UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

 

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UNITED STATES OF AMERICA )
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v. ) Criminal Case No. 14-107 (RCL)
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NICHOLAS A. SLATTEN, )
Defendant. )
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)
MEMORANDUM OPINION

 

Before the Court is defendant Nicholas Slatten’s motion in limine to exclude evidence of
post-Kia shootings and victims. ECF No. 716. Mr. Slatten argues that the evidence should be
excluded because it is irrelevant and unduly prejudicial Upon consideration of the pleadings, the
oral representations of both parties at the hearing on May 9, 2018, the relevant legal authorities,
and the entire record in this case, the Court DENIES Mr. Slatten’s motion.

I. BACKGROUND

As this case has been summarized on numerous occasions-including recently by the Court
of Appeals in Unz`ted States v. Slatten, 865 F.3d 767, 810-l l (D.C. Cir. 2017)~the Court will only
offer a brief outline of the factual and procedural background, With a focus on the facts most
relevant to Mr. Slatten’s motion in limine.

Mr. Slatten and his former codefendants were security contractors for Blackwater
Worldwide (“Blackwater”) in 2007, at Which time Blackwater provided security services to the
U.S. State Department in Iraq. Mr. Slatten and his former codefendants Were members of Raven
23, a Blackwater support team. On September 16, 2007, Raven 23 Was called upon to assist in

evacuating a U.S. diplomat in Baghdad. In the course of that mission, the Raven 23 team attempted

to “lock down” Nisur Square, a traffic circle in downtown Baghdad. ln doing so, at least 32 Iraqi
civilians were injured or killed.

At the first trial, the government proved that Mr. Slatten fired the first shots that day at the
head of the driver of the white Kia sedan, Ahmed Haithem Ahmed Al Rubia’y, who died as a
result. The jury found Mr. Slatten guilty of first-degree murder, the sole charge filed against him
at the first trial. The jury also found his codefendants guilty on separate manslaughter and
attempted manslaughter charges for an additional 30 deceased or wounded victims. Mr. Slatten
appealed and on August 4, 2017, the D.C. Circuit vacated his conviction, finding that the Court
erred in not allowing Mr. Slatten to introduce hearsay statements by his codefendant in a separate
trial. Slatten, 865 F.3d at 810_11. The government is now retrying Mr. Slatten on the same single-
count lndictment for first-degree murder.
II. LEGAL STANDARD

While neither the Federal Rules of Criminal Procedure nor the Federal Rules of Evidence
expressly provide for motions in limine, the Court may allow such motions “pursuant to the district
court's inherent authority to manage the course of trials.” Luce v. Um`ted States, 469 U.S. 38, 41
n. 4 (1984). Motions in limine are “‘designed to narrow the evidentiary issues for trial and to
eliminate unnecessary trial interruptions.”’ Graves v. District of Columbia, 850 F.Supp.Zd 6, 10
(D.D.C. 2011) (quoting Bradley v. Pittsburgh Bd. ofEduc., 913 F.Zd 1064, 1070 (3d Cir. 1990)).
The Court has the “discretion to rule in limine or to await developments at trial before ruling.”
Graves v. District of Columbia, 850 F.Supp.2d 6, 11 (D.D.C. 2011) (citing Stephen A. Saltzburg et
al., FEDERAL RULES OF EVIDENCE MANUAL § 103.02[13] (9th ed. 2006)). And “in some

instances it is best to defer rulings until trial, [when] decisions can be better informed by the

context, foundation, and relevance of the contested evidence within the framework of the trial as
a whole.” Casares v. Bernal, 790 F.Supp.2d 769, 775 (N.D.Ill.2011) (citation omitted).
III. DISCUSSION

Mr. Slatten seeks to exclude all evidence “relating to alleged shooting and victims in Nisur
Square after the shooting of the white Kia.” 14-cr~107, ECF No. 716 at 1. He does not articulate
particular pieces of evidence within that category of evidence, but rather argues that none of it is
relevant to the single charge against him. He further contends that even if the evidence has some
probative value, that value is outweighed by the prejudicial effect it will have on the jury. The
Court disagrees The evidence is in fact probative and the Court is unwilling to say that every piece
of evidence within the category of evidence that Mr. Slatten seeks to exclude will be unfairly
prejudicial

A. Relevance

Under the Federal Rules of Evidence, “evidence is relevant if: (a) it has any tendency to
make a fact more or less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” Fed. R. Evid. 401. “Relevant evidence is admissible”
unless the Constitution, federal statute, the Federal Rules of Evidence, or rules prescribed by the
Supreme Court, provide otherwise Fed. R. Evid. 402. According to Mr. Slatten, evidence that
other members of Raven 23 shot other individuals in Nisur Square after the shooting of Mr. Al
Rubia’y in the white Kia-the single count Mr. Slatten is charged with_is irrelevant to his case.
The government offers three theories of relevance, which the Court will address in turn.

