IN THE UNITED STATES DISTRICT COURT FOR THE …€¦ · memorandum of points & authorities in support . of motion to dismiss the indictment for vindictive . prosecution and to enforce

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) UNITED STATES OF AMERICA ) )

v. ) Crim. No. CR-14-107 (RCL) )

NICHOLAS A. SLATTEN, ) Judge Royce C. Lamberth ) Defendant. ) )

MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT

OF MOTION TO DISMISS THE INDICTMENT FOR VINDICTIVE PROSECUTION AND TO ENFORCE THE WRIT OF MANDAMUS

The United States’ decision to indict Nicholas Slatten for the crime of first-degree

murder—after twice concluding that the evidence against him justified only the lesser charge of

voluntary manslaughter for the same conduct—is a textbook case of vindictive prosecution and

thus a violation of Slatten’s constitutional right to due process of law. The recent indictment is

also a transparent effort to circumvent the D.C. Circuit’s writ of mandamus compelling the

dismissal of earlier charges against Slatten on statute-of-limitations grounds. For both reasons—

to uphold due process of law and to give effect to the final and emphatic rulings of the Court of

Appeals in this matter—this Court must now dismiss the first-degree murder charges against

Slatten.

“Vindictive prosecution” is a term of art; in the prosecutorial context, “the underlying

concern is not whether a prosecutor has acted maliciously or in bad faith,” as everyday English

usage might suggest, “but whether the fear of prosecutorial vindictiveness may unconstitution-

ally deter a defendant’s exercise of a constitutional or statutory right.” Maddox v. Elzie, 238

F.3d 437, 446 (D.C. Cir. 2001) (internal quotation and citation omitted). Under D.C. Circuit law,

analysis of a vindictive prosecution claim requires determining: (1) whether “all of the

Case 1:14-cr-00107-RCL Document 23-1 Filed 05/19/14 Page 1 of 32

2

circumstances” of an increase in charge, “taken together, support a reasonable likelihood of

vindictiveness and therefore give rise to a presumption” of vindictiveness, United States v.

Meyer, 810 F.2d 1242, 1246 (D.C. Cir. 1987); and (2) if so, whether the government has set forth

reasons on the record “justify[ing] [its] harsher treatment of the defendant in a way which

negate[s] the possibility of vindictiveness,” United Stated v. Jamison, 505 F.2d 407, 416 (D.C.

Cir. 1974).

Here, the government has “upped the ante” on Slatten from voluntary manslaughter to

first degree murder—bypassing second-degree murder because it would be subject to the same

statute of limitations as manslaughter. And that upping of the ante resulted entirely from

Slatten’s successful assertion of his right to be free of prosecution initiated outside of the

limitations period. This is not speculation; the government has admitted as much in two separate

communications to Slatten’s counsel from Criminal Division Chief Mary McCord in which she

admits that the current indictment is “based on” Slatten’s successful invocation of the statute of

limitations before the Court of Appeals. Mr. Asuncion confirmed the same fact in open court on

May 12, 2014, when he conceded that the prosecution’s evidence of first-degree murder would

be “substantially the same [as], if not identical” to the evidence it would have introduced against

Slatten on a charge of voluntary manslaughter. 5/12/14 Hr’g Tr. at 6 (Attach. A). That is the

very essence of vindictive prosecution: an increase in charge—in this case, an increase by two

critical degrees, from manslaughter to premeditated murder with malice aforethought—with no

change in the evidence or the law.

The government’s punitive response to Slatten’s successful invocation of the statute of

limitations is even more striking when compared to the government’s treatment of the other

defendants in this case—the ones who did not remain unindicted after the Court of Appeals


3

decision in United States v. Slough, 641 F.3d 544 (D.C. Cir. 2011), and who therefore could not

invoke the statute of limitations to obtain dismissal of the indictment procured by the

government in October 2013. The government’s original theory as to all defendants was that

they had recklessly overreacted to a car-bomb attack on U.S. interests in a war zone. The

government never suggested that any of the defendants acted with malice; indeed, the

government never even claimed to be able to prove who shot whom in the chaos of the ensuing

firefight. Somehow, though, the recent writ of mandamus from the Court of Appeals seems to

have brought greater clarity to the prosecution’s reconstruction of the events in Nisur Square.

Now, the government professes the ability to prove beyond a reasonable doubt that Nick Slatten,

acting with premeditation, shot the driver of a white Kia sedan. This is remarkable enough,

given that no witness has ever testified that Slatten even fired at the individual whom the

government now says he murdered. But the truly amazing part is that several other members of

the security detail with which Slatten served have specifically taken responsibility for shooting

that particular victim. In short, after Slatten’s repeated successes asserting his rights in court,

the government transmogrified the voluntary manslaughter charge against five individuals

(including Slatten) into no charge against the confessed shooters, and a first-degree murder

charge against Slatten. The first-degree murder indictment against Slatten may well be the

clearest case of vindictive prosecution ever to arise in this Circuit.

Furthermore, the government’s latest escalation of its war on Slatten also represents a

direct attack on the authority of the Court of Appeals. For the last two years, the government has

repeatedly sought to bend and twist the Slough mandate into something it never was, namely a

reversal as to five defendants rather than four. The Court of Appeals recently made clear that it

meant what it said when it declared Slatten “out of the case,” and that Slatten cannot under any


4

circumstances be tried for manslaughter. The government, however, has aggressively pushed a

proposal to do exactly that, by using the first-degree murder indictment to coerce Slatten into

forfeiting the rights he successfully vindicated in the Court of Appeals. In effect, the

government would like for Slatten to agree that the U.S. Attorney’s Office can unilaterally

pretend that the two most recent Court of Appeals decisions came out the other way. It takes no

extraordinary perspicacity to see through the ruse, and this Court should refuse to play along.

This Court should dismiss the government’s re-amplified charges against Slatten as a

vindictive prosecution in violation of Slatten’s Due Process rights, as a transparent effort to

circumvent the Court of Appeals’ ruling, or both. Slatten respectfully requests a decision by on

or before June 2, 2014, because in the event of either an unfavorable ruling or no ruling, Slatten

intends on that date to again seek mandamus from the D.C. Circuit on the grounds set forth

herein, so as to obtain a ruling from the Court of Appeals before trial commences.

BACKGROUND

The government charges Nicholas Slatten with the deliberate and premeditated murder of

Ahmed Haithem Ahmed Al Rubia’y during a firefight that occurred in Baghdad in 2007. But for

over six years, the government charged the death of Rubia’y as a voluntary manslaughter, and

disclaimed any ability to identify which member of Slatten’s detail actually shot Rubia’y. To

understand how the manslaughter case against six men became a murder case against just one,

we need to look not at how the case for murder grew stronger—because it did not—but at how

the case for manslaughter disintegrated completely.

A. The Nisur Square Incident

In September 2007, Slatten was in Baghdad, Iraq, serving as a member of the security

team known as “Raven 23,” a team providing security to Americans in Iraq under contract with


5

the State Department. Shortly before noon that day, a massive car bomb exploded in downtown

Baghdad near a meeting attended by a State Department official. Raven 23 departed the “Green

Zone” to secure a safe return route for the official and her protective detail. After arriving at a

Baghdad location known as Nisur Square, Raven 23 came under attack and returned fire.

Immediately following the firefight, Mr. Slatten and his team members were compelled

by the State Department to make oral and written statements about what had occurred. They did

so with the understanding that neither those statements nor any information or evidence derived

from them would be used in any criminal proceeding against the individuals providing the

statements. Those statements were therefore protected from criminal use against each team

member pursuant to Garrity v. New Jersey, 385 U.S. 493 (1967), and Kastigar v. United States,

406 U.S. 441 (1972).

B. The Government’s Investigation and the 2008 Indictment

Soon after the incident, the government launched a criminal investigation. The

government made numerous trips to Iraq, and interviewed members of Raven 23, Blackwater

management, Iraqi witnesses and victims, and Iraqi law enforcement personnel. The government

also analyzed physical evidence, including Iraqi vehicles allegedly involved in the shooting, shell

casings, and bullet fragments. In addition, the government inspected the scene of the incident

under the protection of the U.S. military.

After a ten-month investigation, the prosecutors—since replaced by an entirely new

team—recommended charging the defendants with voluntary manslaughter and attempted

manslaughter. Prosecution Mem. at 2 (Nov. 11, 2008) (Attach. B). The Prosecution

Memorandum described the Nisur Square incident in terms consistent with those charges,

claiming, for example, that Raven 23 members had “fired their weapons recklessly with extreme


6

disregard for human life.” Id. at 2. Given the lack of evidence linking any particular defendant

to any particular individual injured or killed, the Memorandum also acknowledged that the

government’s “theory at trial [would] be that all six defendants intentionally joined a reckless

and unjustified shooting.” Id. at 60.

