United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 8, 2011 Decided April 22, 2011
No. 10-3006
UNITED STATES OF AMERICA,
APPELLANT
v.
PAUL ALVIN SLOUGH, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cr-00360)
Demetra Lambros, Attorney, U.S. Department of Justice,
argued the cause for appellant. With her on the briefs were
Lanny A. Breuer, Assistant Attorney General, and Joseph N.
Kaster, Trial Attorney. Roy W. McLeese III, Assistant U.S.
Attorney, entered an appearance.
Bruce C. Bishop argued the cause for appellees. With
him on the brief were Mark J. Hulkower, Brian M. Heberlig,
Thomas G. Connolly, Christopher J. Wright, Timothy J.
Simeone, William Coffield, Steven J. McCool, David
Schertler, Danny C. Onorato and Lisa Hertzer Schertler.
2
Before: GINSBURG and GARLAND, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: The district court
dismissed an indictment against the five defendants on the
ground that the evidence presented to the grand jury, and
indeed the decision to prosecute two of the defendants, were
tainted by statements of the defendants that for purposes of
this appeal are conceded to have been compelled within the
meaning of Garrity v. New Jersey, 385 U.S. 493 (1967). We
reverse and remand as to four of the defendants; the
government itself moved to dismiss the indictment against
Nicholas Slatten, without prejudice to possible later re-
indictment, and the district court’s grant of the motion has
taken Slatten out of the case for now. United States v. Slough,
677 F. Supp. 2d 112, 115-116 & n.2 (D.D.C. 2009).
* * *
On September 16, 2007 a car bomb exploded near the
Izdihar Compound in Baghdad, where a U.S. diplomat was
conferring with Iraqi officials. American security officials
ordered a team from Blackwater Worldwide to evacuate the
diplomat to the Green Zone. See U.S. Department of State,
U.S. Embassy Baghdad, (Draft) Use of Deadly Force Incident
at Nisur Square—Baghdad: Preliminary Report and Findings,
Sept. 23, 2007, at 2. Another Blackwater team, Raven 23,
headed out of the Green Zone to block traffic at the Nisur
Square traffic circle and thus assure the diplomat’s safe
passage back. (In fact, because a checkpoint had fortuitously
been closed, the escort convoy never passed through Nisur
Square.) Id. Raven 23 positioned its four vehicles on the
3
south side of the Square and its members started gesturing to
stop traffic. Shots were fired; the dispute over who fired at
whom and when is the substantive crux of the criminal case
underlying this appeal. When the shooting stopped, 14 Iraqi
civilians were dead and 20 wounded. Slough, 677 F. Supp. 2d
at 116.
Within hours of the incident, the Department of State’s
Diplomatic Security Service (“DSS”) conducted brief
interviews with each of the 19 members of Raven 23. Id. at
117. Among the 19 were the five defendants in this case, Paul
Slough, Nicholas Slatten, Evan Liberty, Dustin Heard and
Donald Ball. [
Redacted.
]*
On September 18, 2007, two days after the incident, all
Raven 23 members submitted sworn written statements to the
State Department, using a form that included a guarantee that
the statement and the information or evidence derived
therefrom would not be used in a criminal proceeding against
the signer. Slough, 677 F. Supp. 2d at 118-19. The
government conceded before the district court that under
Garrity the September 18 statements must be treated as
*
We have redacted material that on the parties' view might
spread “taint” from statements of defendants that are deemed
compelled for purposes of this case, or the release of which would
disclose witnesses’ grand jury testimony, except to the extent
hitherto disclosed elsewhere. The interests protected by the
redaction should in due course become moot, and we direct the
parties to notify the court when that occurs.
4
having been compelled; as to the September 16 statements,
the district court so found and the government does not appeal
that finding. 1
The incident almost immediately became the focus of
media attention in both the United States and Iraq. Some of
the early articles, published within a few days of the incident,
reported that the Blackwater team was attacked, and purported
to quote from and otherwise rely on a State Department
“incident report,” presumably prepared at least in part on the
basis of the interviews and statements. See, e.g., Adam
Zagorin & Brian Bennett, Iraq Limits Blackwater’s
Operations, TIME, Sep. 17, 2007, http://www.time.com/time/
world/article/0,8599,1662586,00.html; Sabrina Tavernise,
U.S. Contractor Banned by Iraq Over Shootings, N.Y. TIMES,
Sept. 18, 2007, at A1. These very same articles, however,
also cite Blackwater representatives as making the same
assertion ([
Redacted.
