United States v. Nicholas Slatten

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 17, 2017 Decided August 4, 2017

No. 15-3078

UNITED STATES OF AMERICA,

APPELLEE

v.

NICHOLAS ABRAM SLATTEN,

APPELLANT

Consolidated with 15-3079, 15-3080, 15-3081

Appeals from the United States District Court

for the District of Columbia

(No. 1:14-cr-00107-1)

(No. 1:08-cr-00360-1)

(No. 1:08-cr-00360-3)

(No. 1:08-cr-00360-4)

Brian M. Heberlig, appointed by the court, argued the

cause for appellants Slough, Liberty and Heard. William F.

Coffield, appointed by the court, argued the cause for appellant

Liberty. With them on the brief were Michael J. Baratz, Bruce

C. Bishop, Linda C. Bailey, David Schertler, Lisa Hertzer

Schertler, Janet Foster and Laina C. Lopez. Danny C.

Onorato, appointed by the court, entered an appearance.

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Timothy J. Simeone, appointed by the court, argued the

cause for appellant Slatten. With him on the briefs were

Thomas G. Connolly, Steven A. Fredley and Jared P. Marx, all

appointed by the court.

Timothy P. O'Toole, Kathleen T. Wach and Addy R.

Schmitt were on the brief for amicus curiae National

Association of Criminal Defense Lawyers in support of

appellants.

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

argued the cause for appellee. With her on the brief were

Anthony Asuncion, Jay I. Bratt, John Crabb Jr., Christopher R.

Kavanaugh, Gregg A. Maisel and Jonathan M. Malis, Assistant

U.S. Attorneys.

Before: HENDERSON, ROGERS and BROWN, Circuit

Judges.

Opinion for the Court filed PER CURIAM.

Opinion concurring in Part VI filed by Circuit Judge

HENDERSON.

Opinion concurring in the judgment in Part VII and

dissenting from Part VIII filed by Circuit Judge ROGERS.

Opinion concurring in part in, and dissenting in part from,

Part II filed by Circuit Judge BROWN.

3

TABLE OF CONTENTS

I. BACKGROUND 4

II. MEJA JURISDICTION/MEJA JURY CHARGE 7

A. Jurisdiction 7

B. Jury Charge 17

III. VENUE 22

IV. NEW TRIAL MOTION 28

A. Background 28

B. Analysis 30

V. SUFFICIENCY OF THE EVIDENCE 33

A. Liberty 34

B. Slatten 40

VI. VINDICTIVE PROSECUTION 44

A. Background 44

B. Analysis 46

VII. MOTION TO SEVER 51

A. Background 52

B. Hearsay and Its Exceptions 56

VIII. EIGHTH AMENDMENT 69

A. Proportionality 70

B. Comparable Sentences 79

PER CURIAM: Nicholas Slatten, Paul Slough, Evan Liberty

and Dustin Heard (“defendants”) were contractors with

Blackwater Worldwide Security (ABlackwater@), which in 2007

was providing security services to the United States State

Department in Iraq. As a result of Baghdad shootings that

injured or killed at least 31 Iraqi civilians, Slough, Liberty and

Heard were convicted by a jury of voluntary manslaughter,

attempted manslaughter and using and discharging a firearm in

relation to a crime of violence (or aiding-and-abetting the

commission of those crimes); Slatten was convicted of first-

degree murder. They now challenge their convictions on

jurisdictional, procedural and several substantive grounds.

4

For the following reasons, we hold that the Court has

jurisdiction pursuant to the Military Extraterritorial

Jurisdiction Act (“MEJA”), 18 U.S.C. §§ 3261 et seq., and that

venue in the District of Columbia was proper. We further hold

that the district court did not abuse its discretion in denying the

defendants= motion for a new trial based on post-trial

statements of a government witness. Regarding the challenges

to the sufficiency of the evidence, we hold that the evidence

was sufficient as to all except one of Liberty’s attempted

manslaughter convictions, and that the evidence was sufficient

as to Slatten. We further hold that Slatten=s indictment charging

first-degree murder did not constitute vindictive prosecution.

The Court concludes, however, that statements made by a

co-defendant shortly following the attack, statements asserting

that he—not Slatten—fired the first shots on the day in

question, were admissible. Accordingly, the Court concludes

that the district court abused its discretion in denying Slatten’s

motion to sever his trial from that of his co-defendants and

therefore vacates his conviction and remands for a new trial.

Moreover, the Court concludes that imposition of the

mandatory thirty-year minimum under 18 U.S.C. § 924(c), as

applied here, violates the Eighth Amendment prohibition

against cruel and unusual punishment, a holding from which

Judge Rogers dissents. The Court therefore remands for the

resentencing of Slough, Liberty and Heard.

I. BACKGROUND

On September 16, 2007, a car bomb exploded in Baghdad

near a United States diplomat who was under the protection of

Blackwater, a private security firm under contract with the

State Department. The defendants were members of

Blackwater=s Raven 23 team, which was sent to provide

secondary support in the effort to evacuate the diplomat. Rather

5

than meeting the primary team at the pre-arranged checkpoint,

Raven 23 shift leader Jimmy Watson ignored his orders and

directed the team to Nisur Square, a traffic circle in downtown

Baghdad that Watson intended to Alock down.@ A car bomb had

exploded in Nisur Square earlier that year, in response to which

Iraqi security had been dramatically increased, with multiple

checkpoints at the Square=s entrances for potential threats.

The Raven 23 convoy, which consisted of four armored

vehicles, came to a stop at the south end of the Square, and

together with Iraqi police they brought all traffic to a halt. Two

or three minutes later, witnesses heard the Apops@ of shots being

fired, and a woman screaming for her son. The car that had

been hit, a white Kia sedan, had been flagged days earlier by a

Blackwater intelligence analyst as a type that might be used as

a car bomb. According to the government, the Kia then rolled

forward and lightly bumped the vehicle in front of it. The

driver=s side of the Kia windshield had a hole in it and was

splattered with blood.

Two nearby Iraqi police officers approached the Kia on

either side, and they saw the driver=s face full of blood, with a

bullet wound in the middle of his forehead. One turned back

to the convoy, waving his hands to indicate the shooting should

stop, while the other made similar gestures as he tried to open

the driver=s door. At that point, the vehicle in front of the Kia

moved away, causing the Kia to roll forward again. Heavy

gunfire erupted from the Raven 23 convoy into the Kia, and the

Iraqi officers took cover behind their nearby kiosk. Multiple

grenades were fired at the Kia, causing it to catch fire. The

Kia passenger was shot and killed.

Indiscriminate shooting from the convoy then continued

past the Kia, to the south of the Square. Victims were hit as

they sought cover or tried to escape, giving rise to the bulk of

6

casualties that day. At some point a Raven 23 member

radioed that they were taking incoming fire, but others could

not locate any such threat. When the shooting died down, a

radio call indicated one of the Raven 23 vehicles had been

disabled and needed to be hooked up to another vehicle to be

towed. During the hook-up, a member of the Raven 23

convoy saw an Iraqi shot in the stomach while his hands were

up, by an unidentified Blackwater guard who had exited his

vehicle. Once the hook-up was complete, the Raven 23

convoy began moving slowly around the circle and north out

of the Square, where isolated shootings continued both to the

west and north. By the time the convoy finally exited the

Square, at least thirty-one Iraqi civilians had been killed or

wounded.

In the immediate aftermath of the shootings, the State

Department conducted mandatory de-briefing interviews of the

Raven 23 team. Because the testimony of certain witnesses

before the grand jury relied on those statements, the district

court dismissed the case as tainted as to all defendants. United

States v. Slough, 677 F. Supp. 2d 112, 166 (D.D.C. 2009)

(citing Kastigar v. United States, 406 U.S. 441 (1972)). This

Court agreed that the oral and written statements that resulted

from the de-briefings were compelled, and thus could not be

used directly or indirectly by the government against the

defendants who made them, but remanded the case for a more

individualized analysis of the effect of the taint. United States

v. Slough, 641 F.3d 544, 548, 554-55 (D.C. Cir. 2011).

On remand, the government used a new prosecutorial team

and convened a new grand jury, which returned indictments

against the defendants for voluntary manslaughter, attempted

manslaughter and using and discharging a firearm in relation to

a crime of violence. Slatten moved to dismiss the charges

against him as time-barred, which this Court ultimately granted

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by writ of mandamus. In re Slatten, No. 14-3007 (D.C. Cir.

Apr. 18, 2014). The government thereafter obtained an

indictment charging Slatten with first-degree murder. The

defendants were tried jointly in the summer of 2014, and after

seven weeks of deliberation, the jury returned guilty verdicts

on all counts except three. The district court sentenced Slatten

to life imprisonment, and it sentenced Slough, Liberty and

Heard to the mandatory term of imprisonment of thirty years

for their convictions under 18 U.S.C. § 924(c), plus one day on

all of the remaining counts.

II. MEJA JURISDICTION/MEJA JURY CHARGE

We begin with the defendants’ challenges to the

applicability of MEJA. The defendants argue that they are

entitled to acquittal on all counts because MEJA does not

authorize their prosecution. Alternatively, even if their actions

do fit within MEJA’s scope, the defendants maintain that the

jury was erroneously instructed regarding MEJA. On both

claims, we disagree.

A. Jurisdiction

1. History

Historically, civilians accompanying American armed

forces overseas were subject to military court-martial for

crimes committed in a host country. See Reid v. Covert, 354

U.S. 1, 3-4 (1957) (plurality op.). In a pair of opinions,

however, the United States Supreme Court put an end to that

practice, deeming it unconstitutional because the courts-martial

failed to provide civilians with certain constitutional rights

guaranteed by the Fifth and Sixth Amendments. Id. at 5 (“[W]e

reject the idea that when the United States acts against citizens

abroad it can do so free of the Bill of Rights.”); Kinsella v.

8

Singleton, 361 U.S. 234, 249 (1960) (civilian defendant “is

protected by the specific provisions of Article III and the Fifth

and Sixth Amendments and . . . her prosecution and conviction

by court-martial [was] not constitutionally permissible”).

Thereafter, many crimes committed by civilians overseas fell

into a jurisdictional vacuum as generally our country’s criminal

statutes do not apply extraterritorially and, “[a]lthough host

foreign nations [did] have jurisdiction to prosecute such acts

committed within their nation, they frequently decline[d] to

exercise jurisdiction when an American [was] the victim or

when the crime involve[d] only property owned by

Americans.” H.R. Rep. No. 106–778, Pt. 1, at 5 (2000); accord

United States v. Arnt, 474 F.3d 1159, 1161 (9th Cir. 2007).

In 2000, the Congress began to address the “jurisdictional

gap” by enacting MEJA. H.R. Rep. No. 106–778, at 5. In its

original version, MEJA authorized the prosecution of

extraterritorial crimes committed by civilians employed by the

Department of Defense (DOD) or its contractors. See 18 U.S.C.

§ 3267(1)(A) (2000). Following a series of high-profile

offenses committed by non-Defense Department contractors—

including those committed by private contractors employed by

the United States Interior Department at the Abu Ghraib prison

in Baghdad, Iraq—the Congress expanded MEJA’s scope. See

150 CONG. REC. S6863 (daily ed. June 16, 2004). Indeed, then-

United States Senator Jeff Sessions—the chief sponsor of the

2004 amendment—acknowledged that the amendment’s

purpose was to address a jurisdictional gap through which

“private contractors who may not have in every instance been

directly associated with the Department of Defense . . . might

not be prosecutable under [MEJA].” Id. Sessions noted that the

gap “highlighted [the Congress’s] need to clarify and expand

the coverage of the act” by giving “the Justice Department

authority to prosecute civilian contractors employed not only

by the Department of Defense but by any Federal agency that

9

is supporting the American military mission overseas.” Id.

Senator Charles Schumer likewise noted that the proposed

amendment addressed “a dangerous loophole in our criminal

law that would have allowed civilian contractors who do the

crime to escape doing the time.” Id. at S6864.

2. Text

As amended, then, two key sections of MEJA work

together to authorize the prosecution of qualifying offenses

committed by a civilian overseas: Section 3261 and Section

3267. See 18 U.S.C. §§ 3261, 3267.

18 U.S.C. § 3261 provides:

(a) Whoever engages in conduct outside the United

States that would constitute an offense

punishable by imprisonment for more than 1

year if the conduct had been engaged in within

the special maritime and territorial jurisdiction

of the United States—

(1) while employed by or accompanying the

Armed Forces outside the United States

...

shall be punished as provided for that offense.

18 U.S.C. § 3267 sets out alternative definitions of “employed

by the Armed Forces outside the United States” depending on

the defendant’s employment status. Section 3267(1)(A)(iii)(II)

applies to the defendants and provides as follows:

(1) The term “employed by the Armed Forces outside

the United States” means--

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(A) employed as . . .

(iii) an employee of a contractor (or

subcontractor at any tier) of . . .

(II) any . . . Federal agency . . .

to the extent such employment

relates to supporting the

mission of the Department of

Defense overseas . . . .

When Section 3267(1)(A)(iii)(II) applies, we believe there are

two preliminary questions posed by MEJA’s text: 1) whether

the defendant’s criminal conduct occurred “while employed

by” a non-DOD contractor; and 2) whether his employment

(not his conduct) “relates to supporting” the DOD overseas

mission. See 18 U.S.C. §§ 3261, 3267. The latter question,

however, is subject to an additional restriction. Section

3267(1)(A)(iii)(II)’s “to the extent” clause operates as a

temporal limitation applicable only to non-DOD contractors.

See id. That is, because MEJA authorizes the prosecution of

only those crimes a defendant commits “while” employed by a

non-DOD contractor and “to the extent” such employment

relates to a DOD mission, it applies only if the defendant’s

employment at the time of the offense relates to supporting a

DOD mission. See id. (emphasis added).

Although the United States Supreme Court has yet to

address Section 3267(1)(A)(iii)(II)’s “relates to” language, it

has interpreted similar language broadly. For example, in Smith

v. United States, the Supreme Court concluded that “[t]he

phrase ‘in relation to’ is expansive,” noting that “[a]ccording

to Webster’s, ‘in relation to’ means ‘with reference to’ or ‘as

regards.’” 508 U.S. 223, 237-38 (1993). Likewise, in District

of Columbia v. Greater Washington Board of Trade, the

11

Supreme Court interpreted “relate to,” as used in the Employee

Retirement Income Security Act of 1974, to include any law

that “has a connection with or reference to” a covered benefit

plan, thereby “giv[ing] effect to the ‘deliberately expansive’

language chosen by Congress.” 506 U.S. 125, 129 (1992)

(emphasis added) (some internal quotation marks omitted)

(quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 46 (1987);

Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97 (1983)); accord

Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383

(1992) (“For purposes of the present case, the key phrase,

obviously, is ‘relating to.’ The ordinary meaning of these

words is a broad one—‘to stand in some relation; to have

bearing or concern; to pertain; refer; to bring into association

with or connection with[.]’” (citing BLACK’S LAW DICTIONARY

1158 (5th ed. 1979)). Circuit precedent, too, employs a broad

interpretation. We have noted that the “ordinary meaning” of

“relating to” is a “broad one,” see Friedman v. Sebelius, 686

F.3d 813, 820 (D.C. Cir. 2012) (internal quotation marks

omitted) (quoting Morales, 504 U.S. at 383), and that “a

statutory provision containing the phrase therefore has ‘broad

scope,’” id. (quoting Metro. Life Ins. Co. v. Mass., 471 U.S.

724, 739 (1985)).

3. Application

Having addressed both MEJA’s required elements and

expansive scope, we next consider whether the evidence was

sufficient to support jurisdiction under MEJA. 1 The district

court denied the defendants’ motion for judgment of acquittal

1

The district court concluded that MEJA adds a jurisdictional

element to the underlying offenses, which element constitutes a jury

issue that must be established by the government beyond a

reasonable doubt. See United States v. Williams, 836 F.3d 1, 6-7

(D.C. Cir. 2016).

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on this ground and the Court must affirm so long as any

reasonable factfinder could conclude that the evidence, viewed

most favorably to the government, satisfied each element

beyond a reasonable doubt. United States v. Kayode, 254 F.3d

204, 212 (D.C. Cir. 2001); see Jackson v. Virginia, 443 U.S.

307, 319 (1979).

We begin with two unchallenged elements. It is

undisputed that all of the charges against all four defendants

are within MEJA’s scope as it relates to included offenses. See

supra 6-7; 18 U.S.C. § 3261(a). Moreover, all four defendants

were employed by Blackwater Security Consulting, LLC, a

contractor of the United States Department of State. JA 3743,

3760, 3776, 3794, 1228-29. At the time of the Nisur Square

attack, they were therefore “employee[s] of a contractor (or

subcontractor at any tier) of . . . [a] Federal agency.” See 18

U.S.C. § 3267(1)(A)(iii)(II). The remaining question is

whether that employment, at the time of the attack, related to

supporting DOD’s mission.

