United States v. Slatten , 50 F. Supp. 3d 29 ( 2014 )

UNITED STATES DISTRICT COURT F I L E D
FOR THE DISTRICT OF COLUMBIA 2 4 2014
UNITED STATESGF AMERICA § @i‘§{i§%?¢h[§'BE§§lSE?'é'fL‘l‘$§§Ya
v. § Criminal No. 14-107 (RCL)
NICHOLAS A. SLATTEN, §
Defendant. §
)
MEMORANDUM OPINION
Before the Court is the defendant Nicholas Slatten’s motion [22] to dismiss the
indictment for lack of venue. Upon consideration of Slatten’s motion [22], the govemment’s
opposition [53], the defendant’s reply [60], the applicable law, and the entire record herein, the
Court will DENY Slatten’s motion to dismiss for lack of venue.
I. BACKGROUND
Both the District 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 ll2, 116-129 (D.D.C. 2009) ("Slouglz 1"), vacated, 641 F.3d 544, 555 (D.C. Cir. 201 l)
("Slough II"); Slough II, 641 F.3d at 547-49. Thus, the Court will now only highlight the
relevant facts and procedural background.
On December 4, 2008, a grand jury empaneled by this Court retumed an indictment
charging Slatten and four co-defendants_all members of a Blackwater Tactical Support Team
called "Raven 23"_with multiple counts of voluntary manslaughter and attempted
manslaughter, as well as one count of using and discharging a firearm in relation to a crime of
violence. Unz``tea' States v. Slough, No. 08 Cr. 360, ECF No. l. The indictment alleged that the
defendants’ conduct occurred "outside of the jurisdiction of any particular State or district and
within the venue of the United States District Court for the District of Columbia, as provided by
18 U.S.C. § 3238." Id. at 11 4. Each count of the indictment also alleged that the defendants
committed the charged acts with "another joint offender known to the Grand Jury." Ia’. at 1111 5-
7, 9. The defendants filed their first motion to dismiss for lack of venue on January l3, 2009.
Slough, ECF No. 35. Following oral argument on February 17, 2009, this Court, Judge Urbina
presiding, denied the defendants’ motion. See Mots. Hr’ g Tr., Slough, ECF No. 127 at 79. The
Court found that the arrest of Jeremy Ridgeway, who had previously pled guilty for his role in
the September l6, 2007, Nisur Square shooting incident, was valid, and that Ridgeway was a
joint offender along with Slatten and the other Slough defendants. ld. at 77-78.
After this Court, Judge Urbina presiding, dismissed the 2008 indictment for violations of
Kastz``gar v. United States, 406 U.S. 441 (1972), Slough 1, the Circuit vacated this Court’s
decision and remanded the case, Slough II. On October l7, 201 3, a second grand jury empaneled
by this Court retumed a superseding indictment, charging Slatten and three co-defendants with
multiple counts of voluntary manslaughter and attempted manslaughter, as well as one count of
using and discharging a firearm in relation to a crime of violence. Slough, ECF No. 304. Once
again, the superseding indictment alleged that the defendants’ conduct "occurred outside of the
jurisdiction of any particular State or district and, another joint offender known to the Grand Jury
having been arrested in the District of Columbia, within the venue of the United States District
Court for the District of Columbia, as provided by 18 U.S.C. § 3238." Id. at 11 4. The
superseding indictment incorporated this venue allegation by reference in connection with each
of the counts charged in the indictment. Id. at 1111 6, 8, l0, l2.
On May l3, 2014, the Court denied the second motion (and supplemental motion) to
dismiss for lack of venue filed by the Slough defendants on February 2l and March 14, 2014,
respectively. Mem. & Order, Slough, ECF No. 436 (denying Slough, ECF Nos. 390 & 398).
The Court held that "[t]he superseding indictment properly alleges facts sufficient to support
venue under § 3238 as to each count" and that, "[a]s Judge Urbina previously found, sufficient
evidence exists in the record to conclude that Jeremy Ridgeway was a joint offender." Ia’. at 6.
