United States v. Slough

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 8, 2011 Decided April 22, 2011

No. 10-3006

UNITED STATES OF AMERICA,

APPELLANT

v.

PAUL ALVIN SLOUGH, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cr-00360)

Demetra Lambros, Attorney, U.S. Department of Justice,

argued the cause for appellant. With her on the briefs were

Lanny A. Breuer, Assistant Attorney General, and Joseph N.

Kaster, Trial Attorney. Roy W. McLeese III, Assistant U.S.

Attorney, entered an appearance.

Bruce C. Bishop argued the cause for appellees. With

him on the brief were Mark J. Hulkower, Brian M. Heberlig,

Thomas G. Connolly, Christopher J. Wright, Timothy J.

Simeone, William Coffield, Steven J. McCool, David

Schertler, Danny C. Onorato and Lisa Hertzer Schertler.

2

Before: GINSBURG and GARLAND, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the court filed by Senior Circuit Judge

WILLIAMS.

WILLIAMS, Senior Circuit Judge: The district court

dismissed an indictment against the five defendants on the

ground that the evidence presented to the grand jury, and

indeed the decision to prosecute two of the defendants, were

tainted by statements of the defendants that for purposes of

this appeal are conceded to have been compelled within the

meaning of Garrity v. New Jersey, 385 U.S. 493 (1967). We

reverse and remand as to four of the defendants; the

government itself moved to dismiss the indictment against

Nicholas Slatten, without prejudice to possible later re-

indictment, and the district court’s grant of the motion has

taken Slatten out of the case for now. United States v. Slough,

677 F. Supp. 2d 112, 115-116 & n.2 (D.D.C. 2009).

* * *

On September 16, 2007 a car bomb exploded near the

Izdihar Compound in Baghdad, where a U.S. diplomat was

conferring with Iraqi officials. American security officials

ordered a team from Blackwater Worldwide to evacuate the

diplomat to the Green Zone. See U.S. Department of State,

U.S. Embassy Baghdad, (Draft) Use of Deadly Force Incident

at Nisur Square—Baghdad: Preliminary Report and Findings,

Sept. 23, 2007, at 2. Another Blackwater team, Raven 23,

headed out of the Green Zone to block traffic at the Nisur

Square traffic circle and thus assure the diplomat’s safe

passage back. (In fact, because a checkpoint had fortuitously

been closed, the escort convoy never passed through Nisur

Square.) Id. Raven 23 positioned its four vehicles on the

3

south side of the Square and its members started gesturing to

stop traffic. Shots were fired; the dispute over who fired at

whom and when is the substantive crux of the criminal case

underlying this appeal. When the shooting stopped, 14 Iraqi

civilians were dead and 20 wounded. Slough, 677 F. Supp. 2d

at 116.

Within hours of the incident, the Department of State’s

Diplomatic Security Service (“DSS”) conducted brief

interviews with each of the 19 members of Raven 23. Id. at

117. Among the 19 were the five defendants in this case, Paul

Slough, Nicholas Slatten, Evan Liberty, Dustin Heard and

Donald Ball. [

Redacted.

]*

On September 18, 2007, two days after the incident, all

Raven 23 members submitted sworn written statements to the

State Department, using a form that included a guarantee that

the statement and the information or evidence derived

therefrom would not be used in a criminal proceeding against

the signer. Slough, 677 F. Supp. 2d at 118-19. The

government conceded before the district court that under

Garrity the September 18 statements must be treated as

*

We have redacted material that on the parties' view might

spread “taint” from statements of defendants that are deemed

compelled for purposes of this case, or the release of which would

disclose witnesses’ grand jury testimony, except to the extent

hitherto disclosed elsewhere. The interests protected by the

redaction should in due course become moot, and we direct the

parties to notify the court when that occurs.

