IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION. : Magistrate Judge Paul M. Warner Defendants.

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1 BRETT L. TOLMAN (No. 8821) United States Attorney JOHN W. HUBER (No. 7226) Attorneys for the United States of America 185 South State Street, Suite 300 Salt Lake City, Utah Telephone (801) Facsimile (801) JEFFREY A. TAYLOR (D.C. Bar No ) United States Attorney for the District of Columbia KENNETH C. KOHL (D.C. Bar No ) (202) JONATHAN M. MALIS (D.C. Bar No ) (202) BARRY JONAS (NY Bar No ) Trial Attorney Department of Justice National Security Division (202) IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION UNITED STATES OF AMERICA, Plaintiff, Case No. 208mj350 PMW (District of Columbia No. CR ) (Judge RICARDO URBINA) v. PAUL ALVIN SLOUGH, NICHOLAS ABRAM SLATTEN, EVAN SHAWN LIBERTY, DUSTIN LAURENT HEARD, DONALD WAYNE BALL, GOVERNMENT S OMNIBUS RESPONSE TO DEFENDANTS MOTIONS FOR IMMEDIATE PRE-TRIAL RELEASE Magistrate Judge Paul M. Warner Defendants. The defendants in the above-captioned matter have each filed a Motion for Immediate Pre- 1 Trial Release. As explained more fully below, the Court should deny these motions as moot. 1 Last Friday evening, December 5, 2008, the defendants served on the United States electronic courtesy copies of the defendants anticipated pleadings. These pleadings were described as drafts that were subject to change. The instant motion is directed, therefore, at

2 A federal grand jury in the United States District Court for the District of Columbia has already returned an indictment against the defendants on the charges on which the defendants elected to self surrender in this District. The defendants are presently scheduled to appear for arraignment on that indictment before United States District Judge Ricardo M. Urbina of the United States District Court for the District of Columbia on January 6, 2009, at 2 p.m. The United States respectfully requests that the Court set conditions of release sufficient to assure the safety of the community and to assure the defendants appearance in Court. I. Procedural Background On Thursday, December 4, 2008, a federal grand jury empaneled in the United States District Court for the District of Columbia returned a thirty-five count indictment against the defendants. The indictment was returned under seal, with a sealing order that called for the automatic unsealing of the indictment upon the arrest of one or more of the defendants. By virtue of their arrests in this District, the indictment is now unsealed. The indictment alleges offenses under the Military Extraterritorial Jurisdiction Act, 18 U.S.C. 3261(a) ( MEJA ). All of the defendants have been charged jointly with all of the offenses alleged in the indictment. The indictment charges each of the defendants with fourteen counts of Voluntary Manslaughter, in violation of 18 U.S.C. 3261(a), 1112, and 2; twenty counts of Attempt to Commit Manslaughter, in violation of 18 U.S.C. 3261(a), 1113, and 2; and one count of Using and Discharging a Firearm During and in Relation to a Crime of Violence, in violation of 18 U.S.C. 3261(a), 924(c), and 2. anticipated arguments of the defendants as suggested by those draft pleadings. The United States reserves the right to respond to any new legal or factual arguments or points of law raised in the final, filed pleadings of the defendants. 2

3 For each count of Voluntary Manslaughter, the defendants face a maximum statutory penalty of ten years imprisonment. For each count of Attempt to Commit Manslaughter, the defendants face a maximum statutory penalty of seven years imprisonment. For the firearms charge, the defendants face a statutory mandatory minimum penalty of thirty years imprisonment, because the firearms used and discharged included machine guns and destructive devices. The conduct alleged in the indictment occurred in the Republic of Iraq. As alleged in the indictment itself, that conduct occurred outside of the jurisdiction of any particular State or district and within the venue of the United States District Court for the District of Columbia, as provided by 18 U.S.C On Thursday, December 4, 2008, the United States District Court for the District of Columbia issued arrest warrants for the defendants on the charges alleged in the indictment. Earlier today, the defendants elected to and did, in fact, surrender themselves on those arrest warrants in this District. II. Factual Background A. The Offense Conduct The indictment arises from a shooting incident that occurred on September 16, 2007, at the Nisur Square traffic circle in the city of Baghdad, in the Republic of Iraq. Nisur Square is located just outside a fortified area of central Baghdad known as the International Zone (also commonly known as the Green Zone ), where most, if not all, of the foreign embassies in Iraq are located, including the United States Embassy. As alleged in the indictment, at the time of the charged offenses the defendants were independent contractors and employees of Blackwater Worldwide, a contractor of the United States 3