The government initially presented its case to a grand jury convened in November 2007.

The government determined, however, that the presentation was so thoroughly tainted by

impermissible use of the defendants’ statements that it re-presented the case to a second grand

jury. United States v. Slough, 677 F. Supp. 2d 112, 126-27 (D.D.C. 2009). On December 4,

2008, the grand jury returned a thirty-four count indictment against Slatten, Paul Slough, Evan

Liberty, Dustin Heard, and Donald Ball, charging numerous counts of manslaughter and

attempted manslaughter, and use of a firearm in the commission of a crime of violence. See

Indictment (Dec. 4, 2008) [United States v. Slough, ECF No. 1]. The indictment contained little

detail, but did identify the driver of a white Kia, an Iraqi medical student named Ahmed Haithem

Ahmed Al Rubia’y, as one individual killed. Id. In the death of Al Rubia’y, the indictment

alleged:

On or about September 16, 2007, in the city of Baghdad, in the Republic of Iraq, defendants PAUL ALVIN SLOUGH, NICHOLAS ABRAM SLATTEN, EVAN SHAWN LIBERTY, DUSTIN LAURENT HEARD, DONALD WAYNE BALL, and another joint offender known to the Grand Jury, unlawfully and intentionally, upon a sudden quarrel and heat of passion, did commit voluntary manslaughter . . . by killing . . . Ahmed Haithem Ahmed Al Rubia’y.

Id. ¶ 5 (Count One).

Given the 2008 Indictment’s lack of specificity, the defendants moved for a bill of

particulars demanding that the government identify “what act or acts (or what omission or


7

omissions) were allegedly performed (or not performed) by each Defendant” with respect to each

count of voluntary manslaughter and attempted manslaughter. Defs.’ Mot. for a Bill of

Particulars ¶¶ 2-29, 35-74 [United States v. Slough, ECF No. 40]. On August 6, 2009, the Court

(Judge Urbina) granted that motion, explaining that a bill of particulars was appropriate given the

“complexity of the charges” stemming “from the concentrated chaos that occurred over the span

of just a few minutes in a foreign war zone.” 8/6/09 Hr’g Tr. at 9 (Attach. C).

In seeking clarification and/or reconsideration of the Court’s ruling, the government

expressly stated that “the facts and evidence in this case do not lend themselves to individual

parsing of the conduct of each defendant with respect to each named victim,” and that under

those circumstances, “there is no way to determine conclusively who fired the fatal shot or shots

that killed a particular victim.” Gov’t Mot. for Clarification and/or Reconsideration at 2-3

[United States v. Slough, ECF No. 122]. The government also conceded that “there is no

forensic match between an individual defendant’s weapon and any bullet or bullet fragment

recovered from a victim’s body.” Id.; see also Gov’t Reply in Supp. Mot. for Clarification

and/or Reconsideration at 5-6 (stating it “should surprise no one that, absent a forensic match, it

is not possible to line up neatly a particular defendant’s shot with a particular victim’s wound”)

[United States v. Slough, ECF No. 129]. In short, the government acknowledged that, at most,

the “trial evidence [would] show that the defendants and their joint offender, Jeremy P.

Ridgeway, were the six shooters at Nisur Square who killed or wounded the 34 victims.”

Gov’t’s Mot. for Clarification at 2.

C. The Government’s Violation of Slatten’s Fifth-Amendment Protections

On October 14, 2009, the Court commenced a three-week evidentiary Kastigar hearing to

determine whether the government had made impermissible use of the defendants’ immunized


8

statements to Department of State investigators. That hearing revealed that the government had

used tainted evidence, manipulated witness testimony, and intentionally excluded exculpatory

evidence from the second grand jury in order to obtain Slatten’s indictment. For instance, the

government presented the testimony of a Raven 23 member that was unquestionably derived

from exposure to Mr. Slatten’s protected statement. Not only was that testimony tainted, but the

prosecutors also altered it and consciously presented dramatically “distorted versions.” See

Slough, 677 F. Supp. 2d at 128. What is more, in the guise of “cleansing” tainted testimony in

order that “clean” testimony could be presented to the second grand jury, AUSA Malis, who was

tasked with that responsibility, “redact[ed] exculpatory portions of the testimony.” Id. And

beyond AUSA Malis’s selective redactions, AUSAs Kohl and Malis used the second grand jury

as an opportunity to completely purge “from the second grand jury substantial exculpatory

evidence that had been presented to the first grand jury,” for example, eliminating the testimony

of four Raven 23 members who testified that Raven 23 had been responding to incoming fire.

Id. at 127. Perhaps most important here, the Kastigar hearing revealed the government’s honest

assessment of the manslaughter charges against Mr. Slatten. In the words of AUSA Malis:

“relative to the other defendants the evidence against Mr. Slatten was weak.” 11/2/09 (Malis) Tr.

at 71 (Attach. D). Following the hearing, it was apparent that the government’s violation of

Slatten’s Fifth-Amendment rights had been so blatant, and the case against him was so weak,

that the government itself voluntarily moved to dismiss Slatten’s indictment.

On December 31, 2009, the Court dismissed the 2008 indictment against Slatten and all

of the other defendants. Although the government named Slatten in its appeal, it did not argue

for the reversal of his dismissal, and nor could it—the government had conceded before this

Court that Slatten’s indictment was constitutionally infirm. And the government continued to


9

concede the 2008 Indictment’s infirmity with respect to Slatten before the Court of Appeals. In

the end, the Court of Appeals ruled in favor of the government with regard to Slatten’s four co-

defendants, but explicitly stated that it was not reversing the district court’s dismissal of the

indictment as to Slatten: “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.” Slough, 641 F.3d at 547.

D. The Government’s Re-Investigation and the 2013 Indictment

On June 6, 2012, the Court of Appeals issued its mandate reversing the dismissal of Mr.

Slatten’s four co-defendants. In light of the blatant Fifth-Amendment violations committed by

the government’s prior trial team, the government appointed a new trial team to conduct an

independent investigation based on untainted information, and to make new charging decisions.

This second team made numerous additional trips to Baghdad, conducted many additional

witness interviews, re-inspected the scene of the shooting incident (still under military guard),

and reviewed the prior record from the previous grand juries. Over the years that this team spent

re-investigating the matter, the government repeatedly advised this Court that it needed more

time to complete its work. Indeed, on four occasions between January 31, 2013, and September

10, 2013, the government obtained continuances from the Court based on assurances that

additional time was necessary to complete a careful re-investigation and to consider what

charges, if any, to bring. See, e.g., Gov’t’s Unopposed Mot. to Reschedule Status Hr’g [United

States v. Slough, ECF No. 295]. Eventually, the Court grew impatient with the government’s

delay and on September 10, 2013, ordered the government to return an indictment by October

21, 2013.


10

Meanwhile, in the fall of 2012, Slatten had notified the government and this Court of his

strong objection to the government’s contention that Slatten’s indictment had been revived by

the Court of Appeals. In response to the Court’s request for briefing on that issue—completed in

January 2013—Slatten argued that the Court’s dismissal of the 2008 indictment against him still

stood, and that the statute of limitations for re-indicting him had run in September 2012. The

government, however, remained curiously adamant that Slatten remained under indictment. In a

purportedly “superseding indictment,” the government singled Slatten out as solely responsible

for the death of Rubia’y. Thus, notwithstanding the government’s earlier assessment that

“relative to the other defendants the evidence against Mr. Slatten was weak,” 11/2/09 (Malis) Tr.

at 71 (Attach. D), the government’s new indictment in October 2013 charged Slatten alone with

voluntary manslaughter in the death of Rubia’y, the driver of the white Kia. 2013 Indictment

[United States v. Slough, ECF No. 304].

Significantly, however, not a single grand jury witness testified that Slatten shot the

driver of the white Kia. The best “evidence” that the government was able to muster was that a

witness (Watson) heard Slatten fire two shots after Raven 23 received incoming fire, 3/14/13

(Watson) Tr. at 109-10 (Attach. E), although Watson had “no idea” what Slatten was shooting at

because Watson “quite frankly . . . couldn’t see anything,” id. at 111. A second witness

(Ridgeway) testified that Slatten claimed to have engaged an “active shooter” and that Slatten

had shot him “and the guy slumped forward.” 5/9/13 (Ridgeway) Tr. at 105 (Attach. F).

