United States v. Slatten ( 2010 )

UNITED STATES DISTRICT COURT JAN 1 9 2010
FOR THE DISTRICT OF COLUMBIA .;LERK~~*~~
U.S D|STRICT COURT
UNITED STATES OF AMERICA
v. Criminal Action No.: 08-0360 (RMU)
PAUL A. SLOUGH et al., l
Defendants.
MEMORANDUM OPINION
DENYING THE MOT10Ns oF DEFENI)ANTS SLATTEN ANI) BALL
To D1sM1ss THE INDICTMENT WITH PREJUDICE
I. INTRODUCTION
This matter is before the court on the motions of defendants Nicholas Slatten and Donald
Ball ("the defendants") to dismiss the indictment against them with prejudice The government
obtained an indictment against the defendants and three other individuals, charging them with
multiple counts of voluntary manslaughter and firearms violations based on their alleged role in a
shooting that occurred in Baghdad, Iraq on September l6, 2007. On December 3l, 2009, the
court dismissed the indictment in its entirety because the government had failed to prove that it
had not used compelled, immunized information in the course of obtaining the indictment.
Although the court concluded that much of the government’s evidence was tainted, it did not bar
the government from seeking another indictment based solely on untainted evidence.
In the motions now before the court, defendants Slatten and Ball contend that the
indictment should be dismissed against them with prejudice - meaning that the government
could not attempt to re-indict them - because there is insufficient untainted evidence to support
another indictment and because the prosecutors committed gross misconduct in obtaining the
original indictment. Because the court finds no legal justification warranting dismissal with
prejudice, the court denies the defendants’ motions.
II. FACTUAL AND PROCEDURAL BACKGROUND
By way of brief background,l the defendants were security guards employed by
Blackwater Worldwide, a private company that provided security services to U.S. employees
operating in Iraq. On September 16, 2007, the defendants were part of a Blackwater convoy,
operating under the call sign Raven 23, that was involved in a shooting that occurred in a traffic
circle in downtown Baghdad. The shooting resulted in the death and injury of more than thirty
people. On December 4, 2008, a grand jury returned a thirty-five count indictment against the
defendants and three other individuals, charging them with voluntary manslaughter and firearms
violations. See generally Indictment.
Beginning on October l4, 2009, the court held a three-week long Kasligar hearing,
during which the govemment attempted to prove that it had made no impermissible use of any
compelled, immunized testimony in obtaining the indictment. See Mem. Op. (Dec. 3 l , 2009) at
2; Kastigar v. Um`ted States, 406 U.S. 441, 460 (1972) (holding that "[o]nce 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"’) (quoting Murphy v. Waterfront Comm ’n, 378 U.S. 52, 79 n.l8 (l964)). On
December 3 l, 2009, following extensive post-hearing briefing, the court dismissed the
indictment in its entirety, concluding that the govemment had failed to prove that it had not used
' A more thorough description of the factual background and procedural history of this case can be
found in the court’s recently issued memorandum opinion. See generally Mem. Op. (Dec. 31,
2009)
compelled, immunized statements in obtaining the indictment. See generally Mem. Op. (Dec.
3l, 2009). The court did not, however, bar the govemment from seeking a subsequent
indictment based on untainted evidence, although it did conclude that much of the evidence
relied on to obtain the first indictment was tainted. See generally z'd.
Prior to the issuance of the court’s ruling, while the parties were still preparing post-
hearing briefing, the government filed a motion under Federal Rule of Criminal Procedure 48(a)
for leave to dismiss the indictment against defendant Slatten without prejudice. See generally
Govt’s Mot. for Leave to Dismiss lndictment Against Def. Slatten Without Prejudice. In its
motion, the govemment conceded that it had used tainted evidence to obtain the indictment
against defendant Slatten.z In response, defendant Slatten filed this motion to dismiss the
indictment with prejudice, in which he argues that the govemment lacks sufficient untainted
evidence to sustain charges against him and that the govemment committed gross misconduct in
obtaining the indictment. See generally Def. Slatten’s Mot. for Dismissal With Prejudice
("Slatten Mot.").3 On the same day, defendant Ball filed a motion seeking to dismiss the
indictment against him with prejudice, also citing prosecutorial misconduct. See generally Def.