The government sufficiently established the DOD’s

overseas mission. By 2007, “the mission of the Department of

Defense overseas”—specifically, in Iraq—went beyond

military operations against the insurgency. Id. Witnesses

testified that the Defense Department mission was to rebuild

the war-torn country, including the fostering of economic and

political stability. United States Army Colonel Michael Tarsa

testified that the military’s goal was to “stimulat[e] local

governance” by “identifying local leaders [and] trying to

organize them.” JA 1374. Tarsa also recounted that the military

sought to improve the Iraqis’ “quality of life” by “restoring

essential services, sewer, water, electricity [and] trash

removal” and by “foster[ing] economic development,” all with

the hope that such restoration would “dissuad[e] people from

joining the insurgency.” JA 1373-77. Tarsa’s testimony was

13

echoed by United States Marine Corps Officer Shelby Lasater,

who testified that, as the United States’ presence in Iraq

continued, the mission became “to rebuild the country and set

up a government.” JA 1478-79. Then-Deputy Secretary of

Defense Gordon England affirmed that the Defense

Department “strategy” was to “help the Iraqi people build a

new Iraq with constitutional representative government that

respects civil rights and has security forces sufficient to

maintain domestic order and keep Iraq from becoming a safe

haven for terrorists.” JA 2949.

The government also produced abundant evidence that the

defendants’ Blackwater employment supported the

Department of Defense’s expanded mission at the time of the

Nisur Square attack. Paralleling the testimony of Tarsa, Lasater

and England, Blackwater guard Matthew Murphy testified that

Blackwater’s “clients . . . the State Department [were] trying to

bring along the country, . . . trying to mentor the Iraqi

government and . . . get them up and running.” JA 1044.

England also testified that the “U.S. Government had to rely on

all of its departments and agencies in order to achieve the

mission in Iraq.” JA 2950. The State Department was an

important part of the rebuilding effort the Defense Department

was engaged in; its diplomats were helping the Iraqis restore

their country. Blackwater employed the defendants to provide

security for the diplomats whose work plainly supported the

DOD mission. The defendants’ employment, then, “relate[d]

to”—that is, had a “connection with or reference to,” see

Greater Wash. Bd. of Trade, 506 U.S. at 129 (internal quotation

marks omitted)—supporting the Defense Department’s

rebuilding mission.

In addition, the defendants’ contracts required them to

complete unspecified “security-related duties requested by

Blackwater or [the State Department] in support of the

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Engagement.” JA 3761. This necessarily requires

consideration of the types of duties that Blackwater or the State

Department in fact requested in order to determine whether

they “relate[] to supporting the mission of the Department of

Defense.” 18 U.S.C. § 3267(1)(A)(iii)(II). The evidence

showed that, consistent with this contract provision,

Blackwater employees were assigned to assist distressed

military units during firefights, train Army security escorts and

provide escorts to Provincial Reconstruction Teams when

Army escorts were unavailable. JA 1622-23, 1762-64, 2956.

Although it may be true that the defendants did not themselves

participate in these assignments, this evidence nevertheless

illustrated for the jury the types of “security-related duties”

within the scope of the defendants’ employment. JA 3761.

The defendants’ employment “relate[d] to supporting the

[DOD overseas] mission” in another way; it allowed military

personnel previously responsible for providing State

Department security to concentrate exclusively on their

rebuilding mission. See 18 U.S.C. § 3267(1)(A)(iii)(II). Tarsa

affirmed that the Defense Department was “able to reduce the

amount of [its] platoons . . . . dedicated for Department of State

security convoy missions” as “Blackwater took the majority of

those tasks.” JA 1381. The platoons were then able to return to,

inter alia, “the continued development of the Iraqi security

forces.” JA 1382. United States Army Lieutenant Peter

Decareau and England corroborated Tarsa’s testimony. JA

2581 (testimony of Army Lieutenant Peter Decareau) (agreeing

that “from roughly February 2007 going forward, [Decareau’s]

company and platoons within it did not need to provide [State

Department] escort service missions anymore,” allowing his

platoon “to focus on what [he] described as civil affairs and . .

. night operation missions”); JA 2952 (testimony of Deputy

Secretary Gordon England) (before Blackwater’s arrival, State

Department “was draining personnel from the DOD mission”).

15

Again, then, the defendants’ employment, which increased the

manpower available to the military by replacing military

personnel previously assigned to guard State Department

personnel, had some “bearing or concern” regarding—that is,

“relate[d] to”—supporting the Defense Department mission.

See Morales, 504 U.S. at 383 (internal quotation marks

omitted) (citing BLACK’S LAW DICTIONARY 1158 (5th ed.

1979)). Providing security to State Department personnel who

themselves acted jointly with the Defense Department to aid

the Iraqi people and whose protection would have continued to

require military personnel but for the defendants’ employment

necessarily “relate[d] to” supporting the Defense Department’s

mission.

4. Defendants’ Arguments

The defendants attempt to narrow MEJA’s scope by

reading the “to the extent” language of 18 U.S.C. §

3267(1)(A)(iii)(II) and the “while employed” language of 18

U.S.C. § 3261 as more than a temporal limitation. They argue

that MEJA applied “only in the limited capacities or at those

limited times” when Blackwater guards actively and directly

supported the Defense Department mission. Joint Appellants’

Br. 59. That is, they claim that MEJA required the jury to

consider not their employment but instead their challenged

actions to determine whether those actions—that is, securing

Nisur Square—supported the Defense Department mission. Id.

at 41, 58-60. But, as noted, MEJA’s scope is not so narrow.

Instead, the most natural conjunctive reading of “while

employed by,” as used in 18 U.S.C. § 3261, and “to the extent,”

as used in 18 U.S.C. § 3267, is one that interprets these

provisions as establishing that the point in time when the

defendants’ actions occurred is the benchmark by which their

16

employment’s relation to a DOD mission is measured. 2 See

supra 10. The defendants’ misreading of the statute to require

that their challenged actions must relate to a Defense

Department mission violates both MEJA’s text and its purpose.

MEJA’s goal, after all, was to close “a dangerous loophole in

our criminal law that would have allowed civilian contractors

who do the crime to escape doing the time.” 150 CONG. REC.

S6863.

Alternatively, the defendants maintain that we should look

not to their on-the-ground actions but only to their Blackwater

contract to determine whether they were “employed by the

Armed Forces outside the United States.” Joint Appellants’ Br.

50-52. Because their contract required them to provide security

for State Department personnel, rather than to further a Defense

Department mission, they argue that MEJA does not authorize

their prosecution. Id. at 53. We decline to take such a cramped

view of MEJA’s text given the “deliberately expansive”

language used by the Congress. See Greater Wash. Bd. of

Trade, 506 U.S. at 129.

Finally, the defendants insist that the rule of lenity requires

construing MEJA in their favor. The rule of lenity, however,

applies only if, “after considering text, structure, history, and

purpose, there remains a grievous ambiguity or uncertainty in

2

Although we agree with our dissenting colleague that MEJA’s

“to the extent” phrase is limiting language meant to distinguish

between DOD and non-DOD contractors, see BROWN, J., Dissent

Op. 2, we need not reach the question of the potential criminal

liability vel non under MEJA’s “to the extent” restriction of a non-

DOD contractor, say, a State Department food service contractor

whose employee assaults another while off-duty or while serving

meals to State Department employees in Iraq. All we decide today is

that these defendants’ criminal liability fits within MEJA’s scope.

17

the statute such that the Court must simply guess as to what

Congress intended.” Maracich v. Spears, 133 S. Ct. 2191, 2209

(2013) (internal quotation marks omitted) (quoting Barber v.

Thomas, 560 U.S. 474, 488 (2010)); accord Reno v. Koray, 515

U.S. 50, 65 (1995) (rule of lenity applies “only if . . . [the Court]

can make no more than a guess as to what Congress intended”

(internal quotation marks omitted)). “The rule [of lenity] comes

into operation at the end of the process of construing what

Congress has expressed, not at the beginning as an overriding

consideration of being lenient to wrongdoers.” Maracich, 133

S. Ct. at 2209 (alteration in original) (quoting Callanan v.

United States, 364 U.S. 587, 596 (1961)). Although the phrase

“relates to” gives MEJA a broad scope, breadth does not equal

ambiguity. See Penn. Dep’t of Corr. v. Yeskey, 524 U.S. 206,

212 (1998) (“[T]he fact that a statute can be applied in

situations not expressly anticipated by Congress does not

demonstrate ambiguity. It demonstrates breadth.” (internal

quotation marks omitted)). Moreover, to the extent—if any—

that MEJA’s text is ambiguous, MEJA’s “context, structure,

history, and purpose resolve it.” Abramski v. United States, 134

S. Ct. 2259, 2272 n.10 (2014); see supra at 7-9. We conclude

that the rule of lenity is inapplicable here.

B. Jury Charge

The defendants also challenge the district court’s jury

instructions regarding MEJA. “Whether the district court

properly instructed the jury is ‘a question of law that we review

de novo.’” United States v. Ring, 706 F.3d 460, 465 (D.C. Cir.

2013) (quoting United States v. Orenuga, 430 F.3d 1158, 1166

(D.C. Cir. 2005)). Our responsibility is to “determine whether,

taken as a whole, [the instructions] accurately state the

governing law and provide the jury with sufficient

understanding of the issues and applicable standards.” United

States v. DeFries, 129 F.3d 1293, 1304 (D.C. Cir. 1997)

18

(alteration in original) (emphasis added); accord Ring, 706

F.3d at 465. An “improper instruction on an element of the

offense violates the Sixth Amendment’s jury trial guarantee.”

Neder v. United States, 527 U.S. 1, 13 (1999).

The district court instructed the jury on the meaning of

“employed by the Armed Forces outside the United States” as

follows:

[T]he definition of ‘employed by the Armed

Forces outside the United States’ includes not

only a direct employee or contractor of the

Armed Forces of the United States, but also a

contractor (including a subcontractor at any

tier) or an employee of a contractor (or

subcontractor at any tier) of any Federal agency

of the United States Government to the extent:

(1) such employment relates to

supporting the mission of the

Department of Defense overseas . . . .

...

[T]he Government may prove that the

defendant was ‘employed by the Armed Forces’

by establishing that:

(a) the defendant was employed as a

contractor, or an employee of a

contractor (including a

subcontractor at any tier) of any

federal agency, and

(b) that the defendant’s employment

related to supporting the mission of

the Department of Defense overseas.

19

JA 497-98.

The challenged jury instruction was not erroneous. First,

it quoted MEJA’s “to the extent” clause verbatim:

“‘[E]mployed by the Armed Forces outside the United States’

includes . . . an employee of a contractor . . . of any Federal

agency of the United States Government to the extent . . . such

employment relates to supporting the mission of the

Department of Defense overseas.” Id. (emphasis added); see

18 U.S.C. §§ 3261, 3267. Granted, the instruction also stated

that the government could establish jurisdiction if the jury

found “the defendant’s employment related to supporting the

[DOD] mission,” JA 498; taken out of context, a juror could

conceivably understand the latter statement to mean

jurisdiction would exist if “the defendant’s employment [at

any time] related to supporting the mission” of DOD, see id.

But we “do not read the language thus criticized in isolation.”

Jones v. United States, 404 F.2d 212, 215-16 (D.C. Cir. 1968);

see also Cupp v. Naughten, 414 U.S. 141, 147-48 (1973). To

the contrary, we have “long recognized that one ambiguous

part of an instruction may be made clear by another

unambiguous part of the same instruction,” United States v.

Gaviria, 116 F.3d 1498, 1510 (D.C. Cir. 1997), and the “to the

extent” language unambiguously precludes an erroneous, all-

or-nothing understanding of the statute, see John Hancock

Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86,

104-05, 109 (1993).

The defendants’ challenge to the instruction largely

repeats their argument against the applicability of MEJA itself.

For example, they argue the district court erred in failing to

instruct the jury that it could consider only their contract

employment to determine whether they were “employed by the

Armed Forces . . . .” Joint Appellants’ Br. 66-68. The

defendants also revive their claim that, even if the jury could

20

consider evidence aliunde their employment contract, it should

have been instructed that MEJA applied only when the

defendants were acting within the scope of their employment

and only if their specific acts supported the DOD mission. Id.

at 64-66. To that end, they proposed the following instruction:

[I]f you find that part of a defendant’s contract

employment for the Department of State related to

supporting the mission of the Department of

Defense, and part of his contract employment did not

relate to supporting the mission of the Department of

Defense, you must consider whether the work the

defendant was performing at the time of the conduct

charged in the indictment related to supporting the

mission of the Department of Defense in Iraq. For

purposes of this case, a Defendant is ‘employed by

the Armed Forces of the United States’ only if the

contract employment he was performing at the time

of the charged conduct related to supporting the

mission of the Department of Defense in Iraq.

JA 473. In construing MEJA’s text, the Court earlier rejected

the premise underlying the defendants’ instruction, see supra

15-16, and continues to do so in this context.

The defendants’ remaining argument is that the district

court “grievously erred” by failing to instruct the jury expressly

that diplomatic security is a State Department responsibility.

Joint Appellants’ Br. 68. They note that 22 U.S.C. §§ 4801-02

assigns to the Secretary of State responsibility for “the security

of diplomatic operations . . . abroad,” id. § 4801(b)(1), and

requires the Secretary to implement measures “to provide for

the security of United States Government operations of a

diplomatic nature,” id. § 4802(a)(1). For the defendants, there

is a “fundamental conflict between that statutory assignment of

21

responsibility [to the State Department] and MEJA’s

requirement that the defendants’ contract employment relate to

supporting the Defense Department’s mission.” Joint

Appellants’ Br. 74-75. The defendants offered the following

instruction:

The Defendants in this case were independent

subcontractors employed by the Department of

State to provide personal security to State

Department personnel in Baghdad, Iraq. By

law, the provision of personal security to State

Department personnel overseas is the

responsibility of the Department of State.

JA 475.

The defendants fail to recognize, however, that State

Department contractors—and their employees—could help

meet the State Department’s duty to provide security for

diplomatic operations abroad and, at the same time, support the

Defense Department’s overseas mission. Blackwater without

question employed the defendants to protect State Department

personnel, see, e.g., JA 1169-74, 1853-54, 3861; the critical

question for the jury, however, was whether, in carrying out

that responsibility, the defendants’ employment also “relate[d]

to supporting the mission of the Department of Defense

overseas,” see 18 U.S.C. § 3267(1)(A)(iii)(II). We agree with

the district court that the defendants’ proposed instruction

“would just be confusing to the jury.” JA 3279-80. The district

court’s charge, “taken as a whole . . . accurately state[d] the

governing law and provide[d] the jury with sufficient

understanding of the issues and applicable standards.” DeFries,

129 F.3d at 1304.

22

III. VENUE

The defendants next complain the District of Columbia

was an improper venue for their trials. On November 18,

2008, the United States District Court for the District of

Columbia issued an arrest warrant for Ridgeway, and

Ridgeway voluntarily flew to Washington, D.C. from

California. Once he arrived in Washington, he was met by an

FBI agent, formally booked and taken to district court to plead

guilty to one count of voluntary manslaughter and one count of

attempted voluntary manslaughter. While Ridgeway was not

put in handcuffs when apprehended by the FBI, he testified he

believed he was under arrest. After pleading guilty, Ridgeway

was permitted to return to his home.

If an offense is committed outside the United States and

involves charges against multiple people, Congress has

declared venue to be proper in the district where any of the joint

offenders are first arrested. 18 U.S.C. § 3238. The

defendants argue the government improperly used the arrest of

Jeremy Ridgeway, one of the other turret gunners who fired in

Nisur Square, to satisfy the venue statute because (1) Ridgeway

was not arrested in connection with their charged offenses, (2)

he was not a “joint offender” with the defendants and (3) the

government impermissibly manufactured venue in the District

of Columbia.

Since the parties dispute the meaning of the phrases “joint

offender” and “is arrested” in the venue statute, we focus on

the statute’s text. Section 3238 states, “[t]he trial of all

offenses begun or committed . . . out of the jurisdiction of any

particular State or district[] shall be in the district in which the

offender, or any one of two or more joint offenders, is

arrested.” Id. “The Government bears the burden of

establishing by a preponderance of the evidence that venue is

23

proper with respect to each count charged against the

defendant[s].” United States v. Morgan, 393 F.3d 192, 195

(D.C. Cir. 2004). When reviewing whether venue was

properly established, this Court views the evidence “in the light

most favorable to the Government.” Id. In order to assure

the case would be heard in the District of Columbia, the

government entered into a plea agreement with Ridgeway and

arranged for him to travel to the District of Columbia from his

home in California to be arrested.

While this Court has not specifically defined “arrested” in

the context of Section 3238, our sister circuits have consistently

interpreted it to mean situations “‘where the defendant is first

restrained of his liberty in connection with the offense

charged.’” United States v. Wharton, 320 F.3d 526, 537 (5th

Cir. 2003) (quoting United States v. Erdos, 474 F.2d 157, 160

(4th Cir. 1973)). We believe this definition is correct and that

the test is easily satisfied here. The record shows the district

court issued the arrest warrant for Ridgeway. On the same

day, he was arrested by the FBI in the District of Columbia and

formally booked. The defendants argue Ridgeway’s freedom

was never restrained because he voluntarily flew across the

country from California and was never put in handcuffs or

confined in a cell, but this misconstrues the meaning of arrest.

Supreme Court precedent makes clear an arrest can either

be carried out with “physical force [against a suspect] . . . or,

where that is absent, submission to the assertion of authority.”

California v. Hodari D., 499 U.S. 621, 626 (1991). What

really matters is whether a “reasonable person would have

believed that he was not free to leave.” United States v.