Clearly, however, an “active shooter” was not the driver of the white Kia, since no one has ever

reported the Kia driver to be driving and shooting simultaneously, or even shooting at all.

While no government witness testified that Slatten had shot Rubia’y, other members of

Raven 23 admitted to shooting Rubia’y and the white Kia. Watson testified that, perceiving the


11

white Kia as a threat to the convoy, he had fired approximately thirty rounds from his automatic

weapon into the vehicle, followed by an M203 grenade. 3/14/13 (Watson) Tr. at 116-18 (Attach.

E). Ridgeway reported observing a white vehicle approaching the Raven 23 convoy “at a faster

speed than [he] would have liked,” and that in “one fluid movement” he turned, brought his

weapon up, and unleashed four or five rounds at “[t]he driver.” 5/9/13 Tr. (Ridgeway) at 63-68,

92-93 (Attach. F). Mr. Ridgeway further testified that the first firing he heard was “fully

automatic” and that the person he saw shooting the white Kia was not Slatten, but someone else.

Id.

In addition, Donald Ball, who was originally charged with killing Rubia’y but was

granted immunity, admitted that he fired into the driver’s side compartment of the white Kia.

Ball testified that the white sedan approached the convoy “at a rate of speed that [he] wasn’t

comfortable with” and that he thought “it was an imminent threat and [Vehicle Borne Improvised

Explosive Device].” 10/10/13 (Ball) Tr. at 125-26 (Attach. G). Accordingly, Ball stated that he

engaged the sedan by firing two shots into the “driver’s side door” with the hope of “stop[ping]

[the driver] from what he was doing.” Id. at 125.

Thus, to review the history of the case through 2013: In November 2008, after a full

investigation, the government charged Mr. Slatten with voluntary manslaughter because,

although “the evidence against Mr. Slatten was weak,” 11/2/09 (Malis) Tr. at 71 (Attach. D), he

was allegedly one of a number of individuals who had “fired their weapons recklessly with

extreme disregard for human life,” Prosecution Mem. at 2 (Attach. B). At that point, the “theory

at trial [was to be] be that all six defendants intentionally joined a reckless and unjustified

shooting.” Id. at 60. But in October 2013, after Slatten alone vigorously asserted a statute of

limitations defense, the government charged Slatten alone with voluntary manslaughter for


12

killing a specified individual—the driver of the white Kia. This driver, Rubia’y, was someone

upon whom no witness saw Slatten fire, and on whom several other witnesses admitted shooting

with between two and thirty rounds each, plus at least one grenade.

E. Court of Appeals’ Writ of Mandamus

After his re-indictment in October 2013, Slatten moved quickly to dismiss the Indictment

as barred by the statute of limitations, incorporating the arguments advanced in the January 2013

briefing on his status. This Court denied Slatten’s motion, concluding that the mandate from the

Court of Appeals in Slough had reversed Judge Urbina’s December 2009 dismissal of the first

manslaughter indictment against Slatten. On March 6, 2014, Slatten filed an emergency petition

for a writ of mandamus, asking the Court of Appeals to order this Court to enforce the Slough

mandate as written. On April 7, 2014 that petition was granted, requiring the dismissal of the

2013 Indictment.

On April 17, 2014, the government filed in the Court of Appeals a petition for rehearing

or, in the alternative, a motion to recall the Court of Appeals’ original mandate. Pet. For

Rehearing or, in the Alternative, to Recall the Mandate (Apr. 17, 2014) (Attach. H). The

government argued that if the Court of Appeals failed to recall its mandate, “the superseding

indictment against Slatten will be time barred, and Slatten will escape liability for the charged

offenses.” Id. at 7. The government then went further. It argued that the Court of Appeals

should withdraw its mandate given the “compelling public interest in holding Slatten accountable

for his role in the shooting.” Id. The Court of Appeals denied the government’s petition on

April 18, 2014, and a week later this Court dismissed the 2013 Indictment.


13

F. Indictment for First-Degree Murder

Given the government’s assessment of Slatten’s odds of securing a writ of mandamus,1

the dismissal of the 2013 Indictment against Slatten presumably came as a surprise to the

government. But with Slatten—as the alleged lone killer of the driver of the white Kia—now the

centerpiece of the government’s case, his dismissal left an enormous hole. With the trial date of

June 11, 2014 fast approaching, the government needed to fill that hole quickly. But the

voluntary manslaughter charges against Slatten were time-barred, as was a second-degree murder

charge, which is subject to the same statute of limitations. Thus, only a first-degree murder

charge—because there is no statute of limitations for federal crimes punishable by death—would

suffice to reanimate the government’s case. On May 8, 2014, the government therefore obtained

a one-count indictment charging Slatten with the first-degree murder of Rubia’y. Indictment

(May 8, 2014) (“2014 Indictment”) [ECF No. 1].

The government has not concealed the fact that the new indictment of Slatten on the far

more serious charge is not based on any new evidence or change in the law. As Mr. Asuncion

stated before this Court on May 12, 2014, “the evidence that [the government] expect[s] to

submit, through testimony and otherwise, with respect to Mr. Slatten’s new charges is

substantially the same, if not identical, to what [the government] had originally planned to do

well before this turn of events.” 5/12/14 Hr’g Tr. at 6 (Attach. A). This statement was, of

course, consistent with the government’s previous representation to Slatten’s counsel. In a May

1 The government claimed Slatten’s petition for a writ of mandamus was “unfounded,” “frivolous,” and a “desperate ploy.” See United States v. Slough, ECF No. 297 at 1; ECF No. 399 at 1.


14

9, 2014, e-mail from Mary McCord, Criminal Division Chief of the D.C. U.S. Attorney’s Office,

to Slatten’s counsel, she stated:

Last October, before seeking the superseding indictment [i.e., the 2013 Indictment], this Office carefully considered whether to charge Mr. Slatten with first-degree murder for the death of Ahmed Haithem Ahmed Al Rubia’y because we had developed the evidence to support the charge after the case was remanded from the Circuit. In an exercise of prosecutorial discretion, we elected not to seek an indictment on that charge.

E-mail from Mary McCord to Thomas Connolly, May 9, 2014 (emphasis added) (Attach. I) Ms.

McCord’s letter was remarkable for two reasons.

First, it is remarkable for the way it misrepresents the government’s view of the evidence.

Ms. McCord now asserts that the government has believed, since before it indicted Mr. Slatten

on manslaughter last October, that the evidence against Mr. Slatten would also support a murder

charge. But just a few weeks ago, the government told the Court of Appeals that dismissal of the

manslaughter charges against Mr. Slatten would preclude him from being tried in connection

with his role in the Nisur Square shooting incident. Pet. for Rehearing or, in the Alternative, to

Recall the Mandate at 7 (Attach. H). We assume that the government was not lying to the Court

of Appeals when it represented, in essence, that it did not then believe that the evidence

supported a murder charge, which could be brought regardless of statute of limitations issues.

Such a “belief” that the evidence supported a murder charge only came to the government after

Mr. Slatten exercised his statute of limitations rights.2

Second, the letter is remarkable for a related, but this time accurate, representation. Ms.

McCord specifically explained that rather than being the result of any new evidence or change of

2 If the government in fact considered first degree murder charges in the fall of 2013, presumably it will be able to substantiate that claim by producing the prosecution memorandum and any other documents discussing that charge in advance of the October 2013 Indictment.


15

law, the increased charge against Slatten was necessitated by his exercise of his right to be free

of prosecution initiated after the statute of limitations had run. She stated that the new charges

were “[b]ased on the recent dismissal of the previously indicted charges on statute-of-limitations

grounds,” which left the government “no option . . . other than seeking an indictment for first-

degree murder, which we have done.” Id. And the government’s representations in this regard

are entirely correct; the evidence upon which the government based the first-degree murder

charge against Slatten consists entirely of evidence already in its possession at the time of the

2013 Indictment for manslaughter.

The May 9, 2014 e-mail from Ms. McCord to Slatten’s counsel offered to “discuss

options for moving forward that do not result in increased exposure for your client.” Id. One

week later, Ms. McCord revealed what price the government hoped to exact from Slatten by

charging him with murder: renunciation of the very same legal protections Slatten had recently

vindicated through the appellate process. In Ms. McCord’s own words, the government is now

willing to once again exercise prosecutorial discretion should your client wish to waive the statute-of-limitations defense and proceed by information on the charges contained in the October 2013 superseding indictment. In that event, the government would dismiss the charge of first-degree murder.

