United States v. Slough ( 2014 )

UN1TE1) sTATEs msTmcT coum" F I L E D
Fok THE Dls'rmc'r 0F C0LIJMB1A MAY 2 3 2014
C|erk. U.S. District & Bankruptcy
Courts forma Dlstrtct of Columbla
UNITED STATES OF AMERICA
v. criminal No. cis-360 (RCL)
PAUL A. SLOUGH,
EVAN S. LIBERTY, and
DUSTIN L. HEARD,
Defendants.
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UNITED s'rA'rEs or AMERICA
v. criminal No. 14-107 (RcL)
NICHOLAS A. SLAT'I``EN,
Defendant.
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MEMORANDUM OPINION
Before the Court is the defendants’ motion [411] to compel the production of certain
evidence. Upon consideration of the defendants’ motion [411], the government’s opposition
[427], the defendants’ reply [43l], the applicable law, the entire record herein, and for the
reasons set forth below, the Court will DENY the defendants’ motion to compel.
I. BACKGROUND
Both the Distriet Court and the Court of Appeals for the District of Columbia Circuit
have previously described the factual background of this case. United States v. Slough, 677 F.
Supp. 2d 1l2, 116-129 (D.D.C. 2009) ("Slough I"), vacated, 641 F.3d 544, 555 (D.C. Cir. 2011)
("Slough II"); Slough II, 641 F.?)d at 54'7-49. Thus, the Court will now only highlight the
relevant facts and procedural background
In 2007, the defendants served as diplomatic security contractors employed by
Blackwater Worldwide Slaugh I, 6')'7 F. Supp. 2d at ll6. "The defendants were part of a
Blackwater Tactical Support Team answering to the call sign ‘Raven 23,’ whose iimction was to
provide back~up tire support for other Blackwater personal security details operating in Baglidad
[, Iraq]." Id.
"On Septernber l6, 2007 a car bomb exploded near the Izdihar Compound in Baghdad,
where a U.S. diplomat was conferring with Iraqi officials American security officials ordered a
team from Blackwater Worldwide to evacuate the diplomat to the Green Zone." Slough II, 641
F.3d at 547. In order to secure a safe evacuation route for the diplomat and the other Blackwater
team, Raven 23 "took up positions in Nisur Square, a traffic circle located just outside the
[Green] Zone in downtown Baghdad," and attempted to stop traffic Slough 1, 677 F. Supp. 2d.
at ll6. Shortly afterwards, “a shooting incident erupted, during which the defendants allegedly
shot and killed fourteen [Iraqi civilians] and wounded twenty others." Ia'.
"In early October 2007, [Federal Bureau of Investigation (“FBI")] investigators arrived in
Baghdad to investigate the Nisur Square shooting. . , . FBI investigators collected physical
evidence from the scene, such as shell casings, bullet fragments and weapons, and examined the
vehicles allegedly fired on by the defendants, the Raven 23 vehicles and the defendants‘
weapons." Id. Over the course of the year following the shooting incident, the government
purchased “or otherwise acquire[d]" eleven of the vehicles damaged during the incident (the
"Iraqi vehicles"), and secured “custody and control" over the evidence. Gov’t’s Opp’n at 2; see
also Defs.’s Mot. at 2. The FBI proceeded to photograph and videotape the acquired vehicles.
Opp’n at 2. The government states-and defendants do not deny-that it has produced "[a]ll of
the FBI-generated or otherwise procured photographs and video footage" of the vehicles, which
amounts to "videotaped footage of 10 of the ll . . . [v]ehicles . . . , over 2,000 close-up
photographs of the ll . . . [v]ehicles, including the hand measurements taken of the apparent
gunfire damage to them . . . , as well as several videotaped recordings of some of the ll . . .
[v]ehicles that were abandoned on the scene shortly after the shooting." Id. In a letter from the
original government prosecution team (the "original trial tearn") to defense counsel, dated April
13, 2009, the government disclosed that Iraqi vehicles were available at government facilities in
Baghdad for defense counsel’s "inspection." Mot. Attach. l at 15. On October 6, 2009, the
defendants filed a motion [141] to order the government to provide defense counsel traveling to
Iraq to investigate the case with security measures equal to those provided for the prosecution
and FBI investigators. On November 16, 2009, this Court, Judge Urbina presiding, denied the
defendants’ request for an order requiring the government to provide such security measures
Um``ted .S``rates v. Slough, 669 F. Supp. 2d 51 , 57-58 (D.D.C. 2009).