]). See
Tavernise. The articles also cite Iraqi officials’ statements
that Blackwater guards used excessive force. Joshua Partlow
& Walter Pincus, Iraq Bans Security Contractor, WASH.
POST, Sept. 18, 2007, at A1; Sinan Salaheddin, Iraq Plans
Review of Foreign Security Firm Status, ASSOC. PRESS, Sept.
18, 2007.
1
The defendants were re-interviewed later. Slough, 677 F.
Supp. 2d at 117-20. But because the defendants invoked only the
statements of September 16 and September 18 as sources of
potential taint of the evidence presented to the grand jury, id. at
120-21, only those statements are relevant to this appeal.
5
The September 18 written statements were also leaked to
the media. On September 28, 2007, ABC News reported that
it had obtained all 19 of the September 18 sworn statements
and quoted from some of them. See The Blotter, First Images
of Controversial Blackwater Incident, ABC NEWS, Sept. 28,
2007, http://blogs.abcnews.com/theblotter/2007/09/exclusive-
first.html. Defendant Slough’s statement was later posted
online in its entirety, [
Redacted.
], and news reports
by ABC News and the New York Times, among others,
reproduced parts of defendants’ and other team members’
September 18 statements. [
Redacted.
]
The witnesses that the government relied on most heavily
before the grand jury—Raven 23 members Adam Frost,
Matthew Murphy and Mark Mealy—admitted to having read
these news reports, and it soon became apparent that parts of
their testimony may have been tainted by their exposure. In
an effort to safeguard its case, the government decided to
present a redacted case to a second grand jury, which returned
an indictment against the defendants, finding that there was
probable cause to believe that defendants committed (and
attempted to commit) voluntary manslaughter and weapons
violations. Slough, 677 F. Supp. 2d at 127-28.
6
The defendants moved to dismiss the indictment as
tainted. As required by Kastigar v. United States, 406 U.S.
441 (1972), the district court held a hearing to determine the
existence and extent of any taint. It found that exposure to
defendants’ statements had tainted much of the evidence
presented to the second grand jury—the testimony of security
guards Frost and Murphy and Iraqi witnesses and victims,
Frost’s written journal, the factual proffer and debriefing of
Jeremy Ridgeway (a Raven 23 member who had been indicted
and had pleaded guilty), and physical evidence recovered by
DSS from the scene of the crime—and had also tainted the
prosecutors’ decision to indict defendants Heard and Ball.
The district court thus dismissed the indictment as to all five
defendants. The government now appeals. We review the
district court’s findings that the government used a
defendant’s immunized statement for clear error, United
States v. North, 910 F.2d 843, 855 (D.C. Cir. 1990) (“North
I”), a standard that is met for any finding that was “induced by
an erroneous view of the law,” United States v. Kilroy, 27
F.3d 679, 687 (D.C. Cir. 1994) (internal quotations omitted).
* * *
The Fifth Amendment bars the government from
compelling self-incriminating testimony from individuals. If
the government nevertheless decides to require an individual
to testify, it must offer him immunity that puts him in
“substantially the same position as if [he] had claimed his
privilege.” See Kastigar, 406 U.S. at 458-59. In a later
prosecution of the individual, the government cannot use his
immunized testimony itself or any evidence that was tainted—
substantively derived, “shaped, altered, or affected,” North I,
910 F.2d at 863—by exposure to the immunized testimony.
Nor can the government use it to develop investigatory leads,
to focus an investigation on a witness, Kastigar, 406 U.S. at
7
460, or to motivate another witness to give incriminating
testimony. United States v. Rinaldi, 808 F.2d 1579, 1584 n.7
(D.C. Cir. 1987). In North itself, for example, after North
gave his immunized testimony former National Security
Advisor Robert C. McFarlane had requested a second hearing
before special investigating committees “in order to respond”
thereto, and we found error in the district court’s having
admitted McFarlane’s trial testimony without having
determined “what use—if any” he had made of North’s.
