United States v. Slough

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA : : : v. : Criminal Action No.: 08-0360 (RMU) : PAUL A. SLOUGH et al., : : Defendants. :

MEMORANDUM OPINION

GRANTING THE DEFENDANTS’ MOTION TO DISMISS THE INDICTMENT; DENYING AS MOOT THE GOVERNMENT’S MOTION TO DISMISS THE INDICTMENT AGAINST DEFENDANT SLATTEN WITHOUT PREJUDICE

[T]he basic purposes that lie behind the privilege against self-incrimination do not relate to protecting the innocent from conviction, but rather to preserving the integrity of a judicial system in which even the guilty are not to be convicted unless the prosecution 1 shoulder the entire load.

I. INTRODUCTION

The defendants have been charged with voluntary manslaughter and firearms violations

arising out of a shooting that occurred in Baghdad, Iraq on September 16, 2007. They contend

that in the course of this prosecution, the government violated their constitutional rights by

utilizing statements they made to Department of State investigators, which were compelled under

a threat of job loss. The government has acknowledged that many of these statements qualify as

compelled statements under Garrity v. New Jersey, 385 U.S. 493 (1967), which held that the

Fifth Amendment privilege against self-incrimination bars the government from using statements

compelled under a threat of job loss in a subsequent criminal prosecution. The Fifth Amendment

automatically confers use and derivative use immunity on statements compelled under Garrity;

this means that in seeking an indictment from a grand jury or a conviction at trial, the

1 Tehan v. U.S. ex rel. Shott, 382 U.S. 406, 415 (1966). government is prohibited from using such compelled statements or any evidence obtained as a

result of those statements.

The government has also acknowledged that its investigators, prosecutors and key

witnesses were exposed to (and, indeed, aggressively sought out) many of the statements given

by the defendants to State Department investigators. Under the binding precedent of the

Supreme Court in Kastigar v. United States, 406 U.S. 441 (1971) and this Circuit in United

States v. North, 910 F.2d 843 (D.C. Cir. 1990), the burden fell to the government to prove that it

made no use whatsoever of these immunized statements or that any such use was harmless

beyond any reasonable doubt.

Beginning on October 14, 2009, this court convened a Kastigar hearing to explore

whether the government had made any use of compelled statements during its prosecution of the

defendants. During this hearing, which spanned three weeks, the parties presented testimony

from twenty-five witnesses, including the government’s entire prosecution team, the lead FBI

agents in charge of the investigation and all five defendants. The parties offered hundreds of

exhibits into evidence and submitted voluminous pre- and post-hearing memoranda.

From this extensive presentation of evidence and argument, the following conclusions

ineluctably emerge. In their zeal to bring charges against the defendants in this case, the

prosecutors and investigators aggressively sought out statements the defendants had been

compelled to make to government investigators in the immediate aftermath of the shooting and

in the subsequent investigation. In so doing, the government’s trial team repeatedly disregarded

the warnings of experienced, senior prosecutors, assigned to the case specifically to advise the

trial team on Garrity and Kastigar issues, that this course of action threatened the viability of the

prosecution. The government used the defendants’ compelled statements to guide its charging

2 decisions, to formulate its theory of the case, to develop investigatory leads and, ultimately, to

obtain the indictment in this case. The government’s key witnesses immersed themselves in the

defendants’ compelled statements, and the evidence adduced at the Kastigar hearing plainly

demonstrated that these compelled statements shaped portions of the witnesses’ testimony to the

indicting grand jury.2 The explanations offered by the prosecutors and investigators in an

attempt to justify their actions and persuade the court that they did not use the defendants’

compelled testimony were all too often contradictory, unbelievable and lacking in credibility.

In short, the government has utterly failed to prove that it made no impermissible use of

the defendants’ statements or that such use was harmless beyond a reasonable doubt.

Accordingly, the court must dismiss the indictment against all of the defendants.

II. BACKGROUND

A. Factual Background

1. The Nisur Square Incident

The defendants – Paul Slough, Evan Liberty, Dustin Heard, Donald Ball and Nicholas

Slatten – were security guards employed by Blackwater Worldwide (“Blackwater”), a private

company that provided security services to U.S. government employees operating in Iraq.

Govt’s Pre-Hr’g Mem. at 2. On September 16, 2007, the defendants were part of a Blackwater

Tactical Support Team answering to the call sign “Raven 23,” whose function was to provide

back-up fire support for other Blackwater personal security details operating in Baghdad. Id.

2 In fact, the government has conceded that key testimony used to indict defendant Nicholas Slatten resulted from the exposure of grand jury witnesses to his compelled statements, and has moved for leave to dismiss the indictment against that defendant. See generally Govt’s Mot. for Leave to Dismiss Indictment Without Prejudice Against Def. Slatten.

3 The Raven 23 convoy consisted of four vehicles. Govt’s Ex. 2.3 Defendant Ball

functioned as the rear turret gunner on the lead vehicle. Id. Defendants Liberty, Slough and

Slatten were positioned in the third vehicle as the driver, turret gunner and designated defensive

marksman (or sniper) respectively. Id. Defendant Heard was the rear turret gunner in the fourth

vehicle. Id. Jeremy Ridgeway, who pleaded guilty to charges stemming from the incident and

has been cooperating with the government, functioned as the lead turret gunner in the fourth

vehicle. Id. The defendants were armed with machine guns, grenade launchers, rifles and

pistols. Govt’s Post-Hr’g Mem. (“Govt’s Mem.”) at 2.

Shortly before noon on September 16, 2007, Raven 23 received a message that a vehicle-

borne improvised explosive device (“VBIED”) had detonated in the vicinity of a compound in

which U.S. officials were meeting with Iraqi officials. Defs.’ Mot. for an Evidentiary Hr’g

Under Garrity and Kastigar at 4. The Raven 23 convoy subsequently took up positions in Nisur

Square, a traffic circle located just outside the International Zone in downtown Baghdad, to

secure an evacuation route for the American officials and the Blackwater team providing their

security. Id. Soon after the Raven 23 vehicles entered the traffic circle, a shooting incident

erupted, during which the defendants allegedly shot and killed fourteen persons and wounded

twenty others. Govt’s Mem. at 2. The government contends that the dead and wounded were

unarmed civilians who were the victims of unprovoked violence by the defendants. The

defendants maintain that they came under attack by insurgents and that their actions constituted a

legitimate response to a mortal threat.

The paroxysm of violence that occurred on September 16, 2007 in Nisur Square triggered

immediate responses that would have far-reaching consequences. As discussed below, the State

3 Citations to “Govt’s Ex. ___” refer to the exhibits introduced by the government during the Kastigar hearing.

4 Department, the U.S. military and Iraqi forces commenced immediate inquiries into the shooting.

Media began investigating the incident, interviewing eyewitnesses and probing sources in the

U.S. government. And ultimately, the decision was made to commence a criminal prosecution

against the defendants in this case.

2. The Defendants’ September 16, 2007 Statements to State Department Investigators

Hours after the shooting, the Department of State’s Diplomatic Security Service (“DSS”)

directed all the members of the Raven 23 convoy to submit to interviews at the State Department

offices in Baghdad, which are referred to by U.S. personnel as “the Palace.” Hr’g Tr., Oct. 14,

2009 p.m. at 20; 4 Hr’g Tr., Oct. 19, 2009 a.m. at 99-100; Defs.’ Post-Hr’g Mem. (“Defs.’

Mem.”) at 5; Govt’s Mem. at 3. DSS Special Agent Theodore Carpenter oversaw these

interviews, see Govt’s Mem. at 5, which were conducted by DSS Special Agents Michael

Scollan, Lisa Lopez, Mario Reta and David Motley, see Defs.’ Mem. at 6-7.

The September 16, 2007 interviews delved into the particulars of the Nisur Square

shooting. The defendants and the other members of the Raven 23 convoy provided the

interviewing DSS agents with detailed accounts of the actions they purportedly took at Nisur

Square. From these accounts, the DSS agents subsequently prepared two “Memorandum

Reports of Interviews” that memorialized these oral statements. See generally Defs.’ Reta Ex. 35

(Mem. Report of Interview, Sept. 16, 2007); Defs.’ Lopez Ex. 3 (Mem. Report of Interview,

Sept. 16, 2007).

4 Citations to the record of the Kastigar hearing will be indicated by specifying the date of the hearing session and whether the session took place in the morning or afternoon. 5 With the court’s permission, the defendants organized and labeled their exhibits by witness rather than proceeding sequentially. Citations to “Defs.’ [witness] Ex. ___” refer to the exhibits introduced by the defendants during the Kastigar hearing.

5 During the September 16, 2007 interviews, four of the five defendants acknowledged that

they had fired their weapons at Nisur Square. Defendant Slough, the turret gunner in the third

vehicle in the convoy, reportedly stated to DSS agents that

[a] white vehicle approached the team at a high rate of speed and would not stop despite his hand signals and throwing a water bottle. Other civilians tried to wave the vehicle down, but it still would not stop. [Slough] engaged and hit the driver. An Iraqi Policeman, wearing [a] blue button down shirt and black pants, began to push the vehicle towards [the] team. [Slough] engaged [the] vehicle a second time and [the] Iraqi Policeman ran away. [Slough] then witnessed muzzle flashes from a shack, returned fire, and hit the individual.

Defs.’ Lopez Ex. 3 at 1.

Defendant Slatten, also stationed in the third vehicle, reportedly told the DSS agents that

the Raven 23 convoy began “receiving small arms fire from the left side of their vehicles by two

individuals in the tree line. [Slatten] returned fire with two rounds hitting one of the

individuals.” Id. Defendant Heard, positioned in the rear vehicle, stated that he “fired on the

white vehicle that refused to stop with approximately one full magazine from [his] M-4. He then

saw muzzle flashes from an individual several meters behind [the] white vehicle and engaged

[that individual] with five to ten rounds from [his] M-4. He continued to receive fire from the

individual and responded with one round from his 203.”6 Id. Defendant Ball acknowledged to

DSS Agents Scollan and Reta that he fired two rounds into the driver’s door of the white vehicle

engaged by Slough and Heard. Defs.’ Reta Ex. 3 at 2.

Defendant Liberty did not acknowledge firing his weapon during his September 16, 2007

interview. See id. at 3-4. He did, however, disclose that the convoy “started receiving small

arms fire from the six o’clock position,” that he “saw two to three Iraqi Police officers with AK-

47s shooting at Raven 23 members,” and that he “saw one Iraqi Police combatant neutralized at

6 “203” refers to the M203 grenade launcher, which, according to U.S. Army Colonel David Boslego, fires a high explosive grenade approximately 350 meters with a lethal radius of approximately five meters. Hr’g Tr., Oct. 23, 2009 p.m. at 29.

6 the guard shack, approximately 25 meters away, and a second neutralized in the south-east

corner of the traffic circle.” Id. He specified that “most of the hostile activity toward Raven-23

. . . came from his 7 to 9 o’clock position.” Id.

3. The Hunter Memorandum

The September 16, 2007 interviews appear to have been conducted in connection with the

reporting procedures set forth in a State Department memorandum authored by Regional

Security Officer Mark Hunter and titled “WPPS[7] On-Duty Discharge of Firearm Reporting

Procedures” (“the Hunter Memorandum”). See Govt’s Ex. 32 at 1-2; Govt’s Mem. at 4. The

Hunter Memorandum required all Blackwater personnel involved in a shooting incident to report

immediately to the Regional Security Office Tactical Operations Center for a debriefing by State

Department officials. Govt’s Ex. 32 at 1. After the debriefing, any employee who discharged

his weapon was to be given a form, a template for which was attached to the Hunter

Memorandum, on which to prepare a written statement. Id. The form, which bore the heading

“Sworn Statement,” provided as follows:

I, _____________, hereby make the following statement at the request of _____________, who has been identified to me as a Special Agent of the U.S. Department of State, Diplomatic Security Service. I understand that this statement is made in furtherance of an official administrative inquiry regarding potential misconduct or improper performance of official duties and that disciplinary action, including dismissal from the Department’s Worldwide Personnel Protective Services contract, may be undertaken if I refuse to provide this statement or fail to do so fully and truthfully. I further understand that neither my statements nor any information or evidence gained by reason of my statements can be used against me in a criminal proceeding, except 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.

Id. at 3 (emphasis added). This admonishment – that an employee must make a statement or face

termination but that any statement so made cannot be used in a subsequent criminal prosecution 7 The term “WPPS” stands for “Worldwide Personnel Protective Services,” and refers to the contract for protective services between Blackwater and the Department of State.

7 – is commonly referred to as a “Garrity warning” or “Kalkines warning.” See Garrity, 385 U.S.

at 500; Kalkines v. United States, 473 F.2d 1391, 1393 (Ct. Cl. 1973) (holding that prosecutors

may not use statements compelled under a threat of removal from office or use any information

derived from those statements). Prior to the Nisur Square shooting, all of the defendants had

been involved in previous shooting incidents, after which they had been required to provide a

sworn written statement on the form described above. See Hr’g Tr., Oct. 27, 2009 a.m. at 10-11;

Hr’g Tr., Nov. 3, 2009 p.m. at 49-50, 82-83, 117, 136-37.

4. The Defendants’ September 18, 2007 Written Statements and the State Department’s Continuing Investigation

On September 18, 2007, the defendants and their fellow Raven 23 team members

submitted written statements regarding their actions at Nisur Square to the State Department on

the Hunter Memorandum form.8 Defs.’ Hulser Ex. 17 at 3 (Letter from Prosecutor Joseph Kaster

to Defense Counsel, June 30, 2009) (“Govt’s June 30, 2009 Letter”). The defendants’ September

18 written statements expanded on the oral statements they gave to DSS investigators on

September 16. See generally Slough Stmt. (Sept. 18, 2007); Slatten Stmt. (Sept. 18, 2007); Ball

Stmt. (Sept. 18, 2007); Heard Stmt. (Sept. 18, 2007); Liberty Stmt. (Sept. 18, 2007); see also

Defs.’ Farrington Ex. 4.

On September 18, 2007, at the Iraqi National Police (“INP”) Headquarters, DSS

investigators also interviewed fourteen Iraqi nationals who claimed to have witnessed the Nisur

Square incident. Defs.’ Carpenter Ex. 8. The interviewees were identified by the INP and many

were INP officers or traffic policemen posted at Nisur Square at the time of the incident. Id. In a

memorandum summarizing these interviews, Agent Carpenter stated that “[s]ome of the

8 As discussed below, the government has conceded that the written statements submitted by the defendants on September 18, 2007, and all subsequent oral statements given to DSS agents, constitute compelled statements under Garrity v. New Jersey, 385 U.S. 493 (1967). See infra Part III.B.1; see also Govt’s Mem. at 17.

8 questions asked of these witnesses may have been formed as a result of information provided by

[Raven] 23, but was limited due to not wanting to divulge what we had been told by [Raven] 23

and to just get the witnesses’ observations of the incident.” Id.

Over the following days, defendants Slough, Slatten, Ball and Heard submitted to

additional questioning by DSS agents regarding their actions at Nisur Square. See Defs.’

Carpenter Ex. 9; Defs.’ Lopez Ex. 5; Govt’s Mem. at 6. On September 20, 2007, several DSS

investigators, including Agent Carpenter, interviewed these four defendants in an effort to focus

on “the specific details” of the Nisur Square incident in light of the sworn statements submitted

two days earlier. See Defs.’ Carpenter Ex. 9. Later that day, DSS investigators conducted an

incident scene investigation at the Nisur Square traffic circle. Defs.’ Carpenter Ex. 8. DSS

investigators took photographs, interviewed additional witness and collected physical evidence

for analysis. Id.

On September 23, 2007, Agents Carpenter and Scollan re-interviewed Slough “to clarify

details relating to the threat types and locations engaged by Slough, weapons used to engage the

threats, and the number of rounds fired at each threat.” See Defs.’ Scollan Ex. 4 (Mem. Report

of Interview, Sept. 23, 2007) at 1. The interview report states that at the outset of the interview,

“Carpenter admonished Slough of the Kalkine warning concerning the administrative nature of

the investigation, and reminded him, that should he provide a false statement, he could be

criminally prosecuted for giving the false statement.” Id. During this interview, Slough

acknowledged for the first time that he had fired an M203 grenade at the white sedan. Id. at 2.

On September 24, 2007, DSS agents conducted additional re-interviews of Slough, Heard

and Ball to specifically address the number of grenades fired during the Nisur Square incident.

See Defs.’ Scollan Ex. 5. During these interviews, the defendants were shown photographs of

9 the scene as well as aerial photographs of the traffic circle and were asked to specify the

directions in which they had fired their weapons and the locations of the threats they had

allegedly seen. Id.

5. Dissemination of the Defendants’ Statements Made to DSS Investigators

Because of the nature of use immunity, Garrity statements may present thorny legal issues, even when the statement, itself, has not been introduced at trial or even seen by the prosecution team. This is true because an internal investigator, or other person having access to the Garrity statement, may reveal its contents to a federal investigator, prosecution witness, or the media – sometimes without revealing its source. When this 9 happens, it is possible that the testimony of other witnesses may become contaminated.

Media reports regarding the Nisur Square shooting began to appear almost immediately

after the incident. Several of these early reports included statements from State Department

officials asserting that Raven 23 had been engaged in a firefight at Nisur Square and that its

actions were taken to neutralize various insurgent threats. See, e.g., Defs.’ Media Exs. 22, 23,

24, 25.10 Some of these articles made specific reference to the fact that some Raven 23 team

members claimed that they had received incoming fire. See Defs.’ Media Ex. 28.

In the following days, the defendants’ September 18 written statements, which the

government has conceded were compelled under Garrity, were leaked to the media and

disseminated globally in news reports. See, e.g., Defs.’ Media Exs. 2, 6, 7. The earliest of these

reports was a September 28, 2007 article in which ABC News reported that it had obtained

“sworn statements given to State Department investigators” in which Blackwater personnel

described the events that had occurred at Nisur Square. Defs.’ Media Ex. 2. The report quoted

from the defendants’ September 18 written statements. Id. Later, the Washington Post

9 Govt’s Ex. 308 at DOJ_005791 (excerpt from DOJ Criminal Civil Rights manual). 10 The defendants introduced into evidence a collection of newspaper articles and other media accounts regarding the Nisur Square incident. Citations to “Defs.’ Media Ex. ___” refer to these documents.

10 published an article contrasting the accounts of the four Raven 23 team members with those of

Iraqi eyewitnesses. Defs.’ Media Ex. 13. On November 14, 2007, ABC News posted Slough’s

September 18 written statement, in its entirety, on its website. Defs.’ Media Ex. 7. Ultimately,

portions of the defendants’ September 18 statements appeared in reports by ABC News

(including in a nationally broadcast television segment), MSNBC/Newsweek, the Washington

Post, the New York Times and Time/CNN, among other sources. See Defs.’ Media Exs. 2, 6, 7,

13, 14, 23.

Press accounts regarding the Nisur Square incident pervaded the national news in both

Iraq and the United States for two weeks. Through these reports, Adam Frost, Matthew Murphy

and Mark Mealy – members of the Raven 23 convoy and key witnesses for the prosecution –

were repeatedly exposed to the defendants’ September 18 written statements. Frost and Murphy

both acknowledged reading the September 18 statements of Slatten and Slough, Hr’g Tr., Oct.

21, 2009 p.m. at 25-26; Hr’g Tr., Oct. 14, 2009 p.m. at 6, and seeing countless news articles

regarding the incident through their “Google News” alerts, many of which referenced and quoted

the defendants’ sworn statements, Hr’g Tr., Oct. 21, 2009 p.m. at 26-27; Hr’g Tr., Oct. 14, 2009

p.m. at 27. Likewise, Mealy acknowledged that he may have read the sworn written statements

of other Raven 23 team members. Hr’g Tr., Oct. 19, 2009 a.m. at 54.

6. The Investigations by Iraqi Forces, the U.S. Military and the Prosecution

Immediately after the Raven 23 convoy left Nisur Square on September 16, 2007, INP

officers entered the traffic circle and commenced an investigation. Govt’s Mem. at 7. These

officers began collecting physical evidence, including shell casings and spent ammunition

magazines, one of which had the name “Liberty” written on it. Id. In addition, Iraqi police

interviewed victims and eyewitnesses, including fellow INP officers. Id.

11 Within thirty minutes of the shootings, U.S. Army Colonel David Boslego, who had been

responsible for training the INP and was present at INP Headquarters, also arrived at the Nisur

Square traffic circle. Id. Colonel Boslego examined the scene for evidence of an insurgent

attack. Id. Although he found no evidence of insurgent activity, he discovered numerous

American shell casings, a spent M203 grenade cartridge and two spent magazines bearing the

name “Liberty.” Id. at 7-8.

