[00:00:02] Speaker 03:
Case number 15 of 3078 at L, United States of America versus Nicholas Abram Slatton Appellant.

[00:00:12] Speaker 04:
All right.

[00:00:14] Speaker 04:
You are Mr. Heverly.

[00:00:16] Speaker 01:
I am your good morning.

[00:00:30] Speaker 01:
May it please the Court.

[00:00:32] Speaker 01:
I am Brian Heberlig on behalf of Paul Slough, Evan Liberty, and Dustin Heard.

[00:00:37] Speaker 01:
And I'll be arguing the Meeja New Trial and Venue issues this morning.

[00:00:41] Speaker 01:
I'd like to start with Meeja.

[00:00:44] Speaker 01:
The question is whether the defendants committed the charge conduct while employed by the armed forces for purposes of the Military Extraterritorial Jurisdiction Act.

[00:00:55] Speaker 05:
While employed or

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accompanying the armed forces outside the United States.

[00:01:02] Speaker 05:
That's a statutory phrase, isn't it?

[00:01:04] Speaker 01:
That is correct, and accompanying the armed forces is not applicable here.

[00:01:07] Speaker 01:
That applies to dependents of military families.

[00:01:12] Speaker 05:
And we know that because

[00:01:15] Speaker 01:
I think that's how the statute's been interpreted, and the definition has a different prong for accompanying the armed forces.

[00:01:23] Speaker 01:
It's clause two of the statutory definition that focuses on a dependent.

[00:01:27] Speaker 05:
Well, there's an or.

[00:01:30] Speaker 01:
Correct.

[00:01:30] Speaker 05:
I'm just looking at the plain text of the statute.

[00:01:33] Speaker 01:
Yes.

[00:01:35] Speaker 01:
So either or could be covered by media.

[00:01:37] Speaker 05:
It says, while employed by or accompanied outside the United States semicolon or,

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And then it goes to Clause 2.

[00:01:49] Speaker 01:
Correct.

[00:01:51] Speaker 05:
So at least the way Congress wrote it, they're not joined, as you're suggesting.

[00:01:55] Speaker 05:
But you're saying the cases have interpreted them to be joined.

[00:01:59] Speaker 01:
I don't – maybe I misunderstood the court's question.

[00:02:02] Speaker 01:
There are two ways that someone can be covered by MEJA, either as employed by the armed forces or accompanying the armed forces.

[00:02:11] Speaker 01:
Either way, it's while employed or accompanying, and that's the relevant term I'm focusing on.

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Here, the contract was with the State Department to provide diplomatic security.

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Diplomatic security by law is a State Department function.

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In Neasir Square on the day in question, the defendants were performing this core diplomatic security function.

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And if there was any doubt, the Deputy Secretary of Defense Gordon England testified unequivocally that the defendants' work did not relate to supporting the mission of the Department of Defense.

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That should end this matter.

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The defendants were entitled to a judgment of acquittal.

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Now, the government has as its primary argument the rebuilding Iraq theory.

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They say that the Defense Department mission was to rebuild Iraq.

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The State Department was also rebuilding Iraq and supported the DOD mission.

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And the defendants protected State Department personnel.

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So the argument goes the defendants were engaged in work related to supporting the DOD mission.

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That interpretation wrongly equates the goal of the United States with the Defense Department mission in Iraq.

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Can you give me an example of a civilian employee of a federal agency that would fit employed by?

[00:03:24] Speaker 01:
A civilian employee of a federal agency?

[00:03:28] Speaker 04:
Yeah, that would fit this language.

[00:03:30] Speaker 01:
I think it would have to be someone detailed to the Defense Department.

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Agencies frequently detail their employees to other agencies for specific work.

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And in that scenario, if the person is under the control and supervision of the Department of Defense, they would be employed by the Armed Forces.

[00:03:45] Speaker 01:
Just like for purposes of contract employment, the contractor has to have been directed by the Defense Department, which was a situation that led to Mija's enactment, frankly, in the Abu Ghraib case, where Interior Department contractors were embedded with a military unit and were effectively controlled by the military as their contracts demonstrated.

[00:04:09] Speaker 04:
And you don't think protecting

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diplomats and other members of the State Department relates to the mission of the Department of Defense?

[00:04:20] Speaker 01:
No, I don't.

[00:04:22] Speaker 01:
It's by statute the mission of the State Department.

[00:04:26] Speaker 04:
It is not – Well, of course the language is in supporting.

[00:04:29] Speaker 04:
You don't think that supports the mission?

[00:04:31] Speaker 01:
I don't, Your Honor.

[00:04:32] Speaker 01:
Unless you take the over-broad view that the government takes, that relates to means just bears any relationship whatsoever to, which is an interpretation the Supreme Court is frowned upon, even in the civil context, in the ERISA context.

[00:04:46] Speaker 01:
Here, when you look at the context of the statute, when the relevant term that's being defined is employed by the armed forces, and the title of the statute is the Military Extraterritorial Jurisdiction Act,

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Our interpretation is that the law requires the work, the contract employment, to have been of a military nature and directed by the armed forces.

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So your argument, excuse me.

[00:05:09] Speaker 05:
Go ahead.

[00:05:13] Speaker 03:
Sorry.

[00:05:14] Speaker 03:
Go ahead.

[00:05:14] Speaker 03:
No, just to follow up on that, it seems that one of the arguments that could be made here is that that language, to the extent,

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We find in the record that sometimes, for instance, these teams are sent to aid a military unit that is having some problem.

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If that were the case, and this had happened when something like that was going on, would you be arguing that nevertheless this would not cover them just because their contract is with the Department of Defense?

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I think that's the most natural reading of the statute, but

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What we've argued in the alternative is even if you look at the conduct on the ground, on this day, that's not what happened.

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If on a different day they were directly supporting the military mission, that's possible.

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They would have been covered by the statute.

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But what the government argued, they effectively wrote out of the statute to the extent language.

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Their argument, one of their alternative argument for satisfying media, is that other Blackwater contractors on days other than September 16, 2007, engaged in some miscellaneous actions that supported the military.

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And from their point of view, it was an all or nothing proposition.

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If any contractor on any day supported the military, then all contractors on all days did so.

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And that's not a legitimate reading of to the extent in the statute.

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That language has meaning.

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That language is not the same as if, and we've cited cases from the Supreme Court and the First Circuit to this Court that make that clear.

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To the extent means to some extent, but not for all purposes.

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Well, doesn't the record reflect that the military was doing this protection before the leisure?

[00:07:05] Speaker 01:
It does.

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And that was the second alternative argument the government relied on, which I characterize as the going back to work theory.

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What the evidence showed is that before Blackwater was contracted, military units provided escort security for diplomats in the Green Zone – in the Red Zone, excuse me.

[00:07:23] Speaker 01:
When Blackwater was hired,

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Those military officers were able to go back to their military tasks, and the government says that is enough.

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The problem with that approach is it again extends, relates to beyond a focus on the military, beyond a focus on employed by the armed forces, and it extends

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beyond the logical interpretation of the statute.

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We gave an example in our brief.

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If you use the same logic, if the embassy mess hall had employed military officers to serve food before it got staffed up and they were able to bring out contractors, when the contractors came in and allowed those petty officers to go back to their military tasks, the food services workers would be employed by the armed forces.

[00:08:03] Speaker 05:
Well, the government expressly steps back from that extreme interpretation.

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So you have to deal with the government's argument.

[00:08:10] Speaker 05:
Well, what the government says is we don't know how that would turn out, but what the Supreme Court has said... No, the government says, look at the facts on the ground in this case.

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That's what we're dealing with.

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I understand that, but what I was about to suggest is the Supreme Court has said, you can't trust prosecutorial discretion.

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You have to look at the logical interpretation the government advances.

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That's from the Bond case.

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where the government argued a chemical weapon could be, the logical extension of their argument could be any household cleaner under the sink.

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The court said the inescapable conclusion of the government's position is that would be covered.

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And so too here.

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And it shows why the government's interpretation is wrong.

[00:08:48] Speaker 04:
Well, you're saying that where we have been to relate to have a broad scope.

[00:08:54] Speaker 01:
I'm sorry, I didn't hear you.

[00:08:55] Speaker 04:
We have held in Friedman versus Sebelius, well, I'm sure in other cases, that relate to is to be given a broad scope.

[00:09:04] Speaker 01:
You have, outside of the criminal context.

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And I think there are two limiting principles that apply here.

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This is a criminal statute.

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It is subject to strict construction.

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The goal of interpreting criminal statutes is not to find out if there's any conceivable meaning that would apply, but to strictly interpret.

[00:09:17] Speaker 04:
Do you have authority that the meaning of relates to changes in the criminal context?

[00:09:24] Speaker 01:
But not beyond the ordinary concept of strict construction in criminal cases, which is in this case even more applicable, because what we're talking about is a statute that expands the extraterritorial jurisdiction of the United States.

[00:09:37] Speaker 01:
And the Supreme Court has said, even where Congress does so, the presumption against extraterritoriality still informs the court's interpretation of the statute and compels a strict construction.

[00:09:50] Speaker 01:
On the relates to question, you're correct.

[00:09:52] Speaker 01:
The court does have an opinion that calls for a broad meaning, but the Supreme Court even in the civil context has noted that the term relate to

[00:10:00] Speaker 01:
has an indefinite meaning.

[00:10:02] Speaker 01:
The ERISA context, the Travelers case that we cited, the court said universally relations stop nowhere.

[00:10:08] Speaker 01:
So you have to be guided by other interpretive norms, the context of the statute.

[00:10:14] Speaker 01:
We've cited three Supreme Court cases for this proposition, Bond, McDonald, and Yates, where the

[00:10:21] Speaker 01:
Statutory definitions, if you applied a dictionary definition-driven approach only, could have allowed for a broad interpretation.

[00:10:29] Speaker 01:
But the Supreme Court narrowed to avoid absurd results.

[00:10:32] Speaker 05:
So going back to my original question about the text of the statute, now turning to the definitions, which is what you've been discussing with counsel, with the court, there

[00:10:49] Speaker 05:
again, is an or.

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And then it talks about any other federal agency to the extent such employment, and I know the parties disagree about what the such is referring to, but such employment relates to supporting the mission

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overseas.

[00:11:14] Speaker 05:
So your position is Deputy Secretary England's testimony ends the case, essentially?

[00:11:23] Speaker 01:
In part.

[00:11:25] Speaker 01:
Our position is the government did not offer sufficient evidence to establish that the defendants were engaged in employment related to supporting the mission of the DOD.

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England was the only witness who testified who had any qualification to opine about the Department of Defense's mission.

[00:11:39] Speaker 05:
The government... So his

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testimony was focusing on what is the role of the United States in Iraq at this point in time.

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It had moved beyond the military, and that the Department of Defense was trying to help rebuild the country, and it couldn't do it alone.

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But it was a joint effort with various agencies being involved.

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And to rebuild, part of that was diplomatic.

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Part of that was providing security for the diplomats who are there trying to help the Department of Defense rebuild.

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And your position is that is just not

[00:12:32] Speaker 05:
consistent with the text that Congress enacted?

[00:12:36] Speaker 01:
I actually don't think that's a fair characterization of England's testimony.

[00:12:39] Speaker 01:
That's what the government attempted to establish on cross-examination.

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But he made clear that the policy objectives of the United States were to rebuild Iraq, but each agency had its own distinct skill sets and its own mission.

[00:12:53] Speaker 05:
So if we wanted to rebuild the waterworks in Iraq,

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and the Department of Interior and the Environmental Protection Agency were over there.

[00:13:05] Speaker 05:
That would just be irrelevant to the mission?

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of which the Department of Defense has some responsibilities and other departments have other responsibilities?

[00:13:16] Speaker 01:
Well, I think what the court points out is a significant flaw in the government's argument.

[00:13:20] Speaker 01:
Under your hypothetical, those EPA employees or interior employees would be employed by the armed forces when they're engaged in the work that you're talking about.

[00:13:28] Speaker 05:
I think coming back to this phrase or to the extent, well, back in the substantive provision as opposed to the definitional

[00:13:39] Speaker 05:
You say that's spouses.

[00:13:46] Speaker 01:
Pardon me?

[00:13:47] Speaker 05:
Your response to me was that relates to military families.

[00:13:51] Speaker 01:
Yes.

[00:13:51] Speaker 01:
It's clause two of the definition.

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It's a dependent of a member of the armed forces or a contractor.

[00:13:58] Speaker 01:
It's focused entirely on dependents.

[00:14:00] Speaker 05:
Or a contractor.

[00:14:01] Speaker 01:
But a dependent of the contractor, not the contractor himself.

[00:14:06] Speaker 05:
So these definitions in 3267 must all be read as somebody who has a contract with the Army, Navy, or Marine Corps.

[00:14:28] Speaker 01:
Well, just to be clear, the dependent clause only accompanying the Armed Forces only applies to DOD contractor dependents or dependents of members of the Armed Forces, not the other agency contractors.

[00:14:40] Speaker 05:
But what I'm trying to understand is then why did Congress adopt the definitions it did?

[00:14:47] Speaker 05:
Under your term, all of these definitions that you've been discussing with the court would be unnecessary.

[00:14:53] Speaker 05:
It adopted the definition as a direct result of the Abu Ghraib incident, where as a technical matter, the interrogators employed – contracted with the interior – So when Congress responds to Incident A, necessarily we must read the language as applying only to those circumstances?

[00:15:12] Speaker 01:
Not necessarily, but it's informative.