4

having been compelled; as to the September 16 statements,

the district court so found and the government does not appeal

that finding. 1

The incident almost immediately became the focus of

media attention in both the United States and Iraq. Some of

the early articles, published within a few days of the incident,

reported that the Blackwater team was attacked, and purported

to quote from and otherwise rely on a State Department

“incident report,” presumably prepared at least in part on the

basis of the interviews and statements. See, e.g., Adam

Zagorin & Brian Bennett, Iraq Limits Blackwater’s

Operations, TIME, Sep. 17, 2007, http://www.time.com/time/

world/article/0,8599,1662586,00.html; Sabrina Tavernise,

U.S. Contractor Banned by Iraq Over Shootings, N.Y. TIMES,

Sept. 18, 2007, at A1. These very same articles, however,

also cite Blackwater representatives as making the same

assertion ([

Redacted.

]). See

Tavernise. The articles also cite Iraqi officials’ statements

that Blackwater guards used excessive force. Joshua Partlow

& Walter Pincus, Iraq Bans Security Contractor, WASH.

POST, Sept. 18, 2007, at A1; Sinan Salaheddin, Iraq Plans

Review of Foreign Security Firm Status, ASSOC. PRESS, Sept.

18, 2007.

1

The defendants were re-interviewed later. Slough, 677 F.

Supp. 2d at 117-20. But because the defendants invoked only the

statements of September 16 and September 18 as sources of

potential taint of the evidence presented to the grand jury, id. at

120-21, only those statements are relevant to this appeal.

5

The September 18 written statements were also leaked to

the media. On September 28, 2007, ABC News reported that

it had obtained all 19 of the September 18 sworn statements

and quoted from some of them. See The Blotter, First Images

of Controversial Blackwater Incident, ABC NEWS, Sept. 28,

2007, http://blogs.abcnews.com/theblotter/2007/09/exclusive-

first.html. Defendant Slough’s statement was later posted

online in its entirety, [

Redacted.

], and news reports

by ABC News and the New York Times, among others,

reproduced parts of defendants’ and other team members’

September 18 statements. [

Redacted.

]

The witnesses that the government relied on most heavily

before the grand jury—Raven 23 members Adam Frost,

Matthew Murphy and Mark Mealy—admitted to having read

these news reports, and it soon became apparent that parts of

their testimony may have been tainted by their exposure. In

an effort to safeguard its case, the government decided to

present a redacted case to a second grand jury, which returned

an indictment against the defendants, finding that there was

probable cause to believe that defendants committed (and

attempted to commit) voluntary manslaughter and weapons

violations. Slough, 677 F. Supp. 2d at 127-28.

6

The defendants moved to dismiss the indictment as

tainted. As required by Kastigar v. United States, 406 U.S.

441 (1972), the district court held a hearing to determine the

existence and extent of any taint. It found that exposure to

defendants’ statements had tainted much of the evidence

presented to the second grand jury—the testimony of security

guards Frost and Murphy and Iraqi witnesses and victims,

Frost’s written journal, the factual proffer and debriefing of

Jeremy Ridgeway (a Raven 23 member who had been indicted

and had pleaded guilty), and physical evidence recovered by

DSS from the scene of the crime—and had also tainted the

prosecutors’ decision to indict defendants Heard and Ball.

The district court thus dismissed the indictment as to all five

defendants. The government now appeals. We review the

district court’s findings that the government used a

defendant’s immunized statement for clear error, United

States v. North, 910 F.2d 843, 855 (D.C. Cir. 1990) (“North

I”), a standard that is met for any finding that was “induced by

an erroneous view of the law,” United States v. Kilroy, 27

F.3d 679, 687 (D.C. Cir. 1994) (internal quotations omitted).

* * *

The Fifth Amendment bars the government from

compelling self-incriminating testimony from individuals. If

the government nevertheless decides to require an individual

to testify, it must offer him immunity that puts him in

“substantially the same position as if [he] had claimed his

privilege.” See Kastigar, 406 U.S. at 458-59. In a later

prosecution of the individual, the government cannot use his

immunized testimony itself or any evidence that was tainted—

substantively derived, “shaped, altered, or affected,” North I,

910 F.2d at 863—by exposure to the immunized testimony.

Nor can the government use it to develop investigatory leads,

to focus an investigation on a witness, Kastigar, 406 U.S. at

7

460, or to motivate another witness to give incriminating

testimony. United States v. Rinaldi, 808 F.2d 1579, 1584 n.7

(D.C. Cir. 1987). In North itself, for example, after North

gave his immunized testimony former National Security

Advisor Robert C. McFarlane had requested a second hearing

before special investigating committees “in order to respond”

thereto, and we found error in the district court’s having

admitted McFarlane’s trial testimony without having

determined “what use—if any” he had made of North’s.

