United States v. Slough ( 2014 )

FELED
UNITED STATES DIS'I`RICT COURT 1 1 mm
FOR THE I)ISTRICT OF COLUMBIA
C|»Bl’l¢. U.S. |Jistrict & Bankruptcy
) Bourts fur the District ct Go!umhi:¢
UNITED STATES OF AMERICA )
)
v. ) Criminal No. 08-360 (RCL)
)
PAUL A. SI..OUGH, )
EVAN S. LIBERTY, and )
DUSTIN L. HEARD, )
)
Defendants. )
)
UNITED STATES 0F AMERICA )
)
v. ) Criminal No. 14»107 (RCL)
)
NICI~IOLAS A. SLATTEN, )
)
Defendant. )
MEMORANDUM OPINION
Before the Court are the defendants’ motions [Slough 441, 44'§'; Slarten l?] to exclude
evidence detailed in the governrnent’s notice [S!ough 406] of intention to introduce evidence
under Federal Rule of Evidence 404(b) ("Rule 404(b)"). Upon consideration of the defendants’
motions [Slough 441, 447; Sz'a£ren I?], the governrnent’s opposition [Slough 481; Sz'a:ten 36], the
defendants’ replies [S/ough 492, 494; Sr'a!!en 41], the applicable law, and the entire record
herein, the Court will DENY in part and GRANT in part the defendants’ motions to exclude
I. BACKGROUND
Both the District Court and the Court of Appeals for the District of Columbia Circuit
have previously described the factual background of this case. Um`£ed Srares v. S!ough, 6?7 F.
Supp. 2d 112, 116-129 (D.D.C. 2009] ("Slough I"), vacated, 641 F.3d 544, 555 (D.C. Cir. 2011)
(“Slaagh 11"); staagh 11, 641 93d at 541~49. rhhs, the court wm how only highlight the
relevant facts and procedural background
On March 28, 2014, the government filed a notice of its intention to introduce at trial
evidence pursuant to Rule 404(b) related to defendants Evan Liberty, Nicholas Slatten, and Paul
Slough. Unired S£ares v. Sloz:gh, 08 Cranch 360, ECF No. 406. In its notice, the government listed
the following purported cvidence, summarized for the purposes of this Memorandum:
Evan Liberty
l.
On or about both May 23, 2007, and September 9, 200?, Liberty indiscriminately
fired an automatic weapon ti'om a Blaclcwater armored vehicle.
"As a result of his overly aggressive behavior, Liberty was reassigned from a
position in the turret, to a driver within the convoy."
Nieholas Slatten
l.
Withirr the twelve months preceding the Nisur Square shooting incident, Slatten
‘“'made statements that he wanted to kill as many Iraqis as he could as ‘paybacl<
for 9»'] l,` and he repeatedly boasted about the number of Iraqis he had shot."
After a September 9, 2001 shooting incident, Slatten "bragged that he had turned
‘one guy’s head into a canoe"’ and that "he had gotten a couple of ‘kills today
with my ritle."’
Within the twelve months preceding the Nisur Square shooting incident, Slatten
"deliberately fired his weapon to draw out retum fire and instigate gun battles in a
manner that was inconsistent with the use of force and escalation of force policies
that governed Blaekwater personnel in Iraq.“ The government alleges that such
intentional shooting included two specific instances when there were no
perceivable threats to Blackwater security personnel. The government further
alleges that Slatten "cl'rastised" another Raven 23 member for refusing to fire into
a tin shed when that member "saw no threat."
Paul Slough
l.