[00:15:14] Speaker 01:
And it's certainly not our lead argument.

[00:15:16] Speaker 01:
We think you can get there from the text and context of the statute alone.

[00:15:19] Speaker 01:
But if you choose to go to legislative history.

[00:15:22] Speaker 05:
No, I'm not in legislative history.

[00:15:23] Speaker 05:
I'm responding to your response to my question about the statutory text.

[00:15:29] Speaker 05:
And you say that was in response to Abu Ghraib.

[00:15:32] Speaker 05:
And therefore, I read that to mean we have to limit it to Department of Interior contracting employees

[00:15:42] Speaker 01:
No.

[00:15:43] Speaker 01:
Absolutely not.

[00:15:43] Speaker 01:
That's not our position.

[00:15:44] Speaker 01:
It is informative on how you interpret employed by the armed forces.

[00:15:48] Speaker 01:
And in that context, the Interior Department contractors, no one disputes.

[00:15:52] Speaker 01:
It's in reported case law, including from this court.

[00:15:55] Speaker 01:
Those contractors were directly controlled by the military.

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They were embedded with the military.

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Their contract provided for plenary control over those contractors.

[00:16:03] Speaker 01:
A very different situation than we have here.

[00:16:06] Speaker 05:
And what about the contracts here that talk basically about and such other duties as may be defined?

[00:16:12] Speaker 01:
That's the best the government can come up with.

[00:16:14] Speaker 01:
There's nothing in the statute.

[00:16:15] Speaker 05:
Well, what's wrong with it?

[00:16:16] Speaker 05:
I mean, that's what I'm trying to understand.

[00:16:18] Speaker 05:
You say, look at the contracts here.

[00:16:21] Speaker 05:
Well, that's the contract language, isn't it?

[00:16:23] Speaker 01:
There's no express support, nothing at all about the Department of Defense and the contract.

[00:16:27] Speaker 01:
The only thing the government can say is a boilerplate clause that services include but are not limited to what's specified in the contract and that the Blackwater guards have to do work that the ambassador directs them to do.

[00:16:40] Speaker 01:
In our view, that doesn't mean they're employed by the armed forces any more than they're employed by the Justice Department if they were ordered to give rides to Justice Department lawyers to the airport or any other agency.

[00:16:51] Speaker 01:
That is not enough to establish that their contract employment was for military work.

[00:16:58] Speaker 01:
I see that I'm running near the end of my time.

[00:17:01] Speaker 01:
I don't want to not mention the jury instruction issue on media, and I have two other issues to address, so I can move quickly through those.

[00:17:10] Speaker 01:
Just quickly on media, the jury instruction issue.

[00:17:13] Speaker 01:
It's not just a sufficiency argument we're making.

[00:17:16] Speaker 01:
There were fundamental jury instruction errors in this case that at a minimum entitled the defendants to a new trial.

[00:17:23] Speaker 01:
The parties proposed starkly different instructions unemployed by the armed forces.

[00:17:27] Speaker 01:
The court adopted the governments.

[00:17:29] Speaker 01:
And it did not quote the statute.

[00:17:31] Speaker 01:
It had a paraphrase that moved around key statutory terms in a way that rewrote the meaning of the statute and eliminated the limiting principle of the to-the-extent language.

[00:17:42] Speaker 01:
And the best way to... Well, let me ask you.

[00:17:45] Speaker 05:
I mean, the instructions specifically refers

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and quotes to the extent language, does it not?

[00:17:54] Speaker 01:
It does out of place.

[00:17:55] Speaker 01:
And I think the best way to see just exactly how they rewrote the statute.

[00:17:58] Speaker 05:
Well, I understand your argument, but the judge is quoting the statute.

[00:18:04] Speaker 05:
And then the language you focus on is where the judge is talking about the definition of employment.

[00:18:10] Speaker 01:
Judge never quoted the statute anywhere in the instruction.

[00:18:12] Speaker 05:
Well, he may not have said I'm quoting it, but he used the precise language from the statute.

[00:18:18] Speaker 01:
In a fundamentally different way.

[00:18:20] Speaker 01:
But to the extent language in the statute, if you look at it, it's in Appendix 23.

[00:18:24] Speaker 05:
Right.

[00:18:26] Speaker 01:
The to-the-extent language only qualifies the first prong of the statutory definition of what employed by the armed forces mean.

[00:18:34] Speaker 01:
There are two other prongs that aren't directly at issue in this case, but the talk about someone being a resident outside the United States and not being a national of the host country.

[00:18:43] Speaker 01:
What the government did, if you look at Appendix 498, which is their instruction that the court adopted, they moved the to-the-extent language outside of Clause A to qualify all three requirements of the statute.

[00:18:56] Speaker 01:
And that fundamentally changes me, and to an if, because whether or not someone is resident outside the United States or whether or not they are an Iraqi national is a binary question.

[00:19:07] Speaker 01:
It is all or nothing.

[00:19:09] Speaker 01:
by putting to the extent also in front of the employment clause, made the same thing and allowed the government to argue this other people on other days theory, that media could be satisfied by other black water contractors on days other than September 16, 2007, which was fundamental legal error that denied us a fair trial.

[00:19:27] Speaker 01:
And under the McDonald case that we cited in our 28-J letter, if any one of the theories that the government argued to the jury is incorrect as a matter of law, we're entitled to a new trial, even if you find that one of them is valid.

[00:19:40] Speaker 01:
That was the precise scenario of McDonald where the court said that the jury instruction lacked important qualifications, rendering them significantly over-inclusive,

[00:19:50] Speaker 01:
Given the general verdict, it was impossible to know on what ground the jury convicted, and therefore the jury instruction error could not have been harmless beyond a reasonable doubt.

[00:20:00] Speaker 01:
I would like to turn to my other issues, unless the court is prepared to extend the time, but I see that I have five minutes left on the other two.

[00:20:08] Speaker 01:
Very briefly, the new trial issue.

[00:20:11] Speaker 01:
A key witness in this case submitted a victim impact statement to the court, directly contradicting his trial testimony and the government's theory of the case.

[00:20:20] Speaker 01:
When we alerted the court, prosecutors scrambled, conducted an ex parte interview of the witness, and they reported secondhand that the witness had characterized his new statement as just a fictional expression containing imagined facts.

[00:20:33] Speaker 01:
and the district court accepted.

[00:20:35] Speaker 01:
This incredible explanation, without requiring any evidence from the witness, no testimony, no affidavit, it should have granted a new trial.

[00:20:43] Speaker 01:
Instead, it denied us even a hearing.

[00:20:45] Speaker 01:
At an absolute minimum, we were entitled to a hearing to explore this fundamentally new and different and exculpatory evidence on two key points.

[00:20:54] Speaker 01:
Whether the driver of the white Kia was alive when the incident began, as this witness, Sarhan Monum, testified at trial,

[00:21:01] Speaker 01:
Whereas in his victim impact statement, he said he witnessed and observed a conversation among the occupants of the car about whether they should drive away, whether they should flee to avoid being injured.

[00:21:12] Speaker 01:
A conversation that could not have happened under the government's theory of the case.

[00:21:16] Speaker 01:
More importantly, from our point of view, a trial of this witness testified that he warned the convoy that the white Kia posed no threat by, after the shots were fired and him observing that the occupant of the car was dead, running back in front of the convoy

[00:21:31] Speaker 01:
dramatic testimony three or four meters away and waving his hands while yelling stop shooting.

[00:21:37] Speaker 05:
So is it relevant the questions to which Mr. Monum was answering?

[00:21:47] Speaker 01:
In theory, but here the questions.

[00:21:49] Speaker 05:
Why in theory?

[00:21:50] Speaker 05:
He was given a form that had questions on it.

[00:21:55] Speaker 05:
And the first question, which is what you're focusing on, his answer to that is asking

[00:22:02] Speaker 05:
Tell us what you imagine, whether you have feelings of guilt, how you think victims were affected.

[00:22:11] Speaker 01:
Absolutely.

[00:22:13] Speaker 01:
For a victim of this offense, alleged offense, that is what it called for.

[00:22:18] Speaker 01:
How did this incident make you feel?

[00:22:19] Speaker 01:
It did not ask for a literary license on what happened that day.

[00:22:23] Speaker 01:
And if you read a statement, it doesn't read that way at all.

[00:22:25] Speaker 01:
It reads, here's what I witnessed and saw that day.

[00:22:27] Speaker 01:
And he describes not emotions other than his own.

[00:22:32] Speaker 01:
He describes feeling cowardice and shame by not being able to move from his traffic kiosk.

[00:22:38] Speaker 01:
And that is the other part of his victim impact statement that's fundamentally inconsistent with that testimony about him heroically getting out in front of the convoy and waving, there's no harm here.

[00:22:48] Speaker 01:
You shouldn't be shooting, which the government relied on over and over again in its closing argument on this critical piece of the case.

[00:22:57] Speaker 01:
I do want to address venue as well.

[00:22:58] Speaker 01:
I have two minutes left.

[00:22:59] Speaker 01:
I'm, of course, prepared to answer any questions.

[00:23:02] Speaker 01:
But on venue, briefly, because the events took place in Baghdad, venue was controlled by a statute, 18 U.S.C.

[00:23:11] Speaker 01:
3238, that said proper venue was in the district in which any offender or any joint offender is arrested.

[00:23:17] Speaker 01:
Government relied entirely on the alleged arrest of cooperator Jeremy Ridgeway in D.C.

[00:23:23] Speaker 01:
The evidence failed to show that Ridgway was a joint offender who was arrested in connection with the charged offenses, or even that he was arrested at all, frankly.

[00:23:31] Speaker 01:
The district court should have acquitted the defendants on this issue.

[00:23:34] Speaker 01:
Instead, it directed a verdict in the government's favor.

[00:23:38] Speaker 01:
Over our objection, the court refused to allow the jury to decide venue, denied our proposed instruction, and declared venue satisfied.

[00:23:47] Speaker 01:
That was reversible error.

[00:23:50] Speaker 01:
Venue has to be established under this court's law count by count.

[00:23:54] Speaker 01:
So on each count, the government was required to prove that Ridgway was a joint offender with the charged defendant and was arrested in DC in connection with that particular count.

[00:24:03] Speaker 01:
I'll give you the best example from the case that shows the error in the court's treatment of this issue.

[00:24:08] Speaker 05:
So let me ask you, what about the proffer to which Ridgway pled guilty?

[00:24:15] Speaker 05:
Proffer of facts.

[00:24:18] Speaker 01:
The proffer of facts was dependent to the arrest warrant.

[00:24:22] Speaker 01:
It was general.

[00:24:23] Speaker 01:
It described the Neeser Square incident generally.

[00:24:27] Speaker 05:
It said he, along with five others, and then each defendant, excluding Slatton, was charged with aiding and abetting.

[00:24:41] Speaker 01:
aiding and abetting could have satisfied venue if the government requested a specific jury instruction and asked the jury to decide, count by count, were the defendants either aiding and abetting Ridgeway or was Ridgeway aiding and abetting them?

[00:24:55] Speaker 01:
But that was not the instruction given in this case.

[00:24:57] Speaker 05:
Why, why, just tell me, why was the government required to ask for a specific instruction when it was in the indictment?

[00:25:05] Speaker 01:
Well, there was no instruction at all.

[00:25:07] Speaker 01:
The judge took venue away from the jury.

[00:25:10] Speaker 01:
Because it's a count-by-count termination on each particular defendant, the jury was required to find whether Ridgeway was a joint offender.

[00:25:18] Speaker 01:
This court in Lam Quang has said aiding and abetting can be enough to establish venue, but there needs to be a specific jury instruction to that effect.

[00:25:26] Speaker 01:
There was none in Lam Quang, and the court dismissed a count, an aiding and abetting count, against- Are you talking about our Lam-

[00:25:32] Speaker 01:
I may be mispronouncing it this way.

[00:25:34] Speaker 05:
No, right.

[00:25:34] Speaker 05:
Yeah, well, I may be too.

[00:25:38] Speaker 05:
In that case, aiding and abetting was not charged.

[00:25:42] Speaker 05:
The only question we were addressing was the attempt charge, which we said was not a joint offense.

[00:25:50] Speaker 05:
So here, the offense to which Ridgway pled guilty in the proper facts to which he accepted

[00:26:00] Speaker 05:
referred to joint conduct and that these actions to which he was pleading guilty was joint conduct.

[00:26:10] Speaker 01:
I think the Ridgeway arrest warrant and proffer focused on his own conduct.

[00:26:14] Speaker 01:
These were individual offenses.

[00:26:16] Speaker 05:
Now I'm just reading what's in the proffer.

[00:26:18] Speaker 01:
I understand.

[00:26:18] Speaker 01:
And it did not allege that any of these particular defendants committed crimes.

[00:26:22] Speaker 01:
It talked generally about there being shooting – shooting incident in Iraq.

[00:26:26] Speaker 01:
But for these particular crimes, manslaughter, it's not a conspiracy.

[00:26:30] Speaker 01:
It's a highly individualized question, particularly in this war zone environment.

[00:26:34] Speaker 01:
What did each defendant see?

[00:26:36] Speaker 01:
What was the reasonableness of their response to the threats they faced?

[00:26:40] Speaker 01:
It's a highly individualized question.

[00:26:42] Speaker 01:
What I was going to get at as my example is there were some counts alleged involving individuals who were shot to the west of the traffic circle, alleged against my client, Paul Slough, alone.