North I, 910 F.2d at 864. More generally, evidentiary content

(potentially including a witness’s whole testimony, as where

his very availability was derived from or caused by

immunized statements) will share the constitutional ban on

use of the immunized statements. Kilroy, 27 F.3d at 687.

Below we deal explicitly with situations where evidence’s

content or availability is derived from both immunized

statements and independent factors.

In building a case against a defendant who received use

immunity for his statements, the government must prove, by a

preponderance of the evidence, that “all of the evidence it

proposes to use was derived from legitimate independent

sources.” North I, 910 F.2d at 854 (quoting Kastigar, 406

U.S. at 461-62, internal quotations omitted). As the district

court observed, proof that a witness was “never exposed to

immunized testimony” or that the investigators memorialized

(or “canned”) a witness’s testimony before exposure, Slough,

677 F. Supp. 2d at 132 (citing North I, 910 F.2d at 872),

would obviously satisfy the requirement. But a failure by the

government to make either showing does not end the district

court’s inquiry. North I requires the court to parse the

evidence “witness-by-witness” and “if necessary, . . . line-by-

line and item-by-item,” 910 F.2d at 872, and to “separate the

wheat of the witnesses’ unspoiled memory from the chaff of

[the] immunized testimony,” id. at 862. This sifting is

particularly important in cases where, as here, a witness was

8

exposed to a defendant’s immunized statement but testifies to

facts not included in that statement.

In sifting the record as to taint of the evidence before the

indicting grand jury, the district court made a number of

systemic errors based on an erroneous legal analysis.

First, the district court erred by treating evidence,

including the testimony of Frost, Murphy, Ridgeway and the

Iraqi witnesses, and the Frost journal, as single lumps and

excluding them in their entirety when at the most only some

portion of the content was tainted—it made no effort to decide

what parts of the testimony or the journal were free of taint.

Prima facie, this error applies (for example) to all elements of

testimony that do not overlap with the content of the

immunized statements. North I requires the court to segregate

tainted parts of the evidence from those parts that either could

not have been tainted (because there is no overlap) or were

shown to be untainted by a preponderance of the evidence.

910 F.2d at 872. Even in instances where there could be no

possible claim that the immunized statements caused the

witness to speak up (as in some variant of the McFarlane

instance), the district court found that the government had

failed to fulfill its burden; yet the court never identified what

the government could have done besides pointing to the

complete absence of overlap, or why it should have been

required to show more.

The district court excluded, for example, all of the

testimony of Frost and Murphy, finding that the two guards

“had been thoroughly immersed” in defendants’ immunized

statements by virtue of having read news reports about the

Nisur Square incident. Slough, 677 F. Supp. 2d at 144. But

Frost’s and Murphy’s grand jury testimony included specific

recollections with no referent either in defendants’ immunized

statements or news reports derived therefrom.

9

[

Redacted.

] As

these elements of Frost’s testimony have no antecedent in the

immunized statements, they cannot be tainted (unless

somehow the statements caused Frost’s testimony in some

subtler way). Similarly, [

Redacted.

]. The list goes on, as

the government points out in its briefs. Appellant Br. at 62-

64; Appellant Reply. Br. at 13 (describing parts of Frost’s and

Murphy’s testimony not overlapping with the statements);

Appellant Br. at 89-93 (describing parts of Jeremy

Ridgeway’s statements that could not have been tainted);

Appellant Reply Br. at 26-27 (describing parts of Iraqi witness

testimony that did not overlap with any immunized statements

that appeared in news reports). We will not catalogue every

instance of non-overlap here, but North’s mandate that the

district court parse the record “line-by-line” clearly requires

such review, not only for the rest of Frost’s and Murphy’s

testimony, but also for the Iraqi witnesses’ testimony and

Ridgeway’s proffer and statement.

