United States v. Slatten

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_______________________________________

)

UNITED STATES OF AMERICA )

)

v. )

) Criminal Case No. 14-107

NICHOLAS A. SLATTEN, )

)

Defendant. )

_______________________________________)

MEMORANDUM OPINION

I. Slatten’s Motion for Judgment of Acquittal ...................................................5

A. The record establishes Slatten committed each element

of first-degree murder. .................................................................................5

1. The record adequately establishes Slatten unlawfully killed

Al-Rubia’y. ......................................................................................7

2. The record establishes Slatten acted with malice

aforethought. ..................................................................................23

3. The record establishes Slatten acted with premeditation. ...............25

B. The jury’s verdict accords with the weight of the evidence. ......................28

C. Jurisdiction and venue are proper...............................................................29

II. Slatten’s Motion for a New Trial ..................................................................30

A. Matthew Murphy’s testimony does not require a new trial because

any error was harmless...............................................................................30

1. Rules 602 and 701 permit Murphy’s testimony..............................32

2.

...................................................................34

3. The government’s failure to stop Murphy from speculating

about whether Slatten used a suppressor was egregious but

harmless. ........................................................................................39

B. The government properly relied on Jimmy Watson’s testimony. ..............45

1. Johnson did not preclude Watson’s testimony. ..............................45

2. Any misuse of Watson’s grand jury testimony was harmless. .......49

C. Neither the government nor the Court prevented Slatten from

corroborating Paul Slough’s statements.....................................................53

D. The government did not mislead the jury regarding witness

availability..................................................................................................56

E. The government’s re-direct examination of Sarhan Moniem did not

mislead the jury. .........................................................................................60

F. No legal error resulted from Scott Patterson’s testimony. ..........................63

1. The government’s closing argument properly referenced

Patterson’s comparison of SR-25 and M-4 rounds. .......................64

2. Patterson properly testified about AK-47 impact marks on

steel armor. .....................................................................................65

G. The government properly presented evidence under Rule 404(b). ............68

1. The Court properly received evidence of Slatten’s contempt

for Iraqis, of his prior preemptive shootings, and of his

SR-25’s modified trigger mechanism. ...........................................69

2. The government accurately represented this evidence

during its summation......................................................................71

3. The Court properly instructed the jury about this evidence. ...........73

H. Slatten’s groundless witness tampering claim merits neither an

evidentiary hearing nor a new trial. ...........................................................75

I. The government’s garbled presumption-of-innocence argument did

not affect Slatten. .......................................................................................77

J. Slatten cannot cut the jury off from evidence necessary to

contextualize Slatten’s post-shooting conduct, Slough’s post-shooting

statements, and evidence suggesting mitigating circumstances. ...............80

K. To the extent the Court erroneously rebuked defense counsel, it was

harmless. ....................................................................................................83

L. To the extent the government’s summation hit below the belt, it was

harmless. ....................................................................................................87

M. The Court properly instructed the jury. .....................................................91

N. Slatten’s juror misconduct allegation does not justify an evidentiary

hearing........................................................................................................94

O. The government adequately disclosed classified information. ..................97

III. Conclusion .....................................................................................................98

The law seeks justice when soldiers attack civilians. On a snowy night in March 1770,

British soldiers occupying Boston fired on a crowd of American colonists, wounding six and

killing five—one as he ran away. Though King George III initially moved to pardon the soldiers,

the Crown-backed governor assured his outraged city “that a due inquiry [w]ould be made, and

2

justice done, so far as was in [his] power.” 1 “The law shall have its course,” he promised. 2 And

so it did. Undertaking what he would later describe as “one of the best Pieces of Service I ever

rendered my Country,” 3 future president John Adams persuaded a colonial jury to find the

hundreds-strong mob provoked the shooting by hurling ice and oyster shells at the soldiers, and

by bludgeoning them with cudgels. Though eight soldiers were charged with murder, the jury

acquitted six and convicted two others of the lesser charge of manslaughter. The latter group

included the young private who fired the first shot when a colonist’s thrown club knocked him to

the ground. 4

History will not be so kind to Nicholas Slatten. One of thousands of military contractors

the United States government retained to secure Baghdad in the wake of the Iraq War, Slatten

was part of an armored motorcade in a busy traffic circle known as Nisour Square when he shot

and killed Iraqi medical student Ahmed Haithem Ahmed Al-Rubia’y, prompting the rest of his

convoy to “indiscriminate[ly]” fire machine guns and launch grenades into the crowded

intersection. United States v. Slatten, 865 F.3d 767, 777-78 (D.C. Cir. 2017). Their twenty-

minute barrage of “death and destruction” killed fourteen civilians and wounded seventeen

others—many attempting to flee, and at least one with his hands up. Id. at 820. And unlike the

British soldiers two centuries and half-a-world apart, Slatten and his teammates shot without any

provocation.

1

Letter from Thomas Hutchinson to Lord Hillsborough (Mar. 1770), in 6 Proc. Mass. Hist. Soc’y 484, 484 (1863),

https://www.jstor.org/stable/25079299.

2

Bernard Bailyn, The Ordeal of Thomas Hutchinson 158 (1974).

3

2 Diary & Autobiography of John Adams 79 (L.H. Butterfield ed., 1961), available at https://

founders.archives.gov/documents/Adams/01-02-02-0003-0002-0002.

4

See generally William Emmons, The Trial of the British Soldiers (1824), https://lccn.loc.gov/08037489; Hiller B.

Zobel, The Boston Massacre (1970).

3

The grand jury invoked the Military Extraterritorial Jurisdiction Act, 18 U.S.C. §§ 3261–

3267 (MEJA), to indict Slatten for his role in this “human carnage.” Slatten, 865 F.3d at 824

(Rogers, J., concurring-in-part and dissenting-in-part). 5 After deliberating for eight weeks, a jury

found Slatten guilty of first-degree murder. But the Court of Appeals decided this Court should

have admitted another convoy member’s hearsay statements under the “extremely narrow” and

“truly exceptional” residual exception. Id. at 806-11 (majority opinion) (internal quotation marks

omitted). So although acknowledging “[w]hat happened in Nisour Square defie[d] civilized

description,” the panel vacated his conviction. See id. at 818-20.

The government retried Slatten in summer 2018. After seven weeks of trial and five

weeks of deliberations, the jury deadlocked and the Court declared a mistrial. But after a third

trial that fall, another jury returned a guilty verdict.

So all told, two different juries—twenty-four different people—considered weeks of

evidence and unanimously concluded Slatten committed first-degree murder. Nevertheless, he

now renews his motion for acquittal, adjudging the evidence insufficient and the verdict against

the weight of the evidence. He also moves for a new trial, citing dozens of purported trial errors.

5

This was the third indictment returned against Slatten for his role in the shooting. The government voluntarily

dismissed the first indictment (for manslaughter, attempted manslaughter, and weapons charges) without prejudice

after conceding the grand jury considered evidence stemming from a compelled statement Slatten gave to the State

Department two days after the incident in violation of Kastigar v. United States, 406 U.S. 441 (1972). See United

States v. Slough, 677 F. Supp. 2d 112, 115 n.2 (D.D.C. 2009), vacated, 641 F.3d 544 (D.C. Cir. 2011). A new

prosecutorial team convened a new grand jury, which returned a second indictment for manslaughter, attempted

manslaughter, and weapons charges. But because prosecutors had misinterpreted the Court of Appeals’s mandate in

an appeal stemming from the first prosecution (which included four other convoy members involved in the

shooting), they neglected to convene the new grand jury before the five-year statute of limitations for manslaughter

expired. So the Court of Appeals dismissed the second indictment as time-barred. See In re Slatten, No. 14-3007

(D.C. Cir. Apr. 7, 2014). Because the United States resolved to hold Slatten accountable for his conduct, and

because Slatten refused to waive his limitations defense, the government obtained this indictment for first-degree

murder, a charge without a limitations period. In a prior proceeding, the Court of Appeals confirmed the new

indictment did not amount to vindictive prosecution since no lesser charge was available and since there was no

evidence of actual vindictiveness. See Slatten, 865 F.3d at 798-801.

4

His motions raise many issues: some hard; others easy; a few already decided either by

this Court or by the Court of Appeals. And in the end, none justify relief. Accordingly, the Court

will deny Slatten’s motion for acquittal and his motion for a new trial.

I. Slatten’s Motion for Judgment of Acquittal

Slatten starts with the “daunting” task of “overturning a jury verdict for insufficient

evidence.” United States v. Teffera, 985 F.2d 1082, 1085 (D.C. Cir. 1993). But his attempt

misses the mark, since the record establishes Slatten committed each element of first-degree

murder beyond a reasonable doubt. Next, Slatten asks the Court to sit as a “thirteenth juror” and

nullify the verdict as a “serious miscarriage of justice.” Mot. J. Acquittal 1, 25, ECF No. 1217.

But Slatten fails to undermine the evidence proving he fired the initial—and fatal—shots.

Finally, Slatten challenges this Court’s jurisdiction and venue in the District of Columbia. But

the D.C. Circuit’s prior opinion forecloses his arguments. So the Court will deny his motion.

A. The record establishes Slatten committed each element of first-degree murder.

Slatten argues the government failed to present evidence sufficient to convict him. Yet a

defendant “challenging the sufficiency of the evidence on which he was convicted faces an uphill

struggle.” United States v. Salamanca, 900 F.2d 629, 635 (D.C. Cir. 1993). After all, “[a]lthough

a jury ‘may not base a verdict on mere speculation,’ it may permissibly draw a vast range of

inferences from evidence.” Id. (quoting United States v. Long, 905 F.2d 1572, 1576 (D.C. Cir.

1990)). Put differently, “the government’s evidence need not exclude all reasonable hypotheses

of innocence or lead inexorably to the conclusion that the defendant is guilty.” Teffera, 985 F.2d

at 1085.

A court cannot second-guess the jury’s discretion if the government introduced enough

admissible evidence—direct or circumstantial—on each element of the charged offense so that

5

“any rational trier of fact could have found” the element “beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979) (second emphasis added); see United States v. Foster, 783

F.2d 1087, 1088 (D.C. Cir. 1986) (noting courts must “draw[] no distinction between direct and

circumstantial evidence, and ‘giv[e] full play to the right of the jury to determine credibility,

weigh the evidence, and draw justifiable inferences of fact’” when assessing sufficiency

challenges (quoting United States v. Davis, 562 F.2d 681, 683 (D.C. Cir. 1977))); see also

Woodby v. INS, 385 U.S. 276, 282 (1966) (noting a reviewing “court in a criminal case ordinarily

does not ask itself whether it believes that the evidence at the trial established guilt beyond a

reasonable doubt” (emphasis added)).

First-degree murder, 18 U.S.C. § 1111, has three elements: First, an unlawful killing. A

killing is unlawful absent a justification like self-defense. Second, malice aforethought. Malice

aforethought means the defendant either intended to kill or consciously disregarded an extreme

risk of death or serious bodily injury. See United States v. Williams, 836 F.3d 1, 10 (D.C. Cir.

2016). Malice aforethought can be negated by a mitigating circumstance like a mistaken

apprehension of the need to use self-defense. Third, premeditation. Premeditation requires the

defendant to have deliberated—at least for a few seconds—before killing the victim. See

Hemphill v. United States, 402 F.2d 187, 189 (D.C. Cir. 1968). At trial, both malice aforethought

and premeditation can be proven through “[e]vidence of a similar act,” even if “neither criminal

nor unlawful,” as long as the act “show[s] a pattern of operation that would suggest intent.”

United States v. Long, 328 F.3d 655, 661 (D.C. Cir. 2003) (internal quotation marks omitted).

Slatten rehashes the trial record in search of reasonable doubt, focusing his efforts on the

first element: whether he killed Al-Rubia’y. Although arguments about conflicting evidence

technically sound in “evidentiary weight, not evidentiary sufficiency,” Tibbs v. Florida, 457 U.S.

6

31, 46 (1982), Slatten cherry-picks favorable pieces of evidence that, he argues, inevitably raise

reasonable doubt and render the verdict legally insufficient. But as this Section explains, they do

not. (And as Section I.B. explains, they don’t create a weight problem, either.) At bottom,

because a reasonable fact-finder could conclude beyond a reasonable doubt that Slatten

committed each element of first-degree murder, his sufficiency challenge fails.

1. The record adequately establishes Slatten unlawfully killed Al-Rubia’y.

Sufficient evidence shows Slatten killed Al-Rubia’y while laying prone inside his

armored vehicle and aiming his semi-automatic SR-25 sniper rifle through a six-inch porthole.

Once Slatten’s four-vehicle convoy arrived in Nisour Square, all other cars stopped—including

the white Kia driven by Al-Rubia’y with his mother in the passenger seat. 6 Several loud bangs

6

See 11/5/18 PM Tr. 625:20–626:6 (“The traffic was not moving at all, no movement at all, no activity in the

circle.”); 11/7/17 PM Tr. 1013:6-10 (“Q: Did you see any traffic moving into the Circle . . . ? A: I did not . . . .”);

11/13/18 PM Tr. 1277:4–1278:24 (“[T]here were no vehicles in motion at the time.”), 1282:6-24 (placing a woman

within the stopped Kia); 11/14/18 PM Tr. 1469:7-22 (“Q: . . . [D]id you succeed in your mission to lock down the

Circle? A: Yes, sir.”); 11/19/18 PM Tr. 2165:15–2166:15 (“Q: . . . You just stopped traffic? A: I stopped traffic.”);

11/29/18 PM Tr. 3105:10-16 (“When we first got in the traffic circle, everything was stopped . . . .”); 12/6/18 PM

Tr. 3873:13–3874:18 (“Q: . . . [I]n addition to yourself, did the cars around you also come to a stop? A: Yes, of

course.”).

7

rang out from Slatten’s vehicle, 7 and Al-Rubia’y’s mother screamed. 8 Rushing to the Kia,

multiple witnesses—including two Iraqi police officers—saw Al-Rubia’y had been shot in the

7

See 11/5/18 PM Tr. 624:22–625:19 (“I head one shot being fired. . . . [F]rom the sound of it, it was an American

[weapon].”); 11/7/18 PM Tr. 1017:4-23 (“Q: What was the first thing of significance that happened that day when

you were out in the Circle . . . ? A: I heard two loud pops. Q: How would you describe those pops? A: Like two loud

hollow popping sounds, like a firecracker in a 55-gallon drum or something like that. Q: Did you immediately

recognize where those were coming from? A: I recognized the general direction. . . . [Slatten’s] vehicle and all the

traffic that way. . . .”); 11/14/18 PM Tr. 1493:3-15 (“Nick Slatten yelled out contact, contact, and fired twice. But

the first one went off, and then right after the second shot, the turret guns opened up, all the turret guns. . . . [Slatten]

yells out contact. And then he fires, boom. It’s real loud, and then he fires again. I don’t see him, but I know that

he’s firing, you know. And then all the turret guns go off.”); 11/16/18 PM Tr. 1979:9–1981:24 (“Q: And when you

turn around, what happens? A: I immediately heard some gunfire. Q: What did they sound like? A: It was single

shots, one after the other. Q: Do you know how many? A: No. . . . Q: And how much time passed between you

stopping the cars, turning to see the vehicles, and then hearing the single shots? A: As soon as I stopped the traffic

and turned around and looked over at the vehicles of the convoy, I saw—and they had stopped, I heard them

shooting. I heard the shots, and I asked myself—I was very surprised. I said—I told myself, the traffic has stopped,

why are they firing? . . . I heard screaming behind me during the single rounds that were being fired. Q: Do you

recall how many single rounds you heard at the very beginning? A: I don’t know—I don’t know precisely, one to

ten. I think, you know, I cannot—one to ten. Q: One to ten? A: Maximum ten. I don’t know the number. Q: And

minimum one? A: It’s more than one. Q: Okay. Do you have a firm recollection, as you sit here today, how many

single shots you heard at first? A: I cannot really remember how many rounds they fired. I cannot keep track of

rounds being fired, count them while they’re being fired. It’s hard. But as I said, it’s ten or less.”); 11/19/18 PM Tr.