First, the government contends that “certain post-Kia evidence is probative of Defendant’s
premeditation and motive.” ECF No. 730 at 5. To satisfy its burden on the charge in this case, the

government must present evidence to prove that Mr. Slatten acted with premeditation “[T]he

government must introduce facts which provide proof beyond a reasonable doubt that a crime was
committed not merely intentionally, in sustained frenzy or heat of passion, but with premeditation
and deliberation.” Unitea' States v. Peterson, 509 F.2d 408, 412 (D.C. Cir. 1974). A court can
“enteitain probative circumstantial evidence from which to infer premeditation and deliberation.”
Id. And proof of a defendant’s motive “substantially reinforces the inference of premeditation
and deliberation.” Mills v. United Staies, 599 A.2d 775, 781 (D.C. 1991).

Here, the government’s theory is that “while traffic was at a standstill waiting for the
Blackwater convoy to exit the Square, Slatten fired two shots from a sniper rifle into the Kia
windshield, killing Al-Rubia'y instantly and setting into motion the day's horrific events.” Slatten,
865 F.3d at 795 . The government argues that Mr. Slatten’s “motive for killing the Kia driver Was,
in part, to initiate the Raven 23 barrage that followed” and that the “[p]ost-Kia evidence about the
subsequent onslaught of bullets and grenades is thus relevant evidence of Defendant’s
premeditation and deliberation.” ECF No. 730 at 5. As the government did at the last trial, it plans
to present evidence that Mr. Slatten disdained the Iraqi people, had a history of shooting Iraqis to
instigate a broader conflict, and in fact encouraged other Blackwater members to engage in similar
conduct. Moreover, the government will try and prove that once Mr. Slatten shot Mr. Al Rubia’y,
he called attention to the subsequent movement of the white Kia to draw fire from his Blackwater
team members And that following the events at Nisur Square that day, Mr. Slatten celebrated,
further confirming the government’s theory that he had a plan Which he Was seeking to execute.

Under this theory of the case, the Court agrees that evidence of post-Kia shooting and
victims is probative Evidence that a plan succeeded is probative of the existence of a plan in the
first place. The government must prove premeditation Here, they allege that Mr. Slatten’s goal

in firing the first shots was to set in motion the very events that followed. Presenting evidence of

the events that followed does make the fact that he acted with premeditation more probable lt is
not necessarily strong evidence or dispositive_that is for the jury to weigh. But evidence need
not be dispositive of an element of the crime to be relevant, it must merely cross the low threshold
prescribed by Rule 401. Moreover, the evidence of what transpired at Nisur Square puts his alleged
celebration into context and further bolsters the theory that he had a plan, Which played out, and
that he celebrated that plan. Mr. Slatten cites two cases- Unitea' States v. Cardall, 885 F.2d
656, 671-72 (lOth Cir. 1989) and United States v. Hernana'ez, 780 F.2d 113, 118 (D.C. Cir.
l986)-for the supposition that evidence of the fact “that other Raven 23 members engaged in
later shootings is not admissible to show Mr. Slatten’s state of mind at an earlier time." ECF No.
733 at 3. But those cases are inapposite ln both cases, the government sought to bring in evidence
under a Rule 404(b) theory of admissibility.1 And the courts in those cases found the evidence
inadmissible under that theory because they did not involve the defendant’s own actions. Here,
the government, unlike in those cases, is not looking to bring the evidence in under Rule 404(b),
nor indicating that the evidence relates to Mr. Slatten’s own prior actions. The cases simply do
not apply.

The government’s second theory of relevance is that post-Kia shooting evidence is relevant
to the elements of self-defense and mitigating circumstances The evidence will be used to prove
that Mr. Slatten faced no threats that day from insurgents in Nisur Square.

Mr. Slatten responds in two ways. First, he argues that the government can call witnesses
to testify that they did not see anyone shooting or any threats before the shooting of the white Kia.

“Excluding the post-Kia evidence therefore would not impede the government’s ability to carry its

 

' In Hernana’ez, the D.C. Circuit also found that the evidence, even if relevant, would not be

permissible under Rule 403. 780 F.2d at 1 18. The Court will address the issue of unfair prejudice
in the next section. Here, the question is whether the evidence is relevant.

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burden on this issue.” ECF No. 733 at 5. Second, Mr. Slatten points out that the Court instructed
the jury at the first trial that the question of self-defense turned on “the circumstances as they
appeared to [the defendant] at the time of the incident."' ECF No. 177 at 17. Therefore, in his
view, evidence of shootings that occurred after the shooting of the white Kia is irrelevant to the
elements of self-defense and mitigating circumstances Both arguments are without merit.