Ltr. from Mary McCord to Thomas Connolly at 1, May 16, 2014 (Attach. J). In other words, the

government is willing to go back to the way things were before its two recent losses in the Court

of Appeals. If Slatten will agree to act as if the government won those appeals, the government

will also agree to act as if the government won those appeals.


16

ARGUMENT

I. SLATTEN’S FIRST-DEGREE MURDER INDICTMENT VIOLATES DUE PROCESS BECAUSE IT CONSTITUES A VINDICTIVE PROSECUTION.3

The D.C. Circuit’s test for vindictive prosecution has two parts. The Court must first

examine whether “all of the circumstances” of an increase in charge, “when taken together,

support a realistic likelihood of vindictiveness and therefore give rise to a presumption” of

vindictiveness. Meyer, 810 F.2d at 1246. If a presumption of vindictiveness is warranted, then

the Court examines whether the government can overcome the presumption by “justify[ing] [its]

harsher treatment of the defendant in a way which negate[s] the possibility of vindictiveness.”

Jamison, 505 F.2d at 416.

A. Slatten is Entitled to a Presumption of Vindictiveness.

This Circuit’s seminal case on vindictive prosecution is United States v. Jamison, 303

F.2d 407 (D.C. Cir. 1974). In Jamison, the defendants obtained a mistrial on second-degree

murder charges on grounds of ineffective assistance of counsel after defense counsel’s opening

statement opened the door to the government’s introduction of a previously excluded confession.

Id. at 409. Based on “substantially the same evidence,” the government re-indicted the

defendants for first-degree murder. Id. at 409-10. The D.C. Circuit found:

Although free to reprosecute appellants after their first trial was aborted, the government was not necessarily free to reindict them for a more serious crime than had originally been charged. On the contrary, we have concluded that, under the line of Supreme Court cases which began in 1969 with North Carolina v. Pearce, the reindictment of defendants for first degree murder, absent any showing of justification for the increase in the degree of the crime initially charged, denied them due process of law.

3 Slatten’s vindictive prosecution motion is timely now because this Court has held that “vindictive prosecution claim normally must be made prior to trial” or would “by default be deemed waived.” United States v. Choi, 818 F. Supp. 2d 79, 89-90 (D.D.C. 2011).


17

Id. at 413 (internal citation omitted).

The Jamison court acknowledged that the government may “justify [its] harsher

treatment of the defendant in a way which negated the possibility of vindictiveness,” but “the

reasons for such increases, as well as their factual bases, must be made a part of the record at the

time the higher indictment is filed with the court.” Id. at 416 (emphasis added). “As to what

reasons might be sufficient to justify” an increased charge, the court identified (1) situations

where “the more serious charge could not have been brought when the lesser one was because

the elements of the more serious crime” were not yet present, id.; and (2) the possibility of

“intervening events” or “new evidence” of which the government was “excusably unaware at the

time of the first indictment.” Id. at 417. The court concluded that because “this record is devoid

of any illumination of the reasons why the first degree murder charge was brought,” the

defendant was denied due process. Id.

In Jamison, the government’s burden of justification—to overcome the presumption of

vindictiveness—was triggered by the mere fact of an increased charge. Subsequent D.C. Circuit

precedent is more nuanced. In particular, the court was obliged to harmonize Jamison and the

Supreme Court’s opinion in United States v. Goodwin, 457 U.S. 368 (1982), which rejected “a

per se rule applicable in the pretrial context that a presumption [of vindictiveness] will lie

whenever the prosecutor ‘ups the ante’ following a defendant’s exercise of a legal right.” Meyer,

810 F.2d at 1246. Meyer in turn rejected the government’s position that there can never be a

presumption of vindictiveness pretrial after Goodwin, and instead held: “The critical

question . . . is whether the defendants have . . . shown that all of the circumstances, when taken

together, support a realistic likelihood of vindictiveness and therefore give rise to a

presumption.” Id. at 1246.


18

In assessing a “likelihood of vindictiveness,” the D.C. Circuit has emphasized that

“vindictive prosecution” is a term of art—in the prosecutorial context, “the underlying concern is

not whether a prosecutor has acted maliciously or in bad faith,” but rather “whether the fear of

prosecutorial vindictiveness may unconstitutionally deter a defendant’s exercise of a

constitutional or statutory right.” Maddox, 238 F.3d at 446 (internal quotation and citation

omitted). “The vindictive prosecution doctrine reaches all prosecutions that pose a realistic

likelihood of vindictiveness, whether or not the prosecutor acted out of vindictiveness in fact,”

because the evil to which the doctrine is directed is the “apprehension on the defendant’s part of

receiving a vindictively-imposed penalty for the assertion of rights.” United States. v. Velsicol

Chem. Corp., 498 F. Supp. 1255, 1263-64 (D.D.C. 1980) (internal quotation marks and citations

omitted).

After articulating the “totality of the circumstances” test for whether the presumption of

vindictiveness will lie, the Meyer court addressed some factors which, in combination with an

increased charge, would “support a realistic likelihood of prosecutorial vindictiveness.” 810

F.2d at 1246. First, the court found that “the most important” such circumstance in that case was

“the government’s disparate treatment of the defendants” who successfully asserted a legal right

(the right to trial) and those defendants who did not. Id. Second, the court pointed out that while

“officials often make their initial charging decisions prior to gaining full knowledge or

appreciation of the facts involved,” that was not the case in Meyer, so “suspicion must grow that

the prosecutor increased the charges not because of any further factual investigation or legal

analysis, but because the defendants chose to exercise their constitutional right to trial.” Id. at

1247. And finally, the Meyer court noted that while “run-of-the-mill pretrial” assertions of rights

would be unlikely to trigger vindictive behavior, the “unexpected and burdensome assertions of


19

legal rights” at issue there—the right to trial on charges of “demonstrating without a permit” and

“obstructing the sidewalks”—were “sufficiently significant to count toward use of the

presumption.” Id. at 1244, 1247

All of these factors identified in Meyer weigh even more heavily in favor of the

presumption here. First, the “disparate treatment” identified in Meyer was that defendants who

forfeited their rights were charged with “demonstrating without a permit,” while those who

asserted their rights were charged with “demonstrating without a permit” and “obstructing the

sidewalk,” where both counts carried maximum sentences of six months’ imprisonment and a

$500 fine. In this case, Slatten was charged with premeditated murder (a death-eligible crime

that also carries a mandatory life-sentence), after asserting his rights, while the other defendants

remain charged with voluntary manslaughter, attempted manslaughter, and a weapons charge.

Clearly the government has “upped the ante” far more here than in Meyer. And the government

does not dispute it has “upped the ante.” As Ms. McCord admits in her May 16, 2014, letter to

Slatten’s counsel, “the newly returned indictment exposes Mr. Slatten to a potential sentence

greater than that to which he was exposed by the [2013] indictment.” Ltr. from Mary McCord to

Thomas Connolly at 1 (Attach. J).

Second, this is obviously not a case where the government made its 2013 decision to

charge Slatten with voluntary manslaughter “prior to gaining full knowledge or appreciation of

the facts involved.” Meyer, 810 F.2d at 1247. At that point, two large teams of the

government’s top investigators had spent six years investigating and analyzing the facts of this

case, and two large teams of the government’s top prosecutors had “exercise[d] . . . prosecutorial

discretion . . . not to seek an indictment” for first-degree (or, for that matter, second-degree)

murder. Ltr. from Mary McCord to Thomas Connolly at 1 (Attach. J); see also Email from Mary


20

McCord to Thomas Connolly (Attach. I). To say that, as a result, “suspicion must grow that the

prosecutor increased the charges not because of any further factual investigation or legal

analysis, but because [Slatten] chose to exercise [his]” rights, Meyer, 810 F.2d at 1247, would be

a masterpiece of understatement. In Slatten’s case, we are far beyond mere “suspicion”—we

know for a fact that the government “increase[d] the charges” without “any further factual

investigation or legal analysis.” We know because the government has told us so.

Finally, Slatten’s assertion of his rights in this case was exponentially more “unexpected

and burdensome” to the government than the Meyer defendants’ exercise of their right to trial on

charges of “demonstrating without a permit” and “obstructing the sidewalk.” 810 F.2d at 1244,

1247. Again, the government has been investigating and preparing to try this case for more than

six years. It has estimated that it will need four months or more just to present its case-in-chief.

And once the government inexplicably decided to charge Slatten with sole responsibility for

shooting the driver of the white Kia, he became the linchpin of their case; without Slatten, the

government’s case now has a hole at its center. The government’s “strong incentive” for

discouraging such a “burdensome assertion[ ] of legal rights” cannot seriously be questioned.

