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United States v. Slatten

United States Court of Appeals, District of Columbia Circuit

August 4, 2017

United States of America, Appellee
v.
Nicholas Abram Slatten, Appellant

          Argued January 17, 2017

         Appeals from the United States District Court for the District of Columbia (No. 1:14-cr-00107-1), (No. 1:08-cr-00360-1), (No. 1:08-cr-00360-3), (No. 1:08-cr-00360-4).

          Brian M. Heberlig, appointed by the court, argued the cause for appellants Slough, Liberty and Heard. William F. Coffield, appointed by the court, argued the cause for appellant Liberty. With them on the brief were Michael J. Baratz, Bruce C. Bishop, Linda C. Bailey, David Schertler, Lisa Hertzer Schertler, Janet Foster and Laina C. Lopez. Danny C. Onorato, appointed by the court, entered an appearance.

          Timothy J. Simeone, appointed by the court, argued the cause for appellant Slatten. With him on the briefs were Thomas G. Connolly, Steven A. Fredley and Jared P. Marx, all appointed by the court.

          Timothy P. O'Toole, Kathleen T. Wach and Addy R. Schmitt were on the brief for amicus curiae National Association of Criminal Defense Lawyers in support of appellants.

          Demetra Lambros, Attorney, U.S. Department of Justice, argued the cause for appellee. With her on the brief were Anthony Asuncion, Jay I. Bratt, John Crabb Jr., Christopher R. Kavanaugh, Gregg A. Maisel and Jonathan M. Malis, Assistant U.S. Attorneys.

          Before: Henderson, Rogers and Brown, Circuit Judges.

          OPINION

          PER CURIAM.

         Table of Contents

         I. Background ...................................................................................................... 4

         II. MEJA Jurisdiction/MEJA Jury Charge ............................................................. 7

         A. Jurisdiction ....................................................................................................... 7

         B. Jury Charge .................................................................................................... 17

         III. Venue ........................................................................................................... 22

         IV. New Trial Motion ......................................................................................... 28

         A. Background ................................................................................................... 28

         B. Analysis .......................................................................................................... 30

         V. Sufficiency of the Evidence .............................................................................. 33

         A. Liberty ............................................................................................................ 34

         B. Slatten ............................................................................................................. 40

         VI. Vindictive Prosecution ................................................................................... 44

         A. Background .................................................................................................... 44

         B. Analysis .......................................................................................................... 46

         VII. Motion to Sever ........................................................................................... 51

         A. Background .................................................................................................... 52

         B. Hearsay and Its Exceptions .............................................................................. 56

         VIII. Eighth Amendment ...................................................................................... 69

         A. Proportionality ................................................................................................. 70

         B. Comparable Sentences .................................................................................... 79

         Nicholas Slatten, Paul Slough, Evan Liberty and Dustin Heard ("defendants") were contractors with Blackwater Worldwide Security (''Blackwater''), which in 2007 was providing security services to the United States State Department in Iraq. As a result of Baghdad shootings that injured or killed at least 31 Iraqi civilians, Slough, Liberty and Heard were convicted by a jury of voluntary manslaughter, attempted manslaughter and using and discharging a firearm in relation to a crime of violence (or aiding-and-abetting the commission of those crimes); Slatten was convicted of first-degree murder. They now challenge their convictions on jurisdictional, procedural and several substantive grounds.

         For the following reasons, we hold that the Court has jurisdiction pursuant to the Military Extraterritorial Jurisdiction Act ("MEJA"), 18 U.S.C. §§ 3261 et seq., and that venue in the District of Columbia was proper. We further hold that the district court did not abuse its discretion in denying the defendants' motion for a new trial based on post-trial statements of a government witness. Regarding the challenges to the sufficiency of the evidence, we hold that the evidence was sufficient as to all except one of Liberty's attempted manslaughter convictions, and that the evidence was sufficient as to Slatten. We further hold that Slatten's indictment charging first-degree murder did not constitute vindictive prosecution.

