D.C. Circuit, White-Collar Crime

A Vindictive Prosecution Motion in the Continuing Saga of Nicholas Slatten

Is the DOJ just out for revenge?

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Last month, I wrote about the Department of Justice’s case against Nicholas Slatten, a Blackwater employee who was being prosecuted — along with other members of Blackwater’s Raven 23 team — for a shooting incident in Iraq.

As one FBI Agent is reported to have described it, the shooting was “[t]he My Lai massacre of Iraq.”

That’s a really good sound bite. Nice work FBI!

DOJ brought charges based on the shooting against Slatten, which were dismissed by the court because, basically, DOJ failed to notice that the statute of limitations was running against Slatten after a dismissal of his case.

As the New York Times recently described it,

the government suffered another self-inflicted setback in April when a federal appeals court ruled that the prosecution had missed a deadline and allowed the statute of limitations to expire against a second contractor, Nicholas A. Slatten, a former Army sniper from Tennessee who investigators believe fired the first shots in Nisour Square. A judge then dismissed the case against Mr. Slatten.

(for more on this, see last month’s column on the case)

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And, of course, the legal fire fight continues . . .

DOJ, in response to having its manslaughter charges against Slatten dismissed, turned around and indicted him for first-degree murder.

On the plus side, for DOJ, first-degree murder has a much longer statute of limitations.

On the minus side, for DOJ, first-degree murder harder to prove, and the timing of when they brought the new first-degree murder charge looks a little bit, um, dodgy.

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It’s a little odd for the government to bring new charges, which are harder to prove than the original charges, only after the original charges have been dismissed.

And it’s especially odd for that to happen after the government was on the receiving end of a relatively strongly worded slap-down (ed. note: BenchslapTM) from the D.C. Circuit.

I’m not an employment lawyer, but, like virtually anyone who had a federal clerkship (federal courts’ dockets are, of course, chocked full of Title VII cases), it seems that this kind of timing makes a decent case for retaliation.

As it happens, Slatten’s lawyer has noticed the same thing. Tom Connolly and his colleagues at Harris, Wilshire, & Grannis last week filed a motion to dismiss the new charges on a vindictive prosecution theory.

As the motion argues,

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.

(emphasis in original)

Strong stuff. I normally wouldn’t italicize a phrase of that length in a brief, but one can see why they’re worked up. I admire the use of “transmogrified.”

The government filed an opposition to Slatten’s motion to dismiss this week. Leaving aside the dueling presentations of the D.C. Circuit’s caselaw, which vindictive prosecution junkies should really read in these pleadings, and the government’s argument that it was necessary to bring these new charges to hold Slatten accountable (the D.C. Circuit rejected a variation of this argument already), the government’s best response on the timing argument above boils down to this (it’s footnote 9):

Slatten’s characterization of the prior prosecution team’s assessment of the case is of no moment. First, that team’s assessment of the case was based on a different body of evidence than that assessed by the current prosecution team. Second, a new prosecution team was assigned for the specific purpose of taking a fresh look at the evidence. That they came to different conclusions than their predecessors, based on different evidence is not probative of vindictiveness.

(internal citations omitted).

Recall that a second prosecution team came in after immunized testimony was used by the first team.

The government’s basic argument here, I think, is that the second “clean” team came in, reviewed all the evidence, sought and obtained a new indictment, had that dismissed against Slatten, fought, and lost a fight about whether that indictment was time-barred and, coincidentally, at the same time, was undergoing a “fresh look at the evidence” which caused them to come “to a different conclusion than their predecessors.”

Put another way, the government position is something like this: It wasn’t that the manslaughter charges were dismissed that caused the new first-degree murder charges to be filed. Rather, the new government team just happened to have concluded its review of the evidence against Slatten right after those charges had been dismissed. They’d been meaning to get around to a fresh review of the evidence against Slatten (since the first indictment they obtained), they just didn’t do it what with all that D.C. Circuit litigation. But as soon as that was wrapped up they turned back to looking at the evidence. Solely as a time management matter, you understand.

My sense is that Slatten will not withdraw the motion based on this explanation.

And the battle rages on.

Trying to Salvage Remains of Blackwater Case [New York Times]

Earlier: A Battle in Iraq Leads to a Battle in the Federal Courts in D.C.

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