United States v. Santiago (987 F. Supp. 2d 465, 2013)

POST-HEARING DECISION ON DEFENDANT’S MOTIONS TO DISMISS THE INDICTMENT FOR PROSECUTORIAL MISCONDUCT/VIOLATION OF DUE PROCESS; TO DISMISS COUNT ONE FOR FAILURE TO ALLEGE ELEMENTS OF THE OFFENSE; AND TO SUPPRESS STATEMENTS ALLEGEDLY TAKEN IN VIOLATION OF MIRANDA V. ARIZONA

McMAHON, District Judge:

On November 13-14, 2013, the court held the hearing ordered in its opinion dated August 13, 2013. See United States v. Santiago, 10 Cr. 39(CM) (Docket # 20). Familiarity with that opinion is presumed.

The purpose of the hearing was to develop a factual record about how a criminal case about the unintentional shooting of one U.S. serviceman by another in a theatre of war ended up in a United States District Court in New York City. The hearing was occasioned by defendant’s motion to dismiss the indictment, on the ground that his right to due process had been violated by pre-indictment delay. The court also agreed to hear evidence that might indicate a Miranda violation, though it appears from the post-hearing briefing that the defense has abandoned his Miranda challenge (and justifiably so, since there was no violation).

I am now satisfied that I have a complete record about what happened between February 2008, when United States Marine Corporal Wilfredo Santiago accidentally shot United States Navy Corpsman Michael John Carpeso in the eye, and January 2013, when Santiago was indicted by a grand jury sitting in this District for reckless assault and making false statements to Government agents in connection with that incident.

It is not a tale that inspires confidence in our criminal justice system.

Over the years, potential jurors often tell the court during voir dire that they watch the television programs about law enforcement. Among the most frequently mentioned shows are JAG (about the Navy Judge Advocate General’s Corps) and its spinoff, NCIS (Navy Criminal Investigative Services). These long-running shows depict the exploits of dedicated and fearless criminal investigators and lawyers who solve major case crimes committed by members of the United States Navy and the United States Marine Corps. The popularity of these shows with our “thank you for your service” public shows no sign of abating; NCIS holds the distinction of being the most-watched network television program in the United States for ten consecutive years (Wikipedia, http://en. wikipedia.org/wiki/NCIS_(TV_series)).

Needless to say, the investigators on NCIS the television show are dogged in their pursuit of criminals, while the lawyers of the JAG Corps always get their man (or woman) through a combination of hard work, investigative insight, physical dexterity and courage. Neither the NCIS investigators nor the JAG attorneys depicted on television would ever allow a case to fall through the cracks.

The recently-concluded hearing allowed this court to peek at the real NCIS and JAG. The case that confronted them involved a young Marine corporal at the end of his third tour of duty in Iraq — one who apparently enjoyed a reputation among his peers for playing with his side-arm — and a Navy corpsman with whom he worked. The corpsman lost an eye. The corporal, Wilfredo Santiago, at first denied having shot his colleague. But NCIS investigators quickly identified him as the culprit, interviewed a third person who was present at the shooting, secured a confession, and confirmed its essentials (if not all its details) with forensic evidence. They solved the case within weeks of the shooting; not a scintilla of evidence was acquired through subsequent efforts.

While NCIS did its job, JAG only talked the talk — it did not walk the walk. Every Marine officer, whether line or legal, who learned about the incident now says he think that the offender should have been court-martialed. But nothing happened. After three and a half years — during which the only real investigation that took place was into how Santiago managed to get out of the Marines without being court-martialed — the young Marine was never called to account. The real JAG dropped the ball, and did so deliberately, not accidentally or inadvertently — even though the Department of Defense was prepared to fight a turf war with the Department of Justice to keep the case within the military.

By the time civilian authorities had both the inclination and the jurisdiction to pick the matter up again, the United States Marines were long gone from Iraq. More important for our purposes, the only eyewitness to the shooting — an Iraqi translator who, in several interviews with NCIS investigators, had specifically and emphatically denied that defendant was “playing with” or “quick drawing” his gun just before it went off — had disappeared. The loss of his testimony works severe prejudice to defendant, the moreso because the Government hopes to bolster a case short on direct proof with highly prejudicial 404(b) evidence about prior instances when Santiago was playing with his gun.

For the reasons set forth at length below, Santiago’s motion to dismiss Count One of the Indictment on due process grounds is granted; his alternative motion to dismiss the same count for failure to allege elements of the offense is denied as moot. His motion to dismiss Counts Two and Three is denied. His motion to suppress the statements he made to a Marine Investigator and NCIS, which underlie Counts Two and Three of the indictment, is also denied.

STATEMENT OF RELEVANT FACTS

Ownership

Before outlining the facts, it is necessary to brief the civilian reader about the concept of “ownership” of a soldier, because it impacts heavily on everything that did— and (mostly) did not — happen while this ease was with the Marine Corps.

Numerous military witnesses at the hearing used the verb “own” to describe having responsibility for that person, or unit, or function. (See Tr. 12, 76, 98, 122-124, 203, 207). A drill sergeant “owns” the recruits he is responsible for training. A platoon leader “owns” the members of his platoon. A battalion commander “owns” all the units that make up the battalion; a brigade commander owns all the battalions in his brigade, plus the associated support units. The captain of a ship “owns” the ship, its equipment and everyone stationed on board. “Ownership” is shorthand for being accountable for someone or something. At the highest levels, it is where the buck stops.

Military personnel are subject to frequent transfers, whether for logistical reasons (deployments to theatres of war) or career development (transfers that broaden experience). In such a system, matters could easily fall through the cracks. The armed services pride themselves on transferring “ownership” of assets, both human and material, in ways that ensure continuity of supervision, with nothing falling through the cracks. Responsible transfer of ownership is essential to carrying out “the mission.”

It does not always work, of course. In this case, holding CPL Santiago accountable for the injury to HM3 Carpeso fell through the cracks, because no one really “owned” CPL Santiago at any point between February 2008, when he was identified as the culprit in the shooting, and June 2011, when he ceased to be subject to the Uniform Code of Military Justice. As a result, no one appropriately prioritized his case.