4 Department of State ( DOS ). The defendants employment with Blackwater Worldwide was to provide personal security services for DOS diplomats and other United States Government personnel in Baghdad, Iraq. The defendants employment as Blackwater contractors related to supporting the mission of the Department of Defense in Iraq. On September 16, 2007, the defendants, a joint offender known to the federal grand jury, and thirteen other Blackwater independent contractors were assigned to a convoy of four heavily-armored trucks known as a Tactical Support Team, using the call sign Raven 23, whose function was to provide back-up fire support for other Blackwater personal security details operating in the city of Baghdad. The defendants were armed with, among other weapons, an SR-25 sniper rifle, machine guns (that is, M-4 assault rifles and M-240 machine guns), and destructive devices (that is, grenade launchers and grenades). On September 16, 2007, the defendants and a joint offender known to the federal grand jury, opened fire with automatic weapons and grenade launchers on unarmed civilians located in and around Nisur Square in central Baghdad, killing at least fourteen people, wounding at least twenty people, and assaulting but not injuring at least eighteen others. None of these victims was an insurgent, and many were shot while inside of civilian vehicles that were attempting to flee from the Raven 23 convoy. One victim was shot in his chest, while standing in the street with his hands up. At least eighteen civilian vehicles were damaged, some substantially, by gunfire from the Raven 23 convoy. 4

5 B. Contact Between the United States and the Defense On June 2, 2008, the United States Attorney s Office for the District of Columbia notified the defendants and a joint offender that a federal grand jury had been convened in the United States District Court for the District of Columbia to investigate the Nisur Square shooting. The United States Attorney s Office advised the defendants and the joint offender that they were targets of the federal grand jury investigation. See June 2, 2008 Letters from Kenneth C. Kohl and Department of Justice Trial Attorney Stephen Ponticiello to the defendants, affixed hereto, collectively, as Exhibit A. On September 30, 2008, the defendants and the joint offender, through counsel, sent a joint letter to the United States Attorney s Office for the District of Columbia, offering to surrender voluntarily for arrest in an orderly and timely fashion according to any instructions we may receive from law enforcement. See September 30, 2008 Letter from David Schertler, Esq., to United States Attorney Jeffrey A. Taylor, et al., affixed hereto as Exhibit B. In subsequent telephone conversations and written correspondence with s Kenneth C. Kohl and Jonathan M. Malis, counsel for the defendants were advised that they would be expected to voluntarily surrender themselves to the offices of the FBI in the District of Columbia within four days of having received notice to do so. See December 3, 2008 Letters from s Kohl and Malis to counsel for the defendants, affixed hereto, collectively, as Exhibit C. After initially agreeing to appear in the District of Columbia as instructed by law enforcement, the five defendants apparently changed their minds. In a telephone conference call on December 4, 2008, counsel for all five defendants advised s Kohl and Malis that the defendants were in disagreement among themselves as to where they should 5

