United States v. Slough ( 2009 )

n
FILED
SEP 8 ~ 2009
C|erk, U.S. District and
Bankruptcy Courts
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
Criminal Acti0n No.: 08-0360 (RMU)
v. UNDER SEAL
PAUL A. sLoUGH er al., l §}NSEALED
Defendants.
MEMORANDUM OPINION
GRANTING THE DEFENDANTS’ MoTloN FOR A KAST!GAR HEARING
I. INTRODUCTION
This matter is before the court on the defendants’ motion for an evidentiary Kastigar
hearing. The defendants have been charged with multiple manslaughter counts arising out of a
shooting that occurred in Baghdad, Iraq on September 16, 2()07. They contend that in the course
of this prosecution, prosecutors have unlawfully utilized statements the defendants made to
Department of State investigators shortly after the shooting, which were compelled under a threat
of job loss. The defendants argue that immunity attaches to these statements by virtue of Garrily
v. New Jersey, 385 U.S. 493 (1967), and that the court should hold a Kastz'gar hearing at which
the government must prove that it has not improperly utilized immunized testimony.
As discussed below, the defendants have laid a firm factual and legal foundation for their
contention that immunized testimony was used in the course of this prosecution. Accordingly,
the court grants the defendants’ motion.
II. BACKGROUND
A. Factual Background
l. The Nisur Square Incident and Subsequent Investigation
The defendants were security guards employed by Blackwater Worldwide
("Blackwater"), a private company that provided security services to U.S. employees operating
in Iraq. Govt’s Opp’n at 3. On September 16, 2007, the defendants were part of a Blackwater
Tactical Support Team called "Raven 23," whose function was to provide back-up fire support
for other Blackwater personal security details operating in Baghdad. Id. Around noon on that
day, the Raven 23 convoy was involved in a shooting at the Nisur Square traffic circle in
downtown Baghdad, Defs.’ Mot. at 4, which allegedly resulted in the death and injury of
numerous Iraqis, Govt’s Opp’n at 4. The government contends that the dead and wounded were
unarmed civilians who were the victims of unprovoked violence by the defendants. Govt’s
Opp’n at 4. The defendants assert that they came under attack by insurgents and that a firefight
ensued. Defs.’ Mot. at 4.
Later that day, agents from the Department of State’s Diplomatic Security Service
("DSS") interviewed members of the Raven 23 convoy regarding the shooting. Defs.’ Mot. at 5;
Govt’s Opp’n at 4. The defendants assert that they were "ordered" to give verbal statements to
DSS agents regarding their actions at Nisur Square ("the September 16 Statements"), that they
understood the order to be mandatory and that they understood that their refusal to comply with
the order would result in their terrnination. See Defs.’ Mot., Ex. 5 (Decl. of Paul Slough)
("Slough Decl.")1l 6; Ex. 6 (Decl. of Nicholas Slatten) ("Slatten Decl.") 11 5; Ex. 7 (Decl. of
Evan Liberty) ("Liberty Decl.") 11 5; Ex. 8 (Decl. of Dustin Heard) ("Heard Decl.") fl 4; Ex. 28
(Decl. of Donald Ball) ("Ball Decl.") il 5. The defendants’ understanding of the obligation and
import of the order to submit to DSS questioning finds support in statements provided by other
Blackwater employees. See Defs.’ Mot., Ex. 41l 8; Ex. 10 ‘ll 5; Ex. ll ll 5; Ex. 29 ll 3; Ex. 30 ll 5.
In addition, the defendants’ understanding of the order to submit to DSS questioning
finds further support in the State Department’s written policies regarding the discharge of
firearrns. See generally Slough Decl., Attach. A. The defendants state that as part of
Blackwater’s in-country processing procedures, all Blackwater personnel were provided with a
State Department memorandum titled "WPPSU] On-Duty Discharge of Firearrn Reporting
Procedures." Slough Decl. llll l-2; Slatten Decl. llll l-2; Liberty Decl. llll l-2; Heard Decl. llll l-
2;BallDecl.1l1l l-2; see also Defs.’ Mot., Ex. 4 ll 4; Ex. 9 ll l; Ex. 10 1l1l l-Z; Ex. ll llll l-Z; Ex.
29 llll l-Z; Ex. 30 llll l-2. Pursuant to this memorandum, all Blackwater personnel were required
to report any incident of firearm discharge to State Department officials and to submit to
immediate debriefing following such an incident. See Slough Decl., Attach. A at l. After
debriefing, the employee who discharged his weapon was to be given a forrn, a template for
which was attached to the memorandum, on which to prepare a written statement. Id. The forrn,
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. 1 understand
that this statement is made in furtherance of an ojj‘icial administrative inquiry
regarding potential misconduct or improper performance of ojj?cial duties and
that disciplinary action, including dismissal from the Department’s Worldwide
Personnel Protective Services contract, may be undertaken if 1 refuse to provide
this statement or fail to do so fully and truthfully. l 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, l may be
criminally prosecuted for that action under 18 United States Code, Section lOOl.