For ease of reference: CPL Carpeso’s “parent” command, from which he deployed and to which he was expected to return, was the 1st Battalion, 8th Marines, Second Marine Division. (1/8 Bn, 2 Mar-Div, or “the 1/8”), which is headquartered in Camp Lejeune, North Carolina. The 1/8 and 2 MarDiv “owned” Santiago at his home base. While deployed in Iraq, he was associated with Mobile Training Team (MTT) 0712, which was commanded by CPT. Benjamin Drude. MTT 0712, a unit of 2 MarDiv which was part of the Second Marine Expeditionary Force Forward (II MEF Fdw). Santiago’s MTT was “owned” by II MEF Fwd for most of its overseas deployment. COL. Vincent R. Stewart was the Commander of II MEF Fwd. As his superior officers, both CPT Drude and COL Stewart “owned” Santiago.

In February 2008, at the time of the events that gave rise to this prosecution, II MEF Fwd was in the process of leaving Iraq; it was engaged in a transfer of authority (TOA) to its replacing unit, the First Marine Expeditionary Force Forward (I MEF Fwd). (GX 52, Santiago 001083). II MEF handed off responsibility in Iraq to I MEF a month before Santiago’s unit left for home. (GX 52, Santiago 001084). As a result, for the last few weeks of his stay in Iraq, Santiago’s unit was technically “owned” by I MEF Fwd.

When Santiago returned to Camp Lejeune, he was briefly reassigned to a unit in his parent command, the 1/8. Id. He then left active service and became a member of the Individual Ready Reserve (IRR). (GX 52, Santiago 001085). While he served in the reserves, Santiago, who lived in New Jersey, was “owned” by Marine Forces Reserves (MARFORRES), which is headquartered in New Orleans, LA — a place where, as far as the court knows, Santiago has never visited. No individual at MARFORRES ever “owned” Santiago; he had no commanding officer while on IRR status.

The Incident

HM3 Michael John Carpeso, U.S.N., was shot in the left eye on January 26, 2008 at Joint Security Station One in Northern Diwaniyeh, Iraq. (GX 21, Santiago 002344). The shooting took place inside the billeting container of the USMC compound at JSS-1. Id. Only three people were present in the container at the time of the shooting: Carpeso, Marine CPL Wilfredo Santiago, and an Iraqi interpreter known as “Hollywood.” Id.

The Investigation

HM3 Carpeso was immediately flown out of theatre for medical treatment. Id. Carpeso spoke to various individuals who accompanied him on his journey toward medical assistance — first to Camp Echo and eventually to Walter Reed Medical Center in Washington, DC. He was also interviewed by NCIS at Walter Reed. Carpeso told all to whom he spoke that he was fairly certain he had not wounded himself. However, he could not definitively say what had happened to him. (GX 21, Santiago 002011-12).

As initial indications at the scene were that Carpeso might have shot himself, First Lieutenant David Wang was ordered to conduct a Line of Duty investigation. The relevant details of Wang’s investigation are recounted at length in the court’s prior opinion and need not be repeated here. Shortly after Wang made his report, NCIS agents were assigned to look into the shooting.

The on-site investigation was conducted by NCIS Special Agents Sean Dorsey and Steven Neher. (GX 21, Santiago 002343-48). They interviewed a number of potential witnesses, notably Hollywood, who told them during a February 4, 2008 interview that he was sitting on the side of a cot in the trailer directly across from Carpeso, while Santiago was standing to Carpeso’s left, about five feet away. (GX 22). When the shot went off, Carpeso was leaning down to retrieve something from the foot of or below the cot. Hollywood did not believe that Carpeso shot himself, but he could not say with certainty that Santiago shot Carpeso. Id. Hollywood did say that he saw Santiago pull his M9 pistol in and out of his holster a few times shortly before the shooting. Hollywood provided investigators with a drawing of the scene. Id.

Aside from Santiago, no one else interviewed by Dorsey and Neher was present when the incident took place. (See GX 21, Santiago 002343-44). However, several people told the NCIS agents that they suspected Santiago was at fault, because they had seen him handle weapons carelessly in the past. For example, Sergeant Michael Flanary, who did not witness the shooting, advised NCIS investigators that Santiago regularly exhibited a habit of being careless with his handgun. (GX 21, Santiago 002222). Flanary’s opinion was echoed by two others in the unit: Lance Corporal Erich Martin Ellis, who also did not witness the shooting, but who came on scene shortly thereafter and recovered the bullet that injured Carpeso, and LCpl Mark Willard Hammann, another non-witness, who claimed to have seen Santiago “dry firing” his weapon in' an unsafe manner on other occasions. (GX 21, Santiago 002209-10 and 002237-38). It is not clear whether these alleged incidents of “dry firing” and “quick drawing” were reported up the chain of command — or, if they were, why Santiago was not disciplined, since then proper handling of a weapon is something Marines take with particular seriousness.

On February 4, 2008, Dorsey and Neher also interrogated Santiago. Santiago was directed to speak with NCIS by a lieutenant in his command. (Santiago Aff. 9). At the hearing, Dorsey testified credibly as follows: (1) Santiago was interviewed in the same room used for all other witness interviews; (2) Santiago was not in handcuffs when he arrived; (3) Santiago was not escorted to the interview site; (4) Santiago was not “ordered” by NCIS to the interview site, as NCIS does not have authority to issue orders to members of the military; (6) in the first 15 minutes or so following his arrival, NCIS agents documented Santiago’s personal information (see GX 55 Santiago 000967); (7) during those 15 minutes, Santiago was not asked any questions about the shooting; (8) at 1:48 p.m., after taking his pedigree information, NCIS advised Santiago of his Article 31 rights (see the court’s prior opinion for an explanation); (9) Santiago was read his rights before there was any discussion of the shooting. (Tr. 134). Among the Article 31 rights of which, Santiago was advised was the right to terminate the interview at any time. (Id.; GX 54). Santiago signed a form waiving his rights at 1:55 p.m. Id. Dorsey provided a timeline for these events, which was prepared contemporaneously with the events and which the court credits. (GX 55).

When advising Santiago of his Article 31 rights, Dorsey informed Santiago that he was being investigated for shooting Carpeso. (Tr. 138). Because Santiago’s prior false statement to Wang was not “the focus of [NCIS’s] investigation,” Dorsey did not list that potential crime in the written Article 31 warning. Nonetheless, as Dorsey explained, there was no “strategic decision to not mention false statements.” (Tr. 139). Dorsey testified that at no point in the interview did anyone “promise Santiago that he would not be prosecuted for statements he had previously made to Lieutenant Wang” or “tell Santiago that a prior false statement ... to Wang would be voided if Santiago told [NCIS] the truth about what he had said to Wang.” (Tr. 137)

At a second session with the NCIS agents on February 5, 2008, after receiving and waiving his Article 31 rights, Santiago specifically denied that he had been “quick drawing” his weapon, but that “he was clearing his weapon” prior to the shooting of Carpeso. (Tr. 145)

On these facts, there is no basis to conclude that Santiago’s fully-warned, noncustodial, voluntary statements to NCIS were obtained in violation of Miranda.