North I, 910 F.2d at 864. More generally, evidentiary content
(potentially including a witness’s whole testimony, as where
his very availability was derived from or caused by
immunized statements) will share the constitutional ban on
use of the immunized statements. Kilroy, 27 F.3d at 687.
Below we deal explicitly with situations where evidence’s
content or availability is derived from both immunized
statements and independent factors.
In building a case against a defendant who received use
immunity for his statements, the government must prove, by a
preponderance of the evidence, that “all of the evidence it
proposes to use was derived from legitimate independent
sources.” North I, 910 F.2d at 854 (quoting Kastigar, 406
U.S. at 461-62, internal quotations omitted). As the district
court observed, proof that a witness was “never exposed to
immunized testimony” or that the investigators memorialized
(or “canned”) a witness’s testimony before exposure, Slough,
677 F. Supp. 2d at 132 (citing North I, 910 F.2d at 872),
would obviously satisfy the requirement. But a failure by the
government to make either showing does not end the district
court’s inquiry. North I requires the court to parse the
evidence “witness-by-witness” and “if necessary, . . . line-by-
line and item-by-item,” 910 F.2d at 872, and to “separate the
wheat of the witnesses’ unspoiled memory from the chaff of
[the] immunized testimony,” id. at 862. This sifting is
particularly important in cases where, as here, a witness was
8
exposed to a defendant’s immunized statement but testifies to
facts not included in that statement.
In sifting the record as to taint of the evidence before the
indicting grand jury, the district court made a number of
systemic errors based on an erroneous legal analysis.
First, the district court erred by treating evidence,
including the testimony of Frost, Murphy, Ridgeway and the
Iraqi witnesses, and the Frost journal, as single lumps and
excluding them in their entirety when at the most only some
portion of the content was tainted—it made no effort to decide
what parts of the testimony or the journal were free of taint.
Prima facie, this error applies (for example) to all elements of
testimony that do not overlap with the content of the
immunized statements. North I requires the court to segregate
tainted parts of the evidence from those parts that either could
not have been tainted (because there is no overlap) or were
shown to be untainted by a preponderance of the evidence.
910 F.2d at 872. Even in instances where there could be no
possible claim that the immunized statements caused the
witness to speak up (as in some variant of the McFarlane
instance), the district court found that the government had
failed to fulfill its burden; yet the court never identified what
the government could have done besides pointing to the
complete absence of overlap, or why it should have been
required to show more.
The district court excluded, for example, all of the
testimony of Frost and Murphy, finding that the two guards
“had been thoroughly immersed” in defendants’ immunized
statements by virtue of having read news reports about the
Nisur Square incident. Slough, 677 F. Supp. 2d at 144. But
Frost’s and Murphy’s grand jury testimony included specific
recollections with no referent either in defendants’ immunized
statements or news reports derived therefrom.
9
[
Redacted.
] As
these elements of Frost’s testimony have no antecedent in the
immunized statements, they cannot be tainted (unless
somehow the statements caused Frost’s testimony in some
subtler way). Similarly, [
Redacted.
]. The list goes on, as
the government points out in its briefs. Appellant Br. at 62-
64; Appellant Reply. Br. at 13 (describing parts of Frost’s and
Murphy’s testimony not overlapping with the statements);
Appellant Br. at 89-93 (describing parts of Jeremy
Ridgeway’s statements that could not have been tainted);
Appellant Reply Br. at 26-27 (describing parts of Iraqi witness
testimony that did not overlap with any immunized statements
that appeared in news reports). We will not catalogue every
instance of non-overlap here, but North’s mandate that the
district court parse the record “line-by-line” clearly requires
such review, not only for the rest of Frost’s and Murphy’s
testimony, but also for the Iraqi witnesses’ testimony and
Ridgeway’s proffer and statement.