[00:26:53] Speaker 01:
Those occurred during the exit of the convoy, well after the shooting had stopped to the south of the circle, after the tow was set up between these two vehicles and they were driving away.

[00:27:03] Speaker 01:
And the evidence showed only one person was shooting his weapon during that time period.

[00:27:07] Speaker 05:
So the district court found

[00:27:10] Speaker 05:
This entire convoy incident or conduct was a single episode.

[00:27:21] Speaker 01:
The district court, there were two opinions.

[00:27:23] Speaker 01:
Judge Urbina said more or less they were in the same place at the same time, a very kind of generalized determination.

[00:27:30] Speaker 05:
I'm focusing on a statement by Judge Lamberth.

[00:27:34] Speaker 01:
Judge Lamberth concluded that.

[00:27:35] Speaker 05:
Not a statement, but a finding.

[00:27:37] Speaker 01:
that it was a joint offense.

[00:27:39] Speaker 01:
He declared the joint offender satisfied.

[00:27:43] Speaker 05:
I thought he said specifically it was a single episode.

[00:27:48] Speaker 01:
I don't recall that particular language.

[00:27:51] Speaker 01:
Our point is only this.

[00:27:54] Speaker 01:
This is not a case where one of our arguments is the Gatton argument, the jury should always decide venue.

[00:27:59] Speaker 01:
But even putting that aside, under the court's test, you have to have a lack of material dispute over the facts.

[00:28:06] Speaker 01:
And arguably, if you've got a case that's maybe a drug deal in the district or a theft where there's no conceivable evidence or argument that venue cannot be satisfied, or here, if all the government had to establish was that the events took place in Baghdad, perhaps you could find no genuine issue.

[00:28:22] Speaker 05:
But under your argument,

[00:28:24] Speaker 05:
You would have to have a conspiracy charge.

[00:28:27] Speaker 01:
Not necessarily.

[00:28:28] Speaker 05:
To establish venue.

[00:28:29] Speaker 05:
Because if you had a drug offense without a conspiracy charge, you would be arguing that the defendant who shot and killed somebody in the course of conducting this illegal drug operation, that that would be an individual's separate account that had to be dealt with with venue

[00:28:52] Speaker 01:
That's not our argument.

[00:28:54] Speaker 05:
No, but I'm just trying to take the logic of your argument.

[00:28:56] Speaker 01:
What's required, what the courts have said is required, is concerted criminal activity.

[00:29:02] Speaker 01:
That comes from the case law.

[00:29:03] Speaker 01:
There's very little case law on this point.

[00:29:04] Speaker 01:
But concerted criminal activity connotes mutual intent.

[00:29:09] Speaker 01:
It doesn't have to be conspiracy, but it could be a scheme where people work together.

[00:29:12] Speaker 01:
Could be a drug deal where people work together.

[00:29:14] Speaker 01:
Not the types of offenses we have here.

[00:29:16] Speaker 01:
Manslaughter.

[00:29:17] Speaker 05:
What about the testimony

[00:29:19] Speaker 05:
about the sector responsibilities and how they were basically assigned to the convoy.

[00:29:29] Speaker 05:
So each knew what it was supposed to do.

[00:29:33] Speaker 01:
Well, actually, the sector testimonies, each had their own sector of responsibility.

[00:29:38] Speaker 01:
So one person was to look west, one was to look north, one to look south.

[00:29:42] Speaker 01:
And that highlights my point.

[00:29:44] Speaker 01:
For the charge of manslaughter.

[00:29:46] Speaker 05:
Where does this take you?

[00:29:48] Speaker 05:
So I'm clear that it means that as to venue, some of the defendants had to be tried where?

[00:29:56] Speaker 05:
In Tennessee?

[00:29:57] Speaker 05:
In Utah?

[00:29:58] Speaker 01:
Utah.

[00:30:01] Speaker 05:
That's where they self-surrendered.

[00:30:03] Speaker 01:
Correct.

[00:30:03] Speaker 01:
That's where they were arrested.

[00:30:06] Speaker 05:
I see.

[00:30:07] Speaker 05:
All right.

[00:30:10] Speaker 05:
So the defendant gets to determine venue, not the government.

[00:30:17] Speaker 01:
The case law has said, interpreting venue statutes, that they should not be interpreted to allow the government a favorable choice of venue at its own discretion.

[00:30:25] Speaker 01:
They're strictly construed against the government in favor of the defendant.

[00:30:31] Speaker 04:
We'll give you some time to reply.

[00:30:42] Speaker 02:
may please court your honors i'm only stand here because i had asked and i believe it was communicated to the court's court that uh... reserved the time out of an abundance of caution in case the court had any questions uh... your honors had any questions with regard to what has been briefed on the sufficiency of the evidence against evan liberty i would otherwise waive my time in favor of uh... mister heavily for the remaining issues on rebuttal all right well we didn't get that message so

[00:31:12] Speaker 04:
Yes.

[00:31:13] Speaker 04:
You've used 30 seconds, Mr. Elmer.

[00:31:16] Speaker 04:
Do you want another four minutes?

[00:31:17] Speaker 02:
I would give those four minutes, Mr. Elmer.

[00:31:19] Speaker 04:
I don't think we have any questions about this.

[00:31:21] Speaker 02:
Thank you, Your Honors.

[00:31:37] Speaker 03:
May I please the court?

[00:31:38] Speaker 03:
I'm Demetra Lambros for the United States, and I will respond to the Meechah new trial and venue arguments.

[00:31:47] Speaker 03:
With regard to Meechah, as the evidence in this case showed, in 2007,

[00:31:53] Speaker 03:
Baghdad was a very fragile and dangerous place.

[00:31:57] Speaker 03:
Saddam Hussein's government had been completely removed, and the US and allied invasion in 2003 had left much of the country's infrastructure in ruins.

[00:32:06] Speaker 03:
So in 2007, the United States was involved in a massive rebuilding campaign.

[00:32:12] Speaker 03:
And at the head of that effort, doing the lion's share of the work, were the Departments of Defense and State.

[00:32:19] Speaker 03:
Now, contrary to the defense suggestion, there is no evidence in this case at all that the military mission, the DOD mission in Baghdad in 2007, was somehow classically military, as it was when we invaded in 2003 and actually battled the Iraqi army.

[00:32:36] Speaker 05:
Well, I think counsel is referring, though, to Deputy Secretary England's testimony where he was cross-examined on this and basically did not adopt this theory.

[00:32:47] Speaker 03:
He was.

[00:32:47] Speaker 03:
Well, if we look at the cross-examination carefully and actually at his direct examination, the defense put Secretary England on the stand.

[00:32:56] Speaker 03:
They never asked him what is the United – what is the

[00:33:00] Speaker 03:
DoD mission in Baghdad.

[00:33:02] Speaker 03:
He gave a legal opinion about whether Mija covered these particular actors, but he was never asked what is the military mission.

[00:33:11] Speaker 03:
And what he was shown on cross-examination, he was shown a, he was read.

[00:33:15] Speaker 03:
a defense department report to Congress pursuant to a Defense Department Reauthorization Act, which said it outlined the strategy to help the Iraqi people build a new Iraq.

[00:33:27] Speaker 03:
And he agreed, yeah, defense and state and other agencies for sure, but defense

[00:33:32] Speaker 03:
The defense and state were at the forefront of that effort, working hand in hand to rebuild Iraq.

[00:33:38] Speaker 03:
So yes, at this one unique time in history, as the evidence in this case showed, there was one mission in Iraq, to rebuild it.

[00:33:48] Speaker 03:
And in fact, Senator Sessions himself, when he proposed the amendment to MEJA, acknowledged the point.

[00:33:55] Speaker 03:
He said that the new statute would cover non-Defense Department contractors who were supporting the American military mission.

[00:34:02] Speaker 03:
And then in the same breath, he recognized what that mission was.

[00:34:07] Speaker 03:
He said, private contractors are necessary to rebuilding a healthy Iraq, yet we cannot allow them to escape justice for crimes that they may commit overseas.

[00:34:17] Speaker 03:
So even Senator Sessions knew that the military mission in Iraq at the time was to rebuild it.

[00:34:24] Speaker 03:
The Army's Colonel Tarsa really does put some flesh on the bones on this idea.

[00:34:29] Speaker 03:
And he described how his soldiers were out with Iraqis, working with them, working with local leaders, helping repair infrastructure, restoring water, sewer, electricity, handing out grants to businesses to help reboot the economy, to help raise money for a burn center.

[00:34:45] Speaker 03:
This is the military that's doing that work.

[00:34:47] Speaker 03:
And he even said, look, our troops are acting outside their typical roles at this point in the campaign, and that that was not at all unique for that time.

[00:34:56] Speaker 03:
And then we also have the provincial reconstruction teams.

[00:34:59] Speaker 03:
They too, again, the military and the State Department together, going out into Baghdad to help rebuild that torn-up infrastructure and try to help boost the local economy.

[00:35:10] Speaker 03:
defense and state together.

[00:35:12] Speaker 03:
You know, as Colonel Tarsa put it, at that point in the operation, it was all about restoring the Iraqis' quality of life so that other people would be dissuaded from joining the insurgency.

[00:35:24] Speaker 03:
The military at that time was working with the Iraqi people.

[00:35:27] Speaker 03:
It wasn't fighting them.

[00:35:29] Speaker 03:
So at this moment in history, yes, in Iraq, it was the Defense Department's mission, and states too, to rebuild Iraq.

[00:35:37] Speaker 03:
And as Senator Sessions says, it was Mija's

[00:35:40] Speaker 03:
intention to cover private contractors who were supporting the Rebaki rebuilding mission.

[00:35:46] Speaker 03:
Is it your position that any federal contractor that was in Iraq during this time would be covered by Egypt?

[00:35:58] Speaker 03:
I think that, again, we have to look at the facts of the case.

[00:36:00] Speaker 03:
Certainly contractors who were supporting the big two departments, Department of State and Defense,

[00:36:06] Speaker 03:
Yes, I think there's a chance, and I'm not sure, because we'd have to look at the evidence.

[00:36:10] Speaker 03:
But I do believe that at that point, as far as the evidence showed in our case, the Defense Department mission in Iraq was to rebuild it.

[00:36:19] Speaker 03:
Nothing that Deputy Secretary England said was to the contrary.

[00:36:24] Speaker 03:
And, you know, there's another way that Colonel Tarsa, who was on the ground in Baghdad, described how Blackwater's employment specifically did support help the military.

[00:36:35] Speaker 03:
Because State was shorthanded in 2006 and 2007, his troops, Colonel Tarsa's troops, were dedicating some 160 soldiers every day to protecting State Department officials.

[00:36:49] Speaker 03:
But I thought that the Deputy Secretary said we were

[00:36:53] Speaker 03:
supporting them, they are not supporting us.

[00:36:56] Speaker 03:
That was his view, and that was, he responded when Senator Obama at the time, and others were writing to him actually about this case.

[00:37:03] Speaker 03:
So yes, it was his view, but that actually isn't the point.

[00:37:06] Speaker 03:
It could very well be that at the time when the defense was doing that work, they were doing state's job.

[00:37:14] Speaker 03:
There was actually no dispute about that in this record.

[00:37:17] Speaker 03:
That was the State Department's responsibility.

[00:37:20] Speaker 03:
And that because they were undermanned, defense, we weren't going to lead our diplomats unprotected.

[00:37:25] Speaker 03:
So yes, defense came in and did support that work.

[00:37:27] Speaker 03:
But that's not the major question.

[00:37:29] Speaker 03:
What the secretary said, the deputy secretary said, that was the point, is he said when Blackwater came,

[00:37:36] Speaker 03:
And then those military assets that have been doing that work came back to the Defense Department mission.

[00:37:44] Speaker 03:
By giving the Army its troops back, by freeing up soldiers, Blackwater Guards taking on that job, gave them their soldiers back.

[00:37:53] Speaker 03:
That is almost direct support.

[00:37:56] Speaker 03:
That's actually inconsistent.

[00:37:59] Speaker 03:
If you're saying that those soldiers went back to their mission, then you're actually acknowledging that those missions are different.

[00:38:08] Speaker 03:
Well, going back to their responsibility, the word mission had to be established by the evidence, otherwise.

[00:38:17] Speaker 03:
England's worth there, that those soldiers went back.

[00:38:21] Speaker 03:
We do believe that the mission in Iraq was one in the same, defense, state, hand in hand.

[00:38:27] Speaker 03:
Do you think there could be any difference between the mission of the United States of America

[00:38:33] Speaker 03:
as a country and the mission of these federal agencies.

[00:38:38] Speaker 03:
I think there can be, yes, in certain circumstances, sure.

[00:38:42] Speaker 03:
I think there could be all sorts of circumstances within the United States.

[00:38:48] Speaker 03:
But in this case, you might want to look at it as a Venn diagram.

[00:38:51] Speaker 03:
The United States' mission here to rebuild Iraq

[00:38:55] Speaker 03:
expense, may have different skill sets, it was also doing a good bit of that work.

[00:39:00] Speaker 03:
State, sure, different skill sets, still part of the same mission.

[00:39:05] Speaker 03:
So I do think so, and then there are even other ways besides giving.

[00:39:09] Speaker 03:
So I'm just trying to understand, you know,

[00:39:14] Speaker 03:
If the scope of this can be defined, council gave the hypothetical of let's say we had EPA in there rebuilding the water system or something like that.

[00:39:32] Speaker 03:
Since rebuilding, as you say, is the mission, would that person come under media?

[00:39:38] Speaker 03:
I think in that particular situation, we'd have to look at it.