SA Dorsey briefed COL. Stewart and COL Bruce Landrum, the Staff Judge Advocate for I MEF Fwd (the incoming command), on February 5, 2008 — about a week after the shooting, and within 24 hours after interviews were completed and Santiago confessed. (GX 52/DX A, Santiago 001106). At that point, Santiago was being investigated for two suspected offenses: Discharging a Firearm through Negligence in violation of Article 134 of the UCMJ and Making a False Official Statement pursuant to Article 107 of the UCMJ. (GX52 Santiago 001112). An assault charge was apparently not being considered at that time.

Forensic evidence was collected at the scene and transported to NCIS headquarters in Iraq for processing. (GX 52, Santiago 001082). The forensics results came back sometime during March 2008. Ballistics tests determined conclusively that Santiago’s weapon fired the bullet that was recovered near the scene of the shooting. (GX 52, Santiago 002504). No blood could be detected on the bullet that was recovered at the scene. Id.

At that point, the factual investigation was complete. Although there would be several other interviews of Hollywood over the next couple of years (see GX 24, 26 and 28), no new facts were developed after March 2008. Everything that was needed to make a prosecutorial or disciplinary decision was available by that time; SA Neher reported to NCIS Headquarters in Quantico on or about April 16, 2008, “All logical leads have been completed. This investigation is pending possible administrative/judieial action against S[suspect]/SANTIAGO.” (GX 52, Santiago 002504; Tr. 165). NCIS closed its active investigation in April 2008 pending a prosecutorial decision. (Tr. 146).

COL Stewart did nothing to convene a court-martial against Santiago. He would later tell the investigating officer in a Marine inquiry that he believed Santiago should have been court-martialed; he would excuse his failure to send Santiago back to the United States for, legal proceedings because he was “not present [in Iraq] to take further action on the case.” (GX 52, Santiago 001153). That is not exactly accurate. COL Stewart redeployed to the United States on February 6, 2008 — the day after he and COL Landrum were briefed. (See GX 52, Santiago 001083). COL Stewart,could presumably have signed an order on February 5, 2008 — the day he was briefed — either starting the process of court-martial in the field (which many witnesses described as cumbersome and difficult to accomplish) or directing that Santiago return to the U.S. with him and II MEF Fwd. Ironically, in the subsequent Marine inquiry into' the matter (discussed below), COL Bourdon, the investigating officer, concluded that sending Carpeso back to the U.S. with' II MEF Fwd, rather than allowing him to remain in Iraq for an additional month with I MEF Fwd, would have been the best course of action, because COL Stewart “had visibility of that cáse, and would have been a proper convening authority in that case.” (GX 52 Santiago 001094). COL Bourdon was wrong: COL Stewart knew about the case, but it did not have enough “visibility” of it to take any steps toward convening a court-martial. Once back in the United States, Stewart seems to have put the matter out of his mind; he took no steps to convene a court martial against Santiago upon his return.

COL Landrum, the I MEF Fwd Staff Judge Advocate who was (obviously) remaining in Iraq, knew that Santiago’s unit was due to rotate back to the United States on March 15, 2008. Rather than suggest that I MEF Fwd, Santiago’s temporary command, initiate action against him in Iraq, Landrum lateraled responsibility for the matter to the Staff Judge Advocate at Camp Lejeune, where Santiago would be returning. (GX 52, Santiago 001128-29).

Most significantly, no officer from any unit that “owned” Santiago during his tour in Iraq took the step of placing him on “legal hold,” so that his status could not change while the matter was being transferred back to the United States. NCIS had no authority to place anyone on legal hol'd status; that was a command function. (GX 52, Santiago 001156). CPT Drude knew that Santiago’s End of Active Service (EAS) date was coming up fast, and CPT Drude had the authority to place his subordinate on legal hold. But CPT Drude had been advised by his superiors to leave the Santiago matter alone. Furthermore, as the investigating officer specifically found, he was given absolutely no legal guidance by the Staff Judge Advocate or anyone else who might have helped him understand and handle a legally fraught situation. (GX 52 Santiago 001093).

CPT Drude was not the only person who could have put Santiago on legal hold, of course; someone else might have taken this essential step if he had known that Santiago was due to EAS on June 8, 2008 — a mere four months after the Carpeso incident and less than three months after his return to Camp Lejeune. All Staff Judge Advocates know that a Marine’s EAS is “a magical date that basically terminates that jurisdiction over that active duty member.” (Tr. 211). But as one of the lieutenants in Santiago’s MTT observed, “EAS in Iraq was not an issue as they were deployed, not getting out.” (GX 52, Santiago 001149). In short, while deployed overseas, the possibility that Santiago might not remain in the Marines much longer was not on anyone’s radar screen. Focused on getting back home, and then moving on to new assignments, neither COL Stewart (the logical candidate) nor any other officer who knew about the case thought to check defendant’s EAS status upon return.

The failure to place Santiago on “legal hold” immediately following his confession is particularly significant because, once back in the United States, II MEF Fwd— the unit that had “owned” Santiago during his tour in Iraq — effectively ceased to exist. Officers who knew about the matter were quickly moved to their next assignment: for example, COL Jordan, the Staff Judge Advocate for II MEF Fwd (who, along with COL Stewart, counseled CPT Drude not to become involved), changed his permanent duty station from Camp Lejeune shortly after redeployment. (GX 52 Santiago 001163).

As for Santiago himself: according to Major Brian S. Cohn, MTT members who redeploy to the United States are kept for a few days after their arrival stateside at Marine Headquarters Group (MHG) for “warrior transition training.” (GX 52, Santiago 001151) After that, they are sent back to their parent commands, from which they go on block leave (a long period of leave for units returning from deployment, generally 30 days). Id. That is exactly what happened to Santiago. He returned to the United States, spent five

days at MHG, was assigned to join a unit in his parent command (the 1/8 in 2 Mar Div), and proceeded to go on bloc leave with everyone else. (GX 52, Santiago 001159) He then commenced his terminal leave — accumulated leave that is taken immediately prior to leaving active service. Id.

This turn of events must have come as something of a surprise to CPL Santiago. Before defendant left Iraq, Gunnery SGT Jason Webb, who was handling administrative matters for the unit in theatre, counseled Santiago that he would be placed on a legal hold and denied terminal leave if any sort of legal proceeding were pending against him. Id. GySGT Webb expected that to occur; he was told that the 1/8 would assume responsibility for the investigation back at Lejeune. Id.

