The War Profiteers - The Mahmudiya Massacre

“[…] Defendant moves the Court to enter an order ‘to compel any and all governmental law enforcement officials who aided in the investigation’ of this case to preserve all their ‘rough notes, memoranda, resumes, synopses, etc., which were taken as part of their investigation.’ […]

“The Government does not argue that preserving the rough notes produced by its agents would be administratively burdensome or prejudicial in any way. Given the circumstances of this case, and out of an abundance of caution, the Court finds no reason why it should not grant Defendant’s motion. In doing so, the Court expresses no opinion as to whether or not the Brady doctrine or Jencks Act compel the government to preserve the rough notes of its agents.

“For the foregoing reasons, it is hereby ordered that the Government direct all law enforcement and investigative officials involved in this case to preserve their investigative materials, including their rough notes, currently in existence and in the future. […]”

December 17^th, 2008 - US’ Post-Hearing Reply on Defendant’s Motion to Suppress Statements

“[…] When the defendant invoked his right to counsel shortly after apprehension, the arresting FBI agents did not attempt to question him. During transport, and after sitting in silence for approximately 15 minutes, Green initiated conversation regarding the nature of his case and his time in Iraq. Any question that was asked of Green during that time, or ever after, was not asked for the purpose of eliciting an incriminating response nor can it be shown that an incriminating response was provided based on such a question. The evidence demonstrates that Green clearly wanted to converse with Agent Kelley during his transport to Asheville and Charlotte. In initiating conversation again and again, Green proved his intent to voluntarily reopen the lines of communication. Agent Kelley’s participation in Green’s conversation was not interrogation under Miranda and did not violate Green’s constitutional rights.

“Furthermore, the two hour drive from Asheville to Charlotte, where Green’s initial appearance was held, does not constitute ‘unnecessary delay’ for purposes of Rule 5(a). There is no evidence that the United States sought delay for purposes of postponing attachment of the Sixth Amendment. If anything, the evidence supports a conclusion that due to scheduling concerns between lawyers, clerks, and judges in a small court division on a July 4^th weekend, an initial appearance in Charlotte was more appropriate, practical, and certainly reasonable. Regardless, Green was presented to a magistrate the next business day after his arrest. Wherefore, the United States respectfully requests that defendant’s motion to suppress be denied. […]”

December 12^th, 2008 - Order

“[…] It is ordered. No later than February 2, 2009 the United States shall provide expert disclosures reports, as required, or otherwise agreed. Any Daubert Motions or challenges to any experts must be filed by February 16, 2009. […]”

December 11^th, 2008 - Order

“[…] By agreement of the parties, the order entered December 18, 2007, DN 87, paragraph 11 is amended as follows:

“11. The jury that is summoned for the case is directed to report to the courthouse the week of February 9, 2009 to complete the jury questionnaire. The jury questionnaire will be provided to counsel no later than March 6, 2009. It is so ordered. […]”

December 10^th, 2008 - US’ Motion for Order Authorizing Access to Confidential Communications

“[…] Comes the United States, by counsel, and moves the Court for authorization to access confidential communications between the defendant and an Army psychotherapist, Dr. E. B. The defendant waived his psychotherapist-patient privilege by placing his mental health squarely at issue in this case when he filed notice of intent to assert the defense of insanity under Federal Rule of Criminal Procedure 12.2(a). Accordingly, in order to prepare to meet this defense at trial, the United States must be permitted access to confidential communications between the defendant and Dr. E. B. […]”

December 10^th, 2008 - Defendant’s Post-Hearing Brief on Motion to Suppress Statements

“[…] Green has been in law enforcement custody since the time of his arrest on June 30, 2006. He invoked his Fifth Amendment right to counsel immediately upon his arrest. Law enforcement never advised Green of his Miranda rights. None the less, law enforcement engaged in the ‘questioning’ and the ‘functional equivalent’ of questioning of Green on June 30 and July 3, 2006. As such, Green’s statements were obtained in violation of Miranda and must be suppressed.

“Also as to the July 3^rd statements, Green was transported from Asheville to Charlotte, North Carolina, for his initial appearance despite there being a Federal courthouse and a sitting magistrate and district judge in Asheville. This two hour car ride with the FBI resulted in Green allegedly making more statements to the FBI. The act of transporting Green two hours away for his initial appearance violated FRCrP 5, 18 U.S.C. § 3501(c), and the Sixth Amendment. As such, the statements of July 3rd must be suppressed on these grounds also.

“Wherefore, the defendant respectfully moves the Court to grant his Motion to Suppress. […]”

December 3^rd, 2008 - United States’ Motion for Extension of Time

“[…] Comes the United States of America, by counsel, and moves the Court for a brief extension of time for the parties to submit either an agreed upon jury questionnaire or to submit their respective proposed jury questionnaires. The deadline currently set by the Court for the parties to submit an agreed jury questionnaire is December 5, 2008. The undersigned has conferred with counsel for the defendant, Steven D. Green, who advised that defense counsel had been working on a proposed jury questionnaire which they would submit to the United States for consideration. The United States has also been working on questions for a proposed jury questionnaire. At this time, however, neither party has had an opportunity to review the questions proposed by the other.