I agree that the statement l furnish and any information or evidence resulting there
The term "WPPS" stands for "Worldwide Personnel Protective Services," and refers to the
contract for protective services between Blackwater and the Department of State. See Defs.’
Mot., Ex. 4 1l1l 2.
from may be used in the course of disciplinary proceedings, which could result in
disciplinary action, including dismissa1.
Id. at 3 (emphasis added).
The defendants assert that before speaking with DSS agents on September 16, all of the
members of the Raven 23 convoy were advised by one of their Blackwater superiors, Matthew
Twigg, to "be completely honest" and that "they would be advised of a form of Garrity which
compels them to tell the truth." Defs.’ Mot., Ex. 13 at 13. Twigg allegedly stated to the
defendants that "the only thing that [could] happen to them if they told the truth, if they violated
some sort of policy, [would be that] they would lose their jobs." Moreover, three of the
defendants indicate that they received express "Garrity warnings" during their interviews. Defs.’
Mot. at 5; Slough Decl. ll 7; Heard Decl. ll 4; Ball Decl. ll 6. For instance, defendant Slough
states that prior to the interview, a State Department employee told him that his statements could
be used solely for administrative purposes and could not be used against him in a criminal
proceeding.z Slough Decl. ll 7.
Consistent with State Department procedures, on September 18, 2007 - two days after
submitting to questioning by DSS agents - the defendants and other members of the Raven 23
convoy provided written statements regarding their conduct at Nisur Square. Defs.’ Mot. at 6;
Govt’s Mot. at 4. These statements were submitted using the State Department’s "Sworn
Statement" forrn, Defs.’ Mot. at 6; Govt’s Mot. at 4-5, which, as previously noted, provided that
refusal to respond fully and truthfully could result in termination and that neither the statements
2 Slough states that to the best of his recollection, the State Department employee told him that
"[t]his is for you to keep your job. We can’t use this against you. This is not a criminal
investigation or interview. This is to gather information." Slough Decl. ll 7. Likewise, defendant
Heard states that at the beginning of his DSS interview, the DSS investigating agents advised him
that they were conducting an administrative, not a criminal, investigation, and that anything that
he said could not be used against him in a criminal investigation or prosecution. Heard Decl. ll 4.
Defendant Ball also states that he was told that his statements could not be used against him in a
criminal proceeding. Ball Decl. ll 6.
themselves nor any of the information or evidence obtained by reason of those statements could
be used against them in a criminal prosecution, Slough Decl., Attach. A at 3.
Over the following week, several of the defendants were interviewed again by DSS
agents regarding the Nisur Square shooting. Defs.’ Mot. at 7; Govt’s Opp’n at 5. The
defendants assert that during these subsequent interviews, they were advised that their statements
could not be used against them during a criminal proceeding. Defs.’ Mot. at 7; see also Slough
Decl. ll 9; Heard Decl. ll 6. For instance, defendant Heard states that he was re-interviewed on
September 20 and 24, 2007, and that during at least one of those interviews, he "was again
advised . . . that this is an administrative investigation, that [he] would be terminated if [he]
refused to provide a statement, and that [his] statement could not be used against [him] in a
criminal prosecution."3 Heard Decl. ll 6.
2. Exp0sure of Prosecutors and Witnesses to the September 16 and 18 Statements
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. Id., Ex. 23 (Letter from Joseph
Kaster, DOJ, National Security Division, dated May 29, 2009) 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 September 16 and 18
Statements. 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.
3 Adopting the parties’ conventions, the court refers to the defendants’ written statement given on
September 18 and the subsequent statements given to DSS agents as the "September 18
Statements." Defs.’ Mot. at 7; Govt’s Opp’n at 5.
Accordingly, the government took steps to insulate the "taint" resulting from these statements,
assigning to the case a team of prosecutors and investigators who had not participated in the
September 26 meeting and had not been exposed to the information discussed at that meeting.
Id. The newly assigned prosecutors and investigators were warned not to expose themselves to
articles or stories about Blackwater and specifically to avoid any news reports containing
Blackwater employees’ accounts of the Nisur Square shooting. Id. at 6.
The defendants assert that by the time the government implemented these "taint"
precautions, the September 18 Statements had been leaked to the media and disseminated
globally. Defs.’ Mot. at 7. Portions of these statements appeared in reports by ABC News
(including in a nationally broadcast television segment), MSNBC/Newsweek, the Washington
Post and the New York Times. Id. at 8-10. 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 occurred at
Nisur Square. Id., Ex. 15. Subsequently, the Washington Post published an article contrasting
the accounts of the four Blackwater guards with those of lraqi eyewitnesses. Id., Ex. 17. The
defendants contend - and the government does not dispute - that these press accounts dominated
the national news in both Iraq and the United States for two weeks and that it is overwhelmingly
likely that any lraqi witnesses relied on by the government were exposed to press accounts
containing the September 18 Statements. Id. at ll-12.