[00:39:41] Speaker 03:
But if that was helping rebuild infrastructure at that time and the military mission, as our case, was able to show it, to support, to help rebuild Iraq, that's what all the evidence points to.

[00:39:55] Speaker 03:
There's no evidence here that the military was simply shooting people or fighting a war.

[00:40:01] Speaker 03:
It was working with the Iraqis.

[00:40:03] Speaker 03:
It wasn't fighting them.

[00:40:04] Speaker 03:
This is a very unique case where the military

[00:40:08] Speaker 03:
In your view then, does NIDJA apply whenever U.S.

[00:40:15] Speaker 03:
military assets are on the ground in a country and there are other

[00:40:22] Speaker 03:
it would cover everybody.

[00:40:23] Speaker 03:
No.

[00:40:24] Speaker 03:
No, I don't think it would.

[00:40:24] Speaker 03:
I think in 2003, when military assets were on the ground in Iraq, and they were actually coming to take down the government and fight the Iraqi army, that was a military mission at that point.

[00:40:37] Speaker 03:
No.

[00:40:37] Speaker 03:
So I don't think it would apply at that point in time.

[00:40:40] Speaker 03:
OK.

[00:40:40] Speaker 03:
So if there were other contractors in there at that time, and they were not directly assigned to the military, Mija would not have applied to them.

[00:40:49] Speaker 03:
But your view is the mission changes,

[00:40:52] Speaker 03:
the jurisdiction changes.

[00:40:54] Speaker 03:
Yes, because the statute requires us to tether jurisdiction to relating to supporting the military mission.

[00:41:01] Speaker 03:
And so we put on our evidence about the military mission at that time and that's what the evidence showed.

[00:41:06] Speaker 03:
There was no military mission

[00:41:08] Speaker 03:
evidence that we were just fighting at that point in the game.

[00:41:12] Speaker 03:
And then there were yet other ways that Blackwater did directly support the military.

[00:41:19] Speaker 03:
Sometimes the Blackwater guards escorted these provincial reconstruction teams.

[00:41:23] Speaker 03:
Again, the defense state working together out rebuilding infrastructure.

[00:41:28] Speaker 03:
Sometimes the Blackwater guards trained the Army security convoys when they came into Baghdad.

[00:41:34] Speaker 03:
Blackwater was training them.

[00:41:35] Speaker 03:
And the Blackwater's also sometimes came to the aid of military convoys when they were in trouble.

[00:41:41] Speaker 03:
That's direct support for the military.

[00:41:44] Speaker 03:
And that's what implicates the statutory construction arguments that the defendants raise.

[00:41:50] Speaker 03:
They say it only covers

[00:41:52] Speaker 03:
Their employment has to relate to supporting the military.

[00:41:55] Speaker 03:
They say it only covers the four corners of their contracts.

[00:41:59] Speaker 03:
That's of course not what the statute says.

[00:42:01] Speaker 03:
The statute says that the defendant's employment has to relate to supporting the military, not their contracts.

[00:42:08] Speaker 03:
And remember, everything that Blackwater.

[00:42:10] Speaker 05:
Well, I mean, the point there, it seems to me, is the employment is defined by the contract.

[00:42:15] Speaker 05:
What are they there to do?

[00:42:17] Speaker 05:
And the contract says it's with the department.

[00:42:19] Speaker 03:
Yes, and it's actually, I don't think they're disputing us that even the training, recruiting, and the escorting actually did fall within the four corners of their contracts.

[00:42:27] Speaker 03:
I think that's right.

[00:42:28] Speaker 03:
So I don't think that they're disputing that.

[00:42:30] Speaker 03:
But even so, everything that Blackwater did, everything that the guards did, they did at state or department

[00:42:37] Speaker 03:
Blackwater's direction.

[00:42:40] Speaker 03:
As one of the guards said, I do whatever Blackwater tells me to do.

[00:42:44] Speaker 03:
That's his employment.

[00:42:45] Speaker 03:
But really, their main statutory construction argument is about the meaning of the word while.

[00:42:52] Speaker 03:
They say that Meeja applies only when a contractor commits a crime while, meaning at the same moment that he's performing a military-related function.

[00:43:02] Speaker 03:
That's their main statutory construction argument.

[00:43:05] Speaker 03:
But that actually would effectively gut the statute, for it would only really provide jurisdiction for on-the-job crimes.

[00:43:14] Speaker 03:
And that can't be what Congress intended.

[00:43:17] Speaker 03:
The original media, the Congress was concerned about when DOD contractors committed such crimes as rape, arson, robbery, fraud.

[00:43:26] Speaker 03:
sexually abusing children, those crimes don't occur on the job or in the course of duty.

[00:43:32] Speaker 03:
And so when Congress very deliberately expanded MEJA to cover non-defense contractors in 2004, there is no indication, and it would make no sense to treat DOD contractors and non-DOD contractors so differently.

[00:43:47] Speaker 03:
I mean, the whole purpose of MEJA was to let countries know, foreign countries know, and their citizens,

[00:43:53] Speaker 03:
that when contractors commit crimes on their soil, they'll be prosecuted.

[00:43:59] Speaker 03:
You know, as Senator Schumer said, one of the co-sponsors, our country gains stature because the world sees that when a crime is committed, it'll be prosecuted.

[00:44:07] Speaker 03:
That purpose would be wholly defeated if we limited MEJA, as the defense asked, really to only on-the-job crimes.

[00:44:14] Speaker 05:
Well, can you go back to

[00:44:18] Speaker 05:
Council's argument in response to my question about the statutory text in A1, while employed by?

[00:44:28] Speaker 03:
While employed by or accompanying the Enforces are two different clauses.

[00:44:38] Speaker 03:
And the while employed by is what we're talking about here.

[00:44:42] Speaker 03:
Right.

[00:44:42] Speaker 03:
They're separately defined.

[00:44:44] Speaker 03:
And they want to read those words while

[00:44:47] Speaker 03:
to mean that the contractor has to commit the crime while at the very moment that he's performing a military function.

[00:44:54] Speaker 05:
I agree that's one of their arguments, but I thought the other argument was that you actually have to be employed by

[00:45:03] Speaker 05:
the military.

[00:45:04] Speaker 03:
Well, yes.

[00:45:05] Speaker 03:
They say, they say, let's look at the plain language of the statute, and it says, employed by the armed forces.

[00:45:12] Speaker 03:
If that's all they had, I would agree with them.

[00:45:15] Speaker 03:
But that's not what Congress went in in 2004 and specifically defined those words, employed by the armed forces, to apply to a non-defense department contractor whose employment relates to supporting the military.

[00:45:30] Speaker 03:
The idea of employed by the Armed Forces, it can't be read by itself because those words are further defined elsewhere in the statute.

[00:45:38] Speaker 03:
And, you know, they're reading a while to only apply if you're actually committing the crime on the job.

[00:45:45] Speaker 03:
it's not only would it gut the statutes, it's actually a very unnatural reading of the word while.

[00:45:51] Speaker 03:
In fact, this court in Williams looked at the sister major provision that Judge Rogers is talking about about while accompanying the armed forces.

[00:45:59] Speaker 03:
And the court had to decide whether the defendant's overseas crime was committed while he was residing with his military wife overseas.

[00:46:08] Speaker 03:
And under the defense reading of while, it may be that Rico Williams would have had to have committed his crime

[00:46:15] Speaker 03:
at his wife's residence while he was residing with her.

[00:46:19] Speaker 03:
But of course, that's not how the court looked at the statute.

[00:46:22] Speaker 03:
The court looked to see what he was doing off the base in some hut when he committed his crime to see whether the general time, that's when he was residing with his wife over here on the base.

[00:46:34] Speaker 03:
So that's how it would go here, too.

[00:46:36] Speaker 03:
The most natural reading of a while is during the time of the employment.

[00:46:41] Speaker 03:
That's what that would mean there.

[00:46:44] Speaker 03:
And I'd like to also say that to the extent language, same thing, that would also, their reading of it would actually also only limit media to on the job crimes.

[00:46:55] Speaker 03:
But that isn't the way this statute is written.

[00:46:59] Speaker 03:
It makes sense more to look at the extent of their employment.

[00:47:03] Speaker 03:
And here the extent of their employment actually did also include all the direct work they were doing for the military.

[00:47:10] Speaker 03:
The escorting the provincial reconstruction teams, training the army security details, sometimes rescuing them.

[00:47:17] Speaker 03:
That's all included to the extent of their employment contracts.

[00:47:21] Speaker 03:
I'd like to talk for a couple minutes about the relates to supporting language.

[00:47:26] Speaker 03:
Contrary to their claim, it does not require that the work be directly connected to the military.

[00:47:33] Speaker 03:
Those aren't the words that Congress used.

[00:47:35] Speaker 03:
Congress didn't even say the work has to support the military.

[00:47:38] Speaker 03:
It said the work has to relate to supporting the military.

[00:47:42] Speaker 03:
And this court and the Supreme Court

[00:47:43] Speaker 03:
in a criminal case have very specifically said that those words do indicate a very broad construction that Congress didn't mean for there have to be a direct relationship.

[00:47:55] Speaker 03:
In fact, Senator Sessions, again, made the point.

[00:47:58] Speaker 03:
He said that the amendment would cover what the old Meeja covered, contractors who are directly related to the military, but that the new amendment meant to expand it to those who aren't directly associated with the Defense Department.

[00:48:12] Speaker 03:
And look, the fact that the words are in a statute does not confine or change their meaning.

[00:48:17] Speaker 03:
And Smith, in fact, did look at 924C, those same words.

[00:48:23] Speaker 03:
Nothing has ever cut back on those words.

[00:48:25] Speaker 03:
The cases of the defense sites were looking at the word use.

[00:48:29] Speaker 03:
They weren't at all criticizing Smith's construction or this court's construction in Sebelius what the words in relation to mean.

[00:48:39] Speaker 03:
And in fact, it's the Smith language

[00:48:41] Speaker 03:
that was right in the jury instruction.

[00:48:44] Speaker 03:
That is still good law, and it is how the jury in this case was instructed.

[00:48:49] Speaker 03:
The jury was instructed that relates to means that connection with, or reference to, or having some purpose or effect with.

[00:48:56] Speaker 03:
So again, the defense did not object to that formulation.

[00:48:59] Speaker 03:
They objected to the introduction of the instruction as unnecessary, but they never said it didn't capture the idea of where it relates to means.

[00:49:17] Speaker 03:
I think I will go to the new trial.

[00:49:25] Speaker 03:
Judge Lamberth found that Monum did not commit perjury.

[00:49:30] Speaker 03:
He found that his trial testimony was fully corroborated, accorded with all the other evidence in the case, and that was consistent with everything it said all along.

[00:49:39] Speaker 03:
The district court also found that the sentencing statement, in contrast, was a complete outlier.

[00:49:46] Speaker 03:
That, as he put it, Judge Lamberth put it, it was powerfully contradicted by the record.

[00:49:51] Speaker 03:
And he also found that Monum fully

[00:49:54] Speaker 03:
disavowed his sentencing statement as a statement of facts and affirmed his trial testimony.

[00:50:01] Speaker 03:
Those findings are all uniquely within the District Court's province to make, and it wasn't an abuse of discretion for him to credit the corroborated

[00:50:11] Speaker 03:
consistent with all the other evidence, trial testimony against the uncorroborated, contrary to all the facts, sentencing statement, that the witness himself said was a product of his imagination.

[00:50:23] Speaker 03:
You know, the defense emphasizes the circumstances under which the statement was made, and I think as Judge Rogers pointed out, the circumstances are that the government solicited this statement.

[00:50:34] Speaker 03:
It was asking the victims and witnesses here to tell their feelings about what happened, to express how the crime affected them.

[00:50:44] Speaker 03:
And here, Mr. Monum wasn't even a victim.

[00:50:47] Speaker 03:
He was a witness, and he was imagining what it was like to be in that Kia at the time.

[00:50:53] Speaker 03:
The government solicitation wasn't an invitation to go over the facts of the case.

[00:50:58] Speaker 03:
That's what the trial is for.

[00:50:59] Speaker 03:
That's what the oath cross-examination are for.

[00:51:02] Speaker 03:
We never ask them to actually come and recap the facts.

[00:51:05] Speaker 03:
But even in a case of admitted perjury, the defense still has to show that they would probably be acquitted.

[00:51:14] Speaker 03:
And for these joint defendants, that's an especially uphill climb.

[00:51:17] Speaker 03:
for no matter what you make of Monim's testimony, it was only about the Kia.

[00:51:23] Speaker 03:
And in fact, the first shots at the driver of the Kia.

[00:51:27] Speaker 03:
But that was actually a very unique and separate event in the Nisar Square case.

[00:51:31] Speaker 03:
As the defendants themselves emphasized over and over again, many of their teammates gave them the benefit of the doubt when it came to the Kia coming toward the convoy.

[00:51:39] Speaker 03:
But what happened afterwards was entirely different.

[00:51:43] Speaker 03:
They trained their fire on 29 other innocent civilians all through the square as they were running away, crouching, crawling.

[00:51:53] Speaker 03:
That is what their teammates thought was murder and what the military's first responder was.

[00:52:00] Speaker 03:
So no matter what you make of Monim's testimony, they can't show that the heart of the case would have been any different with his testimony.

[00:52:12] Speaker 03:
On venue.

[00:52:15] Speaker 03:
The indictments against all the defendants charged Ridgway as a joint defender on all the counts, and that is what the proof showed too.