Meyer, 810 F.2d at 1247.

Two other highly unusual facts—facts not present in Meyer or in any other case of which

we are aware—also compel a presumption of vindictiveness here. First, in the week since the

government indicted Slatten for first-degree murder, it has treated him in a way that is strikingly

inconsistent with any honest belief that he is a murderer. The government did not seek to arrest

Slatten and stated it had no intention of arresting Slatten on the murder charge; instead, it served

a summons on his counsel. It did not demand that he appear in person in this Court for

arraignment. It was perfectly comfortable with Slatten appearing remotely by video conference.


21

And the government did not even request the pretrial detention of a person it has accused of

being a premeditative murderer. It was entirely comfortable with Slatten being released on his

personal recognizance and obligation to report by telephone weekly to pretrial services.4

Second, and most remarkably, Ms. McCord’s extraordinary May 16 letter to Slatten’s

counsel formally offers to reduce the charges against Slatten back to manslaughter if he will

waive the rights that he asserted in order to get the manslaughter charges dismissed. Ltr. From

Mary McCord to Thomas Connolly at 1 (Attach. J). The government apparently conceives of

this as a favor to Slatten; a way to put him back in the same position he was in before the

dismissal of the 2013 manslaughter indictment. But it would not put him in the same position; it

would put him in the same position minus the rights he successfully asserted. In the end, the best

indication of the government’s vindictive prosecution of Slatten for exercising his rights is the

government’s formal offer to reduce Slatten’s charge if he un-exercises his rights.

Cases outside of the D.C. Circuit also strongly support application of the presumption of

vindictiveness here. For instance, the court in United States v. Korey dismissed a prosecution as

vindictive based on facts remarkably similar to the present case. 614 F. Supp. 2d 573, 586 (W.D.

Pa. 2009). There, the defendant was indicted on a weapons charge, which he successfully

petitioned the court to dismiss without prejudice. Id. at 578. When the government then missed

4 The government’s decision not to seek pretrial detention of Slatten also serves the government’s interests by preventing Slatten from immediately challenging his detention on vindictive prosecution grounds via habeas relief. See 28 U.S.C. § 2241(c)(3); Turner v. Tennessee, 858 F.2d 1201, 1204 (6th Cir. 1988), rev’d on other grounds, 492 U.S. 902 (1989); Turner v. Tennessee, 726 F. Supp. 1113 (M.D. Tenn. 1989) (granting writ on remand). The government hopes that by leaving Slatten free on his personal recognizance pending trial, he will have to wait under after trial to appeal a vindictive prosecution ruling if this Court decides in the government’s favor. But as discussed infra Section II, a writ of mandamus would again be appropriate in this case given the government’s expressed intent to circumvent the D.C. Circuit’s orders.


22

the limitations deadline for re-indictment, the government used the same evidence to indict the

defendant on a more serious charge of using a weapon while committing murder—a capital

offense to which no limitations period applied. Id. at 581. The court held that the “unique and

egregious circumstances of this case, as a whole [ ], compel a presumption of vindictiveness,”

and dismissed the indictment. Id. at 585–86; see also United States v. Groves, 571 F.2d 450, 453

(9th Cir. 1978) (stating that “it is the appearance of vindictiveness, rather than vindictiveness in

fact, which controls”).

Also particularly instructive on the application of the presumption is United States v.

Krezdorn, 693 F.2d 1221 (5th Cir. 1982). There, the defendant was charged with five counts of

forging documents, and convicted on four of the five. When he obtained reversal on all counts

on the ground that extrinsic evidence had been erroneously admitted at trial, the superseding

indictment added a conspiracy charge that increased the maximum sentence by five years. Id. at

1227. The Fifth Circuit found that “[w]ithout in any way impugning the prosecutor’s [actual]

motives,” there was a “clear likelihood that the decision to increase the number of charges could

have been affected” by defendant’s exercise of his rights. Id. (emphasis added). The court

explained that “the prosecutor’s evidentiary theory was found to be erroneous, giving rise to a

temptation to engage in ‘self-vindication,’” which, whether acted upon or not, would “cause a

reasonable apprehension of vindictiveness” tending to discourage defendants from asserting their

rights. Id.

The same is true here. The prosecutors’ statute-of-limitations theory was found to be

erroneous. Indeed, the Court of Appeals noted that it was “inexplicable” that the government

failed to re-indict Slatten within the statute of limitations. The government’s failure in this

regard certainly gives rise to a temptation to engage in self-vindication. Under D.C. Circuit law,


23

Slatten does not need to show that the prosecutors acted upon that temptation—again, “the

underlying concern is not whether a prosecutor has acted maliciously or in bad faith” but

“whether the fear of prosecutorial vindictiveness may unconstitutionally deter a defendant’s

exercise of a constitutional or statutory right.” Maddox, 238 F.3d at 446 (internal quotation and

citation omitted); see also United States v. Motley, 655 F.2d 186, 190 (9th Cir. 1981) (“The

government must point to objective factors, and not subjective good faith, to justify the increase

in severity.”); United States v. Goodwin, 637 F.2d 250, 255 (4th Cir. 1981) (The government

must “come forward with objective evidence to show that the increased charges could not have

been brought before the defendant exercised his rights.”). Of course, in this case, the

government essentially concedes that it acted upon the temptation identified in Krezdorn—in the

government’s words, the first-degree murder charge became necessary “based on the recent

dismissal of the [voluntary manslaughter] charges on statute-of-limitations grounds,” i.e., based

on Slatten’s exercise of his rights. See Email from Mary McCord to Thomas Connolly

(emphasis added) (Attach. I). As a result, in this case—just as the Fifth Circuit wrote in

Krezdorn—“[f]rom the defendant’s vantage point, the prosecutor is attempting to turn a

successful” exercise of defendant’s rights “into a pyrrhic victory,” giving rise to a “chilling, even

arctic, effect” on defendants’ decisions to avail themselves of their rights. 693 F.3d at 1231.

That is the evil addressed by the vindictive prosecution doctrine.

B. The Government Cannot Justify its Harsher Treatment of Slatten in a Way that Negates the Possibility of Vindictiveness.

Because the presumption of vindictiveness applies in this case, the burden shifts to the

government to “justify [its] harsher treatment of [Slatten] in a way which negate[s] the


24

possibility of vindictiveness.” Jamison, 505 F.2d at 416. The government’s behavior in this

case suggests that it gravely misconstrued this requirement.

As noted above, Mary McCord, Criminal Division Chief and a member of the

prosecutorial team on this case, volunteered to Slatten’s counsel that the government had

“developed the evidence to support the charge” of first-degree murder before seeking the second

(October 2013) manslaughter indictment of Slatten. Email from Mary McCord to Thomas

Connolly (Attach. I). But if the government thinks the fact that it developed no new evidence

between charging Slatten with voluntary manslaughter and charging him with first degree

murder “negate[s] the possibility of vindictiveness,” then it grossly misunderstands the case law.

In fact, the opposite is true. As a purely logical matter, of course, bringing a higher

charge on the same evidence following a defendant’s exercise of his rights would tend to confirm

vindictiveness, not negate it. And that is exactly what the cases say. Jamison itself suggests

“new evidence of which the government was excusably unaware at the time of the first

indictment” might negate vindictiveness, 505 F.2d at 417—obviously the lack of new evidence

tends to confirm vindictiveness.

The Fifth Circuit further explained this point in Deloney v. Estelle, 713 F.2d 1080 (5th

Cir. 1983). The court pointed out that when the government re-indicts on the basis of the same

conduct, “only the prosecutor’s right to reopen a ‘previously completed exercise of discretion’”

is at issue—and there is accordingly no strong countervailing policy permitting the exercise of

prosecutorial discretion, which has already been exercised once. Id. at 1083 n.6 (internal citation

and quotation omitted). Kresdorn similarly pointed out that new charges “concern[ing]

substantially the same basic behavior which formed the basis for the first indictment” do not

implicate prosecutorial discretion in nearly as significant a way—they implicate only the


25

prosecutor’s desire “to reopen a previously completed exercise of discretion.” 696 F.3d at 1231

(quoting Jackson v. Walker, 585 F.2d 139, 144 (5th Cir. 1978)).