Ball’s Mot. to Dismiss the lndictment ("Ball Mot."). The govemment opposes both motions.
See generally Govt’s Reply Brief in Support of its Mot. for Leave of Court to Dismiss
lndictment Without Prejudice ("Govt’s Opp’n to Slatten Mot."); Govt’s Opp’n to Def. Ball’s
The government’s motion for leave to dismiss without prejudice was denied as moot following
the court’s dismissal of the indictment against all defendants. See Mem. Op. (Dec. 3 1 , 2009) at
90 n.67.
Defendant Slatten also briefly argues that dismissal with prejudice is necessary to prevent abuse
of Federal Rule of Criminal Procedure 48. Slatten Mot. at 5, 14-l 5. As previously noted,
however, the court has denied as moot the government’s Rule 48 motion. See Mem. Op. (Dec.
3 l, 2009) at 90 n.67.
Mot. to Dismiss the lndictment Based on Allegations of Prosecutorial Misconduct ("Govt’s
Opp’n to Ball Mot.").
III. ANALYSIS
A. The Court Declines to Dismiss the lndictment Against Defendant Slatten
With Prejudice On the Grounds That the G0vernment
Lacks a Pr0secutable Case Against Him
Defendant Slatten contends that the court should dismiss the indictment against him with
prejudice because the government does not have a prosecutable case against him. Slatten Mot. at
6-12. He notes that the government has conceded that the testimony of Adam Frost, a fellow
Raven 23 member who testified against Slatten, was tainted because it was influenced by Frost’s
exposure to Slatten’s compelled statements. Ia'. at 7. He also argues that the grand jury
testimony of Matthew Murphy, another Raven 23 member, was similarly tainted.‘l Id. at 8.
Without the testimony of Frost and Murphy, Slatten argues, the govemment simply has no case
against him. Ia’. at 9.
The govemment responds that whether or not there is enough untainted evidence to
support charges against defendant Slatten is an issue that the court may not adjudicate before a
grand jury has even considered whether to re-indict. Govt’s Opp’n to Slatten Mot. at 4-7. lt
maintains that defendant Slatten is asking the court to undertake a pretrial assessment of potential
evidence against him, an endeavor that would run afoul of binding precedent. Id. at 5. The
govemment suggests that there may be sufficient untainted evidence to sustain an indictment
against defendant Slatten. Ia’. at 6-7.
" lndeed, the court concluded in its December 3 l, 2009 memorandum opinion that Murphy’s grand
jury testimony regarding defendant Slatten was tainted. See Mem. Op. (Dec. 3 l, 2009) at 51-59.
In most instances, the dismissal of an indictment does not bar the govemment from
seeking re-indictment if, in so doing, it can cure the defect that required the dismissal of the
original indictment. See, e.g., United States v. Ball, 163 U.S. 662, 672 (1896) (holding that a
defendant who procures a reversal of his conviction because of a fatally defective indictment
"may be tried anew . . . upon another indictment, for the same offense of which he had been
convicted"); In re Nofziger, 925 F.2d 428, 435 (D.C. Cir. l99l) (observing that "[a] defendant
whose conviction is reversed on appeal for an insufficient indictment may be retried upon
another indictment charging the same offense as that which was reversed") (citing Ball).
Ordinarily, the dismissal of an indictment based on a Kastigar violation falls within this general
rule. See Unitea' States v. Palu)nbo, 897 F.2d 245, 251 (7th Cir. 1990) (dismissing the indictment
based on the government’s failure to meet its Kastz`gar burden and noting that the government
would have to demonstrate that any subsequent indictment was based on evidence derived from
legitimate independent sources); Unitea' Stales v. Dornau, 491 F.2d 473, 477 (2d Cir. 1974)
(observing that even if the district court properly dismissed the indictment based on a Kastigar
violation, that would not necessarily preclude the government from attempting to re-indict the
defendant by having a prosecutor who had not been exposed to the tainted evidence present
independently derived evidence to a different grand jury); cf United States v. De Dz'ego, 511
F.2d 818, 824 (D.C. Cir. 1975) (holding that the trial court erred in dismissing an indictment
with prejudice for a Kastigar violation without holding a Kastigar hearing and noting that even if
the court concluded that part of the evidence was tainted, the prosecutors could have chosen to
proceed to trial using only the admittedly untainted evidence). In other words, after an
indictment has been dismissed on Kastigar grounds, the govemment may seek to cure the
Kastigar problem by attempting to obtain an indictment untainted by immunized material.$ See
Dornau, 491 F.2d at 477.