         The Court concludes, however, that statements made by a co-defendant shortly following the attack, statements asserting that he-not Slatten-fired the first shots on the day in question, were admissible. Accordingly, the Court concludes that the district court abused its discretion in denying Slatten's motion to sever his trial from that of his co-defendants and therefore vacates his conviction and remands for a new trial. Moreover, the Court concludes that imposition of the mandatory thirty-year minimum under 18 U.S.C. § 924(c), as applied here, violates the Eighth Amendment prohibition against cruel and unusual punishment, a holding from which Judge Rogers dissents. The Court therefore remands for the resentencing of Slough, Liberty and Heard.

         I. Background

         On September 16, 2007, a car bomb exploded in Baghdad near a United States diplomat who was under the protection of Blackwater, a private security firm under contract with the State Department. The defendants were members of Blackwater's Raven 23 team, which was sent to provide secondary support in the effort to evacuate the diplomat. Rather than meeting the primary team at the pre-arranged checkpoint, Raven 23 shift leader Jimmy Watson ignored his orders and directed the team to Nisur Square, a traffic circle in downtown Baghdad that Watson intended to ''lock down.'' A car bomb had exploded in Nisur Square earlier that year, in response to which Iraqi security had been dramatically increased, with multiple checkpoints at the Square's entrances for potential threats.

         The Raven 23 convoy, which consisted of four armored vehicles, came to a stop at the south end of the Square, and together with Iraqi police they brought all traffic to a halt. Two or three minutes later, witnesses heard the Apops" of shots being fired, and a woman screaming for her son. The car that had been hit, a white Kia sedan, had been flagged days earlier by a Blackwater intelligence analyst as a type that might be used as a car bomb. According to the government, the Kia then rolled forward and lightly bumped the vehicle in front of it. The driver's side of the Kia windshield had a hole in it and was splattered with blood.

         Two nearby Iraqi police officers approached the Kia on either side, and they saw the driver's face full of blood, with a bullet wound in the middle of his forehead. One turned back to the convoy, waving his hands to indicate the shooting should stop, while the other made similar gestures as he tried to open the driver's door. At that point, the vehicle in front of the Kia moved away, causing the Kia to roll forward again. Heavy gunfire erupted from the Raven 23 convoy into the Kia, and the Iraqi officers took cover behind their nearby kiosk. Multiple grenades were fired at the Kia, causing it to catch fire. The Kia passenger was shot and killed.

         Indiscriminate shooting from the convoy then continued past the Kia, to the south of the Square. Victims were hit as they sought cover or tried to escape, giving rise to the bulk of casualties that day. At some point a Raven 23 member radioed that they were taking incoming fire, but others could not locate any such threat. When the shooting died down, a radio call indicated one of the Raven 23 vehicles had been disabled and needed to be hooked up to another vehicle to be towed. During the hook-up, a member of the Raven 23 convoy saw an Iraqi shot in the stomach while his hands were up, by an unidentified Blackwater guard who had exited his vehicle. Once the hook-up was complete, the Raven 23 convoy began moving slowly around the circle and north out of the Square, where isolated shootings continued both to the west and north. By the time the convoy finally exited the Square, at least thirty-one Iraqi civilians had been killed or wounded.

         In the immediate aftermath of the shootings, the State Department conducted mandatory de-briefing interviews of the Raven 23 team. Because the testimony of certain witnesses before the grand jury relied on those statements, the district court dismissed the case as tainted as to all defendants. United States v. Slough, 677 F.Supp.2d 112, 166 (D.D.C. 2009) (citing Kastigar v. United States, 406 U.S. 441 (1972)). This Court agreed that the oral and written statements that resulted from the de-briefings were compelled, and thus could not be used directly or indirectly by the government against the defendants who made them, but remanded the case for a more individualized analysis of the effect of the taint. United States v. Slough, 641 F.3d 544, 548, 554-55 (D.C. Cir. 2011).

