
of the car before they were both killed. When the government
produced Monem’s VIS to the court and defense counsel four
days later, the defendants raised concerns about the
inconsistency of the VIS with Monem’s trial testimony.
This prompted the government to conduct an ex parte
telephone conversation with Monem regarding his VIS. The
government did not record this conversation and instead
submitted notes to the district court summarizing Monem’s
responses. According to these notes, Monem allegedly stated
he did not understand his VIS to be a factual statement but
rather an “expression” of what he imagined it was like to be the
Kia driver. The notes also indicated Monem reaffirmed key
portions of his trial testimony, including that he approached the
Kia and saw the driver was dead.
The defendants moved for a new trial based upon this
newly-discovered evidence, but the district court denied their
motions without conducting a hearing. United States v.
Slough, 144 F. Supp. 3d 4, 5 (D.D.C. 2015). The defendants
now appeal, claiming the district court committed reversible
error by denying their motions for a new trial. Slatten argues
the VIS provides direct evidence of his innocence by
establishing that the person he was convicted of murdering was
alive after the shooting in Nisur Square began, thus disproving
the government’s theory of the case. Additionally, the other
defendants argue the VIS shows Monem committed perjury at
trial and that this new account refutes many facts vital to the
30
government’s case. Finally, all defendants argue the district
court reversibly erred by failing to hold a hearing to examine
Monem regarding the conflict his VIS created with his
testimony at trial.
B. Analysis
Trial courts have broad discretion when deciding whether
to grant a new trial based on newly-discovered evidence.
Thompson v. United States, 188 F.2d 652, 653 (D.C. Cir. 1951).
A district court’s denial of a new trial is reviewed for abuse of
discretion. United States v. Oruche, 484 F.3d 590, 595 (D.C.
Cir. 2007). In order to obtain a new trial because of newly-
discovered evidence, the party seeking a new trial must prove:
(1) the evidence was discovered after the trial; (2) the party
acted diligently in its attempts to procure the newly-discovered
evidence; (3) the evidence relied on is not “merely cumulative
or impeaching,” (4) the evidence is “material to the issues
involved” in the case and (5) the evidence is “of such nature
that in a new trial it would probably produce an acquittal.”
Thompson, 188 F.2d at 653. “[W]hen perjury by a prosecution
witness is discovered after trial and when the prosecution did
not know of the perjury until then,” a defendant is entitled to a
new trial only if he can prove he “would probably be acquitted
on retrial.” United States v. Williams, 233 F.3d 592, 594 (D.C.
Cir. 2000).
We begin by noting the unusual nature of the allegedly
exculpatory evidence upon which the defendants rely. In
homicide cases, victim impact statements are typically used
during the sentencing phase of a trial. They allow the
government to either offer a “quick glimpse” into a life taken
by the defendant or to “demonstrat[e] the loss to the victim’s
family and to society which has resulted from the defendant’s
homicide.” Payne v. Tennessee, 501 U.S. 808, 822 (1991).
31
Nothing in the record suggests the government intended to use
the VIS in this case as substantive evidence of guilt. See JA 637
(asking Monem to describe how the crime affected him); cf.
Payne, 501 U.S. at 856 (Stevens, J., dissenting) (stating victim
impact statements “shed[] no light on the defendant’s guilt or
moral culpability”). However, this is exactly the purpose for
which the defendants now seek to use Monem’s VIS.
Monem’s statements viewed in isolation could be seen as
puzzling if not contrary to his testimony at trial, as the
defendants suggest. Considered in context, however, as
responses to the specific questions posed by the government in
preparing for sentencing after the jury had returned its verdicts
finding the defendants guilty, his statements take on another
cast. Still, the Court is troubled by the government’s conduct
upon discovery of what might appear to contradict his trial
testimony. Instead of inviting defense counsel to participate in
the phone call with Monem or—at a minimum—recording the
phone conversation, the government conducted an ex parte
phone call and offered nothing but its own notes as evidence of
what was said during the call. Because the Court has no way
of verifying what was said, we do not believe the notes
constitute a repudiation of Monem’s contradictory statements.
However, even if we view the statements in the light most
favorable to the defendants and consider them to be an
admission of perjury and a recantation of Monem’s trial
testimony, we do not believe the district court abused its
discretion in declining to grant a new trial. In order to succeed
on their claims, the defendants must prove Monem’s VIS
would probably result in an acquittal at a new trial.
Thompson, 188 F.2d at 653. “This is a high bar to cross.”
United States v. Celis, 608 F.3d 818, 848 (D.C. Cir. 2010).
Here, even if Monem’s statements did constitute a recantation
of his trial testimony, we do not believe they meet this high bar.
32
This holds especially true for Liberty, Slough and Heard,
whose convictions regarding victims to the south, east, west
and north of Nisur Square did not depend on Monem’s
testimony regarding the first moments of the shooting attack.
Regarding Dr. Al-Khazali, the Kia passenger, other evidence
corroborated Monem’s testimony that the Kia was stopped
when the first shots were fired, and Officer Al-Hamidi testified
about his own efforts to stop the shooting independent of
Monem’s.
The only defendant with even a slight chance of a different
outcome based on Monem’s contradictory VIS statements was
Slatten. However, even if we were to assume that Monem
would reaffirm his VIS testimony, acquittal would still not be
likely due to the other record evidence that al-Rubia’y was
killed instantly. As discussed in more detail below, testimony
from Officer Al-Hamidi established that al-Rubia’y was shot
in the head, killing him instantly. Only then did the car begin
rolling forward unguided. Comparing this consistent
testimony from Officer Al-Hamidi with this new testimony
from Monem, which only came to light after he was prompted
to describe “feelings of anger, rage, blaming self, . . .
helplessness, [and] vulnerability” resulting from the Nisur
Square shootings, JA 4032, there is little reason to believe the
outcome of the case would have been any different. Thus, it
was hardly an abuse of discretion for the district court to refuse
to grant a new trial based on evidence unlikely to produce a
different outcome.
Furthermore, the district court did not abuse its discretion
in declining to hold an evidentiary hearing regarding Monem’s
VIS. This Court gives a trial judge “broad discretion in ruling
on a motion for a new trial, both in his actual decision and in
what he considers before making that decision.” Lam Kwong-
Wah, 924 F.2d at 308. “A motion for a new trial can ordinarily
33
be decided . . . without an evidentiary hearing, and a district
court’s decision not to hold such a hearing may be reversed
only for abuse of discretion.” United States v. Kelly, 790 F.2d
130, 134 (D.C. Cir. 1986); see also United States v. Kearney,
682 F.2d 214, 219 (D.C. Cir. 1982) (noting the need for a
hearing is diminished “where the trial judge has had an
opportunity to observe the demeanor and weigh the credibility
of the witness at trial”). Here, the district court judge presided
over the entirety of this multiple-week trial and observed
Monem’s testimony when it was given. Also, Monem’s
testimony was subject to thorough cross-examination by
several defense attorneys and—unlike the VIS—was largely
corroborated by other evidence presented at trial. All of these
factors combined made the district court “well qualified to rule
on the motion for a new trial” based solely on the written
motions and the evidence submitted. Kearney, 682 F.2d at
220. While we agree with the defendants that a hearing would
have been helpful to clarify what Monem meant when he wrote
his VIS, we cannot say it was an abuse of discretion for the
district court to decide the motion without a hearing.
V. SUFFICIENCY OF THE EVIDENCE
Liberty and Slatten challenge the sufficiency of the
evidence supporting their convictions. The Court must affirm
if, Aafter viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.@
Jackson, 443 U.S. at 319. The jury is Aentitled to draw a vast
range of reasonable inferences from evidence, but may not base
a verdict on mere speculation.@ United States v. Harrison, 103
F.3d 986, 991 (D.C. Cir. 1997) (quoting United States v. Long,
905 F.2d 1572, 1576 (D.C. Cir. 1990)). Applying this Ahighly
deferential@ standard, United States v. Williams, 836 F.3d 1, 6
(D.C. Cir. 2016), the Court concludes that the evidence
34
supporting the convictions was sufficient, with the exception
of one of Liberty=s attempted manslaughter convictions.
A. Liberty
Liberty, the driver of the third vehicle in the four-vehicle
convoy of Blackwater guards, was convicted of eight counts of
voluntary manslaughter, twelve counts of attempted
manslaughter and a Section 924(c) weapons count. The jury
was also instructed, in view of the charges under 18 U.S.C. '
2, that it could convict on each of these counts if it determined
that Liberty aided and abetted their commission. Liberty
contends that there was insufficient evidence that he
unjustifiably fired his weapon at, or caused the death of, any
victim, or that he took some action to aid another defendant=s
unjustifiable shooting at any specific victim.
First, Raven 23 member Jeremy Krueger=s testimony
provided evidence from which the jury could find that Liberty
fired at the white Kia in which the passenger, Dr. Al-Khazali,
was killed. Krueger, who was in the vehicle in front of
Liberty=s, testified that each member of the Raven 23 team
had been assigned roles and that he was responsible for
securing one sector of Nisur Square. Krueger testified that he
saw shots fired at the Kia from the vehicle behind by Asomeone
sitting in the driver=s position, and [he] assumed it to be Mr.
Liberty, just based on [his] knowledge of [Liberty=s] position
that day, [of the team members=] assignments.@ 8/5/14 (PM)
Tr. 34:3-9. Although Krueger was not in a position to see the
shooter=s face, he inferred that the shooter was the driver
because the shooter was Asitting with his back against the
driver=s seat@ like a driver would ordinarily sit. 8/5/14 (PM) Tr.
91:10-12.
35
Liberty maintains that this evidence could just as plausibly
describe Jimmy Watson, the Raven 23 leader, who testified that
he leaned across Liberty=s body and shot into the Kia from the
passenger seat. This, however, ignores that Krueger testified
the shooter was sitting with his back Aup against the [driver=s]
seat,@ 8/5/15 (PM) Tr. 91:17-20, and that the shooter=s upper
body was above the steering wheel, not Atilting down or out@ of
the vehicle like someone who was leaning across the driver=s
body. Id. at 35:25-36:11. Watson also described Liberty as
having his back Aup against the seat.@ 7/28/14 (PM) Tr. 79:14-
15. Although Watson testified that Liberty did not shoot into
the Kia Aat that time,@ 7/28/14 (PM) Tr. 50:4-6, the jury could
have reasonably disbelieved him because Watson=s testimony
was inconsistent on other key points, such as whether Slatten
shot first, and what Liberty did when he exited the vehicle
during the tow hook-up. Compare, e.g., 7/28/14 (PM) Tr.
30:18-22, with id. at 30:23-31:20; id. at 95:12-16, with id. at
95:25-96:13. Further, even if the jury credited Watson=s
testimony on that point, it could reasonably have understood
his other testimony that, after the initial burst of shooting, he
told Liberty Ato open the door again and fire again,@ id. at
50:13-14, to show that Liberty had taken part in the second
burst of shooting at the Kia. Given the close proximity of the
convoy to the Kia, 7/1/14 (PM) Tr. 138:4, the jury could
reasonably find that Liberty=s shots hit Dr. Al-Khazali,
contributing to her death.
With regard to the victims shot to the south, Watson
testified that Liberty Awas engaging in the direction of the
south@ as the two of them fired simultaneously out of the
driver=s side door, which was oriented in that direction.
7/28/14 (PM) Tr. 61:18-62:7. Eddie Randall, another Raven
23 member, testified that he saw shots fired southward from the
same door, which, given Liberty=s driving assignment, he too
assumed were fired by Liberty. 8/11/14 (AM) Tr. 80:5-82:3.
36
There was also testimony from Jeremy Ridgeway that in the
immediate aftermath of the shootings in Nisur Square, Liberty
admitted that he had done Aanother Grey 55,@ which Ridgeway
explained meant firing blindly out of his porthole with his rifle
across his lap. 7/31/14 (AM) Tr. 44:3-9. Liberty maintains
nonetheless that the Grey 55 testimony did not establish
shooting Ain a particular direction at a particular time,@ Joint
Appellants’ Reply Br. 54, but because Liberty=s door faced
south until the convoy pulled away to leave the Square, the jury
could reasonably have found that the Grey 55 shots went south.
That said, evidence showing only that Liberty fired south
is not especially probative that he hit any particular victim
because there were multiple shooters, multiple victims in that
area and Amillions of square feet to the south.@ 7/29/14 (AM)
Tr. 31:21-22 (Watson). Even so, and even were the Court to
assume that the evidence already discussed was insufficient to
show Liberty was directly responsible for the victims to the
south, there was sufficient evidence to support Liberty=s
convictions under an aiding-and-abetting theory. See United
States v. Branch, 91 F.3d 699, 731-32 (5th Cir. 1996). To
establish aiding and abetting, the government had to prove,
beyond a reasonable doubt, that Liberty intentionally
Afacilitated any part . . . of [the] criminal venture,@ with enough
Aknowledge [of the crime to] enable[] him to make the relevant
legal (and indeed, moral) choice@ to opt out instead.
Rosemond v. United States, 134 S. Ct. 1240, 1246, 1249
(2014). Given the evidence before the jury, we Afind no
difficulty in holding that actively participating in a gunbattle in
which a gunman kills [multiple victims] can aid and abet that
killing@ even if the government cannot prove which gunman
killed which victim. Branch, 91 F.3d at 732. This is
especially true where, as here, the gunfire of each shooter
hindered potential escape, leaving victims exposed to the
others= bullets. Cf. Rosemond, 134 S. Ct. at 1247 n.6.
37
The evidence showed that with Slough, Ridgeway and
Heard firing to the south from their location and Watson and
Liberty firing south from inside their vehicle, victims in that
area had nowhere to turn in order to escape. Krueger, for
instance, described people running and Aone gentleman
particularly hiding behind a car and kind of frantically
wondering what to do and how to get away,@ as rounds
impacted the car and the ground around him. 8/5/14 (AM) Tr.
47:12-16. This unarmed man appeared to be Adeciding which
way to run, and he just didn=t know what the safe direction
was,@ before eventually falling as he tried to make a run for
safety. Id. at 48:18-49:18. Similarly, Raven 23 member
Matthew Murphy described a man near the white Kia that he
perceived to be shot while the man was Alooking around, . . .
trying to think about what he was going to do, you know, [how
to] get out of the way@ of the gunfire. 7/1/14 (AM) Tr. 11:2-
12:10. From this evidence, the jury could reasonably find that
Liberty=s southern shooting aided the gunmen who actually
inflicted the harm.
Liberty suggests that there is no evidence that he knew
what anyone other than Watson was doing, and therefore his
shooting could not have knowingly aided in the commission of
any crime with the requisite intent. To the extent he relies on
the fact that Watson was never charged as a co-defendant,
aiding-and-abetting liability can arise even when the principal
offense goes uncharged. United States v. Catalan-Roman,
585 F.3d 453, 473 (1st Cir. 2009). The jury could readily find
that Watson=s southern shooting was unjustified and thus
criminal—for instance, when Watson repeatedly shot at and
eventually hit a man running away from the convoy—and
further, that Liberty knew of the lack of justification and yet
continued to fire his weapon. Liberty=s failure to opt out
satisfies the mens rea element, which can arise during the
crime=s commission. Rosemond, 134 S. Ct. at 1249. Even
38
assuming that Liberty may not have been able to see Slough,
Ridgeway, or Heard, who were firing their weapons from
above Liberty, Watson testified he was aware that they were
firing their weapons, and the jury could have reasonably
imputed that same awareness to Liberty, who was sitting beside
Watson. A number of southern-facing Raven 23 members,
including Mark Mealy, who was the turret gunner in the lead
vehicle, testified to the lack of apparent justification for any
southern shooting from the convoy. E.g., 8/4/14 (PM) Tr.
91:18-21 (Ridgeway was unable Ato personally identify a
legitimate target@ as he fired south); 7/15/14 (PM) Tr. 113:16-
114:16 (Mealy Adidn=t see any reason@ for the shots fired at
people attempting to flee). Despite Liberty=s claim that Mealy
had a different vantage than Liberty, the jury could
reasonably find that Liberty, who was looking in the same
direction, continued to fire his gun despite the unjustified
shooting that was happening around him.
With regard to the two victims shot to the east of the Nisur
Square traffic circle, Mealy testified that an unidentified Raven
23 member fired east while the disabled convoy vehicle was
being hooked up for evacuation. Mealy saw an Iraqi man with
his hands in the air, saw the Raven 23 guard kneeling outside
his vehicle holding an M-4 rifle with an ACOG scope, and after
he heard two or three shots, Mealy saw the Iraqi man double
over with a stomach wound. Watson=s testimony placed Liberty
outside their vehicle during the tow hook-up, and although his
testimony about what Liberty was doing was inconsistent with
his statement to the grand jury that he did not know what
Liberty did, at trial he testified Liberty helped with the hook-
up. Two rifle magazines later found in Nisur Square bore
Liberty=s name and inasmuch the three other guards who were
outside during the hook-up testified that they did not fire their
weapons, the jury could reasonably infer that Liberty killed Ali
Hussein.
39
Liberty disputes the import of this evidence. First, he
maintains that the magazines prove only that he fired his
weapon that day, something he does not deny. The jury,
however, could have reasonably viewed this evidence to show
that Liberty fired his weapon from outside the vehicle,
consistent with Mealy=s testimony. Watson did not recall
Liberty dropping a spent magazine while shooting inside the
vehicle, and it is unclear how else the magazines might have
ended up outside the vehicle. Second, Mealy testified that
whoever shot Hussein used an ACOG scope. That Liberty had
been issued an EOTech scope undercuts the inference that
Liberty killed Hussein, but it does nothing to preclude it; the
jury heard testimony that swapping scopes Awould [not] be that
hard,@ 7/28/14 (PM) Tr. 97:20-21, and that over time one guard
went from using an EOTech to an ACOG and then back again.
Third, Liberty further points out that Mealy described the
victim as wearing blue, traditional garb, and no victim matched
that description. There was, however, testimony that Hussein
was shot in the stomach, which is consistent with Mealy=s
testimony. Fourth, Liberty maintains that six Raven 23
members testified that no shots were fired during the tow hook-
up. This overstates the testimony to a degree, because Frost,
Krueger and Rhodes testified that they did not recall or
perceive any shots being fired during the hook-up, while
Murphy and Ridgeway testified only that no incoming shots
(i.e., shooting at the convoy) were fired. Even so, the jury was
entitled to credit Mealy=s specific recollection over that of the
others. Jackson, 443 U.S. at 319.
In sum, although Liberty may have poked holes in some of
the evidence against him, this Court does not review the jury=s
verdict de novo. See id. Given Mealy=s testimony and the
spent magazines found outside the vehicle, Liberty has not
shown that no reasonable factfinder could find him guilty of
Hussein=s death. The jury could reasonably have credited
40
Mealy=s testimony and evidence that only Liberty fired his
weapon during the hook-up efforts. On the other hand, the
government has pointed to no evidence linking Liberty to the
attempted manslaughter of Mahdi Al-Faraji, who was also shot
to the east of Nisur Square. Mealy testified only to seeing the
Blackwater guard taking Atwo or three shots@ to the east, hitting
a single victim. 7/15/14 (PM) Tr. 120:1-121:11. An
inference that one of those shots also hit a second victim would
be based on mere speculation, Harrison, 103 F.3d at 991, and
consequently that count of attempted manslaughter must be
vacated for insufficient evidence.