Defendant Slatten argues that the court should depart from this rule and prohibit re-
indictment because without the tainted evidence, the govemment simply has no case against him.
See Slatten Mot. at 6-12. Yet such a ruling would require the court to make a detennination,
prior to any proffer by the govemment to a grand jury, petit jury or this court, that there is
insufficient untainted evidence to sustain charges against defendant Slatten. Settled precedent
prohibits the court from proceeding down this speculative path. Cf Costello v. Unitea' States,
350 U.S. 359, 363-64 (1956) (holding that the courts lack the authority to invalidate indictments
based on the inadequacy of the supporting evidence); Uniled States v. Yakou, 428 F.3d 241 , 246-
47 (D.C. Cir. 2005) (observing that the pretrial dismissal of an indictment on sufficiency of the
evidence grounds is unwarranted unless "material facts are undisputed and only an issue of law
is presented"); Unitea’ States v. Hickey, 367 F.3d 888, 894 (9th Cir. 2004) (rejecting the
defendant’s challenge to the sufficiency of the evidence before the grand jury); Unz`tea’ States v.
Alfonso, 143 F.3d 772, 776 (2d Cir. 1998) (reversing the trial court’s partial dismissal of the
indictment based on the insufficiency of the supporting evidence because "[u]nless the
govemment has made what can fairly be described as a full proffer of the evidence it intends to
present at trial . . . the sufficiency of the evidence is not appropriately addressed on a pretrial
motion to dismiss an indictment").
United States v. Fields, 475 F. Supp. 903 (D.D.C. 1979), the principal authority on which
defendant Slatten relies, provides scant support for his position. Fiela’s concemed the propriety
of an indictment whose sole purpose was to coerce the subject of the indictment to cooperate
5 Nothing in the court’s December 3 l , 2009 decision precludes the government from so proceeding
in this case. See generally Mem. Op. (Dec. 3 l, 2009).
with the government in its case against another individual. Fiela's, 475 F. Supp. at 907. The
court noted that the government knew that there was insufficient evidence to sustain the charges,
which indicated that the indictment was not brought in a good faith effort to obtain a conviction
against the defendant, but was instead intended to pressure the defendant into cooperating with
the government. Ia’. The court concluded that this practice constituted impermissible harassment
and that dismissal with prejudice was the only adequate remedy. Id. at 907-08. Thus, Fiela's
stands only for the proposition that a dismissal with prejudice may be warranted to prevent
government harassment.e Icl. (noting that "although generally a dismissal by the government
does not bar reinstitution of a prosecution, an exception is made where there has been a
harassment of a defendant"); accord United States v. Poina'exter, 719 F. Supp. 6, 10 (D.D.C.
1989) (observing that the court possesses the authority "in exceptional cases to reject a dismissal
without prejudice ~ which would allow re-prosecution ~ if this would result in harassment of the
defendant or would otherwise be contrary to the manifest public interest"). lt does not support
the proposition that the court may dismiss an indictment with prejudice based solely on its
pretrial determination that there is insufficient evidence to sustain another indictment. See
Fields, 475 F. Supp. at 907-08.
In sum, the court may not speculate as to whether there is sufficient untainted evidence to
support an indictment and conviction against defendant Slatten. See Costello, 350 U.S. at 363-
64. Such a conclusion would be particularly inappropriate under these circumstances, given that
the government may possess untainted inculpatory evidence to which the court has not been
made privy. See United States v. Sayes, 49 F. Supp. 2d 870, 873-74 (M.D. La. l999) (rejecting
the defendant’s argument that dismissal without prejudice would be futile because the
6 Defendant Slatten has presented no evidence of prosecutorial harassment. See generally Slatten
Mot. Indeed, defendant Slatten has offered nothing to suggest that the government commenced
the prosecution against him for any other purpose than to obtain his conviction. See generally z`d.
government could not obtain another indictment absent tainted evidence), ayj”’a’ sub nom., Unz`tea’
States v. Daniels, 281 F.3d 168, 176 (5th Cir. 2002). Whether or not this evidence - if, indeed, it
is untainted ~ is sufficient to sustain charges against defendant Slatten is a question for the grand
jury in the first instance, not the court. Thus, the court denies defendant Slatten’s motion to
dismiss with prejudice based on his assertion that the govemment lacks a prosecutable case
against him.