In United States v. North, 920 F.2d 940 (D.C. Cir. 1990)
(“North II”), we noted that the defendant bears the burden of
laying “a firm ‘foundation’ resting on more than ‘suspicion’”
that proffered evidence was tainted by exposure to immunized
testimony. Id. at 949 & n.9 (quoting from Lawn v. United
States, 355 U.S. 339, 348-49 (1958)). A witness’s prior
exposure to immunized statements can hardly be said to meet
that burden as to completely non-overlapping points—defense
10
counsel conceded as much at oral argument. See Oral Arg.
Transcript 54, 56, 58. Of course, defendants may fill that gap
by submitting additional evidence; again, the McFarlane
episode in the North case may be a model, though it is worth
noting that our disposition there left unresolved whether
McFarlane’s responding to North’s testimony in fact
constituted a forbidden “use” within the meaning of Kastigar.
North I, 910 F.2d at 864.
Second (and closely related), the district court erred by
failing to conduct a proper independent-source analysis as
required by Kastigar, 406 U.S. at 460, and Rinaldi, 808 F.2d
at 1582. In particular, the district court erred by finding that
any evidence responding to allegations that Raven 23 was
attacked was tainted, even where no information specific to a
particular defendant was included, and the supposedly tainting
sources in fact encompassed multiple, equivalent assertions by
non-defendants. Many of the news reports were based on the
State Department spot and incident reports, which, in turn,
were in part based on statements by all 19 guards ([
Redacted. ]), not simply the five
defendants’ immunized statements. See, e.g., Zagorin &
Bennett (citing from the incident report that “the motorcade
was engaged with small arms fire from several locations” and
“returned fire”).
Moreover, the State Department reports were not the only
sources offered in the news stories to support the claim of [
Redacted. ]—the very same articles also cite Blackwater
representatives as making the claim. There is no suggestion in
the district court’s opinion that Blackwater management
learned the specifics of [Redacted.] from the State Department
reports; [
11
Redacted.
] Where two independent
sources of evidence, one tainted and one not, are possible
antecedents of particular testimony, the tainted source’s
presence doesn’t ipso facto establish taint. (Moreover, a
witness’s testimony need not have any exterior antecedent,
i.e., any precursor other than the witness’s perceptions of what
happened.) Speaking of a government decision to pursue a
line of investigation, for instance, the Second Circuit said,
“[I]f it appears that that pursuit could have been motivated by
both tainted and independent factors, the court must determine
whether the government would have taken the same steps
‘entirely apart from the motivating effect of the immunized
testimony.’” United States v. Nanni, 59 F.3d 1425, 1432 (2d
Cir. 1995) (citing United States v. Biaggi, 909 F.2d 662, 689
(2d Cir. 1990); Biaggi in turn drew on broader legal sources,
such as those governing claims of dismissal for exercise of
First Amendment rights, Mt. Healthy City School District
Board of Education v. Doyle, 429 U.S. 274 (1977)). The
same principle—a goal of removing any net effect on either
side—must apply to any circumstance (e.g., a segment of
testimony, a witness’s decision to speak up) claimed to be an
effect of immunized testimony. Immunity, properly
construed, “leaves the witness and the Federal Government in
substantially the same position as if the witness had claimed
his privilege.” Kastigar, 406 U.S. at 458-59 (emphasis added,
internal quotations omitted) (quoting Murphy v. Waterfront
Comm’n, 378 U.S. 52, 79 (1964)). To preserve that
symmetry, obviously courts cannot bar the government from
use of evidence that it would have obtained in the absence of
the immunized statement.
12
The district court also found that these early news reports
tainted Frost’s journal and his testimony when he addressed
the claim of [
Redacted.
] (Indeed, when armed guards shoot
a number of people in a crowd, it doesn’t take Hercule Poirot
to start wondering what the crowd was doing.) The district
court erred by failing to consider whether Frost’s testimony
and journal, as well as other evidence challenging the story
that [ Redacted. ], were more probably than not
derived from sources other than defendants’ immunized
statements.
Third, the district court applied the wrong legal standard
when it excluded Frost’s journal and his testimony simply
because the news reports based on some of the immunized
statements were “a cause” for his writing it. Slough, 677 F.