While the government can certainly call witnesses to testify that they saw no shooting to
rebut self-defense, that does not mean it cannot introduce other probative evidence to prove that
point as well. “Because the Government bears the burden of proof on every element of a charged
offense, it must be accorded substantial leeway to submit evidence of its choosing to prove its
case.” Old Chiefv. United States, 519 U.S. 172, 200 (1997) (Connor, J., dissenting). The critical
question is whether the evidence is probative, not whether there is other evidence that might also
help carry the government’s burden. Here, the government is right that evidence that Raven 23
members fired upon Iraqis for 10-15 minutes straight without any return fire is probative in
showing that the Square was insurgent free. The government avers that witnesses will explain
they saw no armed combatants firing at the Blackwater team members, and they looked for armed
combatants based on where the Blackwater team members were firing. It is logical to conclude
that the lack of return fire, even in the face of heavy incoming fire (including grenade fire), has a
“tendency" to make it “more" probable that there were no reasonable threats to Mr. Slatten at the
time that he allegedly fired the first shots at the white Kia.

Third, the government seeks to introduce post-Kia shooting evidence to rebut Slough’s
statements, which the D.C. Circuit held can be introduced at retrial. The government notes that
Slough’s statements go to the issue of identity. He stated that the Kia sped toward the convoy and

that he was therefore forced to fire upon it. In essence, it calls into question whether Slough or

Slatten fired the shots that killed Mr. Al Rubia’y. The government maintains that at the retrial, it
plans to bring evidence to demonstrate the falsity of Slough’s statements Part of demonstrating
that Slough lied about whether the white Kia was speeding is “educating the jury about what was
at stake for Slough when he gave his statement, namely, accountability for an unprovoked
massacre: 32 Iraqis killed or wounded in Nisur Square.” ECF No. 730 at 11.

Mr. Slatten contends that he only seeks to introduce Slough’s statement about the white
Kia, which “contain the entire universe of facts that would bear on an alleged motivation falsely
to label the Kia a threat.” ECF No. 733 at 6. In other words, Slough had motive to lie about the
speeding Kia because he admitted to shooting at it. What happened after the fact is irrelevant But
just because his admission that he shot at the white Kia provides a motive for lying does not mean
there are no other facts that would bolster his motivation to lie. That an additional 31 people were
killed or injured provides further reason for Slough to lie. The gravity of the situation provided
motive to falsify the threat, in addition to the motive he might have felt to lie based on his
admission that he shot at the white Kia. Therefore, providing the jury with the full context of what
transpired after the white Kia shooting is probative of whether Slough was lying and accordingly
whether Slough or Slatten fired the initial shots at the white Kia.

B. Prejudice

Even if relevant, Mr. Slatten argues that admitting evidence about post-Kia shootings and
victims would be unfairly prejudicial Under Rule 403, relevant evidence may be excluded “if its
probative value is substantially outweighed by the danger of unfair prejudice....” Fed. R. Evid.
403. “The language of this rule tilts, as do the rules as a whole, toward the admission of evidence
in close cases.” Unitea' States v. Moore, 732 F.2d 983, 989 (D.C. Cir. 1984). In performing the

Rule 403 balancing test, “it is a sound rule that the balance should generally be struck in favor of

admission when the evidence indicates a close relationship to the event charged.” Id. (quoting
United States v. Day, 591 F.2d 861, 878 (D.C. Cir. 1978)).

Mr. Slatten’s present motion is not limited to particular pieces of evidence that the
government might introduce regarding post Kia shootings and victims Rather, he argues that any
evidence about those events and victims would substantially outweigh the probative value. His
primary argument seems to be that if the Court allows the government to produce any evidence
related to the actions of the other Raven 23 members after the white Kia shooting, then he would
be at risk of “guilt by association.” He primarily relies on three cases in support of that argument
However, each case is distinguishable from the facts before the Court.

In Hernandez, the D.C. Circuit held that the district court abused its discretion in admitting
evidence of a defendant’s presence at a fight involving his codefendant The D.C. Circuit’s
primary reason for reaching that conclusion was that the defendant was not a “participant” in the
fight and it was therefore not admissible against him as a “prior bad act" under Rule 404(b). 780
F.2d at 118. But the court continued that if it were to find that the defendant was a participant in
the fight, “it would be involvement of the most attenuated type" and that “[s]uch attenuated
evidence” would be of “slim probative value” and “overwhelmed by its prejudicial effect.” Ia'.
And that “[a]dmission of such evidence would naturally lead a jury to assume that Lopez-Leyva
had the motive of his associates: a slightly refined version of guilt by association.” Id. lt is plain
that the D.C. Circuit in Hernandez held the probative value of the evidence in weak regard; it
characterized the evidence as showing “nebulous involvement in a prior bad act." Id. The Court
does not read Hernandez to hold that any possible evidence pertaining to acts of codefendants fails
under Rule 403. Here, as the Court has articulated, there are numerous reasons why the evidence

has probative value. The evidence goes not only to motive, but the elements of self-defense and

mitigating circumstances and identity. The acts after the shooting of the white Kia are part of a
continuous shooting event and are relevant to multiple elements of the government’s burden of
proof. Ultimately, the jury weighs the strength of the evidence, but at this stage the Court is not
of the opinion that the evidence is “attenuated" or “nebulous” such that the prejudicial effect of
any reference to the post-Kia events would substantially outweigh its probative value