         On remand, the government used a new prosecutorial team and convened a new grand jury, which returned indictments against the defendants for voluntary manslaughter, attempted manslaughter and using and discharging a firearm in relation to a crime of violence. Slatten moved to dismiss the charges against him as time-barred, which this Court ultimately granted by writ of mandamus. In re Slatten, No. 14-3007 (D.C. Cir. Apr. 18, 2014). The government thereafter obtained an indictment charging Slatten with first-degree murder. The defendants were tried jointly in the summer of 2014, and after seven weeks of deliberation, the jury returned guilty verdicts on all counts except three. The district court sentenced Slatten to life imprisonment, and it sentenced Slough, Liberty and Heard to the mandatory term of imprisonment of thirty years for their convictions under 18 U.S.C. § 924(c), plus one day on all of the remaining counts.

         II. MEJA Jurisdiction/MEJA Jury Charge

         We begin with the defendants' challenges to the applicability of MEJA. The defendants argue that they are entitled to acquittal on all counts because MEJA does not authorize their prosecution. Alternatively, even if their actions do fit within MEJA's scope, the defendants maintain that the jury was erroneously instructed regarding MEJA. On both claims, we disagree.

         A. Jurisdiction

         1. History

         Historically, civilians accompanying American armed forces overseas were subject to military court-martial for crimes committed in a host country. See Reid v. Covert, 354 U.S. 1, 3-4 (1957) (plurality op.). In a pair of opinions, however, the United States Supreme Court put an end to that practice, deeming it unconstitutional because the courts-martial failed to provide civilians with certain constitutional rights guaranteed by the Fifth and Sixth Amendments. Id. at 5 ("[W]e reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights."); Kinsella v. Singleton, 361 U.S. 234, 249 (1960) (civilian defendant "is protected by the specific provisions of Article III and the Fifth and Sixth Amendments and . . . her prosecution and conviction by court-martial [was] not constitutionally permissible"). Thereafter, many crimes committed by civilians overseas fell into a jurisdictional vacuum as generally our country's criminal statutes do not apply extraterritorially and, "[a]lthough host foreign nations [did] have jurisdiction to prosecute such acts committed within their nation, they frequently decline[d] to exercise jurisdiction when an American [was] the victim or when the crime involve[d] only property owned by Americans." H.R. Rep. No. 106-778, Pt. 1, at 5 (2000); accord United States v. Arnt, 474 F.3d 1159, 1161 (9th Cir. 2007).

         In 2000, the Congress began to address the "jurisdictional gap" by enacting MEJA. H.R. Rep. No. 106-778, at 5. In its original version, MEJA authorized the prosecution of extraterritorial crimes committed by civilians employed by the Department of Defense (DOD) or its contractors. See 18 U.S.C. § 3267(1)(A) (2000). Following a series of high-profile offenses committed by non-Defense Department contractors- including those committed by private contractors employed by the United States Interior Department at the Abu Ghraib prison in Baghdad, Iraq-the Congress expanded MEJA's scope. See 150 Cong. Rec. S6863 (daily ed. June 16, 2004). Indeed, then-United States Senator Jeff Sessions-the chief sponsor of the 2004 amendment-acknowledged that the amendment's purpose was to address a jurisdictional gap through which "private contractors who may not have in every instance been directly associated with the Department of Defense . . . might not be prosecutable under [MEJA]." Id. Sessions noted that the gap "highlighted [the Congress's] need to clarify and expand the coverage of the act" by giving "the Justice Department authority to prosecute civilian contractors employed not only by the Department of Defense but by any Federal agency that is supporting the American military mission overseas." Id. Senator Charles Schumer likewise noted that the proposed amendment addressed "a dangerous loophole in our criminal law that would have allowed civilian contractors who do the crime to escape doing the time." Id. at S6864.

         2. Text

         As amended, then, two key sections of MEJA work together to authorize the prosecution of qualifying offenses committed by a civilian overseas: Section 3261 and Section 3267. See 18 U.S.C. §§ 3261, 3267.

         18 U.S.C. § 3261 provides:

(a) Whoever engages in conduct outside the United States that would constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States-
(1) while employed by or accompanying the Armed Forces outside the United States
. . .
shall be punished as provided for that offense.