During one day in the months preceding the Nisur Square shooting incident,
Slough, on two separate occasions, indiscriminately fired an automatic weapon
from a Blackwater annored vehicle when there was no perceivable threat to
Blackwater security personnel. “On another occasion, Slough fired an M203
round, for no apparent reason, close enough to his Blackwater convoy as to pose a
danger of getting hit by shrapnel."
manslaughter. See O!d Chz'efv. Um`red States, 519 U.S. 172, 180 (1997).8
D. Evan Lz`berry ’s reassignment
Finally, the government provided notice of its intention to introduce evidence that, "[a]s a
result of his overly aggressive behavior, [defendant] Liberty was reassigned from a position in
the turret, to a driver within the convoy." Slough, ECF No. 406 at 1[ e. Rather than presenting
evidence of a defendant’s conduct or statements that are probative of intent, the govemment
wishes to submit evidence of a third party’s presumed response to a defendant’s conduct or
statements Such evidence bears too attenuated a link to the elements of the present charges
against Liberty to be admissible. Thus, the Court GRANTS defendant Liberty’s motion to
exclude evidence of his reassignment.
IV. CONCLUSION
For the foregoing reasons, the Court DENIES in part and GRANTS in part the
defendants’ motions [Slough 44l, 447; S!atten 17] to exclude the evidence described in the
govemment’s notice [Slough 406] of intention to introduce evidence pursuant to Rule 404(b).
A separate Order consistent with this Memorandum Opinion shall issue this date.
C. .
Date ROY E`, C. LAMBERTH
United States District Judge
s The Court also notes that these statements allegedly made by defendants Liberty and Slatten to witnesses would be
admissible pursuant to Federal Rule of Evidence 80 l (d)(Z)(A) ("Rule 80 l")_the rule governing an opposing
party’s statements The provision reads, in relevant part: “A statement that meets the following conditions is not
hearsay: . . . The statement is offered against an opposing party and: (A} was made by the party in an individual or
representative capacity.” Such statements by Liberty and Slalten, describing their hostility and violent acts toward
Iraqis, could very well be offered against those defendants as to the element of intent required for the currently
charged crirnes.
ll
Slough, ECF No. 406 at 6-9.
Defendants moved to exclude this evidence on May 16, 2014. Slough, ECF Nos. 441 &
44')'. Three days later, the government filed a supplemental notice of intention to introduce
evidence pursuant to Rule 404(b). S!ough, May 19, 2014, ECF No. 450. In its supplemental
notice, the govemment added thc following purported evidence to its original Iist, S£'ough, ECF
No. 406, summarized for the purposes of this Memorandum:
Evan Liberty
l.
Following a shooting confrontation that occurred within the twelve months
preceding the Nisur Square shooting incident, "it was discovered that Liberty had
fired every magazine in his bag-ZS to 30 magazines." Aiter a Blackwater
tearnmate questioned Liberty’s decision to use all of his ammunition during the
shootout, "Liberty ridiculed that teammate for only firing at targets, and stated
‘just shoot at something man.’" Liberty also "referred to this teammate as a
‘Hadji Lover.""
Nicholas Slatten
l.
"Aiter an incident in May of 2001 Slatten was bragging about the number of
rounds he had fired that day. He said he had fired all of his rounds. He was also
talking about engaging people running across the street."
S!ough, ECF No. 450 at l-2.
The government also noted in its opposition brief that it
plans to introduce evidence that during the twelve months
preceding the shooting at Nisur Square, defendants Slough, Slatten
and Liberty routinely threw water bottles and other items at
unarmed civilians, vehicles, wagons, and bicycles without
justification in an attempt to break automobile windows, injure and
harass people, and for sport. For example, in an FBI 302 recently
disclosed to the current trial team, a Raven 23 member described
an incident in which a lady sweeping the street stopped and waved
at the convoy, pleading for water_ Defendant Liberty threw a
frozen bottle at the woman with such great force that it knocked
the cap off of the bottle.
Opp’n at T.
lI. LEGAL STANDARD
This Mernorandum will focus only on admissibility under Rule 404(b). The overriding
thrust of the defendants’ motion is exclusion pursuant to Rule 404(b), and this Court’s ensuing
decision on the motions does not require analysis of whether the evidence in question is
"intrinsie to the charged crime"_a determination that would make a Rule 404(1)] analysis
unnccessary. See Unired Srates v. Bow:'e, 232 F.3d 923, 929 (D.C. Cir. 2000).'