B. The Court Declines to Dismiss the lndictment Against the Defendants With
Prejudice Based on Prosecutorial Misconduct
Defendants Slatten and Ball argue that the indictment should be dismissed with prejudice
based on prosecutorial misconduct. More specifically, they contend that the govemment failed
to present exculpatory evidence to the grand jury, distorted the testimony of witnesses in its
presentations to the grand jury, improperly informed the grand jury that the defendants had given
immunized statements and refused to testify before the grand jury, made misrepresentations to
the court regarding the extent and depth of its evidence and made inflammatory and prejudicial
public comments regarding the case. Slatten Mot. at 15-24; Ball Mot. at 15-25. The defendants
contend that dismissal with prejudice is the only appropriate sanction for these abuses. Slatten
Mot. at 15-24; Ball Mot. at 15-25 & Proposed Order.
The government responds that there has been no prosecutorial misconduct warranting
dismissal with prejudice. See Govt’s Opp’n to Slatten Mot. at 7-16; see generally Govt’s Opp’n
to Ball Mot. lt notes that it was under no legal obligation to present exculpatory evidence to the
grand jury, and that at any rate, it did, in fact, present significant exculpatory evidence to the
grand jury. See Govt’s Opp’n to Slatten Mot. at 8-ll; Govt’s Opp’n to Ball Mot. at 5-9. The
government also asserts that it did not materially distort the testimony of any witnesses and that
the defendants’ other allegations of misconduct are without merit. Govt’s Opp’n to Slatten Mot.
at 13-16; Govt’s Opp’n to Ball Mot. at l2-l6.
Under its supervisory powers, the court may dismiss an indictment with prejudice as a
sanction for prosecutorial misconduct. See Unilea' States v. Kojayan, 8 F.3d 1315, 1325 (9th Cir.
1993) (remanding to the district court "to determine whether to retry the defendants or dismiss
the indictment with prejudice as a sanction for the government’s misbehavior"). lt is clear,
however, that the court may exercise this authority only in extreme circumstances. See Unitea’
States v. Welborn, 849 F.2d 980, 985 (5th Cir. 1988) (noting that the court’s supervisory
authority "includes the power to impose the extreme sanction of dismissal with prejudice only in
extraordinary circumstances and only where the government’s misconduct has prejudiced the
defendant"); United Stales v. Hattrup, 763 F.2d 376, 377-78 (9th Cir. 1985) (holding that the
defendant’s allegations of prosecutorial misconduct did not justify "the harsh remedy of
dismissal with prejudice"). As one Circuit has observed, "[d]ismissal of an indictment with
prejudice is the most severe sanction possible. Such dismissal exercised under the guise of
‘supervisory power’ is impermissible absent a clear basis in fact and law for doing so." United
States v. Isgro, 974 F.2d 1091, 1097 (9th Cir. 1992) (internal citations and quotation marks
omitted) (noting also that "[d]ismissal of an indictment with prejudice necessarily implicates
separation-of-powers principles" which "mandate[] judicial respect for the independence of the
prosecutor").
Accordingly, dismissal without prejudice is ordinarily the appropriate remedy for
prejudicial prosecutorial misconduct during grand jury proceedings. See Unitea' States v.