18 U.S.C. § 3267 sets out alternative definitions of "employed by the Armed Forces outside the United States" depending on the defendant's employment status. Section 3267(1)(A)(iii)(II) applies to the defendants and provides as follows:

(1) The term "employed by the Armed Forces outside the United States" means--
(A) employed as . . .
(iii) an employee of a contractor (or subcontractor at any tier) of . . .
(II) any . . . Federal agency . . . to the extent such employment relates to supporting the mission of the Department of Defense overseas . . . .

         When Section 3267(1)(A)(iii)(II) applies, we believe there are two preliminary questions posed by MEJA's text: 1) whether the defendant's criminal conduct occurred "while employed by" a non-DOD contractor; and 2) whether his employment (not his conduct) "relates to supporting" the DOD overseas mission. See 18 U.S.C. §§ 3261, 3267. The latter question, however, is subject to an additional restriction. Section 3267(1)(A)(iii)(II)'s "to the extent" clause operates as a temporal limitation applicable only to non-DOD contractors. See id. That is, because MEJA authorizes the prosecution of only those crimes a defendant commits "while" employed by a non-DOD contractor and "to the extent" such employment relates to a DOD mission, it applies only if the defendant's employment at the time of the offense relates to supporting a DOD mission. See id. (emphasis added).

         Although the United States Supreme Court has yet to address Section 3267(1)(A)(iii)(II)'s "relates to" language, it has interpreted similar language broadly. For example, in Smith v. United States, the Supreme Court concluded that "[t]he phrase 'in relation to' is expansive, " noting that "[a]ccording to Webster's, 'in relation to' means 'with reference to' or 'as regards.'" 508 U.S. 223, 237-38 (1993). Likewise, in District of Columbia v. Greater Washington Board of Trade, the Supreme Court interpreted "relate to, " as used in the Employee Retirement Income Security Act of 1974, to include any law that "has a connection with or reference to" a covered benefit plan, thereby "giv[ing] effect to the 'deliberately expansive' language chosen by Congress." 506 U.S. 125, 129 (1992) (emphasis added) (some internal quotation marks omitted) (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 46 (1987); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97 (1983)); accord Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992) ("For purposes of the present case, the key phrase, obviously, is 'relating to.' The ordinary meaning of these words is a broad one-'to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with[.]'" (citing Black's Law Dictionary 1158 (5th ed. 1979)). Circuit precedent, too, employs a broad interpretation. We have noted that the "ordinary meaning" of "relating to" is a "broad one, " see Friedman v. Sebelius, 686 F.3d 813, 820 (D.C. Cir. 2012) (internal quotation marks omitted) (quoting Morales, 504 U.S. at 383), and that "a statutory provision containing the phrase therefore has 'broad scope, '" id. (quoting Metro. Life Ins. Co. v. Mass., 471 U.S. 724, 739 (1985)).

         3. Application

         Having addressed both MEJA's required elements and expansive scope, we next consider whether the evidence was sufficient to support jurisdiction under MEJA.[1] The district court denied the defendants' motion for judgment of acquittal on this ground and the Court must affirm so long as any reasonable factfinder could conclude that the evidence, viewed most favorably to the government, satisfied each element beyond a reasonable doubt. United States v. Kayode, 254 F.3d 204, 212 (D.C. Cir. 2001); see Jackson v. Virginia, 443 U.S. 307, 319 (1979).

         We begin with two unchallenged elements. It is undisputed that all of the charges against all four defendants are within MEJA's scope as it relates to included offenses. See supra 6-7; 18 U.S.C. § 3261(a). Moreover, all four defendants were employed by Blackwater Security Consulting, LLC, a contractor of the United States Department of State. JA 3743, 3760, 3776, 3794, 1228-29. At the time of the Nisur Square attack, they were therefore "employee[s] of a contractor (or subcontractor at any tier) of . . . [a] Federal agency." See 18 U.S.C. § 3267(1)(A)(iii)(II). The remaining question is whether that employment, at the time of the attack, related to supporting DOD's mission.