Pursuant to Rule 404(b), "[e]vidence of a crime, wrong, or other act is not admissible to
prove a person's character in order to show that on a particular occasion the person acted in
accordance with the character. . . . This evidence may be admissible for another purpose, such as
proving rnotive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,
or lack of accident." Fed. R. Evid. 404(b)(l)-(2). "Under the law of this circuit, ‘404(b) is a rule
of inclusion rather than exclusion,’ . . . and it is ‘quite permissive,’ excluding evidence only if it
is offered for the sole purpose of proving that a person's actions conformed to his or her
character." Unz`tea' S:ales v. Long, 328 F.3d 655, 660-61 (D.C. Cir. 2003) (quoting Bow:`e, 232
F.3d at 929-30 (D.C. Cir. 2000)).
The Circuit applies a "two-step analysis in considering whether [Rule 404(b)] evidence
[is] properly admitted." Unfted S!ares v. Cz'arke, 24 F.3d 257, 264 (D.C. Cir. 1994). "The first
step requires only that the evidence be probative of some material issue other than character."
Un:'ted Sta£es v. Washt`ngton, 969 F.2d 1073, 1080 (D.C. Cir. 1992] (Citing Unz`¢ed States v.
M:`ller, 395 F.2d 1431, 1435 (D.C. Cir. 1990)). lf so, the Court must then determine whether,
under Federal Rule of Evidence 403 ("Rule 403"), "the probative value [of the evidence] is
substantially outweighed by the danger of unfair prejudice . . . ." Un:'ted States v. Manner, 387
l Indeed, in Bowr`e, the Circuit held thal, while the evidence at issue was not “intn`nsic” and, thus, did not fall outside
the scope of Rule 404(b), the evidence was admissible pursuant to Rule 4U4(b). 232 F.$d at 929.
4
F.Zd 31'?, 321 (D.C. Cir. 1989) (quoting Fed. R. Evid. 403); cf Um’ted Srates v. Cassell, 292 F.3d
788, 796 (D.C. Cir. 2002) (quoting Dol£ar v. Long Mf`g, N.C., lnc., 561 F.2d 613, 618 (5th Cir.
19?7) for the proposition that "‘[u]nfair prejudice’ as used in Rule 403 is not to be equated with
testimony simply adverse to the opposing party. Virtually all evidence is prejudicial or it isn't
material. The prejudice must be ‘unfair."’). According to the advisory eommittee’s note to Rule
403, "‘Unfair prejudice’ within its context means an undue tendency to suggest decision on an
improper basis, eommonly, though not necessarily, an emotional one." Fed. R. Evid. 403
advisory comrnittee’s note; see also Um‘red States v. Rc'ng, 706 F.?>d 460, 472 (D.C. Cir. 2013);
umwa states v. Libby, 453 F. supp. 2d 35, 44 n.s (D.D.C_ 2006).2
Rule 404(b) evidence "must meet a threshold level of similarity in order to be admissible
to prove intent," but "exact congruence" is not required. Um`red S),‘ates v. Long, 328 F.3d 655,
661 (D.C. Cir. 2003); see also Slough Mot. at 5; Slattcn Mot. at 8; I_.iberty Mot. at 8. "What
matters is that the evidence be relevant to show a pattem of operation that would suggest intent
and that tends to undermine the defendant's innocent explanation." Long, 328 F.3d at 661
(internal quotation marks and citation omitted); see also Slough Mot. at 5; Opp’n at l5. "[I]n
order to determine a ‘close’ relationship or sufficient ‘similarity,’ the reviewing court is to
2 .S'ee also Huddlesron v. Um`red .S'iares, 485 U.S. 631, 68?-88 (1988), which placed Rule 404(1:\) within the general
context of relevance under Artiele IV of the Federal Rules of Evidence:
Rules 401 and 402 establish the broad principle tl1at relevant evidence-
evidence that makes the existence of any fact at issue more or less probable-is
admissible unless the Rules provide otherwise Rule 403 allows the trial judge
to exclude relevant evidence if, among other things, “its probative value is
substantially outweighed by the danger of unfair prejudice.“ Rules 404 through
412 address specific types of evidence that have generated problems Generally,
these latter Ruies do not flatly prohibit the introduction of such evidence but
instead limit the purpose for which it may be introduced. Rule 404(b), for
example, protects against the introduction of extrinsic act evidence when that
evidence is offered solely to prove character. The text contains no intimation,
however, that any preliminary showing is necessary before such evidence may
be introduced for a proper purpose If offered for such a proper purpose, the
evidence is subject only to general strictures limiting admissibility such as Rules
402 and 403.