2166:16–2167:2519 (“Q: What’s the next thing that happened [after traffic stopped]? A: [Slatten’s] car started

throwing bottles of water and then shot three to four shots . . . . Q: . . . Tell us what you heard. A: I heard three to

four shots. . . . Q: What is your best recollection of where those sounds came from, the gunshots? A: From

[Slatten’s] car.”); 11/26/18 PM Tr. 2394:25–2396:6 (“Well, once we commandeered the circle . . . . I think the first

thing that happened significantly was I heard what I thought were some pen flares being fired from behind me, and I

remember looking over my shoulder [towards Slatten’s car] and not seeing any pen flares being fired.”); 11/29/18

PM Tr. 3114:12–3115:4 (“Q: . . . I just want to take you back just briefly to these initial shots. . . . Do you remember

how many? A: I just remember there being a couple, couple to a few. I couldn’t be exact. Q: And to be fair, your

testimony regarding one, two, or three changed a little bit over the 11 years? A: Probably. Q: But you remember a

couple to a few? A: I remember a couple to a few shots. In my recollection, it was a few shots. Q: And do you recall,

as you sit here today, whether those shots were what I will call automatic fire or single semiautomatic? A: They

weren’t an automatic-style fire. It was more like single shots and not a burst.”); 12/6/18 PM Tr. 3874:19-25 (“Q:

What was the first thing of significance that happened when you were stopped in the Circle? A: I heard shooting, a

shot, and after that, the screaming of a woman. And then I saw in my rearview mirror when I looked back, I saw a

kind of shock in my surroundings. Q: Just to be clear, you heard one shot at the beginning? A: Yes, a shot and a

scream of a lady.”).

8

See 11/5/18 PM Tr. 625:17–626:12 (“Q: Prior to hearing that shot from the American weapon, had you heard any

gunshot? A: No, that was the first shot. Q: What happened next? A: . . . I kept hearing that screaming woman. She

was screaming and using a term that only Arab women, Iraqi women use, which is [Arabic] when they ask for help. .

. . Q: Could you tell us where the screaming was coming from? A: From that white car.”); 11/13/18 PM Tr. 1277:4–

1278:2 (“[A]ll of a sudden, everything just became quiet. . . . [T]here were no vehicles in motion at the time. . . . So

it was like this silence, and then I heard a woman screaming. So when I heard the woman screaming, I looked, trying

to see what’s happening. So the screams were coming out of a white car that was—that had came to a complete

stop.”), 1278:22–1284:22 (“Q: So that you could see, no cars were moving at that point; correct? A: No, no vehicles,

complete stop. Q: Then what’s the first thing you actually hear? A: The woman screaming. Q: So you actually hear a

woman screaming? A: Yes. Q: That’s the first thing that happens after the silence and the traffic being stopped? A:

Yes. Q: How do you know it was a woman? A: From her voice . . . Q: Could you tell what kind of car it was? A: Kia

Credos. . . . Q: And the voice of the woman, do you know whether she was in the driver seat of the passenger seat, if

you know? A: I don’t know. Q: You just know she was inside of the car? A: Yes, inside the white car.”); 11/16/18

8

PM Tr. 1981:25–1984:23 (“Q: Okay. So after the single shots— A: I heard a scream behind me. It was coming from

one of the vehicles that was stopped behind me. . . . So I turned towards where the screaming was coming from. . . .

Q: Do you find out where that scream is coming from? A: Yes. It was coming from one of the cars . . . . Q: Describe

the car. A: It was a white Kia Credos. . . . And there was a woman inside of the car that was screaming. . . . Q: And

could you see the woman? A: Yes. Q: Where was she? A: She was in the seat next to the driver.”); 11/19/18 PM Tr.

2167:23–2176:15 (“Q: After you heard those gunshots, what’s the next thing you remember hearing? A: I heard a

woman screaming, My son, my son. I went toward them. I wanted to open the door of the car, and I saw the man. He

was bloodied, and the woman hanging to her car, holding her son and screaming, My son, my son. . . . Q: And do

you recall what the color of that car was? A: Yes . . . White Credos, Kia. Q: Do you recall which seat she was in? A:

Yes. . . . the passenger seat. . . . Q: Now, the woman who was screaming, My son, my son, did you see whether she

was touching him in any way, the driver? A: No, she was holding to him. . . . She was holding her son. She was

screaming, My son, my son. And she was crying and screaming, My son, my son. . . .”); 12/6/18 PM Tr. 3874:24–

3875:13 (“ It was a clear scream of her even chanting and yelling Dear Father, Dear Father, Dear Father, which is

something that is usually at a very catastrophic moment when someone hears of a death of someone close to them.

Usually when you hear that kind of screaming, that wording, it’s usually when something bad has happened.”).

9

head through the windshield. 9 Two convoy members identify Slatten as the initial shooter:

Jimmy Watson, 10 the team leader stationed inside Slatten’s vehicle, and Matthew Murphy, 11 a

9

See 11/5/18 PM Tr. 625:20–626:6 (“I saw a white car, and I heard the screaming of a woman, and I saw a hole in

the windshield of that car from the side of the driver, and the windshield was splattered with blood.”); 11/16/18 PM

Tr. 1983:9–1984:23 (“Q: And when you head toward the car, what do you see? A: So I found that there was

someone injured, and I can see a hole in the front windshield, and there was a lady next to the driver, and she was

screaming. Q: Of the two individuals in the car that you saw, which person was injured? A: The driver. Q: How was

he injured? A: It was an injury in his forehead. Q: Can you point to where? . . . May the record reflect the

forehead—in the middle of the forehead an inch above the eyebrows . . . . Q: What did it look like, the actual injury?

A: It was a hole, and there was blood. Q: Where was the blood flowing? A: It was coming out of the hole. . . . Q:

Where was the hole in the windshield in comparison to the driver? A: Right in front of the driver.”); 11/19/18 PM

Tr. 2168:22–2170:17 (Q: [T]ell us your observations regarding the person in the driver’s seat. What did you see? A:

Three to four shots, and then I saw he was bloodied on the face. Q: Okay. Just so we’re clear, you say three to four

shots. What are you referring to? A: I’m talking about the glass window. Q: Okay. So the windshield in front of the

driver, is that what you’re saying? A: Yes, exactly. Q: And with respect to the driver, did you actually get to see that

person in the driver’s seat? A: Yes, yes yes, . . . . He was all bloodied . . . . [the blood] was coming from the head,

and his whole face was full of blood.”), 2206:22-24 (“Q: And the white car had three or four holes in its windshield?

A: Yes.”).

Obviously, witnesses differ over how many times Al-Rubia’y was shot, and over whether those shots left a

single-hole or a splatter in his skull. As Slatten points out, “multiple wounds in a splatter-like fashion” is more

consistent with shots fired from an SR-25. See Mot. J. Acquittal 10 (collecting evidence).

10

See 11/14/18 PM Tr. 1472:6–1478:24 (describing Slatten’s position and equipment), 1493:1–1494:20 (‘”Q: So

your recollection of the first person who shot from . . . your command vehicle, was who? A: My recollection was

Nick Slatten yelled out contact, contact, and fired twice. But the first one went off, and then right after the second

shot, the turret guns opened up, all the turret guns.”).

Watson is not a perfect witness. His time as a military contractor and subsequent service as a Navy Seal left him

with significant mental and emotional injuries, some of which have affected his memory. See 11/14/18 PM Tr.

1529:8-14, 1531:5-7, 1533:24–1535:4, 1544:1–1553:9. In short, he could only recall certain details of the Nisour

Square incident while on the stand, and he could not completely remember his testimony before the grand jury and

in the first two trials. But as a prior sworn statement, the jury could consider Watson’s 2013 grand jury testimony,

when he recalled enough of the incident to recount Slatten’s two shots preceding the turret gunners’ automatic fire.

As Slatten points out, the government asked the jury to credit this chronology but to disregard other portions of

Watson’s grand-jury testimony, including the portion where he testified to hearing a series of distant pops before

Slatten fired. See 11/15/18 AM Tr. 1607:11–1610:1 (“Q: You don’t recall hearing fire from [the rear vehicle] prior

to Mr. Slatten shooting? A: Really, the only memory that I have is hearing the distant pops and hearing contact from

the rear, and then hearing . . . Nick Slatten fire his weapon. . . . Q: So the first thing you heard, according to your

grand jury testimony, were pops that were outside your vehicle? A: That’s right. Q: And that’s what you testified to

in 2013? A: Yes. Q: And you said that maybe [the rear vehicle] was shooting, but you didn’t remember hearing that?

A: That’s right.”); see also 12/11/18 PM Tr. 4403:11-20 (“[I]n Jimmy Watson’s mind, he’s the only one that says

that, the sequence starts before that with the supposed distant shots. Nobody else testifies to that or something else.

But he doesn’t know the significance of that, but you do. . . . [Y]ou can piece it together, and you can rely upon the

grand jury for that.”). Slatten cites four-decade-old Sixth Circuit dicta for the proposition that “[o]ut of court

inconsistent statements (particularly snippets pulled from the middle of a sequence claimed to be false when taken as

a whole) do not generally ‘suffice to support a conviction since it is unlikely that a reasonable juror could be

convinced beyond a reasonable doubt by such evidence alone.’” Mot. J. Acquittal 18 (citing United States v. Orrico,

599 F.2d 113, 118 (6th Cir. 1979)).

But Orrico does not resemble this case. If anything, Orrico stands for the proposition that a person cannot be

convicted solely on the basis of a single prior inconsistent statement. Orrico did not address a situation as here,

where several other witnesses corroborated Watson’s chronology. See infra notes 63–67 and accompanying text. So

even if Slatten is right that a prosecution cannot rest solely on a truthful part plucked from an otherwise untruthful

out-of-court whole, this case is different: Watson’s chronology did not stand alone.

10

turret gunner atop the vehicle in front of Slatten’s. Only Slatten had an SR-25 12 equipped with a

high-powered scope. 13 This equipment—especially given his shielded environment—uniquely

enabled him to aim a precision shot, relative to his teammates exposed to the midday sun and

lacking the same scope. 14 Once those initial shots were fired, Al-Rubia’y slumped into his

Moreover, Slatten’s Orrico discussion elided critical context. The Sixth Circuit recognized the potential for a

“most unusual case” to challenge this presumption by persuading a reasonable juror “by such evidence alone.”

Orrico, 599 F.2d at 118 (emphasis added) (internal quotation marks omitted) (quoting 4 Weinstein’s Evidence 801-

74). To be sure, this is a most unusual case, and—for reasons already explained—Watson is a most unusual witness.

And importantly, Watson’s prior inconsistent statement (sworn grand jury testimony) lends much stronger indicia of

reliability than the Orrico witness’s prior inconsistent statement (past recollection recorded, see id. at 115-16). So if

nothing else, the Orrico dicta poorly squares with the fact that whatever Watson’s probative worth, two juries relied

on his testimony to unanimously conclude beyond a reasonable doubt that Slatten killed Al-Rubia’y.

11

See 11/7/18 PM Tr. 1023:2-12 (“Q: At some point later on, did you conclude that those first two hollow pops that

you heard at the very beginning of the shooting incident were attributable to Mr. Slatten firing that weapon within

the [his] vehicle? A: I did. Q: How did you arrive at that conclusion? A: Because it’s the only sound that could

emanate from within our team that makes sense. Q: What do you mean by that? A: Because nobody else has a

weapon like that, has anything that would produce that noise. . . .”).

12

E.g., 11/7/18 PM Tr. 994:12-18 (“Q: . . . [W]hat title did [Slatten] hold or role? A: He would have been the

designated marksman on the team. Q: What is a designated marksman? A: A designated marksman carries a

different sort of rifle with—well, the SR-25, with an actual good scope where you can get a much closer look at

things, and it’s more of an accurate rifle with a better scope.”).

13

E.g., 11/14/18 PM Tr. 1477:20–1478:15 (“He had [a scope] on there, yep. . . . [I]t had to have been a high-

powered one.”).

14

See, e.g., Gov’t’s Ex. 9402 (documenting the turret gunner’s view in direct sunlight).

11

mother’s lap, and the Kia began slowly rolling forward. 15 As it did, the rest of the convoy hailed

bullets and grenades until the Kia exploded. 16

15

See 11/5/18 PM Tr. 625:17–628:14 (“Q: What happened [after that first shot]? A: After that, a car bumped us

from the rear, a very light bump, I would say. . . . When I turned to see what is going on behind me, since the traffic

was stopped, what is happening behind us, I saw a white car, and I heard the screaming of a woman, and I saw a

hole in the windshield of that car from the side of the driver, and the windshield was splattered with blood. . . . After

the car bumped us, I heard the screaming. The screaming started almost at the same time as the bump. . . . The car

started moving slowly, really slowly. It was moving very slowly without, I believe, any gas, anyone pressing on the

gas. I saw the traffic cop come toward that car and try to open the door. . . . Apparently, it was locked, and we

continued on hearing the screaming of this woman and the car inching forward slowly. . . . There was no speed. It

was almost going automatically on its own, on its own moving forward. . . . [I]t started to pass us. Q: What happens

next? A: We heard a second shot fired. Q: Are you able to see the white car next to you. A: Yes, it was next to us,

that white car. Q: Were you able to see at that time who was in the white car to your left? A: I was able to ascertain

there was a woman sitting there. . . . Q: And does there come a time where additional gunshots—you hear additional

gunshots? A: Yes. . . . I saw the machine gun on the military vehicle to my right training their guns toward the white

car and firing in a continuous fashion. . . . [T]hey shelled it completely. They covered it until that woman stopped

even talking or stopped her screaming.”); 11/13/18 PM Tr. 1281:21–1284:15 (“Q: When the traffic cop approached

the car [with the screaming woman inside], was the car stopped or moving? A: It was stopped. Q: Okay. So no

movement, still? A: No, no movement at all. Q: After the traffic cop approached the driver side, did you see the

white car move? . . . A: Once he approached it and spoke to the occupants, it started moving slowly. Q: So you did

perceive it moving after the traffic cop approached the driver’s side door? A: I mean, all of this happened within

seconds, you know. Q: Right. And after the car starts moving slowly, as you said, what happens next? A: I cannot

tell you really exactly how much it moved forward, maybe three meters. But as soon as it moved forward, heavy fire

was—it was being hit by gunfire. Q: How could you tell that heavy gunfire started hitting the car? A: The car, you

know, is white, and as I was looking at it, all of a sudden, I saw black holes, you know, being formed on it as a

result. Q: In which part of the car do you see the holes being formed? A: On the front of the car, over the engine

part. Q: Can you describe for us, when you say heavy gunfire, what does that mean to you? What exactly are you

trying to convey by that? A: I can’t describe it precise[ly], but there was a lot of sound, you know, a lot of heavy

sound coming. Q: So not a single shot or two shots, like a lot of shots? A: Yes, of course. Q: Could you tell who was

shooting? A: From the cars, but I don’t know which one of their cars. Q: When you say ‘cars,’ are you talking about

the convoy, or are you talking about all the cars? A: Yes, the convoy cars. . . . Q: . . . And after the heavy gunfire

had started on the white vehicle, what happened next. A: The gunfire started. People started getting out of their cars,

taking cover in every direction. Q: But with the white car specifically, did something happen to the white car, in

addition to getting the heavy gunshots in the hood, as you described? A: Yes. It started burning.”); 11/16/18 PM Tr.

1991:3–1996:9 (“Q: . . . [Y]ou were describing the female passenger and how she was responding to the male

passenger, who had an injury to his forehead. . . . A: She had her left arm behind the neck of the driver and pulling

him towards her so that his head was on her shoulder. And she was screaming very loudly. . . . Q: And pulling the

male’s upper body into the chest, or what portion of the male’s body? A: [Indicating] when I was saying, the upper

part, I meant his head pulling him towards her, toward her lap. Q: Okay. And as you’re at the car trying to help the

woman, what happens? A: I tried to open the door of the car . . . . Q: What happens next? A: The car started moving

to the front. The car was actually butting the car in front of it. . . . When it started moving, the Credos, Kia Credos

started moving forward, moving forward toward the convoy. It started moving . . . [and] started receiving heavy

gunfire from the convoy. . . . Q: How would you describe the pace? Was it your normal walking pace, faster,

slower? A: A normal pace of walking. . . . Q: . . . So as that white Kia starts to move forward, what happens? A: At

that time, heavy gunfire was directed to the car, . . . . Q: Directed at which car? A: The Kia Credos. It was receiving

heavy gunfire, like heavy rain. . . . Q: . . . What happened to the Kia Credos? A: As a result of the heavy gunfire that

it was subjected to it started burning. Q: And did it stop, or did it keep moving? A: It continued on crawling forward

even during the heavy gunfire that it was receiving until it started burning, and then then an explosion occurred.”);

11/19/18 PM Tr. 2170:10-17 (“So the car started moving slowly, because the young man was killed, and he did not

have control of the car.), 2172:10–2174:11 (“Q: . . . [I]s the white car moving or stopped or do you remember? A: . .

