Trial Preview: Third Attempt to Convict Blackwater Guard for 2007 Massacre of Iraqi Civilians

The third criminal trial of Blackwater guard Nicholas Slatten for his role in the 2007 Nisour Square massacre begins Monday, Nov. 5, in the U.S. District Court for the District of Columbia before Judge Royce Lamberth. Slatten was convicted of first-degree murder in 2014 and sentenced to life imprisonment, but in 2017 the D.C. Circuit reversed his conviction and ordered a new trial on the grounds that Slatten’s prosecution should have been severed from that of his codefendants—Paul Slough, Evan Liberty and Dustin Heard. The government retried Slatten earlier this year, but a hung jury ended the effort in a mistrial.

Factual Background

The D.C. Circuit summarized the facts of the case in its 2017 opinion as follows:

On September 16, 2007, a car bomb exploded in Baghdad near a United States diplomat who was under the protection of Blackwater, a private security firm under contract with the State Department. The defendants were members of Blackwater’s Raven 23 team, which was sent to provide secondary support in the effort to evacuate the diplomat. Rather than meeting the primary team at the pre-arranged checkpoint, Raven 23 shift leader Jimmy Watson ignored his orders and directed the team to Nisur Square, a traffic circle in downtown Baghdad that Watson intended to “lock down.” A car bomb had exploded in Nisur Square earlier that year, in response to which Iraqi security had been dramatically increased, with multiple checkpoints at the Square’s entrances for potential threats.

The Raven 23 convoy, which consisted of four armored vehicles, came to a stop at the south end of the Square, and together with Iraqi police they brought all traffic to a halt. Two or three minutes later, witnesses heard the “pops” of shots being fired, and a woman screaming for her son. The car that had been hit, a white Kia sedan, had been flagged days earlier by a Blackwater intelligence analyst as a type that might be used as a car bomb. According to the government, the Kia then rolled forward and lightly bumped the vehicle in front of it. The driver’s side of the Kia windshield had a hole in it and was splattered with blood.

Two nearby Iraqi police officers approached the Kia on either side, and they saw the driver’s face full of blood, with a bullet wound in the middle of his forehead. One turned back to the convoy, waving his hands to indicate the shooting should stop, while the other made similar gestures as he tried to open the driver’s door. At that point, the vehicle in front of the Kia moved away, causing the Kia to roll forward again. Heavy gunfire erupted from the Raven 23 convoy into the Kia, and the Iraqi officers took cover behind their nearby kiosk. Multiple grenades were fired at the Kia, causing it to catch fire. The Kia passenger was shot and killed.

Indiscriminate shooting from the convoy then continued past the Kia, to the south of the Square. Victims were hit as they sought cover or tried to escape, giving rise to the bulk of casualties that day. At some point a Raven 23 member radioed that they were taking incoming fire, but others could not locate any such threat. When the shooting died down, a radio call indicated one of the Raven 23 vehicles had been disabled and needed to be hooked up to another vehicle to be towed. During the hook-up, a member of the Raven 23 convoy saw an Iraqi shot in the stomach while his hands were up, by an unidentified Blackwater guard who had exited his vehicle. Once the hook-up was complete, the Raven 23 convoy began moving slowly around the circle and north out of the Square, where isolated shootings continued both to the west and north. By the time the convoy finally exited the Square, at least thirty-one Iraqi civilians had been killed or wounded.

Procedural History

The D.C. Circuit ruling described the case’s procedural backdrop:

In the immediate aftermath of the shootings, the State Department conducted mandatory de-briefing interviews of the Raven 23 team. Because the testimony of certain witnesses before the grand jury relied on those statements, the district court dismissed the case as tainted as to all defendants. United States v. Slough, 677 F.Supp.2d 112, 166 (D.D.C. 2009) (citing Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972)). This Court agreed that the oral and written statements that resulted from the de-briefings were compelled, and thus could not be used directly or indirectly by the government against the defendants who made them, but remanded the case for a more individualized analysis of the effect of the taint. United States v. Slough, 641 F.3d 544, 548, 554-55 (D.C. Cir. 2011).