consider-in part-temporal proximity." Um°ted .S'razes v. Tnrner, 2006 WI_, 1980232, at *5
(D.D.C. July 12, 2006) (citing Jank'ins v. TDC Mgm!. Corp,, Inc., 21 F.3d 436, 441 (D.C. Cir.
1994)). "‘[T]he admissible bad acts evidence need not show incidents identical to the events
charged, so long as they are closely related to the offense,’ . . . and are probative of intent rather
than mere propensity." Long, 328 F.3d at 661 (quoting Um`ted States v. DeLoach, 654 F.Zd 763,
769 (D.C. Cir. 1930)); see also Liberty Mot. at 3; Opp’n at l5.
III. ANALYSIS
The defendants’ intent is at issue_and in dispute-with regard to each of the charged
otfenses: murder in the first degree, voluntary manslaughter, and attempted voluntary
manslaughter. While the degree and type of intent varies per charge, aspects of the defendants’
state of mind, both preceding and at the moment of the Nisur Square shooting incident, will be
directly relevant to a finding of guilt or innocence. As the Supreme Court has explained, Rule
404(b) evidence "may be critical to the establishment of the truth as to a disputed issue,
especially when that issue involves the actor's state of mind and the only means of ascertaining
that mental state is by drawing inferences from conduct." Huddfes!on, 485 U.S. at 685 (1983).
Here, the Court will evaluate the governrnent’s purported Rule 404(b) evidence for its probative
value as to the requisite intenta for the charged homicides.4
3 For Rule 404(b) purposes, evidence that is probative of an intent to kill shall satisfy the standard of admissibility
for both first-degree murder and voluntary rnanslaughtcr_ Notwithstanding the government’s elevated burden of
proof for defendant Slatten‘s first-degree murder charge, evidence indicative of an intent to kill Iraqi civilians would
be sufficiently probative of an issue other than character that is material to both first-degree murder and voluntary
manslaughter. See Washi'ngton, 969 F.2d at 1080 (noting that the “tirst step [of Rule 404(b) analysis] requires only
that the evidence bc probative of some material issue other than character."); see also Defs.`s and Gov’t’s Proposed
Jury Instructions, Slough, May 16, 2014, ECF Nos. 443 at 28, 3? & 448 at 14~15, 20 (intent to kill is a material issue
for both homicide charges).
