Case 1:08-cr RCL Document 24 Filed 07/13/15 Page 1 of 14 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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1 Case 1:08-cr RCL Document 24 Filed 07/13/15 Page 1 of 14 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA : : v. : CRIMINAL NO: (RCL) : JEREMY RIDGEWAY, : : Defendant. : GOVERNMENT=S SENTENCING MEMORANDUM The United States of America respectfully submits this sentencing memorandum. I. Introduction. On September 16, 2007, in Baghdad, Iraq, Jeremy Ridgeway participated in a shooting in which at least 32 innocent, unarmed men, woman, and children were killed or wounded. The Iraqi victims and their families suffered immeasurably that day and in the weeks and years to follow. Ridgeway pleaded guilty on December 4, 2008, to one count of Voluntary Manslaughter and one count of Attempted Voluntary Manslaughter. As part of his plea, he agreed to cooperate with the government in the investigation and prosecution of others. Ridgeway s cooperation has been successful. While the devastating loss experienced by the victims of the Nisur Square massacre and their families can never be restored nor their grief fully assuaged, Ridgeway s decision to plead guilty, cooperate with the government, and tell the world the truth about what happened in Nisur Square has significantly contributed to the achievement of justice and the beginning of healing. Accordingly, we ask that the Court depart from the otherwise applicable advisory Guidelines sentence of months and impose a sentence of 30 months incarceration.

2 Case 1:08-cr RCL Document 24 Filed 07/13/15 Page 2 of 14 II. Background. 1 In September 2007, Ridgeway worked as an independent contractor for Blackwater Worldwide, which had a contract with the United States Department of State to provide security in, among other places, Baghdad, Iraq. As a contractor, Ridgeway provided security for diplomats and other United States government personnel in Baghdad and, like other Blackwater contractors in Iraq at that time, his employment related to supporting the mission of the Department of Defense. Shortly before noon on September 16, 2007, Ridgeway s team, Raven 23, which was comprised of 18 other contractors riding in four armored vehicles, formed a semi-circle at the south end of Nisur Square, in Baghdad. Ridgeway was the front turret gunner in the fourth vehicle. Raven 23 stopped the traffic and occupied the Square for approximately minutes. During that time, Ridgeway and six other team members fired on unarmed civilians to the south, north, and west of the Square. None of the victims was an insurgent, armed, or posed any threat to the Raven 23 convoy. Indeed, many of the victims were shot while trying to flee. A total of 14 innocent Iraqi civilians were killed and 18 were wounded. Specifically, Ridgeway shot and killed Dr. Mahassin Al-Kahzali, who was a passenger in a white Kia that had stopped at the southern entrance to the Square. 2 After leaving the Square, Raven 23 travelled north against the flow of traffic. During this time Ridgeway shot and seriously injured Abdul Wahab Abdul Qadar. Mr. Wahab was driving a white Chevrolet 1 We understand that the Court is thoroughly familiar with the underlying facts of this case, so we will not attempt to repeat them in detail here. 2 Ridgeway is jointly responsible for this killing along with certain of his confederates. See, e.g., Brackett v. Peters, 11 F.3d 78, 80 (7th Cir. 1993) (Posner, C.J.) ( But a murderer does not avoid conviction by pointing out that his act was only one of many causes that concurred to bring about his victim s death. It is enough if his act was one of the causes.... ). 2

3 Case 1:08-cr RCL Document 24 Filed 07/13/15 Page 3 of 14 Celebrity, which was stopped in traffic. III. Statutory Penalties. Ridgeway pleaded guilty to one count of Voluntary Manslaughter and one count of Attempt to Commit Manslaughter, in violation of 18 U.S.C. 3261(a)(1), 1112, and 1113 (ed. 2007). At the time these offenses were committed, the crimes of Voluntary Manslaughter and Attempt to Commit Manslaughter carried maximum sentences of 10 years and 7 years imprisonment, respectively, 18 U.S.C and 1113, as well as mandatory restitution under 18 U.S.C. 3663A. The Court may impose consecutive prison terms for the count of Voluntary Manslaughter and the count of Attempt to Commit Manslaughter because each count relates to an independent victim. See 18 U.S.C 3584(a) ( [m]ultiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively ); United States v. Fight, 625 F.3d 523, (8th Cir. 2010) (sentencing court reasonably imposed consecutive sentences on multiple counts of voluntary manslaughter involving three separate victims). In determining whether the sentences on the independent counts of Voluntary Manslaughter and Attempt to Commit Manslaughter should run consecutively or concurrently, a district court shall consider, as to each offense for which a term of imprisonment is being imposed, the factors set forth in section 3553(a). 18 U.S.C. 3584(b). IV. The recommended sentence. As set forth in more detail below, the applicable Guidelines sentencing range is months. Based on the Section 3553(a) sentencing factors, absent Ridgeway s cooperation, a sentence at the top of that range would be appropriate. However, based on Ridgeway s substantial assistance to the government in the investigation and prosecution of others, we are asking for a significant downward departure. Specifically, we ask that the Court impose a 3