Mendenhall, 446 U.S. 544, 554 (1980). Here, Ridgeway

testified he understood himself to be under arrest when he was

seized by the FBI upon arrival in the District of Columbia.

Any reasonable person in Ridgeway’s position would have

24

understood he was not free to leave. 3 Ridgeway was first

arrested in the District of Columbia; and that arrest established

venue here.

The defendants interpret the phrase “joint offender” to

mean each offender must possess “a mutual intent” with others

to commit a crime. Joint Appellants’ Br. 97–98. Because

Ridgeway did not form this mutual intent, they claim he was

not a joint offender. They rely primarily on the fact that many

of the cases examining Section 3238 have involved

collaborative criminal schemes. See, e.g., United States v.

Levy Auto Parts of Can., 787 F.2d 946, 948–49 (4th Cir. 1986)

(involving a conspiracy to sell munitions); United States v.

Hong Vo, 978 F. Supp. 2d 49, 64 (D.D.C. 2013) (involving a

conspiracy to commit visa fraud).

However, this interpretation impermissibly narrows

Section 3238 to one category of offenses. As noted by the

district court, Black’s Law Dictionary defines a joint offense as

a crime “committed by the participation of two or more

persons.” BLACK’S LAW DICTIONARY 838 (6th ed. 1990).

While the defendants are certainly correct that a joint crime can

be committed by several defendants with a mutual intent to

achieve a criminal goal, this is not the only type of crime in

which a group may participate. In fact, Federal Rule of

Criminal Procedure 8(b) allows multiple defendants to be

charged with the same offense “if they are alleged to have

participated in the same act or transaction, or in the same series

of acts or transactions, constituting an offense or offenses.”

3

Judge Rogers concurs that the objective standard for an arrest

has been met here, see Hodari D., 499 U.S. at 628, in light of

testimony that upon meeting FBI Agent John Patarini in Washington,

D.C., Ridgeway was handed an arrest warrant, told he was under

arrest, and further told “If you can behave yourself, I will not put

these [handcuffs] on you.” 7/31/14 (PM) Tr. 12:12-18.

25

Accordingly, instead of limiting “joint offender” to one

category of offenses that requires participation by multiple

people, a more natural reading of the statutory text

encompasses not only people with a mutual intent to commit a

crime, but also anyone who has joined others in participating

in the same act or transaction constituting a crime or crimes.

This interpretation is further supported by this Court’s

preference for joint trials in cases involving multiple

defendants. See United States v. Manner, 887 F.2d 317, 324

(D.C. Cir. 1989). We have explained joint trials “promote

efficiency” and noted that “this preference is especially strong

when the respective charges require presentation of much the

same evidence, testimony of the same witnesses, and involve

[multiple] defendants who are charged . . . with participating in

the same illegal acts.” United States v. Wilson, 605 F.3d 985,

1015, 1016 (D.C. Cir. 2010). These rationales are especially

compelling in a case like this. Ridgeway was working in the

relevant convoy on the day of the Nisur Square attack, and,

with other defendants, he opened fire on the civilians in Nisur

Square. Thus, in order to convict Ridgeway, the government

would be required to present the same evidence and to rely

upon testimony from the same witnesses as they would for the

other defendants. Also, concerns for efficiency are especially

compelling here because many of the witnesses reside in Iraq.

Multiple trials would mean arranging multiple international

trips for the witnesses, which would likely be both difficult to

schedule and costly. Thus, our interpretation of Section 3238

is consistent with both the text of the statute and the general

preference for joint trials. 4 We conclude “joint offenders”

4

We also note this interpretation is consistent with Section

3238’s legislative history. See S. Rep. No. 88-146 at 1–2 (1963),

reprinted in 1963 U.S.C.C.A.N. 660, 660–61 (stating Congress

desired to amend Section 3238 to avoid the “substantial burden” and

“unnecessar[y] expens[es]” imposed by requiring the government to

26

encompasses all defendants who participated in the same act or

transaction constituting the charged crimes.

Thus, it is clear Ridgeway was a joint offender.

Testimony at trial established Ridgeway was present in Nisur

Square as a member of the Raven 23 convoy and that he fired

at civilians to the south, to the west and finally to the north.

Ridgeway participated in the “same series of acts or

transactions” that gave rise to the prosecution, FED. R. CRIM. P.

8(b), which makes him a joint offender. The defendants’

emphasis on personal participation in every count returned by

the grand jury focuses on the wrong thing. Although it is true

that the government must show that “venue is proper with

respect to each count charged,” United States v. Lam Kwong-

Wah, 924 F.2d 298, 301 (D.C. Cir. 1991), it does not follow

that Ridgeway must have personally participated in each act

giving rise to each count. Section 3238 requires that

Ridgeway be a “joint offender,” which is satisfied by his

participation in the same series of acts or transactions giving

rise to those counts, i.e., Ridgeway’s persistent, multi-

directional shooting throughout the entire Nisur Square attack.

18 U.S.C. § 3238; see also FED. R. CRIM. P. 8(b) (“All

defendants need not be charged in each count.”). Because

Ridgeway clearly did participate in the Nisur Square shootings,

he was a joint offender within the meaning of Section 3238.

Likewise, the defendants’ claim that the government

manufactured venue, while appealing on an intuitive level, fails

in light of the congressional design of Section 3238. The text

of the statute gives the government a choice regarding

prosecution of an extraterritorial crime: either arresting a

arrange and finance multiple trips to the United States for overseas

witnesses for multiple trials). Thus, it appears the legislature meant

what it plainly said.

27

cooperative defendant in a jurisdiction of the government’s

choosing or seeking an indictment in the district where a

defendant resides. See 18 U.S.C. § 3238 (stating venue “shall

be in the district in which the offender, or any one of two or

more joint offenders, is arrested”); see also United States v.

Gurr, 471 F.3d 144, 155 (D.C. Cir. 2006) (reading Section

3238’s clauses disjunctively). Thus, by choosing to arrest

Ridgeway in the District of Columbia, the government simply

exercised the choice given to it under the statute. Something

more is required to sustain a claim that venue has been

manufactured. See United States v. Spriggs, 102 F.3d 1245,

1250–51 (D.C. Cir. 1996). For example, “where the key

events occur in one district, but the prosecution, preferring trial

elsewhere, lures a defendant to a distant district for some minor

event simply to establish venue,” a claim of manufactured

venue might have traction. Id. at 1251. However, Section

3238 forecloses that scenario here by explicitly allowing the

government to choose where to arrest a cooperative joint

offender. Thus, venue was proper in the District of

Columbia. 5

5

Equally unpersuasive is the defendants’ contention that the

district court committed reversible error by ruling on the venue issue

itself instead of presenting the question to the jury. Venue becomes

a jury question if a defendant raises a genuine issue of material fact

regarding venue. See United States v. Fahnbulleh, 752 F.3d 470,

477 (D.C. Cir. 2014). Here, the defendants failed to do so. The

parties do not dispute what happened—i.e. that Ridgeway

participated throughout the Baghdad shootings and that he flew from

California to the District of Columbia and was arrested once he

arrived there—they dispute the legal significance of those facts.

The defendants disagree with the district court’s interpretation of the

phrases “joint offender” and “arrest,” which, as discussed above,

were correctly considered. Therefore, the district court did not err

by withholding this issue from the jury.

28

IV. NEW TRIAL MOTION

A. Background

The defendants say the district court abused its discretion

in denying a new trial based on the victim impact statement

(“VIS”) from Officer Monem that appeared to contradict his

testimony at trial.

During the trial, the government called Sarhan Dheyab

Abdul Monem, an Iraqi police officer, to testify about his

observations in Nisur Square during the attack. Before the

shooting began, Monem was stationed at a traffic kiosk located

close to where the Raven 23 caravan had stopped. Monem

testified that, after he heard shots being fired from the Raven

23 caravan, he heard a scream coming from the Kia, so he

approached the vehicle. As he neared the Kia, he saw its

driver had been shot in the head. After examining the driver’s

injury, Monem testified he moved in front of the convoy and

attempted to tell them to stop shooting by speaking to them in

Arabic and waving his hands. When this had no effect,

Monem stated he returned to the Kia and attempted to help the

Kia’s passenger, who was weeping and holding the body of the

driver. According to Monem, the car began to slowly move

forward, which caused the Raven 23 squad to begin firing at

the Kia again. When the second burst of gunfire erupted,

Monem fled back to his kiosk and hid behind it to shield

himself from the bullets.

After the defendants were convicted, the government

solicited victim impact evidence from Iraqis who were present

in Nisur Square on the day of the attack, including Monem.

The purpose of this evidence was to allow victims and

witnesses to describe how the Nisur Square shootings had

affected them, including “feelings of anger, rage, blaming self,

29

. . . helplessness, [and] vulnerability.” JA 4032. In his VIS,

Monem wrote about his guilt for not being able to help the

Kia’s occupants; but, he also painted a different picture of what

happened that day. Contrary to his testimony at trial,

Monem’s VIS stated he “remained in [his] traffic cabin unable

to move nor think.” JA 637. The VIS also stated Monem

heard the driver of the Kia pleading with his mother to get out

of the car before they were both killed. When the government

produced Monem’s VIS to the court and defense counsel four

days later, the defendants raised concerns about the

inconsistency of the VIS with Monem’s trial testimony.

This prompted the government to conduct an ex parte

telephone conversation with Monem regarding his VIS. The

government did not record this conversation and instead

submitted notes to the district court summarizing Monem’s

responses. According to these notes, Monem allegedly stated

he did not understand his VIS to be a factual statement but

rather an “expression” of what he imagined it was like to be the

Kia driver. The notes also indicated Monem reaffirmed key

portions of his trial testimony, including that he approached the

Kia and saw the driver was dead.

The defendants moved for a new trial based upon this

newly-discovered evidence, but the district court denied their

motions without conducting a hearing. United States v.

Slough, 144 F. Supp. 3d 4, 5 (D.D.C. 2015). The defendants

now appeal, claiming the district court committed reversible

error by denying their motions for a new trial. Slatten argues

the VIS provides direct evidence of his innocence by

establishing that the person he was convicted of murdering was

alive after the shooting in Nisur Square began, thus disproving

the government’s theory of the case. Additionally, the other

defendants argue the VIS shows Monem committed perjury at

trial and that this new account refutes many facts vital to the

30

government’s case. Finally, all defendants argue the district

court reversibly erred by failing to hold a hearing to examine

Monem regarding the conflict his VIS created with his

testimony at trial.

B. Analysis

Trial courts have broad discretion when deciding whether

to grant a new trial based on newly-discovered evidence.

Thompson v. United States, 188 F.2d 652, 653 (D.C. Cir. 1951).

A district court’s denial of a new trial is reviewed for abuse of

discretion. United States v. Oruche, 484 F.3d 590, 595 (D.C.

Cir. 2007). In order to obtain a new trial because of newly-

discovered evidence, the party seeking a new trial must prove:

(1) the evidence was discovered after the trial; (2) the party

acted diligently in its attempts to procure the newly-discovered

evidence; (3) the evidence relied on is not “merely cumulative

or impeaching,” (4) the evidence is “material to the issues

involved” in the case and (5) the evidence is “of such nature

that in a new trial it would probably produce an acquittal.”

Thompson, 188 F.2d at 653. “[W]hen perjury by a prosecution

witness is discovered after trial and when the prosecution did

not know of the perjury until then,” a defendant is entitled to a

new trial only if he can prove he “would probably be acquitted

on retrial.” United States v. Williams, 233 F.3d 592, 594 (D.C.

Cir. 2000).

We begin by noting the unusual nature of the allegedly

exculpatory evidence upon which the defendants rely. In

homicide cases, victim impact statements are typically used

during the sentencing phase of a trial. They allow the

government to either offer a “quick glimpse” into a life taken

by the defendant or to “demonstrat[e] the loss to the victim’s

family and to society which has resulted from the defendant’s

homicide.” Payne v. Tennessee, 501 U.S. 808, 822 (1991).

31

Nothing in the record suggests the government intended to use

the VIS in this case as substantive evidence of guilt. See JA 637

(asking Monem to describe how the crime affected him); cf.

Payne, 501 U.S. at 856 (Stevens, J., dissenting) (stating victim

impact statements “shed[] no light on the defendant’s guilt or

moral culpability”). However, this is exactly the purpose for

which the defendants now seek to use Monem’s VIS.

Monem’s statements viewed in isolation could be seen as

puzzling if not contrary to his testimony at trial, as the

defendants suggest. Considered in context, however, as

responses to the specific questions posed by the government in

preparing for sentencing after the jury had returned its verdicts

finding the defendants guilty, his statements take on another

cast. Still, the Court is troubled by the government’s conduct

upon discovery of what might appear to contradict his trial

testimony. Instead of inviting defense counsel to participate in

the phone call with Monem or—at a minimum—recording the

phone conversation, the government conducted an ex parte

phone call and offered nothing but its own notes as evidence of

what was said during the call. Because the Court has no way

of verifying what was said, we do not believe the notes

constitute a repudiation of Monem’s contradictory statements.

However, even if we view the statements in the light most

favorable to the defendants and consider them to be an

admission of perjury and a recantation of Monem’s trial

testimony, we do not believe the district court abused its

discretion in declining to grant a new trial. In order to succeed

on their claims, the defendants must prove Monem’s VIS

would probably result in an acquittal at a new trial.

Thompson, 188 F.2d at 653. “This is a high bar to cross.”

United States v. Celis, 608 F.3d 818, 848 (D.C. Cir. 2010).

Here, even if Monem’s statements did constitute a recantation

of his trial testimony, we do not believe they meet this high bar.

32

This holds especially true for Liberty, Slough and Heard,

whose convictions regarding victims to the south, east, west

and north of Nisur Square did not depend on Monem’s

testimony regarding the first moments of the shooting attack.

Regarding Dr. Al-Khazali, the Kia passenger, other evidence

corroborated Monem’s testimony that the Kia was stopped

when the first shots were fired, and Officer Al-Hamidi testified

about his own efforts to stop the shooting independent of

Monem’s.

The only defendant with even a slight chance of a different

outcome based on Monem’s contradictory VIS statements was

Slatten. However, even if we were to assume that Monem

would reaffirm his VIS testimony, acquittal would still not be

likely due to the other record evidence that al-Rubia’y was

killed instantly. As discussed in more detail below, testimony

from Officer Al-Hamidi established that al-Rubia’y was shot

in the head, killing him instantly. Only then did the car begin

rolling forward unguided. Comparing this consistent

testimony from Officer Al-Hamidi with this new testimony

from Monem, which only came to light after he was prompted

to describe “feelings of anger, rage, blaming self, . . .

helplessness, [and] vulnerability” resulting from the Nisur

Square shootings, JA 4032, there is little reason to believe the

outcome of the case would have been any different. Thus, it

was hardly an abuse of discretion for the district court to refuse

to grant a new trial based on evidence unlikely to produce a

different outcome.

Furthermore, the district court did not abuse its discretion

in declining to hold an evidentiary hearing regarding Monem’s

VIS. This Court gives a trial judge “broad discretion in ruling

on a motion for a new trial, both in his actual decision and in

what he considers before making that decision.” Lam Kwong-

Wah, 924 F.2d at 308. “A motion for a new trial can ordinarily

33

be decided . . . without an evidentiary hearing, and a district

court’s decision not to hold such a hearing may be reversed

only for abuse of discretion.” United States v. Kelly, 790 F.2d

130, 134 (D.C. Cir. 1986); see also United States v. Kearney,

682 F.2d 214, 219 (D.C. Cir. 1982) (noting the need for a

hearing is diminished “where the trial judge has had an

opportunity to observe the demeanor and weigh the credibility

of the witness at trial”). Here, the district court judge presided

over the entirety of this multiple-week trial and observed

Monem’s testimony when it was given. Also, Monem’s

testimony was subject to thorough cross-examination by

several defense attorneys and—unlike the VIS—was largely

corroborated by other evidence presented at trial. All of these

factors combined made the district court “well qualified to rule

on the motion for a new trial” based solely on the written

motions and the evidence submitted. Kearney, 682 F.2d at

220. While we agree with the defendants that a hearing would

have been helpful to clarify what Monem meant when he wrote

his VIS, we cannot say it was an abuse of discretion for the

district court to decide the motion without a hearing.

V. SUFFICIENCY OF THE EVIDENCE

Liberty and Slatten challenge the sufficiency of the

evidence supporting their convictions. The Court must affirm

if, Aafter viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.@

Jackson, 443 U.S. at 319. The jury is Aentitled to draw a vast

range of reasonable inferences from evidence, but may not base

a verdict on mere speculation.@ United States v. Harrison, 103

F.3d 986, 991 (D.C. Cir. 1997) (quoting United States v. Long,

905 F.2d 1572, 1576 (D.C. Cir. 1990)). Applying this Ahighly

deferential@ standard, United States v. Williams, 836 F.3d 1, 6

(D.C. Cir. 2016), the Court concludes that the evidence

34

supporting the convictions was sufficient, with the exception

of one of Liberty=s attempted manslaughter convictions.