         The government sufficiently established the DOD's overseas mission. By 2007, "the mission of the Department of Defense overseas"-specifically, in Iraq-went beyond military operations against the insurgency. Id. Witnesses testified that the Defense Department mission was to rebuild the war-torn country, including the fostering of economic and political stability. United States Army Colonel Michael Tarsa testified that the military's goal was to "stimulat[e] local governance" by "identifying local leaders [and] trying to organize them." JA 1374. Tarsa also recounted that the military sought to improve the Iraqis' "quality of life" by "restoring essential services, sewer, water, electricity [and] trash removal" and by "foster[ing] economic development, " all with the hope that such restoration would "dissuad[e] people from joining the insurgency." JA 1373-77. Tarsa's testimony was echoed by United States Marine Corps Officer Shelby Lasater, who testified that, as the United States' presence in Iraq continued, the mission became "to rebuild the country and set up a government." JA 1478-79. Then-Deputy Secretary of Defense Gordon England affirmed that the Defense Department "strategy" was to "help the Iraqi people build a new Iraq with constitutional representative government that respects civil rights and has security forces sufficient to maintain domestic order and keep Iraq from becoming a safe haven for terrorists." JA 2949.

         The government also produced abundant evidence that the defendants' Blackwater employment supported the Department of Defense's expanded mission at the time of the Nisur Square attack. Paralleling the testimony of Tarsa, Lasater and England, Blackwater guard Matthew Murphy testified that Blackwater's "clients . . . the State Department [were] trying to bring along the country, . . . trying to mentor the Iraqi government and . . . get them up and running." JA 1044. England also testified that the "U.S. Government had to rely on all of its departments and agencies in order to achieve the mission in Iraq." JA 2950. The State Department was an important part of the rebuilding effort the Defense Department was engaged in; its diplomats were helping the Iraqis restore their country. Blackwater employed the defendants to provide security for the diplomats whose work plainly supported the DOD mission. The defendants' employment, then, "relate[d] to"-that is, had a "connection with or reference to, " see Greater Wash. Bd. of Trade, 506 U.S. at 129 (internal quotation marks omitted)-supporting the Defense Department's rebuilding mission.

         In addition, the defendants' contracts required them to complete unspecified "security-related duties requested by Blackwater or [the State Department] in support of the Engagement." JA 3761. This necessarily requires consideration of the types of duties that Blackwater or the State Department in fact requested in order to determine whether they "relate[] to supporting the mission of the Department of Defense." 18 U.S.C. § 3267(1)(A)(iii)(II). The evidence showed that, consistent with this contract provision, Blackwater employees were assigned to assist distressed military units during firefights, train Army security escorts and provide escorts to Provincial Reconstruction Teams when Army escorts were unavailable. JA 1622-23, 1762-64, 2956. Although it may be true that the defendants did not themselves participate in these assignments, this evidence nevertheless illustrated for the jury the types of "security-related duties" within the scope of the defendants' employment. JA 3761.

         The defendants' employment "relate[d] to supporting the [DOD overseas] mission" in another way; it allowed military personnel previously responsible for providing State Department security to concentrate exclusively on their rebuilding mission. See 18 U.S.C. § 3267(1)(A)(iii)(II). Tarsa affirmed that the Defense Department was "able to reduce the amount of [its] platoons . . . . dedicated for Department of State security convoy missions" as "Blackwater took the majority of those tasks." JA 1381. The platoons were then able to return to, inter alia, "the continued development of the Iraqi security forces." JA 1382. United States Army Lieutenant Peter Decareau and England corroborated Tarsa's testimony. JA 2581 (testimony of Army Lieutenant Peter Decareau) (agreeing that "from roughly February 2007 going forward, [Decareau's] company and platoons within it did not need to provide [State Department] escort service missions anymore, " allowing his platoon "to focus on what [he] described as civil affairs and . . . night operation missions"); JA 2952 (testimony of Deputy Secretary Gordon England) (before Blackwater's arrival, State Department "was draining personnel from the DOD mission"). Again, then, the defendants' employment, which increased the manpower available to the military by replacing military personnel previously assigned to guard State Department personnel, had some "bearing or concern" regarding-that is, "relate[d] to"-supporting the Defense Department mission. See Morales, 504 U.S. at 383 (internal quotation marks omitted) (citing Black's Law Dictionary 1158 (5th ed. 1979)). Providing security to State Department personnel who themselves acted jointly with the Defense Department to aid the Iraqi people and whose protection would have continued to require military personnel but for the defendants' employment necessarily "relate[d] to" supporting the Defense Department's mission.