Some courts put this point much more strongly. In Missouri v. Potts, for example, the

Missouri Court of Appeals wrote:

There is nothing in the record to suggest that the prosecutor was unaware of the facts necessary to bring the higher charge . . . [at the time of the initial indictment]. To the contrary, the prosecutor stated that he was well aware that this higher charge was possible [at that time]. This action, in the context of this case, permits no logical, non-vindictive explanation for this prosecutor’s decision to re-file this case with a more serious charge on the same day Appellant was granted a mistrial.

181 S.W.3d 228, 237 (Mo. Ct. App. 2005). The same is true here—the fact that the government

charged Slatten with first degree murder on the same evidence on which they had charged him

with voluntary manslaughter, and announced its decision to do so on the very same day Slatten

won a dismissal with prejudice of the manslaughter charges, 4/23/14 Hr’g Tr. at 4 (Attach. L),

confirms that the prosecutor’s action was vindictive within the meaning of the case law, rather

than negating vindictiveness.

The government also seems to believe that the D.C. Circuit’s decision to enforce the

statute of limitations somehow justifies its decision to “up the ante” on Slatten. But, again, that

is exactly backwards. That decision is the result of Slatten’s assertion of his rights. Vindictive

prosecution, by definition, is upping the ante in response to a defendant’s assertion of his rights.

That is what every vindictive prosecution case cited in this pleading is about. If allegations of

vindictive prosecution could be turned aside with McCord-like assertions that a defendant’s

previous victory in court has left the government with “no option” for holding the defendant

accountable except to charge him with a much more serious offense, then there would be no

doctrine of vindictive prosecution.


26

Ms. McCord’s letter is, on its face, polite and businesslike. But it need hardly be said

that this veneer of solicitude for Slatten does not and cannot immunize the essentially

extortionate character of the underlying proposal from judicial correction. Ms. McCord’s offer

“to once again exercise prosecutorial discretion” and “dismiss the charge of first-degree murder”

if Slatten would “waive the statute-of-limitations defense and proceed by information on the

[manslaughter] charges contained in the October 2013 superseding indictment,” Ltr. From Mary

McCord to Thomas Connolly at 1 (Attach. J), was at best a kinder, gentler way of saying: Waive

your rights, or we’ll charge you with murder. The government cannot possibly justify this, and it

should be profoundly ashamed to try.

C. Under D.C. Circuit Law, the Reasons for Increased Charges and Their Factual Bases Must be Made Part of the Record at the Time the Higher Indictment is Filed with the Court.

Although we have already addressed the (clearly inadequate) justifications for increasing

the charge against Slatten that the government offered in its May 9 e-mail and May 16 letter, it

bears emphasis that there is actually no need for this Court to do so. The D.C. Circuit’s law is

clear that the government’s justifications for increases in charge based on the same evidence

must be “on the record.” Jamison, 505 F.2d at 416 (“[T]he reasons for such increases, as well as

their factual bases, must be made a part of the record at the time the higher indictment is filed

with the court.”); see also United States v. Quintana, 695 F. Supp. 24, 25 (D.D.C. 1988) (“[I]n

the context of increases in the charged offense . . . the reasons for such increases, as well as their

factual bases, must be made a part of the record at the time the higher indictment is filed with the

court.”).

The D.C. Circuit is not an outlier in this regard; other circuits have adopted the same rule.

The Fifth Circuit, for example, has indicated that “the State’s post hoc justification for


27

reprosecution on the greater charges is no substitute for an on-the-record examination of the

prosecutor’s actual reasons.” Lowery v. Estelle, 696 F.2d 333, 339 n.16 (5th Cir. 1983). In

United States v. Ruesga-Martinez, the Ninth Circuit considered only “new facts alleged in the

felony indictment” in concluding that the prosecutor could not justify an increase in charges

where all relevant evidence was “known to the prosecution before it brought the original lesser

charge.” 534 F.2d 1367, 1370 (9th Cir. 1976) (emphasis added); see also Potts, 181 S.W.3d at

237 (“At a minimum, the State must show objective, on-the-record evidence that it was not

acting vindictively in substituting the higher charge.”).

This Court addressed this point in United States v. Quintana. The defendant there was

initially charged with possession with intent to distribute; when a hung jury resulted, the

government added a conspiracy charge exposing defendant to enhanced penalties. 695 F. Supp.

at 24. When defendant moved to dismiss the new indictment as vindictive, the government

explained that new evidence had only become available to it during the initial trial. Id. at 25.

The Court nonetheless dismissed the new indictment because Jamison requires the reasons for

increased charges to be “‘made a part of the record at the time the higher indictment is filed with

the court,’” and “the government makes no showing that it made this explanation a part of the

record at the time it filed the higher indictment with the court.” Id. (Jamison, 505 F.2d at 416).

As the Court noted, “‘[i]t is very well to say that those who deal with the Government should

turn square corners. But there is no reason why the square corners should constitute a one way

street.’” Id. (quoting Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 387-88 (1947)

(Jackson, J., dissenting)). Accordingly, the Court found that that “salutary principle applies here

where the government failed to make a timely record of its reasons for the enhanced second

indictment.” Id.


28

So far as Slatten’s counsel is aware, the government has not made any “on the record”

explanation at all of its reasons for indicting Slatten for first degree murder on the basis of the

same evidence on which it previously indicted him for voluntary manslaughter. Accordingly,

under D.C. Circuit law and the precedents of this Court, the current indictment against Slatten

must be dismissed.

II. THE GOVERNMENT’S ATTEMPT TO REINSTATE ITS MANSLAUGHTER PROSECUTION AGAINST SLATTEN IN THE WAY SUGGESTED BY THE MCCORD LETTER WOULD CONTRAVENE THE COURT OF APPEALS’ PREVIOUS RULINGS IN THIS CASE.

Although we decline to guess at what the government might say to negate a presumption

of vindictiveness here, there is one argument the government plainly should not make, and that is

the argument suggested by the shockingly heavy-handed proposal advanced by Mary McCord:

namely, that this does not have to be a murder case unless Slatten wants it that way. Ms.

McCord’s communications use the threat of a mandatory life sentence to coerce Slatten into

waiving the very rights he annoyed the government by asserting earlier this year in the Court of

Appeals. Even apart from the inherently coercive nature of Ms. McCord’s offer, any attempt to

convert the case against Slatten back into a manslaughter prosecution would run afoul of two

different rulings from the Court of Appeals over the last two months.

For two years, the government has repeatedly sought to twist and bend the Slough

mandate into something it never was, namely a reversal as to five defendants rather than four.

The government greatly discounted the possibility that the Court of Appeals would step in to

enforce the Slough mandate according to its terms, calling Slatten’s legal arguments on that score

“frivolous.” [United States v. Slough, ECF No. 297 at 1]. But the Court of Appeals knew what it

had meant, and it knew the government was, quite literally, taking liberties with its strained


29

misinterpretation. Both parties told the Court of Appeals in no uncertain terms that the practical

effect of issuing the writ would be to terminate the prosecution of Slatten. A writ of mandamus

issued.

Even then, the government refused to accept the appellate court’s decision, and instead

asked the Court of Appeals to recall its 2011 mandate rather than insist that it be enforced. Pet.

for Rehearing or, in the Alternative, to Recall the Mandate (Attach. H). In support of that plea,

the government told the Court of Appeals repeatedly that if the writ was not withdrawn or the

original mandate recalled, a “miscarriage of justice” would occur because Slatten would not be

held “accountable for his role in the shooting of 32 unarmed Iraqi civilians.” Id. at 7.

Nevertheless, the Court of Appeals refused to “cure one . . . alleged miscarriage of justice by

causing another—that is, by rewriting [its] mandate into something it was not in order to permit

the government to charge Slatten after the statute of limitations has run.” Order at 2 (Apr. 18,

2014) (Attach. K). Consequently, the manslaughter charges against Slatten were time-barred and

could not be validly prosecuted even if that meant no charges at all against Slatten. Id. This

Court recognized as much when it stated, “I’ve been ordered by the Court of Appeals to

dismiss.” 4/23/13 Hr’g Tr. at 4 (Attach. L).

Now, the government apparently wishes to combine its unconstitutionally vindictive first-

degree murder indictment of Slatten with Ms. McCord’s proposals in order to reinstate the very

same manslaughter prosecution that the Court of Appeals brought to a halt barely a month ago.