[00:52:25] Speaker 03:
Even if we look at the idea of joint offender very narrowly, this case was charged presented

[00:52:32] Speaker 03:
argued and instructed on an aiding and abetting theory.

[00:52:37] Speaker 03:
And on that theory, the defendants were convicted of shots in fields of fire, slough to the south, east, west, and north,

[00:52:47] Speaker 03:
liberty to the south and the east, and herd to the south.

[00:52:53] Speaker 03:
Now the evidence also showed that Ridgway shot in those directions too.

[00:52:57] Speaker 03:
So at the very least, he was an aider and a better on all the counts.

[00:53:02] Speaker 03:
And as this court has said, an aider and a better is by definition a joint offender.

[00:53:07] Speaker 03:
That is what happened in Lam Hoang Hoa.

[00:53:10] Speaker 03:
There wasn't an aiding and abetting instruction.

[00:53:12] Speaker 03:
Here, there was a very explicit aiding and abetting instruction.

[00:53:16] Speaker 03:
It was on 496.

[00:53:17] Speaker 03:
That's how this case was tried.

[00:53:20] Speaker 03:
But that's not even what would be necessary to find an aiding and abetting, and why the defense theory, which is that you have to be charged in the same counts with the exact same intent, something like a conspiracy, that's not at all what Congress intended.

[00:53:34] Speaker 03:
Congress didn't define those words, but the purpose of the statute gives us a window into what they mean.

[00:53:40] Speaker 03:
The joint offender language was added to 3238 for a really practical reason.

[00:53:45] Speaker 03:
Congress wanted people who had committed joint crimes to be tried in one courtroom so that foreign witnesses wouldn't have to make multiple trips to the United States to testify many times so that we could cut out the

[00:54:00] Speaker 03:
totally inefficient and expensive effort of trying related cases separately and in different districts.

[00:54:07] Speaker 03:
And so it's that practical purpose that really defines.

[00:54:11] Speaker 03:
So to think that we would have to have identical counts with identical intent, that would defeat the purpose.

[00:54:17] Speaker 03:
You only need a joint crime.

[00:54:19] Speaker 03:
And here, that's what we have.

[00:54:21] Speaker 03:
The Raven 23 convoy went into Nisar Square together as a team

[00:54:26] Speaker 03:
They shot together.

[00:54:27] Speaker 03:
They even said that they shot to save their teammates.

[00:54:29] Speaker 03:
So yes, venue does have to be established count by count.

[00:54:33] Speaker 03:
But it's the one crime that provides venue on all the related counts.

[00:54:39] Speaker 03:
And again, it would just depete the purpose of the statute.

[00:54:43] Speaker 03:
Just suppose, for instance,

[00:54:45] Speaker 03:
that some military officers started a fight in a bar overseas on a military base.

[00:54:52] Speaker 03:
And some guy starts to fight.

[00:54:54] Speaker 03:
All of his friends join in.

[00:54:55] Speaker 03:
And some they seriously kill some people.

[00:54:58] Speaker 03:
They injure others.

[00:55:00] Speaker 03:
But the government, let's suppose, decides to charge them only for the particular victims that each defendant hurt.

[00:55:08] Speaker 03:
Under the defense view, we would have to try each of those folks in separate districts.

[00:55:17] Speaker 03:
if we arrested them in different places.

[00:55:19] Speaker 03:
But that would defeat the purpose of the statue.

[00:55:23] Speaker 03:
This was the same fight.

[00:55:24] Speaker 03:
The same witnesses would be coming to testify against it, even though they're charged in different counts.

[00:55:30] Speaker 03:
It's still the same event.

[00:55:32] Speaker 03:
And it would be true even if their intention was different.

[00:55:35] Speaker 03:
Let's suppose the first one premeditated and thought about what he was going to do beforehand and actually killed his victim.

[00:55:42] Speaker 03:
Someone else may have shouted racial epithets.

[00:55:44] Speaker 03:
That might have created

[00:55:46] Speaker 03:
a hate crime.

[00:55:47] Speaker 03:
And the third guy just got kind of wrapped up in the heat of the moment and socked his witness, his victim, I'm sorry.

[00:55:55] Speaker 03:
Still, different intent, same crime.

[00:55:58] Speaker 03:
So it wouldn't matter that they had different intentions, wouldn't matter if they were charged in different counts.

[00:56:04] Speaker 03:
And in fact, the shots to the Kia especially make that point because

[00:56:10] Speaker 03:
We have the shot, the slatted shot to the driver.

[00:56:14] Speaker 03:
We have Ridgway's shot to the passenger.

[00:56:17] Speaker 03:
That's all one crime.

[00:56:18] Speaker 03:
And then the others come in and shoot.

[00:56:20] Speaker 03:
It would make no sense to have the shooting of the driver within seconds of the shooting of the passenger somehow have to be in different courts, one in Tennessee, one somewhere else.

[00:56:34] Speaker 03:
That would defeat the purpose of the statute.

[00:56:36] Speaker 03:
And just to go onto the question of Ridgway's arrest, he was arrested in connection with all accounts of conviction.

[00:56:44] Speaker 03:
As Judge Rogers notes, the warrant that accompanied the affidavit, the warrant was accompanied by an FBI agent affidavit and Ridgway's proffer.

[00:56:53] Speaker 03:
And in it, Ridgway says that the shooting in Nisar Square, he explains the whole thing.

[00:56:58] Speaker 03:
He explains that he shot into the Kia, along with others, and that

[00:57:03] Speaker 03:
Also, with at least five others in the convoy, he opened fire on unarmed civilians in and around the square.

[00:57:11] Speaker 03:
That's at page 2001.

[00:57:12] Speaker 03:
So he was, as Judge Rabina found, arrested in connection with the crimes that the defendants also stood trial for.

[00:57:19] Speaker 03:
But he was arrested here because he actually came here, correct?

[00:57:25] Speaker ?:
Yes.

[00:57:27] Speaker 03:
If in fact the government can decide where the arrest is made because they can ask a cooperating witness to do whatever they want them to do, doesn't the effect of that mean that the

[00:57:44] Speaker 03:
that the government can actually choose a favorable forum because they can ask the person to surrender wherever they think it would work best for them.

[00:57:53] Speaker 03:
Well, in fact, 3238 is written that way.

[00:57:57] Speaker 03:
So you think that's the purpose of that statute?

[00:58:00] Speaker 03:
The purpose of the statute is to, the statute venues

[00:58:04] Speaker 03:
a crime where the joint offender is arrested.

[00:58:08] Speaker 03:
And yes, and by giving, and by making that policy judgment, by saying that a case is venued wherever a joint offender is arrested or first brought, to a certain extent, to a large extent, the statute does give the choice of venue.

[00:58:23] Speaker 03:
It puts it in the government's hands.

[00:58:25] Speaker 03:
That's the way the statute is written.

[00:58:27] Speaker 03:
And you know, the whole question, we had to venue the statute

[00:58:32] Speaker 03:
I mean, this is very different than the manipulated venue idea.

[00:58:36] Speaker 03:
We had to venue the case where a joint offender is arrested.

[00:58:42] Speaker 03:
So it's not like we're manipulating venue to be in a particular place.

[00:58:45] Speaker 03:
Well, no, it's exactly like you're manipulating venue because he lived in California.

[00:58:51] Speaker 03:
You could have arrested him in California, but you in fact directed him to come here.

[00:58:56] Speaker 03:
So you are manipulating where he's being arrested.

[00:58:59] Speaker 03:
But the statute doesn't tell us where we have to arrest him.

[00:59:04] Speaker 03:
I know it doesn't.

[00:59:04] Speaker 03:
You're right about that.

[00:59:05] Speaker 03:
It's very broadly written.

[00:59:06] Speaker 03:
It's very broadly written and in fact there are cases that say we don't have to go.

[00:59:11] Speaker 03:
to where there is no right there's no right to be arrested in any particular place and as a defensive they in fact Surrendered themselves.

[00:59:20] Speaker 03:
There's nothing in the statute that there is a difference here because ordinarily you have a place where the crime occurred and

[00:59:27] Speaker 03:
And that creates its own limitation.

[00:59:32] Speaker 03:
But when you're talking about extraterritorial jurisdiction, you will never have that limitation.

[00:59:37] Speaker 03:
So then it becomes completely just up to the government where they would like to have it.

[00:59:43] Speaker 03:
Well, that is how this statute was written.

[00:59:46] Speaker 03:
And the Constitution, in fact, says for overseas crimes, the venue shall lie wherever Congress places it.

[00:59:53] Speaker 03:
And Congress decided here to

[00:59:56] Speaker 03:
to give, in fact, in some way, to give the government wide latitude by saying it should be where the joint offender is arrested.

[01:00:05] Speaker 03:
It didn't limit in any way where that should be.

[01:00:07] Speaker 03:
And there is no right to be tried in your home district.

[01:00:10] Speaker 03:
That was the policy judgment that the Congress made.

[01:00:13] Speaker 03:
But the whole idea here is, and the whole manufactured venue idea, really gets down to a question of fundamental fairness and whether this is fair.

[01:00:21] Speaker 03:
And there was no reason to think that these defendants couldn't have a fundamentally fair trial in the District of Columbia.

[01:00:28] Speaker 03:
First of all, DC was the natural place for this case to be investigated and tried when it came in.

[01:00:34] Speaker 03:
It was a very high-profile case.

[01:00:35] Speaker 03:
Maine Justice assigned it to the US Attorney's Office in DC because it has a very experienced national security section to do it in tandem with the National Security Division over in Maine Justice.

[01:00:47] Speaker 03:
So this was a very natural place for this case to be tried.

[01:00:51] Speaker 03:
And again, as Judge Urbina found, when we were looking at the idea of fundamental fairness, there wasn't anything unfair here.

[01:00:57] Speaker 03:
In fact, DC was closer for three of the defendants, their friends, their family, their support system, than was Salt Lake.

[01:01:06] Speaker 03:
For one of them, it was about the same distance.

[01:01:09] Speaker 03:
They had DC counsel.

[01:01:12] Speaker 03:
It was clearly going to be a case where there were going to be a lot of foreign witnesses.

[01:01:16] Speaker 05:
airports accommodated that and also the defense and state department witnesses were here too so so technically there can be no manipulated venue under the statute is that your argument i mean when a defendant have to show

[01:01:33] Speaker 05:
Placing venue in one place as another prejudiced his ability to present a defense because certain witnesses were unavailable.

[01:01:42] Speaker 03:
You know, no court has ever accepted this manufactured venue idea.

[01:01:47] Speaker 03:
No one has ever taken that on.

[01:01:49] Speaker 03:
And in fact, other courts have said if the problem here is

[01:01:52] Speaker 03:
sort of impermissible foreign shopping, the best thing that a defendant should do is make a transfer request to go to another district, and he can make the showing in the interest of justice.

[01:02:04] Speaker 03:
But as Judge Urbina said, that probably wouldn't have even worked here.

[01:02:07] Speaker 03:
Now again, they have to, you know, the transfer provision is there to help safeguard the defendant's right, if the government really is putting venue in a place that is a great hardship to him.

[01:02:23] Speaker 03:
There are no more questions.

[01:02:25] Speaker 03:
We ask you to affirm these convictions and sentences.

[01:02:28] Speaker 04:
All right, thank you.

[01:02:30] Speaker 04:
Madam Kirk, do you want to set the clock at five minutes or reply?

[01:02:59] Speaker 01:
Thank you, Your Honors.

[01:03:01] Speaker 01:
Some quick points about media.

[01:03:02] Speaker 01:
I heard some pretty important concessions by the government in response to Judge Brown's question.

[01:03:08] Speaker 01:
Government counsel said any State Department contractor would have been covered by the statute at this time.

[01:03:13] Speaker 01:
So they answered our question.

[01:03:14] Speaker 01:
The food service contractor employed by the Armed Forces.

[01:03:17] Speaker 01:
It shows how absurd their interpretation is.

[01:03:20] Speaker 01:
Number two, they said the Interior Department employee who would be working on the dam would be covered by Mijin.

[01:03:28] Speaker 01:
By the same interpretation, the Justice Department lawyers who were present working out of the embassy on rule of law and constitution issues were employed by the armed forces for Mijin.

[01:03:40] Speaker 01:
That cannot be the result that Congress intended.

[01:03:43] Speaker 01:
And what is it based on?

[01:03:44] Speaker 01:
What is this powerful evidence of DOD's mission in Iraq?

[01:03:48] Speaker 01:
It's the testimony of one neighborhood commander, Colonel Michael Tarsa.

[01:03:53] Speaker 01:
And if you boil down what he said, he said his unit's missions were to take out the insurgency.

[01:03:59] Speaker 01:
They cleared houses.

[01:04:00] Speaker 01:
They killed or captured the bad guys.

[01:04:02] Speaker 01:
And after they did that, yes, they secured the neighborhoods.

[01:04:05] Speaker 01:
These micro-grants that they handed out were giving cash to people to try to keep the insurgency out of the neighborhoods.

[01:04:12] Speaker 01:
That was still a distinctly military mission.

[01:04:16] Speaker 01:
And another point I take issue with that government counsel raised is they said there was no dispute at trial that diplomatic security was the State Department's mission.

[01:04:25] Speaker 01:
Well, that is not in fact what the government argued in its closing argument.

[01:04:29] Speaker 01:
And this is why, a point I didn't get to in my opening remarks, it was fundamental error for the court not to instruct on the Diplomatic Security Act.

[01:04:37] Speaker 01:
In the government's closing, they argued twice.