Supp. 2d at 151. Defendants cite our language in Hylton to
the effect that if Hylton’s immunized statements “were a
cause of [a key witness’s] decision to plead and testify against
Hylton, [the witness’s] testimony was impermissible even if
the government had prior knowledge of [the witness’s] role.”
294 F.3d at 134. But Hylton did not decide that any causal
role was necessarily fatal. To do so would have been to
reverse North I’s (and Kastigar’s) references to independent
sources, as well as Kastigar’s own explicit view that
immunity, properly applied, “leaves the witness and the
Federal Government in substantially the same position as if
the witness had claimed his privilege.” Kastigar, 406 U.S. at
458-59 (emphasis added, internal quotations omitted).
Finally, Hylton’s entire focus was on explaining why a
defendant was correctly asserting ineffective assistance of
counsel, because of the latter’s failure to make a Kastigar
13
objection, not on resolving the nuances of multiple sources or
causes.
Thus, only if the government on remand fails to establish
by a preponderance that Frost would have written the journal
or testified in the absence of exposure to defendants’
immunized statements would use of the journal and testimony
be barred under Kastigar. Of course, the defendants’
communications transmitted to Frost via the media are
relevant against the government in this analysis only to the
extent that they actually added to the information flowing
through from non-defendant sources.
This takes us to a fourth systemic error. To the extent
that evidence tainted by the impact of one defendant’s
immunized statements may be found to have accounted for the
indictment of that defendant, it does not follow that the
indictment of any other defendant was tainted. The district
court assumed the contrary. Slough, 677 F. Supp. 2d at 166 &
n.66. Although the prosecution presented a single indictment
against all five defendants, each defendant was charged
individually and therefore the presence, extent and possible
harmfulness of the taint must be assessed individually.
Defendants argue that the government proceeded on a
joint liability theory that would render defendant-by-
defendant taint assessment unsuitable. They point to a
prosecutor’s statement to the grand jury that it was “charging
[the defendants] jointly, with each of these shootings because
they’re working together.” Grand Jury Tr., Dec. 2, 2008, PM,
at 10-11. But in context the reference does not suggest
government adoption of the broad theory espied by
defendants. The prosecutor had explained to the grand jury
that for aider and abettor liability a defendant need not have
fired a fatal or wounding shot. Even shots that hit no one
could aid and abet directly harmful shots by making it
14
“difficult for victims to run that direction to safety.” Grand
Jury Tr., Nov. 20, 2008, AM, at 16. But guilt was individual:
a vote to indict required jurors to be satisfied “that there’s
probable cause that each of the people we’ve
identified . . . did, in fact, shoot their weapons that day . . .
[a]nd joined in this, in what happened.” 2 Id. In context it is
plain that the snippet identified by defendants is no more than
a reference back to the government’s aider and abettor theory.
* * *
As we noted, the district court found the indictments of
Heard and Ball independently and fatally tainted on the theory
that their immunized statements motivated the prosecutor’s
decision to seek their indictment. Neither Kastigar nor North
states that non-evidentiary uses of immunized statements are
barred. Kastigar prohibits the use of immunized evidence as
an “investigatory lead” to other derivative evidence that
would then be used against the defendant. 406 U.S. at 460. In
North I, after a substantial review of the various circuits’
decisions on the matter, we concluded: “Thus, even assuming
without deciding that a prosecutor cannot make non-
evidentiary use of immunized testimony, in the case before us
2
The exact language might suggest that the government led the
grand jury to believe that shooting, without regard to incoming fire,
was itself an adequate basis for a manslaughter indictment. But the
passage quoted was simply the government’s explanation of the
workings of aider and abettor liability; elsewhere the government
made clear that firing in self-defense would not qualify. See Grand
Jury Tr., Dec. 4, 2007, AM, at 11-12 (explaining to the grand jury
that if it is “objectively reasonable for you to believe that you need
to use [deadly] force to defend yourself, somebody’s shooting from
this car, and you apply force to that car, that’s obviously justified
conduct”).
15
the [Independent Counsel] did not do so.” 910 F.2d at 860.
We then went on (though under the heading
“‘Nonevidentiary’ Use,” id. at 856) to rule out the use of
immunized testimony to refresh the memories of witnesses,
id. at 860-63. That is, of course, an indirect evidentiary use.
