United States District Court, S.D. New York
For Wilfredo Santiago, also known as Sealed Defendant 1, Defendant: Annalisa Miron, Federal Defenders of New York, New York, NY; Philip L Weinstein, Federal Defenders of New York Inc. (NYC), New York, NY.
For USA, Plaintiff: A. Damian Williams, LEAD ATTORNEY, U.S. Attorney's Office, SDNY (St Andw's), New York, NY; Matthew C. Singer, United States Department of Justice, Washington, DC.
DECISION AND ORDER DIRECTING A HEARING ON DEFENDANT'S MOTIONS TO SUPPRESS AND TO DISMISS INDICTMENT
Colleen McMahon, J.
Wilfredo Santiago is charged with one count of reckless assault in violation of 18 U.S.C. § 113(a)(6), and two counts of making false statements in violation of 18 U.S.C. § 1001(a)(2). The assault charge stems from the 2008 shooting of Michael Carpeso (at the time, a Navy Corpsman) by Santiago (at the time, a corporal in the United States Marine Corps) while the two men were serving together in the same fighting unit in Iraq. The allegedly false statements were made to a Lieutenant who was conducting a Line of Duty (" LOD" ) investigation and to the Naval Criminal Investigative Service (" NCIS" ) agents, to whom Defendant subsequently admitted being the shooter.
Defendant has moved to suppress the statements he made to his Lieutenant and to NCIS investigators, on the ground that such statements were obtained in violation of Article 31 of the Uniform Code of Military Justice, 10 U.S.C. § 831 (" Article 31" ) and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defendant also seeks dismissal of the Indictment on the ground that the Marine Corps and the United States Department of Justice intentionally delayed prosecution to gain a tactical advantage and deprive him of " favorable rights" under Article 31. (Deft. Memo at 17).
The court finds this case troubling, and the Government's response to my inquiries has done little to mitigate my unease. Defendant was plainly amenable to court-martial for this shooting (which no one suggests was anything other than accidental). He was a serviceman stationed in a war zone, who admitted discharging a weapon that seriously injured another serviceman. At first, he denied to investigating officers that he discharged his weapon. These are offenses under the Uniform Code of Military Justice (UCMJ). Defendant's commanding officer had the absolute right to choose to prosecute -- or to
impose discipline short of prosecution pursuant to Article 15 of the UCMJ -- or to treat the matter in another fashion.
Defendant was not court-martialed. The Government represents that the convening authority had in fact decided to prosecute, but intended that the court-martial be convened after Defendant returned to the United States, only to have the matter fall through the cracks due to " a communication breakdown within the Marine Corps." (Govt. letter to Court dated March 8, 2013). The Assistant United States Attorney is of course not competent to testify about such matters, and I cannot accept his evidentiary statement in the absence of sworn testimony to back it up -- particularly because (based on the limited information available to me at this time and a modicum of research into the military law) it appears that Santiago may not have been apprised of his Article 31 rights (including his right to remain silent) in a timely fashion. If true, both his statement to his Lieutenant and his subsequent admission to NCIS agents might well be inadmissible at a court-martial. Were that the case, the Corps -- lacking an eyewitness who could testify that Santiago behaved recklessly -- might have concluded that successful prosecution was impossible. In this civilian court, where Article 31 (a stringent rule whose protections kick in at a much earlier point than Miranda v. Arizona ) does not apply, any such difficulty evaporates.
How this court became involved, in 2013, in an internal military matter involving conduct committed in Iraq in 2008, is its own conundrum. The Government claims jurisdiction under the Military Extraterrorial Jurisdiction Act (MEJA), 18 U.S.C. § 3261 -- a statute passed to fill in a " jurisdictional gap" that left extraterritorial crimes committed principally by persons who were never subject to the UCMJ, such as civilian dependents and military contractors, unprosecutable. This court has culled through cases brought under MEJA since its passage; I have located only three cases brought under MEJA against a former serviceman, and this is the first indictment of a former serviceman for conduct known to military authorities while the defendant was amenable to court-martial. The parties have not come to grips with the issue of whether MEJA jurisdiction extends, or was intended to extend, to a serviceman whose alleged crimes were known to, and could have been prosecuted by, the Marine Corps during his term of service.