On remand, the government used a new prosecutorial team and convened a new grand jury, which returned indictments against the defendants for voluntary manslaughter, attempted manslaughter and using and discharging a firearm in relation to a crime of violence. Slatten moved to dismiss the charges against him as time-barred, which this Court ultimately granted by writ of mandamus. In re Slatten, No. 14-3007 (D.C. Cir. Apr. 18, 2014). The government thereafter obtained an indictment charging Slatten with first-degree murder. [Author Note: First-degree murder, unlike manslaughter, is not subject to the statute of limitations and was therefore not time-barred.] The defendants were tried jointly in the summer of 2014, and after seven weeks of deliberation, the jury returned guilty verdicts on all counts except three. The district court sentenced Slatten to life imprisonment, and it sentenced Slough, Liberty and Heard to the mandatory term of imprisonment of thirty years for their convictions under 18 U.S.C. § 924(c), plus one day on all of the remaining counts.

The D.C. Circuit addressed seven major issues in its opinion:

1. Jurisdiction under the Military Extraterritorial Jurisdiction Act (MEJA);
2. Venue in the District of Columbia;
3. The defendants’ motion for a new trial on account of statements made by a key prosecution witness post-trial that seemingly contradicted his testimony at trial;
4. The sufficiency of the evidence to support conviction;
5. Slatten’s claim of vindictive prosecution;
6. Slatten’s motion to sever his trial from that of his co-defendants; and
7. Eighth Amendment concerns related to the severity of the sentences imposed on Slough, Liberty and Heard.

The D.C. Circuit upheld the district court’s decision, favoring the government, on each of the first five issues. However, it found that the lower court abused its discretion in denying admission of critical hearsay evidence and refusing to sever the cases, to Slatten’s severe detriment, and ordered a new trial. (The Eighth Amendment issue is not relevant to Slatten’s retrial and will not be discussed further in this post. The D.C. Circuit held that the mandatory 30-year sentence imposed on the three defendants convicted of manslaughter violated the Eighth Amendment’s prohibition against cruel and unusual punishment and remanded to the district court for resentencing. That proceeding is yet to occur.)

First, the D.C. Circuit panel agreed that the defendants’ conduct was covered by MEJA, which allows for the prosecution of extraterritorial crimes committed by civilians employed by Defense Department employees and contractors, as well as contractors employed by other agencies “to the extent such employment relates to supporting the mission of the Department of Defense overseas.” Although the defendants’ work in Iraq was through a contract with the State Department, the court determined that “Blackwater employed the defendants to provide security for the diplomats whose work plainly supported the DOD mission” and that the defendants’ employment “increased the manpower available to the military by replacing military personnel previously assigned to guard State Department personnel” and therefore supported the Defense Department mission. The court also affirmed the validity of the jury instruction with regard to MEJA jurisdiction.

Second, the court reviewed and concurred with the district court’s determination that venue was proper in the District of Columbia. Under 18 U.S.C. §3238, when offenses are committed outside the territory of the United States, venue is proper either “in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought” or “in the district of the last known residence of the offender or of any one of two or more joint offenders.” The government established venue by arresting in the District of Columbia another Blackwater guard named Jeremy Ridgeway, who was involved in the Nisour Square incident and who agreed to plead guilty to voluntary manslaughter and attempted voluntary manslaughter. Ridgeway, the court held, counted as a “joint offender” with Slough, Liberty, Heard and Slatten under the statute because they all participated “in the same act or transaction constituting a crime or crimes.” Ridgeway’s arrest in D.C. was therefore sufficient to establish venue for the trial of Slough, Liberty, Heard and Slatten, even though Ridgeway himself did not go to trial.