In United States v. North, 920 F.2d 940 (D.C. Cir. 1990)

(“North II”), we noted that the defendant bears the burden of

laying “a firm ‘foundation’ resting on more than ‘suspicion’”

that proffered evidence was tainted by exposure to immunized

testimony. Id. at 949 & n.9 (quoting from Lawn v. United

States, 355 U.S. 339, 348-49 (1958)). A witness’s prior

exposure to immunized statements can hardly be said to meet

that burden as to completely non-overlapping points—defense

10

counsel conceded as much at oral argument. See Oral Arg.

Transcript 54, 56, 58. Of course, defendants may fill that gap

by submitting additional evidence; again, the McFarlane

episode in the North case may be a model, though it is worth

noting that our disposition there left unresolved whether

McFarlane’s responding to North’s testimony in fact

constituted a forbidden “use” within the meaning of Kastigar.

North I, 910 F.2d at 864.

Second (and closely related), the district court erred by

failing to conduct a proper independent-source analysis as

required by Kastigar, 406 U.S. at 460, and Rinaldi, 808 F.2d

at 1582. In particular, the district court erred by finding that

any evidence responding to allegations that Raven 23 was

attacked was tainted, even where no information specific to a

particular defendant was included, and the supposedly tainting

sources in fact encompassed multiple, equivalent assertions by

non-defendants. Many of the news reports were based on the

State Department spot and incident reports, which, in turn,

were in part based on statements by all 19 guards ([

Redacted. ]), not simply the five

defendants’ immunized statements. See, e.g., Zagorin &

Bennett (citing from the incident report that “the motorcade

was engaged with small arms fire from several locations” and

“returned fire”).

Moreover, the State Department reports were not the only

sources offered in the news stories to support the claim of [

Redacted. ]—the very same articles also cite Blackwater

representatives as making the claim. There is no suggestion in

the district court’s opinion that Blackwater management

learned the specifics of [Redacted.] from the State Department

reports; [

11

Redacted.

] Where two independent

sources of evidence, one tainted and one not, are possible

antecedents of particular testimony, the tainted source’s

presence doesn’t ipso facto establish taint. (Moreover, a

witness’s testimony need not have any exterior antecedent,

i.e., any precursor other than the witness’s perceptions of what

happened.) Speaking of a government decision to pursue a

line of investigation, for instance, the Second Circuit said,

“[I]f it appears that that pursuit could have been motivated by

both tainted and independent factors, the court must determine

whether the government would have taken the same steps

‘entirely apart from the motivating effect of the immunized

testimony.’” United States v. Nanni, 59 F.3d 1425, 1432 (2d

Cir. 1995) (citing United States v. Biaggi, 909 F.2d 662, 689

(2d Cir. 1990); Biaggi in turn drew on broader legal sources,

such as those governing claims of dismissal for exercise of

First Amendment rights, Mt. Healthy City School District

Board of Education v. Doyle, 429 U.S. 274 (1977)). The

same principle—a goal of removing any net effect on either

side—must apply to any circumstance (e.g., a segment of

testimony, a witness’s decision to speak up) claimed to be an

effect of immunized testimony. Immunity, properly

construed, “leaves the witness and the Federal Government in

substantially the same position as if the witness had claimed

his privilege.” Kastigar, 406 U.S. at 458-59 (emphasis added,

internal quotations omitted) (quoting Murphy v. Waterfront

Comm’n, 378 U.S. 52, 79 (1964)). To preserve that

symmetry, obviously courts cannot bar the government from

use of evidence that it would have obtained in the absence of

the immunized statement.

12

The district court also found that these early news reports

tainted Frost’s journal and his testimony when he addressed

the claim of [

Redacted.

] (Indeed, when armed guards shoot

a number of people in a crowd, it doesn’t take Hercule Poirot

to start wondering what the crowd was doing.) The district

court erred by failing to consider whether Frost’s testimony

and journal, as well as other evidence challenging the story

that [ Redacted. ], were more probably than not

derived from sources other than defendants’ immunized

statements.

Third, the district court applied the wrong legal standard

when it excluded Frost’s journal and his testimony simply

because the news reports based on some of the immunized

statements were “a cause” for his writing it. Slough, 677 F.