Finally, in order to decide the motion to dismiss the indictment in this case of first impression, it is imperative that the court understand why Defendant was not court-martialed (put otherwise, what that " failure of communication" really was). Due to the resulting delay, Santiago has lost the ability to call as a witness the only person who was in the room with him and Carpeso, and who saw exactly what happened. No less an authority than the United States Supreme Court has held that a due process challenge to a delayed indictment can only be decided after analysis of the reason for the delay; the record needs considerable amplification, both factual and legal, before I can consider and rule on Defendant's motion to dismiss the indictment.
The Government expects the evidence to show the following:
In January 2008, Santiago was stationed at Camp Echo in Iraq. There were approximately fifteen men in Defendant's team. They were assigned to periodic rotations at a Marine outpost in Ad Diwaniyah, Iraq (the " Outpost" ). Michael Carpeso, a Navy Hospital Corpsman and the only non-Marine, was the team medic.
On January 26, 2008, Carpeso and Defendant traveled to the Outpost, where team leader Captain Benjamin Drude, First Lieutenant Blair Cellon, and a local Iraqi interpreter known as " Hollywood" were located. That day, Defendant, Cellon, and Hollywood went out on a mission with local Iraqi soldiers. Carpeso stayed in the trailer and provided radio support.
Prior to leaving, Cellon ordered Carpeso to turn over his M9 and three magazines so a local Iraqi soldier could use them on the mission. When the mission was complete, Cellon instructed Defendant to return Carpeso's M9 and magazines. Defendant entered the trailer and gave the M9 and magazines to Carpeso, who was sitting on a cot across from Hollywood. Defendant, Carpeso, and Hollywood were the only people in the trailer at the time.
As Carpeso bent down to place the magazines in his pants pocket, he heard a loud noise and was hit in the face. Carpeso did not initially think he had been shot; he thought an air conditioning unit had blown-up and hit him. In fact, a bullet from Defendant's M9 had struck Carpeso's head at close range. The bullet entered Carpeso's left temple, ruptured his left eye, traversed his nasal cavity, and exited through his right cheek. The bullet then pierced the wall of the trailer, ricocheted only feet away from another Marine who was walking toward the trailer, and rested in a barrier that was meant to protect the Outpost from external attack.
Moments after Carpeso was shot, Captain Drude went to the trailer and found Carpeso crouched down on the floor. Drude asked what had happened; Santiago told Drude that Carpeso had shot himself. Drude does not recall that Carpeso contradicted Santiago at the time.
Santiago, Cellon, and Drude rushed Carpeso back to Camp Echo, where Carpeso was medivaced to a hospital for surgery. When the transport was complete, Cellon and Drude took a team, including Santiago, back to the Outpost to clean up the trailer. Cellon took photos of the trailer prior to cleaning it.
Statements to Lieutenant Wang
That same evening, Drude assigned First Lieutenant David Wang (" Wang" ) to conduct a preliminary administrative inquiry in order to determine whether Carpeso was entitled to receive certain benefits. This is what is known as a " line of duty/misconduct" inquiry; its purpose is to ascertain whether the injury was received in the line of duty and whether it resulted from misconduct on the part of Carpeso, the injured party. It is not a criminal investigation.
Wang has filed a declaration under oath with this court, averring that he was told Carpeso had shot himself, and he was ordered to determine whether Carpeso had done so deliberately or accidentally. (See Declaration of David Wang (" Wang Decl." ) at ¶ 3.)