Third, the D.C. Circuit decided that the district court did not abuse its discretion in denying the defendants’ motion for a new trial, without conducting a hearing, on account of inconsistencies between a key government witness’s testimony at trial and his victim impact statement submitted at sentencing. Iraqi police officer Sarhan Dheyab Abdul Monem testified at trial about his observations in Nisour Square during the attack, recounting how he approached the Kia after the initial shots were fired from the Raven 23 convoy and saw that the driver had been killed instantly by a shot to the head and that a passenger, the driver’s mother, remained alive in the vehicle. In his written victim impact statement, however, Monem said he “remained in [his] traffic cabin unable to move nor think” after the first round of gunfire from the Raven 23 convoy and that he “heard the driver of the Kia pleading with his mother to get out of the car before they were both killed.” Slatten argued that the victim impact statement undercut the government’s case against him, since he could not be guilty of murder if the person he allegedly killed was actually alive after the shooting in Nisour Square began. The other defendants argued that Monem perjured himself and that the new evidence refutes key parts of the government’s theory. The district court nevertheless rejected the motion for a new trial because there was enough other evidence in the record supporting Monem’s trial testimony—which had been subject to defense cross-examination—to make it improbable that a new trial would result in acquittal. The D.C. Circuit affirmed, noting the “broad discretion” the court gives to a trial judge “in ruling on a motion for a new trial, both in his actual decision and in what he considers before making that decision.”

Fourth, the court found that the evidence presented in support of Slatten’s first-degree-murder charge—for Slatten’s involvement in the death of Ahmed Al-Rubia’y, the driver of the white Kia—was sufficient such that “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” The court weighed testimony from several other Blackwater guards in the Raven 23 convoy implicating, in some cases directly and in others indirectly, Slatten in Al-Rubia’y’s killing and suggesting anti-Iraqi animus as motive, as well as other evidence supporting the conviction, against testimony by other Blackwater guards and Iraqi police officers that arguably exculpated Slatten. The D.C. Circuit panel said it was the jury’s responsibility, as the finder of fact, to consider the gaps and conflicts in the evidence and that it was reasonable for the jury to return a guilty verdict, even if “a different jury might have resolved the conflict differently.”

Fifth, the D.C. Circuit dismissed Slatten’s claim of vindictive prosecution, reviewing the district court’s determination for clear error. Slatten argued that the government’s decision to charge him with murder, after the manslaughter charges against him were dismissed as time-barred, amounted to vindictive prosecution. “The Due Process Clause prohibits prosecutors from upping the ante by filing increased charges in order to retaliate against a defendant for exercising a legal right,” but “[t]o succeed on a claim of vindictive prosecution, a defendant must establish that the increased charge was brought solely to penalize him and could not be justified as a proper exercise of prosecutorial discretion.” Slatten did receive disparate treatment from his co-defendants who were charged with the lesser offense of manslaughter, but that fact was insufficient to show government vindictiveness given that the murder charge was prompted by the dismissal of the manslaughter charges. The statute of limitations prevented the government from treating Slatten the same as his co-defendants and “left the government with no alternative but to charge him with murder or else see a heinous crime go unpunished.” On that set of facts, “the district did not err, let alone clearly err, in rejecting Slatten’s defense of prosecutorial vindictiveness.”

Slatten’s sixth claim on appeal—that the district court abused its discretion in denying Slatten’s motion to sever his trial—was the winner. The government charged Slatten with murder on the theory that he intentionally shot at the Kia, killing Al-Rubia’y, without provocation or perception of threat from the vehicle. But in two interviews with State Department investigators and a written sworn statement following the massacre, one of Slatten’s co-defendants, Slough, said he was the one to shoot Al-Rubia’y and did so because the vehicle headed right at the convoy despite verbal and physical signals from the guards to stop. (Slough’s identity as the declarant was under seal during the first trial and his name was redacted from the district court and D.C. Circuit filings. However, filings in Slatten’s second trial openly referred to Slough as the co-defendant in question.) “The co-defendant’s statements,” the D.C. Circuit wrote, “strike at the heart of [the government’s] theory and instead point to the co-defendant, not Slatten, as the Blackwater convoy member who first “engaged and hit the driver” of the white Kia.” Slatten argued to the district court that severance was essential so that Slough could be called as an exculpatory witness for Slatten or Slough’s prior statements admitted without jeopardizing Slough’s Fifth Amendment right against self-incrimination. The district court rejected Slatten’s argument, deeming it unlikely that Slough would agree to testify at Slatten’s trial and classifying Slough’s prior statements as inadmissible hearsay.