[01:04:40] Speaker 01:
by invoking Colonel Tarsa's testimony that guarding diplomats, that providing diplomatic security was our mission, was the State Department's mission – excuse me, the Defense Department's mission.

[01:04:51] Speaker 01:
And that's at the Appendix 3268, where the prosecutor characterizing Tarsa said, it was a bit sidetracked when we didn't have blackwater here because we had to dedicate two or three platoons to provide those protective services.

[01:05:04] Speaker 01:
And so we were doing everything.

[01:05:06] Speaker 01:
That was our mission.

[01:05:08] Speaker 01:
Judge Lamberth injected the same confusion on this issue when he questioned Gordon England during his testimony.

[01:05:16] Speaker 01:
In direct, leading questions, he asked England, wasn't there a military mission to guard diplomats through the Marine Security Guard program?

[01:05:24] Speaker 01:
And he got England to answer that question.

[01:05:27] Speaker 01:
the exact position he took during our jury charge conference, where he denied our request to instruct in the Diplomatic Security Act.

[01:05:33] Speaker 01:
He said, I don't believe that that's the State Department's responsibility.

[01:05:36] Speaker 01:
Well, in fact, it is.

[01:05:38] Speaker 01:
Undisputably, the government doesn't take issue with it now.

[01:05:40] Speaker 01:
The Diplomatic Security Statute says, by law, that was State's responsibility.

[01:05:45] Speaker 01:
We didn't get the opportunity to argue that to the jury because the judge refused to instruct on it.

[01:05:51] Speaker 01:
The government says, well, you did get the opportunity to argue based on England's testimony.

[01:05:54] Speaker 01:
Well, the Supreme Court has said there's a difference between argument and instruction by the judge.

[01:05:59] Speaker 01:
All we could argue were the facts.

[01:06:01] Speaker 01:
We couldn't even argue that, by law, diplomatic security is the responsibility of the State Department.

[01:06:07] Speaker 01:
So the failure, if nothing else, if you don't accept any of our other arguments on media, the District Court's failure to instruct on the Diplomatic Security Act was a reversible error that requires new trial.

[01:06:20] Speaker 01:
I guess the last point I'll make has to do with venue.

[01:06:23] Speaker 01:
And I just want to make sure we're clear on this.

[01:06:25] Speaker 01:
The jury was instructed on aiding and abetting, but only as an option for conviction.

[01:06:31] Speaker 01:
They were not required to find aiding and abetting in order to convict.

[01:06:34] Speaker 01:
And we don't know, due to the general verdict and the lack of the special verdict form, whether in fact they found direct liability or aiding and abetting.

[01:06:42] Speaker 01:
So it's no answer.

[01:06:43] Speaker 01:
to the joint offender question to say that aiding and abetting was an option for the jury under this court's precedent.

[01:06:50] Speaker 01:
The jury was still required to find count by count that there was a joint offender in Jeremy Ridgeway.

[01:06:57] Speaker 01:
So had they been instructed

[01:06:58] Speaker 01:
that you could find venue if you find that Jeremy Ridgeway aided and abetted a particular defendant on a particular account.

[01:07:05] Speaker 01:
We might be in a different situation, but that's not what happened here.

[01:07:08] Speaker 01:
The judge directed a verdict for the government on the hotly disputed venue issue, and I didn't get to arrest either during my opening remarks, but those issues were just as contested.

[01:07:18] Speaker 01:
The only evidence before the jury was the testimony of Jeremy Ridgeway in the arrest warrant.

[01:07:24] Speaker 01:
that he wasn't even handcuffed.

[01:07:29] Speaker 01:
He was never detained.

[01:07:30] Speaker 01:
The agent dangled the handcuffs in front of him after allowing him to voluntarily travel here and return home right after his plea, which he acknowledged he would have done had the government just asked him to do so.

[01:07:41] Speaker 01:
We were entitled to argue to the jury based on Ridgway's

[01:07:45] Speaker 01:
unbelievably impeached credibility that he was making that up to.

[01:07:49] Speaker 01:
That he was not, in fact, arrested or ever restrained of his liberty in connection with the offenses here.

[01:07:54] Speaker 01:
And by taking that issue away from the jury, the judge denied us a fair trial.

[01:07:58] Speaker 01:
We ask the court to reverse the convictions, grant judgments of acquittal in favor of the defendants, or at an absolute minimum, grant a new trial.

[01:08:06] Speaker 04:
Thank you.

[01:08:07] Speaker 01:
Thank you.

[01:08:56] Speaker 04:
Mr. Simeone, good morning.

[01:08:58] Speaker 00:
May it please the court?

[01:08:59] Speaker 00:
I'm Tim Simeone, representing Nicholas Slatton.

[01:09:03] Speaker 00:
There are three argues I plan to address.

[01:09:06] Speaker 00:
I'm going to start with the insufficiency issue.

[01:09:11] Speaker 00:
As the court's aware, Mr. Slatton was convicted on a single count of killing Mr. Al-Rubyai, who was the driver of the white Kia in Nisour Square.

[01:09:24] Speaker 00:
But at trial, two Iraqi police officers, who were standing about as close to the Blackwater vehicles as I am to you, testified that they saw the turret gunners up on top of those vehicles, and not Mr. Slatin, who was seated inside a vehicle.

[01:09:43] Speaker 00:
They saw those turret gunners fire the very first shots in this incident.

[01:09:49] Speaker 00:
and they testified that they immediately saw that those shots had hit Mr. Al-Rubyahi in the face and killed him.

[01:09:58] Speaker 00:
In addition, Mr. Ridgeway, who was one of those turret gunners,

[01:10:04] Speaker 00:
testified that he saw another turret gunner, Mr. Slatt, fire the very first shots in this incident that killed Mr. Al-Rubyadi.

[01:10:14] Speaker 00:
So Mr. Slatton's insufficiency argument boils down to the claim that the testimony of these three eyewitnesses at least raises a reasonable doubt about whether Mr. Slatton killed Mr. Al-Rubyadi.

[01:10:31] Speaker 00:
This court has held, in cases like US v. Wilson and US v. Law, that reasonable doubt exists as a matter of law when there's an equally plausible, if not more plausible, account than the government's theory under which the defendant is not guilty.

[01:10:51] Speaker 00:
In that situation this court has held, the government has the burden to come forward with evidence that's sufficient to dispel the reasonable doubt that's been raised.

[01:11:04] Speaker 00:
Here, we think that the eyewitness testimony that someone else shot Mr. Al-Rubyani wasn't just equally plausible.

[01:11:14] Speaker 00:
The overwhelming weight of the evidence at trial supports that conclusion.

[01:11:19] Speaker 00:
Now the government does of course attempt to dispel the reasonable doubt, and it relies primarily on the testimony of Mr. Watson.

[01:11:33] Speaker 00:
The government's theory, of course, was that the very first shots in this encounter killed Mr. Al-Rubyati and that Mr. Slatin fired those very first shots.

[01:11:45] Speaker 00:
The government argues that Mr. Watson testified that Mr. Slatin fired those very first shots in the encounter.

[01:11:54] Speaker 00:
But that's not what Mr. Watson said.

[01:11:58] Speaker 00:
Both at the grand jury and at trial,

[01:12:01] Speaker 00:
Mr. Watson testified that he heard several pops or shots outside the vehicle where he and Mr. Slatton were seated before he heard Mr. Slatton fire his sniper rifle and the big mounted machine guns up on top of the vehicles began to fire.

[01:12:23] Speaker 00:
The government has never even acknowledged those initial pops or shots that Mr. Watson heard.

[01:12:32] Speaker 00:
But the Iraqi police officers, of course, they specifically testified that they not only heard, but they saw those shots, those initial pops, and that they came from the turret gunners.

[01:12:48] Speaker 00:
Mr. Watson's testimony is entirely consistent with the testimony of the Iraq police officers.

[01:12:59] Speaker 00:
First, the turret gunners fired several shots from their handheld rifles.

[01:13:04] Speaker 00:
Then there was a pause.

[01:13:06] Speaker 00:
Mr. Al Hamidi, one of the police officers, testified that during that time he ran to the white Kia and he saw that the driver had been shot.

[01:13:17] Speaker 00:
But then after that happened, Mr. Watson testifies.

[01:13:23] Speaker 00:
Mr. Slatin's sniper rifle and those big machine guns started going off, and hot brass started to come down into the vehicle where he was.

[01:13:35] Speaker 00:
But because Mr. Watson's testimony is consistent with that of the Iraqi police officers, we don't think it inculpates Mr. Slatin.

[01:13:44] Speaker 00:
But you don't have to agree with us about that in order for Mr. Slatin to prevail on insufficiency.

[01:13:52] Speaker 00:
The insufficiency issue here isn't the usual issue about whether the inculpatory testimony sort of in a vacuum is sufficient to justify a conviction.

[01:14:06] Speaker 00:
The insufficiency issue in this case

[01:14:09] Speaker 00:
is about whether the limited inculpatory evidence that the government has claimed to sort of cobble together, is that inculpatory evidence enough under law and Wilson to overcome the overwhelming exculpatory evidence for purposes of the reasonable doubt standard?

[01:14:30] Speaker 04:
Can I ask you a question about the rifle that your client had?

[01:14:34] Speaker 04:
Was it not unique?

[01:14:37] Speaker 00:
It was unique, and in fact, Mr. Kruger, who is an individual riding in the vehicle ahead of Mr. Slatin, testifies that the very first two shots of the incident definitely weren't from Mr. Slatin's rifle, because Mr. Slatin's rifle fires a larger round, and it sort of booms as opposed to popping.

[01:14:59] Speaker 00:
So it was unique.

[01:15:01] Speaker 04:
So the round is unique as well?

[01:15:03] Speaker 00:
The round wasn't unique among all the guns, but it was distinguishable from the turret gunner's handheld rifles.

[01:15:12] Speaker 00:
They shot a smaller round that sort of pops, and Mr. Slatton's rifle was a much larger caliber rifle that booms.

[01:15:21] Speaker 04:
So that the round that hit the Kia driver was not

[01:15:27] Speaker 04:
was not automatically from a unique gun.

[01:15:30] Speaker 00:
Well, it's very important, Your Honor, in this case, that there are no forensics at all tying any particular round to any particular death.

[01:15:38] Speaker 00:
In fact, the only round that was found in the KIA was removed from the steering wheel, and it matched the turret gunner's handheld rifles, not Mr. Slatton's rifle.

[01:15:49] Speaker 00:
Now, as I was saying, I think that the nature here

[01:15:57] Speaker 00:
of the analysis is unusual because we're not just looking at whether there's enough inculcatory evidence to justify a conviction in a vacuum.

[01:16:06] Speaker 00:
We're doing what U.S.B.

[01:16:07] Speaker 00:
Wilson and U.S.B.

[01:16:09] Speaker 00:
Law instruct.

[01:16:10] Speaker 00:
We're figuring out if the government has come forward with enough evidence to dispel the reasonable doubt.

[01:16:17] Speaker 00:
And we think it's a heavy burden to dispel the doubt raised by two police officers, two eyewitnesses who are police officers, testifying that they actually saw somebody else commit the crime that the defendant is accused of.

[01:16:36] Speaker 00:
In this case,

[01:16:39] Speaker 00:
As a practical matter, the line drawing problem that we often have in insufficiency cases is absent.

[01:16:48] Speaker 00:
Usually we have to struggle with the question, well, is there enough evidence?

[01:16:52] Speaker 00:
Is there not enough evidence?

[01:16:53] Speaker 00:
How do we know?

[01:16:54] Speaker 00:
How will the line that we draw here affect future cases?

[01:16:58] Speaker 00:
I don't think that those issues are problems in this case.

[01:17:04] Speaker 00:
It's an extremely unusual case where it just as a practical matter doesn't happen that police officers called by the government to testify come in and exculpate the defendant.

[01:17:17] Speaker 00:
This is a case that will not be repeated.

[01:17:21] Speaker 00:
I do want to just quickly touch on the other evidence that the government relies on besides Mr. Watson's testimony.

[01:17:30] Speaker 00:
The government relies on the testimony of an individual named Mr. Randall, who was in the vehicle behind that where Mr. Slatin was.

[01:17:44] Speaker 00:
Mr. Randall testified that he heard shots from in front of him.

[01:17:49] Speaker 00:
And there's a colloquy in the appendix where it becomes clear that he's not sure where they came from.

[01:17:55] Speaker 00:
He's not sure who fired them.

[01:17:58] Speaker 00:
All he knows is they were in front of him.

[01:18:00] Speaker 00:
So the government invited the jury to speculate about who fired those shots.

[01:18:05] Speaker 00:
But there's no evidence of who fired those shots.

[01:18:08] Speaker 05:
I thought the government cited his testimony for the fact that he said the shots didn't come from the turret.

[01:18:15] Speaker 05:
in the vehicle in front of him?

[01:18:18] Speaker 00:
I'm honestly not sure if the government makes that point or not.

[01:18:22] Speaker 00:
I can tell you that it's not what Mr. Randall said.

[01:18:25] Speaker 00:
What Mr. Randall said was he was asked, did you see anything in particular about Mr. Slough's position that made you think that he had fired?

[01:18:34] Speaker 00:
Was he leaning over a gun?

[01:18:36] Speaker 00:
And Mr. Randall said, I didn't see anything in particular about him.

[01:18:40] Speaker 00:
In fact, I couldn't even tell you what his position was.

[01:18:43] Speaker 00:
Mr. Randall explained that his responsibility wasn't to be looking up at the target gunners.