Moreover, there is no dispute that members of the prosecution team read the September
16 Statements. Id. at 12. The DSS agents’ notes of the September 16 Statements were compiled
into two "Memorandum Reports of lnterviews." Defs.’ Mot. at 6; Govt’s Opp’n at 4. ln a letter
dated June 30, 2009, the government acknowledged that
During the summer of 2008, [a current prosecutor] received two documents
entitled ‘Memorandum Report of Interview’ prepared by the DSS agents
regarding their September 16 interviews. After receiving them, [the prosecutor]
read these documents . . . 1n the Fall of 2008, [the prosecutor] referenced
information contained in the DSS September 16 interview of Dustin Heard when
speaking with Heard’s counsel.
Defs.’ Mot., Ex 12 ("June 30 Letter") at 4.4 In the same letter, the government also
acknowledged that during an interview with a DSS agent held in January 2008, the agent
provided to prosecutors her interview notes from September 16, 2007.5 Id.
3. Potential Exposure of the Grand Jury to the September 16 and 18 Statements
The government called on members of the Raven 23 convoy to testify before a grand
jury. Id. at 5. Prior to calling these Blackwater employees to testify, the government warned
them "not to tell the grand jury about information learned from the sworn statement of any other
member of Raven 23" and to testify only "based on their personal experiences and not from what
they may have read concerning the event." Id.
Yet prior to seeking an indictment, the government reviewed the grand jury record "to
determine whether, despite the admonishments provided to the witnesses, some information
derived from potential Garrity material could have been inadvertently presented to the grand
jury." Id. Based on that review, "it appeared that the grand jury may have been indirectly
exposed to information obtained from the September 18 statements." Id. Specifically, the
The same letter also details several instances in which members of the prosecution team could
have been exposed to the September 16 and 18 Statements. June 30 Letter at 3-4. For instance,
the letter notes that one of the prosecutors received, in response to a grand jury subpoena,
unsigned copies of the September 18 Statements, but did not review them upon receiving them.
Id. at 3. During the summer of 2008, members of the prosecution team purchased copies of a
book which contained the accounts given by the defendants, though the government insists that
"[b]oth prosecutors stopped reading the introduction before they saw any witness accounts by
Blackwater guards concerning the events of September 16." Id. at 4.
The government asserts that the prosecutors and the FBI had identified which Blackwater
personnel had shot the Iraqi victims prior to any exposure to the September 16 Statements.
Govt’s Opp’n at 5-6.
government found that at least four witnesses had provided information that may have been
derived at least in part from the September 18 Statements. Id.
Rather than seek an indictment from the first grand jury, the government convened a
second grand jury, Id. The evidence presented to the second grand jury consisted of a summary
FBI witness, various exhibits from the first grand jury and several witness transcripts from the
first grand jury proceeding. Id. The government redacted the testimony of witnesses who may
have provided testimony derived from the September 18 Statements. Id.
The June 30 Letter also notes that numerous other witnesses who did not testify before
the grand jury, but who may be called to testify at trial, may have been exposed to the September
16 and 18 Statements. Id. at 6-10. Chief among these potential witnesses is cooperating witness
Jeremy Ridgeway. Id. at 9. The June 30 Letter noted that
Two days after the shooting, Mr. Ridgeway recalls seeing the sworn statement of
Nicholas Slatten while the two of them were waiting to deliver their respective
sworn statements to DSS. Similarly, Mr. Ridgeway may have seen Dustin
Heard’s statement around the same time. On or about November 2007, Mr.
Ridgeway saw Paul Slough’s statement via media reporting on the internet.
Id.
B. Pr0cedural History
The second grand jury returned an indictment on December 4, 2008, charging the
defendants with fourteen counts of voluntary manslaughter, nineteen counts of attempted
manslaughter and one firearm count. See Indictment. ln early May 2009, the govemment filed a
"Motion for a Garrity Hearing in Lieu of a Pretrial Kastigar Hearing," in which it argued that a
pretrial Kastigar evidentiary hearing is unwarranted in this case. On July 22, 2009, the court
denied the government’s motion on the grounds that there had been inadequate briefing on the
legal and factual foundation for the application of Kastigar. Mem. Order (Jul. 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. at 4. The court directed the parties to specifically address whether the
immunity purportedly granted by the State Department was sufficient to implicate Kastigar. Id.
Pursuant to the court’s order, the defendants filed the instant motion on August 4, 2009, which is
now fully submitted.