That no one at the 1/8 took over any investigation is not surprising, since it seems that no one at the 1/8 or at II MEF MHG knew about any criminal investigation. No one at Camp Lejeune who might have “owned” Santiago once he returned to the United States was told about an open investigation; administrative personnel at MHG continued to believe, as they had originally been told, that Carpeso shot himself until well into June, even though that version of events that had been discredited by February 4, 2008. (GX 52, Santiago 001094). Webb, who was aware of Santiago’s status, did not advise anyone at MHG to Santiago’s imminent departure from active duty. (GX 52, Santiago 001159).

Having been alerted by Webb to the possibility of prosecution, Santiago actually consulted a JAG lawyer at Camp Lejeune prior to his EAS date. He was told that there was no record of the incident and no charges were pending. (Santiago Decl. at ¶ 12.). As a result, there was no impediment to Santiago’s being discharged honorably from active service — which he was, on June 8, 2008, his scheduled EAS date. (GX 30).

Santiago then became a member of the Individual Ready Reserve (IRR). He returned to a family member’s home in New Jersey, married, went to college and got a job. He assumed that the matter was over. Everything recounted below went on without his knowledge.

NCIS Transfers the Case to Lejeune

One reason that no one at the 1/8 or' MHG knew about the open investigation into Santiago was that NCIS Lejeune did not “officially” know about the investigation until after Santiago had EAS’d. ■

Knowing that Santiago was due to return to the United States, NCIS transferred the case to NCISRA Camp Lejeune. The entire case file and evidence were mailed to North Carolina via registered mail on April 8, 2008. The registered mail numbers appear in an NCIS investigative report dated April 16, 2008, so the file had to have been mailed prior to that date. (DX A, Santiago 002504)

According to SA Kevin Marks, NCIS Lejeune received the case file on May 6, 2008, and assigned SA Robin Knapp to the file that same month. (GX 52, Santiago 001089). This gave agents a month to assess Santiago’s status and alert line officers, who could place him on a legal hold. However, no one thought to check the suspect’s EAS status. Someone did, however, notice that a preliminary NCIS Report was missing from the transmitted file. Per NCIS policy, a new office would not begin work on an open investigation until it received all documents from the predecessor office. (GX 52, Santiago 001090 & 001094). As a result of this overly bureaucratic attitude, Knapp could do nothing before the investigation was “officially accepted” by NCIS Lejeune, which occurred on July 2, 2008. (GX 52, Santiago 0010900). By that time, of course, Santiago was only a few days short of discharge from active duty, and Knapp, the agent assigned to the case, was apparently on leave (see GX 52, Santiago 001130).

In any event, Knapp did nothing with the file over the entire summer of 2008. In fact, nothing happened on the case until September 9, when Knapp finally contacted SGTMAJ Rudy Resto of the 8th Marine Regiment. Resto was constrained to tell NCIS that Santiago was no longer a Marine. (GX 52, Santiago 001091 & 001113).

When Resto gave NCIS the news that Santiago had EAS’d, he was advised that the Staff Judge Advocate for II MEF was reviewing the matter with command authorities, with the possibility that Santiago would be recalled to active duty and prosecuted. (GX 52 Santiago 001113) As it happens, that could easily have been accomplished. However, according to an email that was introduced at the hearing, the Marines were still looking into that issue two months later; on November 14, 2008, NCIS was told that JAG was “still researching” the question. (GX 52, Santiago 001115) This is symptomatic of something that happened repeatedly in this case: Marine lawyers taking months to make the most modest progress on tasks that any halfway competent second year law student could complete in a matter of hours.

I will, however, assume that the JAG officers attached to the Marine Corps eventually figured out that a reservist could be recalled to active service for court-martial. It was a fact the Marines proceeded to ignore.

Marines Investigate — the Marines.

Holding Santiago accountable for shooting Carpeso quickly took a back seat to figuring out just who had let Santiago get out of the Marines.

0n December 15, 2008, COL Raymond Coia, Chief of Staff of II MEF, the parent unit of II MEF Fwd, appointed COL Mark J. Bourdon of the U.S. Marine Corps Reserves to “inquire into the circumstances surrounding the apparent lack of communication and coordination between the various II Marine Expeditionary Commands and the Naval Criminal Investigative Service with the resulting release of a suspect from active duty.” (GX 52, Santiago 001099).

Apparently, when something is really important to the Marines, they know how to get it done quickly. The Chief of Staff directed COL Bourdon to make this inquiry his “primary duty until all of the requirements in the preceding paragraphs have been met.” ' (GX 52 Santiago 001099). In less than two months, COL Bourdon reviewed the NCIS investigative reports and the LOD investigation documents, looked through all relevant email chains, and interviewed some 20 individual officers, servicemen and NCIS agents who touched Santiago’s case from its inception until Santiago was released. ’ (GX 52, Santiago 1079-1098). On February 5, 2009, he issued a comprehensive report describing what he had learned. Id.

Attached to the report are the sorriest lot of “CYA” interviews I have ever read. (See GX 52 Santiago 001140-001163). Everybody blamed everyone else, or said it was “not my job” to insure that the Santiago/Carpeso matter was brought to a satisfactory conclusion. What comes through loud and clear in COL Bourdon’s report is that nobody “owned” Santiago long enough to take care of business; everyone assumed that someone else would handle the matter. (See GX 52, 1094).

Col Bourdon made the following findings:

(1) The Rules for Courts Martial require “immediate commanders” to convene a preliminary inquiry into any offense triable by court-martial and to seek assistance from law enforcement personnel.

(2) Santiago’s immediate commanding officer (CPT Drude), the Staff Judge Advocates for II and I MEF Forward (Landrum and Jordan) and the Commanding Officer [¶] Bn II MEF Forward (Stewart) were “fully aware”' on or about 5 February 08 that Santiago was responsible for the shooting and that he had lied to the Investigating officer;

(3) A decision to prosecute Santiago and a course of action to put that process in motion should have been implemented immediately after the NCIS briefing occurred, with Santiago placed on legal hold;

(4) CPT Drude was not given any guidance on the legal road ahead for Santiago, and his decision to allow Santiago to remain in Iraq with his unit contributed to the breakdown in tracking the case;

(5) Santiago’s case “got lost in the shuffle of multiple commands as well as an investigative process that could not keep pace with those movements. There were too many moving parts between the shooting on 26 Jan 08, the TOA of II MEF Fwd to I MEF Fwd on 10 Feb. 08, his redeployment to II MHG on 28 March 08 and his return to 1/8 on 28 March 08;” and

(6) Unnecessary NCIS procedures contributed to the delay.