. [T]he car was moving slowly. Q: What happened next? A: So the same [convoy] car, [Slatten’s] car, started

shooting at the woman. . . . Then there were shooting coming from all the [convoy] cars.”), 2206:25–2207:13

12

Sufficient evidence further shows Slatten did not act in self-defense. 17 To the extent other

convoy members perceived the Kia as a threat, it was only after it began rolling towards the

(“When the person inside [the car] was killed, the car started—it was still in gear. It started moving very slowly

forward.”); 11/28/18 AM Tr. 2745:24–2746:17 (“Q: . . . So after the Kia comes to a stop, an Iraqi police officer

approaches the driver side of the White Kia, correct? A: Yes, sir. Q: The car begins to move again? A: Yes, sir. Q: A

large volume of gunfire erupts from the convoy, correct? A: Yes, sir. Q: You hear some explosions? A: Yes, sir. Q:

It fills up with smoke? A: Yes, sir. Q: And upon seeing the passenger’s hands, you shoot and kill the passenger,

correct? A: Yes, sir.”).

16

See 11/27/18 PM Tr. 2703:14–2706:18 (“Q: And the very first gunfire you heard that day was automatic gunfire;

correct? . . . Q: . . . And then, sir, the next thing that happens is you immediately turn in the direction of that gunfire;

correct? A: Yes, sir. Q: And you saw [the turret gunner atop Slatten’s vehicle] firing his M4 [an assault rifle issued

to convoy members capable of being fired either semi-automatically (i.e., single shots) or fully automatically (i.e.,

bursts of shots)]; correct? A: Yes, sir. Q: On automatic? A: Yes, sir. Q: At a white vehicle? A: Yes, sir. Q: Which we

all now know is the white Kia; correct? A: That is correct. Q: And the white Kia was moving towards the convoy?

A: Yes, sir, it was. . . . Q: And then, sir, when you saw Mr. Slough firing, you immediately began to fire at the white

Kia, too; correct? A: Yes, sir. . . . Q: And then, sir, at about the same time that you fired at the White Kia or

immediately thereafter, you saw [another turret gunner] fire his M4 at the white Kia as well; correct? A: Yes sir.”);

11/29/18 PM Tr. 3118:25–3119:25 (“Q: How quickly is the car moving, if you will, toward the convoy? A: . . . It

was not going fast. It was just rolling towards us. . . . Q: What happened then? Describe what you saw. A: It was a

large volume of fire was directed towards the vehicle. As it started rolling towards us, as I recall, both [turret

gunners] just unleashed a lot of rounds into the car. Q: Did you see where those rounds were hitting the car? A: The

whole front end, the window, everywhere. It just looked like . . . massive automatic fire on the front end of a vehicle.

. . . Hood, windshield, everything.”).

17

See 11/7/18 PM Tr. 1034:18–1035:11 (“Q: . . . [D]id you see any threats in this are? A: I never saw any threats. Q:

That whole day? A: At all.”); 11/16/18 AM Tr. 1868:19–1871:7 (“Q: And what was so concerning to you about

vehicles facing south? A: It appeared to me that these vehicles were fleeing whatever they confronted . . . at the

northern point of Nisur Square. So this alleged confrontation, they didn’t appear to be exchanging fire. They

appeared to be fleeing the scene of conflict . . . . Q: And these—and the vehicles that you were looking at were all

civilian-type vehicles? A: They were. Q: When you are looking at these vehicles and walking down this road, did

you see any evidence of, say, . . . cartridge casings [from weapons typically used by Iraqi insurgents]? A: I don’t

recall seeing anything like that. . . . We saw a huge volume of what appeared to be [American] casings north of that

white vehicle that was engulfed in flames. We did not see shell casings south of that vehicle. And it seemed very

strange that in what was reported to be a confrontation, we had evidence of a volume of fire coming from the north

pointed south, but not from the south pointed north.”); 11/26/18 PM Tr. 2417:3-10 (“Q: Do you recall seeing any

threats, armed threats to the convoy? A: No.”).

13

convoy 18—which multiple witnesses say didn’t happen until after Slatten shot Al-Rubia’y. 19 No

other witness came close to corroborating Slatten’s self-serving contention that Al-Rubia’y was

taking aim at the convoy. 20 Although State Department investigators recovered spent shell

casings from Iraqi weapons around the southwest quadrant of the traffic circle four days after the

incident, the casings were far away from the Kia (in the southeast quadrant), and investigators

could not determine if the shells resulted from shooting during the incident, the days following

the incident, or the weeks and months preceding the incident. 21

As Slatten points out, this evidence did not go uncontroverted over the six-week trial. Yet

these evidentiary conflicts fail to undermine the record’s legal sufficiency. For example, Iraqi

police officers on the scene initially blamed the convoy members manning mounted turret guns

18

11/13/18 AM Tr. 1214:13–1217:8 (“Q: When you turned and first saw the white Kia, it was very close to

[Slatten’s vehicle]? A: It was within, I would say, 30, 40 feet or so . . . . Q: Okay. And, at least when you looked, it

was moving but at that point very slowly? Q: Literally a walking pace. . . . Q: And the white Kia was out in front of

all the other traffic? A: Yeah . . . . Q: . . . [W]ould it be generally fair to say that some members of the convoy could

have perceived the white Kia as a threat? A: It would be generally fair to say that some people under the right

circumstances could with [sic] perceive it as a threat, sure.”); 11/15/18 PM Tr. 1726:18-21 (“Q: If one car has

broken from the pack, if you will, and is ahead of the rest of the traffic, that looks like a [car bomb] threat; correct,

sir? A: Yes, sir.”), 1775:17–1778:2 (“Q: So when you flew over [Nisour Square in a helicopter after the shooting], it

seemed pretty clear to you that there was a vehicle that failed to stop with the other traffic; correct? A: Yes. Q: It

looked like a situation—it looked like the situation was a possible [car bomb]; correct? A: Yes. Q: And that the team

perceived it as a threat and had engaged it; correct? A: Yes. Q: And then the vehicle had stopped; correct? A: Yes.”);

11/26/18 PM Tr. 2384:22–2385:15 (“Q: . . . [D]id you perceive anyone out there in Nisur Square on [the day of the

shooting] as a threat to the convoy? A: There was the issue with the white Kia, and, you know, if there was one

thing that I saw that day that would have struck me as a threat, it would have been that vehicle that was moving

towards our convoy. . . . Q: Now, turning to the white Kia, it is your testimony that—did you yourself perceive the

moving Kia as a threat to the convoy? A: I think it could have been interpreted as a threat for sure.”).

19

See evidence cited supra note 15.

20

See 11/27/18 PM Tr. 2689:7-24 (“Q: And what did Mr. Slatten tell you about the incident in Nisur Square? A: He

had said that an armed insurgent was taking aim on our convoy, and he shot him. Q: And how did he describe

shooting at that man that was allegedly taking aim at the convoy? A: He said he popped his grape. Q: Did he saw

what happened to this man after he popped his grape? A: That he slumped forward. Q: What was Mr. Slatten’s

demeanor when he told you this? A: Just regular conversation. Q: Calm? A: Yes, sir. Q: Did he appear upset? A: No.

Q: Remorseful? A: No, sir.”); cf., e.g., 11/26/18 PM Tr. 2385:4-10 (“Q: . . . [I]n terms of an individual with a rifle or

other weapon trained at the convoy or firing at the convoy, did you observe that day any individual present a threat

to the convoy? A: No, I didn’t. Q: Did you perceive at any time incoming rounds? A: No.”).

21

See Gov’t’s Ex. 8006B; 11/27/18 AM Tr. 2551:9–2568:13; cf. 11/17/18 PM Tr. 1083:8–1084:16 (recalling

someone firing at the convoy from the southwest of the circle sometime during the incident); 11/29/18 Tr. 3152:20–

3153:4 (same).

14

for firing the first shots 22—an unsurprising inference, since the turret gunners were the only

convoy members visible from the ground, and since both turret gunners acknowledge training

their guns on the Kia seconds later as it began rolling forward. 23 But the D.C. Circuit already

rejected Slatten’s argument that this daylight between the government’s theory and the police

officers’ accounts causes a sufficiency issue: The officers’ testimony “does not disprove the

22

See 11/16/18 PM Tr. 1979:19–1980:5 (“Q: Did you see whether those men on top of the vehicles actually fired

those first single shots or not? A: I did not see them fire, but I am assuming that to be, from what I heard, that the

gunfire was coming from them. Q: Why are you assuming that? A: Because the sound was coming from the

convoy.”); 11/19/18 AM Tr. 2036:7-22 (“Q: And you have testified consistently for ten years that the turret gunners

shot and killed the driver of the white Kia, correct? A: Yes. Q: And you testified consistently for ten years that the

turret gunners shot and killed the passenger in the white Kia, correct? . . . A: He shot, but I don’t know if he killed

the passenger or not.”), 2041:20–2043:11 (“Q: . . . And those initial shots that you saw were by the turret gunners?

A: I believe so.”), 2044:6–2046:21 (“Q: . . . And when you say you believe one of the individuals inside one of the

cars shot, which armored vehicles are you talking about? A: In the beginning when I mentioned that there was firing,

I meant it was coming from the turrets and not from the holes or the windows that are in the vehicles. . . . Q: And let

me make sure I understand that. Did you actually see the explosion out of the end of the barrel? A: No. I did not see

the explosion from the mouth of the rifle, but it was so close, I can tell it is from the sound. Q: You saw the men

pointing their rifles? A: Yes. Q: And you heard the shot? A: Yes, sir. Q: What happened next? A: We heard the

sound of the screaming of a person who was shot in the vehicle behind us. . . . Q: And then you heard gunshots? A:

Yes, I heard. Q: From the men in the turrets? A: Yes. . . . Q: . . . You ultimately learned that that screaming was

coming from a white Kia Credos? A: After I started moving towards it.”); 11/19/18 PM Tr. 2204:8–2206:15 (“Q: So

let me direct your attention, then, to the first shots that you say you heard. . . . You testified, I believe, that you heard

four shots fired. A: From three to four shots. Q: And were those shots fired in rapid succession? . . . A: Pop, pop,

intermittent, but fast. Q: Okay. But four shots? A: Three to four. Q: Sorry, three to four. When you heard those shots

fired, were you facing the convoy, or were you facing the traffic? A: I was facing the convoy. Q: And did you see

the man who pulled the trigger? A: Yes, on top of the armored turret. Q: He was a man who was on the turret on top

of [Slatten’s vehicle]; correct? A: Yes. Q: And those were the very first shots you heard? A: Yes. Q: You’re 100

percent certain of that? A: Yes.”).

23

See 11/27/18 PM Tr. 2703:14–2707:3 (“Q: You were the front turret gunner in the [vehicle behind Slatten’s] that

day; correct, sir? A: Yes, sir. Q: And the very first gunfire you heard that day was automatic gunfire; correct? . . . Q:

. . . And then, sir, the next thing that happens is you immediately turn in the direction of that gunfire; correct? A:

Yes, sir. Q: And you saw Paul Slough [the turret gunner atop Slatten’s vehicle] firing his M4; correct? A: Yes, sir.

Q: On automatic? A: Yes, sir. Q: At a white vehicle? A: Yes, sir. Q: Which we all now know is the white Kia;

correct? A: That is correct. Q: And the white Kia was moving towards the convoy? A: Yes, sir, it was. . . . Q: And

then, sir, when you saw Mr. Slough firing, you immediately began to fire at the white Kia, too; correct? A: Yes, sir.

Q: And you fired approximately three to five shots? A: Roughly. Q: Okay. With your M4 rifle? A: Yes, sir. Q: In

semiautomatic mode? A: Yes, sir.”); 11/28/18 AM Tr. 2780:19–2781:13 (“Q: So then as you’re turning into the

circle, that’s when you hear the automatic gunfire, right? A: Yes, sir. Q: And it was automatic gunfire? A: Yes, sir.

Q: And the white Kia was moving? A: Yes, sir.”).

This remains true despite evidence suggesting people on the ground could notice muzzle flashes from an SR-25

fired through a porthole. 11/19/18 AM Tr. 2046:17-21 (“Q: . . . And did you at some point later see some shots come

from the porthole in [Slatten’s] armored vehicle? A: Yes. Q: But that was later in the chronology [after the woman

in the white Kia began screaming]? A: Yes.”); 11/29/18 PM Tr. 3091:22–3093:7 (“Q: Did you actually visibly see

the barrel outside the portholes? A: I did see a barrel. . . . Q: And when you saw that barrel, did you see something

associated with it that suggested it was firing? A: White smoke . . . A quick puff of smoke coming out each time a

round is fired. . . . You see a bit of the smoke just pop off of it. . . . That’s not something you would see if you

weren’t looking at it. Q: Because its so quick and instantaneous? A: Correct, yeah.”).

15

government’s theory of Slatten’s guilt. It simply creates a dispute of fact, and it was the jury’s

responsibility to weigh the officer[s’] conflicting testimony against that of Watson to resolve the

dispute.” Slatten, 865 F.3d at 797 (citation and internal quotation marks omitted).

Slatten’s other arguments fare no better. True enough, one turret gunner doesn’t recall

hearing Slatten fire first. 24 But that gunner—and everyone else—agrees gunfire erupted as the

Kia rolled forward, by which point Al-Rubia’y was already dead. 25 Nor is it inconsistent with

Slatten’s guilt that investigators found no SR-25 shell casings in the traffic circle after the

incident 26—Slatten shot from inside a vehicle, so any expended shell casings would have landed

there. 27 And it is perfectly consistent that shell casings matched to the turret gunners’ weapons

riddled the traffic circle 28—all agree the turret gunners indiscriminately fired their weapons into

the crowd. 29 So too that the only bullet fragments investigators could identify from the Kia

traced back to the turret gunners’ weapons, 30 for two reasons. First, the government doesn’t

claim Slatten targeted the Kia generally—the government theorizes Slatten fired a precision shot

into Al-Rubia’y’s head. Second, everyone admits the turret gunners eventually bombarded the

Kia, and the investigators acknowledged they could not determine if the recovered fragments

See 11/27/18 PM Tr. 2704:1–2708:1 (“Q: Now, during this initial flurry of shots at the white Kia, you did not hear

24

Mr. Slatten fire a sniper rifle, did you? A: No, sir.”).

25

See evidence cited supra notes 9, 15.

26

See 11/16/18 AM Tr. 1871:1-3.

27

See 11/26/18 AM Tr. 2313:20–2314:7 (“Q: And what would happen, however, if I’m firing this inside of a vehicle

and only the muzzle is firing outside of the vehicle? What would happen to those cartridge casings? A: If you were

firing inside the vehicle, the cartridge casings would be retained within the vehicle. Q: And if the vehicle drove

away from the crime scene, you wouldn’t have access to those cartridge casings, fair? . . . A: Those cartridge casings

would be in the vehicle and they would not have been outside of the vehicle on the ground.”).

See id. at 2299:7–2303:7; Def.’s Exs. 6337, 7066 (cataloguing shell casings recovered from Nisour Square and

28

matching them to convoy members’ weapons).

29

See evidence cited supra note 16.

30

See 11/26/18 AM Tr. 2305:3–2307:21; Def.’s Ex. 5007.

16

came from the beginning or the end of the shooting. 31 And in any event, the fact “[t]hat a

different jury might have resolved [an evidentiary] conflict differently is not tantamount to

showing that no reasonable fact-finder could conclude that Slatten shot first.” Slatten, 865 F.3d

at 797.

Slatten similarly makes much of Paul Slough’s—the turret gunner atop Slatten’s

vehicle—claim he shot the Kia first, and even more of the D.C. Circuit’s conclusion “he was

likely telling the truth.” Id. at 808. Yet properly contextualized, Slough’s statement actually

supports Slatten’s guilt. After all, Slough only admits shooting the Kia as it moved towards the

convoy. 32 But the balance of evidence confirms the Kia began rolling toward the convoy only

after Al-Rubia’y was shot. 33 So even if Slough honestly believed he shot the Kia first, he may

have been mistaken. And a mistaken belief does not create a sufficiency problem.

Moreover, Slatten emphasizes (and characterizes as a “confession”) Slough’s related

statement—expressed in four of his five interviews with State Department investigators in the

31

See 11/26/18 AM Tr. 2310:18–2311:7 (“Q: . . . [M]ore to the point, you cannot tell us when [the M4 bullet

fragment recovered from the top of the steering wheel] was fired? A: Right. Q: You don’t know if it was at the

beginning . . . of this incident, correct? A: Right. Q: And you don’t know if it was in the middle of this incident,

correct? A: Correct. Q: Or even at the end? A: Correct. Q: So all you can tell us is that at some point something, a

bullet with a steel penetrator, hit the top of this steering wheel? Correct.”); see also 11/26/18 AM Tr. 2308:19–

2311:11 (“I believe you told us that your examination revealed five areas of damage [in the steering wheel]; is that

correct? A: Yes. Q: And all those five areas of damage when you tested them tested positive for copper and lead? A:

Yes, that’s correct. Q: And that’s consistent with them having been struck by a bullet or bullet fragment? A: Yes. . . .