Supp. 2d at 151. Defendants cite our language in Hylton to

the effect that if Hylton’s immunized statements “were a

cause of [a key witness’s] decision to plead and testify against

Hylton, [the witness’s] testimony was impermissible even if

the government had prior knowledge of [the witness’s] role.”

294 F.3d at 134. But Hylton did not decide that any causal

role was necessarily fatal. To do so would have been to

reverse North I’s (and Kastigar’s) references to independent

sources, as well as Kastigar’s own explicit view that

immunity, properly applied, “leaves the witness and the

Federal Government in substantially the same position as if

the witness had claimed his privilege.” Kastigar, 406 U.S. at

458-59 (emphasis added, internal quotations omitted).

Finally, Hylton’s entire focus was on explaining why a

defendant was correctly asserting ineffective assistance of

counsel, because of the latter’s failure to make a Kastigar

13

objection, not on resolving the nuances of multiple sources or

causes.

Thus, only if the government on remand fails to establish

by a preponderance that Frost would have written the journal

or testified in the absence of exposure to defendants’

immunized statements would use of the journal and testimony

be barred under Kastigar. Of course, the defendants’

communications transmitted to Frost via the media are

relevant against the government in this analysis only to the

extent that they actually added to the information flowing

through from non-defendant sources.

This takes us to a fourth systemic error. To the extent

that evidence tainted by the impact of one defendant’s

immunized statements may be found to have accounted for the

indictment of that defendant, it does not follow that the

indictment of any other defendant was tainted. The district

court assumed the contrary. Slough, 677 F. Supp. 2d at 166 &

n.66. Although the prosecution presented a single indictment

against all five defendants, each defendant was charged

individually and therefore the presence, extent and possible

harmfulness of the taint must be assessed individually.

Defendants argue that the government proceeded on a

joint liability theory that would render defendant-by-

defendant taint assessment unsuitable. They point to a

prosecutor’s statement to the grand jury that it was “charging

[the defendants] jointly, with each of these shootings because

they’re working together.” Grand Jury Tr., Dec. 2, 2008, PM,

at 10-11. But in context the reference does not suggest

government adoption of the broad theory espied by

defendants. The prosecutor had explained to the grand jury

that for aider and abettor liability a defendant need not have

fired a fatal or wounding shot. Even shots that hit no one

could aid and abet directly harmful shots by making it

14

“difficult for victims to run that direction to safety.” Grand

Jury Tr., Nov. 20, 2008, AM, at 16. But guilt was individual:

a vote to indict required jurors to be satisfied “that there’s

probable cause that each of the people we’ve

identified . . . did, in fact, shoot their weapons that day . . .

[a]nd joined in this, in what happened.” 2 Id. In context it is

plain that the snippet identified by defendants is no more than

a reference back to the government’s aider and abettor theory.

* * *

As we noted, the district court found the indictments of

Heard and Ball independently and fatally tainted on the theory

that their immunized statements motivated the prosecutor’s

decision to seek their indictment. Neither Kastigar nor North

states that non-evidentiary uses of immunized statements are

barred. Kastigar prohibits the use of immunized evidence as

an “investigatory lead” to other derivative evidence that

would then be used against the defendant. 406 U.S. at 460. In

North I, after a substantial review of the various circuits’

decisions on the matter, we concluded: “Thus, even assuming

without deciding that a prosecutor cannot make non-

evidentiary use of immunized testimony, in the case before us

2

The exact language might suggest that the government led the

grand jury to believe that shooting, without regard to incoming fire,

was itself an adequate basis for a manslaughter indictment. But the

passage quoted was simply the government’s explanation of the

workings of aider and abettor liability; elsewhere the government

made clear that firing in self-defense would not qualify. See Grand

Jury Tr., Dec. 4, 2007, AM, at 11-12 (explaining to the grand jury

that if it is “objectively reasonable for you to believe that you need

to use [deadly] force to defend yourself, somebody’s shooting from

this car, and you apply force to that car, that’s obviously justified

conduct”).

15

the [Independent Counsel] did not do so.” 910 F.2d at 860.

We then went on (though under the heading

“‘Nonevidentiary’ Use,” id. at 856) to rule out the use of

immunized testimony to refresh the memories of witnesses,

id. at 860-63. That is, of course, an indirect evidentiary use.