B. Slatten
Slatten was convicted of first-degree murder in the death
of Ahmed Al-Rubia=y, the driver of the white Kia. At the time
of the shooting, Slatten was laying across a bench in the back
of the third vehicle, aiming his weapon south out of a driver=s
side porthole. The government=s theory was that while traffic
was at a standstill waiting for the Blackwater convoy to exit the
Square, Slatten fired two shots from a sniper rifle into the Kia
windshield, killing Al-Rubia=y instantly and setting into motion
the day=s horrific events. See, e.g., 6/17/14 (PM) Tr. 7:16-9:19.
Slatten maintains there is insufficient evidence to support that
theory and that testimony from two government witnesses
disproves it.
The jury heard testimony that at the outset, while all traffic
was stopped in Nisur Square, there were two distinct pops, after
which the Kia started to roll slowly and a woman began to
scream. Officer Al-Hamidi testified that he approached the
car to see that Al-Rubia=y=s Awhole face was full of blood,@ that
the woman in the passenger seat was holding him and
screaming AMy son, my son,@ and then the car Astarted moving
slowly because the young man was killed, and he did not have
41
control of the car.@ 7/2/14 (AM) Tr. 92:11-93:10. Officer
Monem similarly testified that, on his approach, he saw that Al-
Rubia=y had been shot in the middle of his forehead, while a
nearby witness saw a hole in the blood-splattered driver=s side
windshield. From this, the jury could reasonably conclude
that the first shots were fatal, and Slatten does not dispute this
point.
The jury also heard testimony from Jimmy Watson, who
was in the front passenger seat of Slatten=s vehicle. Although
unable to recall at trial, Watson had testified before the grand
jury to his fairly strong recollection that Slatten fired twice and
then the gunners began shooting, and this testimony was
admitted into evidence at trial. Watson described Slatten=s
first shots as Avery rhythmic . . . retort then retort,@ 7/28/14
(PM) Tr. 34:14-15, consistent with others= descriptions of the
fatal shots as Atwo pops,@ e.g., 7/14/14 (PM) Tr. 76:2-3.
Watson could not see Slatten=s target, but testified that Slatten
was aimed generally south, which was Athe direction . . . where
the [Kia] was,@ 7/28/14 (PM) Tr. 38:25-39:2. Similarly, Eddie
Randall testified that he heard the first shots come from in front
of him, where Slatten=s vehicle was positioned. Slough was in
Slatten=s vehicle, and on direct examination Randall testified
that nothing he saw in Slough=s appearance indicated to him
that Slough had taken the shots.
The jury heard further testimony that Slatten was Raven
23's best marksman, who carried a sniper rifle that had been
modified to be on a hair trigger, and that Slatten was known for
his particular disdain for Iraqis, viewing himself as getting
payback for 9/11. Indeed, Jeremy Ridgeway testified that
Slatten later recounted shooting someone who was taking aim
at the convoy, with Slatten saying matter-of-factly that he
Apopped his grape@ and caused him to slump forward. 7/31/14
(AM) Tr. 49:5-16. From this evidence, a reasonable jury
42
could understand this to describe Al-Rubia=y, after being shot
in the middle of the forehead by Raven 23's best marksman.
Slatten=s bias against Iraqis, moreover, provided a basis for
finding that Slatten had fired first, in the absence of any
insurgent fire or other threat to the heavily armed convoy.
Witnesses testified that Slatten had previously engaged in a
pattern of preemptively shooting (or encouraging others to
preemptively shoot) at targets in order to draw fire from
potential adversaries. See United States v. Long, 328 F.3d
655, 661 (D.C. Cir. 2003).
Slatten, like Liberty, pokes some holes in the government=s
theory but does not overcome the jury=s reasonable
determination of guilt in light of the evidence before it. He
makes much of the fact that Ridgeway testified that Slatten
confessed to killing an active shooter who slumped forward
when shot, while Al-Rubia=y was an unarmed driver who,
according to Officer Monem, slumped to the side. The jury
could reasonably find that Slatten=s Aactive shooter@ claim to
Ridgeway was self-serving and therefore not trustworthy. See
Williamson v. United States, 512 U.S. 597, 599-600 (1994).
As the district court found, the jury had Aample support in the
record to find that Slatten was lying or unreasonably mistaken@
about an active shooter. United States v. Slough, 144 F. Supp.
3d 4, 13 (D.D.C. 2015). Aside from two witnesses who
thought they heard shots from what sounded like an AK-47,
there was no evidence of any active shooters that day, let alone
a seated one. And as for Monem=s testimony that Al-Rubia=y
was slumped to the side, to the extent it conflicted with
Slatten=s recounting the jury was entitled to disregard such a
minor discrepancy. Given the lack of evidence that Slatten
fired any other shots that day, the jury could reasonably
understand his Apopped his grape@ comment to describe Al-
Rubia=y, who had been shot in the middle of his forehead.
43
With regard to Watson=s testimony, Slatten highlights the
equivocation at trial as to who shot first, Slatten or the gunners.
He also points out that Watson testified to hearing three AK-47
shots outside the convoy prior to Slatten firing, which Slatten
suggests shows that he was returning incoming fire rather than
firing at the Kia. Slatten=s attempt to revive the defendants=
discredited self-defense theory lacks merit—the jury
necessarily rejected it, and the district court noted that Ano
witness . . . ever testified that they ever saw [an insurgent=s]
weapon at the scene,@ 4/13/15 Tr. 152:6-8. In his reply brief,
Slatten suggests that the initial shots Watson heard might have
come from the gunners rather than insurgents, but Watson
testified that he first heard AK-47 rounds in the distance, at
which point either Slatten or the gunners began to fire. The
jury could reasonably conclude that, despite his equivocation,
Watson=s testimony supported the government=s theory that
Slatten fired first, and also, in light of the overwhelming
evidence to the contrary, that there was no incoming fire
directed at the convoy.
Slatten points out that Jeremy Krueger testified hearing
5.56 caliber rounds as the first shots fired, which Krueger
claimed he could distinguish from the sound of 7.62 caliber
rounds, the caliber that Slatten=s sniper rifle would have fired.
This testimony is probative, but not forcefully so in view of
Krueger=s acknowledgment that his hearing was limited by
noise-reducing ear protection and being inside of a different
vehicle than the shooter. Still, it was for the jury to resolve the
credibility of Krueger=s testimony that depending on the
situation and circumstances, he Astill [thought he] could@
distinguish caliber rounds even when inside another vehicle
and while wearing ear protection. 8/5/14 (AM) Tr. 21:22-
22:2.
44
Slatten=s strongest counterevidence comes from Officers
Monem and Al-Hamidi, who testified that the first shots came
from the gunners. Al-Hamidi was A100 percent certain@ that
the first shots came from a gunner on top of a vehicle, 7/2/14
(PM) Tr. 35:4-15, while Monem Adid not see the explosion
from the mouth of [a gunner’s] rifle, but it was so close@ that
he could tell from the sound that it did. 6/23/14 (AM) Tr.
12:12-13. This testimony, however, does not Adisprove[]@ the
government=s theory of Slatten=s guilt. Slatten’s Br. 47. It
simply creates a dispute of fact, and it was the jury=s
responsibility to weigh the officers= conflicting testimony
against that of Watson to resolve the dispute. Jackson, 443
U.S. at 319. That a different jury might have resolved the
conflict differently is not tantamount to showing that no
reasonable fact-finder could conclude that Slatten shot first.
See id. Without any other plausible target for Slatten=s first
shots, and given the proximity of the Kia, it would have been
reasonable for the jury to find that Slatten killed Al-Rubia=y.
VI. VINDICTIVE PROSECUTION
Slatten further contends that his re-indictment for first-
degree murder, after he successfully challenged his previous
indictment for manslaughter, attempted manslaughter and
weapons charges, constituted vindictive prosecution. Our
review of the district court=s contrary finding is for clear error.
United States v. Safavian, 649 F.3d 688, 692 (D.C. Cir. 2011).
A. Background
In December 2008, Slatten was indicted jointly with his
co-defendants for identical counts of manslaughter, attempted
manslaughter and weapons charges. When the government
later concluded that Atainted@ testimony against Slatten had
been presented to the grand jury, see generally Kastigar v.
45
United States, 406 U.S. 441 (1972), it moved to voluntarily
dismiss the indictment as to Slatten. The district court granted
defendants= motion to dismiss the indictment as to all
defendants on related Kastigar grounds. United States v.
Slough, 677 F. Supp. 2d 112, 166 & n.67 (D.D.C. 2009). On
appeal, this Court reversed and remanded the dismissal as to all
defendants except Slatten, concluding that the district court had
already granted the government=s motion to dismiss and Ataken
Slatten out of the case for now.@ Slough, 641 F.3d at 547.
Two years later, the government secured a superseding
indictment charging Slatten with the manslaughter of Al-
Rubia=y, and jointly charging all defendants with various other
manslaughter, attempted manslaughter and weapons counts.
Slatten moved to dismiss the charges as time-barred because
this Court=s earlier reversal of dismissal had not applied to him
and the limitations period had continued to run. The district
court denied his motion, and Slatten filed a petition for a writ
of mandamus. This Court granted the writ upon concluding
that its earlier reversal Aclearly applied@ only to Slatten=s co-
defendants. In re Slatten, No. 14-3007, at 1 (D.C. Cir. Apr. 7,
2014). It denied the government=s own petition for rehearing,
observing that the government=s concern about a miscarriage of
justice if its prosecution of Slatten were time-barred was
caused by the government=s Ainexplicable failure to [timely]
reindict Slatten.@ In re Slatten, No. 14-3007, at 2 (D.C. Cir.
Apr. 18, 2014). The government subsequently obtained an
indictment charging Slatten with first-degree murder in the
death of Al-Rubia=y, a charge not subject to the statute of
limitations. 18 U.S.C. '' 1111(b), 3281. The prosecutor
conveyed to Slatten=s counsel an offer to reduce the charge to
manslaughter if Slatten would waive any limitations defense,
explaining that the murder charge was the government=s only
remaining option for holding Slatten accountable.
46
Slatten moved to dismiss the first-degree murder charge
on due process grounds, arguing that the increased charge
constituted vindictive prosecution. The district court denied the
motion, finding that the facts did not raise a presumption of
vindictive prosecution. It found that Slatten exercised his rights
in a pre-trial context, in which courts are far more hesitant to
presume vindictiveness. It further found that the prosecutor=s
offer to reduce the charge was a permissible pre-trial
negotiation, akin to plea bargaining, and that no other facts
suggested that the government was improperly motivated.
Instead, the government simply sought to hold Slatten
accountable for a heinous crime it believed he committed. The
district court also rejected Slatten=s argument that the
government was required to provide a contemporaneous
explanation of its decision to increase the charge. United
States v. Slatten, 22 F. Supp. 3d 9, 12-16 (D.D.C. 2014).
B. Analysis
The Due Process Clause prohibits prosecutors from
Aupping the ante@ by filing increased charges in order to
retaliate against a defendant for exercising a legal right.
Blackledge v. Perry, 417 U.S. 21, 27-28 (1974). At the same
time, however, prosecutors have broad discretion to enforce the
law, and their decisions are presumed to be proper absent clear
evidence to the contrary. United States v. Armstrong, 517
U.S. 456, 464 (1996). Thus, to succeed on a claim of
vindictive prosecution, a defendant must establish that the
increased charge was Abrought solely to >penalize= [him] and
could not be justified as a proper exercise of prosecutorial
discretion.@ United States v. Goodwin, 457 U.S. 368, 380 n.12
(1982) (emphasis added). This can be accomplished in two
ways: through objective evidence showing actual
vindictiveness, or through evidence Aindicat[ing] a >realistic
likelihood of vindictiveness,=@ which gives rise to a
47
presumption that the government must then attempt to rebut.
United States v. Meyer, 810 F.2d 1242, 1245 (D.C. Cir. 1987)
(quoting Blackledge, 417 U.S. at 27). Slatten relies on the
latter, presumptive route.
In presumption cases, the Supreme Court has
distinguished between pre-trial and post-trial settings.
Goodwin, 457 U.S. at 381. In a pre-trial setting, Athe
prosecutor=s assessment of the proper extent of prosecution
may not have crystallized,@ so an increase in charges may be
the result of additional information or further consideration of
known information, rather than a vindictive motive. Id. The
routine exercise of many pre-trial rights also weakens any
inference of vindictiveness, i.e., that a prosecutor would
retaliate simply because a defendant sought a jury trial or
pleaded an affirmative defense. Id. On the other hand, a
post-trial increase in charges is unlikely to be based on new
information, and thus it is Amuch more likely to be improperly
motivated than is a pretrial decision.@ Id. For this reason, a
presumption of vindictiveness will Aautomatically@ arise
whenever charges are increased post-trial, but in the pre-trial
context, a defendant must provide additional facts sufficient to
show that Aall of the circumstances, when taken together,
support a realistic likelihood of vindictiveness.@ Meyer, 810
F.2d at 1245-46.
The parties dispute whether the first degree murder
indictment is properly characterized as occurring in a pre-trial
or post-trial setting. The government maintains that as a
factual matter the charging decision was unquestionably made
prior to Slatten=s trial, while Slatten maintains that it was more
akin to a post-trial decision because it followed a hotly
contested mandamus proceeding in which this Court chastised
the government for failing timely to reindict him. Slatten also
points out that this case was closely watched by U.S. and Iraqi
48
leaders, citing former Vice President Biden=s assurance to
former Iraqi President Talabani that the earlier Kastigar
dismissal would be appealed. Anthony Shadid, Biden Says
U.S. Will Appeal Blackwater Case Dismissal, N.Y. TIMES, Jan.
23, 2010. This Court has acknowledged that particularly in an
important, highly publicized case, a prosecutor Abeing but
human >may have a personal stake in [obtaining a] conviction
and a motivation to engage in self-vindication.=@ Safavian,
649 F.3d at 692 (quoting United States v. Stanfield, 360 F.3d
1346, 1362 (D.C. Cir. 2004)). Especially when compared to
the routine pretrial motions identified in Goodwin, 457 U.S. at
381, there can be little question that the extraordinary
mandamus grant here, followed by a rather sharply-worded
criticism in denying reconsideration, in a high-profile
prosecution with international ramifications no less, had far
greater potential to give rise to a vindictive motive. But these
unusual facts do not convert the pre-trial setting into a post-trial
one in which a presumption would automatically apply; rather
they constitute Aadditional facts@ that support the finding of a
presumption. Meyer, 810 F.2d at 1245B46.
Slatten=s other contentions, derived from the Court=s
analysis in Meyer, 810 F.2d at 1246B47, do not fare as well.
He maintains that he received disparate treatment from his co-
defendants, but he ignores that his co-defendants had no viable
limitations defense and were not similarly situated, as the
Meyer defendants were. See 810 F.2d at 1246. Next,
although the government had twice considered the facts and
twice charged manslaughter, Athe initial charges filed by a
prosecutor may not reflect the extent to which an individual is
legitimately subject to prosecution.@ Goodwin, 457 U.S. at
382. Here, the government=s decision in the superseding
indictment to charge Slatten alone in the death of Al-Rubia=y
indicates that it continued to develop facts after its initial
charging decision. But even where the government has full
49
knowledge of the facts, it can initially exercise its discretion to
bring lesser charges. E.g., United States v. Saltzman, 537 F.3d
353, 361 (5th Cir. 2008). Moreover, Slatten is incorrect that,
as in Meyer, A[t]he only relevant intervening event@ before the
charge increase was Slatten=s assertion of rights. Slatten’s Br.
21-22. Here, Slatten exercised his right to file a mandamus
petition and this Court granted it, nullifying the government=s
ability to proceed on the existing charges. Finally, the
government=s offer to charge manslaughter in exchange for
Slatten waiving his limitations defense was not improper. As
the district court found, Slatten was advised by competent
counsel and was free to accept or reject the government=s offer,
which was a permissible give-and-take. See Bordenkircher v.
Hayes, 434 U.S. 357, 363 (1978); see also Paradise v. CCI
Warden, 136 F.3d 331, 335 n.6 (2d Cir. 1998).
Still, although it is a close question, the unusual, high-
profile and potentially embarrassing context surrounding
Slatten=s mandamus petition could be viewed to Asupport a
realistic likelihood of prosecutorial vindictiveness.@ Meyer,
810 F.2d at 1246. In that situation, the burden would shift to
the government to provide any objective evidence showing a
non-retaliatory justification for the increased charge.
Safavian, 649 F.3d at 694. The government has met this
Aadmittedly minimal@ burden, id., pointing to this Court=s grant
of Slatten=s mandamus petition that left the government with
no alternative but to charge him with murder or else see Aa
heinous crime@ go unpunished. Appellee’s Br. 88 (quoting
Slatten, 22 F. Supp. 3d at 14). In closely analogous
circumstances, the Second Circuit found no vindictiveness
when a defendant successfully pursued a statute of limitations
defense in the state=s highest court, and the prosecution then
reindicted him for a capital charge not subject to any limitations
period. Paradise, 136 F.3d at 334, 336. As here, the capital
charge Awas simply the only charge available[] after the other
50
charges had been dismissed . . . as time barred,@ and the
government=s desire to see the crime punished Adoes not
amount to a constitutional violation.@ Id. at 336.
This does not mean, as amicus asserts, that prosecutors can
permissibly Aup the ante@ any time a defendant succeeds on
appeal. Amicus Br. 27. In many cases, the same charges will
remain available to the prosecution after a defendant=s
successful appeal, and any increase in the charges will still give
rise to the specter of vindictiveness. See Meyer, 810 F.2d at
1245B46. And even if the same charges are unavailable on
retrial, a defendant can still marshal any available evidence of
actual vindictiveness to show that the prosecution=s purported
desire to see the crime punished is mere pretext. Nor should
this result cause doubt about whether Slatten was punished for
exercising a legal right. Again, the Court relies little on the
government=s stated desire to see the crime punished, and
instead places dispositive weight on the intervening grant of
mandamus, as this Court has held that an adverse appellate
ruling can provide an objective basis for the prosecution=s new
charging decision. Safavian, 649 F.3d at 694. It is also
immaterial that the new charge was the result of the
prosecution=s initial mistake in allowing the limitations period
to run. See Paradise, 136 F.3d at 336 n.7. Slatten and amicus
urge that the government can only increase charges when,
Athrough no fault of its own,@ the government learns of new
information after the initial charging decision. United States
v. Jamison, 505 F.2d 407, 416B17 (D.C. Cir. 1974). But the
Supreme Court has rejected the Apresum[ption] that every
prosecutor is infallible.@ Goodwin, 457 U.S. at 382 n.14; see
also Paradise, 136 F.3d at 336 n.7. Finally, as the district
court ruled, the government was not required to state its
justification when it obtained the first-degree murder
indictment because Athe prosecutor is not required to sustain
any burden of justification@ until after the defendant comes
51
forward with evidence of vindictiveness. Goodwin, 457 U.S.
at 384 n.19.