4 Case 1:08-cr RCL Document 24 Filed 07/13/15 Page 4 of 14 sentence of 30 months incarceration. A. The Guidelines Calculation. The Court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range. United States v. Gall, 552 U.S. 38, 45 (2007). The Guidelines are the product of careful study based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions and are the starting point and the initial benchmark for sentencing. Id. at 46. Of course, a sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply, Rita v. United States, 551 U.S. 338, 351(2007), and it may not presume that the Guidelines range is reasonable, Gall, 552 U.S. at 50; Nelson v. United States, 555 U.S. 350, 350 (2009). Examination of the Section 3553(a) factors, however, shows that a Guidelines sentence would be appropriate in this case, absent the substantial assistance to the government provided by Ridgeway. Ridgeway pleaded guilty to one count of Voluntary Manslaughter and one count of Attempt to Commit Manslaughter. The U.S. Sentencing Guidelines provide that a combined offense level should be calculated for the defendant based on the counts of conviction. Pursuant to U.S.S.G. 3D1.2(a), the offenses should not be grouped as closely related counts because although the counts occurred during the same shooting, each count relates to a distinct victim. See U.S.S.G. 3D1.2(a), Commentary n.8. ( Cases involving injury to distinct victims are sufficiently comparable, whether or not the injuries are inflicted in distinct transactions, so that each such count should be treated separately rather than grouped together. ) Therefore, each count for each victim represents its own group. Pursuant to U.S.S.G. 3D1.4(a), the count of Voluntary Manslaughter has the higher offense level of 29 and constitutes the first unit. (PSR 54). The count of Attempt to Commit 4

5 Case 1:08-cr RCL Document 24 Filed 07/13/15 Page 5 of 14 Manslaughter constitutes the second unit. Pursuant to U.S.S.G. 2A2.2(a), the base offense level for Attempted Manslaughter begins at 14. See Commentary, n.4 ( This guideline also covers attempted manslaughter and assault with intent to commit manslaughter. ); PSR 55. Pursuant to U.S.S.G. 2A2.2(b)(2) and 2A2.2(b)(3)(B), the base offense level is increased by 3-7 levels depending on the degree of bodily injury sustained by the victim. Here the level should be increased by 7 points because the victim suffered permanent or life-threatening bodily injury. See 2A2.2(b)(3)(C); PSR 57. Additionally, pursuant to U.S.S.G. 2A2.12(b)(2)(A), the base offense level should be increased by 5 levels because a firearm was discharged. U.S.S.G. 2A2.2(b)(2)(A); PSR 56. However, the cumulative adjustments from application of subdivisions (2) and (3) shall not exceed 10 levels. U.S.S.G. 2A2.2; PSR 24. The adjusted base offense level for the Attempted Manslaughter count, therefore, is 24. (PSR 61). Accordingly, the Attempted Manslaughter count qualifies as one-half unit pursuant to U.S.S.G. 3D1.4(b) because it is its own group and is 5 to 8 levels less than the highest offense level for the lead count of Voluntary Manslaughter, or 29. (PSR 62). Accordingly, one level is added to the base offense level for Voluntary Manslaughter, resulting in a base offense level of 30. U.S.S.G. 3D1.4(b); PSR The base offense level is reduced by three levels for acceptance of responsibility 3 to a level 27. U.S.S.G. 3E1.1; PSR Ridgeway has no prior convictions, so he is assigned a Criminal History Category I. (PSR 72). A base offense level 27 and a Criminal History Category of I, results in a suggested sentencing range of months. 3 Inclusive of the government=s request that Ridgeway s Base Offense Level be reduced by one level pursuant to U.S.S.G. ' 3E1.1(b). 5