Another high-ranking American officer, Colonel Michael Tarsa, arrived to inspect the

scene within an hour after the incident. Id. at 8. Colonel Tarsa was the battalion commander

responsible for operations in the area of Baghdad that included Nisur Square. Hr’g Tr., Oct. 21,

2009 a.m. at 13-14. Like Colonel Boslego, Colonel Tarsa observed numerous shell casings but

found no evidence of an insurgent attack. Id. at 25-26.

In early October 2007, FBI investigators arrived in Baghdad to investigate the Nisur

Square shooting. Govt’s Ex. 207. Over the next several weeks, FBI investigators interviewed

over seventy-five Iraqi witnesses and victims identified by the INP. Govt’s Mem. at 7. The FBI

also conducted dozens of interviews of Blackwater personnel, U.S. military police and INP

officers. Hr’g Tr., Oct. 21, 2009 p.m. 102-03. 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. Govt’s

Mem. at 9.

Among the Blackwater personnel interviewed were members of the Raven 23 convoy

still present in Iraq. Hr’g Tr., Oct. 21, 2009 p.m. at 103-04. Three of the individuals interviewed

– Adam Frost, Matt Murphy and Mark Mealy – had raised concerns about the events at Nisur

Square with their Blackwater supervisors in the immediate aftermath of the shooting. Hr’g Tr.,

12 Oct. 14, 2009 a.m. at 34-35. All three expressed a willingness to cooperate with the

government’s investigation. Hr’g Tr., Oct. 21, 2009 p.m. at 114; Hr’g Tr., Oct. 19, 2009 a.m. at

26; Govt’s Ex. 207 at 11.

7. Hulser’s Cautionary Intervention

A defendant’s rights under Garrity are protected, in part, by self-policing by government prosecutors. This happens, in large measure, by prosecutors having potential Garrity materials reviewed and redacted by persons who are not part of the prosecution team.11

On September 26, 2007, representatives of the FBI and the Department of Justice

(“DOJ”) Criminal Division met with State Department representatives to discuss the preliminary

findings of the DSS investigation into the Nisur Square shooting. Defs.’ Mot. for Evidentiary

Hr’g Under Kastigar and Garrity, Ex. 23 (Letter from Prosecutor Joseph Kaster to Defense

Counsel, May 29, 2009) (“Govt’s May 29, 2009 Letter”) at 2. At that meeting, State Department

representatives distributed copies of a DSS report that summarized the State Department’s initial

findings, including information gained from the oral and written statements provided by the

defendants to DSS investigators. Id.

On September 28, 2007, the State Department’s Office of Legal Counsel contacted the

DOJ’s Criminal Division and expressed concern that some of the information used to prepare the

DSS report may have been based on compelled statements made by Blackwater personnel. Id.

In light of these concerns, the government assigned to the case a team of prosecutors and

investigators who had not participated in the September 26, 2007 meeting and had not been

exposed to the information discussed at that meeting. Id. The government barred the DOJ

Criminal Division from further involvement in the case and assigned prosecutors in the

Counterterrorism Section of the National Security Division (and later the United States

Attorney’s Office for the District of Columbia) to investigate the Nisur Square shooting. Id.;

11 Govt’s Ex. 308 at DOJ_005797 (excerpt from DOJ Criminal Civil Rights manual).

13 Hr’g Tr., Oct. 22, 2009 p.m. at 78. Assistant United States Attorney Kenneth Kohl was assigned

to lead the new trial team, to be assisted by Department of Justice trial attorney Stephen

Ponticello.12 Defs.’ Mem. at 26. FBI Special Agent John Patarini was assigned as the team

leader and case agent for the investigative team. Hr’g Tr., Oct. 21, 2009 p.m. at 63-64.

In early October 2007, Raymond Hulser, a Deputy Chief in the Public Integrity Section

of the Criminal Division, was assigned as the “taint attorney” for the Nisur Square investigation.

Govt’s May 29, 2009 Letter at 3. He was selected for that role because of his experience with

Garrity and Kastigar issues. Hr’g Tr., Oct. 23, 2009 a.m. at 17-18. As head of the “taint team,”

Hulser was charged with “prevent[ing] the prosecutors and investigators who were to handle the

investigation from being exposed to potentially compelled statements or information derived

from such statements” by pre-screening information obtained from sources including the State

Department, Blackwater and the media, prior to the disclosure of such information to the trial

team. Govt’s May 29, 2009 Letter at 3. In addition, in October 2007, Hulser and Jesse Tampio,

a State Department attorney, drafted a written protocol to govern the use of information derived

from DSS personnel in the course of the investigation. Id.; see Defs.’ Hulser Ex. 2. The

protocol was designed to prevent the FBI investigative team operating in Baghdad from exposure

to information derived from any potentially compelled statements obtained by DSS investigators.

Govt’s Mem. at 6; Defs.’ Hulser Ex. 2.

12 Assistant United States Attorney Jonathan Malis joined the team in the summer of 2008. Defs.’ Mem. at 26.

14 8. Failure of the Government’s Taint Procedures

Unless the government relies solely upon evidence obtained prior to the immunized testimony, the principles of Kastigar generally require (as a practical matter) a showing that prosecuting officials and their agents were aware of the immunity problem and followed reliable procedures for segregating the immunized testimony and its fruits from officials pursuing any subsequent investigations.13

By all accounts, these prophylactic measures fell well short of expectations, particularly

with respect to the defendants’ September 16, 2007 oral statements to DSS investigators.

Throughout the investigation, Hulser repeatedly advised the trial team not to obtain or rely on

any information derived from the defendants’ September 16 oral interview statements. For

instance, on November 29, 2007, Hulser wrote an e-mail to Michael Mullaney, a Section Chief

within the DOJ’s National Security Division,14 in which he stated that “[w]hile no Kalkines

warning was given before [the September 16, 2007] interviews, I believe that we should treat all

of their statements to the [DSS agents] as compelled given the practice of routinely giving the

Kalkines warning to the participants in a shooting.” Defs.’ Kohl Ex. 10. Mullaney forwarded

Hulser’s e-mail to Kohl, who responded, “Got it. Thanks Mike.”15 Id.

On December 10, 2007, Hulser wrote to Mullaney expressing concern about the trial

team’s intention to interview Agent Carpenter and other DSS agents who had interviewed the

defendants and participated in the Nisur Square investigation. See Govt’s Ex. 57 at 1. As Hulser

explained, “[g]iven that they took, reviewed and/or wrote a report based on compelled

13 United States v. Hampton, 775 F.2d 1479, 1490 (11th Cir. 1985). 14 At the outset of the investigation, Mullaney served as a liaison between the taint team and the trial team, and all communications between Hulser and Kohl were transmitted through Mullaney. Hr’g Tr., Oct. 23, 2009 a.m. at 99-100; Govt’s Mem. at 13. 15 Kohl testified that although he responded to Mullaney’s forward, he did not, in fact, read Hulser’s e-mail advising the trial team not to use the September 16 oral statements. Hr’g Tr., Oct. 28, 2009 p.m. at 122-23. This was the second e-mail from Hulser containing similar advice that Kohl received in one week, see Defs.’ Kohl Ex. 9; he also claimed not to have read the prior e-mail because he was too busy, Hr’g Tr., Oct. 28, 2009 p.m. at 122-23.

15 statements, they are thoroughly tainted, and even the focus of the investigative steps that they

took would have been affected by the compelled statements.” Id. (emphasis added).

On January 15, 2008, Hulser again wrote to Mullaney, advising him that he viewed “any

statements taken after the 9/16 incident whether they occurred before or after the sworn, written

statements” as potentially compelled. Defs.’ Hulser Ex. 10. Hulser reasoned that “[g]iven the

routine practice of getting compelled written statements following shooting incidents, and given

that the Team 23 members had themselves provided compelled statements following prior

incidents, the Team 23 members may claim that they thought all of their post-shooting

statements and interviews were compelled, regardless of the form in which they were taken or

the order in which they provided them.” Id. Hulser then reiterated that

the FBI needs to understand that in interviewing Ted Carpenter, who was involved in the initial investigation and who is thoroughly tainted, there is a substantial risk that the FBI will be tainted. It is not only Ted’s written interview reports and notes that contain tainted materials; rather, his thought processes, the focus of his investigation, what he looked at and when – these may all have been influenced by compelled statements. We’ve got an uphill battle on this Garrity issue, and the burden of proof is ours, so we need to be particularly cautious.

Id. (emphasis added).

Likewise, on February 4, 2008, Hulser wrote an e-mail to Mullaney stating that he

believed “any statement given by the 9/16 participants following the incident, whether in the

form of interviews, after-action-reports, or written statements with Kalkines warnings should be

treated as compelled because of the pervasive practice of compelling them to give statements

after every incident.” Defs.’ Hulser Ex. 6. In a separate e-mail also sent on February 4, 2008,

Hulser advised Mullaney that he did not plan to provide the trial team with any reports of Agent

Lopez’s interviews of the defendants “or any summary or spot reports, as those materials may

contain information from compelled (or arguably compelled) statements of the individuals who

16 remain subjects” of the investigation.16 Defs.’ Kohl Ex. 16.

In direct contravention of Hulser’s unequivocal warnings, in January and February 2008,

the government’s trial team interviewed all of the DSS agents who had conducted the September

16, 2007 interviews and specifically inquired about the details of the defendants’ statements

during those interviews. Defs.’ Mem. at 28; Govt’s Mem. at 13-14. For instance, on January 11,

2008, the trial team interviewed Agent Carpenter, whom Hulser had specifically described as

“thoroughly tainted,” Defs.’ Hulser Ex. 10, and obtained information regarding the defendants’

statements to DSS investigators, Hr’g Tr., Oct. 19, 2009 a.m. at 30. Two weeks later, the trial

team interviewed Agent Lopez and obtained her interview notes from the interviews conducted

on September 16, 2007. Hr’g Tr., Oct. 15, 2009 p.m. at 60-61. Indeed, Kohl testified that both

he and his investigators were exposed to a tremendous amount of information from the

defendants’ September 16, 2007 interview statements.17 Hr’g Tr., Oct. 29, 2009 a.m. at 115.

Furthermore, in February 2008, prosecutors used the defendants’ September 16, 2007

statements to obtain a search warrant authorizing the government to search the e-mail accounts

of the Raven 23 team members to obtain unsigned drafts of their September 18, 2007 written

statements.18 See Defs.’ Mem. at 31-32; see generally Govt’s Ex. 288. To demonstrate probable

cause justifying the search, Agent Patarini noted in his affidavit that “within hours after the

16 Kohl testified that Mullaney never forwarded him the February 4, 2008 e-mail from Hulser regarding Lopez’s interview notes. Hr’g Tr., Oct. 29, 2009 a.m. at 58-59. Mullaney testified that although he had no specific recollection of forwarding the e-mail in question, it was his custom to forward Hulser’s e-mails to the trial team. Hr’g Tr., Oct. 26, 2009 p.m. at 8-9. 17 As discussed below, the government’s trial team also acquired information regarding the defendants’ post-September 16 statements to DSS investigators, which the government has conceded are compelled under Garrity. See infra Part III.C.2. 18 The search warrant application was ostensibly made as part of an investigation into potential obstruction of justice charges against Blackwater managers. See Govt’s Mem. at 15; Govt’s Ex. 288 at 9-10; Hr’g Tr., Oct. 28, 2009 p.m. at 44.

17 incident, all 19 members of [Raven 23] were interviewed by agents of the [DSS]” and that

“[t]hese interviews confirmed that only a few of the guards actually fired their weapons.” Govt’s

Ex. 288 at 8. Hulser was never informed about the search warrant and never approved the use of

the September 16 interview statements to obtain the search warrant for the September 18 written

statements.19 Hr’g Tr., Oct. 23, 2009 a.m. at 28-29. Hulser testified that had he been informed,

he would not have permitted the trial team to view any records obtained from the search prior to

screening by a taint attorney. Id.

Agent Patarini executed the search warrant on February 15, 2008 and obtained drafts of

the September 18 written statements of defendants Ball and Slatten. Hr’g Tr., Oct. 22, 2009 p.m.

at 14-17. Agent Patarini reviewed the draft statements in the spring or summer of 2008 and

included those statements in a binder of search warrant materials he provided to the prosecution

team. Id. at 17-22; Hr’g Tr., Oct. 28, 2009 p.m. at 46. Kohl testified that he admonished Agent

Patarini for reviewing the draft statements and directed him not to disclose the contents of those

statements. Hr’g Tr., Oct. 28, 2009 p.m. at 46. However, Agent Patarini testified on this point

and before the court that the search warrant was “a project driven by [Kohl].” Hr’g Tr., Oct. 22,

2009 p.m. at 23.

The divergent views of Hulser and Kohl regarding the status and viability of the

defendants’ September 16 interview statements came to the fore in April 2008. On April 11,

2008, Kohl wrote to Hulser expressing frustration at Hulser’s reluctance to approve the trial

team’s use of “incident reports,” given his understanding that Hulser had “previously approved

and cleared other materials that contain statements made by the targets of our investigation, on

the theory that the reports and notes were generated prior to the existence of the sworn Kalkines

19 Hulser stated that he did not learn of the search warrant until less than a week before testifying at the Kastigar hearing. Hr’g Tr., Oct. 23, 2009 a.m. at 28-29.

18 statements made by these individuals.” Defs.’ Hulser Ex. 8. Hulser responded that he had never

approved the use of such statements by the defendants. Id.20 Three days later, Hulser wrote to

Kohl reiterating that his “concern about the immediate debriefs and reports [was] that they were

just one part of a mandatory and compelled process to get information after the shooting

incidents.” Defs.’ Hulser Ex. 9.

On April 18, 2008, Kohl and Hulser met to discuss their disagreement over the taint

issue. Hr’g Tr., Oct. 29, 2009 a.m. at 78; see Defs.’ Kohl Ex. 21. At the conclusion of this

meeting, Kohl and Hulser agreed that for all future requests for information from the prosecution

team, Kohl alone would determine what investigative materials should be provided directly to

the trial team and what materials should be provided to Hulser for screening. See Defs.’ Kohl

Ex. 21.

Despite these efforts, “miscommunications” – as the government charitably deems them

– persisted even after the April 18, 2008 meeting. For instance, Kohl testified that during the

meeting, Hulser “said he wished [the trial team] could have delayed as long as possible before [it

was] exposed to” the defendants’ September 16 interview statements, but that he did not

expressly prohibit the trial team from making use of those statements.21 Hr’ Tr., Oct. 29, 2009

a.m. at 79. Hulser, on the other hand, testified that during the April 18, 2008 meeting, he advised

Kohl to make no use whatsoever of the defendants’ September 16 interview statements already

in his possession. Hr’g Tr., Oct. 23, 2009 a.m. at 42.

20 Hulser wrote to Kohl, “I’m concerned if you have notes of interviews regarding 9/16 for any of your current subjects. I did not approve that.” Defs.’ Hulser Ex. 8. 21 Although Kohl testified that Hulser did not expressly prohibit the trial team from using the defendants’ September 16 interview statements, he testified that after the April 18, 2008 meeting, he decided on his own that he would make no use of those statements. Hr’g Tr., Oct. 29, 2009 a.m. at 79-80.

19 In July 2008, Kohl approached counsel for defendant Heard to discuss whether Heard

would be willing to cooperate with the government’s investigation. Hr’g Tr., Oct. 29, 2009 a.m.

at 161-62. During that meeting, Kohl referenced statements made by Heard during his

September 16 interview – specifically, his failure to disclose firing an M203 grenade during his

initial interview followed by his admission to DSS investigators later that evening that he had, in

fact, fired a grenade. Id. at 162-63. Kohl testified that he raised this fact during the plea

discussions because he viewed it as evidence reflecting Heard’s consciousness of guilt. Id. at

163.

Furthermore, in August 2008, Kohl requested and obtained information regarding the

defendants’ September 16 interview statements to DSS investigators – namely, the two

“Memorandum Reports of Interviews” prepared by the interviewing DSS agents. Hr’g Tr., Oct.

29, 2009 a.m. at 165-66; Govt’s June 30, 2009 Letter at 4. Kohl read these documents in the

course of considering whether a false statements charge should be brought against the

defendants. Govt’s June 30, 2009 Letter at 4. Hulser testified that he had no recollection of

being advised of this request.22 Hr’g Tr., Oct. 23, 2009 p.m. at 43.

9. The First and Second Grand Juries

The Fifth Amendment guarantees that no civilian may be brought to trial . . . ‘unless on a presentment or indictment of a Grand Jury.’ This constitutional guarantee presupposes an investigative body acting independently of either prosecuting attorney or judge, whose mission is to clear the innocent, no less than to bring to trial those who may be guilty.23

22 In addition, in the summer of 2008, Kohl and Malis each purchased a copy of a book entitled Blackwater – The Rise of the World’s Most Powerful Mercenary Army, by Jeremy Scahill. Govt’s June 30, 2009 Letter at 4. The introduction of the book contained witness accounts by Blackwater guards concerning the Nisur Square shooting. Id. The government maintains that Kohl and Malis each stopped reading the introduction before encountering any of these accounts. Id. 23 See United States v. Dionisio, 410 U.S. 1, 16-17 (1973) (internal citations and quotation marks omitted).

20 A grand jury was convened in late November 2007, at which Frost, Murphy and Mealy

testified, along with other members of the Raven 23 convoy. Govt’s Mem. at 10. Kohl and

Ponticello were aware before these witnesses testified that media outlets had disseminated the

defendants’ September 18 written statements in news reports and articles, and that many of the

witnesses they intended to call, including Frost, Murphy and Mealy, had been exposed to the

defendants’ written statements. Govt’s June 30, 2009 Letter at 5. Recognizing these concerns,

the government advised the witnesses before they took the stand to testify based on what they

had personally seen and heard, and not to disclose to the grand jury any information obtained

from the sworn written statements of other Raven 23 team members. Id.

Prior to asking the grand jury to return the indictment, the trial team reviewed the grand

jury record to determine whether any Garrity evidence had been presented. Id. The government

concluded that despite the admonishments given to the witnesses, the grand jury may have been

exposed to such evidence, specifically through the testimony of Frost, Murphy, Mealy and other

members of the Raven 23 convoy. Id.; Hr’g Tr., Nov. 2, 2009 a.m. at 21-22. Consequently, the

government elected to withdraw the case from this grand jury and to re-present the case to a

second grand jury. Govt’s June 30, 2009 Letter at 5.

In preparation for the second grand jury, prosecutors Kohl and Malis met with Hulser and

Karla Dobinski, a recognized DOJ Garrity expert, regarding the taint issue. Hr’g Tr., Nov. 2,

2009 a.m. at 8, 29. The prosecutors decided that, among the Blackwater witnesses, they would

rely solely on the testimony of Frost, Murphy and Mealy, purportedly because the prosecutors

were the most confident that these three witnesses could survive a Kastigar hearing. Id. at 24.

Rather than have these witnesses take the stand again, however, the prosecutors chose to provide

the second grand jury with transcripts of their testimony at the first grand jury, redacted to

21 remove references to information derived from the defendants’ compelled statements. Id. at 31-

32. Prosecutor Malis was responsible for making these redactions, in consultation with Hulser

and Dobinski. Id. In addition, the prosecutors decided to have Robyn Powell, an FBI agent

without any knowledge of or exposure to the case, summarize evidence for the second grand

jury. Id. at 29-30.

The second grand jury was convened in late November 2008. Agent Powell, the sole live

witness presented to the second grand jury, summarized evidence from Iraqi witnesses, as well as

information from cooperating witness Ridgeway, who by this time had entered a guilty plea, and

summarized portions of the prior grand jury testimony of Frost, Murphy and Mealy. See

generally Govt’s Ex. 1. In addition, the prosecutors presented the second grand jury with

redacted transcripts of the prior grand jury testimony of Frost, Murphy and Mealy, along with

summaries prepared by the prosecutors of the evidence against each defendant. See generally id.

By proceeding in this fashion, the prosecutors withheld from the second grand jury

substantial exculpatory evidence that had been presented to the first grand jury. For instance,

Raven 23 team members Thomas Vargas, Jeremy Skinner, Daniel Childers and Edward Randall

all testified before the first grand jury that the Raven 23 convoy responded to incoming fire.