Here, as the government does not challenge the factual
finding on the decision to indict, we must assume its
correctness and are thus forced to resolve the issue left
unsettled in North I. In the absence of clear Supreme Court or
D.C. Circuit precedent, North I turned to relevant decisions in
other circuits for guidance and noted a circuit split: the Third
and Eight Circuits suggested that Kastigar banned all non-
evidentiary uses; the First, Second, Ninth and Eleventh
Circuits found otherwise. North I, 910 F.2d at 857. Since
North was decided, the Seventh Circuit has joined the latter
group, holding that Kastigar is not concerned with “the
exercise of prosecutorial discretion.” United States v. Cozzi,
613 F.3d 725, 729 (7th Cir. 2010) (citing a number of post-
North I decisions; internal quotations omitted). In the end, at
least as to decisions to indict, we join those circuits refusing to
find such decisions vulnerable on the ground of links to
immunized statements. The Eleventh Circuit observed in
United States v. Byrd, 765 F.2d 1524, 1531 (11th Cir. 1985),
that such a rule would turn use immunity into transactional
immunity. That is a bit of an overstatement; after all,
prosecutors could, by construction of firewalls (along with the
associated incremental personnel costs), assure that such
decisions were made without risk of taint. But defendants’
proposed rule clearly would entangle the court in what has
hitherto normally been internal prosecutorial decision-making.
And it would open a new field for courts’ having to make
complex causal judgments of the sort already required to
assure clean evidence.
16
Continuing its discussion of non-evidentiary uses, Slough,
677 F. Supp. 2d at 158-65, the district court also asserted that
defendants’ September 16 statements must have been useful
to the prosecution and must have guided the government’s
investigation, id. at 163, but it never detailed what statements,
independent of innocent sources, played exactly what role.
We cannot uphold the judgment of dismissal to the extent that
it rests on such vague propositions.
We further note that the district court lumped physical
evidence collected by the DSS under the non-evidentiary-use
rubric and found it to be tainted. Slough, 677 F. Supp. 2d at
164-65. Insofar as physical evidence was presented to the
grand jury, that classification is surely wrong—if the
immunized statements led to discovery of physical evidence
that was before the grand jury, it should be analyzed as an
evidentiary use. As with uses purportedly leading to
testimony or to the Frost journal, the district court’s judgment
was subject to the same errors reviewed above as to non-
physical evidence. (We note that especially as to physical
evidence, but in principle as to all evidence alleged to be
tainted, the independent sources that might undercut any taint
would include actual facts on the ground, such as the locations
of vehicles that were shot and bullet strikes, which would lead
investigators to look for shell casings from any incoming fire,
not to mention make inquiries of potential witnesses.)
If the excluded physical evidence was not presented to
the grand jury, as the government’s briefs suggest, Appellant
Br. at 117 n. 43; Appellant Reply Br. at 38, then the district
court’s consideration and exclusion of that evidence appears
premature. The district court acknowledged as much, noting
that the “search [for physical evidence that it excluded] may
have been highly relevant to the criminal case eventually
brought against the defendants.” Slough, 677 F. Supp. 2d at
165. To the extent that the court ordered the Kastigar hearing
17
simply to determine the status of the indictment, it would not
properly reach the issue of possible use at trial. North II, 910
F.2d at 947-48.
Finally, although the district court disapproved of the
prosecutor Kohl’s explanation to the grand jury that some of
defendants’ statements were immunized, it did not find that
mentioning the existence of immunized statements constituted
a prohibited use under Kastigar. See Slough, 677 F. Supp. 2d
at 128. As the district court appears not to have relied on
Kohl’s explanation, we will not rule on the matter.
* * *
We find that the district court’s findings depend on “an
erroneous view of the law.” Kilroy, 27 F.3d at 687. We thus
vacate and remand the case for the court to determine, as to
each defendant, what evidence—if any—the government
presented against him that was tainted as to him, and, in the
case of any such presentation, whether in light of the entire
record the government had shown it to have been harmless
beyond a reasonable doubt. North I, 910 F.2d at 873.
So ordered.