6 Case 1:08-cr RCL Document 24 Filed 07/13/15 Page 6 of 14 B. The Section 3553 Factors. The Court should next consider the applicable factors set forth in 18 U.S.C. ' 3553(a). Gall, 552 U.S. at Under ' 3553(a), [t]he Court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes of sentencing. 18 U.S.C. ' 3553(a). The purposes of sentencing are as follows: (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. 18 U.S.C. ' 3553(a)(2). The Section 3553(a) factors also include the following: (1) the nature and circumstances of the offense, 18 U.S.C. ' 3553(a)(1); (2) the history and characteristics of the defendant, id.; (3) the promotion of respect for the law, 18 U.S.C. ' 3553(a)(2)(A); (4) deterrence, 18 U.S.C. ' 3553 (a) (2)(B); (5) the Guidelines and Guideline range, 18 U.S.C. ' 3553(a)(4); and (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct U.S.C. ' 3553(a)(6). As set forth below, a review of the applicable Section 3553(a) factors demonstrates that absent a departure the appropriate sentence here would be at the top of the Guidelines range, which is 87 months. 1. The nature and circumstances of the offenses. Generally, Guidelines calculations reflect the seriousness of the offense. 18 U.S.C. ' 3553(a)(2)(A); United States v. Goff, 501 F.3d 250, 257 (3d Cir. 2007) ( the Guidelines reflect a carefully considered assessment of the seriousness of federal crimes ). As the Court has already noted, the offenses of conviction here are quite serious: [T]he fact that this was a serious 6

7 Case 1:08-cr RCL Document 24 Filed 07/13/15 Page 7 of 14 offense. You have to look at the nature and circumstances of the offense. We have 14 Iraqi citizens who were all innocent victims who were killed, 17 who were injured. Sentencing Transcript, dated April 13, 2015, at The sheer amount of human loss and suffering attributable to the conduct of Ridgeway and his confederates is staggering. 4 This factor alone the enormity of the defendant s crimes outweighs the other 3553(a) factors. 2. History and characteristics of the defendant. Ridgeway s personal history and family situation do not present unique circumstances such that they should significantly affect his sentence. Ridgeway is seemingly capable and industrious. His educational background and pursuits, as well as his vocational training and work history, exhibit a strong work ethic and commitment to charitable pursuits. (PSR 82, 93). Before committing the crimes in this matter, Ridgeway served in the United States Army and California National Guard, from which he was honorably discharged. He was deployed to Iraq for 14 months in (PSR 102). After his discharge, Ridgeway held several jobs before joining Blackwater in (PSR ). Nothing in Ridgeway s background suggests that his contributions in the military or to his community have been extraordinary. Ridgeway is married and has two children. (PSR 79). Incarceration would undoubtedly be a hardship to his family. There is, however, nothing that indicates that the burden on Ridgeway s family would be different from the burden imposed on the families of other incarcerated violent crime offenders. 3. Respect for the law, just punishment, and deterrence. Imposing a substantial term of incarceration would promote respect for the law, provide 4 We incorporate herein the Victim Impact Statements submitted in United States v. Slough, et al., (RCL) [Dkt. # 646-6, Tab F]). 7

8 Case 1:08-cr RCL Document 24 Filed 07/13/15 Page 8 of 14 just punishment, and afford adequate deterrence. While it is unlikely that Ridgeway would ever be involved in such a crime again, it is important for his sentence to serve as appropriate punishment and as a deterrent to others who are similarly situated. As the Court has already stated: [T]the message here about deterrence for future cases is one that the Court needs to send to people who are entrusted with automatic weapons, that they have to be careful and have due regard for the consequences of firing automatic weapons. Sentencing Transcript, dated April 13, 2015, at 153; see also United States v. Russell, 600 F.3d 631, 637 (2010) (emphasis added) ( Subsections 3553(a)(2)(B) and (C) codify the penal goals of general and specific deterrence ). 4. The Guidelines range. The advisory Guidelines range should be given considerable weight. First, the Guidelines range is itself a Section 3553(a) factor. The fact that ' 3553(a)[(4)] explicitly directs sentencing courts to consider the Guidelines supports the premise that district courts must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process. Gall, 552 U.S. at 50, n.6. Indeed, the sentencing court must first calculate the Guidelines range, and then consider what sentence is appropriate for the individual defendant in light of the statutory sentencing factors, 18 U.S.C. ' 3553(a), explaining any variance from the [Guidelines range] with reference to the latter. Nelson, 555 U.S. at 350. Second, one of the Sentencing Commission=s purposes in promulgating the Guidelines was to assure the meeting of the purposes of sentencing as set forth in section 3553(a)(2). 28 U.S.C. '' 991(b)(1)(A), 994(f). The Commission wrote the Guidelines to carry out these same ' 3553(a) objectives, resulting in a set of Guidelines that seek to embody the ' 3553(a) considerations, both in principle and in practice. Rita, 551 U.S. 338, 350. Third, Congress is the ultimate maker of sentencing policy. Mistretta v. United States, 8