With the presumption rebutted, Slatten=s vindictive
prosecution challenge fails because he does not offer any
evidence to support a finding of actual vindictiveness.
Safavian, 649 F.3d at 694. The district court reached the same
conclusion, albeit by considering the government=s objective
justification to rule out a presumption of vindictiveness at step
one, rather than to rebut it at step two. Otherwise, the substance
of its analysis is much the same as our own, and as such, we
hold that the district did not err, let alone clearly err, in rejecting
Slatten=s defense of prosecutorial vindictiveness.
VII. MOTION TO SEVER
We next turn to Slatten’s challenge to the district court’s
denial of his Rule 14 motion to sever his trial from that of a co-
defendant. Slatten argued for severance because he sought to
introduce exculpatory evidence—the co-defendant’s
admissions that he, not Slatten, initiated the Nisur Square
attack by firing on the white Kia—evidence inadmissible in a
joint trial with the co-defendant. See Kastigar v. United States,
406 U.S. 441, 458-61 (1972) (government cannot prosecute
declarant based on immunized statement). The district court
denied Slatten’s motion to sever, finding the co-defendant’s
admissions constituted inadmissible hearsay. We disagree.
Because the co-defendant’s admissions were vital to Slatten’s
defense and possessed sufficient circumstantial guarantees of
trustworthiness, we believe they were admissible under Federal
Rule of Evidence 807. Accordingly, because the district court
erroneously denied severance, we reverse Slatten’s first-degree
murder conviction—Count One of the superseding
indictment—and remand his case for a new trial.
52
A. Background
As we outlined earlier, Slatten’s first-degree murder
conviction arose from the killing of the driver of the white Kia.
As the Raven 23 convoy entered Nisur Square on September
16, 2007, shift leader Jimmy Watson gave the command to
“lock[] down” the area to aid the movement of other
Blackwater teams operating nearby. JA 1776, 1846-48, 1856-
57, 2351-52. With the help of Iraqi policemen, the Blackwater
convoy brought traffic in the Square to a halt, as was their usual
procedure. After the traffic stopped, shots rang out. The shots,
originating from the Raven 23 convoy, targeted and hit a white
Kia, shattering its windshield and striking its driver, Ahmed
Haithem Ahmed Al-Rubia’y, in the head. 6 General gunfire
then began as Raven 23 team members fired on Iraqi civilian
pedestrians in several directions in Nisur Square and the
surrounding area.
As noted, the government maintained that Slatten’s shot
was the match that ignited the Nisur Square firestorm—that
Slatten intentionally opened fire on the white Kia because of
an anti-Iraqi animus. See also Appellee’s Br. 103 (“The
evidence also showed that Slatten had both the intent and
6
On appeal, as at trial, the government has maintained that
“once Raven 23 was in the Square, ‘no car [was] moving.’”
Appellee’s Br. 12 (citing JA 1247-48). It argues that it was only after
Slatten, unprovoked, fired upon the white Kia that it “started to move
slowly forward” towards the convoy. Id. at 13. The defendants,
however, insist that the “white Kia sedan pulled out of a line of
stopped cars entering the circle from the south, and drove directly
towards the convoy.” Joint Appellants’ Br. 17. According to the
defense, it was only after the white Kia started moving that Slatten’s
co-defendant opened fire on the vehicle to stop its advance. Id. at 18-
19. We highlight this discrepancy to underscore the importance of
the co-defendant’s admissions to Slatten’s defense.
53
motive to open the firing in the Square. His hatred toward Iraqis
stood out, even among those who held such views.”). The
government insisted that the Nisur Square attack was part of
Slatten’s plan to “get[] payback for 9/11,” JA 2117, and the
white Kia presented him with the target for which he had been
waiting.
But in the hours and days following the Nisur Square
attack, it was another member of the Raven 23 team—a co-
defendant here—who said that he had fired the first shots at the
white Kia. SA 1, 4, 6-7. Just hours after the shooting, the co-
defendant was interviewed and debriefed by State Department
investigators operating in Baghdad. SA 1. Before his interview,
the investigators told the co-defendant that if he was “honest
and truthful, that nothing would be used against [him], and that
they were there to gather information not to be used in a
criminal setting.” SA 22. During his first debriefing, the co-
defendant told the investigators that he had “engaged and hit
the driver” of the white Kia sedan. SA 1. The investigators’
corresponding report states:
[T]he team came into and locked down the
circle. Traffic was very heavy, but responded to
their commands to stop. A white vehicle
approached the team at a high rate of speed and
would not stop despite [the co-defendant’s]
hand signals and throwing a water bottle. Other
civilians tried to waive the vehicle down, but it
still would not stop. [The co-defendant]
engaged and hit the driver.
SA 1. Two days later, on September 18, 2007, the co-defendant
signed a sworn written statement regarding the Nisur Square
attack. SA 3-5. As with his earlier statement, the co-
defendant’s September 18 statement was made with the
understanding that “neither [the co-defendant’s] statements nor
54
any information or evidence gained by reason of [his]
statements [could] be used against [him] in a criminal
proceeding, except that if [he] knowingly and willfully
provide[d] false statements or information, [he could] be
criminally prosecuted for that action under 18 United States
Code, Section 1001.” SA 3. In his second statement, the co-
defendant repeated his earlier statement:
As our motorcade pulled into the intersection I
noticed a white four door sedan driving directly
at our motorcade from the west bound lane. I
and others were yelling, and using hand signals
for the car to stop and the driver looked directly
at me and kept moving toward our motorcade.
Fearing for my life and the lives of my
teammates, I engaged the driver and stopped the
threat.
SA 4. On September 20, 2007, the co-defendant again spoke to
State Department investigators and with the same limited use
condition as obtained in his first two interviews. SA 6-7; 22-
23. The investigators’ report recounted the co-defendant’s
statement made at that time:
On the day of the incident . . . [the co-defendant]
was positioned just west of the police booth that
is located near the north end of the median south
of the Circle. A white car was moving north on
Jinub Street toward the motorcade, and [the co-
defendant] gave commands for the driver to
stop. The car did not stop, and [he] engaged it
with his M4. [The co-defendant] is not sure
whether he was the first one to fire during this
incident. He is not aware of any shots being
fired before his. The car kept moving straight
toward the motorcade without braking. [The co-
55
defendant] used one magazine of M4
ammunition to engage the white car.
SA 6-7.
Taken together, then, the co-defendant’s statements relate
a different version of the Nisur Square events from that
presented by the government at trial. The government’s case
against Slatten hinged on his having fired the first shots, his
animosity toward the Iraqis having led him to target the white
Kia unprovoked. See supra 40-44. The co-defendant’s
statements, however, strike at the heart of that theory and
instead point to the co-defendant, not Slatten, as the Blackwater
convoy member who first “engaged and hit the driver” of the
white Kia. SA 1.
At Slatten’s arraignment, the district court granted the
government’s motion to join Slatten’s trial with that of Liberty,
Heard and Slough. JA 388-91. Slatten asked the district court
to reconsider joinder on two grounds, insisting, first, that,
because of his need for a co-defendant’s testimony, severance
was essential so that the co-defendant could be called as a
witness for Slatten at the latter’s separate trial. See SA 42-43.
Further, if, in a joint trial, the co-defendant statements were
deemed admissible as exculpatory evidence as to Slatten, then
severance was appropriate to protect the co-defendant’s Fifth
Amendment right. SA 43.
The district court rejected both rationales and denied the
motion to sever. Regarding Slatten’s first argument, the district
court concluded that Slatten had failed to show a “reasonable
probability” that the co-defendant would be willing to testify at
a separate trial, as required by United States v. Ford, 870 F.2d
729, 731 (D.C. Cir. 1989) (when weighing appropriateness of
severance based on alleged need for co-defendant’s testimony,
court should consider, inter alia, “the likelihood that the co-
56
defendant will testify if the cases are severed”). SA 42-43. The
district court further found no constitutional problem in joining
Slatten’s and his co-defendant’s trials because the latter’s
“statements [were] . . . inadmissible hearsay.” SA 43. Slatten
challenges only the second ruling on appeal. See Slatten’s Br.
36-46.
B. Hearsay and Its Exceptions
Hearsay is an out-of-court statement that is inadmissible at
trial to establish the truth thereof. See FED. R. EVID. 801(c)
(defining hearsay); FED. R. EVID. 802 (hearsay generally
inadmissible). The hearsay rule is rooted in the belief that an
out-of-court statement lacks necessary assurances of veracity.
See Williamson v. United States, 512 U.S. 594, 598 (1994)
(“The hearsay rule . . . is premised on the theory that out-of-
court statements are subject to particular hazards.”). With any
statement, a “declarant might be lying; he might have
misperceived the events which he relates; he might have faulty
memory; [or] his words might be misunderstood or taken out
of context by the listener.” Id. To avoid these shortcomings,
our judicial system chooses in-court statements that can be
tested by “the oath, the witness’ awareness of the gravity of the
proceedings, the jury’s ability to observe the witness’
demeanor, and, most importantly, the right of the opponent to
cross-examine.” Id. Admitting hearsay would prevent
opposing parties, and our judicial system as a whole, from
using these checks. United States v. Evans, 216 F.3d 80, 85
(D.C. Cir. 2000) (“The problem with hearsay is that it deprives
the defendant of the opportunity to cross-examine the person
who uttered the statement at issue.”).
“Nonetheless, the Federal Rules of Evidence also
recognize that some kinds of out-of-court statements are less
subject to these hearsay dangers, and therefore except them
from the general rule that hearsay is inadmissible.” Williamson,
57
512 U.S. at 598. The enumerated exceptions apply to hearsay
that possesses certain guarantees of trustworthiness. See FED.
R. EVID. 803-04 (enumerating exceptions and exclusions to
hearsay rule).
On appeal, Slatten does not argue his co-defendant’s
statements fall outside the definition of hearsay. See FED. R.
EVID. 801(c). Indeed, he could not succeed if he did so argue—
Slatten acknowledges that he seeks to use his co-defendant’s
out-of-court statements to establish the truth thereof, that is,
that his co-defendant fired the first shots at the white Kia. See
Slatten’s Br. 36. Slatten does, however, challenge the district
court’s conclusions that his co-defendant’s statements do not
fit within any of three exceptions to the hearsay rule: 1) Rule
804(b)(3)’s statement against interest exception; 2) Rule
803(6)’s business record exception; and 3) Rule 807’s residual
hearsay exception. 7 SA 43-45.
7
Neither the district court nor the parties on appeal distinguish
among the co-defendant’s three separate statements—the September
16 report, the September 18 statement and the September 20 report—
for the hearsay analysis. See supra 53-55. This approach likely
reflects the fact that the content of the three statements is largely
overlapping. See SA 1, 4, 6-7. Nevertheless, two of the reports—the
September 16 report and the September 20 report—contain hearsay
within hearsay. Id. at 1, 6-7. The September 18 statement was
completed by the co-defendant himself so that, to be admissible, only
one “link” in the hearsay chain need fall within an exception: the
incorporation of the co-defendant’s statements in the report. As set
forth infra, we believe the September 18 statement is admissible
under Rule 807’s residual hearsay exception. See infra Part VII.B.3.
The September 16 and September 20 reports, however, were
completed by investigators to whom the co-defendant made his
statements. Id. These two reports thus have an additional “link” in
the hearsay chain: the transmission of the co-defendant’s statements
to the investigators and the agents’ incorporation of the statements
58
1. Standard of Review
Ordinarily, the Court reviews the exclusion of a hearsay
statement under the abuse of discretion standard. United States
v. Moore, 651 F.3d 30, 83 (D.C. Cir. 2011) (per curiam).
Nevertheless, for Rule 807, we have enunciated a slightly
different standard; namely, we should be “particularly hesitant
to overturn a trial court’s admissibility ruling under the residual
hearsay exception absent a definite and firm conviction that the
court made a clear error of judgment in the conclusion it
reached based upon a weighing of the relevant factors.” United
States v. North, 910 F.2d 843, 909 (D.C. Cir. 1990) (internal
quotation marks omitted) (quoting Balogh’s of Coral Gables,
Inc. v. Getz, 798 F.2d 1356, 1358 (11th Cir. 1986) (en banc)).
into their reports. But “[h]earsay within hearsay is not excluded by
the rule against hearsay if each part of the combined statements
conforms with an exception to the rule.” FED. R. EVID. 805. We
believe the first instance of hearsay—the transmission of the co-
defendant’s statements to the investigators—falls within Rule 807’s
residual hearsay exception. See infra Part VII.B.3. And the second
hearsay—the investigators’ incorporation of the co-defendant’s
statements into their reports—falls within Rule 803(8)’s public
records exception, which makes admissible a public record’s “factual
findings from a legally authorized investigation” so long as they are
offered “against the government in a criminal case” and “the
opponent does not show that the source of information or other
circumstances indicate a lack of trustworthiness.” See FED. R. EVID.
803(8); United States v. Warren, 42 F.3d 647, 657 (D.C. Cir. 1994)
(“[Rule 803(8)] appears to provide for admission of police officers’
statements in public records even in the absence of a demonstration
that the statements reflected the officers’ personal knowledge.”);
accord Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169 (1988)
(taking “[a] broad approach to admissibility under [Rule 803(8)]”).
59
Because “the legislative history of [Rule 807] indicates
that it should be applied sparingly,” we believe it appropriate
to engage in a Rule 807 analysis only if it is apparent that no
other exception renders a hearsay statement admissible. See
SEC v. First City Fin. Corp., 890 F.2d 1215, 1225 (D.C. Cir.
1989); accord United States v. Kim, 595 F.2d 755, 759-66
(D.C. Cir. 1979) (analyzing admissibility of statement under
Rule 803(6) before residual hearsay exception analysis).
Therefore, before discussing the residual hearsay exception, we
briefly turn to Slatten’s arguments that his co-defendant’s
statements are admissible under Rule 804(b)(3) and Rule
803(6).
2. Rule 804(b)(3) and Rule 803(6)
Rule 804(b)(3) provides an exception to the hearsay rule
if: “(1) the declarant [is] unavailable, (2) the statement [is]
against the declarant’s interest, and (3) corroborating
circumstances clearly indicate the trustworthiness of the
statement.” Moore, 651 F.3d at 82 (internal quotation marks
omitted); see FED. R. EVID. 804(b)(3). Although we agree with
Slatten that, at their joint trial, his co-defendant qualified as “an
unavailable witness,” see United States v. Harris, 846 F. Supp.
121, 124 n.6 (D.D.C. 1994) (witness “on the advice of counsel,
invoked his Fifth Amendment privilege against self-
incrimination and did not testify at trial . . . [a]s a result, he
became an unavailable witness”), and that his co-defendant’s
statements do possess indicia of trustworthiness, 8 see infra at
Part VII.B.3, Slatten could not show that his co-defendant’s
statements were so inculpatory that a reasonable person in the
8
In this respect, we disagree with the district court’s statement
that “the unreliable context under which the statements were given
surely does not ‘indicate [the statement’s] trustworthiness.’” SA 44;
see infra at Part VII.B.3.
60
latter’s position would have made the statements only if he
believed them to be true; his co-defendant’s statements were
immunized and, as a general matter, a self-defense claim is not
“clearly” against a declarant’s interest, see United States v.
Henley, 766 F.3d 893, 915 (8th Cir. 2014) (affidavit of
unavailable declarant “was not clearly against his own interest
because in it he claims he shot [the victim] in self defense”);
United States v. Shryock, 342 F.3d 948, 981 (9th Cir. 2003)
(“The district court did not abuse its discretion by excluding [a
declarant’s] statement that he shot the victims in self-defense
because the statement was exculpatory, and not against his
penal interest.”). Accordingly, it was not an abuse of discretion
to conclude, as the district court did, that the co-defendant’s
statements did not fit within Rule 804(b)(3)’s exception. See
FED. R. EVID. 804(b)(3).
Rule 803(6) provides an exception to the hearsay rule for
records that are, inter alia, “kept in the course of a regularly
conducted activity of a business.” FED. R. EVID. 803(6). Rule
803(6) does not support the admissibility of the co-defendant’s
statements because he himself was not acting in the regular
course of business when he made his statements to State
Department investigators. 9 United States v. Warren, 42 F.3d
647, 656 (D.C. Cir. 1994) (Rule 803(6) “allows admission of
9
During the trial, the district court focused on the fifth element
of Rule 803(6)’s test, finding that the “source of the information . . .
indicate[s] a lack of trustworthiness” because “the natural tendency
of the target of an investigation who is furnishing a compelled
statement following a shooting incident would be to provide ‘self-
serving exculpatory statements.’” SA 45. We disagree with the
district court’s assessment of the trustworthiness of the “source of
the information.” See infra Part.VII.B.3. Nonetheless, we “may
affirm on grounds other than those presented and relied on below.”
United States v. Lawson, 410 F.3d 735, 740 n.4 (D.C. Cir. 2005).
61
statements in [police] reports only if they reflect the maker’s
personal knowledge, or if they were reported to the maker,
directly or through others, by one who is himself acting in the
regular course of business, and who has personal knowledge”
(emphasis added) (internal quotation marks omitted)). A
“witness’[s] description of [an incident], recorded by [a public
official] in his report, is not made in the regular course of the
witness’[s] business and does not deserve the presumption of
regularity accorded a business record.” United States v. Smith,
521 F.2d 957, 964 (D.C. Cir. 1975). Having rejected Rule
804(b)(3)’s and Rule 803(6)’s applicability, we turn to Rule
807.
3. Residual Hearsay Exception
Using the United States v. North standard of review, we
consider Slatten’s argument that his co-defendant’s statements
are admissible under Federal Rule of Evidence 807 (“Rule
807”)—the residual hearsay exception. Rule 807 makes
admissible a statement otherwise violative of the hearsay rule
if the statement meets five criteria. First, the statement must
have “equivalent circumstantial guarantees of trustworthiness”
comparable to those found in Rule 803’s and Rule 804’s
enumerated hearsay exceptions. FED R. EVID. 807(a)(1).
Second, it must be “offered as evidence of a material fact.” Id.§ 807(a)(2). Third, the statement must be “more probative on
the point for which it is offered than any other evidence that the
proponent can obtain through reasonable efforts.” Id.
§ 807(a)(3). Fourth, “admitting it [must] . . . serve the purposes
of these rules and the interests of justice.” Id. § 807(a)(4). And
finally, the proponent of the statement must have given “an
adverse party reasonable notice of the intent to offer the
statement and its particulars, including the declarant’s name
and address, so that the party has a fair opportunity to meet it.”
Id. § 807(b).