III. ANALYSIS
A. Legal Standard for the Applicati0n of Kastigar
ln 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
is derived from a legitimate source wholly independent of the compelled
testimony.
Id., 406 U.S. at 460 (quoting Murphy v. Waterfront Comm ’n, 378 U.S. 52, 79 n.18 (1964)). As
the 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 1") (quoting Kastigar, 406 U.S. at 461-62), reh ’g denied, 920 F.2d 940("North 11").
"A trial court must normally hold a hearing (a ‘Kastigar hearing’) for the purpose of
allowing the govemment 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 it relies on, "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"). The Kastigar hearing may be held "pre-trial, post-trial, mid-trial (as evidence is offered),
or [through] some combination of these methods." Id. "A pre-trial hearing is the most common
choice." Id.
Although the Circuit has yet to fully delineate the exact reach of Kastigar’s prohibition
on the use of immunized testimony, see United States v. Kilroy, 27 F.3d 679, 687-88 (D.C. Cir.
1992), as a general matter, the government must show at such a hearing that it has made "no use
whatsoever" of any immunized testimony. See North I, 910 F.2d at 858. For instance, the
government must demonstrate that immunized testimony was not presented to grand jury or trial
witnesses "to refresh their memories, or otherwise to focus their thoughts, organize their
testimony, or alter their prior or contemporaneous statements." Id. at 860 (noting that this
principle "applies to witnesses who studied, reviewed, or were exposed to the immunized
testimony in order to prepare themselves or others as witnesses"); 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"). The government must show that
immunized testimony was not used to obtain investigatory leads, see United States v. Hubbell,
167 F.3d 552, 585 (D.C. Cir. 1999), to focus the pre-indictment investigation, see United States
10
v. Ponds, 454 F.3d 313, 327 (D.C. Cir. 2006), or to compel a witness to testify, see United States
v. Hylton, 294 F.3d 130, 134 (D.C. Cir. 2002).
The government’s burden at a Kastigar hearing is not, however, insurrnountable. For
instance, "[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." Ponds, 454 F.3d at 328 (quoting North
I, 910 F.2d at 854). Thus, where "the immunized evidenced 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)); see also North I, 910 F.2d at 859 (noting that "a
prosecution is not foreclosed merely because the ‘immunized testimony might have tangentially
influenced the prosecutor’s thought processes in preparing the indictment and preparing for
trial"’) (quoting Serrano, 870 F.2d at 17). lt is clear, however, that the govemment does not
satisfy this burden "simply by showing the availability of ‘wholly independent’ evidence from
which it might have procured indictment or conviction had it not used immunized testimony."
Ponds, 454 F.3d at 328. Rather, the govemment "must demonstrate beyond a reasonable doubt
that [the prosecution] would have been vigorously pursued" and that the same investigative
efforts would have been undertaken had the government not relied on immunized testimony. Id.
at 328-29,
To demonstrate that a Kastigar hearing is warranted, a defendant must lay a "firm
foundation resting on more than suspicion" that immunized testimony may have been unlawfully
used. North 1I, 920 F.2d at 949 n.9 (internal quotations omitted) (noting that because the district
court found that grand jury witnesses were exposed to the defendant’s immunized testimony, the
defendant clearly met this burden); see also Kastigar, 406 U.S. at 461-62 (noting that the
ll
defendant must show that he testified under a grant of immunity for the burden to shift to the
govemment); United States v. Jarvis, 7 F.3d 404, 414 (4th Cir. 1993) (holding that "once a
defendant demonstrates that he previously testified under a grant of immunity purporting to
protect him against the subsequent use of his testimony as a source for evidence, the district
court must hold a hearing at which the prosecution carries ‘the heavy burden of proving that all
of the evidence it proposes to use was derived from . . . sources’ independent of the immunized
testimony").
B. The Defendants Have Established the Necessary Foundation for a Kastigar Hearing
1. The Defendants Have Laid a Firm Foundation that
Immunized Testimony was Improperly Used
The defendants contend that because the September 16 and 18 Statements were
compelled under a threat of job loss, those statements were immunized by virtue of Garrity v.
New Jersey, 385 U.S. 273 (1967), which prohibits the govemment from using statements
compelled under a threat of job loss in a subsequent criminal prosecution against the witness.
See generally Defs.’ Mot.; Defs.’ Reply. Each defendant maintains that he understood that his
failure to submit to questioning by DSS agents would result in his terrnination. See Defs.’ Mot.
at 5-7. Furtherrnore, the defendants assert that prosecutors, investigators and grand jury
witnesses were exposed to these "Garrity-immunized" Statements. Id. at 7-16. 'l`hese facts, the
defendants argue, lay a sufficient foundation for a Kastigar hearing. Id. at 39-44.