9 Case 1:08-cr RCL Document 24 Filed 07/13/15 Page 9 of U.S. 361, 363 (1989); Dorszynski v. United States, 418 U.S. 424 (1974); United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 94 (1820). The Guidelines reflect the views of Congress through its instructions to the Commission: (1) Congress reviews the Guidelines before they take effect, and (2) Congress has direct input into certain Guidelines. See, e.g., 28 U.S.C. ' 991(b), 994(b)(1), (h)-(l), (p). The Judiciary also had input into the Guidelines directly as Commission members and commentators and indirectly through the Commission s ongoing and careful study based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions. Gall, 552 U.S. at 46; 28 U.S.C. ' 994(o)-(p). The Guidelines as written reflect the fact that the Sentencing Commission examined tens of thousands of sentences and worked with the help of many others in the law enforcement community over a long period of time in an effort to fulfill [its] statutory mandate. Rita, 551 U.S. at 349. As required by Congress, the Commission has modif[ied] and adjust[ed] past practice in the interests of greater rationality, avoiding inconsistency, complying with congressional instructions, and the like. Kimbrough v. United States, 552 U.S. 85, 96 (2007); 28 U.S.C. ' 994(m). In so doing, the Commission has the capacity courts lack to base its determinations on empirical data and national experience, guided by professional staff with appropriate expertise, and to formulate and constantly refine national sentencing standards. Kimbrough, 552 U.S. at 108. Accordingly, courts must give respectful consideration to the Guidelines. Id. at 101. As the Third Circuit has stressed: The Sentencing Guidelines are based on the United States Sentencing Commission s in-depth research into prior sentences, presentence investigations, probation and parole office statistics, and other data. U.S.S.G. ' 1A1.1, intro, comment 3. More importantly, the Guidelines reflect Congress s determination of potential punishments, as set forth in statutes, and Congress s on-going approval of Guidelines sentencing, through oversight of 9

10 Case 1:08-cr RCL Document 24 Filed 07/13/15 Page 10 of 14 the Guidelines revision process. See 28 U.S.C. ' 994(p) (providing for Congressional oversight of amendments to the Guidelines). Because the Guidelines reflect the collected wisdom of various institutions, they deserve careful consideration in each case. Because they have been produced at Congress s direction, they cannot be ignored. Goff, 501 F.3d at 257. [W]here judge and Commission both determine that the Guidelines sentences is an appropriate sentence for the case at hand, that sentence likely reflects the ' 3553(a) factors (including its not greater than necessary requirement), and that significantly increases the likelihood that the sentence is a reasonable one. Rita, 551 U.S. at Avoiding unwarranted sentencing disparity. Imposition of a Guidelines sentence best serves the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct. 18 U.S.C. ' 3553(a)(6). Congress sought uniformity in sentencing by narrowing the wide disparity in sentences imposed by different federal courts for similar criminal conduct prior to adoption of the Guidelines. Rita, 551 U.S. at 349. Because uniformity remains an important goal of sentencing, Section 3553(a)(6) directs district courts to consider the need to avoid unwarranted disparities. Kimbrough, 552 U.S. 85, 108 (2007). The Guidelines help to avoid excessive sentencing disparities, id. at 107, because avoidance of unwarranted disparities was clearly considered by the Sentencing Commission when setting the Guidelines ranges, Gall, 552 U.S. at 54, and because most defendants are sentenced within the Guidelines ranges. As set forth below, due to Ridgeway s substantial assistance, we are seeking a significant downward departure. In light of Ridgeway s cooperation, any disparity between his sentence and those of his confederates would not be unwarranted. See, e.g., United States v. Hemphill, 514 F.3d 1350, 1364 (D.C. Cir. 2008) (sentencing disparity was reasonable because Bullock pled 10