62
The residual hearsay exception “was designed to
encourage the progressive growth and development of federal
evidentiary law by giving courts the flexibility to deal with new
evidentiary situations which may not be pigeon-holed
elsewhere.” United States v. Mathis, 559 F.2d 294, 299 (5th
Cir. 1977); see also Dallas Cty. v. Commercial Union Assoc.,
286 F.2d 388 (5th Cir. 1961). As the Federal Rules of Evidence
Advisory Committee noted, the enumerated hearsay exceptions
of Rules 803 and 804, “while they reflect the most typical and
well recognized exceptions to the hearsay rule, may not
encompass every situation in which the reliability and
appropriateness of a particular piece of hearsay evidence make
clear that it should be heard and considered by the trier of fact.”
FED. R. EVID. 803(24) (advisory committee’s note to 1974
enactment). 10
That said, we also recognize that the residual hearsay
exception is “extremely narrow and require[s] testimony to be
‘very important and very reliable.’” United States v.
Washington, 106 F.3d 983, 1001 (D.C. Cir. 1997) (per curiam)
(quoting Kim, 595 F.2d at 766); accord First City Fin. Corp.,
890 F.2d at 1225 (“[T]he legislative history of the [residual
hearsay] exception indicates that it should be applied
sparingly.”). Indeed, were Rule 807 to be liberally applied, the
exception might read out the rule. See Akrabawi v. Carnes Co.,
152 F.3d 688, 697 (7th Cir. 1998) (“We . . . narrowly constru[e]
the residual provision to prevent it from becoming the
10
As of 1997, Rule 807 is the successor provision to Rule
803(24) and Rule 804(b)(5). See FED. R. EVID. 807 (advisory
committee’s note to 1997 amendment) (“The contents of Rule
803(24) and Rule 804(b)(5) have been combined and transferred to
a new Rule 807. This was done to facilitate additions to Rules 803
and 804. No change in meaning is intended.”). Accordingly, our
precedent relating to the residual hearsay exceptions formerly set
forth in Rule 803(24) and Rule 804(b)(5) now applies to Rule 807.
63
exception that swallows the hearsay rule.”); Mathis, 559 F.2d
at 299 (“[T]ight reins must be held to insure that this provision
does not emasculate our well developed body of law and the
notions underlying our evidentiary rules.”). Thus, only in the
most “exceptional circumstances” does Rule 807 make
admissible a statement that does not fall within one of Rule
803’s or Rule 804’s enumerated hearsay exceptions. See Kim,
595 F.2d at 765-66; United States v. Phillips, 219 F.3d 404, 419
& n.23 (5th Cir. 2000) (“The [residual hearsay] exception is to
be used only rarely, in truly exceptional cases.” (internal
quotation marks omitted)).
We believe this case presents one of those exceptional
circumstances. Our analysis begins with Rule 807’s first
element—the requirement that the co-defendant’s statements
contain “equivalent circumstantial guarantees of
trustworthiness” to those ensured by the Rule 803 and Rule 804
hearsay exceptions. See FED R. EVID. 807(a)(1). In assessing
trustworthiness, we look to the “totality of circumstances . . .
that surround the making of the statement and that render the
declarant particularly worthy of belief”; and drawing parallels
from the enumerated hearsay exceptions, we must gauge
whether the declarant was “highly unlikely to lie.” Idaho v.
Wright, 497 U.S. 805, 819-20 (1990). As we have recognized
before, “in order to find [a] statement trustworthy, a court must
find that the declarant of the prior statement ‘was particularly
likely to be telling the truth when the statement was made.’”
Washington, 106 F.3d at 1002 (quoting United States v. Tome,
61 F.3d 1446, 1453 (10th Cir. 1995)); accord Rivers v. United
States, 777 F.3d 1306, 1314-15 (11th Cir. 2015) (“By requiring
hearsay admitted under the residual exception to have
circumstantial guarantees of trustworthiness that are like the
guarantees of the specific exceptions, Rule 807 is clearly
concerned, first and foremost, about whether the declarant
64
originally made the statements under circumstances that render
the statements more trustworthy.”).
Several of the circumstances surrounding the co-
defendant’s declarations indicate their reliability and manifest
that he was likely telling the truth at the time he made his
statements. See Washington, 106 F.3d at 1002. For one, during
his debriefing interviews with the State Department, the co-
defendant had “the incentive . . . to speak truthfully . . . .” See
United States v. Bailey, 581 F.2d 341, 349 (3d Cir. 1978)
(emphasis added). He was almost completely immunized when
he made his statements—he faced no criminal liability (absent
one exception discussed below) as a result of his providing the
investigators his account of the Nisur Square attack. See SA 1,
4, 6-7, 22-23. Immunity can indicate trustworthiness,
particularly if the immunized statements do not cast blame or
“divert attention” to another. See, e.g., Curro v. United States,
4 F.3d 436, 437 (6th Cir. 1993); see also United States v.
Henderson, 406 F. Supp. 417, 428 n.19 (D. Del. 1975) (“The
purpose of an immunity statute is to obtain truthful
information, most frequently regarding otherwise
undiscoverable offenses.”). But cf. United States v. Gomez–
Lemos, 939 F.2d 326, 333-34 (6th Cir. 1991) (expressing
skepticism that immunity makes trustworthy statement
“divert[ing] attention to another”). More importantly, the one
exception to the co-defendant’s immunity may have been an
even greater incentive encouraging his honesty; that is, he
faced criminal liability under 18 U.S.C. § 1001 if he made a
materially false statement to the investigators and he expressly
acknowledged that he could be so prosecuted. See SA 3 (“I
further understand . . . that if I knowingly and willfully provide
false statements or information, I may be criminally prosecuted
for that action under 18 United States Code, Section 1001.”);
SA 22-23 (co-defendant testified that his understanding was
that if he was “honest and truthful, that nothing would be used
65
against [him]. . . .” (emphasis added)). We have previously
concluded that the threat of 18 U.S.C. § 1001 liability bolsters
the trustworthiness of a declaration for the residual hearsay
exception. First City Fin. Corp., 890 F.2d at 1225 (affirming
district court’s application of residual hearsay exception where,
inter alia, statement was “subject to criminal prosecution under
18 U.S.C. § 1001”); see United States v. Int’l Bhd. of
Teamsters, Chauffeurs, Warehousemen & Helpers of Am.,
AFL-CIO, 964 F.2d 1308, 1312-13 (2d Cir. 1992) (hearsay
statement was reliable because, inter alia, declarants “faced
possible criminal sanctions for making false statements” under
18 U.S.C. § 1001).
Additional factors point to the trustworthiness of the co-
defendant’s statements. He “consistently reported the essential
details of [his] story . . . over the course of multiple
[interviews]” on September 16, see SA 1, September 18, see
SA 4, and September 20, see SA 6-7. See Al Alwi v. Obama,
653 F.3d 11, 19 (D.C. Cir. 2011). Consistency supports the
reliability of his multiple statements and, consequently, his
veracity. See United States v. Bumpass, 60 F.3d 1099, 1102
(4th Cir. 1995) (listing consistency of declarant’s statements as
a factor in assessing trustworthiness under Rule 804(b)(3)).
Other circuits have reached the same conclusion in applying
the Rule 807 exception. See United States v. Harrison, 296
F.3d 994, 1005 (10th Cir. 2002) (noting, in Rule 807 analysis,
“the consistency of the declarant’s statements” is “a factor that
we find particularly persuasive”).
The record also contains evidence “corroborating the
veracity of the statement[s].” See Rivers, 777 F.3d at 1315
(quoting Bailey, 581 F.2d at 349) (naming corroboration of
veracity of statements as factor to be considered in assessing
guarantee of truthfulness under Rule 807); United States v.
Hall, 165 F.3d 1095, 1110-11 (7th Cir. 1999) (in gauging
trustworthiness of statement under residual hearsay exception,
66
corroboration of declarant’s statement, inter alia, is
considered). Iraqi Police Officer Ali Ghalaf Salman Mansur
Al-Hamidi was “within feet” of the Blackwater convoy in
Nisur Square on the day of the attack. JA 1248. Al-Hamidi
testified that the Raven 23 team “started throwing bottles of
water” in order to stop traffic. JA 1247-48; accord SA 1 (co-
defendant stated that he had “throw[n] a water bottle” to stop
traffic). Additionally, Al-Hamidi agreed that, from his
proximity to the convoy, he was “100 percent certain” that a
man in the co-defendant’s precise position fired the first
shots. 11 JA 1270. Al-Hamidi’s partner, Sarhan Dheyab Abdul
Monem, also testified that, from his “very close” vantage point
“about three to four meters away from [the] armored cars,” he
also witnessed the first shots coming from the co-defendant’s
precise position and “not from the holes or the windows that
are in the [Raven 23] vehicles.” JA 797. Blackwater convoy
member Jeremy Krueger also provided corroboration,
testifying that the first shots he heard in Nisur Square sounded
like “5.56 rounds,” the co-defendant’s ammunition, not 7.62
rounds, Slatten’s ammunition. JA 2302-03. Collectively,
then, this evidence corroborates the co-defendant’s statements
that he “engaged and hit the driver,” of the white Kia, see SA
1, and was unaware “of any shots being fired before his,” see
SA 7.
We find that Rule 807’s remaining requirements are also
met; indeed, the government raises no dispute in this respect on
appeal. There is no doubt that Slatten seeks to offer his co-
defendant’s statements “as evidence of a material fact.” FED.
R. EVID. 807(a)(2). That is, Slatten seeks to introduce the
statements to bolster his defense that his co-defendant—not
he—fired the first shots at the white Kia. See Slatten’s Br. 42.
11
As noted earlier, Slatten sat inside the armored command
vehicle; his co-defendant did not. JA 3847.
67
After thorough review of the record, we are not aware of
evidence “more probative on the point for” which Slatten seeks
to admit his co-defendant’s statements. 12 See FED. R. EVID.
807(a)(3). The co-defendant’s statements contradict the core of
the homicide count against Slatten, charging him with
“willfully, deliberately, maliciously, and with premeditation
and malice aforethought, [unlawfully killing] the driver of a
white Kia sedan.” JA 383. Indeed, the co-defendant
acknowledged that he was “not aware of any shots being fired
before his,” SA 7, and that he “engaged the driver” to respond
to the active threat posed by the white Kia, SA 4. We also
believe that “admitting [the co-defendant’s statements]
serve[s] the purposes of [the federal evidentiary] rules and the
interests of justice.” FED. R. EVID. 807(a)(4). Allowing the jury
to weigh the statements—to determine their weight, if any, as
against the evidence incriminating Slatten—advances the
Federal Rules of Evidence’s goal of “ascertaining the truth and
securing a just determination.” Id. § 102. Finally, the record
demonstrates that Slatten gave the government “reasonable
notice of [his] intent to offer the statement[s].” Id. § 807(b).
In finding Rule 807’s residual hearsay exception
inapplicable to the co-defendant’s statements, the district court
relied on two points: 1) its determination that the statements
lacked “equivalent circumstantial guarantees of
trustworthiness” because the co-defendant “provided his
statements under the specter of dismissal from his position, or
even criminal penalty,” and 2) its belief that Slatten had no
additional guarantees of trustworthiness. SA 44. Regarding the
first point, the only criminal penalty that the co-defendant faced
was 18 U.S.C. § 1001 false statement liability, a factor that
weighs in favor (not against) the trustworthiness of the
12
It is an “uncontroversial observation that many confessions
are powerful evidence.” See Premo v. Moore, 562 U.S. 115, 130
(2011).
68
statements. See First City Fin. Corp., 890 F.2d at 1225
(application of residual hearsay exception appropriate where,
inter alia, statement was “subject to criminal prosecution under
18 U.S.C. § 1001”). Regarding the second, Slatten possessed
additional guarantees of the trustworthiness of his co-
defendant’s statements given their consistent repetition and
factual corroboration. See supra at 65-66.
In sum, we are left with a “definite and firm conviction”
that the district court clearly erred in excluding the co-
defendant’s statements as inadmissible hearsay. See North, 910
F.2d at 909; see also United States v. Sanchez-Lima, 161 F.3d
545, 547-48 (9th Cir. 1998) (reversing district court’s refusal
to admit statements under Rule 807 where, inter alia, the
statements in question were made “under oath and subject to
the penalty of perjury,” were made voluntarily, were based “on
facts within [the declarants’] own personal knowledge” and
“did not contradict any of their previous statements to
government agents and defense investigators”). Moreover,
because of the critical nature of the co-defendant’s statements,
we believe their exclusion had a “substantial and injurious
effect or influence in determining the jury’s verdict” and was
therefore not harmless error. See United States v. Mahdi, 598
F.3d 883, 892 (D.C. Cir. 2010) (“[E]rror is harmless unless it
has substantial and injurious effect or influence in determining
the jury’s verdict . . . .” (internal quotation marks omitted)).
Having found the co-defendant’s statements admissible, we
leave it to the “jury [to] . . . make the ultimate determination
concerning the truth of the statements” in light of all of the
evidence. United States v. Price, 134 F.3d 340, 348 (6th Cir.
1998).
In view of our conclusion that the co-defendant’s
statements were admissible, we return to Slatten’s motion to
sever his trial from that of the co-defendant. We review the
district court’s ruling on a motion to sever under the abuse of
69
discretion standard as Federal Rule of Criminal Procedure 14
“leaves the determination of risk of prejudice and any remedy
that may be necessary to the sound discretion of the district
courts.” Zafiro v. United States, 506 U.S. 534, 541 (1993). That
said, the district court recognized that the severance issue here
largely hinged on the admissibility of the co-defendant’s
statements; in fact, it expressly acknowledged the
government’s concession that “[i]f admissible, [the co-
defendant’s] Garrity statements would justify severance of
Slatten’s case from [the former’s] case in deference to [the co-
defendant’s] Fifth Amendment rights as enunciated in
Kastigar.” SA 43. There is no record indication that the
government has changed its position on this point.
The Supreme Court has instructed that “a district court
should grant a severance . . . if there is a serious risk that a joint
trial would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable
judgment about guilt or innocence” such as when “essential
exculpatory evidence that would be available to a defendant
tried alone were unavailable in a joint trial.” Zafiro, 506 U.S.
at 539. Because joinder of Slatten’s and his co-defendant’s trial
rendered the latter’s otherwise admissible statements—
“essential exculpatory evidence,” id.—unavailable to Slatten,
it was an abuse of discretion to deny Slatten’s motion to sever.
Accordingly, we reverse Slatten’s conviction on Count One
(first-degree murder) and remand for a new trial thereon.
VIII. EIGHTH AMENDMENT
Slough, Liberty and Heard also claim the application of 18
U.S.C. § 924(c)’s mandatory 30-year sentence to their
convictions violates the Eighth Amendment’s prohibition
against cruel and unusual punishment. We review this
question de novo. United States v. Said, 798 F.3d 182, 196
70
(4th Cir. 2015); Pharaon v. Bd. of Governors of Fed. Reserve
Sys., 135 F.3d 148, 157 (D.C. Cir. 1998).
Under 18 U.S.C. § 924(c)(1)(B)(ii), anyone who uses a
machine gun or a destructive device during and in furtherance
of a crime of violence is subject to a mandatory sentence of no
less than thirty years. Here, the jury found defendants Slough
and Heard violated Section 924(c) by discharging machine
guns and destructive devices during the Nisur Square
shootings, and it found Liberty violated Section 924(c) by
discharging a machine gun during the same attack. In
response to these findings, Slough, Heard and Liberty were
each sentenced to imprisonment for thirty years for their
Section 924(c) conviction plus one day for their remaining
voluntary manslaughter and attempted voluntary manslaughter
convictions. They now challenge their sentences as being
cruel and unusual punishments because the sentences are
“unconstitutionally rigid and grossly disproportionate.” Joint
Appellants’ Br. 110. We conclude the mandatory 30-year
sentence imposed by Section 924(c) based solely on the type of
weapons Slough, Heard and Liberty used during the Nisur
Square shooting is grossly disproportionate to their culpability
for using government-issued weapons in a war zone. We
therefore also conclude these sentences violate the Eighth
Amendment and remand for resentencing.
A. Proportionality
The Eighth Amendment prohibits the infliction of “cruel
and unusual punishments.” U.S. CONST. amend. VIII.
Central to this prohibition is the requirement that the
punishment for crime “be graduated and proportioned to the
offense.” Graham v. Florida, 560 U.S. 48, 59 (2010).
However, this proportionality principle is narrow, and it only
forbids “extreme sentences that are grossly disproportionate to
71
the crime.” Harmelin v. Michigan, 501 U.S. 957, 1001 (1991)
(Kennedy, J., concurring in part and concurring in judgment).
There are two types of Eighth Amendment challenges to
sentences: 1) challenges to sentences as applied to an
individual defendant based on “all the circumstances in a
particular case” and 2) categorical challenges to sentences
imposed based on the nature of the offense or the
“characteristics of the offender.” See Graham, 560 U.S. at59–61. Slough, Liberty and Heard assert their sentences are
disproportionate both as applied to their situations individually
and categorically to all defendants who have discharged
government-issued weapons in a war zone. We begin by
addressing the as-applied challenges.
When addressing an as-applied challenge, courts begin
“by comparing the gravity of the offense and the severity of the
sentence” based on “all of the circumstances of the case.” Id.
at 59, 60. When engaging in this comparison, courts are to
give “substantial deference to the broad authority that
legislatures necessarily possess in determining the types and
limits of punishments for crimes.” Solem v. Helm, 463 U.S.
277, 290 (1983). Also, the imposition of a severe mandatory
sentence does not in itself make a sentence unconstitutional.
See Harmelin, 501 U.S. 994 (“Severe, mandatory penalties
may be cruel, but they are not unusual in the constitutional
sense.”); see also id. at 1006–07 (Kennedy, J., concurring in
part and concurring in judgment) (“We have never invalidated
a penalty mandated by a legislature based only on the length of
sentence . . . .”). Thus, courts should be “reluctant to review
legislatively mandated terms of imprisonment,” and
“successful challenges to the proportionality of particular
sentences should be exceedingly rare.” Hutto v. Davis, 454
U.S. 370, 374 (1982) (per curiam). However, the unusual
circumstances of this case make it one of those “exceedingly
rare” instances.
72
We begin by evaluating the gravity of the defendants’
crime. When evaluating the severity of a crime, we consider
“the harm caused or threatened to the victim or society and the
culpability [and degree of involvement] of the [defendant].”
See Solem, 463 U.S. at 292. When examining a defendant’s
culpability, the Court may look to the defendant’s intent and
motive in committing the crime. See id. at 293. The Court
may also consider the defendant’s criminal history. See
Rummel v. Estelle, 445 U.S. 263, 276 (1980).
Here, we believe it is important to distinguish between the
predicate crimes of violence for which Slough, Heard and
Liberty were convicted and the conviction under Section
924(c) that carries with it a mandatory 30-year sentence. We
agree with the district court that the actions of these defendants,
which killed fourteen Iraqi civilians and injured seventeen
others, constitute very serious offenses. We also agree the use
of automatic weapons or explosives during a crime of violence
typically does increase the severity of that crime. Moreover,
under normal circumstances, we would be “reluctant to review
[Congress’s] legislatively mandated terms of imprisonment.”
