Case 1:14-cr RCL Document 835 Filed 06/20/18 Page 1 of 8 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) ) ) ) )

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1 Case 1:14-cr RCL Document 835 Filed 06/20/18 Page 1 of 8 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA United States of America v. Nicholas A. Slatten, Defendant. Criminal No (RCL DEFENDANT S MOTION TO ADMIT STATEMENT OF DR. HAITHEM AHMED AL-RUBAIE On Tuesday, June 19, 2018, the government disclosed an extraordinary document that reveals the truth about the government s prosecution of Nicholas Slatten. On June 3, 2018, FBI personnel met for approximately three hours with the father of the young man whom Mr. Slatten is charged with killing, Dr. Haithem Ahmed Al-Rubaie, in an attempt to convince him to testify against Mr. Slatten at the upcoming trial. The next day, Dr. Al-Rubaie sent government agents an declining to testify that stated in part: History is important: as I read in several newspapers and had been told and talked more than once to US teams, I met in the green zone in Baghdad, that Paul Slough had killed my son and Jeremy Ridgeway had killed my wife. The first had clearly confessed in a protected statement within hours of the incident and the latter pleaded guilty on Friday, in U.S. District Court in Washington to voluntary manslaughter and attempting to commit manslaughter and is cooperating with the government. This run true for several years. Changing these charges to others, a serious and risky drift, may put doubts on the honesty of these trials. As far as the US DOJ ignored the significance of informing me with these horrible events, I believe those persons are capable of achieving their targets without engaging me in this play.

2 Case 1:14-cr RCL Document 835 Filed 06/20/18 Page 2 of 8 Ex. A (emphases added. Dr. Al-Rubaie s courageous leaves no doubt that U.S. government agents told him in meetings in the Green Zone that Paul Slough was the person who killed his son. Those statements of the U.S. government are admissions of a party-opponent and are admissible under Rule 801(d(2. And Dr. Al-Rubaie s relaying those admissions has circumstantial guarantees of trustworthiness and is powerful, probative evidence of a material fact. It is therefore admissible under Rule 807. The jury deserves to know that the U.S. government told Dr. Al- Rubaie that it was Paul Slough who shot his son and that Dr. Al-Rubaie who tragically lost both his son and wife that day and has no reason to favor Mr. Slatten has refused to participate in the government s attempt to blame someone else for his son s death. Mr. Slatten respectfully moves for admission of Dr. Al-Rubaie s (marked as Defense Exhibit 5011 under Rules 801(d(2 and 807. BACKGROUND Mr. Slatten is charged with murdering Mr. Ahmed Haithem Ahmed Al Rubia y. Dr. Haithem Ahmed Al-Rubaie is the father of Mr. Al-Rubia y. Based on documents produced by the government, FBI and/or DOJ personnel have met with Dr. Al-Rubaie in Baghdad at least five times between 2007 and Dr. Al-Rubaie did not testify at the last trial. On June 3, 2018, the FBI s Legal Attaché in Baghdad, Bryan Finnegan, and its Assistant Legal Attaché, J.P. Butsch, met with Dr. Al-Rubaie in Baghdad. See Ex. B at 1. Iraqi Federal Intelligence and Investigations Agency (FIIA Brigadier General Hussain also attended the interview. Id. The meeting lasted approximately three hours. Id. It appears that the purpose of the meeting was to convince Dr. Al-Rubaie to come to the United States to testify in the upcoming trial. See id. ( Over the course of approximately three hours, Dr. Haythem expressed a great degree of skepticism about the U.S. Government s need for him to provide testimony in the upcoming 2

3 Case 1:14-cr RCL Document 835 Filed 06/20/18 Page 3 of 8 retrial of former Blackwater contractor Nicholas Slatten.. 1 Following the interview, the participants brought Dr. Al-Rubaie to meet with the FIIA Director, Major General Maher al-taie, who urged Dr. Haythem to cooperate with the FBI in providing testimony. Id. at 1-2. According to the memorandum, Dr. Haythem advised LEGAT Baghdad that he would inform them of his decision. Id. at 2. Dr. Al-Rubaie informed Legal Attaché Finnegan of his decision the next day. See Ex. A. As recounted above, Dr. Al-Rubaie said that he had been told and talked more than once to US teams, I met in the green zone in Baghdad, that Paul Slough had killed my son. Id. He added that [t]his [ran] true for several years. Id. He refused to engage in what he characterized as the government s play, stating that [c]hanging these charges to others, a serious and risky drift, may put doubts on the honesty of these trials. Id. Mr. Finnegan forwarded the to the trial team the next day, on June 5. Id. The defense received the for the first time two weeks later, in a production dated June 18 that the defense received on June 19 the day after trial was supposed to begin. See Ex. C. ARGUMENT Dr. Rubaie s contains two layers of out-of-court statements: (1 the statements made by US teams to Dr. Rubaie and (2 his relaying those statements. Both are admissible under the hearsay rules. 1 Notably, it appears that no government agents took notes at this three-hour meeting; no notes were produced to the defense. 3