         4. Defendants' Arguments

         The defendants attempt to narrow MEJA's scope by reading the "to the extent" language of 18 U.S.C. § 3267(1)(A)(iii)(II) and the "while employed" language of 18 U.S.C. § 3261 as more than a temporal limitation. They argue that MEJA applied "only in the limited capacities or at those limited times" when Blackwater guards actively and directly supported the Defense Department mission. Joint Appellants' Br. 59. That is, they claim that MEJA required the jury to consider not their employment but instead their challenged actions to determine whether those actions-that is, securing Nisur Square-supported the Defense Department mission. Id. at 41, 58-60. But, as noted, MEJA's scope is not so narrow. Instead, the most natural conjunctive reading of "while employed by, " as used in 18 U.S.C. § 3261, and "to the extent, " as used in 18 U.S.C. § 3267, is one that interprets these provisions as establishing that the point in time when the defendants' actions occurred is the benchmark by which their employment's relation to a DOD mission is measured.[2] See supra 10. The defendants' misreading of the statute to require that their challenged actions must relate to a Defense Department mission violates both MEJA's text and its purpose. MEJA's goal, after all, was to close "a dangerous loophole in our criminal law that would have allowed civilian contractors who do the crime to escape doing the time." 150 Cong. Rec. S6863.

         Alternatively, the defendants maintain that we should look not to their on-the-ground actions but only to their Blackwater contract to determine whether they were "employed by the Armed Forces outside the United States." Joint Appellants' Br. 50-52. Because their contract required them to provide security for State Department personnel, rather than to further a Defense Department mission, they argue that MEJA does not authorize their prosecution. Id. at 53. We decline to take such a cramped view of MEJA's text given the "deliberately expansive" language used by the Congress. See Greater Wash. Bd. of Trade, 506 U.S. at 129.

         Finally, the defendants insist that the rule of lenity requires construing MEJA in their favor. The rule of lenity, however, applies only if, "after considering text, structure, history, and purpose, there remains a grievous ambiguity or uncertainty in the statute such that the Court must simply guess as to what Congress intended." Maracich v. Spears, 133 S.Ct. 2191, 2209 (2013) (internal quotation marks omitted) (quoting Barber v. Thomas, 560 U.S. 474, 488 (2010)); accord Reno v. Koray, 515 U.S. 50, 65 (1995) (rule of lenity applies "only if . . . [the Court] can make no more than a guess as to what Congress intended" (internal quotation marks omitted)). "The rule [of lenity] comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers." Maracich, 133 S.Ct. at 2209 (alteration in original) (quoting Callanan v. United States, 364 U.S. 587, 596 (1961)). Although the phrase "relates to" gives MEJA a broad scope, breadth does not equal ambiguity. See Penn. Dep't of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) ("[T]he fact that a statute can be applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth." (internal quotation marks omitted)). Moreover, to the extent-if any- that MEJA's text is ambiguous, MEJA's "context, structure, history, and purpose resolve it." Abramski v. United States, 134 S.Ct. 2259, 2272 n.10 (2014); see supra at 7-9. We conclude that the rule of lenity is inapplicable here.