A. Liberty

Liberty, the driver of the third vehicle in the four-vehicle

convoy of Blackwater guards, was convicted of eight counts of

voluntary manslaughter, twelve counts of attempted

manslaughter and a Section 924(c) weapons count. The jury

was also instructed, in view of the charges under 18 U.S.C. '

2, that it could convict on each of these counts if it determined

that Liberty aided and abetted their commission. Liberty

contends that there was insufficient evidence that he

unjustifiably fired his weapon at, or caused the death of, any

victim, or that he took some action to aid another defendant=s

unjustifiable shooting at any specific victim.

First, Raven 23 member Jeremy Krueger=s testimony

provided evidence from which the jury could find that Liberty

fired at the white Kia in which the passenger, Dr. Al-Khazali,

was killed. Krueger, who was in the vehicle in front of

Liberty=s, testified that each member of the Raven 23 team

had been assigned roles and that he was responsible for

securing one sector of Nisur Square. Krueger testified that he

saw shots fired at the Kia from the vehicle behind by Asomeone

sitting in the driver=s position, and [he] assumed it to be Mr.

Liberty, just based on [his] knowledge of [Liberty=s] position

that day, [of the team members=] assignments.@ 8/5/14 (PM)

Tr. 34:3-9. Although Krueger was not in a position to see the

shooter=s face, he inferred that the shooter was the driver

because the shooter was Asitting with his back against the

driver=s seat@ like a driver would ordinarily sit. 8/5/14 (PM) Tr.

91:10-12.

35

Liberty maintains that this evidence could just as plausibly

describe Jimmy Watson, the Raven 23 leader, who testified that

he leaned across Liberty=s body and shot into the Kia from the

passenger seat. This, however, ignores that Krueger testified

the shooter was sitting with his back Aup against the [driver=s]

seat,@ 8/5/15 (PM) Tr. 91:17-20, and that the shooter=s upper

body was above the steering wheel, not Atilting down or out@ of

the vehicle like someone who was leaning across the driver=s

body. Id. at 35:25-36:11. Watson also described Liberty as

having his back Aup against the seat.@ 7/28/14 (PM) Tr. 79:14-

15. Although Watson testified that Liberty did not shoot into

the Kia Aat that time,@ 7/28/14 (PM) Tr. 50:4-6, the jury could

have reasonably disbelieved him because Watson=s testimony

was inconsistent on other key points, such as whether Slatten

shot first, and what Liberty did when he exited the vehicle

during the tow hook-up. Compare, e.g., 7/28/14 (PM) Tr.

30:18-22, with id. at 30:23-31:20; id. at 95:12-16, with id. at

95:25-96:13. Further, even if the jury credited Watson=s

testimony on that point, it could reasonably have understood

his other testimony that, after the initial burst of shooting, he

told Liberty Ato open the door again and fire again,@ id. at

50:13-14, to show that Liberty had taken part in the second

burst of shooting at the Kia. Given the close proximity of the

convoy to the Kia, 7/1/14 (PM) Tr. 138:4, the jury could

reasonably find that Liberty=s shots hit Dr. Al-Khazali,

contributing to her death.

With regard to the victims shot to the south, Watson

testified that Liberty Awas engaging in the direction of the

south@ as the two of them fired simultaneously out of the

driver=s side door, which was oriented in that direction.

7/28/14 (PM) Tr. 61:18-62:7. Eddie Randall, another Raven

23 member, testified that he saw shots fired southward from the

same door, which, given Liberty=s driving assignment, he too

assumed were fired by Liberty. 8/11/14 (AM) Tr. 80:5-82:3.

36

There was also testimony from Jeremy Ridgeway that in the

immediate aftermath of the shootings in Nisur Square, Liberty

admitted that he had done Aanother Grey 55,@ which Ridgeway

explained meant firing blindly out of his porthole with his rifle

across his lap. 7/31/14 (AM) Tr. 44:3-9. Liberty maintains

nonetheless that the Grey 55 testimony did not establish

shooting Ain a particular direction at a particular time,@ Joint

Appellants’ Reply Br. 54, but because Liberty=s door faced

south until the convoy pulled away to leave the Square, the jury

could reasonably have found that the Grey 55 shots went south.

That said, evidence showing only that Liberty fired south

is not especially probative that he hit any particular victim

because there were multiple shooters, multiple victims in that

area and Amillions of square feet to the south.@ 7/29/14 (AM)

Tr. 31:21-22 (Watson). Even so, and even were the Court to

assume that the evidence already discussed was insufficient to

show Liberty was directly responsible for the victims to the

south, there was sufficient evidence to support Liberty=s

convictions under an aiding-and-abetting theory. See United

States v. Branch, 91 F.3d 699, 731-32 (5th Cir. 1996). To

establish aiding and abetting, the government had to prove,

beyond a reasonable doubt, that Liberty intentionally

Afacilitated any part . . . of [the] criminal venture,@ with enough

Aknowledge [of the crime to] enable[] him to make the relevant

legal (and indeed, moral) choice@ to opt out instead.

Rosemond v. United States, 134 S. Ct. 1240, 1246, 1249

(2014). Given the evidence before the jury, we Afind no

difficulty in holding that actively participating in a gunbattle in

which a gunman kills [multiple victims] can aid and abet that

killing@ even if the government cannot prove which gunman

killed which victim. Branch, 91 F.3d at 732. This is

especially true where, as here, the gunfire of each shooter

hindered potential escape, leaving victims exposed to the

others= bullets. Cf. Rosemond, 134 S. Ct. at 1247 n.6.

37

The evidence showed that with Slough, Ridgeway and

Heard firing to the south from their location and Watson and

Liberty firing south from inside their vehicle, victims in that

area had nowhere to turn in order to escape. Krueger, for

instance, described people running and Aone gentleman

particularly hiding behind a car and kind of frantically

wondering what to do and how to get away,@ as rounds

impacted the car and the ground around him. 8/5/14 (AM) Tr.

47:12-16. This unarmed man appeared to be Adeciding which

way to run, and he just didn=t know what the safe direction

was,@ before eventually falling as he tried to make a run for

safety. Id. at 48:18-49:18. Similarly, Raven 23 member

Matthew Murphy described a man near the white Kia that he

perceived to be shot while the man was Alooking around, . . .

trying to think about what he was going to do, you know, [how

to] get out of the way@ of the gunfire. 7/1/14 (AM) Tr. 11:2-

12:10. From this evidence, the jury could reasonably find that

Liberty=s southern shooting aided the gunmen who actually

inflicted the harm.

Liberty suggests that there is no evidence that he knew

what anyone other than Watson was doing, and therefore his

shooting could not have knowingly aided in the commission of

any crime with the requisite intent. To the extent he relies on

the fact that Watson was never charged as a co-defendant,

aiding-and-abetting liability can arise even when the principal

offense goes uncharged. United States v. Catalan-Roman,

585 F.3d 453, 473 (1st Cir. 2009). The jury could readily find

that Watson=s southern shooting was unjustified and thus

criminal—for instance, when Watson repeatedly shot at and

eventually hit a man running away from the convoy—and

further, that Liberty knew of the lack of justification and yet

continued to fire his weapon. Liberty=s failure to opt out

satisfies the mens rea element, which can arise during the

crime=s commission. Rosemond, 134 S. Ct. at 1249. Even

38

assuming that Liberty may not have been able to see Slough,

Ridgeway, or Heard, who were firing their weapons from

above Liberty, Watson testified he was aware that they were

firing their weapons, and the jury could have reasonably

imputed that same awareness to Liberty, who was sitting beside

Watson. A number of southern-facing Raven 23 members,

including Mark Mealy, who was the turret gunner in the lead

vehicle, testified to the lack of apparent justification for any

southern shooting from the convoy. E.g., 8/4/14 (PM) Tr.

91:18-21 (Ridgeway was unable Ato personally identify a

legitimate target@ as he fired south); 7/15/14 (PM) Tr. 113:16-

114:16 (Mealy Adidn=t see any reason@ for the shots fired at

people attempting to flee). Despite Liberty=s claim that Mealy

had a different vantage than Liberty, the jury could

reasonably find that Liberty, who was looking in the same

direction, continued to fire his gun despite the unjustified

shooting that was happening around him.

With regard to the two victims shot to the east of the Nisur

Square traffic circle, Mealy testified that an unidentified Raven

23 member fired east while the disabled convoy vehicle was

being hooked up for evacuation. Mealy saw an Iraqi man with

his hands in the air, saw the Raven 23 guard kneeling outside

his vehicle holding an M-4 rifle with an ACOG scope, and after

he heard two or three shots, Mealy saw the Iraqi man double

over with a stomach wound. Watson=s testimony placed Liberty

outside their vehicle during the tow hook-up, and although his

testimony about what Liberty was doing was inconsistent with

his statement to the grand jury that he did not know what

Liberty did, at trial he testified Liberty helped with the hook-

up. Two rifle magazines later found in Nisur Square bore

Liberty=s name and inasmuch the three other guards who were

outside during the hook-up testified that they did not fire their

weapons, the jury could reasonably infer that Liberty killed Ali

Hussein.

39

Liberty disputes the import of this evidence. First, he

maintains that the magazines prove only that he fired his

weapon that day, something he does not deny. The jury,

however, could have reasonably viewed this evidence to show

that Liberty fired his weapon from outside the vehicle,

consistent with Mealy=s testimony. Watson did not recall

Liberty dropping a spent magazine while shooting inside the

vehicle, and it is unclear how else the magazines might have

ended up outside the vehicle. Second, Mealy testified that

whoever shot Hussein used an ACOG scope. That Liberty had

been issued an EOTech scope undercuts the inference that

Liberty killed Hussein, but it does nothing to preclude it; the

jury heard testimony that swapping scopes Awould [not] be that

hard,@ 7/28/14 (PM) Tr. 97:20-21, and that over time one guard

went from using an EOTech to an ACOG and then back again.

Third, Liberty further points out that Mealy described the

victim as wearing blue, traditional garb, and no victim matched

that description. There was, however, testimony that Hussein

was shot in the stomach, which is consistent with Mealy=s

testimony. Fourth, Liberty maintains that six Raven 23

members testified that no shots were fired during the tow hook-

up. This overstates the testimony to a degree, because Frost,

Krueger and Rhodes testified that they did not recall or

perceive any shots being fired during the hook-up, while

Murphy and Ridgeway testified only that no incoming shots

(i.e., shooting at the convoy) were fired. Even so, the jury was

entitled to credit Mealy=s specific recollection over that of the

others. Jackson, 443 U.S. at 319.

In sum, although Liberty may have poked holes in some of

the evidence against him, this Court does not review the jury=s

verdict de novo. See id. Given Mealy=s testimony and the

spent magazines found outside the vehicle, Liberty has not

shown that no reasonable factfinder could find him guilty of

Hussein=s death. The jury could reasonably have credited

40

Mealy=s testimony and evidence that only Liberty fired his

weapon during the hook-up efforts. On the other hand, the

government has pointed to no evidence linking Liberty to the

attempted manslaughter of Mahdi Al-Faraji, who was also shot

to the east of Nisur Square. Mealy testified only to seeing the

Blackwater guard taking Atwo or three shots@ to the east, hitting

a single victim. 7/15/14 (PM) Tr. 120:1-121:11. An

inference that one of those shots also hit a second victim would

be based on mere speculation, Harrison, 103 F.3d at 991, and

consequently that count of attempted manslaughter must be

vacated for insufficient evidence.

B. Slatten

Slatten was convicted of first-degree murder in the death

of Ahmed Al-Rubia=y, the driver of the white Kia. At the time

of the shooting, Slatten was laying across a bench in the back

of the third vehicle, aiming his weapon south out of a driver=s

side porthole. The government=s theory was that while traffic

was at a standstill waiting for the Blackwater convoy to exit the

Square, Slatten fired two shots from a sniper rifle into the Kia

windshield, killing Al-Rubia=y instantly and setting into motion

the day=s horrific events. See, e.g., 6/17/14 (PM) Tr. 7:16-9:19.

Slatten maintains there is insufficient evidence to support that

theory and that testimony from two government witnesses

disproves it.

The jury heard testimony that at the outset, while all traffic

was stopped in Nisur Square, there were two distinct pops, after

which the Kia started to roll slowly and a woman began to

scream. Officer Al-Hamidi testified that he approached the

car to see that Al-Rubia=y=s Awhole face was full of blood,@ that

the woman in the passenger seat was holding him and

screaming AMy son, my son,@ and then the car Astarted moving

slowly because the young man was killed, and he did not have

41

control of the car.@ 7/2/14 (AM) Tr. 92:11-93:10. Officer

Monem similarly testified that, on his approach, he saw that Al-

Rubia=y had been shot in the middle of his forehead, while a

nearby witness saw a hole in the blood-splattered driver=s side

windshield. From this, the jury could reasonably conclude

that the first shots were fatal, and Slatten does not dispute this

point.

The jury also heard testimony from Jimmy Watson, who

was in the front passenger seat of Slatten=s vehicle. Although

unable to recall at trial, Watson had testified before the grand

jury to his fairly strong recollection that Slatten fired twice and

then the gunners began shooting, and this testimony was

admitted into evidence at trial. Watson described Slatten=s

first shots as Avery rhythmic . . . retort then retort,@ 7/28/14

(PM) Tr. 34:14-15, consistent with others= descriptions of the

fatal shots as Atwo pops,@ e.g., 7/14/14 (PM) Tr. 76:2-3.

Watson could not see Slatten=s target, but testified that Slatten

was aimed generally south, which was Athe direction . . . where

the [Kia] was,@ 7/28/14 (PM) Tr. 38:25-39:2. Similarly, Eddie

Randall testified that he heard the first shots come from in front

of him, where Slatten=s vehicle was positioned. Slough was in

Slatten=s vehicle, and on direct examination Randall testified

that nothing he saw in Slough=s appearance indicated to him

that Slough had taken the shots.

The jury heard further testimony that Slatten was Raven

23's best marksman, who carried a sniper rifle that had been

modified to be on a hair trigger, and that Slatten was known for

his particular disdain for Iraqis, viewing himself as getting

payback for 9/11. Indeed, Jeremy Ridgeway testified that

Slatten later recounted shooting someone who was taking aim

at the convoy, with Slatten saying matter-of-factly that he

Apopped his grape@ and caused him to slump forward. 7/31/14

(AM) Tr. 49:5-16. From this evidence, a reasonable jury

42

could understand this to describe Al-Rubia=y, after being shot

in the middle of the forehead by Raven 23's best marksman.

Slatten=s bias against Iraqis, moreover, provided a basis for

finding that Slatten had fired first, in the absence of any

insurgent fire or other threat to the heavily armed convoy.

Witnesses testified that Slatten had previously engaged in a

pattern of preemptively shooting (or encouraging others to

preemptively shoot) at targets in order to draw fire from

potential adversaries. See United States v. Long, 328 F.3d

655, 661 (D.C. Cir. 2003).

Slatten, like Liberty, pokes some holes in the government=s

theory but does not overcome the jury=s reasonable

determination of guilt in light of the evidence before it. He

makes much of the fact that Ridgeway testified that Slatten

confessed to killing an active shooter who slumped forward

when shot, while Al-Rubia=y was an unarmed driver who,

according to Officer Monem, slumped to the side. The jury

could reasonably find that Slatten=s Aactive shooter@ claim to

Ridgeway was self-serving and therefore not trustworthy. See

Williamson v. United States, 512 U.S. 597, 599-600 (1994).

As the district court found, the jury had Aample support in the

record to find that Slatten was lying or unreasonably mistaken@

about an active shooter. United States v. Slough, 144 F. Supp.

3d 4, 13 (D.D.C. 2015). Aside from two witnesses who

thought they heard shots from what sounded like an AK-47,

there was no evidence of any active shooters that day, let alone

a seated one. And as for Monem=s testimony that Al-Rubia=y

was slumped to the side, to the extent it conflicted with

Slatten=s recounting the jury was entitled to disregard such a

minor discrepancy. Given the lack of evidence that Slatten

fired any other shots that day, the jury could reasonably

understand his Apopped his grape@ comment to describe Al-

Rubia=y, who had been shot in the middle of his forehead.

43

With regard to Watson=s testimony, Slatten highlights the

equivocation at trial as to who shot first, Slatten or the gunners.

He also points out that Watson testified to hearing three AK-47

shots outside the convoy prior to Slatten firing, which Slatten

suggests shows that he was returning incoming fire rather than

firing at the Kia. Slatten=s attempt to revive the defendants=

discredited self-defense theory lacks merit—the jury

necessarily rejected it, and the district court noted that Ano

witness . . . ever testified that they ever saw [an insurgent=s]

weapon at the scene,@ 4/13/15 Tr. 152:6-8. In his reply brief,

Slatten suggests that the initial shots Watson heard might have

come from the gunners rather than insurgents, but Watson

testified that he first heard AK-47 rounds in the distance, at

which point either Slatten or the gunners began to fire. The

jury could reasonably conclude that, despite his equivocation,

Watson=s testimony supported the government=s theory that

Slatten fired first, and also, in light of the overwhelming

evidence to the contrary, that there was no incoming fire

directed at the convoy.

Slatten points out that Jeremy Krueger testified hearing

5.56 caliber rounds as the first shots fired, which Krueger

claimed he could distinguish from the sound of 7.62 caliber

rounds, the caliber that Slatten=s sniper rifle would have fired.