The govemment does not dispute that members of the prosecution team and certain grand
jury witnesses were exposed to the defendants’ September 16 and 18 Statements. See generally
id. The government does dispute, however, the assertion that Garrity affords the September 16
and 18 Statements the broad immunity from derivative use required by Kastigar. Govt’s Mot. at
15-33. Rather, the government contends that Garrity statements amount to involuntary, coerced
12
confessions and, accordingly, should be analyzed under the same exclusion principles that guide
the suppression of coerced confessions. Id. The govemment also contends that the promises of
use and derivative use offered by DSS agents do not implicate Kastigar because those agents
lacked the authority to make binding offers of immunity. Id. at 7-15.
ln Garrity, the Supreme Court held that statements obtained from police officers under a
threat of job loss could not be used against them in a criminal proceeding. Garrity, 385 U.S. at
500. The police officers were informed that unless they answered questions submitted by the
state attorney general, they would be terminated from their positions.6 Id. at 494. The
statements elicited during these interviews were used in subsequent criminal case against the
officers. Id. The Court concluded that the Fifth Amendment’s privilege against compulsory
self-incrimination prohibited the prosecutors from using these statements to prosecute the
officers:
The choice given petitioners was either to forfeit their jobs or to incriminate
themselves. The option to lose their means of livelihood or to pay the penalty of
self-incrimination is the antithesis of free choice to speak out or to remain silent.
That practice, like interrogation practices we reviewed in Miranda v. Arizona, is
‘likely to exert such pressure upon an individual as to disable him from making a
free and rational choice.’ We think the statements were infected by the coercion
inherent in this scheme of questioning and cannot be sustained as voluntary under
our prior decisions.
Id. at 497-98 (internal citation omitted).
At no point did the Garrity Court suggest that use and derivative use immunity
automatically attaches to statements compelled under a threat of job loss. See generally id.
Rather, the Court analogized the situation to the Miranda context and held the statements
inadmissible as involuntary and coerced. Id. at 497-98.
Before questioning, each petitioner was informed "(1) that anything he said might be used against
him in any state criminal proceeding; (2) that he had the privilege to refuse to answer if the
disclosure would tend to incriminate him; but (3) that if he refused to answer he would be subject
to removal from office." Garrity v. New Jersey, 385 U.S. 493, 494 (1967).
13
Yet subsequent Supreme Court decisions have suggested that Garrity provides a form of
immunity over statements compelled under a threat of dismissal. See Maness v. Myers, 419 U.S.
449, 474 (1975) (White, J., concurring) (observing that Garrity provides a witness "immunity
from being incriminated by his responses to his interrogation"); cf Lefkowitz v. Turley, 414 U.S.
70, 82 (1973) (noting that by requiring public contractors to waive their immunity, "[i]t seems to
us that the State intended to accomplish what Garrity specifically prohibited - to compel
testimony that had not been immunized").
lndeed, the Circuits have now uniformly 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 statement or their fruits in
subsequent criminal proceedings." Sher v. Dep ’t of Veterans Ajfairs, 488 F.3d 489, 501-02 &
n.l2 (lst Cir. 2007); United States v. Koon, 34 F.3d 14l6, 1431 (9th Cir. l994) (stating that
where public employees "make a statement under threat of removal from office, the statement is
compelled and the government is precluded from using either the statement or information
derived from it as evidence in the federal trial") rev ’d in part on other grounds, 518 U.S. 81(1996); In re Grand Jury Proceedings (Kinamon), 45 F.3d 343, 348 (9th Cir. 1995) (holding that
statements obtained from an employee 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 ‘investigatory lead,’ and also barring the use of any
evidence obtained by focusing investigation on a witness as a result of his compelled
14
disclosures") (quoting Kastigar, 406 U.S. at 460); In re Fed. Grand Jury Proceedings (Cohen),
975 F.2d 1488, 1490 (1 lth 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"); Kalkines v. United States, 473 F.2d 1391, 1393 (Fed. Cl.
1973) (holding that "a later prosecution cannot constitutionally use statements (or their fruits)
coerced from the employee - in an earlier disciplinary investigation or proceeding - by a threat
of removal from office if he fails to answer the question"); see also Wiley v. Mayor & City
Council of Balt., 48 F.3d 773, 777 (4th Cir. 1995) (observing that "a state may compel job-
related testimony from an employee in the course of a criminal investigation, provided, of
course, that the state does not make direct or derivative use of the employee’s statement against
the employee in any criminal proceeding"); United States v. Friedrick, 842 F.2d 382, 395-96
(D.C. Cir. 1988) (holding that Garrity conferred immunity on statements made by the defendant
during an administrative investigation during which he was obliged to answer all questions
truthfully under threat of dismissal); Uniform 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"); United States v. Tallia, 1991 U.S. Dist. LEXIS 6654,
at * 18 (D.D.C. May 15, 1991) (holding that statements made by the defendant were "protected
by derivative use immunity" because the investigative form on which the statements were given
as well as the investigating agents "made clear to [the defendant] that he was compelled to
answer all questions posed during the interview") (citing Kastigar, 406 U.S. at 453). These
decisions make clear that the immunity afforded by Garrity does not depend on an official offer
immunity extended by a government entity, but rather attaches automatically by virtue of the
15
Fifth Amendment. See Sher, 488 F.3d at 501-02 & n.l2 (noting that "testimony compelled by
the threat of adverse employment action automatically triggers a grant of immunity under
Garrily"); In re Grand Jury Proceedings (Kinamon), 45 F.3d at 348 (reversing the district
court’s determination that the police department did not have authority grant an officer immunity
because Garrity immunity derives from the Fifth Amendment itself).