Q: . . . You cannot tell the ladies and gentlemen of the jury which weapons or bullets caused the other five—the

other areas of damage around the steering wheel? A: That’s correct. Q: You don’t know if it was . . . a 7.62 round

from an M240? A: Correct. Q: Or a similar round from an SR25? A: Correct. Q: Or any other type of weapon, for

that matter? A: Right, yes. . . . Q: . . . [Y]ou cannot tell us about which of the other rounds or what the other rounds

were that hit the rest of the steering wheel? A: That is correct.”); 12/10/18 AM Tr. 4056:6-17 (“Q: . . . Now, can

your analysis here today tell us anything about the timing of when a projectile penetrated that headrest? A: No, I

can’t. Q: Can you tell us anything about whether the projectile hit anything before it hit the headrest? A: No, sir, I

cannot. Q: So you have no opinion to offer on whether it hit a windshield first? A: No, sir. Q: Or anything else? A:

No, sir.”).

32

E.g., Def.’s Ex. 1115 at 2 (“As our motorcade pulled into the intersection I noticed a white four door sedan

driving directly at our motorcade . . . . 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.”).

33

See evidence cited supra notes 6–7, 9, 15.

17

eight days after the shooting 34—that he killed the Kia’s driver. But Slough’s accounts fall short

of exonerating Slatten, since multiple chinks erode their evidentiary force. The Court highlights

just three: First, facing a mountain of evidence suggesting the Kia either sat stationary or rolled

forward through bumper-to-bumper traffic at walking speed, Slough’s remarkable contention

that the Kia careened towards the convoy at forty miles-per-hour 35 beggars belief. Second,

Slough’s statements openly contradict each other. During his second interview, he described

“notic[ing]” the Kia “driving directly” at the convoy “as [the] motorcade pulled into the

intersection.” 36 But in his fourth interview, he said he “monitored his sector for 10-15 seconds

without incident” before seeing the Kia. 37 In his third interview, he claimed he did not launch

grenades at the Kia. 38 But in his second and fifth interviews, he admitted he did. 39 Third,

Slough’s statement seems concocted to hoodwink investigators into believing the traffic circle

34

Def.’s Exs. 1114 (“SLOUGH engaged and hit the driver.”), 1115 at 2 (“[T]he driver looked directly at me and

kept moving toward our motorcade. . . . I engaged the driver and stopped the threat.”); 1116 at 2 (“The [white] car

did not stop, and SLOUGH engaged it with his M4. SLOUGH 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. SLOUGH used one magazine of M4 ammunition to engage the white car.”); 1117 at 1 (“Slough

fired two rounds at the driver from his M-4 rifle. Slough believes these rounds impacted the driver’s area of the

windshield.”).

35

Def.’s Ex. 1117 at 1 (“He then noticed a white sedan traveling north bound toward the traffic circle at

approximately 40 mph. The vehicle was approximately 40 meters south of Slough’s position. . . . All of the other

north bound vehicles between this white sedan and the motorcade had pulled over to the east cub line of the north

bound traffic lanes, and had stopped. Some of the occupants of these vehicles had gotten out of their cars, and were

waving and yelling at the white sedan to stop. Slough threw a water bottle at the white sedan, and yelled in both

Arabic and English for the car to stop while signaling with hand and arm gestures. Slough made eye contact with the

driver of the white sedan whom he described as being an Arabic male in his late 20’s with a beard. The vehicle did

not heed Slough’s and the other pedestrian’s warnings. Slough fired two rounds at the driver from his M-4 rifle.

Slough believes these rounds impacted the driver’s area of the windshield. The white sedan began slowing.”).

Indeed, almost nothing about this story fits with other witnesses’ accounts. And crediting Slough’s estimations of

time and distance, this entire interaction took place over two seconds.

36

Def.’s Ex. 1115 at 2.

37

Def.’s Ex. 1117 at 1.

38

Def.’s Ex. 1116 at 2 (“SLOUGH did not fire his M203 during this incident.”).

39

Def.’s Ex. 1117 at 2 (“Due to the vehicle continuing to roll toward the motorcade, and now being danger[ously]

close, Slough fired [a] high explosive round from his M-203.”); Def.’s Ex. 2010 at 2 (“SLOUGH was re-interviewed

and maintained his previous statement that he fired one 203 round at the driver’s side wheel well of the white

vehicle approximately fifty meters away.”).

18

was teeming with insurgents attacking the convoy from concealed positions. 40 Slough remains

the only team member to offer that after-the-fact explanation for slaughtering fourteen Iraqi

civilians. All in all, the jury reasonably disregarded his “confession.” 41

Slatten again misrepresents the record by baldly claiming “it was physically impossible

for Mr. Slatten to shoot the driver while laying prone on the bench” inside his vehicle. Mot. J.

Acquittal 11 (emphasis removed). Slatten bases this conclusion on the fact that the special agent

who conducted the government’s demonstrative shooting of an SR-25 through the vehicle’s

porthole used additional padding from the Federal Bureau of Investigation’s (FBI) shooting

range to support his chest and steady the rifle. 42 But the agent never testified he couldn’t make

the shot without supplemental pads, and the record does not reflect whether Slatten is physically

bigger or smaller than the agent, or whether the agent was in exactly the same position as Slatten,

or whether Slatten and the agent were wearing the same gear, or whether Slatten was a more or

less capable marksman. Instead, Slatten extrapolates from the agent’s testimony about the

approximate view Slatten would have seen looking through his SR-25’s scope to conjure a triple-

40

Compare, e.g., Def.’s Ex. 1117 at 2 (“Immediately after firing the two shots at the white sedan, Slough’s vehicle

began receiving automatic small arms fire from a small shack-like structure approximately 150 meters south . . . .

Slough saw muzzle flashes coming from two separate positions in the same general area.”), with evidence cited

supra note 17.

41

That’s true despite the Court of Appeals’s recognition of “several . . . circumstances . . . indicat[ing]” Slough’s

statements’ “reliability.” See Slatten, 865 F.3d at 808-09. To be sure, Slough was incentivized to speak truthfully,

especially since he acknowledged he faced criminal liability for lying to investigators. Additionally, Slough did

repeatedly say he killed the white Kia’s driver—though he remained consistent about little else. And true enough,

discrete details can be corroborated with the Iraqi police officers’ testimony (like the throwing of water bottles, see

evidence cited supra note 7, or the assumption that the turret gunners fired first, see supra note 22 and

accompanying text), even though the two accounts remain fundamentally irreconcilable writ large. Compare Def.’s

Ex. 1117 at 1 (“[Slough] then noticed a white sedan traveling . . . at approximately 40 mph.”), with, e.g., 11/16/18

PM Tr. 1979:9–1995:11 (testifying that the Kia was “standing in [a] line” of traffic when it was shot, before later

rolling forward at “[a] normal pace of walking”). But simply put, the Court of Appeals merely held these indicia of

reliability satisfied Rule 807’s threshold “requirement that the . . . statements contain ‘equivalent circumstantial

guarantees of trustworthiness’ to those ensured by the Rule 803 and Rule 804 hearsay exceptions.” Slatten, 865 F.3d

at 807. Yet that holding does not force a jury to believe the statements: juries remain free to weigh and disregard

hearsay evidence whether its admitted under Rule 803, 804, or 807.

42

See 12/10/18 AM Tr. 4015:21–4017:8.

19

bank-shot inference that because the agent used padding unavailable to Slatten to position the

gun through the porthole, Slatten could not have shot his SR-25 through the porthole while

laying prone on the bench. Yet this inference proves too much—by Slatten’s own logic, not only

would it be impossible for him to have shot the Kia, it would be impossible for him to have ever

shot anything out of the porthole with his SR-25. But that cannot be true: as the convoy’s

designated defensive marksman, Slatten routinely surveilled targets through the vehicle’s

portholes. 43 And the inference overlooks evidence that Slatten looked out of his vehicle’s

portholes when he shot the Kia and called other convoy members’ attention to its forward

movement. 44 So Slatten’s sham inference fails to render the verdict legally insufficient.

Slatten further disguises conjecture as evidence by claiming “it [wa]s not physically

possible to orient a rifle out of the front porthole . . . from the bench” at the angle necessary to

aim at the Kia. Mot. J. Acquittal 11 (emphasis removed). This conclusion rests on two premises:

First, that the Kia lay twenty to forty degrees to Slatten’s left as he looked through the porthole.

And second, that the turret gunner’s position inside the vehicle—standing immediately to

Slatten’s right on a raised platform—impeded Slatten’s ability to aim his SR-25 at that angle:

Def.’s Ex. 7203 Def.’s Ex. 7202

43

See 11/5/18 PM Tr. 565:14-17; 11/7/18 PM Tr. 994:7-18; 11/14/18 PM Tr. 1481:2-12; 11/26/18 PM Tr. 2368:2-

20; 11/19/18 PM Tr. 3085:22–3086:18; see also 11/26/18 PM Tr. 2372:7-16 (“[A]t the City Hall complex a couple

days before, he engaged some threats, and I know he shot some people that day out of [his] vehicle.”).

44

See 11/14/18 PM Tr. 1476:12-20; 1501:22–1503:18.

20

Both premises are flawed. The first—the angle between Slatten’s vehicle and the Kia—

comes from one of Slatten’s lawyers, who used a protractor and a post-shooting aerial

photograph of Nisour Square to approximate the locations of Slatten’s vehicle and of the Kia

based partly on wreckage and stains left in the road, and partly on other witnesses’ crude

sketches: 45

Def.’s Ex. 7201 (Demonstrative) Def.’s Ex. 7200 (Demonstrative)

But when they showed this hand-drawn analysis to the FBI agent who conducted the

demonstrative shootings, the agent balked: “We do not know the exact angle. . . . I have no idea

about the number, no.” 46 When defense counsel marshalled evidence about the Kia’s location,

the agent repeatedly reminded them: “[B]ut I don’t know what the angle of [Slatten’s vehicle]

was . . . . That would change things.” 47 And though defense counsel characterized his in-court

45

See 12/10/18 AM Tr. 3995:1–4006:12.

46

Id. at 3995:18–3996:1.

47

Id. at 4019:1-5; accord id. at 3996:23–3997:1 (“I don’t know the angle that [Slatten’s vehicle] would have been

at, though.”); id. at 3997:5-10 (“But, again, I couldn’t say the angle of which [Slatten’s vehicle] was exactly sitting

and which way it was facing toward the Kia or any other direction”); see also id. at 4025:25–4027:14 (“Q: . . . [I]s it

your understanding that this (indicating [on the aerial picture]) is the radiator stain from [Slatten’s] vehicle? A: Yes,

ma’am. Q: And in your—as part of your investigation, do you have an understanding of where this radiator is

positioned on [Slatten’s vehicle]? A: It’s at the very front . . . . Q: So the very front . . . ? A: Yes, ma’am. Q: And so,

in terms of the orientation of [Slatten’s] vehicle, do we know what the first—what the angle is between the—what

would be the right side of [Slatten’s] vehicle and the curb? A: No, I don’t know what the angle would be. . . . Q:

Aside from knowing that this would be the very front of [Slatten’s] vehicle right here (indicating [the location of the

stain]), . . . do you know how it is oriented in relation to the curb? A: No, I don’t. Q: So do you know if it would

21

estimation as “conservative,” 48 it remains an estimation based solely on a stain in the road and

rough shapes other witnesses drew on a courtroom touchscreen. Whatever probative value that

estimation has, it doesn’t necessarily foil the jury’s verdict. 49

The second premise cannot be verified. Maybe the turret gunner’s position impeded

Slatten’s ability to aim his gun to the left. Or maybe it didn’t. Maybe the turret gunner turned out

of the way. Maybe he leaned back, or to the side. Maybe he stepped onto another surface inside

the vehicle. Maybe Slatten pushed him. As the government acknowledged, “[w]e don’t know.” 50

But the record does establish—at least—that Slatten watched the Kia as it rolled forward, 51

be—if it could be positioned like this [(indicating one way)]? A: It could be, yes. Q: Do you now if was positioned

more like this (indicating [another way])? A: I don’t know. Q: And I guess that goes to my larger point . . . . In terms

of knowing where the gunport is in relation to this vehicle, that could be orientated a number of ways, do we know

precisely where the gunport is in relation to the curb and then in relation to the White Kia? A: No.”).

48

Id. at 4019:10-13.

49

In his reply brief (at 7), Slatten claims government exhibit 9210V supports concluding the Kia was roughly forty

degrees to the left of Slatten’s vehicle. That’s wrong—and very misleading. Government exhibit 9201V depicts the

FBI’s post-incident trajectory analysis of shots that hit the Kia’s hood. The analysis shows a dozen shots riddling the

Kia’s hood from both sides, some of which appear at roughly a forty-degree angle:

Gov’t’s Ex. 9210V

See also 12/10/18 AM Tr. 3999:14–4000:11. But this analysis considers shots fired into the Kia’s hood from all four

convoy vehicles as the Kia rolled forward and came to a stop. It proves nothing about the Kia’s location vis-à-vis

Slatten, who aimed at the Kia’s driver (not its hood) out of the third convoy vehicle before the Kia began moving.

50

12/11/18 AM Tr. 4225:23–4226:2.

51

See 11/14/18 PM Tr. 1476:12-20; 1501:22–1502:7 (“[H]e said, White car, white car coming in. He yelled that.”).

But cf. Def.’s Reply 7 (speculating Slatten watched the Kia through a larger window, not the gun porthole).

22

and—at most—that Slatten could and did shoot its driver. 52 So although a reasonable juror might

surmise the turret gunner’s position would generally prevent Slatten from aiming the SR-25 too

far to the left, a reasonable juror could legitimately infer that—in the moment—it did not. The

turret gunner’s relative position in the vehicle fails to inevitably cast enough doubt to undermine

the jury’s verdict.

2. The record establishes Slatten acted with malice aforethought.

Sufficient evidence shows Slatten intended to kill Al-Rubia’y. Immediately after the

shooting, Slatten gloated he “popped [a man’s] grape” and watched him “slump[] forward.” 53

Other witnesses characterized Slatten’s reaction to the shooting as “defiant” and “chest-

beating,” 54 and recalled him high-fiving and back-slapping other team members. 55 In private,

Slatten mused something was wrong with him since he did not feel remorseful. 56

Those comments echoed Slatten’s history of animus toward Iraqi civilians. Slatten once

declared “[Iraqi] lives are not worth anything, they are not even humans, they are animals.” 57 A

52

See 11/14/18 PM Tr. 1503:13-18; evidence cited supra notes 10–11.

53

11/27/18 PM Tr. 2689:11-24.

54

11/7/18 PM Tr. 1057:2-6.

55

See 11/26/18 PM Tr. 2430:15–2432:8.

56

See 11/7/18 PM Tr. 1057:13–1058:4.

57

11/26/18 PM Tr. 2371:11-15; see also 11/7/18 PM Tr. 985:17–988:1 (“[I]t was very common among the military

and contractors to dislike Iraqis. . . . I would say Nick was to the far end of that opinion, where I believe he viewed

them pretty much all as an enemy. . . . I remember Nick saying that everybody—basically everybody in Baghdad,

like, Why are they still here if they’re not against us? They should have, you know—they know after all these

years—this is not a direct quote, obviously—by this time, they could have left.”); id. at 988:11-13 (“Q: Did you

know anyone else other than Mr. Slatten to have that similar mind-set at the at extreme level? A: To that extreme

level, no.”); 11/26/18 PM Tr. 2371:16-20 (“I didn’t talk to [Slatten] much after the shooting, but after some

engagements, I heard him make some pretty derogatory comments toward the Iraqi people.”); id. at 2372:7–2374:1

(“Q: What was the context, though? . . . A: Yeah, it could be just sitting at a dinner table one night talking just

referring to them. It’s just slander toward the Iraqi people. Or it could be a situation where, like at the City Hall

complex a couple days before, he engaged some threats, and I know he shot some people that day out of [his]

vehicle. And then afterwards, he again was bragging about it. . . . I remember him talking about he turned one guy’s

head into a canoe, was his term for it. So really, no remorse and respect for those people or their lives. Q: I mean, do

you perceive he is generalizing toward the Iraqi people, or is he specifically talking about insurgents? A: No, it’s

toward the Iraqi people in general. . . . Q: Do you, based on your experience or understanding of the word ‘canoe’

used in that context, have an understanding as to what Mr. Slatten meant? A: . . . [I]t would be in the context of

23

convoy member recounted Slatten firing without provocation on multiple instances, and openly

encouraging teammates to shoot innocuous targets. 58 Thanks to these efforts, Slatten boasted he

hollowing somebody’s head out. Q: With a bullet? A: Could be, yeah, sure.”); 11/27/18 PM Tr. 2647:12-15 (“Q: Did

he in his comments, did he distinguish between people that were a threat and people that were just Iraqis out in the

street? A: No, sir, he did not.”).

Slatten does not deny hating Iraqis—he just points out that some other convoy members did too. See Mot. J.