Vargas testified before the first grand jury that approximately “five seconds after we pulled into

our positions, we started taking fire” and that he “could hear AK-47 fire” and “immediately saw

two insurgents.” Hr’g Tr., Nov. 3, 2009 a.m. at 10. Skinner likewise testified that he heard

gunfire and saw “two distinct separate muzzle flashes” fired by insurgents at the Raven 23

convoy. Id. at 12. Childers testified that he heard incoming gunfire coming from his seven to

eight o’clock position. Id. at 17. And Randall testified that the Raven 23 convoy took fire from

the south and southwest and that he saw a round impact the side of one of the vehicles. Id. at 18-

22 19. Although Malis acknowledged that this testimony corroborated the defendants’ self-defense

theory, none of this testimony was presented to the second grand jury. Id. at 10-19. Indeed,

Malis testified that he chose not to present the testimony of these witnesses to the second grand

jury because the testimony indicated that the witnesses were “hostile” to the prosecution. Hr’g

Tr., Nov. 2, 2009 a.m. at 22. DOJ guidelines require prosecutors to present exculpatory evidence

to the grand jury. United States Attorneys’ Manual § 9-11.233 (stating that “[i]t is the policy of

the Department of Justice . . . that when a prosecutor conducting a grand jury inquiry is

personally aware of substantial evidence that directly negates the guilt of a subject of the

investigation, the prosecutor must present or otherwise disclose such evidence to the grand jury

before seeking an indictment against such a person”).

The government also redacted exculpatory portions of the testimony of Frost, Murphy

and Mealy. For instance, Murphy testified at the first grand jury that even though he was

positioned close to defendant Ball, he never saw Ball fire his weapon and that Ball certainly

“wasn’t just shooting wildly” if he was shooting at all. Hr’g Tr., Nov. 2, 2009 p.m. at 115-16.

The prosecutors redacted this testimony from the transcripts presented to the second grand jury,

even though Malis acknowledged that it was exculpatory and had nothing whatsoever to do with

the taint issue. Id. at 116.

Furthermore, the evidence summaries presented to the second grand jury presented

distorted versions of the testimony on which they were based. For example, in the summary of

evidence against defendant Slatten, the prosecutors stated that “Matt Murphy and Adam Frost

recall that the first thing they heard at Nisur Square was the sound of two shots coming from the

command vehicle, which they recognized as Slatten’s ‘heavy caliber’ sniper rifle.” GJ Ex. 107.24

Agent Powell told the second grand jury that “[a]ccording to Frost, the initial rounds that were 24 Citations to “GJ Ex. __” refer to the exhibits presented to the second grand jury.

23 fi[r]ed according to him sounded like they were from Slatten’s sniper rifle.” Hr’g Tr., Oct. 21,

2009 p.m. at 25. In reality, Frost had testified at the first grand jury that it was his “pure

speculation” that those “two pops” were rifle fire.25 Id. at 23-24. At the Kastigar hearing, Frost

testified that Agent Powell’s “summary” of his testimony was inaccurate. Id. at 25.

Finally, Kohl informed the second grand jury at the outset of the proceedings that each of

the defendants had given sworn testimony to State Department investigators in the immediate

aftermath of the incident, but that “in exchange for them giving those statements, the U.S.

government promised, essentially . . . that [it] wouldn’t use those statements against them in a

criminal proceeding.” Hr’g Tr., Nov. 3, 2009 a.m. at 22. This prompts the question – why did

the prosecutors go out of their way to tell the grand jury that the defendants had made statements

in exchange for immunity? The government’s explanation – that the prosecutors were

attempting to determine if any grand jurors had been tainted by the defendants’ statements,

Govt’s Reply Mem. at 17 – is unpersuasive, to say the least, as the prosecutors obviously could

have inquired into whether any grand jurors had been exposed to the defendants’ statements

without revealing that the defendants had claimed immunity. It is reasonable to believe that the

purpose of these disclosures was to color the grand jury’s thinking by telling it of the existence,

if not the content, of withheld incriminating statements made by the targets of the prosecution.

On December 4, 2008, the second grand jury returned an indictment against the

defendants, charging them with voluntary manslaughter and weapons violations based on the

Nisur Square incident. See generally Indictment.

25 The government has acknowledged that Frost’s “speculation” was based on his exposure to Slatten’s sworn written statement. See Govt’s Mot. for Leave to Dismiss Indictment Without Prejudice Against Def. Slatten at 1.

24 B. Procedural History

In early May 2009, the government filed a “Motion for a Garrity Hearing in Lieu of a

Pretrial Kastigar Hearing,” in which it argued that the defendants’ statements to DSS

investigators should not be analyzed as immunized statements, which would require the court to

hold a Kastigar hearing to permit the government to prove it made no use of those statements.

See generally Govt’s Mot. for a Garrity Hr’g in Lieu of a Pretrial Kastigar Hr’g. On July 22,

2009, the court denied the government’s motion, concluding that there had been inadequate

briefing on the legal and factual foundation for the application of Kastigar. Mem. Order (July

22, 2009) at 4. The court set aside dates for a Kastigar hearing and ordered the defendants to file

a motion setting forth a firm foundation for their assertion that immunized testimony was

improperly utilized in this case. Id.

Following extensive briefing, the court issued a sealed memorandum opinion on

September 8, 2009, holding that any Garrity compelled statements made by the defendants were

entitled to use and derivative use immunity, and that the defendants had laid a firm foundation

that immunized testimony was used in the investigation and prosecution of this case. See

generally Mem. Op. (Sept. 8, 2009); infra Part III.A.2. Accordingly, the court ordered that a

Kastigar hearing be held on the dates set aside in the court’s prior order.26

The hearing, which commenced on October 14, 200927 and concluded three weeks later,

explored two principal issues: (1) whether the defendants’ September 16, 2007 interview

26 The court also rejected the government’s request to delay the Kastigar hearing until after trial, noting that there was little sense in proceeding to a potentially lengthy trial while the validity of the indictment remained in question. See Mem. Op. (Sept. 8, 2009) at 20-22. 27 At the outset of the hearing, the court ordered that the hearing be held in camera to prevent the disclosure of tainted information and confidential grand jury materials. See United States v. De Diego, 511 F.2d 818, 824 (D.C. Cir. 1975) (noting with approval the practice of holding taint hearings in camera).

25 statements to DSS investigators constituted compelled statements under Garrity and (2) whether

the government had made any impermissible use of any Garrity compelled statements. The

parties acknowledged that the defendants had the burden of persuasion on the first issue while

the government had the burden of persuasion on the second.

Approximately three weeks after the hearing concluded, while the parties were still

engaged in post-hearing briefing, the government moved for leave to dismiss the indictment

against defendant Slatten without prejudice, conceding that the evidence which came to light at

the Kastigar hearing did not satisfy its Kastigar burden against that defendant. Slatten

subsequently cross-moved for dismissal of the claims against him with prejudice, based on the

absence of sufficient untainted evidence to support a subsequent indictment as well as

prosecutorial misconduct in obtaining the indictment. Two weeks later, defendant Ball also filed

a motion to dismiss the indictment against him with prejudice, alleging prosecutorial

misconduct.28

III. ANALYSIS

A. Legal Framework

1. Legal Standard for the Application of Kastigar

In Kastigar v. United States, 406 U.S. 441 (1971), the Supreme Court held that

‘Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent legitimate source for the disputed evidence.’

This burden of proof . . . is not limited to negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use

28 The court will address the motions of Ball and Slatten to dismiss the indictment with prejudice in a separate memorandum opinion.

26 is derived from a legitimate source wholly independent of the compelled testimony.

Id. at 460 (quoting Murphy v. Waterfront Comm’n, 378 U.S. 52, 79 n.18 (1964)). As this Circuit

has noted, “[w]hen the government proceeds to prosecute a previously immunized witness, it has

‘the heavy burden of proving that all of the evidence it proposes to use was derived from

legitimate independent sources.’” United States v. North, 910 F.2d 843, 854 (D.C. Cir. 1990)

(“North I”) (quoting Kastigar, 406 U.S. at 461-62), reh’g denied, 920 F.2d 940 (D.C. Cir. 1990)

(“North II”).

“A trial court must normally hold a hearing (a ‘Kastigar hearing’) for the purpose of

allowing the government to demonstrate that it obtained all of the evidence it proposes to use

from sources independent of the compelled testimony.” Id. (citing United States v. Rinaldi, 808

F.2d 1579, 1584 (D.C. Cir. 1987)). During the hearing, the government must show that for each

witness on whom it relies, “no use whatsoever was made of any of the immunized testimony

either by the witness or by the [prosecutor] in questioning the witness.” Id. at 872-73 (noting

that this inquiry “must proceed witness-by-witness; if necessary, it will proceed line-by-line and

item-by-item”) (emphasis added).29 “Unless the District Court can make express findings that

the government has carried this heavy burden as to the content of all of the testimony of each

witness, that testimony cannot survive a Kastigar test.” Id. at 873.

In articulating the reach of Kastigar’s prohibition on the “use” of immunized testimony,

the Circuit has distinguished between “evidentiary” and “nonevidentiary” use. See North I, 910

F.2d at 856-61. Evidentiary use of immunized testimony includes the direct presentation of

immunized testimony to the grand or petit jury, as well as any derivative (or indirect) use of the

29 The Kastigar hearing may be held “pre-trial, post-trial, mid-trial (as evidence is offered), or [through] some combination of these methods,” although “[a] pre-trial hearing is the most common choice.” United States v. North, 910 F.2d 843, 872-73 (D.C. Cir. 1990).

27 immunized testimony. See United States v. Hubbell, 530 U.S. 27, 41 (2000) (observing that the

introduction of evidence derived from immunized sources “would surely be a prohibited ‘use’ of

the immunized act of production”). Derivative evidentiary use includes the exposure of

witnesses to immunized testimony “to refresh their memories, or otherwise to focus their

thoughts, organize their testimony, or alter their prior or contemporaneous statements,” North I,

910 F.2d at 860; see also North II, 942 F.2d at 942 (noting that “Kastigar is . . . violated

whenever the prosecution puts on a witness whose testimony is shaped, directly or indirectly, by

compelled testimony, regardless of how or by whom he was exposed to that compelled

testimony”). Evidentiary use also includes the use of immunized testimony to obtain

investigatory leads, see United States v. Hubbell, 167 F.3d 552, 585 (D.C. Cir. 1999), and to

influence a witness to testify, see United States v. Hylton, 294 F.3d 130, 134 (D.C. Cir. 2002).

Nonevidentiary use, by contrast, is that which does not culminate directly or indirectly in

the presentation of evidence against the immunized person. North I, 910 F.2d at 857. Such use

includes “assistance in focusing the investigation, deciding to initiate prosecution, refusing to

plea bargain, interpreting evidence, planning cross-examination and otherwise generally

planning trial strategy.” Id. Although Kastigar clearly prohibits the government from making

any direct or indirect evidentiary use of immunized testimony, see Kastigar, 406 U.S. at 460, it

“does not expressly discuss the propriety of nonevidentiary use,” North I, 910 F.2d at 858. The

Circuit declined to resolve the issue in North I, see id. at 860 (assuming without deciding that

Kastigar bars nonevidentiary use of immunized testimony), and has yet to squarely address the

issue, see United States v. Kilroy, 27 F.3d 679, 687 n.7 (D.C. Cir. 1994).

Nonetheless, the court derives significant guidance regarding the permissible bounds of

nonevidentiary use in the Circuit’s discussion of the issue in North I. The Circuit began its

28 analysis by rejecting the rule articulated in United States v. McDaniel, 482 F.2d 305 (8th Cir.

1973), which held that any nonevidentiary use necessarily violates the Fifth Amendment. See

North I, 910 F.2d at 858-59 (citing McDaniel, 482 F.2d at 311). The Circuit noted its agreement

with the holdings of other circuits that “a prosecution is not foreclosed merely because the

‘immunized testimony might have tangentially influenced the prosecutor’s thought processes in

preparing for the indictment and preparing for trial.’” Id. at 859 (quoting United States v.

Mariani, 851 F.2d 595, 600 (2d Cir. 1988)); see also United States v. Serrano, 870 F.2d 1, 16

(1st Cir. 1989) (concluding that the McDaniel approach “would in effect grant a defendant

transactional immunity once it is shown that government attorneys or investigators involved in

the prosecution were exposed to the immunized testimony”). At the same time, the Circuit stated

that insofar as the authorities criticizing McDaniel “may be read as establishing a rule that

Kastigar allows nonevidentiary use of compelled testimony under all circumstances, we find

those cases troubling.” North I, 910 F.2d at 859-60; cf. Kastigar, 406 U.S. at 458-59 (observing

that in order not to violate the Fifth Amendment privilege against self-incrimination, “immunity

from use and derivative use [must] ‘leave[] the witness and the Federal Government in

substantially the same position as if the witness had claimed his privilege’ in the absence of a

grant of immunity”) (quoting Murphy, 378 U.S. at 79). Ultimately, the Circuit concluded in

North I that given the absence of significant prosecutorial exposure to the immunized testimony

in that case, the Circuit was not required to resolve the issue because the prosecution “could not

have made significant nonevidentiary use” of the testimony. North I, 910 F.2d at 860.

The Circuit’s analysis in North I suggests that although no Kastigar violation occurs

when a prosecutor’s fleeting exposure to immunized testimony has a merely tangential influence

on his or her thoughts about a case, a Kastigar violation may result when a prosecutor has had

29 significant exposure to immunized testimony and makes significant nonevidentiary use of that

testimony. See id. at 859-60; see also United States v. Hsia, 131 F. Supp. 2d 195, 201-02

(D.D.C. 2001) (holding that Kastigar and North prohibit nonevidentiary uses of immunized

testimony, in the context of a case in which the government made no effort to insulate the

prosecution from the compelled testimony); cf. United States v. Daniels, 281 F.3d 168, 182 (5th

Cir. 2002) (observing that “[t]here may be some cases in which the exposure of a prosecution

team to a defendant’s immunized testimony is so prejudicial that it requires disqualification of

the entire prosecution team”); United States v. Barker, 542 F.2d 479, 484 n.9 (8th Cir. 1976)

(observing that in McDaniel, access to immunized testimony “had been obtained at a very early

stage in the investigatory process”); United States v. McGuire, 45 F.3d 1177, 1183 (8th Cir.

1995) (holding that McDaniel is limited to the “unusual circumstances” present in that case).

The government’s burden at a Kastigar hearing, though “heavy,” is not insurmountable.

The government must demonstrate by a preponderance of the evidence that it made no use of the

defendants’ testimony, a burden that the government may satisfy by showing that witnesses were

never exposed to immunized testimony or that the allegedly tainted testimony contains no

evidence that was not “canned” (or memorialized by investigators) before such exposure

occurred. See North I, 910 F.2d at 872 (cautioning that “the government has to meet its proof

only by a preponderance of the evidence, but any failure to meet that standard must result in

exclusion of the testimony”). In addition, if the government has used immunized testimony,

“[d]ismissal of the indictment or vacation of the conviction is not necessary where the use is

found to be harmless beyond a reasonable doubt.” United States v. Ponds, 454 F.3d 313, 328

(D.C. Cir. 2006). If, however, “the government has in fact introduced trial evidence that fails the

30 Kastigar analysis, then the defendant is entitled to a new trial. If the same is true as to grand jury

evidence, then the indictment must be dismissed.” North I, 910 F.2d at 873.

2. Legal Standard for the Application of Kastigar to Garrity Statements

In Garrity v. New Jersey, 385 U.S. 493 (1967), the Supreme Court held that the Fifth

Amendment privilege against self-incrimination barred the use of statements obtained from

police officers under a threat of job loss in a subsequent criminal proceeding. Id. at 500 (holding

that “[t]he option to lose [one’s] means of livelihood or to pay the penalty of self-incrimination is

the antithesis of free choice to speak out or remain silent”). The parties in this case supplied

extensive briefing on whether the protections of Kastigar applied to Garrity compelled

statements.

As noted in this court’s September 8, 2009 memorandum opinion, see generally Mem.

Op. (Sept. 8, 2009), although Garrity does not expressly invoke the protections of Kastigar,

every circuit to have addressed the issue has held that “a government employee who has been

threatened with an adverse employment action by her employer for failure to answer questions

put to her by her employer receives immunity from the use of her statements or their fruits in

subsequent criminal proceedings,” Sher v. Dep’t of Veterans Affairs, 488 F.3d 489, 501-02 &

n.12 (1st Cir. 2007); In re Grand Jury Proceedings (Kinamon), 45 F.3d 343, 348 (9th Cir. 1995)

(holding that statements obtained from an employee who was required to answer questions under

a threat of dismissal were subject to use and derivative use immunity); In re Grand Jury

Subpoenas (Stover), 40 F.3d 1096, 1102-03 (10th Cir. 1994) (observing that “Garrity’s

protection . . . acts to immunize . . . compelled statements, as it prohibits their subsequent use

against the officer so as not offend the Fifth Amendment Privilege” and that this prohibition

“provides a comprehensive safeguard, barring the use of compelled testimony as an

31 ‘investigatory lead,’ and also barring the use of any evidence obtained by focusing investigation

on a witness as a result of his compelled disclosures”) (quoting Kastigar, 406 U.S. at 460); In re

Grand Jury Proceedings (Cohen), 975 F.2d 1488, 1490 (11th Cir. 1992) (observing that

“[i]mmunity under Garrity prevents any statements made in the course of the internal

investigation from being used against the officers in subsequent criminal proceedings”);

Uniformed Sanitation Men Ass’n v. Comm’r of Sanitation of the City of N.Y., 426 F.2d 619, 626

(2d Cir. 1970) (stating that in Garrity, “the very act of the attorney general in telling the witness

that he would be subject to removal if he refused to answer was held to have conferred . . .

immunity”).

Furthermore, courts have uniformly held that “if a criminal defendant . . . demonstrates

that she was compelled to testify by her government employer, ‘the government must show that

any evidence used or derived has a legitimate source wholly independent of the compelled

testimony.’” United States v. Moten, 551 F.3d 763, 766 (8th Cir. 2008) (quoting Kastigar, 406

U.S. at 460); Doe, 478 F.3d 581, 583-84 (4th Cir. 2007) (noting that if a police officer believed

statements compelled under Garrity “were used to indict him, he would be entitled to a Kastigar

hearing, at which the government would bear the burden of ‘prov[ing] that the evidence it

proposes to use is derived from a legitimate source wholly independent of the compelled

testimony’”) (quoting Kastigar, 406 U.S. at 441); Kinamon, 45 F.3d at 348 (ordering the district

court to conduct a Kastigar hearing to determine whether statements obtained by threat of job

loss were improperly used in a grand jury proceeding); Stover, 40 F.3d at 1103 (holding that “[i]f

an officer, whose compelled statement [under Garrity] has been considered by the grand jury,

ultimately is indicted, that officer will be able to challenge the indictment and the government

will be required to prove that its evidence derives entirely from legitimate sources or that the

32 grand jury’s exposure to the officer’s statement was harmless”). Thus, the court concluded that

statements compelled under Garrity are entitled to the full panoply of protections that Kastigar

provides to other immunized statements. See generally Mem. Op. (Sept. 8, 2009).

B. The Defendants’ September 16 Interview Statements Were Compelled

At the outset of the Kastigar hearing, the government conceded that the defendants’

September 18 written statements and all of the defendants’ subsequent statements to DSS

investigators constituted compelled statements under Garrity.30 See Hr’g Tr., Oct. 14, 2009 a.m.

at 6-10. In light of the court’s September 8, 2009 ruling, the government acknowledged its

obligation to demonstrate that it had made no use or derivative use of those statements. Id. The

government has maintained, however, that any statements that the defendants made during their

September 16, 2007 interviews were not compelled under Garrity and are therefore not entitled

to any form of immunity. Id.; Govt’s Mem. at 17. This court disagrees.

To demonstrate compulsion under Garrity, a public employee must show (1) that he

subjectively believed his statements were compelled by the threat of job loss and (2) that this

belief was objectively reasonable. See United States v. Friedrick, 842 F.2d 382, 395 (D.C. Cir.

1988); accord United States v. Vangates, 287 F.3d 1315, 1321-22 (11th Cir. 2002). The

government does not dispute that the defendants subjectively believed that they would have been

terminated had they refused to submit to questioning from DSS agents on September 16, 2007.31

Govt’s Mem. at 18. Rather, the government contends that the defendants’ belief was not

objectively reasonable because on September 16, the DSS agents were merely documenting (and

30 Indeed, the undisputed evidence and the governing law overwhelmingly support the conclusion that these statements were compelled for purposes of Garrity. See generally infra Part III.B.1. 31 Each defendant testified during the Kastigar hearing that he believed that he had no choice but to submit to questioning by DSS agents on September 16, and that he would have been terminated from his job had he refused. Defs.’ Mem. at 5.

33 not investigating) the Nisur Square incident. Id. at 23-26. In a similar vein, the government

argues that the September 16 statements resulted from routine, job-related reporting requirements

that do not implicate Garrity. Id. at 18-23. The defendants point out that ample evidence

supports the reasonable objectiveness of their belief that refusing to submit to the September 16,

2007 intterviews would have meant termination, and assert that that the September 16 interviews

were anything but routine. See Defs.’ Mem. at 5-7; Defs.’ Post-Hr’g Reply Mem. (“Defs.’ Reply

Mem.”) at 3-6.