Accordingly, the Circuits have also uniformly held that "if a criminal defendant . . .
demonstrates that she was compelled to testify by her govemment employer, ‘the govemment
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); In re Grand Jury (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 govemment would bear the burden of
‘prov[ing] that the evidence it proposes to use is derived form a legitimate source wholly
independent of the compelled testimony"’) (quoting Kastigar, 406 U.S. at 441); In re Grand Jury
Proceedings (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); In re Grand Jury Subpoenas (Stover), 40 F.3d at 1103 (holding that "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 govemment will be required
to prove that its evidence derives entirely from legitimate sources or that the grand jury’s
exposure to the officer’s statement was harmless") (citing Kastigar, 406 U.S. at 460); see also
United States v. Blowers, 2005 WL 3116090, at *3 (W.D.N.C. Nov. 21, 2005) (noting it was
clear that the defendant’s statement "was compelled under Garrity" and that as a result, "the only
16
issue remaining is whether the Govemment impermissibly ‘used’ this statement or its contents
under Kastigar"); Tallia, 1991 U.S. Dist. LEXIS 6654, at *18-19 (analyzing the testimony
adduced during an evidentiary Kastigar hearing held in connection with Garrity statements). ln
rejecting the govemment’s objection to the application of Kastigar to Garrity statements, the
Ninth Circuit explained the relationship between the two doctrines as follows:
[l]n Kastigar, the leading Supreme Court case regarding use immunity granted
pursuant to 18 U.S.C. § 6002, the Court upheld the constitutionality of the federal
immunity statute because it concluded that the statute provided immunity that was
coextensive with the Fifth Amendment protections. Because the use of compelled
testimony in the Garrity context also directly implicates the individual’s Fifth
Amendment right against self-incrimination, Kastigar’s discussion of the scope of
the Fifth Amendment privilege against self-incrimination is directly relevant in
the Garrity context.
Koon, 34 F.3d at 1431 n.11. These authorities provide ample support for the defendants’
assertion that potential violations of so-called "Garrity immunity" demand an evidentiary
hearing under Kastigar.
While acknowledging the existence of these authorities, the government maintains that
the court should analyze the September 16 and 18 Statements under a traditional "coerced
confession" framework, which would impose fewer prohibitions on the indirect and
nonevidentiary uses of the statements. See Govt’s Opp’n at 18-22. lndeed, although the holding
in Garrity stemmed principally from the Court’s conclusion that the police officers’ statements
were coerced and involuntary, see Garrity, 385 U.S. at 497-98, Kastigar’s broad prohibition on
the derivative use of immunized testimony has never been applied to coerced confessions
generally, see Steven D. Clymer, Compelled Statements From Police Officers and Garrity
lmmunity, 76 N.Y.U. L. REV. 1309, 1342 (2001) (noting that only after Kastigar "would lower
courts interpret [that ruling] and the privilege to impose prohibitions on nonevidentiary and
17
indirect evidentiary use of immunized testimony, restrictions that courts never have applied to
coerced confessions").7
However persuasive this argument may be in the abstract, it does not sway the court to
disregard the considerable weight of the aforementioned authorities, particularly under the
circumstances of this case. Here, not only were the defendants threatened with job loss; they
were repeatedly advised by State Department investigators that their statements could not be
used against them in a criminal prosecution, see Defs.’ Mot. at 5-7, and were informed, in
writing on an official State Department document, that "neither [their] statements nor any
information or evidence gained by reason of [their] statements [could] be used against [them] in
Much like the government, Professor Clymer argues that in light of the context-specific approach
that the Supreme Court has used in outlining the contours of the Fifth Amendment privilege,
"[c]ourts can and should show the same flexibility when determining whether to permit collateral
uses of compelled statements, particularly in light of the significant differences between formal
grants of immunity and Garrity immunity." Steven D. Clymer, Compelled Statements From
Police Officers and Garrity lmmunity, 76 N.Y.U. L. REV. 1309, 1368-69 (2001).