         B. Jury Charge

         The defendants also challenge the district court's jury instructions regarding MEJA. "Whether the district court properly instructed the jury is 'a question of law that we review de novo.'" United States v. Ring, 706 F.3d 460, 465 (D.C. Cir. 2013) (quoting United States v. Orenuga, 430 F.3d 1158, 1166 (D.C. Cir. 2005)). Our responsibility is to "determine whether, taken as a whole, [the instructions] accurately state the governing law and provide the jury with sufficient understanding of the issues and applicable standards." United States v. DeFries, 129 F.3d 1293, 1304 (D.C. Cir. 1997) (alteration in original) (emphasis added); accord Ring, 706 F.3d at 465. An "improper instruction on an element of the offense violates the Sixth Amendment's jury trial guarantee." Neder v. United States, 527 U.S. 1, 13 (1999).

         The district court instructed the jury on the meaning of "employed by the Armed Forces outside the United States" as follows:

[T]he definition of 'employed by the Armed Forces outside the United States' includes not only a direct employee or contractor of the Armed Forces of the United States, but also a contractor (including a subcontractor at any tier) or an employee of a contractor (or subcontractor at any tier) of any Federal agency of the United States Government to the extent:
(1) such employment relates to supporting the mission of the Department of Defense overseas . . . .
. . .
[T]he Government may prove that the defendant was 'employed by the Armed Forces' by establishing that:
(a) the defendant was employed as a contractor, or an employee of a contractor (including a subcontractor at any tier) of any federal agency, and
(b) that the defendant's employment related to supporting the mission of the Department of Defense overseas.

JA 497-98.

         The challenged jury instruction was not erroneous. First, it quoted MEJA's "to the extent" clause verbatim: "'[E]mployed by the Armed Forces outside the United States' includes . . . an employee of a contractor . . . of any Federal agency of the United States Government to the extent . . . such employment relates to supporting the mission of the Department of Defense overseas." Id. (emphasis added); see 18 U.S.C. §§ 3261, 3267. Granted, the instruction also stated that the government could establish jurisdiction if the jury found "the defendant's employment related to supporting the [DOD] mission, " JA 498; taken out of context, a juror could conceivably understand the latter statement to mean jurisdiction would exist if "the defendant's employment [at any time] related to supporting the mission" of DOD, see id. But we "do not read the language thus criticized in isolation." Jones v. United States, 404 F.2d 212, 215-16 (D.C. Cir. 1968); see also Cupp v. Naughten, 414 U.S. 141, 147-48 (1973). To the contrary, we have "long recognized that one ambiguous part of an instruction may be made clear by another unambiguous part of the same instruction, " United States v. Gaviria, 116 F.3d 1498, 1510 (D.C. Cir. 1997), and the "to the extent" language unambiguously precludes an erroneous, all-or-nothing understanding of the statute, see John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 104-05, 109 (1993).

         The defendants' challenge to the instruction largely repeats their argument against the applicability of MEJA itself. For example, they argue the district court erred in failing to instruct the jury that it could consider only their contract employment to determine whether they were "employed by the Armed Forces . . . ." Joint Appellants' Br. 66-68. The defendants also revive their claim that, even if the jury could consider evidence aliunde their employment contract, it should have been instructed that MEJA applied only when the defendants were acting within the scope of their employment and only if their specific acts supported the DOD mission. Id. at 64-66. To that end, they proposed the following instruction:

[I]f you find that part of a defendant's contract employment for the Department of State related to supporting the mission of the Department of Defense, and part of his contract employment did not relate to supporting the mission of the Department of Defense, you must consider whether the work the defendant was performing at the time of the conduct charged in the indictment related to supporting the mission of the Department of Defense in Iraq. For purposes of this case, a Defendant is 'employed by the Armed Forces of the United States' only if the contract employment he was performing at the time of the charged conduct related to supporting the mission of the Department of Defense in Iraq.

JA 473. In construing MEJA's text, the Court earlier rejected the premise underlying the defendants' instruction, see supra 15-16, and continues to do so in this context.