In 2008 and 2009, the FBI investigated the shooting incident on the ground in Baghdad,
conducting a bullet trajectory analysis based on an examination of the bullet holes on the Iraqi
vehicles. Opp’n at 3. The data collected from the FBI’s bullet trajectory analysis provided the
basis for the government’s 2009 computer-generated evidence ("CGE") simulating the shooting
incident in Nisur Square (the "2009 CGE") and for a comparable demonstrative simulation that
may be prepared for the upcoming trial (the "2014 CGE"). Opp’n 5-8.
Following a letter sent by defense counsel to the govemment, dated July l, 2009,
requesting "an original usable copy and all underlying data, relating to any [CGE] that the
government may seek to use at trial," Mot. Attach. A, the Defendants filed their first motion
[103] to compel discovery pursuant to Federal Rule of Criminal Procedure 16 ("Rule 16") on
july 27, 2009. On September l4, 2009, this Court, Judge Urbina presiding, ordered the original
trial team to produce the "computer-generated evidence." Opp’n Attach. D (Status Hr’g Tr.
31;13-21, 49;3-23, sept 14, 2009).
On Decernber 31, 2009, this Court, Judge Urbina presiding, dismissed the indictment
against the defendants Mern, Op., ECF 217; Order, ECF 218. However, on April 22, 201 l, the
Circuit reversed and remanded, Slough II, 641 F.3d 544, and reissued the mandate on June 6,
2012, ECF No. 252. The case was reassigned to this Court on June 8, 2012, and the first status
conference of the renewed case was held on July 25, 2012.
Defense counsel sent a letter to the government on November 19, 2013 that restated the
defendants’ 2009 Rule 16 request for the government’s CGE, among other requests. Mot.
Attach. E. On February 28, 2014, defense counsel sent another letter to the government
specifically demanding that the govemment (a) produce the 3ds Max files associated with any
CGE simulating the shooting incident in Nisur Square and (b) transport the Iraqi vehicles to the
U.S. Mot. Attach. F. The defendants then moved, on Apn``l 4, 2014, to compel the same.
II. LEGAL STANDARD
F ederal Rule of Criminal Procedure 16(a)(1)(E) obligates the govemment to "permit the
defendant to inspect and to copy or photograph books, papers, documents, data, photographs,
tangible objects, buildings or places, or copies or portions of any of these iterns, if the item is
within the govemment's possession, custody, or control and: (i) the item is material to preparing
the defense; (ii) the government intends to use the item in its case-in~chief at trial; or (iii) the
item was obtained from or belongs to the defendant." Since the govemment proffers that it "wil1
not seek to use at trial the particular items the defendants seek to inspect or copy," Opp’n at 9,
and the items in question neither belonged to nor were obtained from the def``endants, the
govemment must permit the defendants to inspect the Iraqi vehicles and the relevant 3ds Max
files only if these items (1) are "within the govemment's possession, custody, or control" and (2)
are "material to preparing the defense." See Um``ted States v. Lr'bby, 429 F. Supp. 2d 1, 5 (D.D.C.
2006). For the purpose of Rule 16, evidence is material "as long as there is a strong indication
that it will play an important role in uncovering admissible evidence, aiding witness preparation,
corroborating testimony, or assisting impeachment or rebuttal." Um``ted States v. Lloyd, 992 F.2d
348, 351 (D.C. Cir. 1993) (intemal quotation marks and citation omitted). lt matters not whether
such evidence is inculpatory or exculpatory. Unired States v. Marshaz'l, 132 F.3d 63, 67-68 (D.C.
Cir. 1998). While the materiality standard "is not a heavy burden," Lloya', 992 F.2d at 35l, the
evidence must bear "more than ‘some abstract logical relationship to the issues in the case,"’
Marshall, 132 F.3d at 69 (quoting United States v. Ross, 511 F.2d 757, 762 (5th Cir. 1975)).