1. The Objective Reasonableness of the Defendants’ Belief That Their September 16 Interview Statements Were Compelled Under the Totality of the Circumstances

When an employee has been expressly advised by his employer that he must submit to

questioning or face termination, his belief that he will be terminated for refusing to comply is

objectively reasonable. See Vangates, 287 F.3d at 1321 (observing that “Garrity is more easily

applied to situations ‘[w]here the state has directly presented the defendant with the Hobson’s

choice of either making an incriminating statement or being fired’ than to cases . . . in which

there has been no direct threat of termination”) (citing United States v. Camacho, 739 F. Supp.

1504, 1515 (S.D. Fla. 1990)). This Circuit has made clear, however, that the absence of an

express Garrity warning does not indicate a lack of objective reasonableness. See Friedrick, 842

F.2d at 395-96. The defendant in Friedrick was an FBI agent under investigation for suspected

misconduct. Id. at 384. Between June and September 1985, he was subjected to a series of

interviews, during which he was provided with an FBI Form 645, which advised the agent that

his refusal to provide information could result in dismissal, but that the government could not use

any information provided against the agent in a subsequent criminal prosecution. Id. at 385-87.

In January 1986, the FBI again interviewed the defendant, this time without presenting him with

34 a Form 645 or mentioning immunity in any way. Id. at 387. The district court held that the

statements made by the defendant during the January 1986 interviews were inadmissible, despite

the absence of express Garrity warnings, based on the Fifth Amendment principles articulated in

Garrity and Kastigar. Id. at 395-96.

The Circuit affirmed, concluding that under the totality of circumstances, the defendant

reasonably believed that the same rules that had applied during the interviews in the fall of 1985

also governed the January 1986 interviews. Id. at 396-97. The Circuit noted that the defendant’s

supervisors directed him to appear in Washington D.C. for the January 1986 interviews in

precisely the same manner in which he had been ordered to appear for his previous interviews.

Id. The Circuit also noted that the defendant had been ordered to appear for “further interviews,”

indicating that the January 1986 interviews were a continuation of the interviews conducted in

the fall of 1985. Id. The Circuit considered the absence of a Form 645 at the January 1986

interviews to be of little moment, as the defendant reasonably would have expected the

interviewing agents to advise him if the nature of the interviews had changed, given the

pervasive practice of providing him with Form 645 warnings during prior interviews. Id. (stating

that “studied silence in this context is consistent with a continuation of the already established

pattern; it is emphatically not a signal of an investigative volte face”). In summary, the Circuit

explained that

[t]he reason for our conclusion is simple and straightforward: Friedrick was at all times during the questioning an FBI employee who was under orders from his superiors in the Bureau to attend and participate in the interviews. Friedrick had not been invited to come to Washington. He was instructed to appear, just as he had been several times previously. Friedrick was plainly in Washington . . . in the capacity of an FBI employee who had no choice but to answer questions or else risk being fired.

Id. at 398.

35 During the hearing held in this case, the court was presented with substantial evidence

indicating that it was objectively reasonable for the defendants to believe that that they would be

fired if they refused to answer questions on September 16, 2007. Agent Carpenter testified that

he directed all the Raven 23 team members to come to the Palace for questioning, and that he did

not consider this instruction to be voluntary. Hr’g Tr., Oct. 19, 2009 a.m. at 99-100. Moreover,

every Raven 23 team member who appeared at the hearing – including Mealy, Murphy and

Frost, who testified on behalf of the prosecution – testified that they were directed to submit to

questioning on September 16, 2007 and that they understood that their refusal to answer the DSS

agents’ questions would have resulted in termination. Mealy testified that although he had no

specific recollection, he “must have been directed” to submit to questioning on September 16,

2007. Id. at 44-45. He further testified that he understood that he “very well could have been

fired” had he refused to answer the DSS agents’ questions on that date. Id. Murphy testified that

that he was directed to appear for his September 16, 2007 interview and that it was “a given” that

his refusal to submit to questioning that day would result in his termination. Hr’g Tr., Oct. 14,

2009 p.m. at 22.

Frost submitted an affidavit in which he stated that

[o]n September 16, 2007, I was ordered, along with the other members of Raven 23, by Blackwater management to report to the United States Embassy in Baghdad to provide a verbal statement to Department of State investigators describing my actions during the Nisour Square incident. I understood this order to be mandatory – that being interviewed was required by the Department of State, and was a condition of my employment. I understood then, and believe now, that had I refused the order I would have been terminated.

36 Frost Ex. 1 ¶ 5.32 At the Kastigar hearing, Frost testified that he still believed this portion of his

declaration to be accurate and that he understood, at the time he gave his September 16 interview

statement to the DSS investigators, that he was required to do so. Hr’g Tr., Oct. 21, 2009 p.m. at

6-9.

Daniel Childers, another Raven 23 team member, testified that he was ordered to appear

for an interview on September 16, 2007, that he did not believe that he had a choice in the matter

and that he understood at the time that if he had refused to submit to questioning, he would have

been fired. Hr’g Tr., Oct. 29, 2009 p.m. at 19-21. And although he did not testify at the

Kastigar hearing, the government has conceded that cooperating witness Ridgeway “does

subjectively believe that the members of Raven 23 could have had their contracts terminated if

they did not provide statements to DSS.” Govt’s June 30, 2009 Letter at 9. The fact that every

testifying Raven 23 member, including all those supporting the government’s prosecution,

corroborated the defendants’ subjective belief that they would have been terminated had they

refused to submit to questioning strongly indicates that their subjective belief was objectively

reasonable.

This uniformly held belief among Raven 23 likely resulted from their prior experiences

with the reporting procedures outlined in the Hunter Memorandum. The Hunter Memorandum,

which all Raven 23 members received when they arrived in Iraq, required Blackwater personnel

to report any incident of firearms discharge to State Department officials, to submit to oral

debriefing following the incident and to provide a sworn written statement on a form attached to

32 Like Frost, Mealy also signed a declaration stating that he “was ordered” to provide a verbal statement to DSS investigators on September 16, that he understood the order to be “mandatory” and a “condition of [his] employment” and that he believed his refusal to comply would have resulted in his termination. Mealy Decl. ¶ 5, Aug. 1, 2009.

37 the memorandum. Govt’s Ex. 32 at 1-3. That form contained the following express Garrity

warning:

I understand that this statement is made in furtherance of an official administrative inquiry regarding potential misconduct or improper performance of official duties and that disciplinary action, including dismissal from the Department’s Worldwide Personnel Protective Services contract, may be undertaken if I refuse to provide this statement or fail to do so fully and truthfully. I further understand that neither my statements nor any information or evidence gained by reason of my statements can be used against me in a criminal proceeding.

Id. at 3. Thus, the Hunter Memorandum expressly required Blackwater personnel to provide

sworn written statements to State Department officials following any incident of firearms

discharge or face termination. Id. The Hunter Memorandum did not specify that the threat of

job loss applied only to the obligation to provide a sworn written statement to the State

Department and not to any prior or subsequent statements requested by the State Department

investigators regarding that incident. See generally id.

Prior to September 16, 2007, all of the defendants had been involved in shooting

incidents, after which they had been required to provide sworn written statements under the

express Garrity warning on the State Department form. See Hr’g Tr., Oct. 27, 2009 a.m. at 10-

11; Hr’g Tr., Nov. 3, 2009 p.m. at 49-50, 82-83, 117, 136-37. During the September 16, 2007

interviews, the DSS agents did not advise the Raven 23 team members that the interviews were

voluntary or that they were not required to answer questions. Hr’g Tr., Oct. 15, 2009 a.m. at 75;

Hr’g Tr., Oct. 15, 2009 p.m. at 40-41, 121. In fact, Agent Scollan testified that under the rules

38 then in place,33 the defendants should have been provided Garrity warnings during the

September 16, 2007 interviews. Hr’g Tr., Oct. 15, 2009 a.m. at 86-87. Under these

circumstances, and in light of their prior experiences, it was reasonable for the defendants (and

the other members of Raven 23) to believe that their September 16 interview statements, like

statements they had provided after other shooting incidents, were compelled under threat of job

loss.

Furthermore, although the interviewing DSS agents testified that they did not warn the

defendants that they would be fired if they refused to answer the agents’ questions, id. at 8; Hr’g

Tr., Oct. 15, 2009 p.m. at 25, three of the defendants testified that the interviewing DSS agents

told them that their statements could not be used against them in a criminal proceeding, see Hr’g

Tr., Nov. 3, 2009 p.m. at 52, 116-17, 137-38. These admonitions were consistent with the

Garrity warning contained on the State Department form, and reasonably could have contributed

to a belief by those defendants that the same conditions applied to statements made during the

September 16, 2007 interviews as well.

In sum, the facts adduced at the Kastigar hearing bring this case squarely within the

bounds of Friedrick. As in Friedrick, the defendants in this case were directed to submit to

questioning. As in Friedrick, the defendants had provided sworn statements on prior occasions

under express Garrity warnings. And as in Friedrick, the defendants were not advised that the

ground rules had changed – more specifically, that the rules that had governed the defendants’

other post-incident statements to the State Department did not apply on September 16, 2007.

33 Following the DSS investigation into the Nisur Square incident, the State Department changed its procedures to prohibit DSS agents from providing Garrity warnings without permission from supervisors. Hr’g Tr., Oct. 15, 2009 a.m. at 85-86. Indeed, the current State Department guidelines provide that “[p]rior to conducting an interview with any [private security contractor] involved in a serious incident, the investigator will provide a Warning and Assurance to Employee Requested to Provide Information on a Voluntary Basis (Form DS 7619).” Govt’s Ex. 35 at 8.

39 Furthermore, three of the defendants in this case testified that they were expressly told during

their September 16, 2007 interviews that their statements could not be used against them in a

criminal proceeding. Moreover, the defendants elicited corroborating testimony from friendly

and hostile witnesses alike, all of whom testified that they too believed that they were required to

submit to questioning on September 16, 2007 under threat of job loss. The court is persuaded

that this evidence establishes the objective reasonableness of the defendants’ belief that they

were required to submit to questioning or face job loss.

2. The Government’s Reliance on United States v. Cook and Related Authorities

The government contends that the September 16 interview statements do not implicate

Garrity because they resulted from mundane, job-related reporting requirements, not unlike the

obligation to report a missing or stolen weapon. See Govt’s Mem. at 19-23. Indeed, routine,

contemporaneously-prepared incident reports are generally not considered compelled Garrity

statements. See, e.g., United States v. Cook, 526 F. Supp. 2d 1, 8-9 (D.D.C. 2007) (rejecting the

defendant’s Garrity challenge to a use-of-force report that he was ordered to prepare after an

individual in his custody complained that the defendant had assaulted him), aff’d 2009 WL

1528508 (D.C. Cir. Apr. 21, 2009); see also Devine v. Goodstein, 680 F.2d 243, 246-47 (D.C.

Cir. 1982); United States v. Ruiz, 579 F.2d 670, 675-76 (1st Cir. 1978); Watson v. County of

Riverside, 976 F. Supp. 951, 954-55 (C.D. Cal. 1997). Yet the government’s reliance on Cook

and related authorities is misplaced, as those cases are distinguishable from this matter in at least

two critical respects.

a. The September 16, 2007 Interviews Were Far From Routine

First, Cook and the related authorities cited by the government rest on the principle that

the element of compulsion is absent when a report is so routine that a defendant could not have

40 reasonably believed that the report could form the basis of a criminal prosecution. See Cook, 526

F. Supp. 2d at 8 (observing that “Garrity does not stand for the proposition that a statement made

in a standard report is coerced whenever an officer faces both the remote possibility of criminal

prosecution if he files the report and the arguably even more speculative possibility of

termination if he declines to do so”);34 see also Devine, 680 F.2d at 247 (observing that Garrity

only protects against “disclosures that the witness reasonably believes could be used in a

criminal prosecution or could lead to other evidence that might be so used”); Watson, 976 F.

Supp. at 955 (noting that the element of compulsion was absent because the creation of the arrest

report was simply a product of the defendant’s normal job requirements).

The September 16, 2007 interviews, however, were anything but routine. Most

obviously, the interviews were conducted in response to an extraordinarily violent shooting

incident that resulted in the death or injury of more than thirty people. See Govt’s Mem. at 2.

As just one example, Agent Lopez testified that she had never before encountered anything like

the Nisur Square incident and that she did not view it as a routine situation. Hr’g Tr., Oct. 15,

2009 p.m. at 39-40.

Furthermore, by all accounts, it was out of the ordinary for DSS agents to conduct

interviews of all the members of a unit following a shooting incident. Agent Carpenter testified

that he had never before directed every member of a detail to submit to questioning as he did on

September 16, 2007, and that he was unaware of any prior instance in which that procedure had

been followed. Hr’g Tr., Oct. 19, 2009 a.m. at 99-100. David Farrington, another DSS agent

who assisted in the DSS investigation, testified that he was unaware of any incident in which

every member of a unit was interviewed following a shooting incident. Hr’g Tr., Oct. 19, 2009

34 The Cook court noted that the defendant’s purported fear of termination was objectively unreasonable, as removal was an unlikely sanction for refusing to submit a report under applicable guidelines. See United States v. Cook, 526 F. Supp. 2d 1, 7-8 (D.D.C. 2007).

41 p.m. at 57-58. Raven 23 team member Childers also testified that it was unusual for the entire

team to be asked to report for oral interviews. Hr’g Tr., Oct. 23, 2009 a.m. at 20.

In fact, there was considerable doubt as to whether it was, in practice, standard procedure

for oral interviews to be conducted after shooting incidents at all. Defendant Slough testified

that although he had been involved in two prior shooting incidents in Iraq, September 16, 2007

was the first time he had been required to give an oral statement to DSS agents and the first time

his entire unit had been required to submit to questioning following a shooting incident. Hr’g

Tr., Nov. 3, 2009 p.m. at 49-51. Likewise, defendant Ball testified that although he had provided

written statements following incidents involving the discharge of a weapon on at least two prior

occasions, he had never been interviewed by a State Department agent. Id. at 135-36.

Prosecutor Ponticello testified that the September 16, 2007 interviews were “the first time we

heard that oral interviews were given,” that “it was either Mr. Frost or Mr. Mealy [who] may

have testified that it was unusual for that to happen,” Hr’g Tr., Oct. 26, 2009 p.m. at 72-73, and

that based on his understanding, the process of having the Raven 23 members go to the U.S.

Embassy for questioning was not routine, Hr’g Tr., Oct. 27, 2009 p.m. at 57-58. Agent

Carpenter testified that when he reviewed the case files of prior shooting incidents, he found that

they “consisted mainly of the statements of those involved that had fired their weapon, an after-

action report by the team leader, and maybe a statement from another teammate in the detail

42 [who] . . . was there at the incident.”35 Hr’g Tr., Oct. 16, 2009 p.m. at 105. This evidence

indicates that the defendants’ September 16 oral interview statements were not the product of

routine, after-incident reporting, like the statements at issue in Cook.

b. The September 16, 2007 Were Conducted as Part of the DSS Investigation

The second distinguishing feature of Cook and the other cases cited by the government is

that they concerned statements generated prior to the initiation of any investigation into the

defendant’s conduct. See Cook, 526 F. Supp. 2d at 8 (observing that “the presumption

underlying Garrity and its progeny is that the subject employee is under investigation at the time

the challenged statement is made”); see also Devine, 680 F.2d at 247; Ruiz, 579 F.2d at 675-76;

Watson, 976 F. Supp. 2d at 954-55.36 In this case, however, there is ample evidence that the

September 16, 2007 interviews were conducted as part of an investigation into the defendants’

actions at Nisur Square. As an initial matter, the government admits that the shooting was

extraordinary in its violence and points out that in its immediate aftermath, U.S. and Iraqi forces

flooded the traffic circle and began documenting the scene and collecting physical evidence.

35 The State Department firearms policy, which the government introduced during the Kastigar hearing, provides no support for the government’s position. See generally Govt’s Ex. 52 (“Department of State Deadly Force and Firearms Policy”). Although the firearms policy required State Department employees to “orally report [firearms] discharge immediately to his or her direct supervisor,” it did not provide for routine interviews by DSS investigators following such an incident. See id. at 13-14. In fact, the firearms policy states that an employee “shall be advised of the right to have his or her own representative present at any meeting when the [employee] is asked by authorized officials to provide information regarding his or her discharge of a firearm.” Id. at 13. This indicates that the State Department recognized that any questioning by DSS investigators following a shooting incident could expose the employee to peril. 36 The government also relies on United States v. Trevino, 215 Fed. Appx. 319 (5th Cir. 2007), a case in which the Fifth Circuit found no coercion when an off-duty officer was called into the station for questioning and escorted into the interrogation room by the Chief of Police. Id. at 321- 22. Yet in reaching its conclusion, the court looked to the “surrounding circumstances, specifically focusing on whether the questioning was coercive,” and based its holding on the fact that there were no supervisors present during the questioning and that the defendant was told before questioning began that he was free to leave the interrogation room at any time. Id. at 322 (citing Friedrick, 842 F.2d at 395). Trevino is therefore plainly inapposite.

43 Govt’s Mem. at 2, 7-8. Two experienced, high-ranking U.S. military officers, Colonels Boslego

and Tarsa, arrived on the scene less than an hour after the incident and reportedly found little

evidence of insurgent activity. Id. Accordingly, the specter of improper and potentially criminal

conduct was apparent to government officials almost immediately after the incident.

Agent Carpenter testified that from September 16, 2007 onward, he and his agents “were

conducting an investigation. We were trying to get to what happened that day. My initial

indications [were] that . . . Blackwater personnel were responding to some type of ambush, and I

was trying to get to that issue.” Hr’g Tr., Oct. 19, 2009 p.m. at 103-04. Accordingly, Agent

Carpenter acknowledged in his investigative report that “[o]n September 16, 2007, the Regional

Security Office (RSO) initiated an administrative investigation into the application of deadly

force by Personal Protective Specialists (PSS) assigned to [Raven 23].” Defs.’ Carpenter Ex.

6(a) at 1.

The fact that the DSS agents were not merely “documenting” the shooting on September

16, 2007 is further illustrated by current State Department investigative guidelines. These

guidelines provide for an initial debriefing following any serious incident “for the purpose of

gathering information needed to assure appropriate incident response and management, and to

assure that the operational responsibilities of the RSO related to the security of mission personnel

are properly carried out” – in other words, expressly the type of routine initial debriefing that the

government argues was taking place on September 16, 2007. Govt’s Ex. 35 at 4. Yet these

guidelines require only “the Shift Leader” and the “Tactical Commander,” rather than every

member of the detail, to report for this initial debriefing. Id. This procedure, of course, is

consistent with the purpose of routine State Department debriefing, which is “to learn quickly the

44 key and readily-available facts of an incident (who, what, when, where).” Id. The debriefing is

expressly “not intended to cover all known details.” Id.

Agent Carpenter testified that immediately after the Raven 23 convoy returned to the

U.S. Embassy, Jim Watson and Cory Wainscott, Raven 23’s Shift Leader and Tactical

Commander, see Govt’s Ex. 2, provided an initial debriefing to summarize the events that had

occurred at Nisur Square. Hr’g Tr., Oct. 16, 2009 p.m. at 115-16. Although Agent Carpenter

acknowledged that this debriefing provided him with a “basic understanding” of what had

occurred, he nonetheless ordered all nineteen members of Raven 23 to appear for interviews to

obtain additional details about the incident. Id. at 116.

More fundamentally, it is beyond dispute that at some point, Agent Carpenter and his

DSS agents were conducting a full blown investigation into the defendants’ actions at Nisur

Square. Hr’g Tr., Oct. 19, 2009 p.m. at 103-04. In the days following the shooting, these agents

repeatedly interviewed those Raven 23 members who had acknowledged firing their weapons to

obtain details of their accounts. See Defs.’ Scollan Exs. 3-5; Defs.’ Lopez Ex. 5. They also

conducted a physical search of Nisur Square to test the shooters’ accounts. Defs.’ Carpenter Ex.

8. The court sees no persuasive justification for treating the defendants’ September 16 interview

statements – which were taken by the same agents who conducted the subsequent investigation

and concerned the same events described in subsequent compelled statements – as wholly

distinct from the investigation that followed. Rather, the court is persuaded that the September

16, 2007 interviews comprised the initial stage of an administrative investigation into a uniquely

violent event, an investigation that continued over several days and culminated in the preparation

of the investigative report prepared by Agent Carpenter and provided to the Justice Department.