Acquittal 20 (citing 11/28/18 AM Tr. 2787:1-15). But that’s beside the point. It matters only that Slatten’s

demonstrated animus towards Iraqi civilians tends to make it more likely that he acted with malice aforethought.

58

11/27/18 PM Tr. 2641:4–2646:17 (“Q: . . . [W]hat do you recall about that incident? A: There was a mechanic’s

shop that was across the street from a staging area that our vehicles would park in. . . . And Mr. Slatten had said to

me, Do you see the mechanic’s shop over there? There was a shed on top of it, almost like an outhouse. And he said,

If I was an armed insurgent, that’s where I would attack us from, because they had a clear view of our vehicles. And

he had said that he was going to shoot at it when we were exiting the facility and try and draw out any fire if there

was anyone in there. And he said, Fire along with me, and I said, Okay. . . . Q: Sir, this shed, can you give us an idea

where it was located versus where you were parked or stationed in your vehicle? A: Maybe 100 meters across the

street from us. Q: So it was literally across the street from where you were located? A: Yes. Q: When we are talking

about a shed, what are we talking about? A: It looked like a mechanic’s shop, I think it was, and the shed on top of it

looked like just what an outhouse would. Q: And you initially agreed to also fire at the shed? A: I did. Q: So what

happened after the convoy was leaving, then? A: Mr. Slatten fired on the shed. Q: Did you fire on the shed? A: No, I

didn’t. Q: And when Mr. Slatten fired on the shed, did you see if there was anybody in the shed at the time? A: No, I

didn’t. Q: So you don’t know one way or another whether somebody was in there or was not in there? A: That’s

correct. Q: Did anybody fire back or act as a result of that shot being taken at the shed? A: No, sir. Q: Did you and

Mr. Slatten have a discussion when you got back and returned? A: We did. Q: Tell us about that. A: He either asked

if I did or why I didn’t fire on the shed. Q: And what was your response? A: I think I said, I think, I forgot or

something. Q: You made some kind of excuse? A: Yeah, I made some kind of excuse. Q: And why didn’t you fire?

A: I just didn’t. . . . Q: Certainly there was no reason to fire on the shed? A: Correct. Q: Was there some [other]

incident some weeks prior to [the Nisour Square incident] involving a helicopter crash? A: Yes. . . . Q: And what

happened once you [responded to the crash site]? A: We formed a perimeter around the helicopter, or that area. . . .

Q: Do you recall who you were next to? A: Mr. Slatten. Q: And as you’re next to Mr. Slatten providing this

perimeter security, do you have a conversation with Mr. Slatten? A: I do. Q: Tell us about that conversation. A: He

had said that if he was the shooter that shot down the helicopter—I think it was those words—that he would have—

he would be from that building. I think he even pointed out the window, but I’m not 100 percent sure. And he said

he’s going to fire on the building, and when he does, that I should fire along with him. Q: Kind of similar to the shed

situation? A: Yes. Q: Okay. And then after you had this conversation with him, what happened? A: At some point

Mr. Slatten did fire. Q: Did you fire after that? A: I did. Q: How about other members of Raven 23? Did they fire

then after he did? A. Yes, several. Q: And did Mr. Slatten say something either before or after he fired to the group

that you could hear? A: I know he said after that he saw someone taking aim at us through the window. Q: So he

said that somebody was taking aim out the window and that’s why he was firing? A: That’s correct. Q: And this is

after the conversation he had with you about him just suspecting that somebody—if there was a sniper, that it would

be there? A: Yes, sir. Q: Was the military present when this was taking place? A: Yes, they were. Q: And did you

see the military also open fire after Mr. Slatten had fired at that location? A: They did. . . . I believe there was a

Bradley [tank], and I’m not sure if it was a Stryker armored vehicle. . . . [T]hey fired on that building, and also air

assets. I think it was an Apache helicopter. Q: What happened to the building? A: It, for the most part, was

destroyed.”); see 11/7/18 PM Tr. 999:7–1004:19 (recounting the same incident involving the helicopter and

recalling that Slatten suddenly shot at the building and persuaded not only the rest of the convoy to shoot and but

also an Army helicopter to fire a Hellfire missile into one building and another Hellfire missile into an adjacent

building because of “a guy in a window with a rifle,” only to later admit he did not see if the man had a rifle); see

also 11/26/18 PM Tr. 2377:12–2381:19 (“Q: Now, do you recall on that day, the week prior to [the Nisour Square]

incident, what role [Slatten] was playing [in a different mission]? A: He was [out of the vehicle on foot directing

traffic.] . . . Q: Do you recall an interaction with [Slatten] based on your observation of a man on a roof? A: Yes. Q:

Can you, to the best of your recollection, describe for the ladies and gentlemen of the jury what you recall seeing

24

was “well on his way” to “getting payback for 9/11,” 59 a statement evincing Slatten’s

determination to kill Iraqis in a twisted hunt for revenge.

3. The record establishes Slatten acted with premeditation.

Much of the evidence establishing Slatten acted with malice aforethought—in particular,

Slatten’s anti-Iraqi animus and his history of firing without provocation—doubly suggests he

acted with premeditation. See generally Old Chief v. United States, 519 U.S. 172, 187 (1997)

(“[A] piece of evidence may address any number of separate elements, striking hard just because

it shows so much at once; the account of a shooting that establishes capacity and causation may

tell just as much about the triggerman’s motive and intent.”). In addition, the government

introduced circumstantial evidence suggesting Slatten modified—or allowed someone else to

modify—his gun before the shooting, changing it from a two-stage trigger (more accurate, but

takes longer to fire) to a hair trigger (allowing for quicker and easier firing). 60 Because the

and conveying to [Slatten]. A: . . . I saw somebody on a rooftop. It was a pretty good distance from our location, but

nonetheless, he was in a good vantage point watching over the convoy, and he was doing something like sweeping

or working, doing something up on top of that building. He wasn’t a threat at that time, but it was applicable to call

out to other members of the team and let them know that there was somebody up on that rooftop, just so they could

know and have that, because he could have changed from a nonaggressive posture to an aggressive posture, if that

makes sense. Q: Is it accurate to say that that was fairly common practice, to identify individuals on rooftops as

potential threats? A: Sure, yes. Q: Whether or not they had a weapon in their hands or not? A: Yes. Q: Now, when

you did that, was it typical to just shoot the individual? A: No. Q: Would that have been an appropriate reaction? A:

In this instance, no. . . . Q: . . . [W]hat did Mr. Slatten say to you after you had identified the man on the rooftop? . . .

A: To the best of my recollection, it was, ‘Shoot that [expletive].’ Q: Did you shoot him? A: I did not. Q: Why not?

A: I did not perceive him as a threat at that time. Q: Could you see his hands [while observing him through your

magnified scope]? A: Yes. Q: What did he have in his hands, to your perception? A: It was either some sort of a

hose or broom or something. Q: Did it look anything like a weapon? A: I don’t remember it looking like a weapon,

no.”).

59

11/27/18 PM Tr. 2639:2-8.

60

See 11/29/18 PM Tr. 3184:23–3207:8. As Slatten acknowledges, the Kia was so close to the convoy that any

competent rifle shooter could have made the fatal shot. See Mot. J. Acquittal 20-21 (collecting evidence). So to the

extent a hair trigger made his SR-25 less accurate, see 11/29/18 PM Tr. 3187:20–3189:15, the record suggests

Slatten could still have made the shot.

25

modification had to occur before the incident, 61 it supports the conclusion Slatten acted with

premeditation.

* * *

In the end, concluding the government presented sufficient evidence to support Slatten’s

conviction should be unremarkable. After all, the Court of Appeals already held the same thing

after Slatten’s first trial, which featured a largely identical record. See Slatten, 865 F.3d at 795-

97. The panel unanimously accepted the government’s theory that “Slatten was laying across a

bench in the back of the third [convoy] vehicle, aiming his weapon south out of a driver’s side

porthole” and that “while traffic was at a standstill . . . 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.” Id. at 795. 62

61

See id. at 3202:7–3205:17.

62

The records are strikingly parallel. Here’s how the Court of Appeals summarized the evidence last time:

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 “whole face was full

of blood,” that the woman in the passenger seat was holding him and screaming “My son, my son,”

and then the car “started moving slowly because the young man was killed, and he did not have

control of the car.” 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.

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 “very

rhythmic . . . retort then retort,” consistent with others’ descriptions of the fatal shots as “two pops.”

Watson could not see Slatten’s target, but testified that Slatten was aimed generally south, which

was “the direction . . . where the [Kia] was.” 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 “popped his grape” and caused him to slump forward. From this evidence,

a reasonable jury 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

26

Why does Slatten think this iteration should be different? Slough’s statements? As noted,

the jury reasonably disregarded them.

His new argument that he physically couldn’t shoot at the Kia while laying prone on the

vehicle’s bench and aiming through the porthole? As explained, the jury had no obligation to tag-

along with his logical leaps.

The government’s decision to not call Adam Frost, another convoy member whose

testimony at the first trial that he heard two pops, turned, and saw a white vehicle rolling forward

meshed with Watson’s recollection of two shots? No matter: numerous other witnesses in this

trial testified to hearing several single shots, and even if they did not agree on the precise

number—Murphy testified he heard “two loud hollow popping sounds”; 63 a different convoy

member described “a couple to a few”; 64 one Iraqi policeman in Nisour Square remembered two

to ten; 65 another policeman recollected three to four; 66 and two Iraqi civilians independently

recalled one 67—their consistent accounts sufficiently echo Watson’s account.

The discrepancy between Slatten bragging about watching a man slump forward after he

“popped his grape,” and one police officer’s testimony that Al-Rubia’y fell backwards? 68 As the

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.

865 F.3d at 795-96 (citations omitted).

63

11/7/18 PM Tr. 1017:4-10.

64

11/29/18 PM Tr. 3114:15–3115:4.

65

11/16/18 PM Tr. 1979:10–1981:24.

66

11/19/18 PM Tr. 2167:8-9.

67

11/5/18 PM Tr. 624:22–625:19; 12/6/18 PM Tr. 3874:19–3875:5.

68

Compare 11/27/18 PM Tr. 2689:11-24 (“Q: And how did [Slatten] describe shooting at that man that was

allegedly taking aim at the convoy? A: He said he popped his grape. Q: Did he saw what happened to this man after

he popped his grape? A: That he slumped forward.”), with 11/19/18 AM Tr. 2071:7-13 (“I saw him[] leaning

backwards.”).

27

D.C. Circuit said, “to the extent [there is a] conflict[] . . . , the jury was entitled to disregard such

a minor discrepancy. Given the lack of evidence Slatten fired any other shots that day, the jury

could reasonably understand his ‘popped his grape’ comment to describe Al-Rubia’y, who had

been shot in the middle of his forehead.” Slatten, 865 F.3d at 797. So too for Slatten’s claim that

he shot a man taking aim at the convoy: “The jury could reasonably find that Slatten’s . . . claim .

. . was self-serving and therefore not trustworthy.” Id. at 796.

In the end, this trial—like its predecessor—included enough evidence for the jury to

conclude beyond a reasonable doubt Slatten committed each element of first-degree murder: that

he unlawfully killed Al-Rubia’y; that he acted with malice aforethought; and that he acted with

premeditation. In other words, the record sufficiently supports the verdict.

B. The jury’s verdict accords with the weight of the evidence.

With that background, the verdict’s sound evidentiary footing should be obvious. Of

course, a court may grant a new trial “despite the abstract sufficiency of the evidence to sustain

the verdict” if it concludes “the evidence preponderates sufficiently heavily against the verdict

that a serious miscarriage of justice may have occurred.” Tibbs, 457 U.S. at 38 n.11 (internal

quotation marks omitted) (quoting United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir.

1980)). But this record does not sufficiently militate against Slatten’s guilt. 69

Put simply, Slatten fails to blunt the government’s case. First, he points to Slough’s

“confessions”—but as subsection I.A.1 explains—those deserve particularly little weight. Next,

he trots out the witnesses who testified the turret gunners fired first, but their recollections are

even flimsier. After all, they’re testifying about a few-second sequence from over a decade ago,

69

Obviously, “[i]n considering a new trial motion based on the weight of the evidence” to “decide whether a serious

miscarriage of justice may have occurred,” a district judge can only “weigh[] . . . and evaluate[]” evidence the jury

itself considered. United States v. Dale, 991 F.2d 819, 838 (D.C. Cir. 1993). So the four pieces of evidence “not

admitted at trial” that Slatten offers for the Court’s consideration, see Mot. J. Acquittal 29, are of no moment.

28

in which either the turret gunners or Slatten fired first, but they could only see the turret gunners.

So their inference the turret gunners fired first (one witness admitted it was only an assumption)

proves little. What’s more, Slatten fumbles the significance of M-4 shells recovered from Nisour

Square after the shooting, since they hardly shed light on who fired first, or on who shot Al-

Rubia’y. Finally, despite swiping at Murphy and Watson’s testimony, Slatten does nothing to

undermine the broader evidentiary constellation supporting his guilt. Consequently, the jury’s

verdict accords with the weight of the evidence.

C. Jurisdiction and venue are proper.

Slatten’s renewed objections to this Court’s jurisdiction and to venue in the District of

Columbia fail from the start.

First, jurisdiction. MEJA empowers the government to prosecute civilians who commit

crimes while employed abroad by the United States to support its military mission. As relevant

here, the government must prove three elements to activate MEJA’s jurisdictional grant: First,

that the charged conduct would be punishable by more than one-year imprisonment if it occurred

within the United States’ special maritime and territorial jurisdiction. Second, that a contractor or

subcontractor of a federal agency employed Slatten. Third, that Slatten’s employment related to

supporting the Defense Department’s mission. See Slatten, 865 F.3d at 781 (citing 18 U.S.C.

§§ 3261, 3267). In its prior opinion, the D.C. Circuit held evidence showing Slatten provided

security for State Department diplomats in Baghdad satisfied the third prong. See id. at 781-82.

And though Slatten quibbles with that approach, he concedes the government followed it here.

See Mot. J. Acquittal 23-24. So unless and until the en banc Court of Appeals or Supreme Court

decides otherwise, this Court properly exercised jurisdiction.

29

Second, venue. As the D.C. Circuit noted, “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.” Slatten, 865 F.3d at 786 (citing 18

U.S.C. § 3238). To determine where someone was arrested, this Circuit looks to “where the

defendant is first restrained of his liberty in connection with the offense charged.” Id. (emphasis

in original) (internal quotation marks omitted) (quoting United States v. Wharton, 320 F.3d 526,

537 (5th Cir. 2003)). A joint offender includes “anyone who has joined others in participating in

the same act or transaction constituting a crime or crimes.” Id. at 787-88. On this basis, the D.C.

Circuit held Jeremy Ridgeway (one of the turret gunners who fired at the Kia) was “clear[ly] . . .

a joint offender” because by being “in Nisur Square as a member of the . . . convoy and . . .

fir[ing] at civilians,” he “participated in the ‘same series of acts or transactions’ that gave rise to

the prosecution.” Id. at 788 (quoting Fed. R. Crim. P. 8(b)). And since “Ridgeway was first

arrested in the District of Columbia,” the D.C. Circuit already concluded his “arrest established

venue here.” Id. at 787; see also id. at 789 n.5.

II. Slatten’s Motion for a New Trial

After mining the six-week-long trial record for thirty-five distinct issues, Slatten’s second

motion demands (at most) a new trial or (at least) an evidentiary hearing. Each issue will be

discussed in turn. But briefly: although some were errors, none merit relief. See Fed. R. Crim. P.

52(a). So the Court will deny his motion.

A. Matthew Murphy’s testimony does not require a new trial because any error was

harmless.

As subsection I.A.1 explains, convoy member Matthew Murphy identified Slatten as the

initial shooter. Murphy testified the first significant sounds he heard in Nisour Square were “two

loud hollow popping sounds, like a firecracker in a 55-gallon drum” coming “near” his location,

30

“sort of behind” him and “off to the left”—exactly where Slatten’s vehicle was. 70 Murphy—

wearing ear protection—couldn’t precisely identify the sounds, but he knew they weren’t pen

flares, or shots from an M-4, or shots from a turret gunner’s M-240, or shots from a Glock pistol,

or grenades from an M-203. 71 With those sources ruled out, Murphy concluded “the only sound

that could emanate from within our team that makes sense” was Slatten’s SR-25: “Nobody else

has a weapon or device that sounds like that in the entire team, and that sound came from within

our team, from the area relative to me where [Slatten’s] vehicle was.” 72 That said, Murphy

admitted the hollow pops sounded different from other times he heard Slatten fire his SR-25. 73

But Murphy knew Slatten fired his SR-25 at some point (Slatten told him so 74), and Murphy

thought of two reasons why it might have sounded differently: maybe Slatten used his team-

issued suppressor, or maybe Slatten’s gun sounded differently because it was fired inside a

vehicle. 75 Murphy reiterated this account a few days later on cross-examination (describing “two

loud muffled popping noises” that “w[ere] clearly not [] pen flare[s]” nor “a 240 . . . M4, et

cetera,” leading him to conclude after the fact through process of elimination they were an SR-

25, and that “[t]he rational presumption is that it was [Slatten shooting] if somebody was

shooting an SR-25 since he was the only one that had one” 76) and on re-direct (recounting “two

loud pops” from “more or less” Slatten’s vehicle that “didn’t sound like any of the typical

70

11/07/18 PM Tr. 1017:4-23.