6 surrender themselves for arrest and would not be in a position to notify the prosecutors until the close of business on Friday, December 5, As is now evident from the extensive pleadings submitted to chambers on Friday afternoon, the defense attorneys had already decided to surrender their clients in Salt Lake City, Utah, and had, at the time of the December 4 conference call, already retained local counsel in Salt Lake City. During the December 4 conference call, Kohl advised counsel that the United States would not seek pre-trial detention for any defendant who followed through on his earlier promise to surrender voluntarily in the District of Columbia on Monday, December 8, 2008, so long as they confirmed the same with the prosecutors by noon on Friday, December 5. When counsel inquired whether the United States would seek pre-trial detention of defendants who chose to turn themselves into authorities in other unspecified districts, Assistant United States Attorney Kohl specifically declined to respond, and stated that we will cross that bridge when we get to it. III. The Government s Request for Conditions of Release Because the defendants have made no effort to flee the jurisdiction of the Court since having been advised of their target status and because they have voluntarily surrendered themselves to the 2 United States Marshal s Service for arrest on these charges earlier this morning, the United States 2 Defendant Liberty traveled over 2,400 miles to surrender himself for arrest in Salt Lake City, Utah, rather than in his home town of Rochester, New Hampshire, which is only 513 miles from Washington, D.C. Defendant Slatten traveled over 1,700 miles to surrender himself for arrest in Salt Lake City, rather than in his home town of Sparta, Tennessee, which is only 585 miles from Washington, D.C. Defendant Heard traveled over 1,800 miles to surrender himself for arrest in Salt Lake City, rather than in his home town of Maryville, Tennessee, which is only 503 miles from Washington, D.C. In order to surrender himself for arrest in Salt Lake City, defendant Slough traveled nearly as far a distance as it is from his home town of Keller, Texas, to Washington, D.C. 6

7 has decided not to seek the pre-trial detention of the defendants. Instead, the United States requests that this Court impose reasonable conditions of release that will assure the safety of the community and the defendants appearances before the United States District Court for the District of Columbia on Tuesday, January 6, The United States requests that the Court impose the following conditions of release at this time a. The defendants shall surrender their United States passports and any other passports that they may possess to Pretrial Services upon their release. b. The defendants shall surrender their firearms and any firearms licenses or permits to the Federal Bureau of Investigation within 3 days of their release. c. The defendants shall remain at all times within a 20 mile radius of their principal residences in Keller, Texas; Sparta, Tennessee; Rochester, New Hampshire; Maryville, Tennessee; and West Valley City, Utah; respectively, except when traveling to meet with their attorneys or to attend court proceedings. d. The defendants shall have no contact with the other Blackwater guards who were assigned to Tactical Support Team Raven 23 on September 16, Because the United States is not seeking the defendants detention pre-trial, the defendants Motions for Immediate Pre-Trial Release should be denied as moot. IV. Conclusion For the foregoing reasons and for any other such reasons as may appear to the Court, the United States requests that the defendants Motions for Immediate Pre-Trial Release be denied as moot, that the Court set reasonable conditions of release to assure the safety of the community and the defendants appearances before the United States District Court for the District of Columbia on January 6, 2009, at 2 p.m., and that the Court transfer this case for all further proceedings to the United States District Court for the District of Columbia. 7

8 th Respectfully submitted this 8 day of December, BRETT L. TOLMAN United States Attorney /s/ John W. Huber JOHN W. HUBER District of Utah JEFFREY A. TAYLOR United States Attorney for the District of Columbia D.C. Bar No KENNETH C. KOHL D.C. Bar No National Security Section (202) Ken.Kohl@usdoj.gov JONATHAN M. MALIS D.C. Bar No National Security Section (202) Jonathan.M.Malis@usdoj.gov BARRY JONAS NY Bar No Trial Attorney Department of Justice National Security Division (202) Barry.Jonas@usdoj.gov 8

9 Certificate of Service True and correct copies were either mailed, faxed or electronically transmitted to following this 8th Day of December, 2008 Paul G. Cassell 332 South 1400 East, Room 101 Salt Lake City, UT (801) (fax) Brent O. Hatch 10 West Broadway, Suite 400 Salt Lake City, Utah (801) (fax) /s/ Janet S. Larson 9