Hutto, 454 U.S. at 374. However, we do not believe such
deference is owed when a statute’s application only
tangentially relates to Congress’s purpose for creating the
statute in the first place. See Gonzalez v. Duncan, 551 F.3d
875, 884–86 (9th Cir. 2008) (holding the application of a
statute to a defendant that was only tangentially related to the
legislature’s reason for creating the law undermined the gravity
of the offense).
The Supreme Court has described Section 924(c)’s basic
purpose as an effort to combat the “dangerous combination” of
“drugs and guns.” Smith v. United States, 508 U.S. 223, 240
(1993). For this reason, the text of the statute applies to any
73
person who “uses or carries a firearm” “during and in relation
to any crime of violence or drug trafficking crime.” 18 U.S.C.
§ 924(c)(1)(A). Furthermore, the Supreme Court has
recognized Section 924(c) was created “‘to persuade the man
who is tempted to commit a Federal felony to leave his gun at
home.’” Muscarello v. United States, 524 U.S. 125, 132
(1998) (quoting Representative Poff, the chief legislative
sponsor of Section 924(c)); see also Busic v. United States, 446
U.S. 398, 405 (1980) (describing Representative Poff’s
comments as “crucial material” in interpreting the purpose of
Section 924(c)). Thus, precedent clarifies Section 924(c)
applies against those who intentionally bring dangerous guns
with them to facilitate the commission of a crime.
None of these concerns are remotely implicated by this
case. On the day of the Nisur Square attack, Slough, Heard
and Liberty were providing diplomatic security for the
Department of State in Iraq. As part of their jobs, they were
required to carry the very weapons they have now been
sentenced to thirty years of imprisonment for using. While we
acknowledge some courts have held the text of 924(c) is broad
enough to allow the statute to be applied against individuals
using government-issued weapons while on duty, see, e.g.,
United States v. Ramos, 537 F.3d 439, 457 (5th Cir. 2008)
(upholding the application of Section 924(c) against Border
Patrol agents who shot a fleeing felon); see also S. Rep. No.
98-225, at 314 n.10 (1983), reprinted in 1984 U.S.C.C.A.N.
3182, 3,492 (stating that “persons who are licensed to carry
firearms and abuse that privilege by committing a crime with
the weapon, as in the extremely rare case of the armed police
officer who commits a crime, are as deserving of punishment
as a person whose possession of the gun violates a state or local
ordinance”), there is no evidence Congress intended for
Section 924(c) to be applied against those required to be armed
74
with dangerous guns who discharge their weapons in a war
zone.
When Congress amended Section 924(c) in 1984 so it
would also apply against those who were licensed to carry
firearms, compare 18 U.S.C. § 924(c) (1982), with Pub. L. No.
98-473, 98 Stat. 1837 (1984), MEJA did not exist. In fact,
Congress did not create MEJA until over a decade later in 2000.
See Pub. L. 106-523, 114 Stat. 2488 (2000). Because
Congress had not yet considered the extra-territorial
application of federal criminal law to employees of the Armed
Forces at all, Congress could not have possibly contemplated
applying Section 924(c) against private contractors providing
diplomatic security for a federal agency. Thus, combining the
public interests Section 924(c) was intended to advance with
the lack of evidence Congress ever intended the law to apply
against military employees in a war zone, we conclude this case
does not involve the usual legislative judgments on the severity
of a crime that would cause us to defer to Congress’s
determinations regarding the punishments for crimes.
This conclusion is further supported by the events
preceding the Nisur Square shootings. When the Raven 23
convoy arrived in Nisur Square on the day of the incident, it
was responding to the explosion of a car bomb near a U.S.
diplomat under its protection. Accordingly, this is not a case
where the defendants went out with the intention of committing
a crime and brought their weapons with them to assist them in
the commission of that crime. This is not even a case where
these three defendants acted recklessly by inserting themselves
into a dangerous situation in a place filled with innocent
bystanders. The decision to go to Nisur Square was made by
Watson, the Raven 23 shift leader, and once he decided to
ignore his orders and proceed to Nisur Square, they had no
choice but to follow their commander’s lead. Once they
75
arrived in Nisur Square, they found themselves in a crowded
environment, where the ability to differentiate between
civilians and enemies was significantly diminished. The
tragedy that unfolded shortly after their arrival in Nisur Square
owed more to panic and poor judgment than to any coordinated
plan to murder Iraqi civilians. While we agree the defendants
are responsible for their exaggerated response to perceived
threats, the crime’s severity and Defendant’s culpability flow
from the harm caused by their hypervigilance, not from the use
of weapons which would have been appropriate had they not
misperceived the threat.
The government argues Slough, Heard and Liberty could
have used less deadly weapons, such as pistols or the semi-
automatic setting on their rifles, in response to perceived
threats. But this argument mistakenly applies the “20/20
vision of hindsight,” an approach the Supreme Court has
explicitly rejected when evaluating a police officer’s use of
force. See Graham v. Connor, 490 U.S. 386, 396 (1989).
Instead, this Court applies an analysis that “‘allow[s] for the
fact that police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain and
rapidly evolving—about the amount of force that is necessary
in a particular situation.’” Robinson v. Pezzat, 818 F.3d 1, 8
(D.C. Cir. 2016) (quoting Connor, 490 U.S. at 396–97). If
courts are to give police officers this type of leeway in making
split-second judgments about which of their tools to use based
upon tense and uncertain situations, we must give an even
greater amount of latitude to decisions made by those
supporting our military overseas in a hostile environment.
Here, we believe it is imprudent to second-guess the
defendants’ choice of firearm in responding to what they
believed to be an approaching car bomb or enemy fire. We
emphasize they are still culpable for their decision to fire at all,
as encompassed by their manslaughter and attempted
76
manslaughter convictions, but the type of weapon used should
not be more determinative of their punishments than the death
and destruction that resulted from their decisions to fire.
We also find it highly significant that none of the
defendants sentenced under Section 924(c) have any prior
convictions. Although the government is free to impose
harsh, mandatory penalties for first-time offenders, see
Harmelin, 501 U.S. at 994–95, a regime of strict liability
resulting in draconian punishment is usually reserved for
hardened criminals. As the Supreme Court has noted,
recidivism is a legitimate consideration to support the
imposition of a more severe penalty. See Ewing v. California,
538 U.S. 11, 29 (2003) (“In weighing the gravity of [the
defendant’s] offense, we must place on the scales not only his
current felony, but also his . . . history”); Rummel, 445 U.S. at
276 (stating legislatures have a legitimate interest in dealing
more harshly with recidivists). In fact, in virtually every
instance where the Supreme Court has upheld the imposition
of a harsh sentence for a relatively minor nonviolent crime for
an as-applied challenge, it has done so in the context of a
recidivist criminal. 13 Here, none of these defendants have a
13
See Rummel, 445 U.S. at 284 (upholding a mandatory
sentence of life with the possibility of parole for obtaining $120.75
under false pretenses under Texas’s recidivist statute); Ewing, 538
U.S. at 30–31 (upholding a sentence of 25 years to life under
California’s “three strikes law” for the theft of golf clubs); Hutto, 454
U.S. at 370–74 (per curiam) (upholding a recidivist’s sentence of 40
years for possession with intent to distribute nine ounces of
marijuana); Lockyer v. Andrade, 538 U.S. 63, 73–77 (2003) (denying
habeas relief for a sentence of 50 years to life under California’s
“three strikes law” for the theft of $153.54 worth of videotapes); cf.
Solem, 463 U.S. at 296–97 (holding the existence of a criminal record
filled with “relatively minor” offenses weighs against a state
imposing a more severe penalty against a recidivist).
77
criminal record at all. The district court noted they were
“good young men who [had] never been in trouble.” JA 3330.
It also stated they had “served their country honorably in the
military and nothing in their backgrounds suggest[ed] that they
would have ever committed offenses such as these.” Ibid.Based upon these observations and the distinctions made by the
Supreme Court, we hold the defendants’ clean criminal records
weigh against the imposition of a harsh, mandatory sentence.
Additionally, the imposition of a mandatory 30-year
sentence through Section 924(c) fails to truly account for the
culpability of Slough, Heard and Liberty individually.
Because these men were not convicted of the same counts, it
makes little sense for the sentences to be identical. See Koon
v. United States, 518 U.S. 81, 113 (1996) (stating a sentencing
judge must “consider every convicted person as an individual
and every case as a unique study in the human failings that
sometimes mitigate, sometimes magnify, the crime and the
punishment to ensue”). Thus, a more prudent way to sentence
would be to examine each defendant as an individual, taking
into account all of the aggravating and mitigating factors
typically considered by sentencing judges. See 18 U.S.C.
§ 3553. While it does appear the sentencing judge might have
been inclined to align sentences more closely to the
circumstances, his hands were tied by Section 924(c)’s
mandatory minimum. Thus, we do not know if he would have
imposed the same sentence on each of these three defendants
or if he would have allowed for the differing number of victims
and the presence of other mitigating factors, like the existence
of post-traumatic stress disorder at the time of the shootings, to
lead to a reduced sentence for some of them. Because the
mandatory sentence hindered the sentencing judge’s ability to
individually examine the severity of each defendant’s crime,
we find the one-size-fits-all nature of these sentences troubling.
78
Turning now to the severity of the sentence, we consider
the actual severity of the penalty, not the penalty’s name. In
the context of life sentences, the Supreme Court has
acknowledged there is an important distinction between a life
sentence with the possibility of parole and a life sentence
without the possibility of parole. See Rummel, 445 U.S. at280–81; Solem, 463 U.S. at 297. Thus, we evaluate Slough,
Heard and Liberty’s sentences based upon the amount of time
they will actually spend in prison and the possibility of early
release.
Here, there is no doubt that a mandatory, 30-year sentence
is a severe sanction. United States v. Spencer, 25 F.3d 1105,
1110 (D.C. Cir. 1994) (“Thirty years’ imprisonment is, by
anyone’s lights, a severe sanction.”). With the exception of
the death penalty or a life sentence, a 30-year sentence is the
harshest mandatory sentence the federal criminal law can
impose on a first-time offender. The severity of these
sentences is amplified by the fact that there is no possibility of
parole in the federal system. See Pub. L. No. 98-473, 98 Stat.
1837 (1984). Even if we were to presume the defendants
would receive fifty-four days of good-time credit each year for
the duration of their incarceration, see 18 U.S.C. § 3624(b)(1),
the most their sentences could possibly be reduced is
approximately four years. Thus, even with the maximum
amount of good-time credit available, these sentences are
among the harshest in existence for first-time offenders.
Combining all of these considerations, we conclude
Slough, Heard and Liberty’s mandatory 30-year sentences
create the “rare case” that “leads to an inference of gross
disproportionality.” Graham, 560 U.S. at 60. We do not
believe their culpability in this case—based solely on using
weapons they were required to carry when performing
diplomatic security missions—is on par with the typical
79
culpability of defendants convicted under Section 924(c), and
we are troubled by the imposition of such a harsh mandatory
sentence without any individualized examination of each
defendant’s underlying crimes.
B. Comparable Sentences
Typically, once we have found an inference of gross
disproportionality, we would “compare the defendant’s
sentence with the sentences received by other offenders in the
same jurisdiction and with the sentences imposed for the same
crime in other jurisdictions.” Id. Here, such a comparison is
of little value because Section 924(c)’s penalty for using a
machine gun or explosive device is the same for all
defendants—thirty years’ imprisonment. This case also
presents a unique challenge for comparison purposes because
of its unusual facts. The parties have not identified a single
instance in which a defendant was convicted and sentenced
under Section 924(c) in a manner similar to this case.
Moreover, the closest this Court has come to locating a similar
situation is United States v. Drotleff, where two Department of
Defense contractors were convicted of a single count of
involuntary manslaughter for killing two civilians and
sentenced to 30 and 37 months of imprisonment. 497 F.
App’x 357, 358–59 (4th Cir. 2012) (per curiam); see also
United States v. Drotleff, No. 10cr00001-002, 2011 WL
2610190 (E.D. Va. June 21, 2011); United States v. Cannon,
No. 2:10cr00001-001, 2011 WL 2610188 (E.D. Va. June 30,
2011). The case is similar because—like the Nisur Square
attack—the shooting began when a vehicle began driving
towards the contractors in what they perceived to be a
threatening manner. Drotleff, 497 F. App’x at 358–59. Also
like this case, the government charged the contractors with
violating Section 924(c). United States v. Cannon, 711 F.
Supp. 2d 602, 603 (E.D. Va. 2010). However, the similarities
80
end there because the number of victims was substantially
lower and because the jury did not convict on the Section
924(c) counts. See Drotleff, 497 F. App'x at 359. Thus, it
appears this case presents a novel application of Section 924(c)
to government contractors in a war zone, and direct
comparisons to another case are therefore not possible.
Notwithstanding the uniqueness of this case, we find it
helpful to examine the other instances in which Section 924(c)
has been applied against people who were licensed to carry the
weapon that they were later convicted of carrying or using. In
doing so, the Court has located numerous instances in which
the government has applied Section 924(c) against law
enforcement personnel. The overwhelming majority of cases
in which the statute has been applied against those carrying
government-issued firearms have involved instances in which
the defendant made a conscious decision to commit a crime
outside the scope of their duties as police. See, e.g., United
States v. Washington, 106 F.3d 983, 1010 (D.C. Cir. 1997)
(applying Section 924(c) to police officers carrying
government-issued firearms while engaging in drug
trafficking); United States v. Guidry, 456 F.3d 493, 507–09
(5th Cir. 2006) (applying Section 924(c) against a police officer
who carried a government-issued firearm while committing
sexual assault). However, there are also instances where
Section 924(c) has applied against law enforcement officials
who commit a crime of violence while on duty. See Ramos,
537 F.3d at 457 (applying Section 924(c) against a police
officer who shot a felon without justification); United States v.
Williams, 343 F.3d 423, 429–34 (5th Cir. 2003) (affirming a
Section 924(c) conviction against an officer who shot a fleeing
suspect in the back after he had surrendered); United States v.
Winters, 105 F.3d 200, 202 (5th Cir. 1997) (affirming the
conviction of a prison guard convicted under Section 924(c) for
81
hitting a recaptured inmate in the back of the head with his
service revolver after the inmate had attempted to escape).
While the government urges us to treat this case identically
to the cases discussed above, this argument overlooks the
different environments in which domestic law enforcement and
private international security contractors live and the different
functions they serve. Law enforcement officers are a vital part
of any community. They live and work among the
community’s citizens and are tasked with performing a variety
of functions, including “reduc[ing] the opportunities for the
commission of some crimes . . . , aid[ing] individuals who are
in danger of physical harm, assist[ing] those who cannot care
for themselves, resolv[ing] conflict, creat[ing] and
maintain[ing] a feeling of security in the community, and
provid[ing] other services on an emergency basis.” 3 WAYNE
R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE
FOURTH AMENDMENT § 6.6 (5th ed. Oct. 2016). While they
may sometimes be called upon to use lethal force in the line of
duty, it is not a routine part of their job and is instead reserved
only for situations in which a suspect poses a substantial risk to
law enforcement personnel or the community. See Tennessee
v. Garner, 471 U.S. 1, 11 (1985) (stating law enforcement
officials must have “probable cause to believe that the suspect
poses a threat of serious physical harm, either to the officer or
to others” before using deadly force).
Conversely, private security contractors work in places
that are “extremely dangerous” because of “conflicts, wars,
political unrest, and . . . terrorist activity.” JA 3861.
Accordingly, they live and work in a hostile environment in a
war zone in which the enemy could strike at any moment.
Because of this ever-present danger, they are often required to
use lethal force. In fact, using lethal force to eliminate hostile
forces is a central component of assuring the safety of any
82
American personnel they are tasked with protecting. They are
issued powerful weapons to assist them in performing this task.
Thus, because these three defendants were living in a much
more dangerous environment and performing a substantially
different function than law enforcement officials, we find the
government’s attempts to analogize this case to other
applications of Section 924(c) to be unpersuasive.
Because comparisons to other applications of Section
924(c) are of little value, we now broaden our comparison to
encompass other types of crimes that bear similar types of
penalties. We are mindful of the fact that each crime is unique
and that it is difficult to quantify the harm done by a crime, but
the Supreme Court has recognized courts are competent to
make these kinds of determinations “on a relative scale.”
Solem, 463 U.S. at 292. In doing so, we consider factors
traditionally applied by courts, such as whether the crime
involves violence, the gravity of the harm caused by the crime
and the intent of the offender. See id. at 292–94. “If more
serious crimes are subject to the same penalty, or to less serious
penalties, that is some indication that the punishment at issue
may be excessive.” Id. at 291; see also Weems v. United
States, 217 U.S. 349, 380–81 (1910) (listing more severe
crimes subject to less serious penalties than the offense at
issue).
Here, Slough, Heard and Liberty each received a 30-year
sentence based on their use of government-issued weapons
during the Nisur Square attack. While their crimes obviously
did involve violence, we note the gravity of the harm done
would be essentially the same regardless of whether they used
an automatic rifle, a semi-automatic rifle, or a pistol.
Moreover, neither their conviction under Section 924(c) nor
their underlying crimes of violence were intentional. The
defendants used weapons their profession required them to
83
carry, and their convictions for voluntary manslaughter
involved extreme recklessness and gross misjudgments, not an
intention to kill innocent people.
Comparing their sentences to other federal crimes with
similar sentences for first-time offenders, we find it significant
that other crimes with comparable sentences involve the
intentional commission of serious crimes. For example, the
federal criminal code contains numerous 30-year sentences for
first-time offenses involving the intentional infliction of harm
to children. See, e.g., 18 U.S.C. § 2251A(a) (30-year sentence
for a parent or legal guardian who sells his child for the purpose
of sexual exploitation); id. § 2251A(b) (30-year sentence for
purchasing a child for the purpose of sexual exploitation); id.
§ 2241(c) (30-year sentence for engaging in a sexual act with a
child under the age of twelve); id. § 3559(f)(1) (30-year
sentence for murdering a child under eighteen). Likewise, a
person who causes or conspires to cause damage to or
destruction of a motor vehicle carrying high-level radioactive
waste or spent nuclear fuel with intent to endanger the safety
of others will receive an identical 30-year sentence. 18 U.S.C.
§ 33(b). Perhaps most extreme of all, a person who attempts
or threatens to use an atomic weapon while in possession of
one also receives a minimum sentence of 30 years. 42 U.S.C.
§ 2272(b). Thus, it appears that outside of Section 924(c), a
30-year mandatory sentence is typically reserved for instances
where the defendant has intentionally committed a heinous
crime that either harms the most vulnerable of our society or
has the potential to result in wide-spread devastation. The use
of government-issued rifles and explosives in a war zone is
simply not comparable. While the weapons these three
defendants fired do have the potential to—and in this case
did—unleash wide-spread destruction, they are the tools our
government gave to them to adequately perform their job. If
84
circumstances had been as they believed them to be, it would
have been negligent to rely on less effective weapons.