Thus, the government must disclose Rule 16 evidence "only if it enable[s] the defendant
significantly to alter the quantum of proof in his favor." Um``red States v. Graham, 83 F.3d 1466,
1474 (D.C. Cir. 1996) (intemal quotation marks and citation omitted).
III. ANALYSIS
A. T he Iraqi Vehicles
As a threshold matter, the govemment concedes that it maintains "custody and control"
over the Iraqi vehicles. Opp’n at 2. Moreover, the Iraqi vehicles damaged during the Nisur
Square shooting incident are material to preparing the defense. The condition of the vehicles
following the shooting incident will undoubtedly "play an important role in uncovering
admissible evidence, aiding witness preparation, corroborating testimony, or assisting
impeachment or rebuttal" throughout the forthcoming trial. See Lloyd, 992 F.2d at 35 l.
Given the governrnent’s custody and control over evidence material to the defendants’
trial preparation, Rule 16(a)(1)(E) obligates the govemment to make available for inspection the
Iraqi vehicles. Yet the defendants further demand that the government organize and fund the
shipment of the Iraqi vehicles from Baghdad to the U.S. Citing a projected aggregate cost of
$45,000, the dangers of traveling to Iraq, and the refusal of some private security companies to
provide protective services in Iraq for the defendants, the defendants seek to fashion a
justification akin to impossibility to explain why the government should bear the logistical
burdens and expenses Mot. at 8-10. According to the government, transporting the Iraqi
vehicles to the U.S. via surface and ocean carriers would cost $190,000 and take seven months,
while moving the Iraqi vehicles to the U.S. via air carrier would cost over $l.7 million and take
six weeks. Opp’n at 5. Since the defendants’ motion was filed less than ten weeks before the
scheduled trial date of June ll, 2014, the only viable option that would allow the defendants
sufficient opportunity to inspect would be air transportation at a cost of more than $l.? million.
_While recognizing the unique difficulties associated with travel to Baghdad, the Court will not
order the govemment to assume the extra-statutory responsibility for shipping the Iraqi vehicles
out of the country.
An obligation to produce should not be construed as an obligation to transport. Cf
Um'ted States v. George, 786 F. Supp. ll, 15 ("At least one of the rationales behind the
materiality requirement (and limiting discovery by criminal defendants generally) is to insure
that the government not expend excessive time and effort securing documents for the
defendant"). The clear wording of Rule 16(a)(1)(E) requires the govemment to "permit the
defendant[s] to inspect . . . tangible objects"_and, as the defendants note in their rnotion, the
govemment has permitted such inspection since April 2009. Mot. at 7 (citing Mot. Attach. 1 at
15). In fact, this Court, Judge Urbina presiding, denied the defendants’ 2009 motion to require
the government to shoulder the cost of providing security for the defense team in Iraq-a ruling
consistent with the denial of a motion to require the govemment to bear the much greater
expense of transporting the Iraqi vehicles out of the country. Um'ted States v. Slough, 669 F.
Supp. 2a at 57-53.‘
In accordance with Rule 16(a)(1)(E), the government has produced videotaped recordings
and "over 2,000 close-up photog;raphs" of the Iraqi vehicles, as well as all materials stemming
from the on-the-ground investigation conducted by the government’s FBI expert. Opp’n at 2~3.