45 In light of the evidence described above, the court concludes that the September 16, 2007

interviews were not conducted pursuant to any routine, standardized reporting requirement, but

were instead taken as part of the DSS investigation into Raven 23’s actions at Nisur Square.

Accordingly, the government’s reliance on Cook and similar authorities is misplaced.

3. The Allegedly False and Exculpatory Nature of the Accounts

Lastly, the government argues that the defendants’ September 16 interview statements (as

well as their subsequent oral and written statements to DSS investigators) are not entitled to Fifth

Amendment protection because they contain nothing more than the defendants’ false,

exculpatory accounts of the events at Nisur Square. Govt’s Mem. at 25, 44 n.203. The

defendants respond that the content of the defendants’ statements has no bearing on whether

Garrity applies. Defs.’ Mem. at 5-6; Defs.’ Reply Mem. at 22-24.

The government’s assertion that the falsity of the defendants’ statements renders

inapplicable the Fifth Amendment privilege against self-incrimination requires little discussion.

The Supreme Court has held that the question of coercion under the self-incrimination clause “is

to be answered with complete disregard of whether or not [the accused] in fact spoke the truth.”

Rogers v. Richmond, 365 U.S. 534, 544 (1961); Shotwell Mfg. Co. v. United States, 371 U.S.

341, 351 & n.10 (1963) (concluding that although the self-incrimination clause did not prohibit

prosecutorial use of false statements made pursuant to a voluntary disclosure policy, “[a] quite

different case would be presented if an offer of immunity had been specifically directed to

petitioners in the context of an investigation, accusation, or prosecution” because “the truth or

falsity of such a disclosure would then be irrelevant to the question of its admissibility”); North I,

46 910 F.2d at 861 (observing that “Kastigar addresses ‘use,’ not ‘truth’”).37

The authorities cited by the government indicate only that the Fifth Amendment does not

prohibit the government from prosecuting a defendant for making a false statement under a grant

of immunity. See United States v. Apfelbaum, 445 U.S. 115, 121-22 (1980) (observing that the

federal immunity statute “makes no distinction between truthful and untruthful statements made

during the course of the immunized testimony” but instead “creates a blanket exception from the

bar against the use of immunized testimony in cases in which the witness is subsequently

prosecuted for making false statements”); cf. Brogan v. United States, 522 U.S. 398, 404 (1998)

(affirming the defendant’s conviction for making a false statement because “neither the text nor

the spirit of the Fifth Amendment confers a privilege to lie”); United States v. Knox, 396 U.S. 77,

82 (1969) (holding that the Fifth Amendment did not prohibit the use of a compelled statement in

a prosecution for submitting false information on a federal form); United States v. White, 887

F.2d 267, 273-74 (D.C. Cir. 1989) (affirming the defendant’s conviction for making a false

statement); United States v. Veal, 153 F.3d 1233, 1240 (11th Cir. 1998) (holding that Garrity

does not prohibit a subsequent perjury or obstruction of justice charge if a witness makes a false

statement); Cook, 526 F. Supp. 2d at 9 (noting that even if the defendant could demonstrate that

Garrity applied to statements made in a written reports, Garrity would not prevent the

introduction of his reports as evidence in connection with the false statements and obstruction of

justice charges levied against him). Accordingly, the court concludes that the alleged falsity of

37 The court finds the Friedrick case illustrative with respect to this issue. The January 1986 interviews at issue in Friedrick were conducted over four days. 842 F.2d at 387-88. During the first day of questioning, the defendant largely maintained that he had not committed any wrongdoing. Id. But on the second day of questioning in January 1986, the defendant admitted that the heart of his original account, which he had repeated the day before, was a fabrication. Id. at 388. The Circuit held that all of the defendant’s January 1986 statements were inadmissible under Garrity, drawing no distinction between the admittedly false statements made on the first day of questioning and the inculpatory statements that followed. Id. at 402.

47 certain portions of the defendants’ statements to DSS investigators has no bearing on whether

these statements are compelled for purposes of Garrity and Kastigar.

As for the exculpatory nature of the defendants’ accounts, the Supreme Court has stated

that “[t]he Fifth Amendment prohibits only compelled testimony that is incriminating.” Hiibel v.

Sixth Judicial Dist. Court of Nev., Humboldt County, 542 U.S. 177, 189 (2004) (emphasis

added). Yet the Court has defined “incrimination” broadly to encompass not only “answers that

would in themselves support a conviction . . . but likewise . . . those which would furnish a link

in the chain of evidence needed to prosecute the [defendant].” Hoffman v. United States, 341

U.S. 479, 486 (1951). “Compelled testimony that communicates information that may ‘lead to

incriminating evidence’ is privileged even if the information itself is not inculpatory.” Hubbell,

530 U.S. at 38 (quoting Doe v. United States, 487 U.S. 201, 208 n.6 (1988)); Kastigar, 406 U.S.

at 445 (remarking that the Fifth Amendment privilege against self-incrimination “protects

against any disclosures that the witness reasonably believes could be used in a criminal

prosecution or could lead to other evidence that might be so used”) (emphasis added).

Indeed, the Supreme Court has made clear that it has “never held that the privilege is

unavailable to those who claim innocence. To the contrary, [the Court has] emphasized that one

of the Fifth Amendment’s ‘basic functions . . . is to protect innocent men . . . who otherwise

might be ensnared by ambiguous circumstances.’” Ohio v. Reiner, 532 U.S. 17, 21 (2001)

(reversing the Supreme Court of Ohio’s holding that a witness’s assertion of innocence deprived

her of her Fifth Amendment privilege against self-incrimination) (quoting Grunewald v. United

States, 353 U.S. 391, 421 (1957) (internal quotation marks omitted). The defendant in Reiner,

who had been convicted of involuntary manslaughter in connection with the death of his son,

claimed that his son’s babysitter was the individual responsible for the death. Id. at 18. Because

48 the babysitter indicated that she would assert her Fifth Amendment privilege if called to testify,

the trial court granted the government’s request that she be given transactional immunity for her

testimony. Id. At trial, she testified that she had had no involvement in the child’s death and had

not caused any of his injuries. Id. at 18-19. The Supreme Court of Ohio held that the trial

court’s grant of immunity was unlawful because the fact that the witness asserted her innocence

made it impossible for her to invoke a Fifth Amendment privilege against self-incrimination. Id.

at 19. The Supreme Court reversed, noting that “[i]t need only be evident from the implications

of the question, in the setting in which it is asked, that a responsive answer to the question or an

explanation of why it cannot be answered might be dangerous because injurious disclosure could

result.” Id. (quoting Hoffman, 341 U.S. at 486). The Court concluded that the babysitter had

reasonable cause to believe that her answers could expose her to risk if questioned at trial, given

that she had spent extended periods of time alone with the victim immediately preceding his

injuries, she was with the victim within the potential timeframe of the fatal trauma and the

defense’s theory was that she was responsible for the child’s death. Id. at 22.

For the reasons previously discussed, see supra Part III.B.1, the court concludes that it

was evident to the defendants, based on the circumstances under which they made their

statements to DSS investigators, that their answers could have resulted in injurious disclosure.

More specifically, these statements, given to government investigators immediately after an

extraordinarily violent incident in which they had all played some role, disclosed a host of

information potentially injurious to each of the defendants, including the fact that he fired his

weapons, the type of weapons he used and the directions in which he fired. Even the statements

made by defendant Liberty, who did not acknowledge firing his weapon, revealed particular

details of the insurgent activity he allegedly saw and the specific locations of the threats he

49 allegedly perceived. There is little doubt that some or all of this information could form a link in

the chain of evidence used against the defendants, and at the very least, could have led to the

discovery of inculpatory evidence. See Hubbell, 530 U.S. at 38; Hoffman, 341 U.S. at 486.

In each of the authorities on which the government relies, the court’s determination that

there was no Kastigar violation turned not on the fact that the immunized statement was

exculpatory, but rather on the fact that the prosecution did not use the defendant’s statement

against him or her. See United States v. Bartel, 19 F.3d 1105, 1113 (6th Cir. 1994) (holding that

the government had met its Kastigar burden and that the defendant’s “exculpatory, non-

incriminating testimony did not contribute in any conceivable manner to his being indicted”);

United States v. Caporale, 806 F.2d 1487, 1518 (11th Cir. 1986) (noting that the immunized

testimony “was self-serving and of no real value in the subsequent investigation”); United States

v. Anderson, 450 A.2d 446, 451 (D.C. 1982) (finding that prosecutors did not use the defendant’s

exculpatory account to obtain investigatory leads or to focus the investigation). The government

has cited to no authority indicating that the exculpatory nature of a defendant’s statement

automatically renders the Fifth Amendment privilege against self-incrimination inapplicable, and

indeed, such a holding would be inconsistent with the Supreme Court’s reasoning in Reiner. See

Reiner, 532 U.S. at 21; cf. Illinois v. Perkins, 496 U.S. 292, 303 (1990) (noting that the

government “may not use statements, whether exculpatory or inculpatory, stemming from

custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards

effective to secure the privilege against self-incrimination”) (quoting Miranda v. Arizona, 384

U.S. 436, 444 (1966)). Accordingly, the mere fact that the defendants maintained their

innocence in the statements given to the DSS investigators does not preclude them from invoking

the Fifth Amendment protections articulated in Garrity and Kastigar.

50 C. The Government Failed to Prove by a Preponderance of the Evidence That It Made No Impermissible Use of the Defendants’ Compelled Garrity Statements

The defendants maintain that the government made impermissible evidentiary and

nonevidentiary use of the defendants’ compelled Garrity statements in prosecuting this case.

Noting that the prosecutors, investigators and government witnesses were thoroughly exposed to

the defendants’ compelled statements, they contend that the taint of the defendants’ compelled

statements has infiltrated nearly every aspect of this prosecution and that as a result, the

indictment must be dismissed. The government asserts, however, that it made no impermissible

use of the defendants’ compelled statements and that any such use that may have occurred was

harmless beyond a reasonable doubt. The court now turns to the specific categories of potential

“use” that form the heart of this dispute.

1. Evidentiary Use of the Defendants’ Garrity Statements

a. The Statements of Frost and Murphy Before the First and Second Grand Jury Were Tainted

Without question, the testimony of Frost, Murphy and Mealy played a critical role in the

government’s presentations to the first and second grand juries. These witnesses identified

which members of the Raven 23 convoy were the shooters, provided detailed accounts of the

events that occurred at Nisur Square and testified regarding the absence of any threat justifying

the defendants’ actions. See generally GJ Exs. 89-94. Among all of the Raven 23 team

members who testified at the first grand jury, the prosecutors chose to rely solely on the

testimony of Frost, Murphy and Mealy to obtain the indictment from the second grand jury. See

generally id.

51 It is equally clear that by the time they testified at the first grand jury, Frost and Murphy

had been thoroughly immersed in the defendants’ compelled Garrity statements.38 Media reports

alluding to the statements made to DSS investigators began to appear almost immediately after

the incident, see, e.g., Defs.’ Media Exs. 23, 28, and excerpts from the defendants’ written

statements began to appear shortly thereafter, see, e.g., Defs.’ Media Exs. 2, 6, 7, 13, 14, 23.

Frost indicated that in the days following the shooting, he read numerous news reports on the

Internet regarding the events at Nisur Square. Defs.’ Frost Ex. 6 at 1. Frost and Murphy both set

up “Google News” alerts, through which they were e-mailed multiple news articles each day

regarding the Nisur Square incident. Hr’g Tr., Oct. 21, 2009 p.m. at 26-27; Hr’g Tr., Oct. 14,

2009 p.m. at 27. Frost and Murphy both acknowledged reading the September 18 written

statements of defendants Slatten and Slough, and Murphy further acknowledged reading the

written statement of defendant Ball as well, all of which had been posted on the Internet. Hr’g

Tr., Oct. 21, 2009 p.m. at 25-26; Hr’g Tr., Oct. 14, 2009 p.m. at 6, 74-75, 88-89. And on

October 2, 2007, Frost and Murphy received an e-mail from Raven 23 team member Edward

Randall containing a link to an ABC News televised report, which purported to be based on the

written statements of all nineteen Raven 23 members and quoted extensively from several

statements, including Slough’s. See Defs.’ Murphy Ex. 8; Hr’g Tr., Oct. 14, 2009 p.m. at 7.

Neither Frost nor Murphy recalled ever being warned by the government’s trial team to avoid

exposure to news coverage about the incident or to the sworn statements given by the defendants.

Hr’g Tr., Oct. 14, 2009 p.m. at 64; Hr’g Tr., Oct. 21, 2009 p.m. at 27.

At the Kastigar hearing, both Frost and Murphy testified that despite their unbounded

38 Although Mealy also acknowledged that he may have read the compelled statements of other Raven 23 team members in media accounts, see Hr’g Tr., Oct. 19, 2009 a.m. at 54, the extent of his exposure to those statements is less clear.

52 exposure to the defendants’ compelled statements, they could testify based on their personal

recollections alone and segregate any information learned from the compelled statements they

had read. Hr’g Tr., Oct. 14, 2009 p.m. at 16; Hr’g Tr., Oct. 21, 2009 a.m. at 97. Yet when

government prosecutors reviewed the testimony given by Frost and Murphy to the first grand

jury, they saw signs that numerous portions of the testimony were influenced by the witnesses’

exposure to the defendants’ compelled statements. Govt’s June 30, 2009 Letter at 5.

Although the prosecutors redacted some tainted material from the transcripts before

presenting them to the second grand jury, Defs.’ Kohl Ex. 46 at 10-12, the efficacy of these

efforts was necessarily limited by the fact that the prosecutors and taint attorneys could only

identify taint apparent on the face of the transcripts. The shortcomings of this process were

exposed at the Kastigar hearing, during which the defendants identified several instances in

which the prosecutors failed to redact – and therefore presented to the second grand jury –

portions of testimony from Frost and Murphy that had been shaped by their exposure to the

defendants’ compelled statements.

The starkest examples concern the testimony regarding defendant Slatten. Frost wrote in

his September 18, 2007 statement that at the beginning of the shooting, he heard “two pops”

coming from either the command vehicle or the follow vehicle, which he assumed were “pen

flares,” a type of warning flare fired as a signal to nearby vehicles not to approach. Defs.’ Frost

Ex. 7; Hr’g Tr., Oct. 21, 2009 p.m. at 11-12. When he appeared before the first grand jury on

November 27, 2007, however, Frost testified that although he had originally thought that the two

pops had been pen flares, “if [he] had to guess right now, [he would] say that those two pops

were from the sniper rifle out of the command vehicle.”39 GJ Ex. 89 at 60. Frost would again

39 Defendant Slatten was the only member of the Raven 23 convoy armed with a sniper rifle. Hr’g Tr., Oct. 21, 2009 p.m. at 28.

53 testify before the first grand jury that although his conclusion was not based on any damage that

he saw, and although he never saw Slatten fire his weapon, the two pops “sounded like a 308

[sniper] rifle” and that “the sniper rifle is what [he thought] it was.” GJ Ex. 90 at 25. Again,

Frost would later testify, “[b]ased on the sound, I think it was his – I think it was the rifle,”

referring to Slatten’s sniper rifle. Id. at 90. None of this testimony was redacted from the

transcript that was presented to the second grand jury. GJ Ex. 89 at 60; GJ Ex. 90 at 25, 90.

Likewise, in the first moments of the Nisur Square shooting, Murphy also heard several

“loud pops” and immediately turned to others in his vehicle to ask if they were the sound of pen

flares.40 Hr’g Tr., Oct. 14, 2009 p.m. at 91-93. Yet Murphy testified before the first grand jury

that although he could not be certain, he believed the two loud pops were shots fired from

Slatten’s sniper rifle. GJ Ex. 94 at 22. This testimony was also presented to the second grand

jury.41 See id.

Thus, in the immediate aftermath of the incident, neither Frost nor Murphy indicated that

he believed that the loud pops were shots fired by defendant Slatten and, in fact, both witnesses’

immediate reaction was that the loud pops were likely pen flares. Yet when they testified before

the first grand jury two months later, both men testified that they believed the two loud pops

were shots fired by Slatten from his sniper rifle.

40 Mealy also testified at the grand jury that “the first thing that happened significantly was I heard what I thought was some pen flares being fired from behind me.” GJ Ex. 92 at 37. 41 Agent Powell testified at the second grand jury that “[a]ccording to Murphy and Frost, the initial rounds that were fired . . . sounded to them like they were from Slatten’s sniper rifle.” Govt’s Ex. 1 (Grand Jury Tr., Dec. 2, 2008 p.m. at 38). Frost testified that this summary of testimony was inaccurate, in that it failed to reflect the qualifications he had given in connection with his testimony to the first grand jury. See Hr’g Tr., Oct. 21, 2009 p.m. at 24-25.

54 Both Frost and Murphy acknowledged reading the sworn written statement given by

Slatten to State Department investigators, in which he acknowledged firing his sniper rifle at

threats he allegedly perceived at Nisur Square. Hr’g Tr., Oct. 14, 2009 p.m. at 6-7, 55; Hr’g Tr.,

Oct. 21, 2009 a.m. at 82; Hr’g Tr., Oct. 21, 2009 p.m. at 26. Thus, the evidence overwhelmingly

suggests that the evolution of Frost and Murphy’s recollections of the events at Nisur Square

resulted from their exposure to Slatten’s written statement.42

These witnesses’ inability to disaggregate what they had personally witnessed from what

they later read about the incident was further evidenced by Murphy’s testimony regarding

defendant Slough. Murphy testified before the first grand jury that immediately after he heard

the “two pops,” he “heard automatic weapons fire coming from [he] believe[d] Paul Slough, but

[he] wasn’t looking back at the time.” GJ Ex. 94 at 23. At the Kastigar hearing, Murphy

acknowledged that his testimony may have been influenced by his exposure to Slough’s written

statement:

Q: [A]t the time you gave this testimony you had already read Paul Slough’s sworn statement?

A: I believe so.

Q: And you knew from that sworn statement that he acknowledged firing at the white Kia at the outset of the incident, didn’t you?

A: I would have, yeah.

Q: So this testimony where you represented you believed it was Paul Slough firing, but you didn’t see who was shooting it, was influenced in part by what you read; isn’t that fair to say?

A: Yeah, that would be fair to say.

Hr’g Tr., Oct. 14, 2009 p.m. at 115.

42 Indeed, the government has acknowledged as much, having moved for leave to dismiss the indictment against Slatten based on the presentation of this tainted testimony before the second grand jury. See Govt’s Reply Mem. at 11 n.33.

55 On redirect examination, Murphy reiterated that he assumed that defendant Slough had

fired the initial burst of automatic gunfire based on the direction from which he heard the shots

coming. Id. at 125. But this fact underscores the scope of impermissible use that Kastigar

prohibits. For even if Murphy’s first impression as to the source of the initial burst of automatic

gunfire was based solely on his perception of the incident, his testimony at the Kastigar hearing

indicates that he found confirmation for that initial impression in Slough’s own account of the

incident, and that this influenced his testimony that he “believed” that Slough had fired the initial

burst of automatic gunfire at the white Kia. Id. at 115; GJ Ex. 94 at 23. This constitutes a

squarely impermissible evidentiary use of Slough’s compelled statement. See North I, 910 F.2d

at 861 (stating that “[i]f the government uses immunized testimony to refresh the recollection of

a witness (or to sharpen his memory or focus his thought) when the witness testifies before a

grand jury . . . then the government clearly has used the immunized testimony”).

As it did with the tainted testimony regarding Slatten, the prosecution presented

Murphy’s tainted testimony from the first grand jury to the second grand jury. See GJ Ex. 94 at

23. This occurred because the taint was not apparent on the face of the transcript and because

the prosecution made no effort before presenting Frost and Murphy to the first grand jury to

ascertain the extent to which they could segregate their personal recollections from the accounts

they had read.43 Accordingly, the court concludes that the government made impermissible

evidentiary use of the compelled statements of Slatten and Slough to obtain the indictment

against them.

43 Frost testified that prior to his appearance before the first grand jury in November 2007, no government taint attorneys met with him to determine whether he had seen any of the defendants’ written statements. Hr’g Tr., Oct. 21, 2009 p.m. at 40. Prosecutor Ponticello testified that prior to putting Frost and Mealy on the stand, the prosecutors did not ask them about their exposure to the defendants’ compelled statements. Hr’g Tr., Oct. 21, 2009 a.m. at 69.