[01:18:49] Speaker 00:
His responsibility, as came up in the argument earlier this morning, was to be examining a particular field of view and looking for threats.

[01:19:02] Speaker 00:
The other piece of evidence, or what the government claims is a piece of evidence on which they rely, and maybe the only other thing on which they rely, is Mr. Slotin's own statement to another member of the team after the incident that he had shot someone.

[01:19:22] Speaker 00:
This has the same problem as Mr. Randall's testimony.

[01:19:29] Speaker 00:
The government simply invited the jury to speculate about who Mr. Slatton shot.

[01:19:34] Speaker 00:
There's simply no evidence.

[01:19:36] Speaker 00:
He did say that he shot someone, and there's absolutely no evidence that it was the individual with whom he was charged with killing.

[01:19:48] Speaker 00:
Our basic point here is one under USV law and USV Wilson.

[01:19:56] Speaker 00:
To the extent that there's an innocent explanation here that's at least as compelling as the possibility that Mr. Slatin might have shot Mr. Al-Rubyati, it was the government's burden to come forward and dispel that reasonable doubt.

[01:20:13] Speaker 00:
And they simply couldn't do that here and did not.

[01:20:18] Speaker 00:
If there are no questions, I would move.

[01:20:20] Speaker 00:
As your honors are aware, there are sealed materials in the case.

[01:20:24] Speaker 00:
I intend for the convenience of the court to try to skip that issue for now and come back to it in the sealed session.

[01:20:34] Speaker 00:
So I'm going to move to vindictive prosecution.

[01:20:42] Speaker 00:
So the most important point I want to make here on vindictive prosecution is simply that the government argues this issue as if Mr. Slotten can prevail only if he shows actual vindictiveness.

[01:20:57] Speaker 00:
And that's just wrong.

[01:20:58] Speaker 00:
Cases like Blackledge and Thigpen in the Supreme Court, cases like the Meyer case and the Jameson case in this court, don't have to do with actual vindictiveness, with proving that the prosecutor actually had it in for you.

[01:21:12] Speaker 00:
Those cases are about whether there was a reasonable apprehension of vindictiveness that would chill future defendants in a similar situation from exercising their rights.

[01:21:25] Speaker 00:
So this court has a two-step analysis for that kind of situation that the government simply doesn't even go through.

[01:21:33] Speaker 00:
The analysis is to look at the totality of the circumstances under Meyer to see whether there's a realistic likelihood of vindictiveness.

[01:21:44] Speaker 00:
And if there is a realistic likelihood of vindictiveness,

[01:21:48] Speaker 00:
then the defendant is entitled to a presumption of vindictiveness.

[01:21:53] Speaker 00:
And the government needs to come forward with objective evidence, as this court explained in Jameson, for example, with objective evidence justifying the increased charge.

[01:22:05] Speaker 00:
So again, the government here just doesn't engage in that analysis.

[01:22:10] Speaker 03:
Do you think the burden is different when

[01:22:14] Speaker 03:
the claim arises pretrial rather than after trial?

[01:22:19] Speaker 00:
Well, this, Your Honor, is actually exactly the issue that was addressed in Meyer.

[01:22:24] Speaker 00:
In Meyer, the government argued that after the Goodwin case from the Supreme Court, that the burden is different.

[01:22:34] Speaker 00:
In fact, though, in Meyer itself,

[01:22:37] Speaker 00:
this court rejected the position that the government takes here, that the prosecutor pre-trial has free reign to change the charge if the prosecutor wants.

[01:22:50] Speaker 00:
So under Meyer, this court looks at all the circumstances, pre-trial or not, to determine, based on the totality of the circumstances, whether there's a realistic likelihood of vindictiveness.

[01:23:06] Speaker 00:
So here, of course, those circumstances include the government's repeated claims before both the district court and this court that Mr. Slatton's statute of limitations argument was frivolous, that it was a desperate ploy.

[01:23:25] Speaker 00:
It wasn't until after the government lost that issue on mandamus in this court and then was rebuked by the court in the rehearing decision

[01:23:35] Speaker 00:
It wasn't until after that that the government decided to opt the charge against Mr. Slotten by two steps.

[01:23:45] Speaker 00:
Of course, there are lots of other circumstances that are relevant to the totality of the circumstances here.

[01:23:51] Speaker 00:
There's the fact that the government had investigated for six years, had two lengthy investigations with two different teams, had twice charged Mr. Slotten with manslaughter.

[01:24:01] Speaker 00:
The government also admitted before the district court that the manslaughter case against Mr. Slotten was weaker than the manslaughter case against the other defendants.

[01:24:10] Speaker 00:
And especially important, I think, the government had specifically said to the district court at the time of the

[01:24:20] Speaker 00:
of raising the charge against Mr. Schlatton, that that new charge wasn't based on any new evidence at all.

[01:24:26] Speaker 00:
It was not based on any change in the law at all.

[01:24:29] Speaker 00:
The government planned to present exactly the same evidence in connection with the first-degree murder charge.

[01:24:37] Speaker 05:
So going back to your analysis of this two-part inquiry,

[01:24:43] Speaker 05:
Once the perception arises, then what happens under Myers?

[01:24:48] Speaker 00:
So the second part of the analysis is that the burden shifts to the government.

[01:24:55] Speaker 05:
So the government has to come forth with explanation.

[01:24:58] Speaker 00:
What Jameson called an objective reason, yes.

[01:25:04] Speaker 05:
And if it does that, then what happens?

[01:25:08] Speaker 00:
Well, there are cases in which, for example, Sefavian is a case from this court where the court found that the government was able to overcome the presumption.

[01:25:18] Speaker 00:
There was a presumption, but the government was able to overcome it.

[01:25:22] Speaker 00:
Now, it's worth noting here that the government doesn't seriously argue that it did.

[01:25:26] Speaker 00:
It doesn't even advance the explanation for what would overcome the presumption.

[01:25:32] Speaker 05:
So do you read Myers to say that if the government

[01:25:36] Speaker 05:
comes forth with an objective explanation.

[01:25:41] Speaker 05:
Then the burden shifts back to the defendant to show actual vindictiveness.

[01:25:50] Speaker 00:
Well, I think that would really be a separate path, Your Honor.

[01:25:52] Speaker 00:
We didn't argue that there was actual vindictiveness in the sense of mean-spirited subjective desire on the part of the prosecutor to get Mr. Slott.

[01:26:08] Speaker 00:
That's not what this is about.

[01:26:10] Speaker 00:
As I said at the beginning of the argument, this is really about

[01:26:15] Speaker 00:
simply determining whether the presumption applies and whether the government can overcome it.

[01:26:21] Speaker 00:
I think maybe what Your Honor is getting at is what sorts of things would overcome the presumption.

[01:26:27] Speaker 05:
Actually, I was getting at your analysis and understanding of Meyer.

[01:26:32] Speaker 05:
Because here, the government could argue and did argue that after the first appeal in this case, the only charge available to it

[01:26:46] Speaker 05:
that wasn't barred by the statute of limitations was first degree murder.

[01:26:54] Speaker 00:
Yes.

[01:26:55] Speaker 05:
So if that is viewed under Jameson as an objective explanation, then

[01:27:06] Speaker 05:
I was asking you, what is your understanding of Meyer?

[01:27:10] Speaker 00:
Well, so my answer, Your Honor, is that that is not, under this Court's cases, the kind of objective explanation that overcomes the presumption.

[01:27:21] Speaker 05:
So what do you think an objective explanation would be?

[01:27:24] Speaker 00:
I think this court's cases give very good guidance on that issue.

[01:27:28] Speaker 00:
So looking back to Jameson, the court identified, for example, a situation where the elements of the crime, the higher charge, had not yet been completed at the time of the initial charge.

[01:27:41] Speaker 00:
The court in Jameson also.

[01:27:45] Speaker 05:
Goodwin basically does away with that, though.

[01:27:50] Speaker 05:
I mean the Supreme Court's case in Goodwin.

[01:27:53] Speaker 00:
Well, I think Goodwin is actually a very narrow, specific decision that addresses a situation where the defendant simply invokes the defendant's right to a jury trial.

[01:28:09] Speaker 00:
What Goodwin says is when the defendant invokes the defendant's right to a jury trial, it's unreasonable to accord the defendant a presumption that the government has acted vindictively when it then ups the charge.

[01:28:24] Speaker 00:
Goodwin explained it's simply not a reasonable understanding of the way the world works to think that the government's being vindictive just because a defendant has invoked the routine right to a jury trial.

[01:28:37] Speaker 00:
So here, of course, that's not an analogous situation to this case.

[01:28:43] Speaker 00:
Here, Mr. Slatton prevailed after a sort of hard-fought, mandamus battle.

[01:28:49] Speaker 00:
There's a whole, and of course, in Sefavian, the court found that merely prevailing on appeal is enough to justify the presumption.

[01:28:58] Speaker 00:
But there's a lot more than that here.

[01:29:01] Speaker 00:
So I don't think Goodwin is on point.

[01:29:04] Speaker 04:
Let me ask about Sefavian.

[01:29:06] Speaker 04:
It says, the showing required to overcome the presumption, which is on the government, is admittedly minimal.

[01:29:14] Speaker 04:
Any objective evidence justifying the prosecutor's actions will suffice.

[01:29:20] Speaker 04:
OK, the action here is changing the manslaughter to first degree murder.

[01:29:26] Speaker 04:
And then in Safavion, the courts considered

[01:29:31] Speaker 04:
objective evidence justifying that the change there was based on an adverse ruling of the court.

[01:29:40] Speaker 00:
So Safavion has in common, I think, with the Jameson concepts that I mentioned earlier.

[01:29:45] Speaker 00:
What happened in Safavion is this court allowed additional evidence to come into the case that the government had thought it wouldn't have to deal with.

[01:29:55] Speaker 00:
So based on a change to the evidence, the government appropriately adjusted the charge.

[01:30:02] Speaker 00:
The things that the court identified in Jameson and what happened in Safavion are all situations where the government's understanding of the evidence of the underlying case changes.

[01:30:13] Speaker 00:
And so it's perfectly appropriate for the government to change the charge.

[01:30:18] Speaker 04:
But they categorize it as an adverse ruling.

[01:30:21] Speaker 04:
And the government got an adverse ruling when you sort everything out.

[01:30:27] Speaker 04:
The manslaughter charge was time barred.

[01:30:30] Speaker 04:
So that was considered an adverse ruling by the court was considered objective evidence.

[01:30:35] Speaker 04:
And so I'm asking you why that isn't the same case here.

[01:30:39] Speaker 00:
Well, I think my answer is that Safavion doesn't say that any adverse ruling against the government justifies an increase in the charge.

[01:30:48] Speaker 00:
Safavion said that in this particular facts of that case, where new evidence was brought into the case,

[01:30:55] Speaker 00:
the government could change its charge and take account of that new evidence.

[01:30:59] Speaker 00:
That makes perfect sense.

[01:31:00] Speaker 00:
Here, there's nothing objective about the government's explanation.

[01:31:05] Speaker 00:
The government's explanation is the subjective claim that it raised the charge against

[01:31:13] Speaker 00:
that it raised a charge against Mr. Slatin, not based on his exercise of his rights, but because it was all they had left.

[01:31:22] Speaker 00:
But if we look at that claim in a different factual context, imagine, for example, a car accident, a two-car accident, where one of the drivers is killed.

[01:31:31] Speaker 00:
The government conducts a careful investigation, decides there wasn't a whole lot of fault, and charges some

[01:31:38] Speaker 00:
minor crime, reckless driving or something like that.

[01:31:44] Speaker 00:
The defendant successfully exercises his statute of limitations right such that first degree murder is the only charge left that the government can bring.

[01:31:55] Speaker 00:
If the government then charges first degree murder, going from reckless driving to first degree murder, and says, well, the only charge we had, that underscores vindictiveness.

[01:32:06] Speaker 00:
That doesn't suggest that there wasn't vindictiveness.

[01:32:08] Speaker 00:
I'm just saying it doesn't tell us either way here.

[01:32:12] Speaker 00:
When the government says, well, we actually did it to hold Mr. Slotten responsible.

[01:32:17] Speaker 00:
That's not an objective explanation.

[01:32:19] Speaker 00:
That could be true or it might not be true.

[01:32:21] Speaker 00:
When the government says we changed the charge to take account of the new evidence, that's an objective explanation.

[01:32:28] Speaker 00:
So I'm happy to answer more questions.

[01:32:32] Speaker 00:
I see I've taken a lot of time, and I would love to turn to the sealed materials, but obviously we'd need a close court.

[01:32:39] Speaker 04:
Well, you'll have a couple minutes to reply on these issues first.

[01:32:42] Speaker 00:
OK.

[01:32:42] Speaker 04:
All right, so.

[01:32:44] Speaker 00:
Thank you.

[01:32:45] Speaker 04:
Yeah, Mr. Lambert.

[01:32:55] Speaker 03:
As a preliminary matter on sufficiency, Mr. Sutton suggests that if the evidence could support either guilt or acquittal, that this court must reverse.

[01:33:07] Speaker 03:
But the rule here is the opposite of that.

[01:33:11] Speaker 03:
Consistently, since Judge Prediman's actually opinion in Curley to this court's more recent decision in Williams,

[01:33:19] Speaker 03:
The rule is this, if the evidence reasonably permits a verdict of guilt or acquittal, it's for the jury to decide.

[01:33:27] Speaker 03:
Of course we can't base a judgment on speculation, as in Wilson and Law, but that's not what we have here.