This testimony is probative, but not forcefully so in view of

Krueger=s acknowledgment that his hearing was limited by

noise-reducing ear protection and being inside of a different

vehicle than the shooter. Still, it was for the jury to resolve the

credibility of Krueger=s testimony that depending on the

situation and circumstances, he Astill [thought he] could@

distinguish caliber rounds even when inside another vehicle

and while wearing ear protection. 8/5/14 (AM) Tr. 21:22-

22:2.

44

Slatten=s strongest counterevidence comes from Officers

Monem and Al-Hamidi, who testified that the first shots came

from the gunners. Al-Hamidi was A100 percent certain@ that

the first shots came from a gunner on top of a vehicle, 7/2/14

(PM) Tr. 35:4-15, while Monem Adid not see the explosion

from the mouth of [a gunner’s] rifle, but it was so close@ that

he could tell from the sound that it did. 6/23/14 (AM) Tr.

12:12-13. This testimony, however, does not Adisprove[]@ the

government=s theory of Slatten=s guilt. Slatten’s Br. 47. It

simply creates a dispute of fact, and it was the jury=s

responsibility to weigh the officers= conflicting testimony

against that of Watson to resolve the dispute. Jackson, 443

U.S. at 319. That a different jury might have resolved the

conflict differently is not tantamount to showing that no

reasonable fact-finder could conclude that Slatten shot first.

See id. Without any other plausible target for Slatten=s first

shots, and given the proximity of the Kia, it would have been

reasonable for the jury to find that Slatten killed Al-Rubia=y.

VI. VINDICTIVE PROSECUTION

Slatten further contends that his re-indictment for first-

degree murder, after he successfully challenged his previous

indictment for manslaughter, attempted manslaughter and

weapons charges, constituted vindictive prosecution. Our

review of the district court=s contrary finding is for clear error.

United States v. Safavian, 649 F.3d 688, 692 (D.C. Cir. 2011).

A. Background

In December 2008, Slatten was indicted jointly with his

co-defendants for identical counts of manslaughter, attempted

manslaughter and weapons charges. When the government

later concluded that Atainted@ testimony against Slatten had

been presented to the grand jury, see generally Kastigar v.

45

United States, 406 U.S. 441 (1972), it moved to voluntarily

dismiss the indictment as to Slatten. The district court granted

defendants= motion to dismiss the indictment as to all

defendants on related Kastigar grounds. United States v.

Slough, 677 F. Supp. 2d 112, 166 & n.67 (D.D.C. 2009). On

appeal, this Court reversed and remanded the dismissal as to all

defendants except Slatten, concluding that the district court had

already granted the government=s motion to dismiss and Ataken

Slatten out of the case for now.@ Slough, 641 F.3d at 547.

Two years later, the government secured a superseding

indictment charging Slatten with the manslaughter of Al-

Rubia=y, and jointly charging all defendants with various other

manslaughter, attempted manslaughter and weapons counts.

Slatten moved to dismiss the charges as time-barred because

this Court=s earlier reversal of dismissal had not applied to him

and the limitations period had continued to run. The district

court denied his motion, and Slatten filed a petition for a writ

of mandamus. This Court granted the writ upon concluding

that its earlier reversal Aclearly applied@ only to Slatten=s co-

defendants. In re Slatten, No. 14-3007, at 1 (D.C. Cir. Apr. 7,

2014). It denied the government=s own petition for rehearing,

observing that the government=s concern about a miscarriage of

justice if its prosecution of Slatten were time-barred was

caused by the government=s Ainexplicable failure to [timely]

reindict Slatten.@ In re Slatten, No. 14-3007, at 2 (D.C. Cir.

Apr. 18, 2014). The government subsequently obtained an

indictment charging Slatten with first-degree murder in the

death of Al-Rubia=y, a charge not subject to the statute of

limitations. 18 U.S.C. '' 1111(b), 3281. The prosecutor

conveyed to Slatten=s counsel an offer to reduce the charge to

manslaughter if Slatten would waive any limitations defense,

explaining that the murder charge was the government=s only

remaining option for holding Slatten accountable.

46

Slatten moved to dismiss the first-degree murder charge

on due process grounds, arguing that the increased charge

constituted vindictive prosecution. The district court denied the

motion, finding that the facts did not raise a presumption of

vindictive prosecution. It found that Slatten exercised his rights

in a pre-trial context, in which courts are far more hesitant to

presume vindictiveness. It further found that the prosecutor=s

offer to reduce the charge was a permissible pre-trial

negotiation, akin to plea bargaining, and that no other facts

suggested that the government was improperly motivated.

Instead, the government simply sought to hold Slatten

accountable for a heinous crime it believed he committed. The

district court also rejected Slatten=s argument that the

government was required to provide a contemporaneous

explanation of its decision to increase the charge. United

States v. Slatten, 22 F. Supp. 3d 9, 12-16 (D.D.C. 2014).

B. Analysis

The Due Process Clause prohibits prosecutors from

Aupping the ante@ by filing increased charges in order to

retaliate against a defendant for exercising a legal right.

Blackledge v. Perry, 417 U.S. 21, 27-28 (1974). At the same

time, however, prosecutors have broad discretion to enforce the

law, and their decisions are presumed to be proper absent clear

evidence to the contrary. United States v. Armstrong, 517

U.S. 456, 464 (1996). Thus, to succeed on a claim of

vindictive prosecution, a defendant must establish that the

increased charge was Abrought solely to >penalize= [him] and

could not be justified as a proper exercise of prosecutorial

discretion.@ United States v. Goodwin, 457 U.S. 368, 380 n.12

(1982) (emphasis added). This can be accomplished in two

ways: through objective evidence showing actual

vindictiveness, or through evidence Aindicat[ing] a >realistic

likelihood of vindictiveness,=@ which gives rise to a

47

presumption that the government must then attempt to rebut.

United States v. Meyer, 810 F.2d 1242, 1245 (D.C. Cir. 1987)

(quoting Blackledge, 417 U.S. at 27). Slatten relies on the

latter, presumptive route.

In presumption cases, the Supreme Court has

distinguished between pre-trial and post-trial settings.

Goodwin, 457 U.S. at 381. In a pre-trial setting, Athe

prosecutor=s assessment of the proper extent of prosecution

may not have crystallized,@ so an increase in charges may be

the result of additional information or further consideration of

known information, rather than a vindictive motive. Id. The

routine exercise of many pre-trial rights also weakens any

inference of vindictiveness, i.e., that a prosecutor would

retaliate simply because a defendant sought a jury trial or

pleaded an affirmative defense. Id. On the other hand, a

post-trial increase in charges is unlikely to be based on new

information, and thus it is Amuch more likely to be improperly

motivated than is a pretrial decision.@ Id. For this reason, a

presumption of vindictiveness will Aautomatically@ arise

whenever charges are increased post-trial, but in the pre-trial

context, a defendant must provide additional facts sufficient to

show that Aall of the circumstances, when taken together,

support a realistic likelihood of vindictiveness.@ Meyer, 810

F.2d at 1245-46.

The parties dispute whether the first degree murder

indictment is properly characterized as occurring in a pre-trial

or post-trial setting. The government maintains that as a

factual matter the charging decision was unquestionably made

prior to Slatten=s trial, while Slatten maintains that it was more

akin to a post-trial decision because it followed a hotly

contested mandamus proceeding in which this Court chastised

the government for failing timely to reindict him. Slatten also

points out that this case was closely watched by U.S. and Iraqi

48

leaders, citing former Vice President Biden=s assurance to

former Iraqi President Talabani that the earlier Kastigar

dismissal would be appealed. Anthony Shadid, Biden Says

U.S. Will Appeal Blackwater Case Dismissal, N.Y. TIMES, Jan.

23, 2010. This Court has acknowledged that particularly in an

important, highly publicized case, a prosecutor Abeing but

human >may have a personal stake in [obtaining a] conviction

and a motivation to engage in self-vindication.=@ Safavian,

649 F.3d at 692 (quoting United States v. Stanfield, 360 F.3d

1346, 1362 (D.C. Cir. 2004)). Especially when compared to

the routine pretrial motions identified in Goodwin, 457 U.S. at

381, there can be little question that the extraordinary

mandamus grant here, followed by a rather sharply-worded

criticism in denying reconsideration, in a high-profile

prosecution with international ramifications no less, had far

greater potential to give rise to a vindictive motive. But these

unusual facts do not convert the pre-trial setting into a post-trial

one in which a presumption would automatically apply; rather

they constitute Aadditional facts@ that support the finding of a

presumption. Meyer, 810 F.2d at 1245B46.

Slatten=s other contentions, derived from the Court=s

analysis in Meyer, 810 F.2d at 1246B47, do not fare as well.

He maintains that he received disparate treatment from his co-

defendants, but he ignores that his co-defendants had no viable

limitations defense and were not similarly situated, as the

Meyer defendants were. See 810 F.2d at 1246. Next,

although the government had twice considered the facts and

twice charged manslaughter, Athe initial charges filed by a

prosecutor may not reflect the extent to which an individual is

legitimately subject to prosecution.@ Goodwin, 457 U.S. at

382. Here, the government=s decision in the superseding

indictment to charge Slatten alone in the death of Al-Rubia=y

indicates that it continued to develop facts after its initial

charging decision. But even where the government has full

49

knowledge of the facts, it can initially exercise its discretion to

bring lesser charges. E.g., United States v. Saltzman, 537 F.3d

353, 361 (5th Cir. 2008). Moreover, Slatten is incorrect that,

as in Meyer, A[t]he only relevant intervening event@ before the

charge increase was Slatten=s assertion of rights. Slatten’s Br.

21-22. Here, Slatten exercised his right to file a mandamus

petition and this Court granted it, nullifying the government=s

ability to proceed on the existing charges. Finally, the

government=s offer to charge manslaughter in exchange for

Slatten waiving his limitations defense was not improper. As

the district court found, Slatten was advised by competent

counsel and was free to accept or reject the government=s offer,

which was a permissible give-and-take. See Bordenkircher v.

Hayes, 434 U.S. 357, 363 (1978); see also Paradise v. CCI

Warden, 136 F.3d 331, 335 n.6 (2d Cir. 1998).

Still, although it is a close question, the unusual, high-

profile and potentially embarrassing context surrounding

Slatten=s mandamus petition could be viewed to Asupport a

realistic likelihood of prosecutorial vindictiveness.@ Meyer,

810 F.2d at 1246. In that situation, the burden would shift to

the government to provide any objective evidence showing a

non-retaliatory justification for the increased charge.

Safavian, 649 F.3d at 694. The government has met this

Aadmittedly minimal@ burden, id., pointing to this Court=s grant

of Slatten=s mandamus petition that left the government with

no alternative but to charge him with murder or else see Aa

heinous crime@ go unpunished. Appellee’s Br. 88 (quoting

Slatten, 22 F. Supp. 3d at 14). In closely analogous

circumstances, the Second Circuit found no vindictiveness

when a defendant successfully pursued a statute of limitations

defense in the state=s highest court, and the prosecution then

reindicted him for a capital charge not subject to any limitations

period. Paradise, 136 F.3d at 334, 336. As here, the capital

charge Awas simply the only charge available[] after the other

50

charges had been dismissed . . . as time barred,@ and the

government=s desire to see the crime punished Adoes not

amount to a constitutional violation.@ Id. at 336.

This does not mean, as amicus asserts, that prosecutors can

permissibly Aup the ante@ any time a defendant succeeds on

appeal. Amicus Br. 27. In many cases, the same charges will

remain available to the prosecution after a defendant=s

successful appeal, and any increase in the charges will still give

rise to the specter of vindictiveness. See Meyer, 810 F.2d at

1245B46. And even if the same charges are unavailable on

retrial, a defendant can still marshal any available evidence of

actual vindictiveness to show that the prosecution=s purported

desire to see the crime punished is mere pretext. Nor should

this result cause doubt about whether Slatten was punished for

exercising a legal right. Again, the Court relies little on the

government=s stated desire to see the crime punished, and

instead places dispositive weight on the intervening grant of

mandamus, as this Court has held that an adverse appellate

ruling can provide an objective basis for the prosecution=s new

charging decision. Safavian, 649 F.3d at 694. It is also

immaterial that the new charge was the result of the

prosecution=s initial mistake in allowing the limitations period

to run. See Paradise, 136 F.3d at 336 n.7. Slatten and amicus

urge that the government can only increase charges when,

Athrough no fault of its own,@ the government learns of new

information after the initial charging decision. United States

v. Jamison, 505 F.2d 407, 416B17 (D.C. Cir. 1974). But the

Supreme Court has rejected the Apresum[ption] that every

prosecutor is infallible.@ Goodwin, 457 U.S. at 382 n.14; see

also Paradise, 136 F.3d at 336 n.7. Finally, as the district

court ruled, the government was not required to state its

justification when it obtained the first-degree murder

indictment because Athe prosecutor is not required to sustain

any burden of justification@ until after the defendant comes

51

forward with evidence of vindictiveness. Goodwin, 457 U.S.

at 384 n.19.

With the presumption rebutted, Slatten=s vindictive

prosecution challenge fails because he does not offer any

evidence to support a finding of actual vindictiveness.

Safavian, 649 F.3d at 694. The district court reached the same

conclusion, albeit by considering the government=s objective

justification to rule out a presumption of vindictiveness at step

one, rather than to rebut it at step two. Otherwise, the substance

of its analysis is much the same as our own, and as such, we

hold that the district did not err, let alone clearly err, in rejecting

Slatten=s defense of prosecutorial vindictiveness.

VII. MOTION TO SEVER

We next turn to Slatten’s challenge to the district court’s

denial of his Rule 14 motion to sever his trial from that of a co-

defendant. Slatten argued for severance because he sought to

introduce exculpatory evidence—the co-defendant’s

admissions that he, not Slatten, initiated the Nisur Square

attack by firing on the white Kia—evidence inadmissible in a

joint trial with the co-defendant. See Kastigar v. United States,

406 U.S. 441, 458-61 (1972) (government cannot prosecute

declarant based on immunized statement). The district court

denied Slatten’s motion to sever, finding the co-defendant’s

admissions constituted inadmissible hearsay. We disagree.

Because the co-defendant’s admissions were vital to Slatten’s

defense and possessed sufficient circumstantial guarantees of

trustworthiness, we believe they were admissible under Federal

Rule of Evidence 807. Accordingly, because the district court

erroneously denied severance, we reverse Slatten’s first-degree

murder conviction—Count One of the superseding

indictment—and remand his case for a new trial.

52

A. Background

As we outlined earlier, Slatten’s first-degree murder

conviction arose from the killing of the driver of the white Kia.

As the Raven 23 convoy entered Nisur Square on September

16, 2007, shift leader Jimmy Watson gave the command to

“lock[] down” the area to aid the movement of other

Blackwater teams operating nearby. JA 1776, 1846-48, 1856-

57, 2351-52. With the help of Iraqi policemen, the Blackwater

convoy brought traffic in the Square to a halt, as was their usual

procedure. After the traffic stopped, shots rang out. The shots,

originating from the Raven 23 convoy, targeted and hit a white

Kia, shattering its windshield and striking its driver, Ahmed

Haithem Ahmed Al-Rubia’y, in the head. 6 General gunfire

then began as Raven 23 team members fired on Iraqi civilian

pedestrians in several directions in Nisur Square and the

surrounding area.

As noted, the government maintained that Slatten’s shot

was the match that ignited the Nisur Square firestorm—that

Slatten intentionally opened fire on the white Kia because of

an anti-Iraqi animus. See also Appellee’s Br. 103 (“The

evidence also showed that Slatten had both the intent and

6

On appeal, as at trial, the government has maintained that

“once Raven 23 was in the Square, ‘no car [was] moving.’”

Appellee’s Br. 12 (citing JA 1247-48). It argues that it was only after

Slatten, unprovoked, fired upon the white Kia that it “started to move

slowly forward” towards the convoy. Id. at 13. The defendants,

however, insist that the “white Kia sedan pulled out of a line of

stopped cars entering the circle from the south, and drove directly

towards the convoy.” Joint Appellants’ Br. 17. According to the

defense, it was only after the white Kia started moving that Slatten’s

co-defendant opened fire on the vehicle to stop its advance. Id. at 18-

19. We highlight this discrepancy to underscore the importance of

the co-defendant’s admissions to Slatten’s defense.

53

motive to open the firing in the Square. His hatred toward Iraqis

stood out, even among those who held such views.”). The

government insisted that the Nisur Square attack was part of

Slatten’s plan to “get[] payback for 9/11,” JA 2117, and the

white Kia presented him with the target for which he had been

waiting.

But in the hours and days following the Nisur Square

attack, it was another member of the Raven 23 team—a co-

defendant here—who said that he had fired the first shots at the

white Kia. SA 1, 4, 6-7. Just hours after the shooting, the co-

defendant was interviewed and debriefed by State Department

investigators operating in Baghdad. SA 1. Before his interview,

the investigators told the co-defendant that if he was “honest

and truthful, that nothing would be used against [him], and that

they were there to gather information not to be used in a

criminal setting.” SA 22. During his first debriefing, the co-

defendant told the investigators that he had “engaged and hit

the driver” of the white Kia sedan. SA 1. The investigators’

corresponding report states:

[T]he team came into and locked down the

circle. Traffic was very heavy, but responded to

their commands to stop. A white vehicle

approached the team at a high rate of speed and

would not stop despite [the co-defendant’s]

hand signals and throwing a water bottle. Other

civilians tried to waive the vehicle down, but it

still would not stop. [The co-defendant]

engaged and hit the driver.