56 Moreover, the evidence described above casts substantial doubt on the assertions of

Murphy and Frost that they were able to segregate what they had seen and heard from what they

had read of all of the defendants’ compelled accounts. Although the government emphasizes

that Frost and Murphy personally witnessed many of the events about which they testified,

Govt’s Mem. at 29-32; Govt’s Post-Hr’g Reply Mem. (“Govt’s Reply Mem.”) at 20, this fact

would be insufficient to satisfy the government’s burden, as Kastigar bars the use of immunized

statements to shape in any way the evidence presented to the grand jury. See Hylton, 294 F.3d at

134 (observing that the government “must demonstrate that witnesses who testified against the

defendant were not influenced – ‘shaped, altered, or affected’ – by that information”); United

States v. Poindexter, 951 F.2d 369, 376 (D.C. Cir. 1992) (holding that it is the government’s

burden “to demonstrate that the immunized testimony did not influence the witness”) (emphasis

omitted); North II, 920 F.2d at 942 (observing that Kastigar is violated “whenever the

prosecution puts on a witness whose testimony is shaped, directly or indirectly, by compelled

testimony”). The evidence described above reveals the manner in which the defendants’

compelled statements could (and did) influence these witnesses’ testimony in ways not apparent

on the face of the transcript. And even if the government could identify specific areas of

testimony that were demonstrably free from taint, this fact would hardly establish that the

witnesses’ exposure did not influence other areas of their testimony. See Poindexter, 951 F.2d at

376 (observing that “where a substantially exposed witness does not persuasively claim that he

can segregate the effects of his exposure, the prosecution does not meet its burden merely by

pointing to other statements of the same witness that were not themselves shown to be

[]tainted”).

57 Given the fact that Frost and Murphy were exposed to dozens of media accounts based on

all of the defendants’ compelled statements, the fact that the prosecutors identified numerous

instances in which Frost and Murphy testified based on the defendants’ statements (despite

having been admonished not to do so), and the fact that the defendants identified multiple other

instances in which tainted testimony was presented to the second grand jury because the taint

was not readily apparent from the transcript of the first grand jury, the court finds unpersuasive

the claims that Frost and Murphy were able to segregate the effects of their exposure to the

defendants’ compelled statements. In addition, the court concludes that the haphazard measures

taken by the government to salvage this testimony before presenting it to the second grand jury

were sorely deficient, as was starkly demonstrated at the Kastigar hearing. Therefore, the

government has failed to carry its burden of demonstrating by a preponderance of the evidence

that the compelled statements of the defendants, to which Frost and Murphy were concededly

exposed, did not in any way influence their testimony as it was presented to the second grand

jury.

Although it is not necessary for the court to assign fault to find that a Kastigar violation

occurred, see North II, 920 F.2d at 942, the court notes that the government could have taken

certain common sense precautions before presenting its case to the first and second grand juries

to mitigate the risk posed by the taint issue. The prosecutors and investigators were, after all,

aware from the very moment they were assigned to this case in late September 2007 that there

was a significant taint problem in this case, one that prompted the entire Criminal Division of the

Justice Department to recuse itself from this prosecution. See Govt’s May 29, 2009 Letter at 2.

The prosecutors and investigators could have memorialized any relevant testimony at the outset

of the investigation to create a record establishing the absence of taint. Cf. North I, 910 F.2d at

58 943 (observing that if the prosecution fails to “can” a witness’s testimony prior to his or her

exposure to immunized testimony, “it may well be extremely difficult for the prosecutor to

sustain its burden of proof that a witness exposed to immunized testimony has not shaped his or

her testimony in light of the exposure, or . . . been motivated to come forward and testify in light

of the immunized testimony”). Failing that, the government could have directed taint attorneys

to meet with the potentially tainted witnesses before they testified at the grand jury to probe the

extent to which they could testify based on personal recollection and identify areas in which their

recollections were intertwined with information gleaned from the defendants’ compelled

statement. See id. at 863 (noting that “[a] central problem in this case is that many grand jury

and trial witnesses were thoroughly soaked in [the defendant’s] immunized testimony, but no

effort was made to determine what effect, if any, this extensive exposure had on their

testimony”). At a bare minimum, the government’s trial team could have advised the witnesses

in October 2007 not to seek out press reports containing the defendants’ compelled accounts to

DSS investigators. The prosecutors and investigators in this case took none of these precautions

and the result was a clear violation of the defendants’ constitutional rights. Absent a showing of

harmlessness beyond a reasonable doubt, the dismissal of the indictment is the only permissible

result.

b. The Frost Journal Was Tainted

During both grand jury proceedings, the government relied on a document prepared by

Frost titled “16 September 2007: G87 traffic circle (A true account of the events as witnessed on

my part)” (“the Frost Journal”). GJ Ex. 1 at 39-47; see generally Govt’s Ex. 51. The document

is comprised of nine single-spaced typewritten pages in two parts: the first dated September 21,

2007, and the second dated October 3, 2007. See generally Govt’s Ex. 51. The parties did not

59 submit evidence concerning how long it took Frost to compose each part of the document or if

and when Frost revised either portion of the document. See Hr’g Tr., Oct. 21, 2009 a.m. at 88-

94; Hr’g Tr. Oct. 21, 2009 p.m. at 12-14, 40-42.

The Frost Journal contains a detailed account of the Nisur Square incident, told from

Frost’s perspective, including the events leading up to and immediately following the shooting.

See generally Govt’s Ex. 51. The government takes the position that the Frost Journal

constitutes an independent, untainted account, Govt’s Mem. at 31; Govt’s Reply at 20-21, while

the defendants assert that the document was tainted because it was drafted in response to the

defendants’ compelled statements, Defs.’ Mem. at 14-15.

The Circuit has made clear that Kastigar prohibits prosecutors from using immunized

testimony to influence a witness’s decision to testify. See Hylton, 294 F.3d at 134 (stating that it

is “rather obvious, under Kastigar and North, that if Hylton’s [immunized] statements were a

cause of Wright’s decision to plead and testify against Hylton, Wright’s testimony was

impermissible even if the government had prior knowledge of Wright’s role”); see also North I,

910 F.2d at 864 (noting that the testimony of Robert McFarlane, a key government witness,

constituted an impermissible evidentiary use because his testimony was motivated by and

directly responded to immunized testimony given by the defendant); North II, 920 F.2d at 942

(holding that “even where a witness testifies from personal knowledge, use within the meaning

of Kastigar may occur . . . if the immunized testimony influenced the witness’ decision to

testify”).

The Frost Journal begins with four paragraphs explaining Frost’s motivation for

authoring the account:

60 It is now the 21st of September and I feel that I must put my eyewitness account of what I have seen down on paper, so that as time goes further on my recollection is not diminished on those sad events.

Since that Sunday I have read numerous articles on the internet about the events of that day. From the NY Times, LA Times, AP, UPI, Reuters, and various other outlets. I have seen on various forum discussions on what happened based on those news stories and the obligatory opinions offered with the no real idea of what truly happened out there.

Many times I have hit the respond key and typed my message out only to stop, rethink and delete what I had written.

As of now, 5 days after the event, it seems that the [State Department] and [Blackwater] are locked into their stories and the real story will forever stay shrouded from the public[.]

Govt’s Ex. 51 at 1.

The foregoing indicates that at least two motivations compelled Frost to write the journal.

The first was his desire to preserve his recollection. See id. The second, however, was his desire

to respond to news reports reflecting the false “stories” of the State Department and Blackwater;

he devotes three out of four paragraphs of the introduction to describing the latter. See id.

Frost’s testimony at the Kastigar hearing confirmed the dual motivations underlying his

creation of the journal. He testified that the “main reason” he wrote the account was to

memorialize the events to “keep everything straight.” Hr’g Tr., Oct. 21, 2009 a.m. at 90; Hr’g

Tr., Oct. 21, 2009 p.m. at 41. He also, however, acknowledged that part of his motivation

resulted from his review of news articles which he felt were inaccurate and his desire to set the

record straight. Hr’g Tr., Oct. 21, 2009 p.m. at 41.

A review of the media accounts published between September 16, 2007 and September

21, 2007 reveals that the State Department’s “story” was that Raven 23 took action after coming

61 under small arms fire,44 an account that was clearly based on the content of the defendants’

compelled statements to State Department investigators.45 For instance, on September 17, 2007,

Time/CNN reported that it “had obtained an incident report prepared by the U.S. government

describing the firefight” which stated that “the motorcade was engaged with small arms fire from

several locations” and that the convoy “returned fire to several identified targets” before leaving

the area. Defs.’ Media Ex. 23. On September 19, 2007, ABC News produced a report stating

that officials were investigating “how many, if any, bullet holes there are in the Blackwater

vehicles, to confirm the Blackwater guards’ version of events that they were fired upon.” Defs.’

Media Ex. 28. Likewise, on September 21, 2007, the Los Angeles Times published a statement

from a State Department spokesperson indicating that the Raven 23 convoy “came under attack,

and there was defensive fire as a result of that.” Defs.’ Media Ex. 40. This evidence indicates

that the Frost Journal was prepared, at least in part, as a response to the accounts given by the

defendants and other Raven 23 members, which were conveyed to the media through the State

44 Indeed, Frost recalled that the press accounts he read in the immediate aftermath of the incident included reports that the Raven 23 convoy had received incoming fire. Hr’g Tr., Oct. 21, 2009 p.m. at 45-46. 45 The government itself points out that the physical investigation conducted in the immediate aftermath of the incident suggested that there had not been any insurgent activity at Nisur Square on the afternoon of September 16, 2007. See Govt’s Mem. at 7-8.

62 Department.46

The government points out that Frost demonstrated a desire to give his account of the

incident before he was exposed to any such media accounts; in the immediate aftermath of the

incident, Frost contacted Wainscott, his superior in Raven 23, to tell him that he felt

uncomfortable about the things he had seen, and met with other members of the convoy who also

had concerns about what had transpired. Hr’g Tr., Oct. 21, 2009 a.m. at 71-75. Indeed, the court

has no doubt that Frost’s feelings about the events of September 16, 2007 instilled in him a

desire to tell his story and may well have played a role in his decision to write the Frost Journal.

See id. at 90-91.

Yet the Circuit has never suggested that Kastigar applies only in circumstances in which

a witness’s exposure to immunized testimony was the sole or principal cause of his decision to

provide inculpatory evidence against the defendant. To the contrary, the Circuit has made clear

that a Kastigar violation occurs whenever exposure to immunized testimony was “a cause” of the

witness’s decision to testify, see Hylton, 294 F.3d at 134, and that impermissible use within the

meaning of Kastigar occurs when the immunized testimony “influences” the witness’s decision

to testify, see North II, 920 F.2d at 942. This much is easily established by the opening

46 This situation is readily distinguishable from United States v. Helmsley, 941 F.2d 71 (2d Cir. 1991), in which the defendant’s immunized testimony motivated a reporter to publish an article about the defendant unrelated to that testimony, which in turn prompted the prosecution against the defendant, id. at 82. The Second Circuit held that no Kastigar violation had occurred because there was no connection between the content of the defendant’s immunized testimony and any evidence used in the prosecution. Id.; see also United States v. Kilroy, 27 F.3d 679, 588 (D.C. Cir. 1994) (holding Kastigar does not apply “to situations in which the publicity concerning immunized testimony triggers a purely private investigation into an entirely different matter”) (quoting Helmsley, 941 F.2d at 83). Here, by contrast, not only did the content of the defendants’ statements – specifically, the fact that they were allegedly responding to small arms fire – play a motivating role in the creation of the Frost Journal; they were actually alluded to in the journal. See Govt’s Ex. 51 at 1. This constitutes an impermissible evidentiary use of the defendants’ compelled statements. See Helmsley, 941 F.2d at 83 (noting that “where the grant of immunity in the course of an investigation compels testimony that angers a [witness] and causes [the witness] to implicate the immunized witness by testimony that would otherwise not have been given, a Fifth Amendment violation occurs”).

63 paragraphs of the Frost Journal and his testimony at the Kastigar hearing. Because the

defendants’ compelled statements were a cause of Frost’s decision to draft the Frost Journal, it is

tainted and its use in the grand jury was impermissible.47

In the October 3, 2007 portion of the Frost Journal – written after the contents of the

defendants’ September 18 written statements appeared in news reports and after Slough’s written

statement had been posted to the Internet – Frost expressed his anger that the defendants had not,

in his view, given truthful accounts to DSS investigators:

‘You guys did nothing wrong out there, and we’ve been completely honest with the State Department with their investigation[,]’ [t]he [Blackwater manager] stated. I thought to myself, you [guys] have been anything but honest with the State Department and their investigation . . . . We’ve been praised . . . for being honest, coming forward and ‘doing the right thing’, however they haven’t done the right thing by telling the State Department what they knew . . . . I left the office with a rage building inside me.

Govt’s Ex. 51 at 8.

This passage makes clear that the October 3, 2007 portion of his account was motivated

by his exposure to the defendants’ compelled statements. Moreover, it casts significant doubt on

Frost’s cooperation with prosecutors. The meeting described in this portion of the Frost Journal

took place immediately before the FBI came to conduct interviews of the Raven 23 team

members, including Frost. Hr’g Tr., Oct. 21, 2009 a.m. at 94-95. The government relied heavily 47 In fact, Dobinski, a member of the taint team, advised the prosecutors not to use the Frost Journal in the second grand jury, explaining that “the intro . . . refers to the media accounts (I.e. Compelled statements) and says he wants to memorialize his recollection (presumably because the media accounts were not revealing what really happened) – This smacks of the McFarlane situation in North[.]” Govt’s Ex. 308. Dobinski predicted that the Frost Journal would “certainly draw Kastigar fire from the defense and whoever defends it is going to have to attempt to explain this possible government-inflicted taint of the (second) grand jury.” Id. After prosecutor Malis, a member of the trial team, expressed his disagreement, Dobinski noted that her sense “of the reasons Frost wrote his journal was that in his mind neither he nor the others had told the full story. It would seem that how he suspected the full story was not told was because of what he though he knew about the others’ compelled statements.” Id. Dobinski’s advice, like so much advice of the taint team, was disregarded. Instead, the trial team chose to test the boundaries of permissible use of questionable testimony and ignore the warnings of fellow prosecutors tasked with advising them on precisely these issues. In so doing, it skated over the line.

64 on Frost because during his initial FBI interview, Frost left Agent Patarini with the “impression

that [he] had . . . a story that he would like to tell, and under the right circumstances he would tell

that to us.”48 Hr’g Tr., Oct. 21, 2009 p.m. at 104-05. The evidence thus suggests that as with

McFarlane in North I, Frost’s desire to cooperate with investigators, communicated to Agent

Patarini during his initial interview, was motivated by his desire to correct what he saw as

falsehoods in the defendants’ compelled accounts. This too reflects impermissible use of the

Moreover, the government failed to establish at the Kastigar hearing that the defendants’

compelled statements did not affect the content of the account contained in the Frost Journal.

Media reports reflecting the defendants’ compelled written statements began appearing on

September 28, 2007. See Defs.’ Media Ex. 2. Frost acknowledged reading the sworn written

statements of Slatten and Slough, and was exposed to numerous media accounts regarding the

Nisur Square shooting. Hr’g Tr., Oct. 21, 2009 a.m. at 82-83. Although it appears that Frost

began writing his account before the defendants’ compelled statements appeared in the news

media on September 28, 2007, there was no testimony or other evidence indicating that he

completed the September 21, 2007 portion of the journal, which spans seven single-spaced

pages, prior to his exposure to the defendants’ compelled statements. See id. at 64-98; Hr’g Tr.,

Oct. 21, 2009 a.m. at 88-94; Hr’g Tr. Oct. 21, 2009 p.m. at 12-14, 40-42; Govt’s Ex. 51 at 1-7.

Nor did the government present any evidence that Frost did not alter or amend the Frost Journal

at any time after his exposure. See Hr’g Tr., Oct. 21, 2009 a.m. at 64-98; Hr’g Tr., Oct. 21, 2009

p.m. at 1-61.

48 Frost did not suggest that any of his fellow Raven 23 members had committed any wrongdoing during his September 16 interview with DSS agents or in his subsequent written statement. See Defs.’ Reta Ex. 3; Defs.’ Frost Ex. 7; see also Hr’g Tr., Oct. 21, 2009 p.m. at 49-50.

65 This does not represent some “abstract possibility of taint.” See United States v. Byrd,

765 F.2d 1524, 1529 (11th Cir. 1985) (holding that the district court erred in finding a Kastigar

violation based on the mere “possibility” that the investigating agent had used the defendant’s

immunized testimony, despite the fact that all of the evidence relied on by the government had

been obtained prior to the time the defendant gave his immunized testimony). Frost was exposed

to the defendants’ compelled accounts during the time he was writing the Frost Journal. See

Govt’s Ex. 51 at 1-9; Hr’g Tr., Oct. 21, 2009 a.m. at 82-83. Those compelled statements dealt

with precisely the same events about which he was writing.49 See generally Govt’s Ex. 51;

Slough Stmt. (Sept. 18, 2007); Slatten Stmt. (Sept. 18, 2007); Ball Stmt. (Sept. 18, 2007); Heard

Stmt. (Sept. 18, 2007); Liberty Stmt. (Sept. 18, 2007). Furthermore, it is clear from the October

3, 2007 portion of the Frost Journal that the falsity of the defendants’ statements to the DSS

investigators had a powerful effect on Frost. See Govt’s Ex. 51 at 8-9. Under these

circumstances, it was clearly the government’s burden to show that this account was not affected

by Frost’s exposure to the defendants’ compelled statements. See Hylton, 294 F.3d at 134. The

government’s failure to meet this burden leaves the court with no choice but to find yet another

impermissible use of compelled testimony.

c. The Information Provided by Cooperating Witness Ridgeway Was Tainted

The government also relied heavily on information provided by cooperating witness

Ridgeway to obtain the indictment against the defendants. The prosecutors provided the second

grand jury with Ridgeway’s factual proffer in support of his guilty plea, which contained a

detailed account of the Nisur Square shooting and characterized the incident as an unprovoked

49 The Frost Journal describes in detail the actions and movements of Iraqi civilians and Iraqi police officers in the traffic circle during the shooting, see Govt’s Ex. 51 at 3-5, descriptions that clearly could have been shaped by (or written in response to) the defendants’ compelled statements which Frost read around that time.

66 and unjustified assault on innocent civilians. See GJ Ex. 1 at 32-38; Govt’s Ex. 311 (Grand Jury

Tr., Nov. 20, 2008 a.m. at 63-72). The Ridgeway factual proffer devoted particular attention to

the engagement of the white Kia, concluding that “a reasonable person . . . would have

recognized that the white Kia did not exhibit any indicia of a VBIED attacker as provided in the

Missions Firearm Policy.” GJ Ex. 1 at 37.

The government also presented the second grand jury (through Agent Powell)50 with

statements given by Ridgeway to the FBI that provided detailed allegations against all of the

defendants other than Slatten. Govt’s Ex. 311 (Grand Jury Tr., Dec. 2, 2008 p.m. at 12-13).

Through Agent Powell, Ridgeway informed the second grand jury that Slough had fired an

M203 grenade at the white Kia and had fired at other locations around Nisur Square, id. at 13-14,

that Liberty admitted firing his weapon out of his driver’s porthole, id. at 31-32, that Heard fired

his machine gun at various targets to the south of the circle and also fired a grenade, id. at 34-36,

and that Ball admitted firing two shots at the white Kia sedan, id. at 44.

The defendants posit that by declining to call Ridgeway to testify at the Kastigar hearing,

the government failed to carry its burden and the indictment must be dismissed in its entirety.

Defs.’ Mem. at 8-12. They contend that North I prohibits the court from relying on mere

warnings and hearsay to conclude that the government has met its Kastigar burden, and requires

the government to submit every witness who testified at the grand jury to cross-examination at a

Kastigar hearing.51 Id. at 11-12.

50 To its credit, the government does not attempt to argue that the fact that Ridgeway did not testify live at the second grand jury relieves the government of its burden to establish the absence of taint for his statements. See generally Govt’s Mem.; Govt’s Reply Mem. 51 The defendants also assert – and the government does not dispute – that Ridgeway was in Washington D.C. during the Kastigar hearing and that Ridgeway’s cooperation agreement requires him to testify for the government upon request. Defs.’ Mem. at 12; see generally Govt’s Reply Mem.

67 The government asserts that it may meet its Kastigar burden by relying on a combination

of different types of evidence, including live witnesses, documents and hearsay testimony.

Govt’s Reply Mem. at 5. The government notes that the court denied the defendants’ objections

to the introduction of hearsay testimony to establish the absence of taint for both Ridgeway and

the Iraqi witnesses, on the grounds that hearsay evidence is admissible at a pretrial suppression

hearing.52 Id. at 4; Hr’g Tr., Oct. 19, 2009 p.m. at 47; Hr’g Tr., Nov. 2, 2009 a.m. at 14.