However, this ruling did not speak to whether venue in this Court was proper as to Slatten,
whose indictment the Court had dismissed on April 23, 2014, Slough, ECF No. 428, in
accordance with the Circuit’s grant of the defendants’ petition for writ of mandamus issued on
April 7, 2014, Slough, ECF No. 415.
As a result of the expiration of the statute of limitations for voluntary manslaughter, a
third grand jury empaneled by this Court reindicted Slatten on one count of first-degree murder.
Slatten, 14 Cr. 107, May 8, 2014, ECF No. 1. Like the two prior indictments in this joint case,
Slatten’s new indictment alleged that his conduct "occurred outside of the jurisdiction of any
particular State or district and, another joint offender known to the Grand Jury having been
arrested in the District of Columbia, within the venue of the United States District Court for the
District of Columbia, as provided by 18 U.S.C. § 3238." Ia'. at 11 4. On May 19, 2014, Slatten
moved to dismiss his reindictment for lack of venue. Slatten, ECF No. 22.
II. LEGAL STANDARD
As this Court previously explained, Mem. & Order, Slough, ECF No. 436 at 3-4, "[t]he
Trial of all Crimes . . . not committed within any State . . . shall be at such Place or Places as the
Congress may by law have directed." U.S. Const. art. III, § 2, cl. 3. "The govemment bears the
burden of establishing by a preponderance of the evidence that venue is proper with respect to
each count charged against a defendant." United States v. Kwong- Wah, 924 F.2d 298, 301 (D.C.
Cir. 1991) (citing United States v. North, 910 F.2d 843, 912 n.52 (D.C. Cir. 1990)). "Venue is an
issue that normally must be submitted to the jury." Id. (citing United States v. Black Cloua’, 590
F.2d 270, 272 (8th Cir. 1979). "Venue may be proper in more than one district." Id. (citing
North, 910 F.2d at 912). Pursuant to 18 U.S.C. § 3238 (hereinafter "§ 3238"), the federal statute
goveming alleged crimes committed outside the United States, "[t]he trial of [such] offenses . . .
shall be in the district in which the offender, or any one of two or more joint offenders, is
arrested or is first brought."
III. ANALYSIS
In his reply brief, Slatten contends that "the Court should treat [this] motion to dismiss as
conceded” because the govemment filed its opposition brief after the fourteen days called for by
the District Court’s Local Criminal Rule 47(b). Def.’s Reply at 1. Given the hectic flurry of
motions in this case leading up to the date of trial, the Court will not consider this motion to be
conceded, notwithstanding the government’s late-filed opposition. See Local Crim. R. 47(b) (the
decision to treat as conceded a memorandum filed after the prescribed time is left to the Court’s
discretion). Rather, the Court will decide this issue on its merits.
The sole question here is whether, for purposes of venue under § 323 8, Jeremy Ridgeway
remains a "joint offender" as to Slatten, even though Slatten is only charged with one count of
first-degree murder.l This Court twice has held that Ridgeway is clearly a joint offender as to
the current Slough defendants_Paul Slough, Evan Liberty, and Dustin Heard-with whom there
is overlap in the charged offenses. See Mots. Hr’g Tr., Slough, ECF No. 127 at 77; Mem. &
Order, Slough, ECF No. 436 at 6-7. Now, the Court must detennine whether the fact that
l Slatten also briefly states that Ridgeway was never arrested, "venue in this case was improperly ‘manufactured’ by
the govemment," and "Slatten’s constitutional right to proper vicinage is violated by venue in the District of
Columbia." Def.’s Mot. at 8-9. The Couit, however, will not relitigate settled disputes. The Couit, Judge Urbina
presiding, has already rejected the Slough defendants’ identical claims, and Slatten has presented no facts warranting
reconsideration. Mots. Hr’g 'l``r., Slough, ECF No. 127 at 78-79; see also Mem. & Order, Slough, ECF No. 436 at 7-
8 (citing United States v. Sum``a, 643 F. Supp. 2d 51, 61 (D.D.C. 2009) ("where litigants have once battled for the
Court’s decision, they should neither be required, nor without good reason permitted, to battle for it again") (intenial
quotation marks and citation omitted)).