This represents the government’s third attempt in as many months to evade the clear and

emphatic command of the Court of Appeals to stop trying Slatten for manslaughter because the

statute of limitations has run. The government will no doubt characterize McCord’s proposal as

an offer to Slatten rather than a threat; a deal that he can take or leave as he pleases. But that is


30

not a deal for Slatten; it is a do-over for the government. Under the McCord proposal,

everything would return to the way things were before the Court of Appeals ruled, with one

exception: Slatten’s legal right not to be prosecuted outside the statute of limitations, the very

right vindicated twice by the Court of Appeals, would be gone. And what would Slatten receive

in return for this coerced “waiver” of his rights? Only the privilege of being tried on charges that

the Court of Appeals has already held the government may not validly prosecute against him.

Thus, the McCord proposal is just a ruse, and a fairly transparent one at that. The

government probably hopes Ms. McCord’s proposal will soften the otherwise outrageous

vindictiveness of the first degree murder indictment by suggesting that it is not really a first

degree murder indictment at all; it is really just a roundabout way of setting up the same old

manslaughter trial the government has wanted all along. But if that is what the government is

doing, then the McCord proposal represents an essentially lawless end run around the very clear

mandate of the Court of Appeals. And the attempt to force that result on Slatten by threatening

to try him on charges that carry a mandatory life sentence is an exercise in hostage-taking that is

unworthy of the United States and its representatives. Neither this Court nor any other should

countenance it.

“[T]he ‘mandate rule,’ an application of the ‘law of the case’ doctrine, states that a

district court is bound by the mandate of the federal appellate court and generally may not

reconsider issues decided on a previous appeal.” United States v. Ins. Co. of N. Am., 131 F.3d

1037, 1041 (D.C. Cir. 1997). Under this rule, “[a] trial court is without power to do anything

which is contrary to either the letter or spirit of the mandate.” Yablonski v. United Mine Workers

of Am., 454 F.2d 1036, 1038 (D.C. Cir. 1971) (internal quotation marks omitted). This Court


31

should enforce the Court of Appeals’ April 7, 2014, Order and April 18, 2014, Order, and once

again dismiss this case.

CONCLUSION

“Today, the grand jury is the total captive of the prosecutor who, if he is candid, will

concede that he can indict anybody, at any time, for almost anything, before any grand jury.”

United States v. Stacey, 571 F.2d 440, 444 (8th Cir. 1978) (internal citations omitted). When the

D.C. Circuit upset the government’s apple cart by upholding the statute of limitations as to

Slatten, the government circumvented the D.C. Circuit’s ruling by taking advantage of the grand

jury system and indicting Slatten on a charge it cannot constitutionally bring, solely to avoid a

massive last-minute overhaul of its case. Allowing the government to manipulate the system in

this way is fundamentally contrary to the interests of justice, and this Court should put a stop to it

now.

Date: May 19, 2014 Respectfully submitted, /s Steven Fredley .

/s/ Steven Fredley . Thomas G. Connolly (No. 420416) Steven A. Fredley (No. 484794) Jared P. Marx (No. 1008934) Anne K. Langer (No. 501389) HARRIS WILTSHIRE & GRANNIS LLP 1200 Eighteenth St., N.W. Washington, D.C. 20036 Telephone: (202) 730-1300 Facsimile: (202) 730-1301 Counsel for Nicholas Slatten


CERTIFICATE OF SERVICE

I hereby certify that on this 19th day of May 2014, I caused the foregoing to be filed with

the Clerk of the Court using the CM/ECF system, which will send notification of such filing to

all parties of record.

/s/ Steven Fredley . Steven Fredley













ATTACHMENT D


Case 1:10-mc-00005-RMU Document 59 Filed 03/03/10 Page 1 of 256Case 1:14-cr-00107-RCL Document 32-1 Filed 05/21/14 Page 2 of 9


Case 1:10-mc-00005-RMU Document 59 Filed 03/03/10 Page 135 of 256file:///DI/Kastigar%20Hearing%20Transcripts/ll 0209/09-11-02%20-%20Parto/o200 l.txt

70

1 Your Honor. It assumes that the testimony was based upon those

2 matters. There are other issues and there are other points --

3 THE COURT: Well, I think the question is, did you

4 ever inform your superiors or others at the Department of

5 Justice that the testimony that's been referenced was based in

6 whole or in part on speculation, guesswork or uncertainty, were

7 those terms ever used in conveying your impressions to your

8 trial team members, or more specifically, the Department of

9 Justice executives?

10 THE WITNESS: . The discussions I had with Ms. Dubinsky

11 and Mr. Hulser were completely transparent. They had the .

12 transcripts, they knew exactly what was in those passages that

13 you have read to me, as well as other passages that you have

14 not read to me that bear on this point. I know we discussed

15 this issue in terms of the evidence against Mr. Slatten, and

16 that at least at the time the belief was it depended on these

17 two witnesses, Mr. Frost and Mr. Murphy.

file:///DI/Kastigar"lo20Hearing%20Transcriptslll 0209/09-li-02%20-%20Part%200 l.txt ( 139 of 354) [2/19/20 10 2:09:57 PM]


Case 1:10-mc-00005-RMU Document 59 Filed 03/03/10 Page 136 of 256file:///DI/Kastigar%20Hearing%20Transcripts/11 0209/09-11-02%20-%20Part%200 !.txt

18 BYMR.CONNOLLY:

19 Q. So my question, forget for a moment Mr. Hulser and Ms .

. 20 Dubinsky. I'm talking about your supervisors that ultimately

21 approved the indictment in this case. Were they ever informed

22 that as to Mr. Frost, Mr. Frost testified in front of the first

23 grand jury that as to the first two sounds that he heard, he

24 testified in the first grand jury that it was based on

25 speculation and guesswork, were you supervisors ever informed

Linda L. Russo, RPR Official Court Reporter

file://IDI/Kastigar"/o20Hearing%20Transcriptslll 0209/09-11-02%20-%20Part%200 Uxt (140 of 354) [2/19/2010 2:09:57 PM]


fredley317

Highlight

Case 1:10-mc-00005-RMU Document 59 Filed 03/03/10 Page 137 of 256file:///DI/Kastigar%20Hearing%20Transcriptslll 0209/09-11 ~02%20-%20Part%200 I .txt

71

1 ofthat?

2 MR. DITTOE: Objection with respect to the form of

3 the question, Your Honor, because that misstates the full

4 record and the other evidence, and the fact that the --

5 MR. CONNOLt Y: What other evidence? There's a

6 proffer of other evidence --

7 THE COURT: Let's him finish and then I'll rule.

8 MR. DITTOE: And additi<?nally, Your Honor~ with

9 respect to this case, Mr. Kohl was also the lead prosecutor.

10 THE COURT: The objection is overruled.

11 BY MR. CONNOLLY:

12 Q. Did you ever tell any supervisor that as to his testimony

13 against Mr. Slatten in the grand jury, Mr. Frost had expressed

14 some uncertainty, or suggested his testimony as to the first

15 two pops was based on either guess work or speculation?

16 A. I don't recall whether we specifically discussed that up

17 the management chain.

file:///DI/Kastigar%20Hearing%20Transcripts/110209/09-11-02%20-%20Part%200 l.txt ( 141 of 354) [2/19/20 I 0 2:09:57 PM] .


fredley317

Highlight

fredley317

Highlight

Case 1:10-mc-00005-RMU Document 59 Filed 03/03/10 Page 138 of 256file:/ I IDI/Kastigar%20Hearing%20Transcripts/ I I 0209/09-II-02%20-%20Part%200 I. txt

18 Q. Did you generally discuss it?

19 A. I know we discussed the strength of the evidence against

20 Mr. Slatten, and that relative to the other defendants the

21 evidence against Mr. Slatten was weak.

22 Q. Did you ever discuss specifically with any supervisors

23 that Mr. Murphy's testimony, at least according to his own

24 account in the grand jury, as to the two pops, that he said he

25 told the grand jury that he could not be certain, and did not


file:///DI/Kastigar%20Hearing%20Transcripts/11 0209/09-li-02%20-%20Part%200 !.txt ( 142 of 354) [2/19/20 I 0 2:09:57 PM]


fredley317

Highlight

Case 1:10-mc-00005-RMU Document 59 Filed 03/03/10 Page 139 of 256file:///DI/Kastigar%20Hearing%20Transcripts/J I 0209/09-ll-02%20-%20Part%200 !.txt

72

1

2 A. I don't have a specific recollection of talking about it

3 at that level of detail.

4 Q. I ask you to tum to Malis Exhibit Number 35, please.

5 Just to speed this along, Malis Exhibit 35 is entitled Summary

6 of Evidence Against Each Proposed Defendant. I understand this

7 was a summary that was prepared for the second grand jury,

8 correct?