Although North I demands that the Kastigar inquiry proceed “witness by witness,” North

I, 910 F.2d at 872-73, it is unclear whether the Circuit intended to adopt a categorical rule that in

every case, the government must present every potentially exposed grand jury witness for live

testimony at a Kastigar hearing. North I and North II make clear that the district court may not

substitute an in camera review for an adversarial hearing, during which the defendant may probe

whether the government has met its Kastigar burden. See id.; North II, 920 F.2d at 943-44. Yet

the Circuit has emphasized the flexibility to be afforded the government in attempting to meet its

Kastigar burden, noting that the court has never meant to suggest “that the prosecutor was barred

from trying to show in any fashion that a witness’ testimony was not influenced by the

immunized testimony.” North II, 920 F.2d at 943 (emphasis added) (stating also that the court

has never intended to preclude the government’s use of “any techniques” to meet its burden).53

On the other hand, North II indicates that one of the deficiencies of the in camera review relied

on by the district court was that “this ‘review’ neatly avoided any cross-examination of witnesses

52 See United States v. Raddatz, 447 U.S. 667, 679 (1980) (stating that “[a]t a suppression hearing, the court may rely on hearsay and other evidence, even though that evidence would not be admissible at trial”). 53 At least two circuits have explicitly held that the government can meet its Kastigar burden without the live testimony of the potentially tainted witness. See United States v. Montoya, 45 F.3d 1286, 1299 (9th Cir. 1995); United States v. Provenzano, 620 F.2d 985, 1005-06 (3d Cir. 1980).

68 who were admittedly exposed to the immunized testimony.” Id. at 943-44 (deeming the notion

that the district court’s in camera review could take the place of an adversarial hearing “quite a

remarkable proposition”).

Ultimately, the court need not resolve this issue because even assuming that the

government may meet its Kastigar burden through documentary evidence and hearsay and

without the live testimony of the potentially tainted witness, the evidence offered by the

government with respect to cooperating witness Ridgeway failed to establish that it made no use

of the defendants’ compelled statements when it presented evidence from Ridgeway to the

second grand jury. As an initial matter, it is undisputed that Ridgeway was exposed to the

defendants’ compelled statements. The government has acknowledged that Ridgeway saw the

September 18 written statements of Slatten and Heard soon after the incident, and that he

encountered Slough’s September 18 written statement in media reports in November 2007.

Govt’s June 30, 2009 Letter at 9. Ridgeway also received the October 2, 2007 e-mail from

Randall containing a link to an ABC News televised report which purported to based on all

nineteen Raven 23 members’ accounts. Defs.’ Murphy Ex. 9. In addition, Ridgeway read press

coverage and participated in Internet chat rooms that contained references to defendant Slough’s

sworn statement. See Govt’s Ex. 312.

The evidence indicates that Ridgeway’s exposure to these statements was not fleeting,

but may very well have affected his recollection of the events at Nisur Square. During a

December 2008 interview with the prosecution team, Ridgeway’s attorney advised Kohl and

Malis that there were “Kastigar risks” associated with Ridgeway’s recollection of specific targets

fired on by Slough. Hr’g Tr., Nov. 2, 2009 p.m. at 101-04. Malis testified that he understood

Ridgeway’s lawyer to be saying that if Ridgeway provided the government with information on

69 those topics, there was a risk he would be providing information that resulted from his exposure

to compelled testimony. Id. at 103.

In the face of this potential taint, the government relies solely on the following to meet its

burden: its admonition to Ridgeway to limit his statements to his personal recollection, see Hr’g

Tr., Nov. 2, 2009 a.m. at 13-16, 20-21; Ridgeway’s assertion that he could do so (for all the

defendants other than Slatten),54 id. at 15-16; and the fact that that Ridgeway directly observed

many of the events about which he testified, Govt’s Reply Mem. at 9. Yet this Circuit has made

abundantly clear that mere admonitions and conclusory assertions are insufficient to establish the

absence of taint. North I, 910 F.2d at 868 (holding that “the District Court’s reliance on

warnings to witnesses (to avoid testifying as to anything they had learned from North’s

immunized testimony) was not sufficient to ensure that North’s testimony was not used”); see

also Poindexter, 951 F.2d at 375-76 (holding that the district court’s instruction to a witness not

to “go into other people’s testimony” was not sufficient to ensure the absence of taint). In

addition, as previously discussed, the government’s burden is not limited to merely showing that

the witness possessed an independent basis from which he might have testified. See Hylton, 294

F.3d at 134. Rather, the government must prove that the witness’s exposure to compelled

statements did not – in any way – influence the testimony he gave to the grand jury. See id.;

North II, 920 F.2d at 942.

54 The government chose not to seek information from Ridgeway about defendant Slatten because during the prosecution’s first interview with Ridgeway, he “expressed some uncertainty about whether or not he could separate in his mind what it is Mr. Slatten had said to Mr. Ridgeway immediately after the shooting from what Mr. Ridgeway had read.” Hr’g Tr., Nov. 2, 2009 a.m. at 15. Yet it appears that the government simply accepted Ridgeway’s assertion that he could separate what he had seen from what he had read regarding the other defendants, id. at 15-16, despite his acknowledged inability to segregate his memory with respect to Slatten, id. at 15, and despite the fact that Ridgeway’s own attorney advised Malis that he believed there were Kastigar risks associated with his client’s testimony about Slough’s firing on specific targets, Hr’g Tr., Nov. 2, 2009 p.m. at 101-04.

70 Thus, the fact that Ridgeway was present at Nisur Square is insufficient to demonstrate

the absence of taint. Instead, the government was required to prove that every one of the detailed

allegations that Ridgeway made against the defendants was not influenced in any way by his

prior exposure to their compelled statements. See Hylton, 294 F.3d at 134; Poindexter, 951 F.2d

at 376. The government has utterly failed to meet this burden, a striking failure given the

significance of this witness to the overall prosecution of this case. Ridgeway acknowledged

having read the sworn written statements of Slough, Slatten and Heard; he appears to have been

exposed to media accounts based on the compelled statements of all the defendants; and he

provided specific inculpatory testimony against every defendant except Slatten. The

government’s failure to prove that it made no evidentiary use of the compelled statements

through Ridgeway constitutes a clear Kastigar violation.

d. The Statements of Iraqi Witnesses Presented to the Second Grand Jury Were Tainted

The government also presented the statements of twenty-two Iraqi witnesses to the

second grand jury. See generally Govt’s Ex. 1. The statements of these Iraqi witnesses were

used to support the government’s allegations against every defendant. See generally GJ Ex. 107.

As it did with cooperating witness Ridgeway, the government attempted to meet its Kastigar

burden with respect to these witnesses solely through hearsay testimony. See Hr’g Tr., Oct. 19,

2009 p.m. at 48-98; Hr’g Tr., Oct. 20, 2009 p.m. at 1-109. The defendants maintain that the

government’s failure to present these witnesses for cross-examination at the Kastigar hearing

necessarily requires the dismissal of the indictment, Defs.’ Mem. at 19, while the government

avers that it was neither feasible nor necessary to have all the Iraqi witnesses testify at the

Kastigar hearing, Govt’s Reply Mem. at 4-11.

71 Once again, however, the court need not reach the issue because even assuming the

government could meet its heavy Kastigar burden through hearsay testimony alone, the evidence

offered by the government failed to demonstrate that the defendants’ compelled statements did

not in any way influence the statements given by these Iraqi witnesses. As previously discussed,

the defendants’ September 18 written statements were widely reported in the media in the weeks

following the incident, and reports conveying the substance of the defendants’ accounts to DSS

agents – that they were responding to hostile fire – began to appear almost immediately after the

incident. The government does not dispute that the Nisur Square incident was notorious in Iraq

or that media coverage of the incident saturated Baghdad. See Defs.’ Mem. at 17; see generally

Govt’s Mem.; Govt’s Reply. FBI Special Agent Carolyn Murphy, one of the agents who

interviewed Iraqi witnesses in October 2007, acknowledged the pervasiveness of the media

coverage in Iraq about the incident, stating “that there had been reports on the news about it, that

people were talking about it.” Hr’g Tr., Oct. 19, 2009 p.m. at 69.

At least one Iraqi witness, Hassan Jabir Salman, made statements reflecting his exposure

to the defendants’ compelled accounts. Salman, who was shot at Nisur Square, spoke to

reporters from his hospital bed and stated that “[i]t is not true when they say that they were

attacked. We did not hear any gunshots before they started shooting.” Defs.’ Media Ex. 43 at 1.

This statement, which was widely reported, see, e.g., Defs.’ Media Exs. 39, 40, 43, appears to

have been a direct response to the defendants’ compelled accounts that they had encountered

incoming fire on September 16, 2007.

The FBI’s records indicate that five of the Iraqi witnesses interviewed in June 2009

72 acknowledged being exposed to the statements of Raven 23 members.55 See Govt’s Ex. 23. The

statements of three of these five witnesses were presented to the second grand jury. See GJ Ex.

1; see generally GJ Ex. 107. At least one such witness, Sarhan Deab Abdul Moniem Da-

Zubaidi, acknowledged having been exposed to specific information from the defendants’

compelled statements through a prior interview with DSS agents. See Hr’g Tr., Oct. 19, 2009

p.m. at 94-95. In June 2009, Da-Zubaidi informed FBI investigators that when he was

interviewed by DSS agents prior to his October 2007 interview with the FBI, “he had been told

by investigators that the Blackwater guards had said that he was pushing the [white Kia] towards

their convoy.”56 Id. at 95. Allegations made by Da-Zubaidi were specifically included in the

summary of evidence against Slough and Ball. See GJ Ex. 107 at 1, 7.

At the Kastigar hearing, the government attempted to establish that all of the Iraqi

witnesses on whom it relied were free from taint solely through the hearsay testimony of Agent

Murphy. See Hr’g Tr., Oct. 19, 2009 p.m. at 48-98; Hr’g Tr., Oct. 20, 2009 p.m. at 1-109. In

October 2007, Agent Murphy was part of a team of FBI investigators that traveled to Iraqi to

conduct interviews of Iraqi eyewitnesses identified by the INP. Hr’g Tr., Oct. 19, 2009 p.m. at

64-66. Although Agent Murphy testified that she and her fellow investigators admonished the

witnesses not to relay information obtained through press accounts, see id. at 69-70, notable is

the fact that not a single FBI investigative report for those interviews reflects that such an

admonishment was given, see Hr’g Tr., Oct. 20, 2009 p.m. at 59-62. At any rate, as previously

55 One of the witnesses interviewed by the FBI in June 2009, Dr. Haitham Al-Rubaie, father of the occupants of the white Kia, told Blackwater and an Iraqi judge that his family members were killed by a Blackwater guard named “Paul,” Defs.’ C. Murphy Ex. 25, information he likely learned through his exposure to Slough’s compelled statements, see Govt’s Ex. 25. 56 Da-Zubaidi’s exposure through the DSS interviews is hardly surprising, given Agent Carpenter’s acknowledgement that some of the questions the DSS agents asked the Iraqi witnesses during their investigation “may have been formed as a result of information provided by [Raven] 23.” Defs.’ Carpenter Ex. 8.

73 discussed, mere admonishments are patently insufficient to demonstrate the absence of taint. See

North I, 910 F.2d at 868; Poindexter, 951 F.2d at 375-76. Agent Murphy identified no other

steps taken by the FBI agents in October 2007 to ensure that they were not receiving tainted

information from the witnesses they interviewed. See Hr’g Tr., Oct. 19, 2009 p.m. at 66-71.

In June 2009, Agent Murphy returned to Iraq with an FBI investigative team to conduct

additional pretrial interviews of certain Iraqi witnesses. Id. at 72. On June 10, 2009, Agent

Murphy circulated an e-mail to the prosecution team and fellow investigators, regarding

“[w]itness admonishments,” Govt’s Ex. 45, which established a three-step taint protocol for

these interviews: (1) the witness was admonished to provide information only from his or her

personal recollection; (2) the witness was asked whether he or she had been exposed to media

accounts or the defendants’ statements; and (3) if affirmative, the witness was asked whether this

exposure had influenced his or her memory or affected his or her decision to cooperate with

investigators, see id. There is no evidence that the FBI interviewers conducted any type of

probing inquiry into whether exposure to the defendants’ compelled statements influenced the

witnesses’ recollections. Rather, it appears that if a witness answered that his or her memory

was not influenced by exposure to compelled testimony, the inquiry ended. See id.; Hr’g Tr.,

Oct. 19, 2009 p.m. at 93-94. This perfunctory protocol falls far short of establishing that the

witnesses’ testimony was not influenced in any way by their exposure to the defendants’

compelled statements.

In sum, the government failed to establish that the Iraqi witnesses it presented to the

second grand jury were not in any way influenced by their previous exposure to the defendants’

compelled statements. This evidentiary use of tainted information constitutes yet another

74 Kastigar violation.57

2. Nonevidentiary Use of the Defendants’ Compelled Garrity Statements

a. The Defendants’ Garrity Statements Prompted the Decisionto Charge Defendants Heard and Ball

The defendants contend that the trial team’s exposure to the compelled statements of

Heard and Ball played a central role in the government’s decision to include them as targets of

the prosecution. Defs.’ Mem. at 35-36. They note that although the prosecution had identified

both Heard and Ball as shooters by the end of 2007, the trial team did not add them as targets of

the prosecution until after they had obtained and reviewed the defendants’ compelled statements.

Id. The government insists that the decisions to charge Heard and Ball were based on the

discovery of evidence in early 2008 unrelated to the defendants’ compelled statements. Govt’s

Mem. at 40-41.

An examination of the evidence reveals that although the government’s trial team had

identified defendant Heard as a shooter by December 2007, he was not listed as a target of the

prosecution in the trial team’s internal investigative updates until March 2008, Govt’s Ex. 70,

after the prosecutors had completed their interviews of the DSS agents in January and February

2008. Moreover, Kohl’s draft prosecution memorandum makes clear that Heard’s September 16

interview statement played a central role in the decision to add him as a target of the prosecution.

See Defs.’ Kohl Exs. 68-71, 73. The prosecution memorandum quotes extensively from Heard’s

57 In its post-hearing memoranda, the government asserts that if the court deems it necessary to hear from Ridgeway or the Iraqi witnesses before trial, the court should allow the government to bring these witnesses here to supplement the record with a discrete Kastigar inquiry. Govt’s Reply Mem. at 9 n.30. The government’s suggestion amounts to a request that it be permitted to make its showing at the Kastigar hearing however it wants, and then if it fails to meet its burden on the first try, it get another chance to make its showing, either at trial or through a supplemental pretrial proceeding. The unfairness of this approach is manifest. The court sees no reason to permit the government a second bite at the apple with respect to Ridgeway or the Iraqi witnesses, any more than it sees a reason to permit the government to re-examine Frost or Murphy or any other witness who testified at the Kastigar hearing.

75 September 16 interview statement, including his descriptions of firing machine guns at the white

Kia and at an alleged insurgent. Id. Moreover, the memorandum specifically notes that after

completing his interview, Heard returned to the interview room approximately forty-five minutes

later of his own accord “extremely upset” and disclosed to DSS agents additional details

regarding his actions, including the fact that he had fired an M203 grenade. Id. The prosecution

memorandum states that Heard’s “initial reluctance” to provide full disclosure demonstrated his

“consciousness of guilt” and showed that he “knew his actions [in Nisur Square] were excessive

and reckless.” 58 Id.

The weight that Kohl placed on Heard’s September 16 statement is further revealed in

Kohl’s specific reference to that statement when attempting to persuade Heard to cooperate with

the government in the summer of 2008. Hr’g Tr., Oct. 29, 2009 a.m. at 161-64. Hulser, the head

of the taint team and a senior prosecutor, testified that he did not authorize Kohl to use Heard’s

September 16 statements in this manner. Hr’g Tr., Oct. 23, 2009 a.m. at 77.

Kohl testified that his decision to add Heard as a target resulted from two developments:

first, his “discovery” in February 2008 that the white Kia was traveling at a slow rate of speed

and thus did not pose a threat to the convoy, and second, his conversation with Colonel Boslego

regarding the inherent impropriety of firing an M203 grenade in an urban area. Hr’g Tr., Oct.

28, 2009 a.m. at 41-48. Notably, Frost, Mealy and Murphy had all already testified in late 2007

58 This discussion appeared in a late draft of the prosecution memorandum that was circulated to Kohl’s supervisors, with the instructions to review it promptly because the trial team hoped to present the case to a grand jury the following week. Hr’g Tr., Oct. 29, 2009 a.m. at 180-84; see Defs.’ Kohl Ex. 73. The discussion was subsequently removed on the advice of Hulser and Dobinski. See Defs.’ Kohl Ex. 76.

76 that the white Kia was traveling slowly,59 and Murphy even testified that he believed it was not a

threat. GJ Ex. 94 at 22. In fact, during his examination of Mealy at the first grand jury, Kohl

challenged Mealy’s assertion that the engagement of the white Kia may have been justified,

eliciting testimony from Mealy about the escalation of force rules and the speed at which the Kia

was moving. GJ Ex. 92 at 50-54.

Ponticello testified that Heard became a target once the prosecutors decided to “charge

the white Kia” and mentioned nothing about Kohl’s conversation with Colonel Boslego. Hr’g

Tr., Oct. 27, 2009 p.m. at 41. Indeed, when asked to confirm that Heard’s statement to the DSS

investigators caused the government to target him, Ponticello responded, “I can’t say that that’s

the only basis.” Id. at 53. Thus, Ponticello acknowledged what is readily apparent from the

timing of Heard’s addition to the target list, as well as from Kohl’s references to that statement in

the prosecution memorandum – that Heard’s September 16 interview statement played a

substantial role in the government’s decision to focus on him as a target of the prosecution.

Though there is less direct evidence regarding the decision to charge defendant Ball, the

evidence indicates that statements he gave to DSS investigators played a central role in that

decision as well. Ball was not listed as a target of the investigation until the investigative update

of April 24, 2008. See Govt’s Ex. 70. By that time, the trial team had interviewed DSS agents

regarding the compelled statements of Ball and the other defendants. In addition, it appears that

in April 2008, prosecutors and investigators reviewed an unsigned draft of Ball’s September 18

written statement, which had been acquired through the execution of the search warrant based on

59 Frost wrote in his journal, which was provided to prosecutors in late 2007, that he “looked over [his] shoulder in time to see a white passenger car slowly rolling forward.” Govt’s Ex. 51 at 3. Frost also testified at the first grand jury that the white Kia was moving so slowly that “you could walk and . . . keep up with it.” GJ Ex. 90 at 24. Mealy likewise testified that the white Kia “was slowly rolling forward.” GJ Ex. 92 at 42.

77 the defendants’ September 16 oral statements.60 Ponticello could identify no evidence against

Ball obtained between the March 10, 2008 investigative update, which does not list Ball as a

target of the investigation, and the April 24, 2008 investigative update, which names Ball as a

target for the first time. Hr’g Tr., Oct. 27, 2009 p.m. at 31-34; see Govt’s Ex. 70.

The sole reason offered by the government to explain its decision to add Ball as a target

in late April 2008 is, again, the trial team’s “discovery” in February 2008 that the white Kia was

traveling at a slow rate of speed. Govt’s Mem. at 40. Yet, as previously discussed, this asserted

justification is simply not credible. Thus, the government has failed to carry its burden to show

that it did not use Ball’s compelled statements to focus the prosecution on him. To the contrary,

the common sense inference to be drawn from this evidence, given the timing of the decisions

and the government’s failure to offer a credible explanation to the contrary, is that Ball’s

disclosures to DSS agents played a determinative role in the government’s decision to prosecute

him. This significant and tangible nonevidentiary use of the compelled testimony of Heard and

Ball is barred by Kastigar and Garrity.

b. The Defendants’ Garrity Statements Guided the Government’s Investigation and Prosecution

The defendants argue that in light of the government’s persistent efforts to obtain the

defendants’ compelled statements and the value of these statements to the prosecution, it is

simply implausible that the government did not make significant use of these statements to steer

its investigation and to shape its view of the case. Defs.’ Mem. at 38. The government

maintains that regardless of whatever exposure they may have had to the defendants’ compelled

statements, the prosecutors and investigators made no investigative or strategic use of these

60 Agent Patarini acknowledged that he may have read the statement as early as March 2008. Hr’g Tr., Oct. 22, 2009 p.m. at 19. Kohl testified that by the time he met with Agent Patarini in April 2008, Agent Patarini had already read Ball’s written statement. Hr’g Tr., Oct. 28, 2009 p.m. at 46-47.

78 compelled statements. Govt’s Reply Mem. at 12-17. The government asserts in its own defense

that the trial team’s exposure to these statements resulted from a mere “miscommunication”

between Kohl and Hulser, Govt’s Mem. at 13, and that this exposure did not reveal any

information that was not already known to the government or that was of any use to the

prosecution, id. at 41-45.