Ridgeway and Slatteii are charged with different offenses disqualifies Ridgeway as a joint
offender.
Contrary to Slatten’s motion, the "distinction" between first-degree murder and voluntary
manslaughter is not "dispositive of [] Ridgeway’s status as a joint offender vis-a-vis [] Slatten in
this case." See Mot. at 6. Slatten’s argument that "identical United States Code violations,
identical victims, or identical aiding and abetting allegations" are needed to confer "joint
off``ender" status on Ridgeway is misplaced See id. In fact, Slatten’s reindictment for murder-a
"closely related [] substantive offense" to manslaughter-does not alter Ridgeway’s position as a
joint offender in the Nisur Square shooting incident. See United States v. Levy Auto Parts, 787
F.2d 946, 949 (4th Cir. 1986).
Here, Ridgeway and Slatten-both Raven 23 teammates-participated in the same
shooting incident "in the same place at the same time." See Mots. Hr’ g Tr., Slough, ECF No.
127 at 77. That the statute of limitations required the govemment to reindict Slatten for one
count of murder, while Ridgeway remains charged with voluntary manslaughter, does not change
the unmistakable unity of conduct among Ridgeway, Slatten, and, for that matter, the Slough
defendants, on September 16, 2007, in Nisur Square. Regardless of the elevated intent element
underlying Slatten’s indictment, Slatten’s and Ridgeways’ joint participation in the shooting
7
incident surely satisfies the "plain-meaning definition of the term ‘joint offender" under §
3238.2 Cf Hong V0, 978 F. Supp. 2d at 64 (evaluating the term "joint offender" in accordance
with its "plain meaning" given that "helpful [legal] authorities are few").
2 When determining one’s status as a joint offender, the District Court has placed importance on whether "the
affidavit supporting arrest . . . ‘clearly disclose[d] that [the defendant and the purported joint offender were]
suspected of concerted criminal activity.’” See United States v. Hong Vo, 978 F. Supp. 2d 49, 64 (D.D.C. 2013)
(quoting Levy Auto Parts, 787 F.2d at 949) (second alteration not in original). Here, the affidavit provided in
support of the application for Ridgeway’s arrest warrant described concerted criminal activity among Ridgeway,
Slatten, and the Slough defendants-all of whom were members of the Raven 23 Blackwater convoy. Gov’t’s
Opp’n, Slough, Jan. 27, 2009, ECF No. 50 (Ex. 1 at 1111 5-6).
The legislative history of § 3238 is also instructive. The statute was, in part, designed to
avoid multiple trials in different parts of the country for joint crimes, which would place a
"substantia1 burden on the Govemment, and would be unnecessarily expensive." S. Rep. No. 88-
146, at 2 (1963). Moreover, the statute seeks to avert scenarios that "might involve several trips
to the United States for [] witnesses [from overseas]." Id. Here, there would be great overlap
among the Iraqi witnesses testifying as to the Slough defendants, who the Court repeatedly has
found to be joint offenders alongside Ridgeway, and those testifying as to Slatten_a reality that
reinforces the Court’s holding that Ridgeway is a joint offender in relation to Slatten.
Thus, as it has twice before, the Court finds that Ridgeway was a joint offender for
purposes of venue under § 3238.3
IV. CONCLUSION
For the foregoing reasons, the Court DENIES Slatten’s motion [22] to dismiss the
indictment for lack of venue.
A separate Order [86] consistent with this Memorandum Opinion was issued on June 16,
2014.
dale Qc~ /~»MZ-
mate Ro'YcE c_ LAMBERTH
United States District Judge
3 "Of course, should the govemment fail to prove by a preponderance of the evidence that a joint offender was
arrested in the District of Columbia, [Slatten] may renew [his] motion to dismiss for lack of venue in [his] motion
for judgment of acquittal." Mem. & Order, S/ough, ECF No. 436 at 7; see also Mots. Hr’g Tr., Slough, ECF No.
127 at 79.