[01:33:33] Speaker 03:
This is not just speculation.

[01:33:35] Speaker 03:
But again, what this court has been very clear about is that if the evidence supports

[01:33:42] Speaker 03:
Guilt or acquittal, that's a jury question.

[01:33:46] Speaker 03:
I also want to say Slatin also cites a case, a Fifth Circuit case, Moreland, for this equipoise idea.

[01:33:52] Speaker 03:
But in fact, subsequently, in the in-bank decision in Vargas Ocampo, the Fifth Circuit explicitly abandoned any kind of equipoise rule as inconsistent with Jackson.

[01:34:05] Speaker 03:
But here, we have way more evidence.

[01:34:09] Speaker 03:
And this jury's verdict was amply supported.

[01:34:11] Speaker 03:
First place, there is really no dispute that the first shots from the convoy disabled the Kia driver, hit him, and set that car in motion.

[01:34:23] Speaker 03:
The real question here is who fired those first shots.

[01:34:27] Speaker 03:
And that's where we have Jimmy Watson, who was in the car with Slatton

[01:34:33] Speaker 03:
clearly identifies.

[01:34:35] Speaker 03:
Three times in the grand jury, that comes in as substantive evidence.

[01:34:38] Speaker 03:
Three times, he says, Slatton shot first.

[01:34:42] Speaker 03:
It was his clear recollection.

[01:34:43] Speaker 03:
He said he said nothing but the truth in the grand jury on the stand.

[01:34:47] Speaker 03:
So that's our testimony.

[01:34:48] Speaker 03:
Clear testimony, Slatton shot first.

[01:34:52] Speaker 03:
Against that, Slatton's main point are his two police officers, who say that they thought the first shots came from the turrets.

[01:35:03] Speaker 03:
That, of course, is inconsistent with what Watson said, but that's what the jury has to decide.

[01:35:09] Speaker 03:
But his claim now is that he is saying those accounts aren't the least bit inconsistent, because Watson heard shots from the convoy before Slatton shot.

[01:35:22] Speaker 03:
But Watson said no such thing.

[01:35:25] Speaker 03:
In fact, what he thought he heard

[01:35:28] Speaker 03:
was enemy fire.

[01:35:30] Speaker 03:
He's very clear about it.

[01:35:31] Speaker 03:
Those first shots did not come from the convoy.

[01:35:34] Speaker 03:
At pages 1990 to 01 in 1995, he said he first shot what he heard first sounded like Iraqi AK-47 fire in the distance.

[01:35:46] Speaker 03:
Now, 1993 and 94, he reiterates, up until that point, no one from Raven 23 had fired.

[01:35:53] Speaker 03:
He repeats it again at 1994 to 95.

[01:35:57] Speaker 03:
Nobody's firing when he hears those shots.

[01:36:00] Speaker 03:
When it comes to the convoy's first shots, Watson is clear.

[01:36:04] Speaker 03:
It was slap.

[01:36:06] Speaker 03:
And the jury had to choose between

[01:36:09] Speaker 03:
Watson and the two police officers.

[01:36:11] Speaker 03:
And they had very good reason to credit Watson, who was the professional right in the truck, over the two officers who were outside, clearly under the stress.

[01:36:20] Speaker 03:
In fact, it's pretty clear, demonstrably clear, that the officers' perceptions of who was shooting where were off.

[01:36:28] Speaker 03:
The officers also thought all four of the trucks were shooting.

[01:36:31] Speaker 03:
Not true.

[01:36:32] Speaker 03:
They thought that the helicopters were shooting.

[01:36:35] Speaker 03:
Also not true.

[01:36:36] Speaker 03:
So the jury could easily see that Watson had both the superior position and perception to see that the first shots were slackens.

[01:36:46] Speaker 03:
Also, Jeremy Ridgeway never said that Slough fired before Slatton did.

[01:36:51] Speaker 03:
You can look at all the sites in the defense brief, you'll never find Ridgeway saying that Slough shot first.

[01:36:59] Speaker 03:
In fact, what he says is when Slough fired, he heard the shots, he turned, then he saw Slough firing as the car was moving, which is completely consistent with Slatton having been the first shooter to set the car in motion.

[01:37:13] Speaker 03:
But it's not just Watson saying that, slattenshot first, that gets us where we need to be.

[01:37:22] Speaker 03:
Watson also said that, slattenshot exactly in the Kia's direction.

[01:37:28] Speaker 03:
And that after he shot, he yelled, white car, white car coming in.

[01:37:33] Speaker 03:
Now, most of the other defendants talked about shooting the Kia as it was moving.

[01:37:37] Speaker 03:
Only Slatton, the sharp shooter, shoots and then announces that the car is coming in, consistent with the idea that he is the one who set it in motion.

[01:37:47] Speaker 03:
He also said, he told Ridgway afterwards, he had talked to man's grave.

[01:37:52] Speaker 03:
which caused him to slump forward.

[01:37:54] Speaker 03:
Again, consistent with what happens if you were to be hit in the head behind the wheel of a car.

[01:38:01] Speaker 03:
And then we also have the considerable evidence of Slatin's animus toward the Iraqi people.

[01:38:09] Speaker 03:
Many of these men didn't like the Iraqis.

[01:38:13] Speaker 03:
But as a number of his teammates said, Slatin's hatred stood out even among this group.

[01:38:20] Speaker 03:
He called them animals, said their lives weren't worth anything.

[01:38:23] Speaker 03:
He boasted about killing them.

[01:38:25] Speaker 03:
He in fact bragged about killing them to get payback for 9-11.

[01:38:29] Speaker 03:
And he also boasted about shooting first, without provocation, to try to draw out fire, to start a fight.

[01:38:38] Speaker 03:
So all of that, the first shots from the convoy hitting the Kia driver.

[01:38:48] Speaker 03:
Watson identifying Slatton as the first shooter.

[01:38:52] Speaker 03:
Shots are fired exactly in the Kia's direction.

[01:38:55] Speaker 03:
White car, white car coming in announces Slatton after he fires.

[01:38:59] Speaker 03:
He had submission that he had popped a man's grave.

[01:39:02] Speaker 03:
And then his pledge to kill Iraqis to get payback for 9-11 and his history of unprovoked shootings.

[01:39:08] Speaker 03:
A reasonable jury could certainly see that all of that added up to guilt.

[01:39:23] Speaker 03:
On vindictive prosecution, the vindictive prosecution doctrine is grounded in a very basic idea.

[01:39:33] Speaker 03:
The government can punish someone for committing a crime, but we can't punish him for exercising her right.

[01:39:40] Speaker 03:
And that's why the test for vindictiveness follows from that.

[01:39:43] Speaker 03:
As this court has said, a charge is vindictive only if it is designed to penalize a defendant for invoking a legal right and rather than to vindicate society's interest in a prosecution.

[01:39:56] Speaker 03:
Now here, the district court found that Slatton didn't even raise a presumption or a reasonable likelihood of vindictiveness.

[01:40:04] Speaker 03:
That's the ruling that's under review here, not whether we rebutted or raised presumption.

[01:40:10] Speaker 03:
The district court found that Slatton did not even raise the likelihood of vindictiveness, and that is ruled, that is reviewed under this court's

[01:40:19] Speaker 03:
clearly erroneous standard.

[01:40:22] Speaker 03:
And as a district court found, the circumstances here show that the government did not bring the new charge to penalize or retaliate against Slatton for exercising his statute of limitations defense, but to vindicate the public's interest in this very important prosecution.

[01:40:36] Speaker 03:
This trial team has always believed from the beginning that Slatton is the one who, unprovoked, shot the Kia driver and set the car in motion.

[01:40:45] Speaker 03:
And that's why, in the 2013 indictment,

[01:40:48] Speaker 03:
They charged him alone with that shooting.

[01:40:51] Speaker 03:
Now, Slatin continually raises this idea that we thought that our manslaughter charge against Slatin was weak.

[01:40:59] Speaker 03:
That was the prior prosecutor in the prior case

[01:41:04] Speaker 03:
before Judge Urbina.

[01:41:05] Speaker 03:
And that was a case.

[01:41:09] Speaker 03:
And so that was when that comment was made about the prior indictment.

[01:41:14] Speaker 03:
This was an entirely new team put in place after this court reversed the district court's dismissal of the indictment.

[01:41:24] Speaker 03:
And so this was an entirely new team with new evidence, mainly

[01:41:28] Speaker 03:
Watson's grand jury testimony.

[01:41:31] Speaker 03:
So the whole question of what was weak back in 2008, quite different.

[01:41:36] Speaker 03:
This team was very much committed to the notion, the idea that Slatton is the one who hit the Kia driver first.

[01:41:45] Speaker 03:
So when our manslaughter charges were dismissed against Slatton, we had to regroup and reassess our options.

[01:41:52] Speaker 03:
And the only way we had to keep Slatton in the case was to charge him with first degree murder.

[01:41:59] Speaker 03:
That's our job.

[01:42:00] Speaker 03:
As Goodwin recognized, before trial, defendants often raise affirmative defenses.

[01:42:06] Speaker 03:
Like statute of limitations, they often move to dismiss indictments.

[01:42:11] Speaker 03:
Sometimes they win, and we lose.

[01:42:13] Speaker 03:
And sometimes we even lose in high profile, high public, high, high

[01:42:18] Speaker 03:
much publicized cases.

[01:42:20] Speaker 03:
But still, it's our job.

[01:42:22] Speaker 03:
Once that happens, we have to reassess and consider whether there are any other charges, if they're legitimate, that should be brought when we don't have our old ones any longer.

[01:42:33] Speaker 03:
And the Goodwin recognized that in that pretrial situation, it's just not realistic to assume that a charge is meant to penalize as opposed to vindicate society's interest in the prosecution.

[01:42:46] Speaker 03:
This is just nothing like a case like Meyer, where some 200 protesters outside the White House were arrested.

[01:42:52] Speaker 03:
were demonstrating without a permit.

[01:42:54] Speaker 03:
And they were all given the choice either to pay the $50 fine or to stand trial.

[01:43:00] Speaker 03:
And for those who decided to demand their trial right, the government increased the charges, including actually charges that carried jail time.

[01:43:08] Speaker 03:
And this court said that there was no legitimate or articulable reason for the increase in the charge other than to penalize those protesters for exercising their trial rights.

[01:43:18] Speaker 03:
Well, here, there is the most legitimate of reasons for to keep a prosecution alive, as opposed to letting someone who the government believed committed a terrible crime go free.

[01:43:32] Speaker 03:
To a couple of Mr. Slatton's claims, it just doesn't matter that the new charge was based on substantially the same evidence.

[01:43:39] Speaker 03:
That is exactly the case in Borden Kircher and Goodwin.

[01:43:44] Speaker 03:
In fact, that rule only makes sense because otherwise a prosecutor would have an incentive to bring all the charges against a person right at the beginning, and that doesn't benefit anybody.

[01:43:55] Speaker 03:
The question here is whether, viewed objectively, the government likely brought the murder charge only to punish Slatton for asserting his rights.

[01:44:03] Speaker 03:
or to punish him for killing the driver of the Kia, the district court found that it was the latter.

[01:44:11] Speaker 03:
And that ruling cannot be, or at least is not clearly erroneous.

[01:44:22] Speaker 04:
All right.

[01:44:22] Speaker 04:
OK, thank you.

[01:44:24] Speaker 04:
Thank you.

[01:44:25] Speaker 04:
Let's see.

[01:44:28] Speaker 04:
Why don't you take two minutes?

[01:44:31] Speaker 00:
I just want to very briefly address a couple of the government's claims about the record.

[01:44:36] Speaker 00:
With respect to what Mr. Ridgeway testified on 2129 of the appendix, he's asked, tell us, when is it that you first heard what you believe is gunfire?

[01:44:49] Speaker 00:
And he says, as we were rolling into the traffic circle, we were still moving.

[01:44:53] Speaker 00:
I hear automatic gunfire.

[01:44:54] Speaker 00:
Did you turn in the direction where the gunfire is coming from?

[01:44:57] Speaker 00:
Yes, sir, I did.

[01:44:58] Speaker 00:
What did you see?

[01:44:59] Speaker 00:
I observed Paul Slough firing.

[01:45:02] Speaker 00:
Which weapon was he firing?

[01:45:03] Speaker 00:
He was firing his handheld rifle.

[01:45:05] Speaker 00:
It's unambiguously Mr. Ridgway's testimony that Mr. Slough fired first.

[01:45:11] Speaker 00:
The other thing I would say about that is the government now, today, for the first time, actually acknowledged that Mr. Watson said he heard shots before Mr. Slatton fired.

[01:45:24] Speaker 00:
But the government now says, oh, that was enemy fire.

[01:45:27] Speaker 00:
There are five pages in the government's brief dedicated to the proposition that there was no enemy fire here.

[01:45:35] Speaker 00:
Now, these are individuals who were sitting inside of vehicles with head gear, ear protection on.

[01:45:42] Speaker 00:
It's entirely possible that Mr. Watson was mistaken that it was enemy fire.

[01:45:49] Speaker 00:
And in fact, the government urged that position at length and in detail before the trial court and here.

[01:45:55] Speaker 00:
What's not possible is that there were no shots before Mr. Slotten fire.

[01:46:01] Speaker 00:
That's clear.

[01:46:03] Speaker 00:
That's all I have.

[01:46:04] Speaker 04:
All right.

[01:46:06] Speaker 04:
We'll go ahead and close this.