SA 1. Two days later, on September 18, 2007, the co-defendant

signed a sworn written statement regarding the Nisur Square

attack. SA 3-5. As with his earlier statement, the co-

defendant’s September 18 statement was made with the

understanding that “neither [the co-defendant’s] statements nor

54

any information or evidence gained by reason of [his]

statements [could] be used against [him] in a criminal

proceeding, except that if [he] knowingly and willfully

provide[d] false statements or information, [he could] be

criminally prosecuted for that action under 18 United States

Code, Section 1001.” SA 3. In his second statement, the co-

defendant repeated his earlier statement:

As our motorcade pulled into the intersection I

noticed a white four door sedan driving directly

at our motorcade from the west bound lane. I

and others were yelling, and using hand signals

for the car to stop and the driver looked directly

at me and kept moving toward our motorcade.

Fearing for my life and the lives of my

teammates, I engaged the driver and stopped the

threat.

SA 4. On September 20, 2007, the co-defendant again spoke to

State Department investigators and with the same limited use

condition as obtained in his first two interviews. SA 6-7; 22-

23. The investigators’ report recounted the co-defendant’s

statement made at that time:

On the day of the incident . . . [the co-defendant]

was positioned just west of the police booth that

is located near the north end of the median south

of the Circle. A white car was moving north on

Jinub Street toward the motorcade, and [the co-

defendant] gave commands for the driver to

stop. The car did not stop, and [he] engaged it

with his M4. [The co-defendant] is not sure

whether he was the first one to fire during this

incident. He is not aware of any shots being

fired before his. The car kept moving straight

toward the motorcade without braking. [The co-

55

defendant] used one magazine of M4

ammunition to engage the white car.

SA 6-7.

Taken together, then, the co-defendant’s statements relate

a different version of the Nisur Square events from that

presented by the government at trial. The government’s case

against Slatten hinged on his having fired the first shots, his

animosity toward the Iraqis having led him to target the white

Kia unprovoked. See supra 40-44. The co-defendant’s

statements, however, strike at the heart of that theory and

instead point to the co-defendant, not Slatten, as the Blackwater

convoy member who first “engaged and hit the driver” of the

white Kia. SA 1.

At Slatten’s arraignment, the district court granted the

government’s motion to join Slatten’s trial with that of Liberty,

Heard and Slough. JA 388-91. Slatten asked the district court

to reconsider joinder on two grounds, insisting, first, that,

because of his need for a co-defendant’s testimony, severance

was essential so that the co-defendant could be called as a

witness for Slatten at the latter’s separate trial. See SA 42-43.

Further, if, in a joint trial, the co-defendant statements were

deemed admissible as exculpatory evidence as to Slatten, then

severance was appropriate to protect the co-defendant’s Fifth

Amendment right. SA 43.

The district court rejected both rationales and denied the

motion to sever. Regarding Slatten’s first argument, the district

court concluded that Slatten had failed to show a “reasonable

probability” that the co-defendant would be willing to testify at

a separate trial, as required by United States v. Ford, 870 F.2d

729, 731 (D.C. Cir. 1989) (when weighing appropriateness of

severance based on alleged need for co-defendant’s testimony,

court should consider, inter alia, “the likelihood that the co-

56

defendant will testify if the cases are severed”). SA 42-43. The

district court further found no constitutional problem in joining

Slatten’s and his co-defendant’s trials because the latter’s

“statements [were] . . . inadmissible hearsay.” SA 43. Slatten

challenges only the second ruling on appeal. See Slatten’s Br.

36-46.

B. Hearsay and Its Exceptions

Hearsay is an out-of-court statement that is inadmissible at

trial to establish the truth thereof. See FED. R. EVID. 801(c)

(defining hearsay); FED. R. EVID. 802 (hearsay generally

inadmissible). The hearsay rule is rooted in the belief that an

out-of-court statement lacks necessary assurances of veracity.

See Williamson v. United States, 512 U.S. 594, 598 (1994)

(“The hearsay rule . . . is premised on the theory that out-of-

court statements are subject to particular hazards.”). With any

statement, a “declarant might be lying; he might have

misperceived the events which he relates; he might have faulty

memory; [or] his words might be misunderstood or taken out

of context by the listener.” Id. To avoid these shortcomings,

our judicial system chooses in-court statements that can be

tested by “the oath, the witness’ awareness of the gravity of the

proceedings, the jury’s ability to observe the witness’

demeanor, and, most importantly, the right of the opponent to

cross-examine.” Id. Admitting hearsay would prevent

opposing parties, and our judicial system as a whole, from

using these checks. United States v. Evans, 216 F.3d 80, 85

(D.C. Cir. 2000) (“The problem with hearsay is that it deprives

the defendant of the opportunity to cross-examine the person

who uttered the statement at issue.”).

“Nonetheless, the Federal Rules of Evidence also

recognize that some kinds of out-of-court statements are less

subject to these hearsay dangers, and therefore except them

from the general rule that hearsay is inadmissible.” Williamson,

57

512 U.S. at 598. The enumerated exceptions apply to hearsay

that possesses certain guarantees of trustworthiness. See FED.

R. EVID. 803-04 (enumerating exceptions and exclusions to

hearsay rule).

On appeal, Slatten does not argue his co-defendant’s

statements fall outside the definition of hearsay. See FED. R.

EVID. 801(c). Indeed, he could not succeed if he did so argue—

Slatten acknowledges that he seeks to use his co-defendant’s

out-of-court statements to establish the truth thereof, that is,

that his co-defendant fired the first shots at the white Kia. See

Slatten’s Br. 36. Slatten does, however, challenge the district

court’s conclusions that his co-defendant’s statements do not

fit within any of three exceptions to the hearsay rule: 1) Rule

804(b)(3)’s statement against interest exception; 2) Rule

803(6)’s business record exception; and 3) Rule 807’s residual

hearsay exception. 7 SA 43-45.

7

Neither the district court nor the parties on appeal distinguish

among the co-defendant’s three separate statements—the September

16 report, the September 18 statement and the September 20 report—

for the hearsay analysis. See supra 53-55. This approach likely

reflects the fact that the content of the three statements is largely

overlapping. See SA 1, 4, 6-7. Nevertheless, two of the reports—the

September 16 report and the September 20 report—contain hearsay

within hearsay. Id. at 1, 6-7. The September 18 statement was

completed by the co-defendant himself so that, to be admissible, only

one “link” in the hearsay chain need fall within an exception: the

incorporation of the co-defendant’s statements in the report. As set

forth infra, we believe the September 18 statement is admissible

under Rule 807’s residual hearsay exception. See infra Part VII.B.3.

The September 16 and September 20 reports, however, were

completed by investigators to whom the co-defendant made his

statements. Id. These two reports thus have an additional “link” in

the hearsay chain: the transmission of the co-defendant’s statements

to the investigators and the agents’ incorporation of the statements

58

1. Standard of Review

Ordinarily, the Court reviews the exclusion of a hearsay

statement under the abuse of discretion standard. United States

v. Moore, 651 F.3d 30, 83 (D.C. Cir. 2011) (per curiam).

Nevertheless, for Rule 807, we have enunciated a slightly

different standard; namely, we should be “particularly hesitant

to overturn a trial court’s admissibility ruling under the residual

hearsay exception absent a definite and firm conviction that the

court made a clear error of judgment in the conclusion it

reached based upon a weighing of the relevant factors.” United

States v. North, 910 F.2d 843, 909 (D.C. Cir. 1990) (internal

quotation marks omitted) (quoting Balogh’s of Coral Gables,

Inc. v. Getz, 798 F.2d 1356, 1358 (11th Cir. 1986) (en banc)).

into their reports. But “[h]earsay within hearsay is not excluded by

the rule against hearsay if each part of the combined statements

conforms with an exception to the rule.” FED. R. EVID. 805. We

believe the first instance of hearsay—the transmission of the co-

defendant’s statements to the investigators—falls within Rule 807’s

residual hearsay exception. See infra Part VII.B.3. And the second

hearsay—the investigators’ incorporation of the co-defendant’s

statements into their reports—falls within Rule 803(8)’s public

records exception, which makes admissible a public record’s “factual

findings from a legally authorized investigation” so long as they are

offered “against the government in a criminal case” and “the

opponent does not show that the source of information or other

circumstances indicate a lack of trustworthiness.” See FED. R. EVID.

803(8); United States v. Warren, 42 F.3d 647, 657 (D.C. Cir. 1994)

(“[Rule 803(8)] appears to provide for admission of police officers’

statements in public records even in the absence of a demonstration

that the statements reflected the officers’ personal knowledge.”);

accord Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169 (1988)

(taking “[a] broad approach to admissibility under [Rule 803(8)]”).

59

Because “the legislative history of [Rule 807] indicates

that it should be applied sparingly,” we believe it appropriate

to engage in a Rule 807 analysis only if it is apparent that no

other exception renders a hearsay statement admissible. See

SEC v. First City Fin. Corp., 890 F.2d 1215, 1225 (D.C. Cir.

1989); accord United States v. Kim, 595 F.2d 755, 759-66

(D.C. Cir. 1979) (analyzing admissibility of statement under

Rule 803(6) before residual hearsay exception analysis).

Therefore, before discussing the residual hearsay exception, we

briefly turn to Slatten’s arguments that his co-defendant’s

statements are admissible under Rule 804(b)(3) and Rule

803(6).

2. Rule 804(b)(3) and Rule 803(6)

Rule 804(b)(3) provides an exception to the hearsay rule

if: “(1) the declarant [is] unavailable, (2) the statement [is]

against the declarant’s interest, and (3) corroborating

circumstances clearly indicate the trustworthiness of the

statement.” Moore, 651 F.3d at 82 (internal quotation marks

omitted); see FED. R. EVID. 804(b)(3). Although we agree with

Slatten that, at their joint trial, his co-defendant qualified as “an

unavailable witness,” see United States v. Harris, 846 F. Supp.

121, 124 n.6 (D.D.C. 1994) (witness “on the advice of counsel,

invoked his Fifth Amendment privilege against self-

incrimination and did not testify at trial . . . [a]s a result, he

became an unavailable witness”), and that his co-defendant’s

statements do possess indicia of trustworthiness, 8 see infra at

Part VII.B.3, Slatten could not show that his co-defendant’s

statements were so inculpatory that a reasonable person in the

8

In this respect, we disagree with the district court’s statement

that “the unreliable context under which the statements were given

surely does not ‘indicate [the statement’s] trustworthiness.’” SA 44;

see infra at Part VII.B.3.

60

latter’s position would have made the statements only if he

believed them to be true; his co-defendant’s statements were

immunized and, as a general matter, a self-defense claim is not

“clearly” against a declarant’s interest, see United States v.

Henley, 766 F.3d 893, 915 (8th Cir. 2014) (affidavit of

unavailable declarant “was not clearly against his own interest

because in it he claims he shot [the victim] in self defense”);

United States v. Shryock, 342 F.3d 948, 981 (9th Cir. 2003)

(“The district court did not abuse its discretion by excluding [a

declarant’s] statement that he shot the victims in self-defense

because the statement was exculpatory, and not against his

penal interest.”). Accordingly, it was not an abuse of discretion

to conclude, as the district court did, that the co-defendant’s

statements did not fit within Rule 804(b)(3)’s exception. See

FED. R. EVID. 804(b)(3).

Rule 803(6) provides an exception to the hearsay rule for

records that are, inter alia, “kept in the course of a regularly

conducted activity of a business.” FED. R. EVID. 803(6). Rule

803(6) does not support the admissibility of the co-defendant’s

statements because he himself was not acting in the regular

course of business when he made his statements to State

Department investigators. 9 United States v. Warren, 42 F.3d

647, 656 (D.C. Cir. 1994) (Rule 803(6) “allows admission of

9

During the trial, the district court focused on the fifth element

of Rule 803(6)’s test, finding that the “source of the information . . .

indicate[s] a lack of trustworthiness” because “the natural tendency

of the target of an investigation who is furnishing a compelled

statement following a shooting incident would be to provide ‘self-

serving exculpatory statements.’” SA 45. We disagree with the

district court’s assessment of the trustworthiness of the “source of

the information.” See infra Part.VII.B.3. Nonetheless, we “may

affirm on grounds other than those presented and relied on below.”

United States v. Lawson, 410 F.3d 735, 740 n.4 (D.C. Cir. 2005).

61

statements in [police] reports only if they reflect the maker’s

personal knowledge, or if they were reported to the maker,

directly or through others, by one who is himself acting in the

regular course of business, and who has personal knowledge”

(emphasis added) (internal quotation marks omitted)). A

“witness’[s] description of [an incident], recorded by [a public

official] in his report, is not made in the regular course of the

witness’[s] business and does not deserve the presumption of

regularity accorded a business record.” United States v. Smith,

521 F.2d 957, 964 (D.C. Cir. 1975). Having rejected Rule

804(b)(3)’s and Rule 803(6)’s applicability, we turn to Rule

807.

3. Residual Hearsay Exception

Using the United States v. North standard of review, we

consider Slatten’s argument that his co-defendant’s statements

are admissible under Federal Rule of Evidence 807 (“Rule

807”)—the residual hearsay exception. Rule 807 makes

admissible a statement otherwise violative of the hearsay rule

if the statement meets five criteria. First, the statement must

have “equivalent circumstantial guarantees of trustworthiness”

comparable to those found in Rule 803’s and Rule 804’s

enumerated hearsay exceptions. FED R. EVID. 807(a)(1).

Second, it must be “offered as evidence of a material fact.” Id.

§ 807(a)(2). Third, the statement must be “more probative on

the point for which it is offered than any other evidence that the

proponent can obtain through reasonable efforts.” Id.

§ 807(a)(3). Fourth, “admitting it [must] . . . serve the purposes

of these rules and the interests of justice.” Id. § 807(a)(4). And

finally, the proponent of the statement must have given “an

adverse party reasonable notice of the intent to offer the

statement and its particulars, including the declarant’s name

and address, so that the party has a fair opportunity to meet it.”

Id. § 807(b).

62

The residual hearsay exception “was designed to

encourage the progressive growth and development of federal

evidentiary law by giving courts the flexibility to deal with new

evidentiary situations which may not be pigeon-holed

elsewhere.” United States v. Mathis, 559 F.2d 294, 299 (5th

Cir. 1977); see also Dallas Cty. v. Commercial Union Assoc.,

286 F.2d 388 (5th Cir. 1961). As the Federal Rules of Evidence

Advisory Committee noted, the enumerated hearsay exceptions

of Rules 803 and 804, “while they reflect the most typical and

well recognized exceptions to the hearsay rule, may not

encompass every situation in which the reliability and

appropriateness of a particular piece of hearsay evidence make

clear that it should be heard and considered by the trier of fact.”

FED. R. EVID. 803(24) (advisory committee’s note to 1974

enactment). 10

That said, we also recognize that the residual hearsay

exception is “extremely narrow and require[s] testimony to be

‘very important and very reliable.’” United States v.

Washington, 106 F.3d 983, 1001 (D.C. Cir. 1997) (per curiam)

(quoting Kim, 595 F.2d at 766); accord First City Fin. Corp.,

890 F.2d at 1225 (“[T]he legislative history of the [residual

hearsay] exception indicates that it should be applied

sparingly.”). Indeed, were Rule 807 to be liberally applied, the

exception might read out the rule. See Akrabawi v. Carnes Co.,

152 F.3d 688, 697 (7th Cir. 1998) (“We . . . narrowly constru[e]

the residual provision to prevent it from becoming the

10

As of 1997, Rule 807 is the successor provision to Rule

803(24) and Rule 804(b)(5). See FED. R. EVID. 807 (advisory

committee’s note to 1997 amendment) (“The contents of Rule

803(24) and Rule 804(b)(5) have been combined and transferred to

a new Rule 807. This was done to facilitate additions to Rules 803

and 804. No change in meaning is intended.”). Accordingly, our

precedent relating to the residual hearsay exceptions formerly set

forth in Rule 803(24) and Rule 804(b)(5) now applies to Rule 807.

63

exception that swallows the hearsay rule.”); Mathis, 559 F.2d

at 299 (“[T]ight reins must be held to insure that this provision

does not emasculate our well developed body of law and the

notions underlying our evidentiary rules.”). Thus, only in the

most “exceptional circumstances” does Rule 807 make

admissible a statement that does not fall within one of Rule

803’s or Rule 804’s enumerated hearsay exceptions. See Kim,

595 F.2d at 765-66; United States v. Phillips, 219 F.3d 404, 419

& n.23 (5th Cir. 2000) (“The [residual hearsay] exception is to

be used only rarely, in truly exceptional cases.” (internal

quotation marks omitted)).

We believe this case presents one of those exceptional

circumstances. Our analysis begins with Rule 807’s first

element—the requirement that the co-defendant’s statements

contain “equivalent circumstantial guarantees of

trustworthiness” to those ensured by the Rule 803 and Rule 804

hearsay exceptions. See FED R. EVID. 807(a)(1). In assessing

trustworthiness, we look to the “totality of circumstances . . .

that surround the making of the statement and that render the

declarant particularly worthy of belief”; and drawing parallels

from the enumerated hearsay exceptions, we must gauge

whether the declarant was “highly unlikely to lie.” Idaho v.