In reaching this conclusion, we by no means intend to
minimize the carnage attributable to Slough, Heard and
Liberty’s actions. Their poor judgments resulted in the deaths
of many innocent people. What happened in Nisur Square
defies civilized description. However, none of the
penological justifications our society relies upon when
sentencing criminals—incapacitation, rehabilitation,
retribution, or deterrence—are properly served here by a
sentence whose length is determined solely based on the type
of weapon used during the crime. See Ewing, 538 U.S. at 25(discussing the penological goals of criminal punishments).
While we acknowledge our Constitution “does not mandate
adoption of any one penological theory” and that sentencing
rationales should generally be made by legislatures and not
federal courts, id. at 24–25, the Supreme Court’s examination
of penological goals in previous cases suggests those goals
should be a relevant part of our analysis. See id. at 25–28;
Harmelin, 501 U.S. at 999 (Kennedy, J., concurring in part and
concurring in judgment); see also Graham, 560 U.S. at 71(stating “[a] sentence lacking any legitimate penological
justification is by its nature disproportionate to the offense”).
Regarding incapacitation, nothing in any of these
defendants’ records suggests they pose a danger to society such
that they must remain in prison to prevent them from
committing more crimes. Before the Nisur Square shootings,
none of them had any prior convictions, and nothing in the
record or their backgrounds suggests they are likely to commit
more crimes in the future. For similar reasons, rehabilitation
is not an issue. No doubt Nisur Square and its haunting
aftermath will provide reason enough for these defendants to
avoid any analogous circumstances. As to retribution, we
85
recognize the 30-year sentence does punish the defendants for
their crimes and allows society “to express its condemnation of
[their] crime[s] and to seek restoration of the moral imbalance
caused by [their] offense[s].” Graham, 560 U.S. at 71.
However, “[t]he heart of the retribution rationale is that a
criminal sentence must be directly related to the personal
culpability of the criminal offender.” Id. at 71; see also
Ewing, 538 U.S. at 31 (Scalia, J., concurring in judgment)
(“Proportionality—the notion that the punishment should fit
the crime—is inherently a concept tied to the penological goal
of retribution.”). Here, we have concluded the mandatory 30-
year sentence imposed by Section 924(c) is grossly
disproportionate as applied to Slough, Heard and Liberty and
that such a sentence actually prevents the sentencing judge
from directly examining the personal culpability of each
defendant in this case. Furthermore, society’s interest in
retribution can be equally served by a sentence imposed based
solely on the voluntary manslaughter and attempted voluntary
manslaughter convictions. Therefore, this sentence cannot be
justified based on retribution.
Regarding deterrence, the district court observed there was
no need to deter the defendants individually. JA 3332. We
agree with this observation based on the defendants’ lack of
criminal background. Thus, we are left with examining
whether this sentence serves the penological goal of general
deterrence. Under the theory of general deterrence, the
government essentially seeks to make an example of an
offender through punishing him so that other potential
offenders are intimidated into refraining from committing the
contemplated crime. 1 WHARTON’S CRIMINAL LAW § 3 (15th
ed. Sept. 2016); see also Pell v. Procunier, 417 U.S. 817, 822
(1974) (stating the premise of general deterrence is that “by
confining criminal offenders in a facility where they are
isolated from the rest of society, a condition that most people
86
presumably find undesirable, they and others will be deterred
from committing additional criminal offenses”). The harsh
sentences imposed under Section 924(c) generally do operate
as strong deterrents against using firearms when committing a
crime of violence or a drug trafficking offense. In fact, this is
precisely what Congress envisioned when it first passed the
law. See Muscarello, 524 U.S. at 132 (stating Section 924(c)
was created “to persuade the man who is tempted to commit a
Federal felony to leave his gun at home”). However, as
discussed above, the application of Section 924(c)’s mandatory
sentence does little to advance this purpose. Instead, it will
only deter future private security contractors from quickly
making the split-second decisions their jobs require them to
make. In theory, if they are wrong even once about a potential
threat and use their machine gun in response, they are
potentially subject to this penalty. In the dangerous
environments in which these contractors live and work, even a
single moment’s hesitation because of fear of such a harsh
criminal sanction could be the difference between life and
death for themselves, their fellow contractors and the diplomats
they were hired to protect. Thus, deterrence is both an
irrational and unjust reason to justify these sentences under
Section 924(c). This is especially true given that contractors
will already be deterred from recklessly firing their firearms
based on the possibility of receiving other criminal sanctions,
such as manslaughter charges, for any severe lapses in
judgment. Thus, these sentences cannot be justified under any
of our society’s penological goals.
For the foregoing reasons, we conclude the application of
Section 924(c) to Slough, Heard and Liberty is cruel and
87
unusual punishment. 14 The sentences are cruel in that they
impose a 30-year sentence based on the fact that private
security contractors in a war zone were armed with
government-issued automatic rifles and explosives. They are
unusual because they apply Section 924(c) in a manner it has
never been applied before to a situation which Congress never
contemplated. We again emphasize these defendants can and
should be held accountable for the death and destruction they
unleashed on the innocent Iraqi civilians who were harmed by
their actions. But instead of using the sledgehammer of a
mandatory 30-year sentence, the sentencing court should
instead use more nuanced tools to impose sentences
proportionally tailored to the culpability of each defendant.
For the foregoing reasons, we vacate defendant Nicholas
Slatten’s first degree murder conviction and remand for a new
trial. Further, we vacate defendant Evan Liberty’s conviction
for the attempted manslaughter of Mahdi Al-Faraji. The Court
remands the sentences of Liberty, defendant Paul Slough and
defendant Dustin Heard for resentencing consistent with this
opinion. In all other respects, the Court affirms the judgment of
the district court.
So ordered.
14
Because we conclude the sentences violate the Eighth
Amendment as applied to Slough, Liberty and Heard, we decline to
reach their categorical arguments.
HENDERSON, Circuit Judge, concurring in Part VI: I write
separately to express my view that the aftermath of Slatten’s
mandamus petition did not, and could not, give rise to a
realistic likelihood of prosecutorial vindictiveness. United
States v. Meyer, 810 F.2d 1242, 1246 (D.C. Cir. 1987).
Although the majority notes that “the extraordinary mandamus
grant here, followed by a rather sharply-worded criticism in
denying reconsideration, in a high-profile prosecution with
international ramifications no less, had [great] potential to give
rise to a vindictive motive,” Maj Op. 48, that description fails
to account for our Court’s own mistake leading to the
mandamus petition (and its aftermath) in the first place.
The Nisur Square attack took place on September 16,
2007. Under MEJA, then, the government had until September
16, 2012 to indict (or reindict) Slatten on a non-capital offense.
18 U.S.C. § 3282(a).
On December 4, 2008, a grand jury indicted Slatten and
his co-defendants on, inter alia, multiple manslaughter
charges. One year later, on December 31, 2009, the district
court dismissed the indictment based on the government’s
violation of Kastigar v. United States, 406 U.S. 441 (1972), and
Garrity v. New Jersey, 385 U.S. 493 (1967). See United States
v. Slough, 677 F. Supp. 2d 112 (D.D.C. 2009). Although the
government had earlier moved to voluntarily dismiss Slatten’s
indictment, the district court expressly denied that request as
moot given its simultaneous dismissal of all charges against all
defendants. 1 Id. at 166 n.67 (“Because the court dismisses the
1
In its motion to dismiss Slatten, the government had conceded
that “key testimony used to indict defendant Nicholas Slatten
resulted from the exposure of grand jury witnesses to his compelled
statements.” See United States v. Slough, 677 F. Supp. 2d 112 n.2
(D.D.C. 2009). Subsequently, all five defendants moved to dismiss
the joint indictment and the district court, identifying improper
evidentiary uses of all defendants’ Garrity statements in violation of
Kastigar, id. at. 144-66, granted defendants’ motion to dismiss and,
2
indictment against all of the defendants, including defendant
Slatten, it denies as moot the government’s motion for leave to
dismiss the indictment against defendant Slatten without
prejudice.”).
The government appealed the dismissal. Our Court
reversed the district court, concluding that Kastigar required it
to determine with greater specificity the taint, if any, each
defendant’s compelled statements had on the grand jury
evidence. United States v. Slough, 641 F.3d 544, 550-55 (D.C.
Cir. 2011). Importantly, however, it did so assuming—
mistakenly—that “the government itself moved to dismiss the
indictment against Nicholas Slatten, without prejudice to
possible later re-indictment, and the district court’s grant of the
motion has taken Slatten out of the case for now.” Id. at 547(emphasis added). Stated differently, it did not overturn the
district court’s dismissal of the manslaughter charges against
Slatten because it incorrectly believed that the district court had
granted the government’s motion to dismiss and therefore
Slatten was already out of the case. See id. (reversing and
remanding “as to four of the defendants”). Slatten’s co-
defendants unsuccessfully petitioned for certiorari and,
because of that delay, the Slough mandate did not issue until
June 5, 2012.
Over one year later, on October 17, 2013, a grand jury
reindicted Slatten and his co-defendants on, inter alia, multiple
manslaughter charges. JA 314. Although the superseding
indictment issued after September 16, 2012—the date MEJA’s
five-year statute of limitations for non-capital offenses was set
to expire—it related back to the filing of the original indictment
for statute of limitations purposes because it did not broaden
the original indictment. See, e.g., United States v. Grady, 544
accordingly, denied the government’s motion to dismiss Slatten as
moot. Id. at 166 n.67.
3
F.2d 598, 602-03 (2d Cir. 1976) (“Since the statute stops
running with the bringing of the first indictment, a superseding
indictment brought at any time while the first indictment is still
validly pending, if and only if it does not broaden the charges
made in the first indictment, cannot be barred by the statute of
limitations.” (footnote omitted)); United States v. Yielding, 657
F.3d 688, 703 (8th Cir. 2011) (“For limitations purposes, ‘a
superseding indictment filed while the original indictment is
validly pending relates back to the time of filing of the original
indictment if it does not substantially broaden or amend the
original charges.’”); JA 323. The critical question regarding
Slatten, however, was whether Slatten had remained in the case
and was therefore covered by the relation back. See Opposition
to Slatten’s Motion to Dismiss Superseding Indictment on
Statute of Limitations Grounds, United States v. Slatten, et al.,
Docket No. 1:08-cr-00360-RCL, Doc. 352 (November 29,
2013). On the one hand, the district court’s December 2009
order manifested that Slatten’s dismissal was based on the
same Kastigar/Garrity rationale applicable to his co-
defendants, the rationale we rejected in reversing the dismissal.
On the other hand, our Court declared (incorrectly) that Slatten
was no longer in the case because it mistakenly believed the
district court had granted the government’s motion to dismiss
Slatten’s indictment in its December 2009 order. Slough, 641
F.3d at 547.
Once the superseding indictment against him issued,
Slatten moved to dismiss it on the ground that he was no longer
in the case based on our Court’s Slough opinion. The district
court—a successor judge—denied Slatten’s motion to dismiss.
In doing so, it expressly discussed the mistake caused by our
Slough language. See Memorandum Opinion, United States v.
Slatten, No. 1:08-cr-00360-RCL, Doc. 388 (February 18,
2014). It noted that the “only ambiguity in [Slough] was the
judgment appealed from,” pointing out that “[e]ven though the
4
Government conceded that Slatten’s indictment was deficient,
[the original judge] found that it was deficient on broader
grounds than the Government sought in its own motion” and,
thus, “[i]t was those broader grounds that the Government
appealed from as to all five defendants including Slatten.” Id.
at 2-3 (emphasis added). Attempting to adjust to our Court’s
error, the district court reasoned that the “letter” of the district
court’s December 2009 order and the “spirit” of Slough’s
mandate established that Slatten remained a defendant and
therefore the non-capital MEJA charges against Slatten
remained timely. Id. at 2-4.
Following the district court’s decision, Slatten petitioned
this Court for mandamus relief “to prevent the district court
from expanding the scope of Slough.” See Emergency Petition
for Writ of Mandamus, In re Nicholas Abram Slatten, Case No.
14-3007 (D.C. Cir. March 6, 2014). In reviewing that petition,
our Court again failed to focus on the relevant portion of the
December 2009 dismissal order (which expressly denied the
government’s motion to voluntarily dismiss Slatten) and
instead granted Slatten’s petition, stating that the “mandate
reversing and remanding [to] the district court clearly applied
only to Slatten’s four co-defendants” because the “government
conceded to us, both in its briefs and at oral argument, that
Slatten’s indictment was infirm.” See Per Curiam Order, In re
Nicholas Abram Slatten, No. 14-3007 (D.C. Cir. April 7, 2014).
Given the mandamus’s limitation on what charges could
(and could not) be brought against Slatten, the government
pressed the issue by petitioning for rehearing. See Petition, In
re Nicholas Abram Slatten, No. 14-3007 (D.C. Cir. April 17,
2014). In its petition, the government expressly drew the
Court’s attention to the fact that “[t]he [Slough] opinion
incorrectly stated that the district court granted the
government’s motion to dismiss the indictment as to Slatten”
and that “the record compels the conclusion . . . that this Court
5
in Slough reversed the dismissal order with respect to all five
defendants.” Id. at 1-2 (emphasis added).
On April 18, 2014, our Court—for the first time—
recognized that it “erred in stating that the district court’s
dismissal as to Slatten had come in response to the
Government’s own motion to dismiss, rather than to Slatten’s
motion.” See Per Curiam Order, In re Nicholas Abram Slatten,
No. 14-3007 (D.C. Cir. April 18, 2014). Nevertheless, it denied
the government’s petition, declaring that “the dispositional
posture following [Slough] was unaffected” by the error
because “Slatten’s indictment had been dismissed, and we had
reversed only as to the other four.” Id at 1. It appears the error
was seen as harmless because, if Slatten had been within the
scope of the mandate, the district court—which, in its
December 2009 order, had denied as moot the government’s
motion to dismiss Slatten—would have then granted that
motion, leaving the same scenario, that is, Slatten would no
longer be a defendant. Id. 2
I believe our Court incorrectly—albeit in good faith—
contributed to the Hobson’s choice facing the government at
that point. First, and critically, MEJA’s statute-of-limitations
clock would not have run on any non-capital offense had
Slatten remained a defendant throughout the Slough appeal and
remand because, to repeat, “a superseding indictment brought
at any time while the first indictment is still validly pending, if
. . . it does not broaden the charges made in the first indictment,
cannot be barred by the statute of limitations.” 3 Grady, 544
2
The record “dispositional posture,” however, was plainly
affected: based on the district court record, supra 1 n.1, the reversal
applied to all five defendants.
3
In denying the government’s rehearing petition, our Court
minimized this point by noting that the government had originally
6
F.2d at 601-02. “[T]he dispositional posture following
[Slough],” then, was anything but “unaffected” by the
misreading of the December 2009 dismissal order; it disabled
the government from filing any non-capital charge against
Slatten in the superseding indictment. Moreover, our Slough
language left the government uncertain regarding Slatten’s
status. 641 F.3d at 547. Indeed, on July 25, 2012—two months
before MEJA’s five-year statute of limitations clock ran—the
government announced it intended to seek a superseding
indictment covering all five Slough defendants (including
Slatten), indicating no recognition of the need to omit Slatten
on all non-capital counts. It took almost the next two years for
it to recognize definitively that Slatten could not be indicted on
a non-capital offense. Although the wiser move would have
been for the government to reindict Slatten immediately upon
remand, I believe our Court’s mistaken reading of the
moved to voluntarily dismiss Slatten’s indictment and the district
court had simply denied that motion “as moot.” See Per Curiam
Order, In re Nicholas Abram Slatten, No. 14-3007 (D.C. Cir. April
18, 2014) (emphasis in Per Curiam Order). Apparently, the thought
was that, if Slatten had remained in the case through remand, the
government could have simply renewed its motion to dismiss the
original indictment against Slatten. But such a dismissal—leaving
aside its counterintuitive nature (the original indictment had to
remain in place for the superseding indictment’s “relation back”)—
would have required (at least) leave of the court. See FED. R. CRIM.
P. 48(a) (“The government may, with leave of court, dismiss an
indictment, information, or complaint.” (emphasis added)); FED. R.
CRIM. P. 48(a) advisory committee’s note to 1944 adoption (“The
first sentence of this rule will change existing law. The common-law
rule that the public prosecutor may enter a nolle prosequi in his
discretion, without any action by the court, prevails in the Federal
courts . . . This provision will permit the filing of a nolle prosequi
only by leave of court.”); United States v. Cowan, 524 F.2d 504, 513
(5th Cir. 1975).
7
December 2009 order contributed to the government’s failure
to do so.
The government faced a forced choice—indict Slatten on
the only charge unaffected by MEJA’s five-year deadline or
completely forego prosecution of him. “[These] circumstances,
when taken together,” plainly fail to “support a realistic
likelihood of vindictiveness.” Meyer, 810 F.2d at 1246.
ROGERS, Circuit Judge, concurring in the judgment in Part
VII and dissenting from Part VIII: I join the Court’s opinion
with two exceptions. First, in accordance with the Supreme
Court’s instruction, portions of a co-defendant’s statements to
investigators1 should have been admitted in Slatten’s defense,
but not as a result of unduly expanding a narrow residual
hearsay exception when the statements are covered by an
established exception. Second, defendants’ Eighth Amendment
challenge lacks any merit whatsoever, especially in view of the
district court judge’s express assessment, which my colleagues
ignore, that the sentences were an appropriate response to the
human carnage for which these defendants were convicted by
a jury.
I.
Concurring in the judgment in Part VII. I agree that the
district court’s exclusion of certain statements by a co-
defendant as inadmissible hearsay requires reversal of Slatten’s
conviction. Op. 67–68. In my view, however, the district court
did not abuse its discretion in finding the co-defendant’s
compelled statements untrustworthy to the extent they offered
an exculpatory narrative of self-defense. Rather, the district
court abused its discretion by failing, as a matter of law, to
isolate certain inculpatory statements within that broader
narrative to consider whether they were sufficiently trustworthy
to be admitted under an exception to the hearsay rule. See
Williamson v. United States, 512 U.S. 594, 600 (1994); Koon v.
United States, 518 U.S. 81, 100 (1996). The co-defendant’s
inculpatory statements were admissible in Slatten’s defense
1
See Kastigar v. United States, 406 U.S. 441 (1972);
United States v. Slough, 641 F.3d 544, 549 (D.C. Cir. 2011);
Gov’t’s Resp. to Order to Show Cause, filed under seal (Jul. 24,
2017).
2
under Federal Rule of Evidence 804(b)(3),2 and because they
concerned the single most important issue underlying Slatten’s
conviction — who fired the first shots that day — their
exclusion implicated Slatten’s due process right to present a
complete defense and was not harmless beyond a reasonable
doubt. See United States v. Whitmore, 359 F.3d 609, 616 (D.C.
Cir. 2004). Indeed, even if the statements’ exclusion did not
impinge on Slatten’s constitutional right to present a complete
defense, see Appellee Br. 128, the exclusion was not harmless
because it had a “substantial and injurious effect” on the jury’s
consideration of this close question. See United States v.
Mahdi, 598 F.3d 883, 892 (D.C. Cir. 2010) (quoting Kotteakos
v. United States, 328 U.S. 750, 776 (1946)).
A.