On January 27, 2008, the day after the shooting, Wang personally interviewed all persons with knowledge about the incident (Defendant, Carpeso, Drude, Cellon, Hollywood, and Carpeso's treating physician) and obtained their written statements (Wang Decl. at ¶ 5.) Before interviewing Santiago, Drude, and Cellon, Wang advised them of their Privacy Act rights. He told them that their statements were voluntary and that information they provided would not be kept confidential. All three signed a form acknowledging this warning before giving any oral or written statement. (See Wang Decl. at ¶ 6.) All three servicemen were armed during the interviews and were, according to Wang, free to leave his presence at any time. (Id. at ¶ 7)
During his interview, Santiago told Wang that he was walking to his cot when
he heard a gunshot. He turned around and saw that Carpeso was shot:
As I was moving to my rack I heard [a] gunshot. I did not hear a chambering of a round or anything like that. After I heard the round go off, I turned around saw[sic] blood coming from his face, turned around to get a pressure dressing from my IFAK.
(Govt. Ex. C.) According to Wang, Defendant was calm and forthright during the interview. (Wang Decl. at ¶ 8.)
Prior to interviewing Defendant, Wang began to suspect that Santiago may have shot Carpeso. (Wang Decl. at ¶ 8). Nonetheless, Wang neither called a halt to his LOD investigation nor gave Santiago so-called Article 31 (" military Miranda " ) warnings prior to questioning him. Such warnings are required whenever " a suspect or an accused is questioned by a military superior during an official law enforcement investigation or disciplinary inquiry." United States v. Bradley, 51 M.J. 437, 441 (C.A.A.F. 1999), citing United States v. McLaren, 38 MJ 112 (CMA 1993), cert. denied, 510 U.S. 1112, 114 S.Ct. 1056, 127 L.Ed.2d 377 (1994); United States v. Loukas, 29 MJ 385 (CMA 1990); United States v. Moore, 32 MJ 56, 60 (CMA 1991). I do not purport to be an expert in the UCMJ, or the ways in which it differs from civilian criminal procedure law, and the parties have not briefed this issue; but my limited research suggests that the threshold for becoming a " suspect" is low, and that, as soon as it is crossed, Article 31 warnings are required. See United States v. Swift, 53 M.J. 439, 448 (C.A.A.F. 2000) (noting the " relatively low quantum of evidence required to treat an individual as a suspect" ). Wang candidly admits in his declaration that he suspected Santiago of shooting Carpeso, so the threshold appears to have been crossed -- which, if true, means that Wang should not have been questioning Santiago at all, or at least not without giving him Article 31 warnings.
Wang was unable to conclude definitively whether Carpeso shot himself accidentally; from the fact that he suspected Defendant of being the shooter, I gather that he was unable to determine whether Carpeso shot himself at all. So the Lieutenant recommended that his command conduct a further investigation. ( Id. at ¶ 9.) Wang also recommended that NCIS -- Naval Criminal Investigative Services -- be tasked with investigating which weapon fired the round that hit Carpeso. ( Id. )
On January 28, 2008, the case was referred to NCIS for further investigation.
Statements to NCIS
Prior to February 4, 2008, NCIS Special Agents Shawn Dorsey and Steven Neher were assigned to investigate the Carpeso shooting. At the time they were assigned, Dorsey, at least, was not told that Santiago was a suspect. However, as a result of his investigation -- which apparently revealed that Santiago had a habit of " quick drawing" and " dry firing" his M9 service weapon -- Dorsey concluded that Santiago was a suspect. (I have no idea whether Wang conveyed his suspicions to Dorsey; in view of the fact that he questioned Defendant without giving him Article 31 warnings, he may have chosen not to volunteer them).
On February 4, 2008, Dorsey and Neher interviewed Defendant about the shooting. ( See Declaration of Shawn Dorsey (" Dorsey Decl." ) at ¶ 4.) Santiago arrived at the interview without an escort; he was not handcuffed or restrained in any way.