4 The Court agrees with the government that motive is closely linked to intent, especially in the context of homicide.
Opp’n at 13-15. The Court is unpersuaded that "demonstrating ‘motivation’ [is not] a proper basis on which to
permit the introduction ol` prior acts in this case." Slatten Mot. at 'I-"-S. Indeed, the case the defense cites for
support-Unt'ted .S'ra!es v. Brown, 880 F.Zd 1012 (9th Cir. l989}_further stated that Rule 404(b) evidence "is
allowed to show motive only when motive is in turn relevant to establish an element of the offense that is a material
6
Given the thematic connections among the govemment’s purported Rule 404(b)
evidence, the Court’s analysis can be divided into four catcgories: indiscriminate shooting,
throwing water bottles and other items, statements by the defendants, and Evan Liberty’s
reassignments
A. indiscriminate shooting
The govemment claims it possesses evidence that defendants Slatten, Slough, and Liberty
all, on separate and multiple occasions, fired their weapons indiscn`minately, without perceivable
threats to their safety. Siough, ECF No. 406 at 1[1] b, c, d, f; S!ongh, ECF No. 450 at l-2
(Liberty). The defendants argue, in essence, that the alleged indiscriminate shooting instances
are unconnected to and factually dissimilar from the Nisur Square shooting incident. Slough
Mot. at 4-6; Liberty Mot. at 7-9; Slatten Mot. at S-IO. The government counters that "incidents
relating to prior indiscriminate shooting of weapons, without regard for who might be struck by
the rounds, would be . . . evidence of the defendants’ hostility towards lraqis, evidence directly
linked to defendants’ states of mind” on the day of the shooting incident at issue in this case. See
Opp’n at 12. The Court agrees with the govemment that intentional indiscriminate shooting by
the defendants would evince a mentality of hostility toward and lack of respect for the lives of
Iraqi civilians that is probative of the issue of intent for both first-degree murder and voluntary
issue." Id. at 1014. Like in Brown, the defendants’ intent to kill is in dispute here. Id. at 1015. Unlike in Brown, a
motive to kill the alleged victims in this case could be derived from asserted prior violent acts directed toward and
statements regarding Iraqi civilians, and does not merely show a propensity for violence .S`ee id. Nevertheless, this
Memorandum will concentrate solely on whether the purported Rule 404(}:\) evidence is admissible to prove intcnt.
putting the issue of motive aside, since the categories of` evidence listed below are either sufficiently linked to the
material issue of intent or wholly insufficient to satisfy Rule 404(1)).
5 The govemment‘s supplemental notice of intention to introduce evidence pursuant to Ru1e 404(`0). Siough, ECF
No. 450, presents evidence that is substantially similar in kind to the evidence presented in the original notice,
.S`lough, ECF No. 406. Likewise, the government’s claim regarding the throwing of water bottles and other items at
lraqi civilians, which it presented for the first time in its opposition brief, Opp’n at '.-', is substantially similar in
character to the alleged evidence of injurious conduct in the original notice. As such, the Court will pennit
consideration of this additional purported evidence, despite the fact that the govennnent filed its supplemental notice
and opposition brief after the defendants had filed their respective motions to exclude
manslaughter. Specitically as to Slatten’s first-degree murder charge, examples of recent
indiscriminate, yet deliberate, shooting are not evidence of character, but potential evidence of
Slatten’s state of mind leading up to the day of the Nisur Square shooting incident. A reasonable
juror could deem an eagemess to fire one’s deadly weapon into populated areas, without
provocation, as evidence of malice aforethought. Moreover, a reasonable juror could surely
conclude that the intent of indiscriminate shooting with no present threat would be to kill or, at
least, seriously injure lraqi civilians_i.e. the type of intentionality at issue in a charge of
voluntary manslaughter. Regarding factual similarities to the Nisur Square shooting incident,
allegations that Slatten deliberately and intentionally shot at unidentified targets while
unprovoked are factually consistent with his current indictment for first-degree murder. See
Long, 328 F.3d at 661. The same factual similarity certainly exists between instances of
indiscriminate shooting of weapons designed to kill or seriously injure by defendants Liberty and
Slough and their respective indictments for multiple counts of voluntary manslaughter.
The defendants further claim that the govemrnent’s purported Rule 404(b) evidence is
inadmissible pursuant to Rule 403 because "it would be substantially outweighed by its unfair
prejudice." See, e.g., Slough Mot. at 7. The principal Rule 403 argument raised by the
defendants is that the government’s Rule 404(b) evidence centers on a presentation of the
defendants’ "ethnic or racial animus" toward Iraqis, and that such a presentation would
"overwhelm legitimate evidence." .S`ee Slough Mot. at ?-8; see afso; Slatten Mot. at 12-13;
Liberty Reply at 4.6 To support this argument, each defendant cites Uni¢ed States v. Doe, 903
6 'I`he defendants also argue that the introduction of such evidence would waste the Court’s and jury’s time. Slough
Mot. at 8; Liberty Mot. at i l; Slatten Mot. at 14. Yet as defendants effectively admit, introducing such evidence
would result in undue delay only if the Court accepts that the evidence is not probative Since the Court finds that
evidence of indiscriminate shooting, throwing water bottles and other objects at lraqi civilians, and the defendants’
own statements would be probative of intent, the defendants’ undue delay argument is of no moment here.