18
a criminal proceeding," Slough Decl., Attach. A at 3.8 Contrary to the government’s suggestion,
this is not a case in which low-level law enforcement agents engaged in cronyism to protect their
fellow officers. See Govt’s Opp’n at 9. lt is, rather, a case in which govemment investigators,
operating on behalf of the U.S. State Department, deliberately and repeatedly assured the
defendants, over the course of a week-long investigation, that their statements would not be used
against them in a criminal prosecution. The court concludes that under the circumstances of this
As the government points out, courts typically refuse to enforce informal offers of immunity
extended by government agents, like the State Department investigators in this case, who lack
actual authority to confer such immunity. See United States v. Flemmi, 225 F.3d 78, 84-90 (lst
Cir. 2000) (declining to enforce an informal grant of immunity extended by an FBI agent lacking
the actual authority to grant immunity); see also In re Corrugated Container Antitrust Litig., 662
F.2d 875 (D.C. Cir. 1981) (noting that there is "no authority for ruling that oral promises of
immunity by an investigator, not in accord with statutory requirements, bind all federal and non-
federal prosecutors"); but see Peavy v. United States, 31 F.3d 1341, 1347 (6th Cir. 1994)
(remanding and instructing the district to "determine whether the agents had the apparent
authority to make the disputed promises on behalf of the govemment, taking into account the
secrecy surrounding [the defendant’s] cooperation agreement, and whether [the defendant] relied
to his detriment on the promises") (emphasis added). Yet subsequent Circuit decisions have
made clear that "the reasoning of Kastigar is not confined to cases arising under [the federal
immunity] statute." United States v. Hylton, 294 F.3d 130, 134 n.4 (D.C. Cir. 2002) (citing
United States v. Kilroy, 27 F.3d 679, 685 (D.C. Cir. 1994)). Moreover, it is well-established that
the government may be bound by the apparent authority of its agents where fundamental faimess
so requires. See United States v. Williams, 780 F.2d 802, 803 (9th Cir. 1986) (noting that
although a government employee other than the United States Attorney generally lacks the
authority to enter into a binding non-prosecution agreement, "[a]n exception has been recognized
where, although the United States Attorney was not a party to a cooperation agreement, breach of
the agreement rendered a prosecution fundamentally unfair"); United States v. Williams, 519 F.2d
105 8, 1059-60 (lst Cir. 1975) (affirming the district court’s dismissal of an indictment on fairness
grounds where the Securities and Exchange Commission induced an individual to testify by
promising that it would recommend that he not be prosecuted, the individual provided testimony
including self-incriminating statements and the SEC failed to make the promised
recommendation); see also United States v. Streebing, 987 F.2d 368, 373 (6th Cir. 1993) (holding
that the district court did not err in refusing to dismiss the indictment "because the prosecution in
this case was not fundamentally unfair"). Thus, regardless of whether the explicit offers of use
and derivative use immunity extended by the State Department are independently enforceable, the
court finds that the circumstances of this case do not support the government’s argument that it
should depart from the consensus view of the other Circuits, which indicates that Kastigar applies
to any Garrity violations that occurred in this case.
19
case, the full protections of Kastigar, as outlined by this Circuit in North 1 and North II, apply to
the September 16 and 18 Statements to the extent they were compelled under Garrily.g
To demonstrate compulsion under Garrity, an employee must show that he subjectively
believed his statements were compelled by the threat of job loss and that his belief was
objectively reasonable. See Friedrick, 842 F.2d at 395. Garrity applies with equal force to
public contractors compelled to give testimony under the threat of termination of a government
contract. Turley, 414 U.S. at 78 (stating that "there is no room for urging that the Fifth
Amendment privilege is inapplicable simply because the issue arises, as it does here, in the
context of official inquiries into the job performance of a public contractor"). And although
Garrity involved a criminal investigation undertaken by a state attorney general, Garrity applies
equally to statements compelled during an administrative investigation. See Sher, 488 F.3d at
501 n.8.
With respect to the September 16 Statements, each of the defendants asserts that he
understood that his refusal to respond to questioning by DSS agents would result in his
terrnination. Slough Decl. ll 6; Slatten Decl. ll 5; Liberty Decl. ll 5; Heard Decl. ll 4; Ball Decl. ll
5. The objective reasonableness of this belief is supported by the fact that other Blackwater
personnel interviewed by DSS agents on September 16 shared this understanding, see Defs.’
Mot., Ex. 4 ll 8; Ex. 10 ll 5; Ex. 11 ll 5; Ex. 29 ll 3; Ex. 30 ll 5, by the fact that the State
The govemment also argues that other Circuits have applied Kastigar to Garrity statements
because they impose less robust prohibitions on nonevidentiary uses of immunized testimony
than those outlined in North I and II. Govt’s Opp’n at 20-21. Beyond the fact that this court is
constrained by the binding authority of those decisions, the court finds unpersuasive the
government’s assertion that this Circuit’s Kastigar jurisprudence represents a radical departure
from the decisions of other Circuits, See North I, 910 F.2d at 857 (observing that the Circuits
have differed on whether Kastigar encompasses nonevidentiary uses of immunized testimony and
expressing concerns about decisions permitting nonevidentiary uses of such testimony); see also
United States v. Semkiw, 712 F.2d 891, 893-94 (3d Cir. 1983) (remanding the case for a
determination on whether the prosecutor made use of immunized testimony in the preparation and
conduct of the trial).