(GX 52, Santiago 001092-001095).

Nonetheless, Bourdon, who began his report by stating that his Opinions and Recommendations “are not designed to criticize or place blame” (GX 52, Santiago 001080), recommended that'no administrative or punitive action be taken against anyone for failing to place Santiago on legal hold. (GX 52, Santiago 001097).

COL Coia appears to have accepted this recommendation, though he had harsh words for Santiago’s Officer-in-Charge and his Commanding Officer (I assume CPT Drude and COL Stewart respectively). So did LtGEN D.J. Hejlik, the Commander of II MEF and the ultimate recipient of COL Bourdon’s memo. (GX 52, Santiago 001076-78). Both men concluded that Santiago’s Commanding Officer should have made the decision to prosecute and settled on a course of action to support that decision as soon as he received the February 5, 2008 NCIS briefing (i.e., before he left Iraq). Both assigned blame to CPT Drude for failing to make the responsible commander aware of Santiago’s “circumstances,” which I assume refers to his EAS status. Id.

The last recommendation made by COL Bourdon was: “That Cpl Santiago be held accountable and prosecuted for his actions in shooting HM3 Carpeso and providing false statements to the Investigating Officer.” (GX 52, Santiago 001097). This recommendation was not specifically mentioned in the endorsements by COL Coia or LtGEN Hajlik; however, by accepting Bourdon’s report without either commenting on or changing the recommendation in favor of prosecution, it appeared that they were tacitly endorsing it.

But neither officer did anything, or directed anyone else to do anything, that would have brought Bourdon’s ultimate recommendation to fruition. Quite the opposite: both Coia and Hejlik signed off on the matter with the statement: “No further actions directed.” (GX 52, Santiago 001075-78).

The ultimate destination for COL Bourdon’s report, with its recommendation that Santiago be prosecuted, is found in the header on LtGEN Hejlik’s FIRST ENDORSEMENT:

From: Commanding General, II Marine Expeditionary Force

To: File

(GX 52,' Santiago 1076).

To the File it went; in the File it stayed.

The Matter Goes to Main Justice

NCIS, which periodically filed a Report of Investigation on the Santiago matter, was copied on LtGEN Hejlik’s memorandum. (GX 52, Santiago 001078). Shortly thereafter, NCIS agents contacted the United States Attorney’s Office in Raleigh, North Carolina in the spring of 2009 to discuss the case. (DX A, Santiago 001376). The record does not reveal who made the decision to send the case to the civilian sector or why that was thought necessary, as the military had the ability to recall Santiago and court-martial him.

Assistant United States Attorney Mark Singer, of the Human Rights and Special Prosecutions Section at Main Justice, which handles prosecutions under the Military Extraterritorial Jurisdiction Act (MEJA), was assigned to the case, though not until June 29, 2009. (Tr. 223).

Singer was given the most recent (March 2009) ROI from NCIS. Id. This ROI, on closer inspection, is nothing more than the original investigative report that was prepared in Iraq by the field agents and sent to NCIS Lejeune in April 2008; attached to that report were periodic cover memos that say, “We’re waiting for something to happen ... we’re still waiting.” (GX 21)

Singer, being newly assigned to the case, needed to make it his own. And while everything needed for court-martial was right there in the file as of April 2008, that was not necessarily the case for prosecution under the United States Code. For example, this court’s research does not turn up any section of the United States Code that makes it a federal crime to handle a weapon carelessly, which was the principal charge being contemplated by NCIS and the Marines. Singer would have to make out the elements of a criminal assault before the shooting (as opposed to the false statements, which were crimes under both the U.S.Code and the UCMJ) could be prosecuted in a civilian court. It is thus not surprising that he considered the matter to be in “the preliminary stages of investigation.” (Tr. 225), or that he believed that the victim and the witnesses needed to be reinterviewed. (Tr. 227).

Carpeso still could not describe how he came to be shot. Aside from Santiago (who was not contacted by NCIS) the only person with first-hand knowledge about the incident was Hollywood. So SA Knapp, working with an NCIS field agent in Iraq, SA John Stamp, obtained a second statement from Hollywood in October 2009. (Tr. 230).

In this, his second statement, Hollywood said, in substance, that Santiago had been given Carpeso’s pistol to return to Carpeso; that Santiago removed the weapon from his right thigh holster, returned the weapon to the holster, and removed it again; that both Hollywood and Carpeso then bent over to look under their respective cots for a pen; that Hollywood heard a gunshot while in that position; that he looked up to see Santiago standing with the pistol in his hand; that the pistol was aimed down at the ground; and that he did not see Santiago shoot the gun. (GX 24). Significantly, this statement included the following: “It did not seem to me that SANTIAGO was playing with the gun when it went off.” Hollywood admitted that he does not read English well, so SA Stamp read the statement to Hollywood before he signed it. Id.

Each side can latch onto something in Hollywood’s second statement, but the words, “It did not seem to me that SANTIAGO was playing with the gun when it went off,” were not at all helpful to a Government whose theory of recklessness is that Santiago was in fact “playing with his gun when it went off.” Singer recognized as much; he testified that he needed to “follow up” on that statement. So on November 2, 2008, after speaking to Singer, SA Knapp sent an email to SA Stamp (GX 25) asking for clarification on a couple of points:

(1) Was he sure the weapon S/SANTIAGO fired was V/CARPESO’s? (“S” is suspect; “V” is victim).

(2) Was S/SANTIAGO playing “quick draw” with his weapon vice “cleaning it?” In other words, had he seen S/SANTIAGO do the same thing pri- or to the incident?

(3) Did S/SANTIAGO make any effort to clean the weapon prior the shooting.

Stamp responded with the following statement from Hollywood (GX 26):

These questions were asked of me by SA Stamp:

Q: Was the weapon SANTIAGO fired assigned to CARPESSO’s? [sic]

A: The weapon that Santiago used to injury Carpesso was Santiago’s assigned Weapon. He had put Carpesso’s weapon down and was drawing his own when it fired.

Q: Was SANTIAGO playing “quick draw” with his weapon vice “cleaning it?”

A: No.

Q: Did you see SANTIAGO doing the same thing prior to the incident?

A: No.

Q: Did SANTIAGO make any effort to clean the weapon prior to the shooting: A: No, we were on mission, he was not in a position to clean the weapon.