While such a production is not equivalent to an in-person investigation of the Iraqi vehicles, it is
nevertheless a substantial and meaningful production, especially in the face of the defendants’
inexplicable delay in making this motion. lndeed, between the defendants’ first indictment on
December 4, 2008, and the initial dismissal of the case on December 31, 2009, the defendants
never requested that the govemment transport the vehicles from Iraq to the U.S. The only
demand made by the defendants throughout that timeframe was for the govemment to provide
security so that the defense team could travel to Iraq. ECF No. 141. Furthermore, by the time of
the first status conference of the renewed case on July 25, 2012, the defendants should have had
the expectation that this case would proceed to trial. Yet even with the arrival of a superseding
indictment on October l7, 2013, the defendants chose not to make any transport request until
February 28, 2014. See Mot. Attach, F. By waiting until the eve of trial to present this motion,
the defendants, through their inaction, have effectively caused the potential price for transporting
1 The motion for govemment-provided security was denied on the grounds that "(1) the govemment has identified
for the defendants licensed personal security companies that are the primary providers of personal security services
to U.S. govemment personnel in Baghdad; (2) these companies can provide for the defendants the same security
services that they currently provide to U,S. govemment personnel; (3) the defendants have made no showing that
these private security companies are unable to provide the security necessary for their investigation; and (4) the
defendants have acknowledged their ability to pay for such services." la'. 'l'he defendants claim, through a vaguely
worded declaration by defense counsel, that the private security companies they contacted refused to provide
services upon learning that the security mission was for this case. Mot. at 10 (citing Mot. Attach. J). However, the
defendants offer no indication of the number of security companies that they actually contacted, out of the more than
70 company names supplied by the Department of State and the Department of Defense in 2009. Opp’n at 3-4
(citing Opp’n Attach. A). In addition, the defendants’ current claim that the $45,000 cost of safely traveling to Iraq
is beyond their financial means, while simultaneously demanding that the govemment pay $1.7 million to transport
the Iraqi vehicles to the U.S., Defs.’s Reply at 5, rings hollow given their long delay in making the present motion.
7
the Iraqi vehicles to the U.S. to rise by more than $1.5 million. This Court will not permit the
defendants to supplement the wording of Rule 16(a)(1)(E) with arguments sounding in due
process and "{f]undamental faimess" when the defendants made no mention of such alleged
injustice for years.
B. T he 3ds Max Files
The 3ds Max files are unquestionably within the government’s possession, control, and
custody. Yet determining whether the files are material for the purposes of Rule 16(a)(1)(E)
applicability requires the Court to consider the role that the files play in the creation of any CGE
prepared by the govemment to simulate the alleged crime. After such consideration, it is
apparent to the Court that 3ds Max files are not material to preparing the defense.
To simulate the shooting incident in Nisur Square, the government must first collect and
assemble the data gathered by the FBI investigators during their visits to Baghdad. Second, the
govemment must input the data into a software program that can generate three-dimensional
simulations. The underlying data appears to be saved and organized within 3ds Max files.
Third, the 3ds Max files are used to produce the output_z'.e., the CGE. See generally Opp’n
Attach. C at 2-4; Mot. Attach. H at 3. In other words, the 3ds Max files sit in between the
underlying data and the resulting CGE.
The defendants seek the 3ds Max files for both the 2009 CGE and any 2014 CGE.
Pursuant to Rule 16(3)(1)(13), the defendants are entitled to -the data underlying the CGE as well
as the final CGE. See Opp’n Attach. D (Status Hr’g Tr. 31:13-21; 49:3-23) (Order compelling
original trial team to produce "computer-generated evidence"). Both items are surely material
under Lloyd. 992 F.2d at 35l. Here, the defendants have received the "underlying raw data used
to create" any 2014 CGE. Reply at 7 n.3. The govemment also must produce any completed
CGE-demonstrative or otherwise_prior to the start of trial. See Opp’n Attach. D (Status Hr’ g
Tr. 49:3-23). Of course, such a production is ineffective for the purposes of evaluating a 2014
CGE if the defendants cannot access the software used to create the CGE. The software
employed for a 2014 CGE is, in fact, commercially available. Opp’n Attach. C at 3. T'lius, the
govemment fulfills its Rule 16 obligations regarding any CGE that simulates the alleged
shooting incident if (l) the govemment produces the data underlying the simulation, (2) the
software used to generate the simulation is accessible to the defendants, and (3) the govemment
produces the completed simulation.
The Court remains unconvinced, however, that access to the 3ds Max files
would allow the defendants "sigriificantly to alter the quantum of proof in [their] favor."
Graham, 83 F.3d at 1474. A distinction must be drawn between the files that lie within a
software program and the software program itself The 3ds Max files are simply the
intermediaries between the required disclosures-the underlying data and the completed CGE.