Wright, 497 U.S. 805, 819-20 (1990). As we have recognized

before, “in order to find [a] statement trustworthy, a court must

find that the declarant of the prior statement ‘was particularly

likely to be telling the truth when the statement was made.’”

Washington, 106 F.3d at 1002 (quoting United States v. Tome,

61 F.3d 1446, 1453 (10th Cir. 1995)); accord Rivers v. United

States, 777 F.3d 1306, 1314-15 (11th Cir. 2015) (“By requiring

hearsay admitted under the residual exception to have

circumstantial guarantees of trustworthiness that are like the

guarantees of the specific exceptions, Rule 807 is clearly

concerned, first and foremost, about whether the declarant

64

originally made the statements under circumstances that render

the statements more trustworthy.”).

Several of the circumstances surrounding the co-

defendant’s declarations indicate their reliability and manifest

that he was likely telling the truth at the time he made his

statements. See Washington, 106 F.3d at 1002. For one, during

his debriefing interviews with the State Department, the co-

defendant had “the incentive . . . to speak truthfully . . . .” See

United States v. Bailey, 581 F.2d 341, 349 (3d Cir. 1978)

(emphasis added). He was almost completely immunized when

he made his statements—he faced no criminal liability (absent

one exception discussed below) as a result of his providing the

investigators his account of the Nisur Square attack. See SA 1,

4, 6-7, 22-23. Immunity can indicate trustworthiness,

particularly if the immunized statements do not cast blame or

“divert attention” to another. See, e.g., Curro v. United States,

4 F.3d 436, 437 (6th Cir. 1993); see also United States v.

Henderson, 406 F. Supp. 417, 428 n.19 (D. Del. 1975) (“The

purpose of an immunity statute is to obtain truthful

information, most frequently regarding otherwise

undiscoverable offenses.”). But cf. United States v. Gomez–

Lemos, 939 F.2d 326, 333-34 (6th Cir. 1991) (expressing

skepticism that immunity makes trustworthy statement

“divert[ing] attention to another”). More importantly, the one

exception to the co-defendant’s immunity may have been an

even greater incentive encouraging his honesty; that is, he

faced criminal liability under 18 U.S.C. § 1001 if he made a

materially false statement to the investigators and he expressly

acknowledged that he could be so prosecuted. See SA 3 (“I

further understand . . . that if I knowingly and willfully provide

false statements or information, I may be criminally prosecuted

for that action under 18 United States Code, Section 1001.”);

SA 22-23 (co-defendant testified that his understanding was

that if he was “honest and truthful, that nothing would be used

65

against [him]. . . .” (emphasis added)). We have previously

concluded that the threat of 18 U.S.C. § 1001 liability bolsters

the trustworthiness of a declaration for the residual hearsay

exception. First City Fin. Corp., 890 F.2d at 1225 (affirming

district court’s application of residual hearsay exception where,

inter alia, statement was “subject to criminal prosecution under

18 U.S.C. § 1001”); see United States v. Int’l Bhd. of

Teamsters, Chauffeurs, Warehousemen & Helpers of Am.,

AFL-CIO, 964 F.2d 1308, 1312-13 (2d Cir. 1992) (hearsay

statement was reliable because, inter alia, declarants “faced

possible criminal sanctions for making false statements” under

18 U.S.C. § 1001).

Additional factors point to the trustworthiness of the co-

defendant’s statements. He “consistently reported the essential

details of [his] story . . . over the course of multiple

[interviews]” on September 16, see SA 1, September 18, see

SA 4, and September 20, see SA 6-7. See Al Alwi v. Obama,

653 F.3d 11, 19 (D.C. Cir. 2011). Consistency supports the

reliability of his multiple statements and, consequently, his

veracity. See United States v. Bumpass, 60 F.3d 1099, 1102

(4th Cir. 1995) (listing consistency of declarant’s statements as

a factor in assessing trustworthiness under Rule 804(b)(3)).

Other circuits have reached the same conclusion in applying

the Rule 807 exception. See United States v. Harrison, 296

F.3d 994, 1005 (10th Cir. 2002) (noting, in Rule 807 analysis,

“the consistency of the declarant’s statements” is “a factor that

we find particularly persuasive”).

The record also contains evidence “corroborating the

veracity of the statement[s].” See Rivers, 777 F.3d at 1315

(quoting Bailey, 581 F.2d at 349) (naming corroboration of

veracity of statements as factor to be considered in assessing

guarantee of truthfulness under Rule 807); United States v.

Hall, 165 F.3d 1095, 1110-11 (7th Cir. 1999) (in gauging

trustworthiness of statement under residual hearsay exception,

66

corroboration of declarant’s statement, inter alia, is

considered). Iraqi Police Officer Ali Ghalaf Salman Mansur

Al-Hamidi was “within feet” of the Blackwater convoy in

Nisur Square on the day of the attack. JA 1248. Al-Hamidi

testified that the Raven 23 team “started throwing bottles of

water” in order to stop traffic. JA 1247-48; accord SA 1 (co-

defendant stated that he had “throw[n] a water bottle” to stop

traffic). Additionally, Al-Hamidi agreed that, from his

proximity to the convoy, he was “100 percent certain” that a

man in the co-defendant’s precise position fired the first

shots. 11 JA 1270. Al-Hamidi’s partner, Sarhan Dheyab Abdul

Monem, also testified that, from his “very close” vantage point

“about three to four meters away from [the] armored cars,” he

also witnessed the first shots coming from the co-defendant’s

precise position and “not from the holes or the windows that

are in the [Raven 23] vehicles.” JA 797. Blackwater convoy

member Jeremy Krueger also provided corroboration,

testifying that the first shots he heard in Nisur Square sounded

like “5.56 rounds,” the co-defendant’s ammunition, not 7.62

rounds, Slatten’s ammunition. JA 2302-03. Collectively,

then, this evidence corroborates the co-defendant’s statements

that he “engaged and hit the driver,” of the white Kia, see SA

1, and was unaware “of any shots being fired before his,” see

SA 7.

We find that Rule 807’s remaining requirements are also

met; indeed, the government raises no dispute in this respect on

appeal. There is no doubt that Slatten seeks to offer his co-

defendant’s statements “as evidence of a material fact.” FED.

R. EVID. 807(a)(2). That is, Slatten seeks to introduce the

statements to bolster his defense that his co-defendant—not

he—fired the first shots at the white Kia. See Slatten’s Br. 42.

11

As noted earlier, Slatten sat inside the armored command

vehicle; his co-defendant did not. JA 3847.

67

After thorough review of the record, we are not aware of

evidence “more probative on the point for” which Slatten seeks

to admit his co-defendant’s statements. 12 See FED. R. EVID.

807(a)(3). The co-defendant’s statements contradict the core of

the homicide count against Slatten, charging him with

“willfully, deliberately, maliciously, and with premeditation

and malice aforethought, [unlawfully killing] the driver of a

white Kia sedan.” JA 383. Indeed, the co-defendant

acknowledged that he was “not aware of any shots being fired

before his,” SA 7, and that he “engaged the driver” to respond

to the active threat posed by the white Kia, SA 4. We also

believe that “admitting [the co-defendant’s statements]

serve[s] the purposes of [the federal evidentiary] rules and the

interests of justice.” FED. R. EVID. 807(a)(4). Allowing the jury

to weigh the statements—to determine their weight, if any, as

against the evidence incriminating Slatten—advances the

Federal Rules of Evidence’s goal of “ascertaining the truth and

securing a just determination.” Id. § 102. Finally, the record

demonstrates that Slatten gave the government “reasonable

notice of [his] intent to offer the statement[s].” Id. § 807(b).

In finding Rule 807’s residual hearsay exception

inapplicable to the co-defendant’s statements, the district court

relied on two points: 1) its determination that the statements

lacked “equivalent circumstantial guarantees of

trustworthiness” because the co-defendant “provided his

statements under the specter of dismissal from his position, or

even criminal penalty,” and 2) its belief that Slatten had no

additional guarantees of trustworthiness. SA 44. Regarding the

first point, the only criminal penalty that the co-defendant faced

was 18 U.S.C. § 1001 false statement liability, a factor that

weighs in favor (not against) the trustworthiness of the

12

It is an “uncontroversial observation that many confessions

are powerful evidence.” See Premo v. Moore, 562 U.S. 115, 130

(2011).

68

statements. See First City Fin. Corp., 890 F.2d at 1225

(application of residual hearsay exception appropriate where,

inter alia, statement was “subject to criminal prosecution under

18 U.S.C. § 1001”). Regarding the second, Slatten possessed

additional guarantees of the trustworthiness of his co-

defendant’s statements given their consistent repetition and

factual corroboration. See supra at 65-66.

In sum, we are left with a “definite and firm conviction”

that the district court clearly erred in excluding the co-

defendant’s statements as inadmissible hearsay. See North, 910

F.2d at 909; see also United States v. Sanchez-Lima, 161 F.3d

545, 547-48 (9th Cir. 1998) (reversing district court’s refusal

to admit statements under Rule 807 where, inter alia, the

statements in question were made “under oath and subject to

the penalty of perjury,” were made voluntarily, were based “on

facts within [the declarants’] own personal knowledge” and

“did not contradict any of their previous statements to

government agents and defense investigators”). Moreover,

because of the critical nature of the co-defendant’s statements,

we believe their exclusion had a “substantial and injurious

effect or influence in determining the jury’s verdict” and was

therefore not harmless error. See United States v. Mahdi, 598

F.3d 883, 892 (D.C. Cir. 2010) (“[E]rror is harmless unless it

has substantial and injurious effect or influence in determining

the jury’s verdict . . . .” (internal quotation marks omitted)).

Having found the co-defendant’s statements admissible, we

leave it to the “jury [to] . . . make the ultimate determination

concerning the truth of the statements” in light of all of the

evidence. United States v. Price, 134 F.3d 340, 348 (6th Cir.

1998).

In view of our conclusion that the co-defendant’s

statements were admissible, we return to Slatten’s motion to

sever his trial from that of the co-defendant. We review the

district court’s ruling on a motion to sever under the abuse of

69

discretion standard as Federal Rule of Criminal Procedure 14

“leaves the determination of risk of prejudice and any remedy

that may be necessary to the sound discretion of the district

courts.” Zafiro v. United States, 506 U.S. 534, 541 (1993). That

said, the district court recognized that the severance issue here

largely hinged on the admissibility of the co-defendant’s

statements; in fact, it expressly acknowledged the

government’s concession that “[i]f admissible, [the co-

defendant’s] Garrity statements would justify severance of

Slatten’s case from [the former’s] case in deference to [the co-

defendant’s] Fifth Amendment rights as enunciated in

Kastigar.” SA 43. There is no record indication that the

government has changed its position on this point.

The Supreme Court has instructed that “a district court

should grant a severance . . . if there is a serious risk that a joint

trial would compromise a specific trial right of one of the

defendants, or prevent the jury from making a reliable

judgment about guilt or innocence” such as when “essential

exculpatory evidence that would be available to a defendant

tried alone were unavailable in a joint trial.” Zafiro, 506 U.S.

at 539. Because joinder of Slatten’s and his co-defendant’s trial

rendered the latter’s otherwise admissible statements—

“essential exculpatory evidence,” id.—unavailable to Slatten,

it was an abuse of discretion to deny Slatten’s motion to sever.

Accordingly, we reverse Slatten’s conviction on Count One

(first-degree murder) and remand for a new trial thereon.

VIII. EIGHTH AMENDMENT

Slough, Liberty and Heard also claim the application of 18

U.S.C. § 924(c)’s mandatory 30-year sentence to their

convictions violates the Eighth Amendment’s prohibition

against cruel and unusual punishment. We review this

question de novo. United States v. Said, 798 F.3d 182, 196

70

(4th Cir. 2015); Pharaon v. Bd. of Governors of Fed. Reserve

Sys., 135 F.3d 148, 157 (D.C. Cir. 1998).

Under 18 U.S.C. § 924(c)(1)(B)(ii), anyone who uses a

machine gun or a destructive device during and in furtherance

of a crime of violence is subject to a mandatory sentence of no

less than thirty years. Here, the jury found defendants Slough

and Heard violated Section 924(c) by discharging machine

guns and destructive devices during the Nisur Square

shootings, and it found Liberty violated Section 924(c) by

discharging a machine gun during the same attack. In

response to these findings, Slough, Heard and Liberty were

each sentenced to imprisonment for thirty years for their

Section 924(c) conviction plus one day for their remaining

voluntary manslaughter and attempted voluntary manslaughter

convictions. They now challenge their sentences as being

cruel and unusual punishments because the sentences are

“unconstitutionally rigid and grossly disproportionate.” Joint

Appellants’ Br. 110. We conclude the mandatory 30-year

sentence imposed by Section 924(c) based solely on the type of

weapons Slough, Heard and Liberty used during the Nisur

Square shooting is grossly disproportionate to their culpability

for using government-issued weapons in a war zone. We

therefore also conclude these sentences violate the Eighth

Amendment and remand for resentencing.

A. Proportionality

The Eighth Amendment prohibits the infliction of “cruel

and unusual punishments.” U.S. CONST. amend. VIII.

Central to this prohibition is the requirement that the

punishment for crime “be graduated and proportioned to the

offense.” Graham v. Florida, 560 U.S. 48, 59 (2010).

However, this proportionality principle is narrow, and it only

forbids “extreme sentences that are grossly disproportionate to

71

the crime.” Harmelin v. Michigan, 501 U.S. 957, 1001 (1991)

(Kennedy, J., concurring in part and concurring in judgment).

There are two types of Eighth Amendment challenges to

sentences: 1) challenges to sentences as applied to an

individual defendant based on “all the circumstances in a

particular case” and 2) categorical challenges to sentences

imposed based on the nature of the offense or the

“characteristics of the offender.” See Graham, 560 U.S. at

59–61. Slough, Liberty and Heard assert their sentences are

disproportionate both as applied to their situations individually

and categorically to all defendants who have discharged

government-issued weapons in a war zone. We begin by

addressing the as-applied challenges.

When addressing an as-applied challenge, courts begin

“by comparing the gravity of the offense and the severity of the

sentence” based on “all of the circumstances of the case.” Id.

at 59, 60. When engaging in this comparison, courts are to

give “substantial deference to the broad authority that

legislatures necessarily possess in determining the types and

limits of punishments for crimes.” Solem v. Helm, 463 U.S.

277, 290 (1983). Also, the imposition of a severe mandatory

sentence does not in itself make a sentence unconstitutional.

See Harmelin, 501 U.S. 994 (“Severe, mandatory penalties

may be cruel, but they are not unusual in the constitutional

sense.”); see also id. at 1006–07 (Kennedy, J., concurring in

part and concurring in judgment) (“We have never invalidated

a penalty mandated by a legislature based only on the length of

sentence . . . .”). Thus, courts should be “reluctant to review

legislatively mandated terms of imprisonment,” and

“successful challenges to the proportionality of particular

sentences should be exceedingly rare.” Hutto v. Davis, 454

U.S. 370, 374 (1982) (per curiam). However, the unusual

circumstances of this case make it one of those “exceedingly

rare” instances.

72

We begin by evaluating the gravity of the defendants’

crime. When evaluating the severity of a crime, we consider

“the harm caused or threatened to the victim or society and the

culpability [and degree of involvement] of the [defendant].”

See Solem, 463 U.S. at 292. When examining a defendant’s

culpability, the Court may look to the defendant’s intent and

motive in committing the crime. See id. at 293. The Court

may also consider the defendant’s criminal history. See

Rummel v. Estelle, 445 U.S. 263, 276 (1980).

Here, we believe it is important to distinguish between the

predicate crimes of violence for which Slough, Heard and

Liberty were convicted and the conviction under Section

924(c) that carries with it a mandatory 30-year sentence. We

agree with the district court that the actions of these defendants,

which killed fourteen Iraqi civilians and injured seventeen

others, constitute very serious offenses. We also agree the use

of automatic weapons or explosives during a crime of violence

typically does increase the severity of that crime. Moreover,

under normal circumstances, we would be “reluctant to review

[Congress’s] legislatively mandated terms of imprisonment.”

Hutto, 454 U.S. at 374. However, we do not believe such

deference is owed when a statute’s application only

tangentially relates to Congress’s purpose for creating the

statute in the first place. See Gonzalez v. Duncan, 551 F.3d

875, 884–86 (9th Cir. 2008) (holding the application of a

statute to a defendant that was only tangentially related to the

legislature’s reason for creating the law undermined the gravity

of the offense).

The Supreme Court has described Section 924(c)’s basic

purpose as an effort to combat the “dangerous combination” of

“drugs and guns.” Smith v. United States, 508 U.S. 223, 240

(1993). For this reason, the text of the statute applies to any

73

person who “uses or carries a firearm” “during and in relation

to any crime of violence or drug trafficking crime.” 18 U.S.C.