F.2d 16 (D.C. Cir, 1990). Slough Mot. at "t'-S; Slatten Mot. at 12; Liberty Reply at 4. in Doe, the
Circuit “condernned racially inflammatory remarks during governmental summation." Doe, 903
F.Zd at 24-28. Yet a prosecutor’s racially biased remarks during closing arguments are quite
distinguishable from a defendant’s conduct. Here, it cannot be said that evidence probative of
the defendants’ intent to commit the charged crimes-an issue that will be material to the
prosecution-will "violently affect a juror’s impartiality." Id. at 28 (internal quotation marks
and citation omitted). To the contrary, such relevant state of mind evidence rnay, in fact, be "the
only means of ascertaining that mental state." Huddfeston, 485 U.S. at 685. Thus, evidence of
indiscriminate shooting is permissible under Rule 404(b)
B. Throwt'ng water bottles and other items
While frozen water bottles were not used to kill and injure Iraqis in Nisur Square on
September l6, 2007, the purported evidence of defendants throwing hardened objects at
"unarmed civilians, vehicles, wagons, and bicycles without justification in an attempt to break
automobile windows, injure and harass people, and for spott," Opp’n at ?, is also sufficiently
probative of intent. Such conduct, if true, would reveal hostility toward and disregard for the
well-being of Iraqi civilians similar to that demonstrated by indiscriminate shooting Therefore,
like evidence of indiscriminate shooting, evidence that the defendants would throw objects in a
manner that exceeded acceptable force by Blackwater security personnel is permissible under
Rnle 404(b).
C. Statements by the defendants
Perhaps the clearest examples of permissible 404(b) evidence are the alleged statements
made by defendants Liberty and Slatten that suggest a manifest animosity toward Iraqis. The
government alleges that Slatten, within a year of the Nisur Square shooting incident, "made
statements that he wanted to kill as many lraqis as he could as ‘payback for 9)'11."’ Slough, ECF
No. 406 at 1| a. In addition, the government seeks to introduce evidence of Slatten bragging
about firing his weapon at and killing Iraqis. Id. at 1|1] a, d; Slough, ECF No. 450 at 2-3.7 Taken
together, statements as violent and specifically hostile as those alleged would undoubtedly be
probative of an intent to kill, with malice af`orethought, the lraqi civilian driving a white Kia in
Nisur Square on September 16, 2007. See Indictment, Unc'tea' Srates v. S£`att‘en, 14 Cranch 107, ECF
No. 1 at 2. The government also alleges that, after a shooting confrontation in the year preceding
the Nisur Square incident, Liberty "ridiculed [a] tcammate for only firing at targets, and stated
‘just shoot at something man."’ Sfough, ECF 450 at 1-2. The government claims to be in
possession of evidence that "Liberty referred to this teammate as a ‘Hadji Lover,"’ id., which
would imply enmity toward Arab people generally. Such statemcnts, made by a defendant
charged with voluntary manslaughter and reflective of an intent to kill lraqis, regardless of any
threat they posed, are probative here.
Once again, the defendants’ arguments regarding the prejudicial effcct, under Rule 403,
of statements of animosity toward lraqis are unavailing The government has provided notice
that it has witnesses who will testify to the defendants’ own statements expressing either outright
hostility toward lraqis or a disregard for their lives. Presenting such stateinents to the jury would
not “lure the factfinder into declaring guilt on an improper basis rather than on proof specific to
the offense charged," given the direct relevance of such statements-allcgedly spoken by the
defendants_to the issue of intent underlying both first-degree murder and involuntary
7 The government further notes that it has evidence of "substantially similar statements made by Slatten along these
lines (and included in previously provided discovery)," including: "statements that he did not like lraqi civilians or
Muslims in general; that he did not trust them; that he did not think lraqi lives were ‘worth anything,’ that ‘They are
not even hurnans. They are animals."’ Opp’n at 6.
10