Lawson, 502 F. Supp. 158, 172 (D. Md. 1980) (observing that "most federal courts that have
dismissed indictments due to prosecutorial misconduct in the grand jury room have done so
without prejudice to subsequent reindictment"); see also Uniteal States v. Feurtaa'o, 191 F.3d
420, 424-25 (4th Cir. 1999) (holding that the district court properly dismissed an indictment
without prejudice based on the prosecution’s unintentional introduction of false and misleading
testimony to the grand jury); Unitea’ States v. Leeper, 2006 WL 1455485, at *4-*5 & n.7
(W.D.N.Y. May 22, 2006) (dismissing an indictment without prejudice because the prosecutor
improperly informed the indicting grand jury that an earlier grand jury had already indicted the
defendant and wrongly informed the grand jury that the earlier indictment had to be vacated
because of a mere "oversight," when in fact that first indictment failed to allege all of the
required elements of the crime); Unz'tea’ States v. Breslin, 916 F. Supp. 438, 446 (E.D. Pa. 1996)
(dismissing an indictment without prejudice based on the prosecution’s presentation to the grand
jury of irrelevant, highly prejudicial testimony, distortion of testimony and introduction of
hearsay testimony in a manner suggesting that it was a first-person observation); Unitea’ States v.
Ornnz' Int’l Corp., 634 F. Supp. 1414, 1440 (D. Md. 1986) (holding that dismissal of the
indictment without prejudice was the appropriate sanction for the prosecution’s "consistent
course of entrenched and flagrant misconduct"). As one court has explained, "[a] lthough
defendants do have a constitutional right to an informed and unbiased grand jury, they have no
concomitant right to bar forever investigation into their alleged criminal conduct." Lawson, 502
F. Supp. at 172. Thus, "[w]hile defendants are entitled to the remedy of dismissal for violations
of their constitutionally protected rights, they are not entitled to the reward of permanent
immunity respecting their alleged criminal conduct . . . . [T]he costs to society are simply too
high." Ia’. at 173; see Leeper, 2006 WL 1455485, at *5 n.7 (noting that dismissal without
prejudice accomplishes the result of restoring the defendant to the position he would have been
in but for the alleged violation).
10
The court has already dismissed the indictment in its entirety based on the government’s
failure to prove that it did not use any compelled, immunized testimony made by the targets of
the prosecution in the course of obtaining the indictment. See generally Mem. Op. (Dec. 3l,
2009). The court is not persuaded that the additional, extreme sanction of dismissal with
prejudice is justified under these circumstances. See Isgro, 974 F.2d at 1098 (noting that the
court should consider less drastic alternatives prior to dismissing an indictment with prejudice)
(citing United States v. Morrison, 449 U.S. 361, 365 (1981)). Although the government’s failure
to present the grand jury with exculpatory evidence violated its own internal policies7 and
demonstrated the disregard with which it sought the indictment, see Mem. Op. (Dec. 3l, 2009) at
83 n.63, this failure does not, standing alone, constitute an independent grounds for dismissal of
the indictment, see United States v. Willz`ams, 504 U.S. 36, 52-53 (1992) (holding that the district
court may not dismiss an otherwise valid indictment on the ground that the prosecution failed to
present the grand jury with substantial exculpatory evidence in its possession); United States v.
Gillespz'e, 974 F.2d 796, 801 (7th Cir. 1992) (holding that a violation of the Justice Department’s
internal policy requiring the disclosure of exculpatory evidence to the grand jury does not serve
as a basis for dismissal of an indictment). And although the prosecution’s distorted presentation
of witness testimony, gratuitous remarks about the defendants’ failure to appear before the grand
jury and other purported missteps raised by the defendants may have justified dismissal of the
indictment, the court is not persuaded that these actions warrant the imposition of a permanent
7 See 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").
11
bar on any investigation into their alleged criminal conducts See Lawson, 502 F. Supp. at 172-
73. Accordingly, the court denies the defendants’ motions to dismiss the indictment with
prejudice based on prosecutorial misconduct.
IV. CONCLUSION
For the foregoing reasons, the court denies the defendants’ motions to dismiss the
indictment with prejudice. An Order consistent with this Memorandum Opinion is separately
and contemporaneously issued this 19th day of January, 2010.
RlCARDO M. URBlNA
United States District Judge
Defendant Ball likens the prosecution’s behavior in this case to the prosecutorial misconduct
considered in Leeper and Breslin, see Ball Mot. at 12-13, two cases in which the courts dismissed
the indictments without prejudice. United States v. Leeper, 2006 WL 145 5485, at *5 & n.7
(W.D.N.Y. May 22, 2006); United States v. Breslin, 916 F. Supp. 438, 446 (E.D. Pa. 1996).
12