71

See id. at 1017:24–1019:5, 1026:6-10.

72

Id. at 1022:7–14; 1024:14–1026:5.

73

See id at 1022:7–14; 1024:14–1026:5.

74

See 11/13/18 AM Tr. 1126:24–1127:16.

75

See 11/07/18 PM Tr. 1022:7–14; 1024:14–1026:5.

76

11/13/18 AM Tr. 1184:9-1200:3.

31

weapons” he “was used to hearing” so “presumably it was [Slatten] shooting from inside his

vehicle” since “[t]hat would distort the sound and make it sound different” 77).

Slatten raises three concerns about this testimony. The first characterizes Murphy’s

account as impermissibly speculative. The second requires

discussion under seal. The third upbraids prosecutors for flouting this Court’s order directing

them to tell Murphy not to theorize whether Slatten used a suppressor, a detail the government

previously promised not to elicit. But consistent with its prior rulings on the first point, the Court

holds Murphy’s testimony was admissible under Federal Rules of Evidence 602 and 701. Accord

ECF Nos. 858, 1072. And on the second issue, the

Court finds no problem. Accord ECF Nos. 858, 1076. Finally, though a

breathtaking lapse in professional judgment, the government’s failure to follow this Court’s

order was harmless. So in the end, nothing about Murphy’s testimony requires a new trial.

1. Rules 602 and 701 permit Murphy’s testimony.

Slatten argues Murphy’s attribution of the initial pops to Slatten’s SR-25 improperly

rested on Murphy’s inference that an SR-25 fired inside a vehicle sounds different from an SR-

25 fired outside a vehicle. Slatten claims that Murphy wasn’t qualified to make the inference,

and that it is factually incorrect.

But Rule 602 invites anyone to testify about anything they have personal knowledge

about, and Rule 701 allows them to rationally extrapolate from this knowledge to opine on

matters “helpful to . . . determining a fact in issue” as long as the opinion does not rely on

“scientific, technical, or otherwise specialized knowledge.” Together, the rules “ensure that any

opinions offered by a lay witness are based on personal, ‘first-hand knowledge or observation,’

77

See id. at 1217:23–1221:6, 1227:17–1229:17.

32

and ‘a process of reasoning familiar in everyday life’” while still permitting witnesses to offer

conclusions “‘that cannot be described factually . . . apart from inferences.’” United States v.

Williams, 827 F.3d 1134, 1155-56 (D.C. Cir. 2016) (citations omitted) (quoting Fed. R. Evid.

701 adv. comm. note (2000 amend.)). If a witness identifies the objective basis for their opinion,

“thus ensur[ing] that the jury has the information it needs to conduct an independent assessment”

of it, the Rules allow it. United States v. Hampton, 718 F.3d 978, 981 (D.C. Cir. 2013).

That’s what Murphy did here. To help the jury determine who fired first, Murphy

suggested it was Slatten, an opinion founded on sounds he personally perceived in Nisour Square

compared to sounds he personally perceived previously when convoy members fired their

weapons, and on his personal perception of the sound’s direction. Courts routinely hold

witnesses do not use scientific or technical knowledge when distinguishing between familiar

sounds. See, e.g., United States v. Mendiola, 707 F.3d 735, 741 (7th Cir. 2013); United States v.

Bush, 405 F.3d 909, 916 (10th Cir. 2005); see also Williams Enters. v. Sherman R. Smoot Co.,

938 F.2d 230, 234 (D.C. Cir. 1991) (“As long as [the lay witness] had personal knowledge of the

facts, he was entitled to draw conclusions and inferences from those facts—regardless of whether

he applied any specialized expertise.”). Now, Murphy’s distinction isn’t airtight—he can’t

precisely identify the sound he perceived in Nisour Square. But he revealed to the jury he

identified Slatten’s SR-25 through everyday reasoning and the common-sense recognition that

the same noise sounds differently when it passes through a solid barrier from a confined space to

the open air. Importantly, Murphy never hid the ball: he was transparent about his reasoning and

made clear he had never heard an SR-25 fired from within a vehicle. 78 Besides, testimony

identifying shooters is rarely airtight, yet courts commonly allow lay witnesses to infer identity

78

See 11/07/18 PM Tr. 1022:7-14; 1024:14–1026:5.

33

So in light of the Maine factors, and consistent with its prior rulings, see ECF No. 766, the

Court declines to apply judicial estoppel.

Second, law-of-the-case: the principle that “the same issue presented a second time in the

same case in the same court should lead to the same result.” LaShawn A. v. Barry, 87 F.3d 1389,

1393 (D.C. Cir. 1996) (en banc).

But law-of-the-case does not ossify erroneous decisions vacated by a higher court. See

Agostini v. Felton, 521 U.S. 203, 236 (1997).

38

See also ECF No. 766.

3. The government’s failure to stop Murphy from speculating about whether

Slatten used a suppressor was egregious but harmless.

A long time ago, this Court registered its “deep[] disappoint[ment] that any litigant would

fail to obey orders . . . and then conceal and cover-up that disobedience with outright false

statements.” Cobell v. Babbitt, 37 F. Supp. 2d 6, 38 (D.D.C. 1999). “When that litigant is the

federal government, the misconduct is even more troubling.” Id. And when that litigant heads the

Criminal Division of our nation’s largest U.S. Attorney’s office, it is more troubling yet. He is

lucky his misstep was harmless.

Some background: During the second trial, Murphy wondered aloud whether Slatten’s

SR-25 sounded differently not only because Slatten fired from inside the vehicle, but also

because he used a suppressor. 82 This testimony didn’t totally lack an evidentiary foundation—the

government can prove Slatten was issued a suppressor. See Gov’t’s Ex. 9865. But the

government had never presented this information to the jury, partly because numerous witnesses

(including Murphy himself) admitted they don’t know if Slatten used the suppressor during the

shooting. See Def.’s Mot. Lim. exs. C–F, ECF Nos. 956-3–956-6. Before the third trial, Slatten

moved to exclude any testimony or evidence regarding a suppressor under Rule 403, arguing

“the prejudicial nature of this evidence dwarfs any minimal probative value” by “invit[ing] jurors

to associate Mr. Slatten with the criminal hit men and assassins whom they already associate

82

See 7/10/18 AM Tr. 1817:5-10 (“An SR25 fired unsuppressed in open air sounds distinctly different from a

suppressed SR25 fired from inside a vehicle.”); 7/10/18 PM Tr. 1862:21–1863:10 (“Q: . . . You used the word, I

believe, ‘suppressed.’ What do you mean by that? . . . A: Well, when we say suppressed, that’s what—people think

of the Hollywood term ‘silencer,’ which nothing—there’s nothing that effectively really silences a round that large.

But a suppressor is an attachment to muffle the noise and reduce the flash generally of a round fired from a rifle or

pistol.”).

39

with suppressors.” Id. at 5, ECF No. 956. In response, the government swore off “elicit[ing]

testimony or otherwise seek[ing] to introduce evidence about [Slatten’s] suppressor.” Gov’t’s

Resp., ECF No. 999. That strategy surprised the Court, not least because Rule 403 “tilts . . .

toward the admission of evidence.” United States v. Moore, 732 F.2d 983, 989 (D.C. Cir. 1984).

But regardless, the Court took the government’s suggestion and denied Slatten’s motion as moot.

See ECF No. 1046. The Court included the following proviso: “Based on [the government’s]

representation, the Court expects the government to instruct its witnesses not to testify regarding

a suppressor and to properly redact any documents related to the subject.” Id.

The government ignored that order. 83 To lay a foundation for Murphy’s process-of-

elimination reasoning, the prosecutor asked, “What weapon systems were you familiar with at

the time?” 84 Murphy responded, “I was familiar with the 203, the M4, the 249, the 240, and

83

The prosecutor admitted doing so, though he equivocated as to why. Immediately after Murphy’s testimony, he

feigned surprise: “I can say that I did not instruct [Murphy] beforehand because he had never mentioned a

suppressor as being on that weapon or suggest that there was a suppressor, and it’s contrary to his grand jury

testimony.” 11/7/18 PM Tr. 1059:8-14. Of course, that was false—Murphy offered nearly identical testimony

regarding a suppressor a few months earlier in the second trial; the prosecutor personally referenced that exact

testimony in a letter to defense counsel before the third trial, see ECF No. 1121-6 at 3; and the defense extensively

cited Murphy’s second-trial testimony in a pre-third-trial motion about this precise issue, see ECF No. 956. So in a

letter to the Court the next day, the prosecutor distanced himself from that “unintentional misstatement” and

explained he “did not anticipate Mr. Murphy would reference a suppressor” because he “forgot aspects of Mr.

Murphy’s testimony from the retrial this summer and had not re-reviewed it in his entirety before putting Mr.

Murphy on the stand” in the third trial. ECF No. 1121-9 at 3. But the day after that, the government changed its tune

again, now advancing the incredible suggestion that the Court should have been clearer its order: “[T]he government

believed, based on the context in which the Court’s . . . Order was issued, that the admonishment directive applied to

those witnesses testifying to [the] issuance of a suppressor to Defendant, and the supporting documents—namely,

Jonathan Webb, the [convoy’s] armorer.” ECF No. 1120 at 14. That statement beggars belief. The “context” of the

Court’s order was dismissing as moot Slatten’s motion to exclude Murphy from testifying about a suppressor, and its

content was unambiguous: “Based on [the government’s] representation [conceding the motion in limine], the Court

expects the government to instruct its witnesses not to testify regarding a suppressor and to properly redact any

documents related to the subject.” ECF No. 956. So finally, on his fourth try, the prosecutor fessed-up: “[W]e in

good faith thought we could lead [Murphy] to the first portion [that he ruled out all other sounds but Slatten’s SR-

25], and, again, give the defense the option, if they wanted to, to go into other bases, question his bases [for that

conclusion], and potentially elicit the notion that Mr. Slatten had a suppressor at the time, but he did not believe it

was on the weapon at the time.” 11/9/18 AM Tr. 1148:5-9.

84

11/7/18 PM Tr. 1018:2.

40

unsuppressed SR-25.” 85 A few minutes later, defense counsel asked to approach: “I just am

concerned that [Murphy] used the word ‘unsuppressed’ before, and I want to make sure we

protect against that.” 86 Defense counsel asked the prosecutor: “Has [Murphy] been instructed

that he’s not supposed to talk about suppressed versus unsuppressed?” 87 In response, the

prosecutor promised “to try to lead as much as I can. . . . Consistent with his testimony last time,

when he uses the word ‘suppressed,’ he means being inside the vehicle at the time. So I think I

can lead through this, but if we’re anywhere close, we could just take a break.” 88

But Murphy could not be led. Seconds after the prosecutor resumed direct examination,

the following exchange ensured:

Q: And you had never heard Mr. Slatten’s sniper rifle being fired

while Mr. Slatten was inside a vehicle?

A: I don’t believe so.

Q: And when you had previously said “suppressed,” is that what

you’re referring to? In other words, you had not heard his weapon

being fired within a vehicle?

A: That’s not what I meant, but I had not heard that, no.

Q: You had not heard that? Okay. But the bottom line is, you

had not heard that weapon being fired from inside the vehicle?

A: No, I had not.

Q: At some point later on, did you conclude that those first two

hollow pops that you heard at the very beginning of the shooting

incident were attributable to Mr. Slatten firing that weapon within

the command vehicle?

A: I did.

Q: How did you arrive at that conclusion?

A: Because it’s the only sound that could emanate from within

our team that makes sense.

Q: What do you mean by that?

A: Because nobody else has a weapon like that, has anything that

would produce that noise. And I know that he had a suppressor for

85

Id. at 1018:3-4.

86

Id. at 1021:14-16.

87

Id. at 1021:22-24.

88

Id. at 1021:17–1022:3.

41

the rifle. And to me, it sounded—suppressors aren’t like a

Hollywood depiction where it’s— 89

Defense counsel interjected and cut off the testimony. 90 Immediately thereafter, the prosecutor

rushed to clean-up the spill:

Q: Let me be clear in my questions. You did not see Mr. Slatten

with a suppressor that day?

A: No.

Q: Okay. And whether he had been issued one or not, you’re not

saying you saw him with a suppressor on the rifle that day?

A: Nope, I’m certainly not.

Q: But—and you had not heard him fire his weapon inside of the

command vehicle or inside another vehicle?

A: No.

Q: And you’re not entirely sure what that would have sounded

like?

A: That’s correct.

Q: But nonetheless, you attributed those first two hollow pops to

him?

A: Yes. 91

Before testimony resumed on the next day of trial, 92 the Court read the following instruction—

drafted by defense counsel, see ECF No. 1121-11—to the jury:

On direct examination on Wednesday, the government elicited

testimony from Mr. Murphy about the sounds he claims to have

heard in Nisour Square on September 16th, 2007. The government

does not contend, and there is no evidence, that Mr. Slatten had or

used a suppressor in Nisour Square during the September 16, 2007

incident at issue in this case. Mr. Murphy’s testimony regarding a

suppressor has been stricken from the record, and you must

disregard it in its entirety. 93

89

Id. at 1022:17–1023:14.

90

Id. at 1023:15–1024:12.

91

Id. at 1024:14–1025:3.

92

The mishap occurred during the afternoon of Wednesday, November 7, 2018; the Court canceled trial on

Thursday, November 8 because of Slatten’s medical treatment; the jury did not sit on Friday, November 9; and

Monday, November 12 was Veteran’s Day; so the jury next sat on Tuesday, November 13.

93

11/13/18 AM Tr. at 1168:21–1169:3.

42

Today, the Court concludes these curative measures adequately avoided prejudicing

Slatten. 94 Putting aside the prosecutor’s extraordinary conduct, Murphy only said that he knew

Slatten had a suppressor—defense counsel interrupted before he could even explain what a

suppressor was or how it would affect an SR-25’s sound. The very next testimony the jury heard

was Murphy forcefully clarifying he did not see Slatten use a suppressor in Nisour Square. And

the Court unequivocally instructed the jury to disregard Murphy’s statement about a suppressor

in its entirety, an instruction courts “generally presume that a jury will follow . . . absent ‘an

overwhelming probability that the jury will be unable to.’” United States v. Crews, 856 F.3d 91,

97 (D.C. Cir. 2017) (quoting Greer v. Miller, 483 U.S. 756, 766 n.8 (1987)).

No probability exists here. Most importantly, Murphy’s mention of a suppressor was

fleeting, interrupted, and incomplete. And not for nothing, Murphy used the term “suppressor,”

not the more common (and more charged) synonym “silencer.” To the extent either word

conjures images of “assassins and hit men,” Mot. New Trial 16, it seems far more likely to be

“silencer” (what Murphy didn’t say) than “suppressor” (what he did say). Indeed, many people

do not even realize a suppressor and a silencer are the same thing. See, e.g., Are firearms with a

silencer ‘quiet’?, Wash. Post (March 20, 2017), https://www.washingtonpost.com/news/fact-

checker/wp/2017/03/20/are-firearms-with-a-silencer-quiet/?utm_term=.f977c4f52d1f.

Moreover, Murphy’s slip was harmless. For one, Murphy’s suppressor theory was neither

his only nor his modal justification for attributing the initial sounds to Slatten’s SR-25—he

repeatedly and more consistently posited Slatten’s SR-25 sounded differently since Slatten shot

94

Slatten now complains these were only “half-measures” since the Court did not allow him to impeach Murphy

with his prior statement that the two pops did not sound suppressed or to otherwise cross-examine him. Mot. New

Trial 17-19. But in the immediate wake of Murphy’s testimony, Slatten forewent both opportunities, moving to

strike the testimony and for a curative instruction, which the Court granted. And once the Court struck the testimony

(again, at Slatten’s request), allowing impeachment or cross-examination would have been improper. See Fed. R.

Evid. 611(b) (“Cross-examination should not go beyond the subject matter of the direct examination . . . .”).

43

from inside the vehicle. And the government’s case certainly holds up without Murphy’s

suppressor theory, since a jury previously convicted Slatten at a trial where Murphy did not

mention a suppressor. See also Slatten, 865 F.3d at 795-97 (ratifying the record’s sufficiency).