§ 924(c)(1)(A). Furthermore, the Supreme Court has

recognized Section 924(c) was created “‘to persuade the man

who is tempted to commit a Federal felony to leave his gun at

home.’” Muscarello v. United States, 524 U.S. 125, 132

(1998) (quoting Representative Poff, the chief legislative

sponsor of Section 924(c)); see also Busic v. United States, 446

U.S. 398, 405 (1980) (describing Representative Poff’s

comments as “crucial material” in interpreting the purpose of

Section 924(c)). Thus, precedent clarifies Section 924(c)

applies against those who intentionally bring dangerous guns

with them to facilitate the commission of a crime.

None of these concerns are remotely implicated by this

case. On the day of the Nisur Square attack, Slough, Heard

and Liberty were providing diplomatic security for the

Department of State in Iraq. As part of their jobs, they were

required to carry the very weapons they have now been

sentenced to thirty years of imprisonment for using. While we

acknowledge some courts have held the text of 924(c) is broad

enough to allow the statute to be applied against individuals

using government-issued weapons while on duty, see, e.g.,

United States v. Ramos, 537 F.3d 439, 457 (5th Cir. 2008)

(upholding the application of Section 924(c) against Border

Patrol agents who shot a fleeing felon); see also S. Rep. No.

98-225, at 314 n.10 (1983), reprinted in 1984 U.S.C.C.A.N.

3182, 3,492 (stating that “persons who are licensed to carry

firearms and abuse that privilege by committing a crime with

the weapon, as in the extremely rare case of the armed police

officer who commits a crime, are as deserving of punishment

as a person whose possession of the gun violates a state or local

ordinance”), there is no evidence Congress intended for

Section 924(c) to be applied against those required to be armed

74

with dangerous guns who discharge their weapons in a war

zone.

When Congress amended Section 924(c) in 1984 so it

would also apply against those who were licensed to carry

firearms, compare 18 U.S.C. § 924(c) (1982), with Pub. L. No.

98-473, 98 Stat. 1837 (1984), MEJA did not exist. In fact,

Congress did not create MEJA until over a decade later in 2000.

See Pub. L. 106-523, 114 Stat. 2488 (2000). Because

Congress had not yet considered the extra-territorial

application of federal criminal law to employees of the Armed

Forces at all, Congress could not have possibly contemplated

applying Section 924(c) against private contractors providing

diplomatic security for a federal agency. Thus, combining the

public interests Section 924(c) was intended to advance with

the lack of evidence Congress ever intended the law to apply

against military employees in a war zone, we conclude this case

does not involve the usual legislative judgments on the severity

of a crime that would cause us to defer to Congress’s

determinations regarding the punishments for crimes.

This conclusion is further supported by the events

preceding the Nisur Square shootings. When the Raven 23

convoy arrived in Nisur Square on the day of the incident, it

was responding to the explosion of a car bomb near a U.S.

diplomat under its protection. Accordingly, this is not a case

where the defendants went out with the intention of committing

a crime and brought their weapons with them to assist them in

the commission of that crime. This is not even a case where

these three defendants acted recklessly by inserting themselves

into a dangerous situation in a place filled with innocent

bystanders. The decision to go to Nisur Square was made by

Watson, the Raven 23 shift leader, and once he decided to

ignore his orders and proceed to Nisur Square, they had no

choice but to follow their commander’s lead. Once they

75

arrived in Nisur Square, they found themselves in a crowded

environment, where the ability to differentiate between

civilians and enemies was significantly diminished. The

tragedy that unfolded shortly after their arrival in Nisur Square

owed more to panic and poor judgment than to any coordinated

plan to murder Iraqi civilians. While we agree the defendants

are responsible for their exaggerated response to perceived

threats, the crime’s severity and Defendant’s culpability flow

from the harm caused by their hypervigilance, not from the use

of weapons which would have been appropriate had they not

misperceived the threat.

The government argues Slough, Heard and Liberty could

have used less deadly weapons, such as pistols or the semi-

automatic setting on their rifles, in response to perceived

threats. But this argument mistakenly applies the “20/20

vision of hindsight,” an approach the Supreme Court has

explicitly rejected when evaluating a police officer’s use of

force. See Graham v. Connor, 490 U.S. 386, 396 (1989).

Instead, this Court applies an analysis that “‘allow[s] for the

fact that police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain and

rapidly evolving—about the amount of force that is necessary

in a particular situation.’” Robinson v. Pezzat, 818 F.3d 1, 8

(D.C. Cir. 2016) (quoting Connor, 490 U.S. at 396–97). If

courts are to give police officers this type of leeway in making

split-second judgments about which of their tools to use based

upon tense and uncertain situations, we must give an even

greater amount of latitude to decisions made by those

supporting our military overseas in a hostile environment.

Here, we believe it is imprudent to second-guess the

defendants’ choice of firearm in responding to what they

believed to be an approaching car bomb or enemy fire. We

emphasize they are still culpable for their decision to fire at all,

as encompassed by their manslaughter and attempted

76

manslaughter convictions, but the type of weapon used should

not be more determinative of their punishments than the death

and destruction that resulted from their decisions to fire.

We also find it highly significant that none of the

defendants sentenced under Section 924(c) have any prior

convictions. Although the government is free to impose

harsh, mandatory penalties for first-time offenders, see

Harmelin, 501 U.S. at 994–95, a regime of strict liability

resulting in draconian punishment is usually reserved for

hardened criminals. As the Supreme Court has noted,

recidivism is a legitimate consideration to support the

imposition of a more severe penalty. See Ewing v. California,

538 U.S. 11, 29 (2003) (“In weighing the gravity of [the

defendant’s] offense, we must place on the scales not only his

current felony, but also his . . . history”); Rummel, 445 U.S. at

276 (stating legislatures have a legitimate interest in dealing

more harshly with recidivists). In fact, in virtually every

instance where the Supreme Court has upheld the imposition

of a harsh sentence for a relatively minor nonviolent crime for

an as-applied challenge, it has done so in the context of a

recidivist criminal. 13 Here, none of these defendants have a

13

See Rummel, 445 U.S. at 284 (upholding a mandatory

sentence of life with the possibility of parole for obtaining $120.75

under false pretenses under Texas’s recidivist statute); Ewing, 538

U.S. at 30–31 (upholding a sentence of 25 years to life under

California’s “three strikes law” for the theft of golf clubs); Hutto, 454

U.S. at 370–74 (per curiam) (upholding a recidivist’s sentence of 40

years for possession with intent to distribute nine ounces of

marijuana); Lockyer v. Andrade, 538 U.S. 63, 73–77 (2003) (denying

habeas relief for a sentence of 50 years to life under California’s

“three strikes law” for the theft of $153.54 worth of videotapes); cf.

Solem, 463 U.S. at 296–97 (holding the existence of a criminal record

filled with “relatively minor” offenses weighs against a state

imposing a more severe penalty against a recidivist).

77

criminal record at all. The district court noted they were

“good young men who [had] never been in trouble.” JA 3330.

It also stated they had “served their country honorably in the

military and nothing in their backgrounds suggest[ed] that they

would have ever committed offenses such as these.” Ibid.

Based upon these observations and the distinctions made by the

Supreme Court, we hold the defendants’ clean criminal records

weigh against the imposition of a harsh, mandatory sentence.

Additionally, the imposition of a mandatory 30-year

sentence through Section 924(c) fails to truly account for the

culpability of Slough, Heard and Liberty individually.

Because these men were not convicted of the same counts, it

makes little sense for the sentences to be identical. See Koon

v. United States, 518 U.S. 81, 113 (1996) (stating a sentencing

judge must “consider every convicted person as an individual

and every case as a unique study in the human failings that

sometimes mitigate, sometimes magnify, the crime and the

punishment to ensue”). Thus, a more prudent way to sentence

would be to examine each defendant as an individual, taking

into account all of the aggravating and mitigating factors

typically considered by sentencing judges. See 18 U.S.C.

§ 3553. While it does appear the sentencing judge might have

been inclined to align sentences more closely to the

circumstances, his hands were tied by Section 924(c)’s

mandatory minimum. Thus, we do not know if he would have

imposed the same sentence on each of these three defendants

or if he would have allowed for the differing number of victims

and the presence of other mitigating factors, like the existence

of post-traumatic stress disorder at the time of the shootings, to

lead to a reduced sentence for some of them. Because the

mandatory sentence hindered the sentencing judge’s ability to

individually examine the severity of each defendant’s crime,

we find the one-size-fits-all nature of these sentences troubling.

78

Turning now to the severity of the sentence, we consider

the actual severity of the penalty, not the penalty’s name. In

the context of life sentences, the Supreme Court has

acknowledged there is an important distinction between a life

sentence with the possibility of parole and a life sentence

without the possibility of parole. See Rummel, 445 U.S. at

280–81; Solem, 463 U.S. at 297. Thus, we evaluate Slough,

Heard and Liberty’s sentences based upon the amount of time

they will actually spend in prison and the possibility of early

release.

Here, there is no doubt that a mandatory, 30-year sentence

is a severe sanction. United States v. Spencer, 25 F.3d 1105,

1110 (D.C. Cir. 1994) (“Thirty years’ imprisonment is, by

anyone’s lights, a severe sanction.”). With the exception of

the death penalty or a life sentence, a 30-year sentence is the

harshest mandatory sentence the federal criminal law can

impose on a first-time offender. The severity of these

sentences is amplified by the fact that there is no possibility of

parole in the federal system. See Pub. L. No. 98-473, 98 Stat.

1837 (1984). Even if we were to presume the defendants

would receive fifty-four days of good-time credit each year for

the duration of their incarceration, see 18 U.S.C. § 3624(b)(1),

the most their sentences could possibly be reduced is

approximately four years. Thus, even with the maximum

amount of good-time credit available, these sentences are

among the harshest in existence for first-time offenders.

Combining all of these considerations, we conclude

Slough, Heard and Liberty’s mandatory 30-year sentences

create the “rare case” that “leads to an inference of gross

disproportionality.” Graham, 560 U.S. at 60. We do not

believe their culpability in this case—based solely on using

weapons they were required to carry when performing

diplomatic security missions—is on par with the typical

79

culpability of defendants convicted under Section 924(c), and

we are troubled by the imposition of such a harsh mandatory

sentence without any individualized examination of each

defendant’s underlying crimes.

B. Comparable Sentences

Typically, once we have found an inference of gross

disproportionality, we would “compare the defendant’s

sentence with the sentences received by other offenders in the

same jurisdiction and with the sentences imposed for the same

crime in other jurisdictions.” Id. Here, such a comparison is

of little value because Section 924(c)’s penalty for using a

machine gun or explosive device is the same for all

defendants—thirty years’ imprisonment. This case also

presents a unique challenge for comparison purposes because

of its unusual facts. The parties have not identified a single

instance in which a defendant was convicted and sentenced

under Section 924(c) in a manner similar to this case.

Moreover, the closest this Court has come to locating a similar

situation is United States v. Drotleff, where two Department of

Defense contractors were convicted of a single count of

involuntary manslaughter for killing two civilians and

sentenced to 30 and 37 months of imprisonment. 497 F.

App’x 357, 358–59 (4th Cir. 2012) (per curiam); see also

United States v. Drotleff, No. 10cr00001-002, 2011 WL

2610190 (E.D. Va. June 21, 2011); United States v. Cannon,

No. 2:10cr00001-001, 2011 WL 2610188 (E.D. Va. June 30,

2011). The case is similar because—like the Nisur Square

attack—the shooting began when a vehicle began driving

towards the contractors in what they perceived to be a

threatening manner. Drotleff, 497 F. App’x at 358–59. Also

like this case, the government charged the contractors with

violating Section 924(c). United States v. Cannon, 711 F.

Supp. 2d 602, 603 (E.D. Va. 2010). However, the similarities

80

end there because the number of victims was substantially

lower and because the jury did not convict on the Section

924(c) counts. See Drotleff, 497 F. App'x at 359. Thus, it

appears this case presents a novel application of Section 924(c)

to government contractors in a war zone, and direct

comparisons to another case are therefore not possible.

Notwithstanding the uniqueness of this case, we find it

helpful to examine the other instances in which Section 924(c)

has been applied against people who were licensed to carry the

weapon that they were later convicted of carrying or using. In

doing so, the Court has located numerous instances in which

the government has applied Section 924(c) against law

enforcement personnel. The overwhelming majority of cases

in which the statute has been applied against those carrying

government-issued firearms have involved instances in which

the defendant made a conscious decision to commit a crime

outside the scope of their duties as police. See, e.g., United

States v. Washington, 106 F.3d 983, 1010 (D.C. Cir. 1997)

(applying Section 924(c) to police officers carrying

government-issued firearms while engaging in drug

trafficking); United States v. Guidry, 456 F.3d 493, 507–09

(5th Cir. 2006) (applying Section 924(c) against a police officer

who carried a government-issued firearm while committing

sexual assault). However, there are also instances where

Section 924(c) has applied against law enforcement officials

who commit a crime of violence while on duty. See Ramos,

537 F.3d at 457 (applying Section 924(c) against a police

officer who shot a felon without justification); United States v.

Williams, 343 F.3d 423, 429–34 (5th Cir. 2003) (affirming a

Section 924(c) conviction against an officer who shot a fleeing

suspect in the back after he had surrendered); United States v.

Winters, 105 F.3d 200, 202 (5th Cir. 1997) (affirming the

conviction of a prison guard convicted under Section 924(c) for

81

hitting a recaptured inmate in the back of the head with his

service revolver after the inmate had attempted to escape).

While the government urges us to treat this case identically

to the cases discussed above, this argument overlooks the

different environments in which domestic law enforcement and

private international security contractors live and the different

functions they serve. Law enforcement officers are a vital part

of any community. They live and work among the

community’s citizens and are tasked with performing a variety

of functions, including “reduc[ing] the opportunities for the

commission of some crimes . . . , aid[ing] individuals who are

in danger of physical harm, assist[ing] those who cannot care

for themselves, resolv[ing] conflict, creat[ing] and

maintain[ing] a feeling of security in the community, and

provid[ing] other services on an emergency basis.” 3 WAYNE

R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE

FOURTH AMENDMENT § 6.6 (5th ed. Oct. 2016). While they

may sometimes be called upon to use lethal force in the line of

duty, it is not a routine part of their job and is instead reserved

only for situations in which a suspect poses a substantial risk to

law enforcement personnel or the community. See Tennessee

v. Garner, 471 U.S. 1, 11 (1985) (stating law enforcement

officials must have “probable cause to believe that the suspect

poses a threat of serious physical harm, either to the officer or

to others” before using deadly force).

Conversely, private security contractors work in places

that are “extremely dangerous” because of “conflicts, wars,

political unrest, and . . . terrorist activity.” JA 3861.

Accordingly, they live and work in a hostile environment in a

war zone in which the enemy could strike at any moment.

Because of this ever-present danger, they are often required to

use lethal force. In fact, using lethal force to eliminate hostile

forces is a central component of assuring the safety of any

82

American personnel they are tasked with protecting. They are

issued powerful weapons to assist them in performing this task.

Thus, because these three defendants were living in a much

more dangerous environment and performing a substantially

different function than law enforcement officials, we find the

government’s attempts to analogize this case to other

applications of Section 924(c) to be unpersuasive.

Because comparisons to other applications of Section

924(c) are of little value, we now broaden our comparison to

encompass other types of crimes that bear similar types of

penalties. We are mindful of the fact that each crime is unique

and that it is difficult to quantify the harm done by a crime, but

the Supreme Court has recognized courts are competent to

make these kinds of determinations “on a relative scale.”

Solem, 463 U.S. at 292. In doing so, we consider factors

traditionally applied by courts, such as whether the crime

involves violence, the gravity of the harm caused by the crime

and the intent of the offender. See id. at 292–94. “If more

serious crimes are subject to the same penalty, or to less serious

penalties, that is some indication that the punishment at issue

may be excessive.” Id. at 291; see also Weems v. United

States, 217 U.S. 349, 380–81 (1910) (listing more severe

crimes subject to less serious penalties than the offense at

issue).

Here, Slough, Heard and Liberty each received a 30-year

sentence based on their use of government-issued weapons

during the Nisur Square attack. While their crimes obviously

did involve violence, we note the gravity of the harm done

would be essentially the same regardless of whether they used

an automatic rifle, a semi-automatic rifle, or a pistol.

Moreover, neither their conviction under Section 924(c) nor

their underlying crimes of violence were intentional. The

defendants used weapons their profession required them to

83

carry, and their convictions for voluntary manslaughter

involved extreme recklessness and gross misjudgments, not an

intention to kill innocent people.

Comparing their sentences to other federal crimes with

similar sentences for first-time offenders, we find it significant

that other crimes with comparable sentences involve the

intentional commission of serious crimes. For example, the

federal criminal code contains numerous 30-year sentences for

first-time offenses involving the intentional infliction of harm

to children. See, e.g., 18 U.S.C. § 2251A(a) (30-year sentence

for a parent or legal guardian who sells his child for the purpose

of sexual exploitation); id. § 2251A(b) (30-year sentence for

purchasing a child for the purpose of sexual exploitation); id.

§ 2241(c) (30-year sentence for engaging in a sexual act with a

child under the age of twelve); id. § 3559(f)(1) (30-year

sentence for murdering a child under eighteen). Likewise, a

person who causes or conspires to cause damage to or

destruction of a motor vehicle carrying high-level radioactive

waste or spent nuclear fuel with intent to endanger the safety

of others will receive an identical 30-year sentence. 18 U.S.C.

§ 33(b). Perhap

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