         The defendants' remaining argument is that the district court "grievously erred" by failing to instruct the jury expressly that diplomatic security is a State Department responsibility. Joint Appellants' Br. 68. They note that 22 U.S.C. §§ 4801-02 assigns to the Secretary of State responsibility for "the security of diplomatic operations . . . abroad, " id. § 4801(b)(1), and requires the Secretary to implement measures "to provide for the security of United States Government operations of a diplomatic nature, " id. § 4802(a)(1). For the defendants, there is a "fundamental conflict between that statutory assignment of responsibility [to the State Department] and MEJA's requirement that the defendants' contract employment relate to supporting the Defense Department's mission." Joint Appellants' Br. 74-75. The defendants offered the following instruction:

The Defendants in this case were independent subcontractors employed by the Department of State to provide personal security to State Department personnel in Baghdad, Iraq. By law, the provision of personal security to State Department personnel overseas is the responsibility of the Department of State.

JA 475.

         The defendants fail to recognize, however, that State Department contractors-and their employees-could help meet the State Department's duty to provide security for diplomatic operations abroad and, at the same time, support the Defense Department's overseas mission. Blackwater without question employed the defendants to protect State Department personnel, see, e.g., JA 1169-74, 1853-54, 3861; the critical question for the jury, however, was whether, in carrying out that responsibility, the defendants' employment also "relate[d] to supporting the mission of the Department of Defense overseas, " see 18 U.S.C. § 3267(1)(A)(iii)(II). We agree with the district court that the defendants' proposed instruction "would just be confusing to the jury." JA 3279-80. The district court's charge, "taken as a whole . . . accurately state[d] the governing law and provide[d] the jury with sufficient understanding of the issues and applicable standards." DeFries, 129 F.3d at 1304.

         III. Venue

         The defendants next complain the District of Columbia was an improper venue for their trials. On November 18, 2008, the United States District Court for the District of Columbia issued an arrest warrant for Ridgeway, and Ridgeway voluntarily flew to Washington, D.C. from California. Once he arrived in Washington, he was met by an FBI agent, formally booked and taken to district court to plead guilty to one count of voluntary manslaughter and one count of attempted voluntary manslaughter. While Ridgeway was not put in handcuffs when apprehended by the FBI, he testified he believed he was under arrest. After pleading guilty, Ridgeway was permitted to return to his home.

         If an offense is committed outside the United States and involves charges against multiple people, Congress has declared venue to be proper in the district where any of the joint offenders are first arrested. 18 U.S.C. § 3238. The defendants argue the government improperly used the arrest of Jeremy Ridgeway, one of the other turret gunners who fired in Nisur Square, to satisfy the venue statute because (1) Ridgeway was not arrested in connection with their charged offenses, (2) he was not a "joint offender" with the defendants and (3) the government impermissibly manufactured venue in the District of Columbia.

         Since the parties dispute the meaning of the phrases "joint offender" and "is arrested" in the venue statute, we focus on the statute's text. Section 3238 states, "[t]he trial of all offenses begun or committed . . . out of the jurisdiction of any particular State or district[] shall be in the district in which the offender, or any one of two or more joint offenders, is arrested." Id. "The Government bears the burden of establishing by a preponderance of the evidence that venue is proper with respect to each count charged against the defendant[s]." United States v. Morgan, 393 F.3d 192, 195 (D.C. Cir. 2004). When reviewing whether venue was properly established, this Court views the evidence "in the light most favorable to the Government." Id. In order to assure the case would be heard in the District of Columbia, the government entered into a plea agreement with Ridgeway and arranged for him to travel to the District of Columbia from his home in California to be arrested.

         While this Court has not specifically defined "arrested" in the context of Section 3238, our sister circuits have consistently interpreted it to mean situations "'where the defendant is first restrained of his liberty in connection with the offense charged.'" United States v. Wharton, 320 F.3d 526, 537 (5th Cir. 2003) (quoting United States v. Erdos, 474 F.2d 157, 160 (4th Cir. 1973)). We believe this definition is correct and that the test is easily satisfied here. The record shows the district court issued the arrest warrant for Ridgeway. On the same day, he was arrested by the FBI in the District of Columbia and formally booked. The defendants argue Ridgeway's freedom was never ...


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