9 A. That's correct.

10 Q. I'd like to turn your attention to page 6, ifyou would.

11 A. Okay.

12 Q. Did you have a hand at all in preparing this e~hibit, sir?

13 A. I did in this respect. This largely is a product of the

14 prosecution memo that was mostly written by Mr. Kohl. In the

15 discussions that I was having with Ms. Dubinsky and Mr. Hulser,

16 there were redactions that we were making, and so I went over

17 this to try to ensure that material that we had redacted from

file:///DI/Kastigar%20Hearing%20Transcripts/J 10209/09-IJ-02%20-%20Part%200J.txt (143 of 354) [211 9/2010 2:09:57 PM]


Case 1:10-mc-00005-RMU Document 59 Filed 03/03/10 Page 140 of 256file://!DI/Kastigar%20Hearing%20Transcripts/11 0209/09-ll-02%20-%20Part%200 l .txt

18 the transcripts was not included in the summary.

19 Q .. But this summary you had seen before~ it was submitted to

20 the second grand jury~ correct?

21 A. Yes.

22 Q. Okay. I'm going to have you take a look at the bottom of

23 page 6~ beginning with the paragraph~ several members of Raven

24

25

Linda L. Russo~ RPR Official Court Reporter

file:///DI/Kastigar"lo20Hearing%20Transcripts/11 0209/09-11-02%20-%20Part%200 1 .txt ( 144 of 354) [2/19/20 10 2:09:57 PM)





























































IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) UNITED STATES OF AMERICA ) )

v. ) Crim. No. 1:14-CR-107 (RCL) ) Judge Royce C. Lamberth

NICHOLAS A. SLATTEN, ) ) Defendant. ) )

O R D E R

This matter came before the Court on the Defendant’s Motion to Dismiss the Indictment

for Vindictive Prosecution and to Enforce the Writ of Mandamus. For good cause shown,

Defendants’ motion is GRANTED; and

IT IS ORDERED that the indictment is DISMISSED.

SO ORDERED, this _____ day of __________, 2014.

_____________________________ Royce C. Lamberth United States District Judge


ATTACHMENT D




Case 1:10-mc-00005-RMU Document 59 Filed 03/03/10 Page 135 of 256file:///DI/Kastigar%20Hearing%20Transcripts/ll 0209/09-11-02%20-%20Parto/o200 l.txt

70

1 Your Honor. It assumes that the testimony was based upon those

2 matters. There are other issues and there are other points --

3 THE COURT: Well, I think the question is, did you

4 ever inform your superiors or others at the Department of

5 Justice that the testimony that's been referenced was based in

6 whole or in part on speculation, guesswork or uncertainty, were

7 those terms ever used in conveying your impressions to your

8 trial team members, or more specifically, the Department of

9 Justice executives?

10 THE WITNESS: . The discussions I had with Ms. Dubinsky

11 and Mr. Hulser were completely transparent. They had the .

12 transcripts, they knew exactly what was in those passages that

13 you have read to me, as well as other passages that you have

14 not read to me that bear on this point. I know we discussed

15 this issue in terms of the evidence against Mr. Slatten, and

16 that at least at the time the belief was it depended on these

17 two witnesses, Mr. Frost and Mr. Murphy.

file:///DI/Kastigar"lo20Hearing%20Transcriptslll 0209/09-li-02%20-%20Part%200 l.txt ( 139 of 354) [2/19/20 10 2:09:57 PM]


Case 1:10-mc-00005-RMU Document 59 Filed 03/03/10 Page 136 of 256file:///DI/Kastigar%20Hearing%20Transcripts/11 0209/09-11-02%20-%20Part%200 !.txt

18 BYMR.CONNOLLY:

19 Q. So my question, forget for a moment Mr. Hulser and Ms .

. 20 Dubinsky. I'm talking about your supervisors that ultimately

21 approved the indictment in this case. Were they ever informed

22 that as to Mr. Frost, Mr. Frost testified in front of the first

23 grand jury that as to the first two sounds that he heard, he

24 testified in the first grand jury that it was based on

25 speculation and guesswork, were you supervisors ever informed


file://IDI/Kastigar"/o20Hearing%20Transcriptslll 0209/09-11-02%20-%20Part%200 Uxt (140 of 354) [2/19/2010 2:09:57 PM]


fredley317

Highlight

Case 1:10-mc-00005-RMU Document 59 Filed 03/03/10 Page 137 of 256file:///DI/Kastigar%20Hearing%20Transcriptslll 0209/09-11 ~02%20-%20Part%200 I .txt

71

1 ofthat?

2 MR. DITTOE: Objection with respect to the form of

3 the question, Your Honor, because that misstates the full

4 record and the other evidence, and the fact that the --

5 MR. CONNOLt Y: What other evidence? There's a

6 proffer of other evidence --

7 THE COURT: Let's him finish and then I'll rule.

8 MR. DITTOE: And additi<?nally, Your Honor~ with

9 respect to this case, Mr. Kohl was also the lead prosecutor.

10 THE COURT: The objection is overruled.

11 BY MR. CONNOLLY:

12 Q. Did you ever tell any supervisor that as to his testimony

13 against Mr. Slatten in the grand jury, Mr. Frost had expressed

14 some uncertainty, or suggested his testimony as to the first

15 two pops was based on either guess work or speculation?

16 A. I don't recall whether we specifically discussed that up

17 the management chain.

file:///DI/Kastigar%20Hearing%20Transcripts/110209/09-11-02%20-%20Part%200 l.txt ( 141 of 354) [2/19/20 I 0 2:09:57 PM] .


fredley317

Highlight

fredley317

Highlight

Case 1:10-mc-00005-RMU Document 59 Filed 03/03/10 Page 138 of 256file:/ I IDI/Kastigar%20Hearing%20Transcripts/ I I 0209/09-II-02%20-%20Part%200 I. txt

18 Q. Did you generally discuss it?

19 A. I know we discussed the strength of the evidence against

20 Mr. Slatten, and that relative to the other defendants the

21 evidence against Mr. Slatten was weak.

22 Q. Did you ever discuss specifically with any supervisors

23 that Mr. Murphy's testimony, at least according to his own

24 account in the grand jury, as to the two pops, that he said he

25 told the grand jury that he could not be certain, and did not


file:///DI/Kastigar%20Hearing%20Transcripts/11 0209/09-li-02%20-%20Part%200 !.txt ( 142 of 354) [2/19/20 I 0 2:09:57 PM]


fredley317

Highlight

Case 1:10-mc-00005-RMU Document 59 Filed 03/03/10 Page 139 of 256file:///DI/Kastigar%20Hearing%20Transcripts/J I 0209/09-ll-02%20-%20Part%200 !.txt

72

1

2 A. I don't have a specific recollection of talking about it

3 at that level of detail.

4 Q. I ask you to tum to Malis Exhibit Number 35, please.

5 Just to speed this along, Malis Exhibit 35 is entitled Summary

6 of Evidence Against Each Proposed Defendant. I understand this

7 was a summary that was prepared for the second grand jury,

8 correct?

9 A. That's correct.

10 Q. I'd like to turn your attention to page 6, ifyou would.

11 A. Okay.

12 Q. Did you have a hand at all in preparing this e~hibit, sir?

13 A. I did in this respect. This largely is a product of the

14 prosecution memo that was mostly written by Mr. Kohl. In the

15 discussions that I was having with Ms. Dubinsky and Mr. Hulser,

16 there were redactions that we were making, and so I went over

17 this to try to ensure that material that we had redacted from

file:///DI/Kastigar%20Hearing%20Transcripts/J 10209/09-IJ-02%20-%20Part%200J.txt (143 of 354) [211 9/2010 2:09:57 PM]


Case 1:10-mc-00005-RMU Document 59 Filed 03/03/10 Page 140 of 256file://!DI/Kastigar%20Hearing%20Transcripts/11 0209/09-ll-02%20-%20Part%200 l .txt

18 the transcripts was not included in the summary.

19 Q .. But this summary you had seen before~ it was submitted to

20 the second grand jury~ correct?

21 A. Yes.

22 Q. Okay. I'm going to have you take a look at the bottom of

23 page 6~ beginning with the paragraph~ several members of Raven

24

25

Linda L. Russo~ RPR Official Court Reporter

file:///DI/Kastigar"lo20Hearing%20Transcripts/11 0209/09-11-02%20-%20Part%200 1 .txt ( 144 of 354) [2/19/20 10 2:09:57 PM)


Documents

IN THE UNITED STATES DISTRICT COURT FOR THE …€¦ · memorandum of points & authorities in support . of motion to dismiss the indictment for vindictive . prosecution and to enforce