Most importantly, the defendants can populate their own 3ds Max files using the same set of data
employed by the govermnent. The Court wonders whether the defendants merely seek to
shortcut the exercise that the govemment undertook in preparing CGE, since all of the means to
prepare their own simulation for adequate comparison with any 2014 CGE-the underlying data,
the simulation itself, and the commercially accessible software from which the simulation was
created-~are available to the defendants. Regardless of the defendants’ motives, the 3ds Max
files are not material for the purposes of Rule 16(a)(1)(E) As such, it is unnecessary to consider
the governrnent’s contention that the 3ds Max files qualify as attorney work product protected
from discovery pursuant to Rule 16(3)(2).
The defendants carmot find present relief in the September 14, 2009, order of this Court,
Judge Urbina presiding, See Mot. at 3, 15-]6 (implying that, to comply with the order, the
govemment ought to have produced the 3ds Max files for the 2009 CGE). There, the CGE that
the Court ordered to be produced can only be construed to have included "the information
underlying the [CGE]" and the completed CGE. Mot. Attach. B (Status Hr’g Tr. 31:13-21;
49:11-13). Indeed, at the time, the defendants only requested the data underlying the simulation
and the simulation itself. Mot. at 2-3 (citing Mot. Attach. A). The defendants requested the 3ds
Max files for the first time in a letter to the govemment dated November 24, 2009_two months
after the Court’s order, Mot. Attach. C at l.
Finally, after discussing Brady v. Maryland, 373 U.S. 83 (1963), in just a single sentence
in their original motion, ECF No. 411 at l3, the defendants proceed to argue at length in their
reply brief, ECF No. 431 at 9-13, that Braa’y obligates the government to tum over its 2009 3ds
Max files, specifically. The Brady Court held that “the suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment . . . ." 373 U.S. at 87. Like Rule l6(a)(l)(E), however,
Brady is inapplicable to the 2009 3ds Max files. The defendants claim that the 2009 3ds Max
files “could expose flaws in the govemment’s theory or cast serious doubt about the reliability of
the government’s evidence" if there prove to be discrepancies between the 2009 CGE, which
will play no role in the forthcoming trial, and any 2014 CGE. Mot. at l3. Since the 2009 3ds
Max files would not, on their own, bolster the defense case, the defendants’ Brady argument
depends upon their ability to use the files to impeach a potential govemment witness. Safavian,
233 F.R.D. at 16 ("'I'he meaning of the tenn "favorable" under Brady is not difficult to discem.
lt is any information in the possession of the government~broadly defined to include all
Executive Branch agencies~that relates to guilt or punishment and that tends to help the defense
10
bolstering the defense case or impeaching potential prosecution witnesses."). However, since
any 2014 CGE simulating the shooting incident will be used as a demonstrative exhibit rather
than as admissible evidence, Opp’n at 8, there will be no govemment witness for the defendants
to impeach. More importantly, as described above, the 3ds Max files are, at most, a compilation
of data that has already been produced to the defendants. In actuality, it is this underlying data
that would be the root cause of inconsistencies between the 2009 CGE and any 2014 CGE.
Therefore, the government has already produced the evidence that the defendants would use to
object to or attempt to impeach the credibility of the government’s 2014 CGE. Consequently,
the 3ds Max files are not material under Brady. See United S!ates v_ Bag:'ey, 473 U.S. 667, 682
(1985) (noting that, under Brady, "[t]he evidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the proceeding
would have been di fferent.")
IV. CONCLUSION
For the foregoing reasons, the Court DENIES the defendants’ motion [41 1] to compel the
government to transport the lraqi vehicles to the U.S.z and to produce the 3ds Max files involved
in the creation of a potential CGE.
A separate Order consistent with this Memorandum Opinion shall issue this date.
"/?»%é£ juan F€~»c//M<~
bare Rovt':r~; C. LAMBERTH
United States District Judge
2 After this Memorandum Opinion was substantially prepared but before it was released, the govemment disclosed
that several of the Iraqi vehicles "sustained damage" and one Iraqi vehicle had been "crushed" in transit after U.S.
Embassy Faciiity Management personnel in Baghdad had bafilingly marked the lraqi vehicles for destruction
Notice of Disclosure, May 22, 2014, ECF No. 477. Such disclosure has no bearing on the determination made by
the Court herein, However, the Court is still pondering the realm of reality in which the Department of State exists.
The Court looks forward to receiving promptly the results of the govemrnent``s promised investigation into why the
Department of State failed to properly preserve this evidence.
ll