Here, as the government does not challenge the factual

finding on the decision to indict, we must assume its

correctness and are thus forced to resolve the issue left

unsettled in North I. In the absence of clear Supreme Court or

D.C. Circuit precedent, North I turned to relevant decisions in

other circuits for guidance and noted a circuit split: the Third

and Eight Circuits suggested that Kastigar banned all non-

evidentiary uses; the First, Second, Ninth and Eleventh

Circuits found otherwise. North I, 910 F.2d at 857. Since

North was decided, the Seventh Circuit has joined the latter

group, holding that Kastigar is not concerned with “the

exercise of prosecutorial discretion.” United States v. Cozzi,

613 F.3d 725, 729 (7th Cir. 2010) (citing a number of post-

North I decisions; internal quotations omitted). In the end, at

least as to decisions to indict, we join those circuits refusing to

find such decisions vulnerable on the ground of links to

immunized statements. The Eleventh Circuit observed in

United States v. Byrd, 765 F.2d 1524, 1531 (11th Cir. 1985),

that such a rule would turn use immunity into transactional

immunity. That is a bit of an overstatement; after all,

prosecutors could, by construction of firewalls (along with the

associated incremental personnel costs), assure that such

decisions were made without risk of taint. But defendants’

proposed rule clearly would entangle the court in what has

hitherto normally been internal prosecutorial decision-making.

And it would open a new field for courts’ having to make

complex causal judgments of the sort already required to

assure clean evidence.

16

Continuing its discussion of non-evidentiary uses, Slough,

677 F. Supp. 2d at 158-65, the district court also asserted that

defendants’ September 16 statements must have been useful

to the prosecution and must have guided the government’s

investigation, id. at 163, but it never detailed what statements,

independent of innocent sources, played exactly what role.

We cannot uphold the judgment of dismissal to the extent that

it rests on such vague propositions.

We further note that the district court lumped physical

evidence collected by the DSS under the non-evidentiary-use

rubric and found it to be tainted. Slough, 677 F. Supp. 2d at

164-65. Insofar as physical evidence was presented to the

grand jury, that classification is surely wrong—if the

immunized statements led to discovery of physical evidence

that was before the grand jury, it should be analyzed as an

evidentiary use. As with uses purportedly leading to

testimony or to the Frost journal, the district court’s judgment

was subject to the same errors reviewed above as to non-

physical evidence. (We note that especially as to physical

evidence, but in principle as to all evidence alleged to be

tainted, the independent sources that might undercut any taint

would include actual facts on the ground, such as the locations

of vehicles that were shot and bullet strikes, which would lead

investigators to look for shell casings from any incoming fire,

not to mention make inquiries of potential witnesses.)

If the excluded physical evidence was not presented to

the grand jury, as the government’s briefs suggest, Appellant

Br. at 117 n. 43; Appellant Reply Br. at 38, then the district

court’s consideration and exclusion of that evidence appears

premature. The district court acknowledged as much, noting

that the “search [for physical evidence that it excluded] may

have been highly relevant to the criminal case eventually

brought against the defendants.” Slough, 677 F. Supp. 2d at

165. To the extent that the court ordered the Kastigar hearing

17

simply to determine the status of the indictment, it would not

properly reach the issue of possible use at trial. North II, 910

F.2d at 947-48.

Finally, although the district court disapproved of the

prosecutor Kohl’s explanation to the grand jury that some of

defendants’ statements were immunized, it did not find that

mentioning the existence of immunized statements constituted

a prohibited use under Kastigar. See Slough, 677 F. Supp. 2d

at 128. As the district court appears not to have relied on

Kohl’s explanation, we will not rule on the matter.

* * *

We find that the district court’s findings depend on “an

erroneous view of the law.” Kilroy, 27 F.3d at 687. We thus

vacate and remand the case for the court to determine, as to

each defendant, what evidence—if any—the government

presented against him that was tainted as to him, and, in the

case of any such presentation, whether in light of the entire

record the government had shown it to have been harmless

beyond a reasonable doubt. North I, 910 F.2d at 873.

So ordered.