Having received from his only eyewitness a bald denial that Santiago was playing “quick draw” with his gun, Singer sent Stamp yet another email, asking him to see about setting up an interview with Hollywood “by VTC or even telephone” in the near future. (GX 27). This resulted in Hollywood’s giving yet another statement to SA Stamp on January 11, 2010. (GX 28). In this . statement, Hollywood said:

SGT Santiago was drawing his pistol out of his drop holder on his leg. He would take the pistol out and put it back in the holster, but at that time I didn’t see him pointing it at anyone. I looked down at the ground looking for a pen in my gear which was on the floor. While I was looking down I heard a gunshot go off and I looked up and saw SANTIAGO pointing his pistol at Doc CARPESSO. Doc had been shot in the head....

Hollywood also made a video (GX 29) restaging the incident, which the court has viewed.

Despite the several ambiguities, possible inconsistencies and pro-defendant aspects in Hollywood’s various accounts, Singer was prepared to proceed to prosecution on a charge of reckless assault.

And then....

Singer had been asking for Santiago’s personnel file for some time. In January 2010, he finally received it. It showed that defendant was in the Individual Ready Reserve, and would be until June 2011. (Tr. 247).

Singer realized that he might have a jurisdictional problem. As discussed in the court’s prior opinion (Docket # 20), MEJA specifically provides that a person who is “subject to” court-martial cannot be prosecuted under' MEJA, unless he is charged as a co-conspirator with someone who is not subject to court-martial. Santiago was not being charged as a civilian’s coconspirator, so he did not fall within the exception.

The Marines knew that Santiago was a reservist, and that he could be recalled and court-martialed (I simply refuse to believe that Marine JAG lawyers are unaware of this fact). Nonetheless, there is no indication in the record that anyone connected with the Marines or NCIS looked into the issue of civilian jurisdiction before sending the case to the Justice Department.

Once Singer was alerted to the issue, however, he consulted with several people about the scope of MEJA jurisdiction over a reservist, including LTC George Cadwalader, Deputy Staff Judge Advocate for 2 MarDiv, and Robert Reed, Associate Deputy General Counsel for Military Justice and Personnel Policy at the Department of Defense. LTC Cadwalader believed that Singer and the Marines had concurrent jurisdiction to prosecute an inactive reservist. (GX 15) But Reed took a very strong position that MEJA jurisdiction could not attach to anyone who was subject to recall, because such a person was still “subject to” prosecution under the UCMJ. (Tr. 248-49). Santiago was such a person.

Once it became clear that Mr. Reed was a person of consequence at DoD, and that the agency was going to adhere to its position on jurisdiction (GX 17; Tr. 249), Justice agreed to step aside and let the Marines handle the matter. However, it took from January to May 2010 to get Mr. Reed’s response (to a question that the court answered for itself in the time it took to locate and read the statute).

And so the case went back to the Marines. By not becoming familiar with their civilian masters’ position on the amenability of reservists to MEJA jurisdiction, and kicking the matter over to Justice, the Corps had managed to waste an entire year.

But Santiago had not yet been prejudiced by the delay.

Over the next twelve months, that would change.

“We Will Hold This Service Member Accountable”

In June 2010, two things of significance to this case happened.

First, Hollywood reached the end of his contract with Global Linguistic Solutions, the civilian contractor that made interpreters available to the military in Iraq. {See NCIS ROI of 10 April 2012, attached to email from AUSA Damian Williams to the court, dated December 12, 2013). He thus ceased to be attached in any formal way to the Marine Corps.

Second, LTC Jonathan Hitesman, the Staff Judge Advocate at 2 MarDiv, Santiago’s old command, briefed the commanding general of the Division, MajGEN John A Toolan, on the Santiago situation. (Tr. 179). Toolan ordered that papers be prepared for submission to the Secretary of the Navy, recalling Santiago to active duty to face a court-martial. (Tr. 180).

CPT Richard Lee, a Staff Judge Advocate a 2 Mar Div Lejeune and one of Hitesman’s subordinates, was the first person assigned to carry out MajGEN Toolan’s recall order. (Tr. 181). The matter sat on his desk over the summer of 2010. Lee was unable to complete his rather simple assignment.

Lee was ostensibly working on a request, addressed to the Secretary of the Navy, for permission to recall Santiago to active service. (Tr. 105). He received a sample of a recall order in June 2010, which he was supposed to use as a template to prepare a similar request for Santiago. (Id.; GX 10). This template, which had been prepared to effect the recall of a different Marine (one accused of sexually assaulting a female colleague), consisted of two pieces of 8.5 by 11 paper. There was typing on the front and back of each page. Id. The document’s contents included a summary of the offense allegedly committed by the Marine to be recalled, information about the offender’s reserve status, and a formal request to the Secretary that he be reactivated so that he could be prosecuted. Id.

After three months, CPT Lee managed to get this far: he inserted some information about CPL Santiago and his case onto his copy of the other Marine’s recall request — without removing irrelevant information about the other Marine, including his name and the charge against him! Id. Lee did not insert any information about Santiago’s case — nor could he have done. Aside from having a five minute conversation with LTC Cadwalader, he never informed himself about the, facts of the case — never reviewed the NCIS ROIs, or spoke to Singer, or to anyone at NCIS who could have assisted him. (GX 6). The Government urges that Lee was actively investigating because he “considered” several different charges against Santiago, including a charge of assault under the UCMJ. In fact, Lee did not “consider” anything — apprised of no facts, he was in no position to evaluate charges, or to advance any investigation. In the face of a direct order from a General Officer directing that Santiago be recalled, he simply (and, to this court, astonishingly) did nothing.

But Lee, like every other Marine who touched this matter, was soon in a position to say that Santiago’s recall was not his job. By late September 2010, with the clock on Santiago’s ultimate departure from the Marines down to nine months, the Marines decided that Marine Forces Reserves (MARFORRES) — the unit responsible for IRR members — should handle the case, rather than 2 Mar Div, Santiago’s former (and presumably future) command. If MARFORRES was the proper place for the case, it is inexplicable that it was, not assigned there in the first place; it was common knowledge that MARFORRES handled courts-martial of reservists, (Tr. 18, 45), and it was certainly no secret that Santiago was in the reserves.

Transferring the file from North Carolina to New Orleans consumed another two months. The Santiago recall clock now stood at seven months and counting down, while every day that passed took Hollywood farther and further from routine contact with the Marines.