What’s more—setting aside the government’s disregard for a court order—the Court remains

unsure whether Murphy’s testimony was actually improper: Slatten’s possession of a suppressor

(which the government can unquestionably prove) provides an alternative explanation for the

distinctive “hollow popping” noises multiple witnesses reported, and for why eyewitnesses on

the ground did not notice Slatten shooting, both making it at least slightly more likely Slatten

fired the initial shots. 95

Nor is this case like United States v. Eccleston, a case Slatten cites for the proposition

that courts should grant mistrials where inadmissible testimony directly incriminates a defendant

in an otherwise “slight and circumstantial” prosecution since the “danger of prejudice . . . [i]s so

great because of the weakness of the government’s case.” 960 F.2d 955, 960-61 (D.C. Cir. 1992).

In Eccleston, only the inadmissible testimony directly incriminated the defendant. See id. at 961.

But here, another witness also identified Slatten as the initial shooter. See supra note 10 and

accompanying text.

The bottom line is that the prosecutor’s mistake—though profound—was not prejudicial.

Even still, the Court reminds the prosecution team that “[t]he institutions of our federal

government cannot continue to exist if they cannot be trusted.” Cobell, 37 F. Supp. 2d at 38.

Here, the government’s gross negligence risked countless amounts of time, taxpayer resources,

95

A fair question: if it wasn’t necessary for the government to follow this Court’s order, why issue it in the first

place? Well, because Slatten requested it. After the government’s foreswore this evidence in its response to Slatten’s

motion in limine, Slatten’s reply “respectfully request[ed] that the government be required to instruct its witnesses

accordingly in order to avoid any inadvertent testimony on this . . . subject.” ECF No. 1008. And the government did

not oppose this request. So regardless of its own views, the Court issued an order formalizing the parties’ consensus.

44

and international goodwill, all because of an unfortunate and easily avoidable situation. It cannot

happen again.

B. The government properly relied on Jimmy Watson’s testimony.

As subsection I.A.1 noted, Jimmy Watson cannot recall everything that happened in

Nisour Square. So as in the previous two trials, the government spent much of Watson’s time on

the stand impeaching him with his 2013 grand jury testimony, which provides details about the

Nisour Square incident he no longer remembers with clarity.

Slatten identifies two problems with this approach. First, Slatten argues the government

should not have been able to call Watson just to impeach him, citing United States v. Johnson,

802 F.2d 1459 (D.C. Cir. 1986). But Johnson held no such thing—and even if it did, Slatten’s

argument remains procedurally improper and substantively unpersuasive. Second, Slatten argues

the government and the Court improperly bolstered Watson’s grand jury testimony. But any

misuse was harmless. So the government properly relied on Jimmy Watson’s testimony.

1. Johnson did not preclude Watson’s testimony.

In 1975, Rule 607 abandoned the long-standing prohibition on a litigant impeaching its

own evidence to instead allow “[a]ny party, including the party that called the witness, [to] attack

the witness’s credibility.” Despite this expansive language, Slatten argues Johnson narrowed

Rule 607 to forbid litigants from calling hostile witnesses merely to impeach them with prior

statements. That legal argument fails for several reasons.

First and foremost, Slatten waived it. As he acknowledges, the government has always

planned to impeach Watson with his grand jury testimony—even during Slatten’s first trial.

Slatten appealed his conviction from that trial, but did not raise this issue. And “a party waives a

‘contention that could have been but was not raised on [a] prior appeal.’” Laffey v. Nw. Airlines,

45

Inc., 740 F.2d 1071, 1089 (D.C. Cir. 1984) (alteration in original) (quoting Munoz v. Cty. of

Imperial, 667 F.2d 811, 817 (9th Cir. 1982)). In other words, a “legal decision made at one stage

of litigation, unchallenged in a subsequent appeal when the opportunity to do so existed,

[governs] future stages of the same litigation, and the parties are deemed to have waived the right

to challenge that decision at a later time.” United States v. Thomas, 572 F.3d 945, 949 (D.C. Cir.

2009) (emphasis in original) (internal quotation marks omitted) (quoting Crocker v. Piedmont

Aviation, Inc., 49 F.3d 735, 739 (D.C. Cir. 1995)); see also Yakus v. United States, 321 U.S. 414,

444 (1944) (holding waiver rules apply to all cases and all rights).

Yet even if Slatten could dodge waiver, he would run into the mandate rule, which

forbids lower “courts from reconsidering issues that have already been decided in the same

case.” Indep. Petrol. Ass’n of Am. v. Babbitt, 235 F.3d 588, 597 (D.C. Cir. 2001) (quoting

LaShawn A., 87 F.3d at 1393 n.3). True enough, the doctrine does not apply to issues not raised

and thus not decided. See Yesudian ex rel. United States v. Howard Univ., 270 F.3d 969, 972

(D.C. Cir. 2001). But it does apply to decisions the appellate court “necessar[il]y impli[ed].”.

Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 251 (D.C. Cir. 1987).

And in his earlier appeal, Slatten raised—and the Court of Appeals rejected—a sufficiency

challenge. Because that record prominently featured Watson’s grand jury testimony impeaching

his live testimony, the Circuit sub silentio sanctioned the approach.

And even if Slatten could hurdle law-of-the-case, his argument lands on shaky ground.

Slatten stakes his case on the following passage from Johnson:

Impeachment evidence is to be used solely for the purpose of

impeachment, and it may not be employed as mere subterfuge to get

before the jury evidence not otherwise admissible. This type of

bootstrapping is impermissible, and it is an abuse of [Rule 613], in

a criminal case, for the prosecution to call a witness that it knows

46

will not give it useful evidence, just so it can introduce hearsay

evidence against the defendant.

802 F.2d at 1466 (internal quotation marks, alterations, and citations omitted). This passage

suffers from two obvious flaws. First, it principally relies on a Fourth Circuit case predating

Rule 607’s revision. See id. (citing United States v. Morlang, 531 F.2d 183, 190 (4th Cir. 1975));

see also United States v. DeLillo, 620 F.2d 939, 946-947 (2d Cir. 1980) (disavowing Morlang

accordingly). Second—and more importantly—it’s dicta: since “defense counsel[] fail[ed] to

object to introduction of the statement as impermissible bootstrapping,” the Johnson court was

“constrained to hold” the defendant “waive[d]” the issue. Johnson, 802 F.2d at 1466. And in the

thirty-three years since Johnson, the D.C. Circuit has never (not once) acknowledged this

dictum—let alone adopted it—in any opinion, published or otherwise. If anything, the Circuit

suggested the contrary in United States v. Milton, 8 F.3d 39, 46-47 (D.C. Cir. 1993), by affirming

the district court’s decision to admit grand jury testimony under Rule 801(d) after a witness

“testified that she could remember almost nothing about the [incident in question] or what she

told the grand jury.” So Johnson does not bind this Court.

What’s more, Johnson had very different facts. In Johnson, the witness’s live testimony

incriminated himself and exculpated the defendant; the government impeached this testimony

with the witness’s prior statement fingering the defendant. 802 F.2d at 1463. In other words, the

Johnson witness’s prior statement directly contradicted his live testimony. But here, Watson just

said he couldn’t remember what happened 96—which, as Milton points out, doesn’t necessarily

contradict his grand jury testimony. 97 So to the extent Johnson prevents the government from

calling a witness it knows will directly contradict a prior statement, it wouldn’t apply to Watson.

96

See 11/14/18 PM Tr. 1478:22–1518:24.

97

Other circuits agree. See, e.g., United States v. Gajo, 290 F.3d 922, 930-32 (7th Cir. 2002).

47

That’s all the more true because no one honestly knew what Watson would say on the

stand. Anyone who saw Watson testify—in any of the trials—understands his proclivity to blurt

out wildly irrelevant and sometimes shocking testimony. 98 His sui generis combination of

physical, mental, and emotional injuries tragically renders his testimony uniquely unpredictable,

a circumstance absent from Johnson. In effect, the Court does not believe anyone who claims to

have known with certainty exactly what Watson would say during the third trial.

That said, the government did two things before the third trial betraying an expectation

Watson would again be unable to remember what he saw or said: First, the government moved

to pre-admit Watson’s grand jury testimony. See ECF No. 1096. Second, the government’s

opening statement acknowledged Watson “may” say things inconsistent with his grand jury

testimony. 99 Yet that expectation stems from the government’s experience trying the same case

with the same witnesses and the same evidence a few weeks earlier; less than four months

separated Watson’s second and third appearances. Because of this quirk, Slatten tries to slash

Watson from the case. But that would be an exceedingly odd rule: any time a government

witness surprised prosecutors with pro-defendant testimony on the stand, the government would

be unable to recall him in a subsequent retrial.

Indeed, the closer one looks at Johnson, the more distinctions appear. In Johnson, the

witness testified in the government’s rebuttal case, and neither the witness’s live testimony nor

his prior statement necessarily bore on the defendant’s guilt; the government called the witness

only to rebut a defense witness’s alibi. See Johnson, 802 F.2d at 1463. So to the extent Johnson

signifies anything, it’s that the government can’t go through the charade of calling a witness it

98

See, e.g., 7/17/18 PM Tr. 2835:17-23.

99

See 11/5/18 AM Tr. 532:10-24.

48

knows will be unfavorable if it’s only seeking to impeach someone else. It’s quite a leap from

there to chisel out a broad exception to “the familiar, standard rule that the prosecution is entitled

to prove its case by evidence of its own choice.” 100 Old Chief, 519 U.S. at 186-87. The Court

sides with that rule and with Rule 607’s plain text to conclude Johnson did not preclude

Watson’s testimony.

2. Any misuse of Watson’s grand jury testimony was harmless.

Slatten complains about three boosts to Watson’s grand jury testimony, blaming one on

the Court and two on the government. But the Court did not err, and even if the government did,

it was harmless.

First, Slatten argues the Court improperly admitted an excerpted transcript of Watson’s

grand jury testimony as a physical exhibit, instead of just reading it into the record. But Slatten

points to no binding authority limiting the Court’s discretion as to how to receive evidence under

Rule 801(d), 101 especially where—as here—the Court sees good reason to let the jury access the

transcripts: Watson gave the sworn testimony much closer to the shooting, it was widely used at

trial, and Slatten could contextualize it on cross-examination. Moreover, the Court went out of its

way to discourage the jury from giving the transcripts improper weight:

Certain prior testimony excerpts have been admitted as evidence and

exhibits in this case. You may consider a witness’ prior sworn

testimony, taken under oath, as evidence similar to in-court

testimony. You should take into account that the excerpts of prior

testimony for which you have a transcript may lack context because

they’re only excerpts. You must not give prior testimony for which

you have a transcript more weight or credit than the testimony you

100

United States v. DeLillo, which the Johnson court relied on, further illustrates Johnson’s narrowness. In DeLillo,

the Second Circuit allowed the government to call an adverse witness in order to impeach him with a prior sworn

statement since the government agreed with some (but not all) of the witness’s testimony. See 620 F.2d at 946.

That’s also true here: prosecutors endorse much of Watson’s testimony. See 11/14/18 PM Tr. 1478:22–1518:24. So

if not Johnson itself, at least the cases Johnson cites clarify Watson’s testimony falls well within Rule 607.

101

To the extent the Confrontation Clause has any relevance, it does not support Slatten’s argument that the form (as

opposed to the substance) of Watson’s prior testimony caused prejudice.

49

heard presented during trial. Subject to these considerations, you

may give this evidence such weight as in your judgment it’s

otherwise fairly entitled to receive. 102

Slatten never explains that instruction’s insufficiency, especially given the presumption “that

jurors, conscious of the gravity of their task, attend closely the particular language of the trial

court’s instructions in a criminal case and strive to understand, make sense of, and follow the

instructions given them.” Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985).

All the same, the Sixth Circuit “has held that a district court abuses its discretion when it

allows for grand jury testimony to be presented as an exhibit to the jury,” since it “creates a

potential for double exposure to selected testimony that may improperly influence a jury.”

United States v. LaVictor, 848 F.3d 428, 453 (6th Cir. 2017) (citing United States v. Smith, 419

F.3d 521, 527 (6th Cir. 2005)). But that Circuit caveats that “not all decisions to admit transcript

testimony amount to an abuse of discretion” and that “any prejudice from having grand jury

testimony admitted can be ameliorated by watching the witness testify.” Id. Thus the Court’s

decision here wouldn’t constitute error in the Sixth Circuit either, “because the jury had the

benefit of seeing [Watson] testify,” Slatten “had a full opportunity to cross-examine [him] and

place [his] grand-jury testimony in context,” and Watson’s grand jury testimony was not the only

evidence incriminating Slatten. Id.

Second, Slatten claims the government improperly called attention to the fact that the

undersigned approved his 2013 immunity order pursuant to his duties as the Chief Judge of this

District. Troublingly, the government promised the defense to redact any reference to the

undersigned from Watson’s immunity order, but with Watson on the stand, the government went

ahead and told the jury anyways:

102

12/12/18 AM Tr. 4482:4-14.

50

Q: . . . And then in March—March 8th, 2013, you get immunity?

A: Yes.

Q: Do you remember that? Okay. So—and actually a federal

district judge, this judge right here, Judge Lamberth, signs an order

saying you are compelled to testify in front of the grand jury. And

that is March 8th 2013?

A: Yes sir. 103

A best prosecutorial practice? No. But it wasn’t prejudicial error either, since the Court issued

the following curative instruction later that day:

Before lunch, the government elicited testimony from Mr. Watson

that I issued an immunity order compelling Mr. Watson to testify

before the grand jury. You are instructed that a judge’s role in

granting immunity and ordering testimony before a grand jury is

purely ministerial, and the Court must issue the order upon a request

from the prosecution. The decision as to whether or when to grant

immunity to a witness rests exclusively with the prosecution. The

fact that I signed Mr. Watson’s immunity order when I was chief

judge of the court should play no role in your consideration. 104

See United States v. Burroughs, 935 F.2d 292, 295 (D.C. Cir. 1991) (“Unless there is some good

reason for finding otherwise, and here there is none, trial courts and appellate courts proceed on

the basis that the jury does comply [with curative instructions].”). 105

Third, Slatten objects to the government’s closing-argument exhortation to credit

Watson’s grand jury testimony more than his live testimony because he was neither confronted

by Slatten nor subjected to cross-examination before the grand jury:

Many of these men got up there and talked to you about how

important it is in their minds to serve with other individuals in the

Armed Forces, and in the trenches, that bond, that camaraderie is

strong. How difficult would that be to get in open court like this and

103

11/15/18 AM Tr. 1645:7-15.

104

11/15/18 PM Tr. 1690:4-18.

105

Burns v. Gammon, 260 F.3d 892 (8th Cir. 2001) is inapposite. There, the Eighth Circuit held prosecutors

unconstitutionally “use[d] the defendant’s exercise of specific fundamental constitutional guarantees against him at

trial” by “ask[ing] the jury, while considering guilt and sentencing, to consider the fact that [the defendant], by

exercising his constitutional right to a jury trial and to confront witnesses, forced the victim to attend trial, take the

stand, and relive the attack.” 260 F.3d at 896. By contrast, these prosecutors skirt the issue by merely arguing the

relative weight due each kind of testimony.

51

say something that might hurt a brother in arms? In the grand jury,

though, your obligation is to tell the truth, and there is no one facing

you down, and that truth may come a little bit easier in the grand

jury. 106

Regardless of whether this statement amounts to legal error, 107 the Court does not think

the Department of Justice should be in the business of shading a defendant’s confrontation right,

our legal system’s “principal means of undermining the credibility of a witness whose testimony

is false or inaccurate,” United States v. Salerno, 505 U.S. 317, 328 (1992) (Stevens, J.,

dissenting), and “beyond any doubt the greatest legal engine ever invented for the discovery of

truth.” 5 J. Wigmore, Evidence § 1367 (Chadbourn rev. 1974). That said, “[t]he touchstone of a

prosecutorial misconduct claim is prejudice: the court must consider ‘the probable effect the

prosecutor’s [statements] would have had on the jury’s ability to judge the evidence fairly.’”

United States v. Thomas, 114 F.3d 228, 246 (D.C. Cir. 1997) (alteration in original) (quoting

United States v. Young, 470 U.S. 1, 12 (1985)). “To determine whether improper remarks by the

prosecutor have substantially prejudiced a defendant’s trial, the court looks to ‘the severity of the

misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent

the improper remarks.’” Id. (quoting United States v. Williams-Davis, 90 F.3d 490, 507 (D.C.