11 Case 1:08-cr RCL Document 24 Filed 07/13/15 Page 11 of 14 guilty and testified against her co-conspirators ); United States v. Bras, 483 F.3d 103, 114 (D.C. Cir. 2007) (sentencing disparity warranted where the co-conspirators who received probation provided substantial assistance in the investigation of the scheme, while [other defendants] did not. ). 6. The Need to Provide the Defendant with Educational or Vocational Training. Ridgeway does not appear to need such training. In any event, the other factors bearing on the seriousness of the offenses and the need for deterrence outweigh this element in fashioning a just sentence. C. Based on Ridgeway=s substantial assistance, the Government asks the Court to depart downward from the advisory Guidelines sentencing range. In light of Ridgeway s cooperation, the United States moves for a downward departure pursuant to U.S.S.G. 5K1.1. In fact, Ridgeway s cooperation has been more than successful; it has been exceptional. At the sentencing hearing for the other four defendants in this case, the Court noted the importance of exposing the truth about the Nisur Square massacre. Sentencing Transcript, dated April 13, 2015, at 153 ( I think the U.S. Government should be commended for finding and exposing the truth of what happened in Nisur Square that day. ). Ridgeway played a key role in helping the government find and expose the truth. Ridgeway, himself, explained it this way: I needed to tell what happened that day.... I wanted [my family] to know that I did something right in the end after doing something bad, horrible. Trial T. 7/30/14 p.m. at Ridgeway decided to plead guilty and cooperate before he had even been charged. 5 His 5 We note that, as part of his plea agreement, Ridgeway received a substantial benefit: he was not charged with additional counts of Voluntary Manslaughter and Attempted Voluntary Manslaughter or with Using a Firearm during a Crime of Violence. 11

12 Case 1:08-cr RCL Document 24 Filed 07/13/15 Page 12 of 14 early cooperation was of crucial assistance to the government in being able to bring this important case. As part of his cooperation, Ridgeway met with the government numerous times. During these meetings, he provided invaluable information about the shooting. Importantly, Ridgeway also provided background information about Blackwater s activities in Iraq, in general, and specific information about prior actions and statements of his confederates. Additionally, Ridgeway testified not once, but three times in the grand jury, at a pretrial Kastigar hearing, and at trial. Ridgeway s Kastigar hearing testimony was an important part of the government s proof that tainted evidence had not been presented to the grand jury. 6 And his trial testimony provided valuable pieces of evidence. As a shooter (an insider ), Ridgeway was the only witness, who could explain to the jury that, although he had shot, the shooting was unjustified. He also explained that the claims about incoming fire were fabricated and how those fabricated claims were developed by his confederates. Accordingly, Ridgeway s testimony was important to achieving justice in this matter. It is difficult to overestimate how difficult cooperating has been for Ridgeway. It took courage for him to abandon the party line, reject his friends and former colleagues, and tell the truth about what happened in Nisur Square. The security contractor community is close knit, and Ridgeway s decision to cooperate has rendered him a pariah in his former community. He endured hectoring at trial, where all of his prior mistakes, missteps, and foibles were exposed for all to see. Nevertheless, Ridgeway maintained his composure, admitted his mistakes, and told the jury the truth about what happened in Nisur Square. At bottom, Ridgeway has demonstrated great integrity by admitting his wrongdoing and trying to right the grave wrong in which he 6 The Court specifically found Ridgeway s Kastigar testimony to be credible. Mem. Op., dated Mar. 26, 2014, at ( This Court credits Ridgeway's testimony. ) 12

13 Case 1:08-cr RCL Document 24 Filed 07/13/15 Page 13 of 14 participated. V. Restitution. Pursuant to the Mandatory Victims Restitution Act ( MVRA ), 18 U.S.C. 3663A, the government will be submitting claims for restitution for the victims and their families, as set forth in the companion case of United States v. Slough, et al., (RCL). Title 18 U.S.C. 3664(d)(5) provides that the court shall set a date for the final determination of the victim's losses, not to exceed 90 days after sentencing. 13

14 Case 1:08-cr RCL Document 24 Filed 07/13/15 Page 14 of 14 VI. Conclusion. For the reasons set forth above, and for any additional reasons that may be presented at the sentencing hearing in this matter, the government asks the Court to depart from the advisory Guidelines sentencing range and sentence Ridgeway to 30 months incarceration. Respectfully submitted, /s/ Gregg A. Maisel Chief, National Security Section D.C. Bar Number Jay I. Bratt Deputy Chief, National Security Section Illinois Bar Number T. Patrick Martin Special Assistant United States Attorney D.C. Bar Number Anthony Asuncion Special Assistant United States Attorney D.C. Bar Number Christopher Kavanaugh Special Assistant United States Attorney VA Bar Number John Crabb Jr. Assistant United States Attorney N.Y. Bar No David Mudd Assistant United States Attorney D.C. Bar No United States Attorney=s Office National Security Section 555 4th Street, N.W., 11 th Floor Washington, D.C