20
Department documents provided to all Blackwater personnel stated that failure to provide
truthful testimony following a weapons discharge incident could result in termination, Slough
Decl., Attach. A at 3, and by the fact that three of the defendants recall being given explicit
Garrity warnings during their interviews, Slough Decl. ll 7; Heard Decl. ll 4; Ball Decl. ll 6.
The September 18 Statements also constitute compelled statements under Garrity. The
"Sworn "l`estimony" form on which the written statement were provided expressly informed the
defendants that failure to testify could result in termination and that nothing stated on the form
(nor anything derived therefrom) could be used against them in a criminal proceeding. Slough
Decl., Attach. A at 3. During the follow-up interviews, the defendants were again given express
Garrity warnings by DSS agents.l° See Slough Decl. ll 9; Heard Decl. ll 6. Indeed, the
government does not dispute, for purposes of this motion, that Garrity applies to the September
16 and 18 Statements. See Govt’s Opp’n at 6 n.8.
"l`hese facts are sufficient to support a preliminary findingll that the September 16 and 18
Statements were compelled under threat of job loss under Garrity. Accordingly, Garrity
immunity attached to these statements, prohibiting the government from using them in any way
to prosecute the defendants. The defendants have also provided ample evidence that members of
the prosecution team as well as numerous witnesses, including those whose testimony was
provided to the grand jury that returned the indictment, were exposed to the September 16 and 18
Statements. See Defs.’ Mot. at 10-17. Thus, the court determines that the defendants have laid a
firm foundation for the necessity of a Kastigar hearing.
Even without those express warnings, the follow-up interviews were sufficiently related to the
September 18 written statements that the defendants reasonably could have believed that they
were still obliged to cooperate with the DSS agents. See Friedrick, 842 F.2d at 396-97.
The government asserts that if the court holds an evidentiary hearing, the government will
demonstrate that the September 16 Statements were not compelled under a threat of job loss.
Govt’s Opp’n at 33.
21
2. The Kastigar Hearing Should be Held Before Trial
1n the Memorandum Order dated July 22, 2009, the court scheduled a Kastigar hearing to
begin on October 14, 2009, pending resolution of the defendants’ motion for a Kastigar hearing.
The govemment argues that the court should postpone any Kastigar hearing until after trial.
Govt’s Opp’n at 33-42. The govemment contends that evidence adduced at the trial will
demonstrate that the September 16 and 18 Statements were nothing more than false, exculpatory
statements that deserve no Fifth Amendment protection. Id. at 33-37. Such a showing will
require the production of extensive evidence to prove the falsity of the defendants’ statements.
Id. at 41. The government contends that holding a pretrial Kastigar hearing will effectively
require the court to convene a second trial on the merits. Id. The defendants strongly oppose
this request and ask that the court hold a pretrial Kastigar hearing. Defs.’ Reply at 21-25.
The court is not persuaded to alter the previously imposed schedule and postpone the
Kastigar hearing until after trial. Although the court possesses the discretion to hold a Kastigar
hearing at any stage of the proceedings, including post-trial, a pretrial hearing is the most
common choice. North I, 910 F.2d at 872-73. The logic behind this approach is obvious. lt
would make little sense to force the defendants, the court and jurors to endure the cost and
uncertainty of what could be a lengthy trial while the validity of the indictment remains in
question. Even if the indictment is not dismissed, a pretrial hearing will provide the parties
guidance on what evidence will be inadmissible at trial on Fifth Amendment grounds, thus
minimizing the risk that the trial will be tainted with evidence derived from immunized
testimony.
To be sure, the government is correct that meeting its burden under Kastigar will require
the expenditure of significant resources by the parties and the court. See North I, 910 F.2d at
22
872-73 (noting that this inquiry "must proceed witness-by-witness; if necessary, it will proceed
line-by-line and item-by-item"). Yet the benefits of resolving these disputes prior to trial far
outweighs these costs. Accordingly, the court denies the govemment’s request to postpone the
Kastigar hearing until after trial.
IV. CONCLUSION
For the foregoing reasons, the court grants the defendants’ motion for a Kastigar hearing
and denies the government’s request to postpone any such hearing until after trial. An Order
consistent with this opinion is separately and contemporaneously issued this 8th day of
September, 2009.
RICARDO M. URB1NA
United States District Judge
23