4 Case 1:14-cr RCL Document 835 Filed 06/20/18 Page 4 of 8 I. The Statements of U.S. Government Agents to Dr. Al-Rubaie Are Admissions of a Party-Opponent. Dr. Al-Rubaie s reports that US teams he met in the green zone in Baghdad told him that Paul Slough killed his son. Ex. A. Dr. Al-Rubaie met on multiple occasions with FBI agents and DOJ prosecutors. The statements of DOJ prosecutors and/or FBI agents are admissions of a party-opponent under Rule 801(d(2. The federal government is a party-opponent in a criminal case for purposes of the hearsay rules. See United States v. Warren, 42 F.3d 647, 655 (D.C. Cir. 1994; United States v. Kattar, 840 F.2d 118, 130 (1st Cir DOJ prosecutors and FBI agents are agent[s] and employee[s] of the federal government generally and the Department of Justice specifically, and their statements to victims regarding who committed crimes they are investigating and prosecuting are undoubtedly on matters within the scope of [the agency] relationship. Fed. R. Evid. 801(d(2(D. They are also admissible under Rule 801(d(2(B as statements that the government manifested that it... believed to be true. Fed. R. Evid. 801(d(2(B; see, e.g., Kattar, 840 F.2d at 130. There is no communication by an investigating or prosecuting team more important than one to a victim s survivors about the identity of the culprit. In telling Dr. Al-Rubaie that Paul Slough killed his son, the government manifested its belief that that was true. II. Dr. Al-Rubaie s Is Admissible Under Rule 807. Dr. Al-Rubaie s extraordinary presents... exceptional circumstances justifying admission under Rule 807. United States v. Slatten, 865 F.3d 767, 807 (D.C. Cir Under Rule 807, a statement that would otherwise be hearsay is admissible if it meets five criteria. Id. at 806. Each is satisfied here. First, the statement must have equivalent circumstantial guarantees of trustworthiness comparable to those found in Rule 803 s and Rule 804 s enumerated hearsay exceptions. Id. 4

5 Case 1:14-cr RCL Document 835 Filed 06/20/18 Page 5 of 8 (quoting Fed. R. Evid. 807(a(1. In assessing this element, courts look to the totality of circumstances... that surround the making of the statement and that render the declarant particularly worthy of belief, gauging whether the declarant was highly unlikely to lie. Id. at 807 (alteration in original (internal quotation marks omitted. Here, the declarant is particularly worthy of belief because he is the victim s father. If anyone should have a bias in favor of convicting Mr. Slatten (if there were any evidence that he committed the charged crime, surely it would be the victim s own father. The fact that his statements exculpate Mr. Slatten thus makes them particularly trustworthy. The context in which he made the statements also shows that he was unlikely to lie: he made the statements to the FBI, who represent the very government that he claims told him that Paul Slough killed his son. He would have no reason to lie about this point because the government surely knows what it previously told him. In assessing whether the declarant is particularly worthy of belief, courts also look to whether there is extrinsic evidence corroborating the veracity of the statements. Id. at (alteration and internal quotation marks omitted. The D.C. Circuit has already answered that question, observing that there is eyewitness testimony showing that Paul Slough shot the victim. Id. at 809. Given that evidence, it is hardly surprising that U.S. government agents told Dr. Al- Rubaie during its documented meetings with him in the Green Zone that Paul Slough was the shooter. Second, it must be offered as evidence of a material fact. Id. at 806 (quoting Fed. R. Evid. 807(a(2. Whether FBI and DOJ agents told the victim s father that Paul Slough killed his son is undoubtedly relevant to the material fact of whether it was Mr. Slough or Mr. Slatten who killed his son. In a criminal case [t]he accused may introduce any legal evidence tending to prove that another person may have committed the crime with which the defendant is charged. 5

6 Case 1:14-cr RCL Document 835 Filed 06/20/18 Page 6 of 8 United States v. White, 692 F.3d 235, (2d Cir (alteration in original (quoting Holmes v. South Carolina, 547 U.S. 319, 327 (2006. Thus, for example, evidence of the government s decision to charge another individual with the charged crime which may have substantial probative value can be the proper subject of evidence at trial. See id. at If a government s charging decision is relevant to a material fact, surely its informing the victim s own father that someone else shot the victim is probative and admissible. Third, the statement must be more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts. Slatten, 865 F.3d at 806 (quoting Fed. R. Evid. 807(a(3. Mr. Slatten has no other way to prove the government s admissions to Dr. Al-Rubaie. Dr. Al-Rubaie resides in Iraq, outside this Court s subpoena power, and he has already refused to travel to the United States voluntarily to testify in this case. Fourth, admitting [the statement] [must] best serve the purposes of these rules and the interests of justice. Fed. R. Evid. 807(a(4. A central question in this case is whether it was Mr. Slough or Mr. Slatten who shot the victim. The jury deserves to know that the government told the victim s father that it was Mr. Slough who shot his son. Finally, Mr. Slatten complied with the notice requirement of Rule 807(b promptly after receiving Dr. Al-Rubaie s . The defense received the government s production including Dr. Al-Rubaie s on June 19. The defense provided notice under Rule 807(b the very next day. See Ex. D. The notice requirement has thus been satisfied. CONCLUSION For these reasons, Mr. Slatten respectfully requests that the Court admit Mr. Al-Rubaie s (Defense Exhibit

7 Case 1:14-cr RCL Document 835 Filed 06/20/18 Page 7 of 8 Respectfully submitted, /s/ Amy Mason Saharia June 20, 2018 Dane Butswinkas (DC Bar No Tobin Romero (DC Bar No Simon Latcovich (DC Bar No Amy Mason Saharia (DC Bar No Krystal Commons (DC Bar No WILLIAMS AND CONNOLLY LLP 725 Twelfth Street, N.W. Washington, DC Telephone: ( Facsimile: ( Thomas G. Connolly (DC Bar No HARRIS, WILTSHIRE & GRANNIS LLP 1919 M Street, N.W., 8th Floor Washington, DC Telephone: ( Facsimile: ( Attorneys for Defendant Nicholas A. Slatten 7

8 Case 1:14-cr RCL Document 835 Filed 06/20/18 Page 8 of 8 CERTIFICATE OF SERVICE I hereby certify that on June 20, 2018, a copy of this filing was delivered via ECF on all counsel of record. /s/ Amy Mason Saharia Amy Mason Saharia