In the immediate aftermath of the Nisur Square massacre,
a co-defendant of Slatten’s offered statements on four different
days to State Department investigators, one on a written
departmental form and three oral. The oral statements, which
2
Federal Rule of Evidence 804(b)(3) provides an
exception to the Rule against Hearsay for a statement against
interest that:
(A) a reasonable person in the declarant’s position
would have made only if the person believed it to be
true because, when made, it was so contrary to the
declarant’s proprietary or pecuniary interest or had
so great a tendency to invalidate the declarant’s
claim against someone else or to expose the
declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that
clearly indicate its trustworthiness, if it is offered in
a criminal case as one that tends to expose the
declarant to criminal liability.
3
were incorporated into written reports by State Department
investigators, constitute hearsay within hearsay. Op. 57 n.7;
Fed. R. Evid. 805. As a preliminary matter, the investigators’
contemporaneous recounting in their reports of what the co-
defendant said falls within the business records exception under
FRE 803(6). See United States v. Smith, 521 F.2d 957, 962–65
(D.C. Cir. 1975); Michael H. Graham & Kenneth W. Graham,
30C Fed. Prac. & Proc. Evid. § 7047 & n.29 (2017 ed.); see also
United States v. Warren, 42 F.3d 647, 657 n.7 (D.C. Cir. 1994).
At this second level of hearsay, the question is whether the co-
defendant said what he is reported to have said, not whether he
was being truthful. See Smith, 521 F.2d at 965. The
investigators personally witnessed the co-defendant making
these statements. See Fed. R. Evid. 803(6)(A). Furthermore,
testimony established that State Department investigators
regularly took such statements any time a contractor was
involved in a shooting incident, see Fed. R. Evid.
803(6)(B)–(C); 11/2/09 Hearing Tr. 48:23–49:14, and it is
“presumed that [the investigators] accurately transcribed and
reported” the co-defendant’s statements. Smith, 521 F.2d at
965.
The difficulty with relying on the evaluative reports prong
of the public records exception, see Op. 57 n.7, is that the
records reflect only unverified witness statements about the
Nisur Square massacre, rather than the investigators’ own
“factual findings” about what occurred. See Fed. R. Evid.
803(8)(A)(iii). A “factual finding[]” in this context means a
public official’s “conclusion by way of reasonable inference
from the evidence,” not a piece of evidence gathered in aid of
a potential conclusion down the road. See Beech Aircraft Corp.
v. Rainey, 488 U.S. 153, 164 (1988) (quoting BLACK’S LAW
DICTIONARY 569 (5th ed. 1979)). For this reason, the relevant
factors identified by Advisory Committee under this exception
focus on the trustworthiness of the investigator’s conclusions
4
(e.g., the skill or experience of the investigator, the
investigator’s potential bias). See Notes of Advisory
Committee on Proposed Rules, Fed. R. Evid. 803. Had State
Department investigators concluded that the co-defendant’s
version of events was credible and adopted it as their own, then
FRE 803(8)(A)(iii) would likely come into play. See Beech
Aircraft Corp., 488 U.S. at 169. Nothing in the reports,
however, indicates that the investigators found any facts to be
as the co-defendant portrayed them, and FRE 803(8)(A)(iii)
“bars the admission of statements not based on factual
investigation,” such as an eyewitness’s unverified statements to
investigators. Beech Aircraft Corp., 488 U.S. at 169.
That leaves only the second level of hearsay, the co-
defendant’s statements themselves. Although he was informed
that the statements, if truthful, could not be used directly or
indirectly against him in a criminal proceeding, he was also
informed that they could be used in the course of a disciplinary
proceeding and could result in termination of his employment.
A statement that jeopardizes the declarant’s employment can be
sufficient to trigger FRE 803's pecuniary interest exception,
provided it is so contrary to that interest that a reasonable
person would not have made it unless it were true. Gichner v.
Antonio Troiano Tile & Marble Co., 410 F.2d 238, 242 (D.C.
Cir. 1969).
Taken together, the co-defendant’s statements offered a
generally exculpatory version of events, in which the white Kia
sped dangerously toward the convoy and ignored repeated
warnings to stop, until it became necessary to fire upon and
disable the Kia in order to protect the Raven 23 convoy. Within
his narrative of self-defense, however, he offered details that
had the potential to jeopardize his employment. Namely, he
admitted that he “engaged and hit the driver,” Mem. Report of
Interview at 1 (Sept. 16, 2007), “fir[ing] two rounds at the
5
driver from his M-4 rifle . . . [that] impacted the driver’s area of
the windshield,” Mem. Report of Interview at 1 (Sept. 23,
2007). Most crucially, he acknowledged that he was “not aware
of any shots being fired before his,” Mem. Report of Interview
at 2 (Sept. 20, 2007), and that he made eye contact with the
driver just before firing, which further suggests that he was the
first to fire. That is, following an incident in which multiple
Raven 23 members were seen firing into the Kia, the co-
defendant voluntarily singled himself out as the first shooter —
the one likely responsible for the death of Al-Rubia’y and, in
the government’s words, “the one who lit the match that ignited
the firestorm.” 8/27/14 (AM) Tr. 27:1-4. Thus, if investigators
doubted the claim that the Kia represented a threat, then the co-
defendant’s statements all but ensured that he would lose his
job.
The district court ruled that the co-defendant’s statements
constituted inadmissible hearsay because their lack of
trustworthiness disqualified them from the statement against
interest exception, Fed. R. Evid. 804(b)(3), the business records
exception, Fed. R. Evid. 803(6), and the residual hearsay
exception, Fed. R. Evid. 807. In particular, it found that the co-
defendant, “facing the threat of job loss or worse, had great
incentive to provide a story of self-defense rather than a
statement against his interest.” United States v. Slatten, Crim.
No. 14-107, at 6 (D.D.C. June 16, 2014). This is true as a
general matter, but it only answers part of the question. The co-
defendant’s incentive to keep his job indicates why he might
invent a self-defense scenario, and it illustrates why self-
serving, exculpatory statements are inadmissible under FRE
804(b)(3). See Williamson, 512 U.S. at 599–600. On the other
hand, the co-defendant’s incentive to keep his job does little to
explain why he would falsely claim to have shot first and hit the
driver, admissions that had the potential to single him out for
greater scrutiny and punishment. To the contrary, the threat of
6
job loss magnifies the likelihood that the co-defendant was
telling the truth as to those details. See id.; Gichner, 410 F.2d
at 242.
This failure to distinguish between inculpatory and
exculpatory statements within this co-defendant’s larger
narrative, and instead treating the entire four-part narrative as a
single “statement” to be admitted or excluded as a whole, was
legal error. Williamson, 512 U.S. at 599–600; United States v.
Smalls, 605 F.3d 765, 780–87 (10th Cir. 2010). A statement,
within the meaning of FRE 804(b)(3), is a “single declaration or
remark” rather than a “report or narrative,” Williamson, 512
U.S. at 599 (quoting Webster’s THIRD NEW INTERNATIONAL
DICTIONARY 2229 (1961)), and thus it was incumbent upon the
district court to isolate and admit any “declarations or remarks
within the [narrative] that are individually self-inculpatory.” Id.As the Supreme Court has noted, the fact that the narrative was
generally exculpatory and untrustworthy does not mean it was
entirely untrue: “One of the most effective ways to lie is to mix
falsehood with truth, especially truth that seems particularly
persuasive because of its self-inculpatory nature.” Id. at
599–600.
To determine whether the error was harmless requires
consideration of the antecedent question whether any statements
within the co-defendant’s narrative were sufficiently self-
inculpatory to be admissible as statements against interest. See
Fed. R. Evid. 804(b)(3)(A). If so, then in light of the numerous
other pieces of evidence suggesting that the co-defendant fired
first, the error could not possibly have been harmless. Although
the jury could have reasonably credited Jimmy Watson’s
testimony that Slatten fired first over the traffic officers’
testimony that someone in the co-defendant’s position did so,
the officers’ testimony would take on new significance if
buttressed by the co-defendant’s own admission to firing first.
7
The co-defendant’s claim to have fired first and hit the Kia
driver was admissible because no reasonable person would have
falsely so claimed, thereby setting the day’s tragic events in
motion, especially given the near-certainty that such statements
would cost him his job if the self-defense claim were
disbelieved. See Fed. R. Evid. 804(b)(3)(A).
The government maintains that the “I shot first and hit the
driver” statement cannot be separated from the self-defense
statement, i.e., “I shot first and hit the driver in order to protect
my team from an imminent threat.” See Appellee Br. 121. The
government is correct that a statement’s context must be
carefully considered in determining whether the statement is
truly self-inculpatory, Williamson, 512 U.S. at 603, but to the
extent the government suggests that the court can only consider
for admission the conjoined self-defense statement in his
narrative, rather than considering for admission only the “I shot
first and hit the driver” statement, Williamson instructs to the
contrary. The Supreme Court made clear that courts must
narrowly parse statements submitted under FRE 804(b)(3) and
independently analyze each “declaration[] or remark” within
such a statement for admissibility; parts of statements that are
not self-inculpatory may not be admitted solely based on their
proximity to other self-inculpatory declarations. Id. at 599–601.
Here, the inverse is true — the district court erred in excluding
self-inculpatory declarations solely based on their proximity to
other self-exculpatory declarations.
The relevant self-inculpatory “declarations or remarks”
within the co-defendant’s narrative statement, id. at 599, are:
“[I] engaged and hit the driver,” Mem. Report of Interview
at 1 (Sept. 16, 2007);
“[I] made eye contact with the driver of the white sedan[,]
8
. . . an Arabic male in his late 20's with a beard . . . . [I]
fir[ed] two rounds at the driver from [my] M-4 rifle. [I]
believe[] these rounds impacted the driver’s area of the
windshield,” Mem. Report of Interview at 1 (Sept. 23,
2007); and
“[I am] not sure whether [I] was the first one to fire during
this incident. [I am] not aware of any shots being fired
before [mine],” Mem. Report of Interview at 2 (Sept. 20,
2007).
Certainly, the reliability of those statements must be considered
in light of the broader self-defense context, but the context is not
actually a part of those inculpatory statements. On the other
hand, the co-defendant’s statement “Fearing for my life and the
lives of my teammates, I engaged the driver and stopped the
threat” is generally self-exculpatory and therefore inadmissible.
Sworn Statement at 2 (Sept. 18, 2007).
The government makes the related point that an assertion
of self-defense automatically removes the underlying admission
from the statement against interest exception. In its view, a
self-defense claim can never be sufficiently contrary to self-
interest under FRE 804(b)(3) because, if true, it would wholly
exonerate the declarant. See also Op. 59–60 (citing United
States v. Henley, 766 F.3d 893, 915 (8th Cir. 2014); United
States v. Shryock, 342 F.3d 948, 981 (9th Cir. 2003)). Once
again, Williamson controls: any such generalization is
inappropriate because determining whether a statement is self-
inculpatory is a “fact-intensive inquiry, which . . . require[s]
careful examination of all the circumstances surrounding the
criminal activity involved.” Williamson, 512 U.S. at 604.
In Shryock, 342 F.3d at 966–67, for instance, the police
already had multiple pieces of evidence showing that the
9
declarant shot the victims, and thus the declarant’s self-defense
statement to police was much more obviously exculpatory —
the admission “I shot the victims” provided the police with
nothing they did not already know or strongly suspect. Here, on
the other hand, the record indicates that in the immediate
aftermath of the Nisur Square massacre, the co-defendant
provided investigators with the very first evidence that he fired
before anyone else in the convoy and that he also hit the driver.
One can imagine circumstances in which a self-defense claim
would be even more devastating, e.g., a person walking into a
police station and claiming self-defense in a long-forgotten
murder, leading police to reopen the case and immediately find
evidence disproving the implausible self-defense claim.
Invoking a blanket rule to the contrary seems to suggest that a
statement can only be sufficiently damaging to self-interest if,
standing alone, it is enough to support a conviction, a civil
judgment, or termination. See Op. [59-60]. Thus, an admission
to four elements of a crime (but not the fifth) would not qualify
as a statement against interest, nor, as here, would an admission
to a killing so long as self-defense is also claimed. This court
has rejected that notion: “[T]he mere fact that the statements
alone do not create an inference of guilt beyond a reasonable
doubt does not remove them from the ambit of Rule 804(b)(3).”
United States v. Wilson, 160 F.3d 732, 739 & n.4 (D.C. Cir.
1998).
Turning to the statements at issue, the question is whether
a reasonable person in the co-defendant’s position would falsely
claim to have shot first and hit the driver, even in the context of
a self-defense narrative. Fed. R. Evid. 804(b)(3)(A). As the
government points out, State Department investigators likely
knew (or would soon learn) that this co-defendant fired at the
Kia, so he would have been ill-advised to deny he had. That
said, investigators also knew (or would soon learn) that
numerous other Blackwater guards fired at the Kia around the
10
same time. Thus, with investigators facing the daunting task of
piecing together who did what in the midst of a melee, would a
reasonable person in the co-defendant’s position claim (1)
ignorance as to who shot when and where, essentially hiding
behind the “fog of war;” (2) to have fired defensive shots into
the Kia’s engine block only after other Raven 23 members had
opened fire engaging the driver; or (3) affirmatively admit that
he was the first, and likely fatal, shooter? In other words, if in
reality this co-defendant had fired fourth and hit only the engine
block, then why would he falsely claim responsibility for shots
that likely killed a man?
The government suggests that because State Department
protocol required guards to shoot occupants of cars that refused
to stop despite warnings, the co-defendant could have falsely
claimed to have shot first and hit the driver in order to portray
himself as having “done precisely the right thing (the heroic
thing, even).” Appellee Br. 122. Such an implausible high-risk
high-reward strategy would only make sense if one were
absolutely confident the self-defense claim would hold up; if
not, the heroic narrative would give way to something far more
troubling, with devastating consequences for the co-defendant.
On the other hand, if at all concerned about the self-defense
narrative being rejected, a reasonable person in the co-
defendant’s position would have claimed to have fired fourth
and hit the engine block because such shots would ultimately be
of little consequence even if fired without justification. Based
on the evidence adduced at trial showing that the Kia had come
to a stop before any shots were fired, the co-defendant would
have had little reason to feel so confident in the self-defense
claim. Instead, it is far more likely that the co-defendant
offered these inculpatory details because they were true, in
order to lend credence to his flimsy self-defense narrative. See
Williamson, 512 U.S. at 599–600. Indeed, even the co-
defendant’s expression of uncertainty as to shooting first (“[I
11
am] not aware of any shots being fired before [mine]”) indicates
that he was being truthful in that he would be unlikely to
undercut his own lie by expressing doubt about it. As such, the
co-defendant’s inculpatory statements were sufficiently
trustworthy and contrary to his pecuniary interest to qualify for
admission under FRE 804(b)(3).
The requirement to show “corroborating circumstances
that clearly indicate . . . trustworthiness” does not apply to
statements against pecuniary interest, Fed. R. Evid.
804(b)(3)(B), but the existence of such corroborating
circumstances here further demonstrates the admissibility of the
inculpatory portion of the co-defendant’s statements. Not only
did multiple witnesses similarly describe the first shots as
hitting the driver’s side windshield, and multiple others
similarly described two initial shots, but Officer Monem
testified that a specifically-located gunner fired the first shots,
and, crucially, Officer Al-Hamidi testified he was “100 percent
certain” that the first shots came from “the [same location] of [a
particular] vehicle,” 7/2/14 (PM) Tr. 35:4–15, which was the
co-defendant’s position that day. Moreover, Jeremy Krueger,
in the second convoy vehicle, testified that the first shots
sounded like the 5.56 ammunition used by the co-defendant,
rather than the 7.62 ammunition used by Slatten, while Jeremy
Ridgeway testified that a few days after the massacre the co-
defendant said to him “I feel like this is my fault.” 8/4/14 (PM)
Tr. 13:15–14:16. It is difficult to imagine why the co-defendant
would seem to accept such responsibility, especially to someone
like Ridgeway who would later confess to multiple killings,
unless the co-defendant believed he was the one who started the
shooting.
That the co-defendant’s inculpatory statements are
sufficiently trustworthy to be admitted under an exception to the
hearsay rule does not necessarily mean they are true. Nor does
12
it mean that, even if the co-defendant believed they were true,
he was correct in thinking he fired first. Rather, it simply means
that the statements are trustworthy enough to be presented to a
jury, which on retrial can consider all of the available evidence
in determining whether or not Slatten fired the first shots that
day. The government’s position that any error was harmless
because of the strength of the evidence that Slatten fired first,
see Appellee Br. 128–29, highlights the importance of a jury
making this determination. On remand, the government can
make its argument to the jury that the co-defendant’s “equivocal
out-of-court response to an investigator,” given the falsity of
other aspects of his statement, “surely, [should not] turn[] the
tide” and prevent a second conviction of Slatten. Id. at 129.
In sum, because the co-defendant’s inculpatory statements
are admissible as statements contrary to pecuniary interest and
thus “specifically covered,” see Fed. R. Evid. 807, FRE
804(b)(3) is properly relied upon rather than FRE 807's residual
exception to the hearsay rule. See United States v. Earles, 113
F.3d 796, 800 (8th Cir. 1997).
B.
In any event, there appears good reason not to rely on FRE
807 here. Not only is the district court is “vested with
considerable discretion” to apply the residual hearsay exception,
United States v. Kim, 595 F.2d 755, 766 (D.C. Cir. 1979), this
court has repeatedly emphasized that FRE 807 “was intended to
be a narrow exception to the hearsay rule, applied only in
exceptional cases,” when the district court would otherwise be
forced to exclude evidence that is “very important and very
reliable.” Id. FRE 807 requires “circumstantial guarantees of
trustworthiness” equivalent to those ensured by FRE 803 and
FRE 804, and if my colleagues do not trust the veracity of self-
serving statements under FRE 804(b)(3), see Op. 59–60, then it
seems illogical to admit those same statements under FRE 807
13
merely because the co-defendant was under oath, immunized
from criminal liability except for the remote possibility of
prosecution for making false statements under 18 U.S.C. §
1001, and repeated his statements several times. But see Op.
63–65. Underscoring this point, the investigators’ reports
reflect a certain skepticism about the co-defendant’s
trustworthiness, at one point noting that he had failed to
mention firing his M-203 grenade launcher in prior statements,
which the co-defendant “claimed that he had not documented
firing . . . because he ‘didn’t think it was important.’” Mem.
Report of Interview at 3 (Sept. 23, 2007).
Further, the evidence identified as corroborating the self-
defense narrative — which the jury necessarily rejected in
reaching its verdict — is misconstrued by my colleagues. See
Op. 65–66. The co-defendant told the State Department
investigators that traffic in Nisur Square came to a stop upon the
convoy’s command, but when the white Kia then approached
the convoy at a high rate of speed, he threw a water bottle as a
warning prior to firing the first shots. By contrast, Officer Al-
Hamidi testified that when Raven 23 members threw water
bottles, he turned to see that all traffic was stopped, then he
turned back to the convoy as the first shots were fired. Al-
Hamidi’s testimony thus in no way corroborates the co-
defendant’s self-serving claim that he threw a water bottle at a
speeding Kia as a warning, and to construe it otherwise only
amplifies the error in deeming the self-defense portions of the
narrative admissible.