The evidence presented during the Kastigar hearing leaves no doubt that the trial team

went to great lengths to obtain information gleaned from the defendants’ compelled statements.

In January and February 2008, the trial team traveled to Iraq and interviewed all of the DSS

agents involved in the Nisur Square investigation. On January 11, 2008, the trial team

interviewed Agent Carpenter, who disclosed specific information concerning the content of the

defendants’ compelled statements. Hr’g Tr., Oct. 19, 2009 a.m. at 30. This information included

disclosures made by the defendants during their September 16, 2007 interviews. Id. This

information also included descriptions of specific targets that Slough fired at north of the traffic

circle, which Slough did not disclose during his September 16, 2007 interview but revealed in

subsequent interviews with DSS agents. Id. at 30-35.

On January 25, 2008, the trial team interviewed Agent Lopez. Defs.’ Lopez Ex. 6.

During this interview, the trial team obtained information regarding the specific threats identified

by Slough in his compelled statements. Hr’g Tr., Oct. 15, 2009 p.m. at 60-61. Agent Lopez also

disclosed that Heard had initially stated that he did not fire an M203 grenade, but returned later,

“very upset about the incident,” and disclosed the full extent of his involvement. Defs.’ Lopez

Ex. 6. In addition, Kohl obtained from Agent Lopez a copy of her interview notes from the

September 16, 2007 interviews she had conducted. Govt’s June 30, 2009 Letter at 4.

79 The trial team asked Agent Farrington to provide them with his opinion about what had

happened at Nisur Square, a view that he acknowledged was shaped by his review of the

defendants’ compelled testimony during the DSS investigation, including a summary of their

September 18 written statements and their post-September 18 re-interviews. Hr’g Tr., Oct. 16,

2009 p.m. at 84-85, 91-92; Defs.’ Farrington Ex. 4.

The trial team questioned Agent Motley about the re-interviews of the defendants

conducted on September 20, 2007, during which the defendants pointed out on a map the various

directions from which they had purportedly taken fire. Hr’g Tr., Oct. 16, 2009 a.m. at 71-72.

Ponticello testified that the trial team did not seek a copy of the map marked by the defendants

because they recognized that it contained tainted information. Hr’g Tr., Oct. 27, 2009 p.m. at 63.

Yet, incredibly, during the trial team’s interview of Agent Motley, the trial team provided Agent

Motley with an aerial map of Nisur Square and had him circle the locations that had been

identified by the defendants on the admittedly tainted map.61 Id. at 66.

In February 2008, the trial team used information from the defendants’ September 16

interview statements to obtain search warrants for unsigned copies of the defendants’ sworn

written statements.62 Hr’g Tr., Oct. 22, 2009 p.m. at 17-21. Agent Patarini acknowledged

reading the written statements of Ball and Heard and providing copies of these statements to the

prosecutors. Id. at 22. The government’s only explanation for the search warrant project was

61 Prosecutor Ponticello testified that during the interviews of the DSS agents in early 2008, his understanding was that only the defendants’ September 18 written statements were out of bounds, and that he was not prohibited from obtaining the defendants’ subsequent interview statements to DSS investigators. Hr’g Tr., Oct. 27, 2009 a.m. at 72. The government has, of course, conceded that the defendants’ September 18 written statements and all subsequent statements they made to DSS investigators constitute compelled Garrity statements. Hr’g Tr., Oct. 14, 2009 a.m. at 6-10. 62 Kohl testified that he discussed using the search warrants to target the defendants’ September 18 written statements in meetings with the Assistant Attorney General. Hr’g Tr., Oct. 28, 2009 a.m. at 26-27. Yet neither Ponticello nor Mullaney, who attended the same meetings, recalled any such discussions. Hr’g Tr., Oct. 26, 2009 p.m. at 30; Hr’g Tr., Oct. 27, 2009 p.m. at 8-10.

80 that it was designed to investigate potential false statement prosecutions. See Govt’s Mem. at

15; Govt’s Ex. 288 at 9-10; Hr’g Tr., Oct. 28, 2009 p.m. at 44. But Kohl himself acknowledged

that it was inappropriate for him to view the September 18 statements in connection with a false

statements prosecution while still considering a prosecution based on the activities disclosed in

those statements, Hr’g Tr., Oct. 28, 2009 p.m. at 70, and that the search warrant project was

“close to the line, absolutely,” Hr’g Tr., Oct. 29, 2009 a.m. at 32-33.

In August 2008, months after Kohl and Hulser met to resolve the purported

“miscommunication” between them regarding exposure to tainted evidence, Kohl obtained and

read two “Memorandum Reports of Interviews” memorializing the statements given by the

defendants during their September 16, 2007 interviews. Id. at 165-66. Kohl testified that this

action was in keeping with the understanding he reached with Hulser at the April 2008 meeting.

Id. at 79. But this assertion was flatly contradicted by Hulser, who testified that his position

regarding the September 16 interview statements never changed and that he never authorized the

trial team to obtain notes from those interviews. Hr’g Tr., Oct. 23, 2009 a.m. at 42.

It is clear from this evidence that beginning in the first months of the investigation and

throughout its duration, the trial team aggressively sought out and obtained the substance not

only of the defendants’ September 16 interview statements, but also of the defendants’

subsequent statements to the DSS investigators, which the government has never disputed were

compelled and tainted. The trial team members immersed themselves in the defendants’

compelled statements long before obtaining the indictment in December 2008.

All of the trial team’s efforts to obtain the contents of the defendants’ compelled

statements were taken in direct contravention of the clear directives given by taint attorney

Hulser. Between November 2007 and April 2008 (when Kohl and Hulser agreed that Kohl

81 would decide what information would be sent to Hulser for screening), Hulser repeatedly advised

the trial team to refrain from any contact with the DSS investigators and not to seek out

information derived from the tainted DSS investigation, including the defendants’ September 16

oral statements. See, e.g., Govt’s Ex. 57; Defs.’ Kohl Exs. 9-10. Hulser never authorized the

trial team’s interviews of the DSS agents in early 2008, did not approve the trial team’s efforts to

obtain records and notes from the defendants’ September 16, 2007 interviews and never

sanctioned the use of the defendants’ September 16 interview statements to obtain the search

warrant for the defendants’ September 18 written statements. Hr’g Tr., Oct. 23, 2009 a.m. at 28-

29.

The government attempts to characterize Kohl’s failure to heed Hulser’s directives as a

mere “miscommunication.” Yet to accept this characterization, the court would have to accept

the following: that Kohl, a seasoned and accomplished prosecutor, failed to read multiple e-mails

from senior prosecutors regarding a high profile case, including one e-mail to which Kohl

responded “Got it,” see Defs.’ Kohl Ex. 10; Govt’s Ex. 57; that Mullaney, a Section Chief in the

DOJ National Security Division, failed to forward to Kohl numerous e-mails from Hulser

containing critical information regarding the investigation, despite Mullaney’s testimony that it

was his practice to forward any such e-mails, Hr’g Tr., Oct. 26, 2009 p.m. at 8-9; and that after

his April 2008 meeting with Hulser, Kohl understood that he could use the defendants’

September 16 statements so long as the trial team’s exposure to these statements was “delay[ed]

as long as possible,” Hr’g Tr., Oct. 29, 2009 a.m. at 79, an understanding diametrically at odds

with Hulser’s sworn recollection of the meeting, Hr’g Tr., Oct. 23, 2009 a.m. at 42, and contrary

to all of Hulser’s prior advice on the issue, see, e.g., Defs.’ Kohl Ex. 10. These inconsistent,

extraordinary explanations smack of post hoc rationalization and are simply implausible. The

82 only conclusion the court can draw from this evidence is that Kohl and the rest of the trial team

purposefully flouted the advice of the taint team when obtaining the substance of the defendants’

compelled statements, and in so doing, knowingly endangered the viability of the prosecution.63

The government argues that the trial team could not, as a matter of law, have used the

defendants’ compelled statements because the statements only contained exculpatory

information. Govt’s Mem. at 43-44. Yet, as the court has already observed, in each of the

authorities on which the government relies to support this assertion, the determination that there

was no Kastigar violation resulted from the fact that the statement was not useful to the

prosecution under the circumstances of that case. See, e.g., Bartel, 19 F.3d at 1113; Caporale,

806 F.2d at 1518. In this case, by contrast, it is abundantly clear that the defendants’ compelled

statements did have a value to the prosecution. Defendants Slough, Slatten, Heard and Ball

acknowledged having fired their weapons and specified the types of weapons they had used, the

number of shots they had fired and the directions in which they had fired. See supra Part II.A.2.

All of the defendants specified in great detail the locations of the various insurgent threats they

had allegedly seen and specified the directions from which they had purportedly taken fire. See

id. Agent Patarini testified that he may have used the information he obtained from the

defendants’ statements to DSS investigators in questioning witnesses. Hr’g Tr., Oct. 22, 2009

p.m. at 70. Ponticello testified that he sought the defendants’ September 16 interview statements

because he wanted to use them in the investigation and that he did make “ancillary” use of them.

Hr’g Tr., Oct. 27, 2009 p.m. at 22, 77-78. Hulser, an experienced senior prosecutor, testified that

63 This reckless behavior was in keeping in with the way the prosecution conducted itself throughout the grand jury process, as it withheld the testimony of numerous percipient witnesses who had provided substantial exculpatory evidence to the first grand jury, presented the second grand jury with distorted and self-serving “summaries” of the accounts of other witnesses and implied to the second grand jury that the defendants had given inculpatory statements to State Department investigators which the government could not disclose to the grand jury because they were given “in exchange for immunity.” See supra Part II.A.9.

83 although a defendant’s mere denial of involvement may be of no real use, the defendants’

statements in this case specified who they were shooting at and who was shooting back at them,

and all of this was “valuable information.” Hr’g Tr., Oct. 23, 2009 a.m. at 30-32. As Hulser

testified, “[i]f I were conducting an investigation without any taint at all, I would expect to have

those statements, I would want to have those statements.” Id. at 32.

In the face of the unrefuted evidence that the trial team risked the entire prosecution in

aggressively seeking out the defendants’ compelled statements, which provided a wealth of

valuable information, the government asks this court to credit the conclusory assertions of Kohl

and the rest of the trial team that they made no use of these statements to further the prosecution.

Govt’s Mem. at 14, 41. The government asks too much. See United States v. Schmidgall, 25

F.3d 1523, 1528 (11th Cir. 1994) (observing that “a government agent’s bare denials that he used

the immunized testimony are insufficient to meet the government’s burden”); United States v.

Harris, 973 F.2d 333, 336 (4th Cir. 1992) (noting that “the government’s mere representations”

that it made no use of immunized testimony “standing alone are generally insufficient to carry its

burden”); Hsia, 131 F. Supp. 2d at 209 (observing that “courts have universally held . . . the

government’s protestation that the immunized testimony did not affect its prosecution of the

immunized witness to be insufficient, no matter how sincere”). It simply defies common sense

that the prosecution would go to such incredible lengths to obtain the defendants’ compelled

statements, flouting the advice of the taint team and taking actions that even Kohl acknowledged

84 came “close to the line,” and then make no use whatsoever of the fruits of their efforts.64

These facts do not describe a case of fleeting exposure late in the game that may have

tangentially affected the trial team’s thought processes. See North I, 910 F.2d at 859. Rather,

they reveal that the trial team went to great lengths and knowingly took great risks, at the early

stages of the prosecution, to obtain statements that provided a wealth of information valuable to

the prosecution. Given the prosecution’s early, ongoing and intentional immersion in the

defendants’ compelled statements, the government bore the burden of demonstrating that it made

no significant nonevidentiary use of the defendants’ statements. See Harris, 973 F.2d at 336

(holding that the prosecution failed to meet its Kastigar burden because its failure to follow

reliable taint procedures left it “unable to eliminate the significant possibility that it used . . .

compelled testimony as an ‘investigatory lead’); cf. North I, 910 F.2d at 860 (concluding that the

prosecution “could not have made significant nonevidentiary use” of the tainted information

because there had been no significant exposure to that information); Barker, 542 F.2d at 484 n.9

(suggesting that holding of McDaniel – that any nonevidentiary use was impermissible – applied

only in the limited circumstance in which immunized testimony “had been obtained at a very

early stage in the investigatory process”). The government’s utter failure to meet this burden

requires dismissal of the indictment against all the defendants. See North I, 910 F.2d at 859-60;

Hsia, 131 F. Supp. 2d at 201-02 (dismissing the indictment based on the prosecutions’ failure to

demonstrate that it made no nonevidentiary use of the defendant’s compelled statements).

64 Indeed, Kohl testified that until his April 2008 meeting with Hulser, he believed that the September 16 interviews were “fair game.” Hr’g Tr., Oct. 28, 2009 p.m. at 13. But if Kohl actually believed that the September 16 statements were fair game, it seems highly unlikely that the trial team would not have used those statements in guiding their investigation and prosecution of the case.

85 c. The Defendants’ Garrity Statements Tainted the Physical Evidence Recovered from Nisur Square by DSS Investigators

As previously discussed, in the days following the Nisur Square incident, the DSS agents

conducted a search of the traffic circle and collected physical evidence. See supra Part II.A.2.

The defendants contend that the prosecution’s use of physical evidence derived from the DSS

investigation is tainted. Defs.’ Mem. at 32-34. The government responds that the DSS search

for physical evidence was not guided by the defendants’ compelled statements. Govt’s Reply

Mem. at 16. Furthermore, the government contends that in light of the multiple, extensive

searches conducted by the U.S. military and the FBI, any evidence recovered by the DSS agents

would inevitably have been discovered independent of the DSS search. Id.

The evidence strongly indicates that the physical search conducted by DSS investigators

was guided by the defendants’ compelled statements. On September 20, 2007, DSS investigators

interviewed the four defendants who had acknowledged firing their weapons to focus on “the

specific details” of the written accounts they had given on September 18, 2007. See Defs.’

Carpenter Ex. 9. Agent Farrington testified that Agent Carpenter directed them to obtain these

“specific details” to assist the DSS agents in the physical search of the Nisur Square traffic circle

conducted later that day.65 Hr’g Tr., Oct. 16, 2009 p.m. at 22-23. Agent Motley informed the

trial team that the physical search of the Nisur Square area was based on the defendants’ oral

statements to investigators on September 20, 2007, and was designed to test the accounts given

by the defendants. Hr’g Tr., Oct. 16, 2009 a.m. at 73. And although Agent Carpenter testified

that there were no areas of Nisur Square that his agents would not have searched but for the

65 Agent Farrington testified, “[w]e were headed out to the scene that day . . . and my understanding is that Ted Carpenter wanted to get specific details about the incident to help us with our search.” Hr’g Tr., Oct. 16, 2009 p.m. at 22. Later, Agent Farrington testified that “[w]e were going out to the scene that day, and [Carpenter] wanted to nail down what had happened so we might be able to appreciate the scene a little bit better.” Id. at 23.

86 information provided in the September 16, 2007 interviews, Hr’g Tr., Oct. 19, 2009 p.m. at 38,

he clearly stated in his investigative report that “[f]rom [Raven] 23 statements we obtained

information concerning their direction of fire and opposing fire. We searched in these areas and

collected what appeared to be AK-47 shell casings and material from a white 4 door sedan.

Photographs of the area were taken to include bullet strikes and the AK-47 shell casings that

were collected.” Id. Accordingly, the court discerns that the physical evidence derived from the

DSS investigation of the Nisur Square environment was tainted by the defendant’s compelled

Garrity statements.

As for the government’s claim of inevitable discovery, the court notes that Nisur Square

was not sealed as a closed crime scene between the shooting on September 16, 2007 and the

arrival of FBI investigators several weeks later. Defs.’ Mem. at 33. Agent Scollan testified that

when he visited the scene shortly after the incident, he noticed an Iraqi man, possibly a police

officer, who appeared to be walking through the scene and picking up objects that may have

been evidence. Hr’g Tr., Oct. 15, 2009 a.m. at 99-100. Agent Scollan testified that the scene

“was extremely clean – picked clean as if it was being groomed for a garden.” Id. at 99. Under

these circumstances, the court deems the government’s claims of inevitable discovery

unpersuasive.

The government does not dispute that the physical evidence recovered from the scene

was passed on to the prosecutors and investigators. See Defs.’ Mem. at 33; Govt’s Reply Mem.

at 15-16; Govt’s Ex. 275. Moreover, the DSS search was aimed at testing the veracity of the

defendants’ accounts and was guided by the specific details disclosed in those accounts, see Hr’g

Tr., Oct. 16, 2009 p.m. at 22-24, which would suggest that the evidence recovered through this

search may have been highly relevant to the criminal case eventually brought against the

87 defendants. Indeed, the government has never argued otherwise. The trial team’s exposure to

this potentially significant physical evidence triggers the government’s obligation to demonstrate

that it has made no significant use of this evidence. See North I, 910 F.2d at 860; Hsia, 131 F.

Supp. 2d at 201-02. The government’s failure to do so constitutes yet another Kastigar violation.

3. The Government’s Myriad Kastigar Violations Cannot Be Excused as Harmless Error

Before dismissing an indictment based on Kastigar violations, the court must determine

whether the government’s use of immunized testimony was harmless beyond a reasonable doubt.

See Ponds, 454 F.3d at 328-29 (citing North I, 910 F.2d at 854). “Where . . . immunized

evidence emerges early in the investigation, the court must determine whether the government

‘would have taken the same steps entirely apart from the motivating effect of the immunized

testimony.’” Id. (quoting United States v. Nanni, 59 F.3d 1425, 1433 (2d Cir. 1995)). “The

government cannot escape its error simply by showing the availability of ‘wholly independent’

evidence from which it might have procured indictment or convictions had it not used the

immunized testimony,” but must instead demonstrate beyond a reasonable doubt that the

prosecution would have been vigorously pursued, and the same investigative steps taken, had the

government not relied on immunized material. Id. (quoting United States v. Pelletier, 89 F.2d

297, 303 (2d Cir. 1990)). “Unless the government’s use of Kastigar evidence, in light of

evidence obtained from independent sources, was so unimportant and insignificant and has so

little, if any, likelihood of having changed the result of the proceeding that it may be deemed

harmless,” the violation of the defendant’s constitutional rights cannot be excused as harmless

beyond a reasonable doubt. Id. (citing United States v. Gallo, 859 F.2d 1078, 1082 (2d Cir.

1988)) (internal quotation marks omitted).

88 Just a few examples suffice to show that the government has utterly failed to make this

demanding showing as to any defendant. Defendant Slough’s compelled statements influenced

the grand jury testimony of Murphy and likely tainted the information provided by cooperating

witness Ridgeway and many Iraqi witnesses to the second grand jury. Defendant Slatten’s

compelled statements shaped the grand jury testimony of Frost and Murphy, whose testimony

comprised the near entirety of the evidence presented against him at the second grand jury. See

GJ Ex. 107 at 6-7. The compelled statements of defendants Ball and Heard played a

determinative role in the government’s decision to focus the prosecution on them. The

compelled statement of defendant Liberty and the other defendants motivated the creation of the

Frost Journal, influenced Frost’s decision to cooperate with the government, guided the

questioning of witnesses during the investigation, resulted in the discovery of physical evidence

and provided the government with a version of events that each defendant was locked into and

helped steer the investigation.66 In sum, far from being unimportant and insubstantial, the

defendants’ compelled statements pervaded nearly every aspect of the government’s

investigation and prosecution, and the government’s use of those statements appears to have

played a critical role in the indictment against each of the defendants. Accordingly, the court

declines to excuse the government’s reckless violation of the defendants’ constitutional rights as

harmless error.

66 The court notes that the indictment in this case does not contain individualized charges against each defendant. See generally Indictment. Instead, the government seeks to hold the defendants collectively responsible for all the dead and wounded at Nisur Square under a concerted action theory. See Govt’s Mot. for Clarification and/or Reconsideration at 2-3. As should be clear from the foregoing discussion, the court’s determination that the indictment is fatally tainted applies to the defendants collectively as well as to each individual defendant charged with participating in the concerted action.

89 IV. CONCLUSION

Before the beginning of jury deliberations, a judge instructs the jury that it must perform

its duty to deliberate “without prejudice, fear, sympathy or favoritism.” A judge has a

concomitant obligation. When a judge, upon close examination of the procedures that bring a

criminal matter before the court, concludes that the process aimed at bringing the accused to trial

has compromised the constitutional rights of the accused, it behooves the court to grant relief in

the fashion prescribed by law. Such is the case here.

For the reasons discussed in this Memorandum Opinion, the court grants the defendants’

motion to dismiss the indictment.67 An Order consistent with this Memorandum Opinion is

separately and contemporaneously issued this 31st day of December, 2009.

RICARDO M. URBINA United States District Judge

67 Because the court dismisses the 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.