Cir. 1996)). Here, the Court’s instructions corrected the prosecutor’s fleeting misstatement with

an instruction directing jurors to “consider a witness’ prior sworn testimony, taken under oath, as

evidence similar to in-court testimony” but to “not give [it] more weight or credit than the

106

12/11/18 PM Tr. 4403:21–4404:4; see also 12/11/18 AM Tr. 4218:4-18 (“Now he’s saying he’s not sure about

the sequence. Now he’s saying, upon the suggestion of questions by defense counsel, that it was very chaotic, it was

just very difficult to understand. And certainly war can be chaotic, but the very beginning of this incident, the very

thing that sets it off, there is no reason for Mr. Watson to forget about that. And those things he said in 2013 were

not in answer to leading questions. They were his own words. Okay? His own words. So in terms of the sequence . .

. . we are asking you to credit the sequence he gave in 2013.”).

107

It certainly does not amount to improper vouching—the prosecutor merely argued about what testimony the jury

should credit, and did not rely on extra-record evidence to do so. Cf. United States v. Boyd, 54 F.3d 868, 871-72

(D.C. Cir. 1995).

52

testimony you heard presented during trial. . . . [Y]ou may give this evidence such weight in your

judgment as it’s otherwise fairly entitled to receive.” 108 Slatten does not explain—and the Court

does not see—how this instruction failed to cure any error.

C. Neither the government nor the Court prevented Slatten from corroborating Paul

Slough’s statements.

On appeal from his first conviction, Slatten persuaded the D.C. Circuit to allow Slough’s

statements to State Department investigators under Rule 807, prompting the panel to vacate

Slatten’s conviction and remand for retrial. Now, Slatten claims the government and the Court

frustrated his attempts to corroborate those statements. But the three issues he raises do not

justify a new trial.

The first concerns the government’s cross-examination of Lisa Lopez, a State Department

employee who interviewed Slough after the shooting. Slatten called Lopez to lay a foundation

for admitting Slough’s statements. On cross-examination, the government threw a ball from left

field:

Q: Were you personally aware that at least one member of the

team wanted to prosecute Mr. Slough for making false statements to

the Department of State?

A: No.

Q: You were not aware of that?

A: No. 109

The government recognized this question (at least) impermissibly invited Lopez to opine on

another witness’s credibility. See Gov’t’s Mem. Opp’n 24, ECF No. 1259. So did the Court,

promptly instructing the jury that “[t]he government suggested that a State Department agent

thought Mr. Slough should be prosecuted for making false statements . . . . That suggestion was

108

12/12/18 AM Tr. 4482:4-14.

109

11/29/18 AM Tr. 3054:20-25.

53

improper. You should disregard that suggestion in its entirety.” 110 Thus the question now is

whether this instruction staved off any prejudice. The Court thinks it did, “given the brevity of

the offending testimony and the clarity of [the Court’s] instruction[].” United States v.

McLendon, 378 F.3d 1109, 1114 (D.C. Cir. 2004).

The second issue challenges the government’s cross-examination of Brandon Giroux, an

FBI ballistics expert Slatten called as an expert witness to trace a shell recovered from Nisour

Square to Slough’s rifle. 111 Giroux’s role was limited—he neither personally retrieved the shell

from Nisour Square nor personally seized Slough’s firearm, testing both later in the FBI

laboratory. So the government briefly cross-examined him on this relative lack of personal

knowledge:

Q: . . . Do you know for a fact whether that [round] was

recovered from Nisour Square?

A: No, I do not.

Q: Do you know where in Nisour Square it was recovered?

A: No, I do not.

* * *

Q: And similarly, whether [the rifle you examined] is the

weapon that Mr. Slough actually had or used on September 16th,

2007, you have no knowledge of that?

A: That’s correct.

Q: And sir, for all of these cartridge casings . . . you similarly do

not know when those cartridge casings were fired?

A: That’s correct.

* * *

Q: And you don’t know, frankly where they were collected

from?

A: That’s correct. 112

110

11/29/18 PM Tr. 3079:10-16.

111

In one of this case’s several twists-and-turns, Giroux actually served as a government expert witness in the first

trial, when Slatten and Slough were tried jointly, since his analysis contributed to the government’s case against

Slough. The Court agrees with Slatten that, because the government previously offered Giroux’s analysis as true and

correct, it cannot now attempt to portray the analysis as incredible. But the government can still contextualize the

evidence and point out its drawbacks. That’s all the government did here.

112

11/26/18 AM Tr. 2319:13–2320:19.

54

This is garden-variety cross-examination, not legal error.

The third issue revisits the Court’s decision to exclude hearsay testimony indicating

Slough felt remorse for his role in the incident. Specifically, Slatten argues the Court should have

admitted this testimony as evidence of Slough’s state of mind under Rule 803(3), or as a prior

consistent statement under Rules 806 and 801. But neither exception to the hearsay rule applies.

Although Rule 803(3) permits “a statement of the declarant’s then existing state of

mind,” it excludes “a statement of memory or belief to prove the fact remembered or believed.”

In other words, it does not permit the declarant to relate what caused the state of mind. So

although testimony limited just to Slough’s remorse may have been admissible under Rule

803(3), the testimony Slatten planned to elicit—“Did Mr. Slough approach you shortly after the

incident and apologize for what happened that day?”113—was broader, and thus inadmissible. 114

Slough’s statement of remorse fares no better as a prior consistent statement. By way of

Rule 801(d)(1)(B), Rule 806 allows prior consistent statements “to rebut an express or implied

charge that [a hearsay] declarant recently fabricated” his testimony, or “to rehabilitate the

declarant’s credibility.” Slatten argues Slough’s remorse rehabilitates his credibility by

countering the government’s theory that Slough lied to State Department investigators about how

and why he shot the Kia.

That makes no sense. Under the government’s theory, Slough lied to State Department

investigators to protect himself and his teammates, a motive to fabricate that crystalized the

113

11/28/18 AM Tr. 2740:11-19 (emphasis added).

114

United States v. Samaniego—the only case Slatten cites—hurts rather than helps. There, in a passage paralleling

this Court’s reasoning today, the Eleventh Circuit excluded evidence “offered to show not only that [the declarant]

was remorseful, but also that he” committed the offense, since “the purpose of . . . Rule 803(3) . . . is ‘to narrowly

limit those admissible statements to declarations of condition—“I’m scared”—and not belief—“I’m scared because

[someone] threatened me.”’” 345 F.3d 1280, 1282-83 (2003) (alteration in original) (quoting United States v. Cohen,

631 F.2d 1223, 1225 (5th Cir. 1980)).

55

moment he began shooting. So Slough’s post-shooting expression of remorse doesn’t rebut

Slough’s motivation to lie about why he shot—from the government’s perspective, Slough was

motivated to lie as soon as he pulled the trigger. See Tome v. United States, 513 U.S. 150, 165

(1995) (holding Rule 801(d)(1)(B) “permits the introduction of a declarant’s consistent out-of-

court statements to rebut a charge of recent fabrication or improper influence or motive only

when those statements were made before the charged recent fabrication or improper influence or

motive”). Nor do the statements shed light on Slough’s “character for truthfulness or

untruthfulness.” Fed. R. Evid. 608(a). So the Court properly excluded Slough’s expression of

remorse. 115

D. The government did not mislead the jury regarding witness availability.

Next, Slatten claims the government made “knowingly false” statements during its

summation that “improperly bolstered the credibility of its weak case” by averring it called every

eyewitness to the shooting. Mot. New Trial 30-31. If that’s really what the government said, it’s

a problem, since the government neither called every convoy member nor called a third Iraqi

police officer who was on the scene.

But the government’s closing argument said nothing of the sort. Rather, prosecutors

smithed their words carefully:

During openings the defense made a big deal about the fact that

there’s not a single eyewitness that can say, “I saw Mr. Slatten shoot

Ahmed.” And that’s true. But you know why that’s true? Because

he’s concealed inside of [the armored vehicle]. . . . So you actually

need to build a case by hearing about the people on the outside and

the people on the inside and around the vehicle. And ladies and

gentlemen, that’s what we did. We brought you at least one person

from every single [convoy] vehicle that was there that day. We

115

In any event, Slough’s expression of remorse wouldn’t have changed the jury’s verdict. Taken fairly, it says

nothing about who shot the Kia driver; taken generously, it merely echoes Slough’s characterization of what

happened in Nisour Square—evidence already before the jury via Slough’s statements to State Department

investigators.

56

brought you every single Iraqi civilian that was willing to come to

the states and that was around the area . . . . where this happened,

right, so they could give you between their—what they say, plus

what the other people saw, you can build a case, and you can be sure

about what happened out there that day.

* * *

Now let’s talk about the expected arguments from the defense. . . .

[T]his claim that you heard in the opening statement that we were

cherry-picking evidence to bring you here? Not true. We brought

you who we could and/or believed was reasonable, so you could

hear and figure out what happened on the circle that day. And true

enough, if we’re missing some piece of evidence that you need for

the elements of the offense, then that’s our fault. But there’s no

cherry-picking. We brought you everybody that we could around

there. All right. And we presented you all the evidence that we could

gather . . . . That’s what we did. Far from perfect, but we’re not

cherry-picking. 116

Moreover, this argument did not mislead the jury. The jury knew not every convoy

member testified—throughout trial, the government repeatedly referenced an exhibit including

each convoy member’s name and photograph, so anyone paying attention recognized relatively

few appeared. 117 So too must the jury have realized the trial did not include every driver and

passenger from every car in every row of traffic surrounding the Kia. See United States v.

Johnson, 231 F.3d 43, 48 (D.C. Cir. 2000) (allowing courts to “consider the jurors’ common

sense in assessing the effect of a prosecutor’s statement”). Moreover, the government couldn’t

call the third Iraqi police officer—the FBI failed to find him, and so (presumably) did Slatten.

See Email from Pat Martin to Krystal Commons (Oct. 10, 2018, 11:07 AM), ECF No. 1219-12.

That said, the prosecutor did go further in rebuttal:

[W]e gave you every witness conceivable right around [the Kia],

every single witness, even Mr. Ridgeway, who didn’t fit with the

sequence, the theory of the government. We gave you that witness.

116

12/11/18 AM Tr. 4190:2-22, 4224:2-23 (emphases added).

117

See, e.g., 11/7/18 PM Tr. 982:18-20, 1051:4-6; 11/14/18 PM Tr. 1527:16-20; 11/26/18 PM Tr. 2365:16-21;

11/27/18 PM Tr. 2633:14-17, 2664:3-6; 11/29/18 PM Tr. 3084:2-5 (citing Gov’t’s Ex. 330).

57

There are no 30 other witnesses with some lunging forward. They

just don’t exist. 118

But “[i]n assessing the import of a statement made in [rebuttal] argument, context is key.” United

States v. Venable, 269 F.3d 1086, 1090 (D.C. Cir. 2001). And properly contextualized, this

statement neither misled the jury nor relied on extra-record evidence. Hearkening back to its

summation arguments, the government responded to two of Slatten’s points: a general point that

the government “cherry-picked” its witnesses, 119 and a specific point that Captain Peter

Decareau (an Army platoon leader who arrived in Nisour Square shortly after the incident to

interview witnesses) testified that roughly thirty Iraqis told him the Kia “punched forward

toward the convoy” before shooting began. 120 But as the prosecutor noted, Decareau’s testimony

has serious flaws. For one, Decareau could not name a single witness he spoke to. And more

critically, these anonymous accounts conflict with every eyewitness who testified at trial, all of

whom maintain the Kia didn’t move until after shooting began. 121 That’s the exact point the

prosecutor made here. 122

118

12/11/18 PM Tr. 4398:6-11.

119

12/11/18 AM Tr. 4244:3-12.

120

12/11/18 PM Tr. 4366:15–4368:4.

121

See evidence cited supra notes 6, 15.

122

Here’s his whole statement, for context:

Now we have to talk about Decareau. . . . First thing about Decareau, he wasn’t there. You know he

wasn’t there at the time of the shooting. You know that. Second thing about Decareau is, his first

contact on the scene, the first person he talked to was a [convoy member]. . . . Now, could that

[convoy member] person have been one of the 30 people that he talked to supposedly over the course

of two hours, two and a half hours that told him this car punched forward? Perhaps, perhaps, because

we don’t know. But that is the first person he talked to. Then he spent another 15 to 20 minutes

talking to, I think, General Baja. . . . So another Iraqi witness, Iraqi national. . . . Who does he have

no contact with? He has absolutely no contact with, in the one day over the three and a half hours

that he’s investigating what happened out there, he has no contact with any members of [the convoy],

those eyewitnesses, no contact with any of the victims. They’ve already left because they’ve gone

to the hospital. And no contact with any other testifying witnesses. . . . And the reason you know

that is because for any number of reasons. One is, he has this notebook, apparently, that he’s writing

the names down in. But you saw his first report, his first sworn report. His first report, by the way,

makes no reference to a car. 5:00 p m., three and a half hours after the incident, a very significant

event in Baghdad, he’s reporting up to his superiors. He is supposed to report the most salient, most

58

The Court trusts the jury understood this contrast, and additionally that no “substantial

prejudice” resulted. United States v. Monaghan, 741 F.2d 1434, 1443 (D.C. Cir. 1984). That’s all

the more true since the government’s comments must be understood against the backdrop of both

provable information, and no reference whatsoever to this car or its movements. None. That should

tell you something. That should tell you whether he believed the information he claims to have

gotten was reliable. If it’s not reliable enough to put in his report and give to his supervisors, is it

reliable enough for you? . . . You have sat in this jury box for five weeks. You have seen these Iraqi

witnesses get up here. It’s not their fault. They’re speaking a foreign language. Somebody is

interpreting. Sometimes a question will be asked, and there will be this long conversation, right,

between the interpreter and the witness, and it takes like 30 seconds, 40 seconds, and then the answer

will be no. And you’re like, how did that happen? What did we miss? How is it that Pete Decareau,

back in that time frame, is able to talk to 30 witnesses in two and a half hours when you can’t get

through a single witness in less than half an hour or 60 minutes? It can’t happen, people. It can’t

happen. The reason why you know that is false as well and that those 30 witnesses didn’t have

anything to do with supposed information on movement is because the only two witnesses with Iraqi

national names in his report on September 22nd is, I believe, General Hussein—and again, you’ll

have to review the exhibit yourself—and then a man by the name of Abbas. General Hussein wasn’t

an eyewitness. He showed up later. He was a high Iraqi general. Abbas was not an eyewitness. He

was the brother of a deceased. So there’s not a single eyewitness name in his report. Where are all

the other names? Now, the defense said, well, the notes got destroyed, and that’s why we asked him

the question: Sir, did you have your notes? Did you have your notes when you were preparing your

sworn statement? And do you remember his answer? At that time, yes; at that time, yes. So if you

had your notes, sir, and you had these named witnesses with contact information that could have

provided your chain of command and anybody else that wanted to know about the movements of

this vehicle that was eviscerated on the scene, couldn’t he have put a few of those names into the

report? Again, not faulting him. He’s not a criminal investigator. He wasn’t there for that purpose.

But we have no names. And it’s not because he didn’t have his notes at the time. He had his notes.

Did he himself think that was reliable information? Apparently not, because he didn’t put the names

into his report, or if the names even existed. The bottom line is, you have no real evidence, no real

evidence of what these 30-odd witnesses actually saw. You have no real evidence. What you have

is a line, one line in this report that says words to the effect of “based on my conversations or

discussions with the witnesses, it appeared, it appeared.” So that’s Decareau drawing a conclusion.

“It appeared driver mistakenly pushed gas, not break.” Where is the word “punched”? Where is the

word “lunged”? That’s not in there. Where does that come? That comes some time later. The

Decareau report doesn’t have details, because he’s relying upon some unknown, unspecified

witnesses. We don’t know who he talked to. Both parties are deprived of that information, but it’s

not evidence before you. And what does that lead to? What we talked about before is, you cannot

base your decision on speculation. That would be pure speculation. You haven’t seen a single one

of those eyewitnesses, not a single witness that said to you that vehicle was moving prior to the

shots. Not one witness. And as Mr. Campoamor-Sanchez told you, we gave you every witness

conceivable right around that vehicle, every single witness, even Mr. Ridgeway, who didn’t fit with

the sequence, the theory of the government. We gave you that witness. There are no 30 other

witnesses with some lunging forward. They just don’t exist. Compare that with the FBI investigation.

They get there in October. They talked to 124 people, 57 Iraqi witnesses. 57 Iraqi witnesses. There’s

no lack of effort. There’s no cherry-picking. There’s no lack of effort on behalf of the FBI to try to

find out if there are other eyewitnesses out there that can talk to that vehicle, whether it’s moving or

not.

12/11/18 PM Tr. 4394:9–4398:17 (emphasis added).

59

summations, see Johnson, 231 F.3d at 48, and since “[s]tatements made in the heat of [rebuttal]

argument are not and cannot be read with an editor’s red pencil in hand.” Venable, 269 F.3d at

1090.

E. The government’s re-direct examination of Sarhan Moniem did not mislead the jury.

This text is long and has been trimmed here. Open the source document for the complete record.