As part of the process of effecting transfer, Hitesman sent an email to COL Robert Kelly, his counterpart at the MARFORRES JAG office, stating, “We would like [Santiago] recalled and held accountable.” (GX 13). COL Kelly responded as follows the following day: “My new MOJO and senior prosecutor is CPT Pete Hardin ... and my second prosecutor is LT McDonnell. Pete would be best POC.... Charlie Gittens is defending. I have copied them all above and I will give you their numbers below. We will hold this service member accountable.” Id. (emphasis added)

But while COL Kelly talked the talk, his subordinates did not walk the walk.

In November 2010, the CPT Peter Hardin who was referenced in Kelly’s email, was assigned to the case. (Tr. 14). Hardin is the one Marine who would never be able to say, “Not my job,” but he quickly thought of a way to get the case off his docket. From his review of the file, Hardin was aware of prior civilian interest in the case. On December 9, 2010, Hardin contacted Singer at DoJ and offered to effect Santiago’s administrative separation from the Marines — in effect, to “kick [him] out of the Marine Corps,” thereby giving Justice exclusive jurisdiction under ME JA. (Tr. 23-24). Hardin thought that administrative separation — which he described as “a tool in our toolbox” at the Judge Advocate’s Office and a way to “grease the skids” — might happen more quickly than recalling Santiago for court-martial. (Tr. 26-29).

In fact, Hardin’s motive for suggesting administrative separation was more likely a desire to “punt the case” than to “grease the skids.” COL Kelly had promised COL Hitesman a ready-made team to “hold this service member accountable.” Hardin, by contrast, insisted in his testimony that “our” resources at the Judge Advocate’s Office were “limited” (Tr. 29), and that the logistics involved in arranging a court martial — including, finding available defense counsel and a Marine or Naval Judge— were overwhelming. (Tr. 11). Id. It is painfully obvious that he wanted nothing more than to pass the case along to someone else.

Singer, who had spearheaded the aborted civilian prosecution in 2009, would have been happy to take it back. His boss, Theresa McHenry, was less eager. McHenry had issues with the viability of the case in a civilian court. So after consultation within Main Justice, Singer advised Hardin that the Marines should go ahead and court-martial Santiago. Justice assigned three reasons for favoring military prosecution: the military’s purported control over Hollywood; McHenry’s concern that a civilian jury would be more sympathetic to Santiago, and her belief that he could face “more time from a court martial.” (GX35).

McHenry’s concern about control over Hollywood is particularly striking, because at the time she expressed it, any minimally informed American would have known that combat missions in Iraq had already concluded, and that troops were being withdrawn against a deadline of year-end 2011. (see infra). There is no evidence that McHenry knew that Hollywood was no longer working with the Marines, but she certainly knew that the Marines were not long for Iraq. Hollywood’s employment information was, of course, available to the Marines; Hardin, who was advised of her reasoning, could have disabused McHenry of her belief about the Marines’ ability to produce the translator. Needless to say, he did not.

On the very day that he told Hardin to take the lead and prosecute its Marine— December 14, 2010 — Singer, intuiting that Hardin had “no intention of court-martialing Santiago,” sent an email to McHenry predicting, “it’s likely this case will find it [sic] way back to our office sooner than we think” (GX 36). Nonetheless, McHenry stood by her decision to leave the ease with the Marines. In other words, at the time Justice made the deliberate decision not to resume prosecution of the case, it was fully aware that the Marines were never going to bring a prosecution — as, indeed, they did not — and that more time would be lost as a result.

Hardin never even completed the paperwork needed to recall Santiago. He took Lee’s four page “draft” and excised most— though not all — of the irrelevant information about another Marine. (GX 9, 38). Then, with the last Marines preparing to pull out of the area where the most important witness could be found, he put the case on the “back burner,” while attending to such front-burner tasks as attending “training events” and chauffeuring around a “high ranking general or two” who were visiting “The Big Easy.” (Tr. 36-37; GX 8).

Knowing that Santiago would leave the IRR on June 1, 2011, Singer sent an email to Hardin in March of that year, asking whether progress had been made toward recalling Santiago. He was told, politely but firmly, that the matter was not a priority. (GX 37),

Singer asked again in June, shortly after Santiago’s reserve commitment was scheduled to end. (GX 39). He got back an “I no longer work here” email, indicating that Hardin had moved to the JAG office at Camp Pendleton. Hardin apparently did not think it important to notify Singer before he moved, or to tell Justice (or brief his successor to tell Justice) that civilian jurisdiction had finally attached. Indeed, Justice did not get word of Santiago’s status until September 2001 — three months after his final detachment from the Marine Corps. (Tr. 266).

Justice Investigates Yet Again — and Indicts

Santiago’s final departure from military service enabled him to be prosecuted civilly. ■ Matters did not, however, proceed more swiftly.

In November 2011 — five months after Santiago was finally discharged from all Marine service, two months after Singer learned that he was well and truly a civilian, and the very month that the last U.S. troops left Iraq — Singer told SA Knapp to verify Santiago’s address and to re-interview key witnesses (including Hollywood) and possibly others. (GX 45) Why Singer waited two months to get Knapp started on the matter has not been explained. For that matter, why Singer, who had already completed an investigation, felt it necessary to’ start over, instead of simply proceeding to a grand jury, has not been explained.

The assignment was not high priority at NCIS; Knapp had made almost no progress on it by February 2012. He managed to locate some of the people Singer wanted him to re-interview. Hollywood, unfortunately, was not among them. (GX 47).

McHenry agreed.to reevaluate her reservations about civilian prosecution now that the military lacked jurisdiction. (DX T). Since her most recent information was that, Santiago lived in New Jersey, she brought the matter to the United States Attorney for that district. (Tr. 339). In fact, Santiago did not live in New Jersey, which McHenry did not know because Knapp had been dilatory in checking on this whereabouts. (Tr. 270-71). It was not until March 2012 that Knapp called the cell phone number listed in the NCIS notes from Santiago’s original February 2008 interview in Iraq. Id. Santiago had never changed the number; he answered the phone. That is how Knapp learned that his quarry had moved to the Bronx, in the Southern District of New York. Id.

Sometime during the spring of 2012, USAO/SDNY was contacted. In July 2012, the office agreed to take the case (Tr. 271). By the time it stepped in, NCIS had reported-that, “Efforts to locate and interview Hollywood proved futile.” (DX A, Santiago 2468). Singer recognizes that Hollywood is not available because of the delay in bringing the case against Santiago. (Tr. 277-78).