Finally, reliance on FRE 807 for admission of the co-
defendant’s statements as a whole generally ignores both
Williamson, 512 U.S. at 599–600, and Slatten’s clarification that
he is not seeking admission of the portions of the co-defendant’s
statements that the government claims are self-serving, such as
that the Kia approached at high speed, did not stop despite the
14
co-defendant’s attempts to stop it, or that the co-defendant
feared for his life. See Slatten Br. 40. But see Op. 54, 68–69.
Although I too conclude that the district court abused its
discretion, Slatten’s challenge to the denial of his motion for
severance does not require the Court to reach FRE 807 in order
to grant him the relief he seeks (or, indeed, relief he expressly
does not seek), and therefore I would not do so.
Accordingly, I concur in the judgment that the district court
abused its discretion in denying admission of the co-defendant’s
statements, to the extent I have identified in view of the analysis
Williamson requires.
II.
Dissenting from Part VIII. Paul Slough was convicted by
a jury of killing thirteen (13) people and attempting to kill
seventeen (17) others. Evan Liberty was convicted by a jury of
killing eight (8) people and attempting to kill twelve (12) others.
Dustin Heard was convicted by a jury of killing six (6) people
and attempting to kill eleven (11) others. Even leaving aside
their firearms convictions under 18 U.S.C. § 924(c), the
maximum sentences on their remaining convictions were 249
years for Slough, 164 years for Liberty, and 137 years for
Heard. Especially in light of that congressionally determined
exposure, the thirty-year-and-one-day sentences imposed by the
district court were not unconstitutionally “grossly
disproportionate to the crime[s].” Graham v. Florida, 560 U.S.
48, 60 (2010) (internal quotation marks omitted).
Today my colleagues hold that the mandatory sentence of
thirty years under Section 924(c), as applied to these three
private security guards for using government-issued weapons in
a war zone, is cruel and unusual punishment in violation of the
Eighth Amendment to the U.S. Constitution. Op. 86–87. In so
15
doing, they have failed to account, as they must, for “all of the
circumstances of the case.” Graham, 560 U.S. at 59. Most
crucially, my colleagues make no mention of the fact that the
district court judge, who presided at the months-long trial,
imposed sentencing packages that the judge concluded
“achieved an overall appropriate sentence [for each of these
defendants] rather than calculating individual sentences for each
component.” Sent. Tr. 150:18–25 (Apr. 13, 2015) (citing
United States v. Townsend, 178 F.3d 558, 567 (D.C. Cir. 1999)).
That is, in consideration of the mandatory minimum under
Section 924(c), the district court imposed only a one-day
sentence for all of these defendants’ many manslaughter and
attempted manslaughter convictions. The Supreme Court has
affirmed the district court’s discretionary authority to impose
such a sentencing package in Dean v. United States, 137 S. Ct.
1170 (2017), holding that nothing in Section 924(c) prevents a
district court from, as here, mitigating the harshness of a
mandatory thirty-year minimum by imposing a one-day
sentence for the predicate convictions. See id. at 1176–77.
My colleagues’ conclusion that there has been a
constitutional violation, by contrast, rests on the mistaken
premise that the thirty years allocated to the Section 924(c)
convictions represent freestanding sentences distinct from the
one-day sentences on the remaining manslaughter and
attempted manslaughter convictions. See Op. 72; Townsend,
178 F.3d at 567. In disregarding the basic structure of these
defendants’ sentences, my colleagues fail to recognize that the
district court already mitigated any disproportionality. Indeed,
the district court judge stated on the record that he was “very
satisfied” with the thirty-year sentences in light of the “many
killings and woundings” for which these defendants were
responsible. Sent. Tr. 154:9–22. My colleagues ignore this fact
too, particularly when they suggest that the district court judge
felt constrained to impose an unduly harsh sentence. See Op.
16
76–77. And whatever their concern with the “one-size-fits-all
nature of these sentences,” see id. at 77, that is not an Eighth
Amendment concern because none of the sentences are
disproportionate to the enormity of the crimes that the jury
found the defendants had committed. Graham, 560 U.S. at 60.
Again, Congress has determined that the least culpable
defendant here — who was convicted of killing six people and
wounding eleven others — should be subject to a maximum of
167 years in prison, in addition to the thirty years under Section
924(c).
Although it is possible to imagine circumstances in which
a thirty-year minimum sentence for a private security guard
working in a war zone would approach the outer bounds of
constitutionality under the Eighth Amendment, this is not that
case. The jury rejected these defendants’ claim that they fired
in self-defense, and far more of their fellow security guards
chose not to fire their weapons at all that day. Yet as my
colleagues apparently see it, Congress should have included an
exception for all such military contractor employees, or, rather,
it would have included such an exception if it had only
considered the issue. See Op. 72–74. Perhaps so, but that is not
the question before us. The district court judge made an
individualized assessment of an appropriate sentencing package
for each of these defendants, and the result is not
disproportionate to the defendants’ crimes, let alone grossly,
unconstitutionally disproportionate.
Accordingly, I respectfully dissent from Part VIII.
BROWN, Circuit Judge, concurring in part and dissenting
in part from Part II: While the Court’s ultimate conclusions
follow inexorably from its broad reading of the Military
Extraterritorial Jurisdiction Act (“MEJA”), 18 U.S.C. §§ 3261et seq., the Court’s initial premise seems faulty. MEJA was
amended in 2004 to close a loophole that allowed non-
Department of Defense (“DOD”) contractors to escape
criminal liability for crimes committed overseas. I agree
Congress used “deliberately expansive” language in MEJA so
contractors working to support the DOD in its mission would
not escape prosecution for crimes committed while
performing their duties, regardless of which federal agency
was their employer. See Part II Op. at 4. However, I am not
convinced that any federal contractor whose employment
relates—even minimally—to the DOD’s mission is
automatically subject to MEJA. The Court’s interpretation
unnecessarily broadens that which the statutory language
seems designed to limit.
I.
A.
When interpreting a statute, the analysis begins—and
often ends—with its text. See, e.g., Hughes Aircraft Co. v.
Jacobson, 525 U.S. 432, 438 (1999). Here, the text of MEJA
extends the jurisdiction of federal courts to crimes committed
in foreign countries if the crime was committed while the
defendant was “employed by . . . the Armed Forces outside
the United States.” 18 U.S.C. § 3261(a)(1). The statute
further defines the time period of being “employed by the
Armed Forces outside the United States” to include acts
committed while a person is the employee of a contractor of
“(I) the [DOD]. . . ; or (II) any other Federal agency . . . to the
extent such employment relates to supporting the mission of
the [DOD] overseas . . . .” 18 U.S.C. § 3267(1)(A)(iii). Thus,
by MEJA’s plain terms, the employee of a DOD contractor is
2
automatically subject to prosecution under MEJA for any
offense committed while working overseas without any
qualifications. See id. § 3267(1)(A)(iii)(I). This suggests
DOD contractors and their employees are subject to MEJA
for crimes committed while on or off duty. The same is not
true for non-DOD contractors though. If the perpetrator of a
crime is an employee or contractor of any federal agency
other than the DOD, he is subject to MEJA only “to the extent
[his] employment relates to supporting the [DOD’s] mission.”
Id. § 3267(1)(A)(iii)(II) (emphasis added). The phrase “to the
extent” does no work unless it implies the criminal liability of
non-DOD contractors is more limited than DOD contractors.
After all, the word “extent” is defined as “the range (as of
inclusiveness or application) over which something extends.”
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY
UNABRIDGED 805 (1993). Moreover, the Supreme Court has
taken a similar view of this phrase when interpreting its
statutory meaning. See John Hancock Mut. Life Ins. Co. v.
Harris Tr. & Sav. Bank, 510 U.S. 86, 104–05 (1993)
(describing “to the extent” as “words of limitation” in a
statute).
Accordingly, if MEJA targets contractors (or their
employees) performing specific military roles, it makes little
sense to turn our inquiry into an essentially all-or-nothing
analysis. However, this is precisely the effect of concluding
that MEJA applies to all of a federal contractor’s conduct for
the duration of the time that some aspect of that contractor’s
employment supports the DOD’s mission. In situations such
as this case—where the mission of the DOD is characterized
to broadly encompass all activities related to nation-
building—the limitation the Court purports to create is
virtually boundless. Instead, the more logical reading of the
statute is that a non-DOD contractor is subject to MEJA only
when a specific task being performed by that contractor is
3
integral to the DOD’s mission. Had Congress wished MEJA
to apply more broadly to non-DOD contractors, it could have
substituted the word “if” for the phrase “to the extent” to give
MEJA the expansive wording necessary to achieve such a
result. See id. (contrasting the word “if” with the phrase “to
the extent”); see also In re Silveira, 141 F.3d 34, 36 (1st Cir.
1998) (“If Congress intended for [the statute at issue] to be an
‘all-or-nothing’ matter, one might wonder why the provisions’
drafters chose to use the connective phrase ‘to the extent that,’
in lieu of the word ‘if,’ which obviously would have been a
simpler construction.”). To hold this difference of language is
nothing more than a “temporal limitation,” Part II Op. 4,
ignores the distinction Congress made between those who
work directly for the DOD and those who do not.
Moreover, the Court’s interpretation goes beyond the
problem Congress was attempting to solve when it amended
MEJA in 2004. As noted by the Court, Congress sought to
amend MEJA in response to the atrocities committed by
Interior Department contractors at the Abu Ghraib prison in
Baghdad. Part II Op. 2. These contractors working in Abu
Gharib were soldiers in all but name, and they were directly
assisting the DOD in running a prison for detained enemy
combatants. See Saleh v. Titan Corp., 580 F.3d 1, 6–7 (D.C.
Cir. 2009) (stating the Abu Ghraib contractors were
“integrated [with the military] and performing a common
mission with the military under ultimate military command”).
Viewed with this context in mind, it is clear that what
Congress sought to do when it amended MEJA was to assure
that contractors of any federal agency who were performing
tasks conventionally done by soldiers could not elude U.S.
jurisdiction. Creating criminal liability for all federal
employees or contractors whose employment relates—even
tangentially so—to the DOD’s mission goes beyond a plain
reading of the text. Because we are to “scrupulously confine
4
[our] own jurisdiction to the precise limits which (a federal)
statute has defined,” Victory Carriers, Inc. v. Law, 404 U.S.
202, 212 (1971) (quoting Healy v. Ratta, 292 U.S. 263, 270
(1934)), we must use extreme caution when expanding our
jurisdiction—particularly when doing so results in our
criminal law applying extraterritorially.
Here, I believe Congress said what it meant and meant
what it said, see Conn. Nat’l Bank v. Germain, 503 U.S. 249,
253–54 (1992), and I would not dismiss the distinctions made
in the text in favor of aspirational goals set forth by the
statute’s sponsors. See Part II Op. at 2 (citing Senator
Schumer’s floor statement declaring MEJA was amended to
address “a dangerous loophole in our criminal law that would
have allowed civilian contractors who do the crime to escape
doing the time”). The Court may be correct that Congress
intended for MEJA’s 2004 amendment to treat DOD and non-
DOD contractors and their employees exactly the same when
a non-DOD contractor’s employment relates to the DOD’s
mission, but “[i]t is not for us to rewrite the statute so that it
covers . . . what we think is necessary to achieve what we
think Congress really intended.” Lewis v. City of Chicago,
560 U.S. 205, 215 (2010). If the government truly desires this
result, the proper course of action is to petition Congress to
amend the statute, not advocate for courts to read problematic
language out of its text.
Because MEJA’s text compels the conclusion that
Congress meant to treat DOD and non-DOD employees and
contractors differently, the next inquiry is to determine which
actions of non-DOD contractors are subject to MEJA and
which are not. The text once again provides a clear answer:
only crimes committed while “employed by . . . the Armed
Forces outside the United States” falls within MEJA’s
purview. 18 U.S.C. § 3261(a)(1). MEJA specifically
5
provides non-DOD contractors are only “employed by . . . the
Armed Forces” for the purposes of the statute when, though
acting within the scope of their employment, they are
“supporting the mission of the [DOD].” Id. §§ 3261, 3267.
The phrase “relating to” is “deliberately expansive” and must
be given broad scope. Part II Op. at 4. However, its broad
scope is not so expansive as to swallow up the “words of
limitation” immediately preceding them. See John Hancock
Mut. Life Ins. Co., 510 U.S. at 104–05. Instead, these
competing phrases must be balanced in ways that give both
full meaning. Therefore, MEJA logically encompasses those
actions taken by non-DOD employees pursuant to their
employment that either directly or indirectly support the
DOD’s mission. The statutory framework focuses on military
employment and thus limits the scope of jurisdiction not just
temporally but factually. This interpretation gives full
meaning to the broad language of the text without making
virtually all potential crimes committed by a non-DOD
employee subject to the federal criminal law. The proper
question is whether the Defendants were either directly or
indirectly supporting the DOD when they entered Nisur
Square on the day of the incident.
B.
Under this Court’s precedent, we examine the jury
findings for each element of MEJA under the deferential
sufficiency-of-the-evidence standard. United States v.
Williams, 836 F.3d 1, 7 (D.C. Cir. 2016). In doing so, we
determine “whether the evidence, considered in the light most
favorable to the government, was sufficient to permit a
rational trier of fact to find all of the essential elements of the
[statute were met] beyond a reasonable doubt.” United States
v. Wilson, 240 F.3d 39, 43 (D.C. Cir. 2001). Here, the
government has arguably met its burden. I do not join the
6
Court in holding that any actions deemed to facilitate
rebuilding the war-torn nation of Iraq automatically relates to
the DOD’s mission based on the text and history discussed
above. For this reason, I also find the evidence of the
Defendants performing other tasks to support the DOD—such
as assisting distressed military units and training Army
escorts, Part II Op. at 7—to be of doubtful relevance in
determining whether the Defendants were supporting the
DOD on the day of the Nisur Square incident.
However, neither of these pieces of evidence are
necessary to uphold the jury’s finding under the deferential
sufficiency of the evidence standard, and we need not decide
whether they would be sufficient on their own to meet
MEJA’s criteria. As posited by the Court, the Defendants’
employment—providing diplomatic security for the
Department of State—indirectly supported the DOD’s
mission by allowing military personnel previously responsible
for providing State Department security to concentrate
exclusively on the DOD’s rebuilding mission. Part II Op. at
8. The relatively small size of America’s active, volunteer
military and the breadth of its commitments may blur the
lines, but it does not erase them. Although statements from
Deputy Secretary of Defense Gordon England unequivocally
stating that the Defendants were not supporting DOD’s
mission contradicted the prosecution’s narrative, JA 2919–20,
2932, 2936, contrary evidence is not enough to overcome this
deferential standard. While I would interpret MEJA more
narrowly and find the question close, arguably sufficient
evidence existed for a rational juror to conclude that MEJA
applied to the Defendants.
7
II.
One question remains. Did the district court properly
instruct the jury on MEJA’s application to this case? When
examining a challenge to jury instructions, we must determine
“whether, taken as a whole, the [district court’s] instructions
accurately state the governing law and provide the jury with
sufficient understanding of the issues and applicable
standards.” United States v. DeFries, 129 F.3d 1293, 1304
(D.C. Cir. 1997). Because an “improper instruction on an
element of the offense violates the Sixth Amendment’s jury
trial guarantee,” it is a reversible error requiring a new trial
unless the error was harmless. Neder v. United States, 527
U.S. 1, 12, 15 (1999). The burden is on the government to
prove the error was harmless beyond a reasonable doubt.
Wilson, 240 F.3d at 44.
Here, the district court interpreted MEJA as an all-or-
nothing proposition. When explaining how MEJA should
apply to the case, the court emphasized the broad nature of
certain words in the text by defining the word “relates” to
mean “a connection with” and defining “supporting” to mean
“to promote the interest or cause of something or someone.”
JA 3293. After giving these definitions, the culmination of
the instruction advised that employment relating to supporting
the DOD’s mission included a contractor of “any federal
agency whose employment in the Republic of Iraq bears some
relationship to supporting the mission of the Department of
Defense in that country.” Ibid. While the instruction did
contain the phrase “to the extent,” the presence of this phrase
does little work because the overall framing of the issue is
erroneous. By describing MEJA in this manner, the district
court, essentially read the limiting effect of the phrase “to the
extent” right out of the statute and instead substituted “if” in
its place. Moreover, this expansive view effectively
8
eliminates the connection to military employment. As
discussed above, this is a dubious interpretation of the statute.
At the jury instruction stage, the imprecision inherent in a
sweeping view of the DOD’s mission becomes apparent. The
jury instruction, if erroneous, was prejudicial because it
affected a central issue in a close case where persuasive
evidence was presented by both the prosecution and the
defense. See Williams, 836 F.3d at 16 (reversing a murder
conviction under MEJA because a misstatement of the law by
the prosecution during its closing statement involved a
“central and close issue in the case” that was “insufficiently
cured”). Because the question of whether MEJA applied to
the Defendants was a threshold issue for each conviction,
there is no issue more central to the entire case than this.
Furthermore, even if sufficient evidence existed to find
jurisdiction under MEJA in this case, the same would be true
if the jury had reached the opposite conclusion based upon
Deputy Secretary England’s testimony and the representations
he made that the Defendants were not supporting the DOD’s
mission, see JA 2953, 3843, 3858. Thus, the importance of an
accurate statement of the law cannot be gainsaid.
However, given the district court’s instructions, it was
entirely possible for the jurors to begin deliberations believing
that if any aspect of the Defendants’ employment related to
supporting the DOD’s mission, then any supporting action
taken during the course of that employment made the
Defendants subject to MEJA. Accordingly, the jurors could
find MEJA applied solely on the basis of actions taken during
the course of the Defendants’ employment—even actions
completely unrelated to the events that transpired in Nisur
Square, such as providing assistance to distressed military
units or training Army security escorts. This is a significantly
different calculus than attempting to determine if the
9
Defendants’ action on the day of the Nisur Square incident
related to supporting the DOD’s mission. The difference is
stark. The jury conceivably could have reached a different
conclusion had it been correctly instructed. At a minimum,
the government cannot prove beyond a reasonable doubt the
erroneous jury instruction was harmless error. See Wilson,
240 F.3d at 44. Therefore, I would have reversed the
Defendants’ convictions and remanded the case for a new
trial.
III.
The question of how our criminal justice system should
treat private contractors who commit crimes overseas in war
time is a difficult one. However, Congress has made the
determination that such individuals should be held responsible
for their actions in federal courts if they either work for the
military or commit a crime during the performance of a task
related to supporting the military, such as the atrocities
committed at Abu Ghraib. Today’s opinion expands MEJA
beyond the limits defined by this history and clearly laid out
in the text. Because it is not possible to conclude, beyond a
reasonable doubt, that the erroneous instruction did not
improperly influence the ultimate outcome of the case, I
respectfully dissent from this portion of the Court’s decision.