Dorsey created a time line during the interview. At 1:48 PM, prior to any questioning, Defendant was advised of his rights pursuant to Article 31 of the Uniform Code of Military Justice (UCMJ), including (1) his right to remain silent and
make no statement about the offense of which he is accused or suspected; (2) his right to consult with an attorney prior to questioning; (3) his right to terminate the interview at any time, for any reason; and (4) the fact that any statement made by him may be used as evidence against him in a trial by court martial. (See Dorsey Decl. at ¶ 7.) Santiago initialed his acknowledgement that he had been advised of each right and executed a written waiver of those rights at 1:55 PM. ( See Dorsey Decl. at ¶ 8; Gov't. Ex. C. (Time line); Gov't. Ex. D (Executed waiver of rights form).)
NCIS agents then asked Defendant what occurred on the night of the shooting. (Dorsey Decl. at ¶ ¶ 8-9.) In response, Defendant provided a virtually identical account to the one previously given to Wang. ( Id. at ¶ 9.) Believing, based on the results of his investigation, that Santiago's statement was false, Dorsey confronted Defendant with facts indicating that Carpeso had not in fact shot himself. At 2:05 PM, Defendant admitted shooting Carpeso. ( Id. at ¶ ¶ 10-11.) He also admitted that he had not been forthcoming in his written statement to Wang. ( Id. at ¶ 12.) At 2:45 PM, Defendant provided a sworn statement, drew a sketch of the shooting, and agreed to go back to the trailer to demonstrate everyone's position at the time of the incident. ( Id. at ¶ ¶ 13-14.)
In his written statement to NCIS agents, Defendant claimed he was attempting to clear his weapon and it accidentally discharged:
I took my issued M9 pistol out of the thigh holster on my right side, and attempted to clear the weapon while facing the right side of the container... I began to clear the weapon by removing the magazine, and placing the magazine in my holster. After I did so, I pulled the slide back, and let it go forward. I thought the chamber of the weapon was empty, but right after I let the slide go forward, the weapon went off. I think it is possible I did not pull the slide fully to the rear, which would have ejected the round, and I think pulling it to the rear cocked the hammer of the weapon. I looked down at the weapon after the round went off, and saw the safety was on the " fire" setting.
(Ex. E.) Defendant further explained why he had lied to Wang:
Wang was appointed as an investigating officer, and asked each of us who were at [the Outpost] during the incident to provide a statement of what had occurred. I provided a hand-written statement, which related to the above events, with the exception that I said I had my back turned, and that I did not say that my weapon had gone off. I didn't include it in my statement because I was scared of the reactions of my fellow team members, and of the consequences.
NCIS agents re-interviewed Defendant on February 5, 2008. After reminding him of his Article 31 rights, which Santiago again waived (Dorsey Decl. at ¶ 15.), NCIS agents asked Defendant whether he had quick drawn his M9 prior to shooting Carpeso. ( Id. ) Defendant denied quick drawing his M9. ( Id. )
Santiago insists that Dorsey and Neher told him he needed to " come clean" or he would be severely punished before reading him his Article 31 rights at the first NCIS interview. (Santiago Decl. at ¶ ¶ 10-11.) " They said they knew my earlier statement was a lie and it would be 'voided' if I told them the truth." Id. at 11. Santiago then explained to the officers why he lied to Wang and admitted that it was " my weapon that discharged the bullet which
injured Carpeso." Id. Santiago says that " at the conclusion of the questioning that lasted about 20 minutes, I signed some 'paperwork' that the agents never reviewed with me." Id. I assume that this " paperwork" included the waiver of rights form.
The Instant Indictment
Santiago completed his tour in Iraq the spring of 2008. He was discharged from active duty in the USMC upon his return to the United States and became a member of the Individual Ready Reserve until June 2011, when he received an honorable discharge from the Marine Corps. Until that moment, Santiago was subject to the Uniform Code of Military Justice.
The United States Attorney's Office represents that, at some unspecified point in time, the NCIS and the Staff Judge Advocate's Office asked the Department of Justice to determine whether Defendant should face criminal charges for his conduct pursuant to the Military Extraterritorial Jurisdiction Act (" MEJA" ), 18 U.S.C. § § 3261 et seq. A decision in the affirmative was made, and on January 17, 2013, an indictment was handed down, alleging that Santiago shot Carpeso as a result of Santiago's ...