Slatten appealed the hearsay determination and the D.C. Circuit reversed, concluding that Slough’s oral and written statements to State Department investigators should have been admitted under Federal Rule of Evidence 807, the residual hearsay exception. The exception narrowly permits only hearsay testimony that is “very important and very reliable,” and only if, as the D.C. Circuit noted, five conditions are met:

First, the statement must have “equivalent circumstantial guarantees of trustworthiness” comparable to those found in Rule 803’s and Rule 804’s enumerated hearsay exceptions. FED R. EVID. 807(a)(1). Second, it must be “offered as evidence of a material fact.” Id. § 807(a)(2). Third, the statement must be “more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.” Id. § 807(a)(3). Fourth, “admitting it [must] . . . serve the purposes of these rules and the interests of justice.” Id. § 807(a)(4). And finally, the proponent of the statement must have given “an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant’s name and address, so that the party has a fair opportunity to meet it.”

The court believed that this was “one of those exceptional circumstances” because “[s]everal of the circumstances surrounding the co-defendant’s declarations indicate their reliability and manifest that he was likely telling the truth at the time he made his statements”; there was no other “evidence more probative on the point for which Slatten seeks to admit his co-defendant’s statements”; and “because of the critical nature of the co-defendant’s statements . . . their exclusion had a substantial and injurious effect or influence in determining the jury’s verdict and was therefore not harmless error.” The D.C. Circuit also noted that the district court expressly acknowledged the government’s concession that Slough’s statements to the State Department investigators, if admissible, would justify severance of Slatten’s case. Finding the statements admissible under Rule 807, the D.C. Circuit held that the district court’s denial of Slatten’s motion to sever was an abuse of discretion. Accordingly, it reversed Slatten’s conviction and remanded for a new trial.

Second Trial

Slatten’s second trial began in late June 2018 and lasted five weeks. The evidence presented remained much the same as in the original trial, though narrowed to the material relevant to Slatten’s role in the Nisour Square shootings. Judge Lamberth generally affirmed his evidentiary rulings from the joint trial and denied most of Slatten’s pretrial motions to exclude a variety of witness testimony and physical evidence. However, as a result of the D.C. Circuit’s ruling, Slatten was newly able to introduce Slough’s post-incident statements implicating himself as the first to shoot at the white Kia and its driver. Supporting this account of events was the testimony of two witnesses, Iraqi police officers, who said the first shots came from the turret of Slatten’s vehicle, where Slough sat, rather than from inside the vehicle, where Slatten sat. Slatten also benefited from shaky testimony by the Raven 23 convoy leader, Jimmy Watson, who previously testified confidently that Slatten was the first shooter that day.

The jury deliberated for 16 days and was unable to reach a unanimous verdict, leading Judge Lamberth to declare a mistrial. Shortly thereafter, the government declared its intent to retry Slatten a third time.

Third Trial

Prosecutors have said they expect the new trial to last approximately 15 days. In pretrial motion practice, Judge Lamberth largely reaffirmed and adopted his rulings on the equivalent motions from the second trial, including his denial of Slatten’s motions for acquittal and to dismiss the case for lack of jurisdiction, lack of venue and vindictive prosecution. On new motions from the defense, however, Lamberth precluded certain government arguments and evidence, including argument about the government’s charging decision related to Slough, graphic video evidence depicting Al-Rubia’y’s remains, and argument that Slatten was the only Raven 23 team member who possessed the weapon and skillset necessary to kill Al-Rubia’y in his vehicle.

Jury selection occured this week and the trial kicks off next Monday, Nov. 5.