The Government did not have to do a lot of work in order to ready its case for presentation to a Grand Jury. It spent a total of eight days between September 27, 2012 and the end of November, 2012 interviewing (1) Carpeso and (2) a number -of people who cannot testify about what actually occurred on January 26, 2008, because they were not present. (Tr. 317-18). The Government has not pointed to a single new fact that was developed during the period when the matter was “under investigation” by the USAO/SDNY; indeed, it has not pointed to a single new fact that was developed after NCIS declared its investigation complete in April 2008. The one new evidentiary development that occurred during this period is that the Government hired a weapons expert — whose testimony was deemed necessary only because Hollywood was no longer available.

Santiago was finally indicted by a grand jury in this district on January 17, 2013 — a mere ten days before the five year statute of limitations applicable to the crimes charged was due to expire. It was three years after anyone had last seen or spoken to Hollywood, the man whose testimony might, if credited, exonerate the defendant of the crime of reckless assault.

Santiago now moves to dismiss the indictment because the delay in prosecuting him, while not running afoul of the statute of limitations, has nonetheless denied him due process of law.

CONCLUSIONS OF LAW

In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the Supreme Court considered the significance, for constitutional purposes, of a lengthy pre-indictment delay. Such delay gave rise to no Speedy Trial Clause implications, id. at 320, 92 S.Ct. 455, and the Court acknowledged that a citizen’s primary guarantee against stale or long-delayed criminal prosecution was the statute of limitations, which provided predictable, legislatively enacted limits on prosecutorial delay. Id. at 322, 92 S.Ct. 455 (citing United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966)).

But the Court also recognized that the statute of limitations does not fully define a defendant’s rights with respect to events occurring prior to indictment. Marion, 404 U.S. at 324, 92 S.Ct. 455. If such events result in actual prejudice to a defendant, the Due Process Clause of the Fifth Amendment has “a limited role to play in protecting against oppressive delay.” United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977).

To obtain the dismissal of an indictment on due process grounds, an accused must establish -two elements. First, he must demonstrate that the delay caused him actual prejudice. Marion, 404 U.S. at 324, 92 S.Ct. 455. The burden of demonstrating actual prejudice rests on the defendant, and the proof of prejudice must be definite and not speculative. United States v. Birney, 686 F.2d 102, 106 (2d Cir.1982). Without definite proof as to this essential element, no due process claim is stated.' Id.

Proof of prejudice is not, however, sufficient. As stated by the Supreme Court in Lovasco, “the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.” Lovasco, 431 U.S. at 790, 97 S.Ct. 2044. As former Chief Judge (and United States Attorney General) Mukasey indicated in an early opinion, “Delay justifies dismissal of the indictment under the Due Process Clause only when the defendant can show both actual prejudice and that compelling him to stand trial despite the delay ‘violates those “fundamental conceptions of justice which lie at the base of our civil and political institutions” ... and which define “the community’s sense of fair play and decency.” ’ ” Schurman v. Leonardo, 768 F.Supp. 993, 998 (S.D.N.Y.1991) (quoting Lovasco, 431 U.S. at 795 n. 17, 97 S.Ct. 2044). Thus, the second element of the Marion/Lovasco paradigm that a defendant must establish is that compelling him to stand trial would violate fundamental conceptions of justice, fair play and decency-

(1) Defendant has Demonstrated Actual Prejudice

As to Count One (Reckless Assault)

Santiago easily meets the standard for establishing that he has been actually prejudiced by the delay in indicting him— at least on Count One. He has irretrievably lost the testimony of the only person, other than Carpeso and Santiago himself, who was present when the shooting took place — Hollywood—who has given several statements that at the very least undermine the Government’s theory of the case and could well result in Santiago’s acquittal on the charge of reckless assault.

Actual prejudice in the context of the Marion/Lovasco paradigm generally means the loss of documentary evidence or the unavailability of a key witness. See Lovasco, 431 U.S. at 796, 97 S.Ct. 2044. Here, the prejudice to Santiago from the loss of access to Hollywood is patent. Hollywood has said, no fewer than three times, that Santiago was not playing with his gun, or playing quick draw, immediately prior to Carpeso’s shooting. The- Government’s theory of the case is that Santiago was “quick drawing” or playing with his weapon when it went off, injuring Carpeso. Hollywood’s -statements would appear to undermine the Government’s ability to prove recklessness beyond a reasonable doubt.

It is true that Hollywood also made statements favorable to the Government. In particular, he stated on two occasions (in his first and last statements) that Santiago was pulling his gun out of his holster and putting it back in while the three men were in • the container. Hollywood also contradicts Santiago’s physical depiction of the scene in the container at the time of the shooting. Because of this, the Government has argued that Santiago suffered no prejudice as a result of Hollywood’s disappearance.

That argument, however, is absurd. Nothing in Marion/Lovasco requires that evidence be entirely one-sided before its loss can be considered prejudicial. On the two occasions when Hollywood was asked directly, “Was Santiago playing quick draw/playing with his gun?” he said no. This testimony is exonerative of recklessness. It is critically important to this defense. There can be no question that it is Brady material, which would have to be turned over to the defense as soon as the prosecutors became aware of it (as I gather it was). Were Hollywood to repeat at trial what he said to SA Stamp on several different occasions, he would utterly undermine the prosecution’s theory of the case.

Hollywood’s testimony is of particular importance to Santiago because the Government hopes to introduce testimony, from members of the 0712 MTT who did not personally witness the shooting, about defendant’s handling of his weapon on other occasions. Since no one can or will testify that Santiago was in fact quick-drawing when the shooting occurred (the only occasion that matters), the Government hopes to adduce testimony that Santiago had a habit of playing quick draw, or at least of being careless with his side-arm. The admissibility of the evidence the Government plans to introduce is far from clear; the matter is not yet fully briefed, and while I have spent a great deal of time thinking about this question, I have reached no conclusion. Frankly, I have never had a 404(b) issue quite like this one.

However, one thing is perfectly clear: were the court to allow this evidence to come in, Santiago would not just want Hollywood to repeat the statements he made to NCIS in front of the jury, he would need that testimony. In fact, given the extraordinary impact of the proposed 404(b) testimony in a case where there is no direct evidence of recklessness, I see no way that Santiago could possibly mount a defense except by calling Hollywood. No one else (aside from Santiago, who has a constitutional right not to testify) knows what did and did not happen in that container on January 26, 2008. Hollywood is not merely a “potential” defense witness who “might” have something relevant to say; other than arguing that the Government has failed to meet its burden, he might well be the entire defense case.

But Hollywood is unavailable. NCIS last