In United States v. Sampol, defendant lgnacio Novo was indicted and tried on two counts
of making false statements to a grand jury and one count of misprision of a felony. 636 F.2d at
642. He was tried alongside members of a conspiracy to assassinate the former Chilean
ambassador to the United States and an associate, even though he was not alleged to have been a
member of the conspiracy. Id. The D.C. Circuit overturned Novo’s conviction, finding that the
joint trial was improperly prejudicial to him. Id. at 643. The court based its conclusion on the
three factors, only two of which are relevant to this case Id. at 651.

The first factor that the court considered was whether “the confusion of the charges that
resulted from the indictment and evidence at trial” led to unfair prejudice to the defendant Id. the
court was particularly concerned that the indictment and the evidence elicited at trial made it
appear as if Novo was involved in the conspiracy. la'. at 645. One witness even testified that Novo
“possibly" participated in the conspiracy. Id. Here, Similar issues are not at play. Mr. Slatten has
not raised any concerns about the indictment and the government’s theory is that Mr. Slatten set
off the chain of events after firing upon the White Kia. Mr. Slatten has not highlighted any
particular concerns for the Court to rule upon that a government witness will suggest that he took
any part in the ensuing shootings

The second factor cited by the Sampol court is also distinguishable The court was

concerned about the "likelihood of prejudice brought about by the joint trial on charges of

assassination with such grossly disparate charges as false statement and misprision.” Id. Novo`s
codefendants were not merely charged with “negligent homicide [] or reckless manslaughter” but
with “participating in an intentional and extremely violent assassination scheme, the gory details
of which were described with extreme accuracy to the jury.” Ia'. at 646. Novo, on the other hand,
was charged with far less serious offenses and because he was jointly tried it led to an outcome
where it was “unrealistic to expect a jury not to be influenced by such extraneous testimony in its
assessment of his guilt upon the lesser charges for which he was tried." Id. at 647. Here, Mr.
Slatten is charged with first-degree murder, a far more serious offense than those facing Novo.
The Court does not believe that allowing the government theories to introduce the post-Kia
evidence for the limited purposes previously articulated will have the effect of “transfer[ing] guilt
to Mr. Slatten. Id.

ln United States v. Fulmer-the third case Mr. Slatten relies on--the defendant was
charged with threatening a federal agent. 108 F.3d 1486, 1489 (1St Cir. 1997). At trial, the federal
agent testified about the Oklahoma City bombing, which had taken place a week before the
defendant’s alleged threats, and was relevant to the agent’s state of mind when he heard the threats
Id. at 1498. The First Circuit found that the evidence should not have been admitted under Rule
403, since the probative value of the evidence WaS “Slight" and the danger of unfair prejudice was
“tremendous.” Id. The facts in Fulmer bear no resemblance to the case before the Court. ln
Fulmer, the bombing had no connection to threats made by the defendant and the charge of
threatening a federal agent paled in comparison to evidence about a terrorist attack that led to the
death of over 150 people Here, Mr. Slatten is charged with first-degree murder and the post-Kia

evidence pertains to events that took place immediately after Mr. Slatten`s alleged actions

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In sum, the cases cited by Mr. Slatten are not controlling And admitting any evidence
about post-Kia shootings and victims will not automatically create a “guilt by association”
situation As such, the Court is unwilling at this stage to say that any evidence about post-Kia
shootings and victims would unfairly prejudice Mr. Slatten. That is not to say that there are not
pieces of evidence Within that body of evidence that would be unfairly prejudicial The
government itself concedes that it plans to limit certain graphic images and testimony But Mr.
Slatten has not made such a request at this time In his motion, he requested complete exclusion
of post-Kia evidence, arguing that all of the evidence is irrelevant and unfairly prejudicial For the
reasons already stated, the Court»disagrees. But, the Court reserves judgment on whether certain
specific pieces of evidence would be irrelevant or fail under Rule 403. Mr. Slatten has not made
particularized requests at this point and the Court will not hypothesize about what may be unfairly
prejudicial
IV. CONCLUSION

For the foregoing reasons, the Court will DENY defendant’s motion to exclude evidence
of post-Kia shootings and victims A separate Order consistent with this Memorandum Opinion

will issue this date

slGNED this?$'a'§y of May, 201 a

BC.M

Royce C. Lamberth
United States District Judge

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