“Accordingly, the United States respectfully requests an extension of time of two weeks, until Friday, December 19, 2008, for the parties to either submit a jury questionnaire upon which they have agreed, or, in the alternative and if no agreement can be reached, for each party to submit a proposed set of questions to be posed to the panel of prospective jurors for consideration by the Court. […]”

November 20^th, 2008 - United States’ Post-Hearing Brief on Defendant’s Motion

“[…] Comes the United States, by counsel, to brief the Court following the hearing on defendant Steven Green’s Motion to Suppress Statements. As the evidence at the hearing showed, Green’s statements were voluntary and not in response to interrogation. Accordingly, the defendant’s motion should be denied.

“The facts of the case and the principal arguments of the United States are set forth in its Response to Defendant’s Motion to Suppress Statements. Res. to Def. Mot. of Oct. 7, 2008, Doc. No. 154. Considering the arguments in that Response and the evidence offered at the hearing, the United States respectfully submits that the sole issue on the motion before the Court is whether Green’s statements upon arrest and during transport were made in response to ‘interrogation’ under Miranda v. Arizona, 384 U.S. 436, 444 (1966). […]”

November 7^th, 2008 - Notice of Filing of Official Transcript

“Notice of filing of official transcript of Proceedings as to Steven D. Green held on October 29, 2008, before Judge Thomas B. Russell. Court Reporter/Transcriber Terri Turner, Telephone number 270-415-6417. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/28/2008. Redacted Transcript Deadline set for 12/8/2008. Release of Transcript Restriction set for 2/5/2009. […]”

November 6^th, 2008 - Order

“[…] This matter is before the Court on the motion of the United States to accept the late filing of its Response to Defendant’s Motion to Preserve Agents’ Notes. The Court having considered the motion, and being otherwise sufficiently advised, it is ordered that the motion of the United States be and it is hereby granted. […]”

November 4^th, 2008 - Order

“[…] It is ordered.

“1. A hearing on the Defendant’s Motion to Suppress Statements was held on October 29, 2008.

“2. The parties stated they would not call any additional witnesses.

“3. The United States shall file a brief 2 weeks after the filing of the official court transcript. The Defendant shall file a brief 2 weeks thereafter with any reply due in 1 week. Counsel for the United States shall notify the Court by letter, with a copy to opposing counsel, when the matter is ripe for a decision.

“4. The suppression hearing set on November 3, 2008 is vacated. […]”

November 3^rd, 2008 - United States’ Response to Defendant's Motion for Preservation of Notes

“[…] Comes the United States of America, by counsel, for its response to the motion of the Defendant, Steven D. Green, for Preservation of Agents' Notes in this case. Green seeks an order from the Court ‘to compel any and all governmental law enforcement officials who aided in the investigation of the acts, transactions and matters indicated in the indictment ... to preserve their rough notes.’

“The United States is under no obligation to preserve notes, memoranda, and reports made by government agents in the course of an investigation. The Supreme Court has held that destruction of notes made by FBI agents while interviewing witnesses ‘did not constitute an impermissible destruction of evidence nor deprive petitioner of any rights’ if destroyed ‘in good faith and in accord with their normal practices.’ […]

“[…] For the foregoing reasons, the motion of the Defendant for an Order compelling any law enforcement officials who aided in this investigation to preserve all rough notes should be denied as such an Order is not supported by the law in this Circuit, is over broad, and would place an undue burden on the United States. […]”

November 3^rd, 2008 - United States’ Motion to Accept Late Filing

“[…] Comes the United States of America, by counsel, Marisa J. Ford, Assistant U.S. Attorney for the Western District of Kentucky, and moves the Court to accept the late filing of the United States’ Response to Defendant’s Motion to Preserve Agents’ Notes. As grounds for its motion, the United States submits that Defendant’s motion was filed on October 1, 2008, with a response deadline of October 15, 2008. The undersigned was out of the office on work-related and/or family matters for substantially all of the two week period beginning on September 28, 2008, and concluding on October 14, 2008, and was unable to gain remote wireless access either to the server at the United States Attorney’s Office or to the Court’s Electronic Case Filing system, and was unable to prepare or file the response of the United States on or before the October 15, 2008, due date. […]”

November 3^rd, 2008 - United States’ Motion Regarding Mental Health Evidence

“[…] For this reason, the United States requests the Court to enter an order: (1) extending the deadline for the filing of pretrial motions related to discovery and admissibility of the mental health evidence Defendant intends to introduce at trial on the issue of insanity, as well as for any additional testing which the United States may request, to December 31, 2008; and (2) requiring the exchange between defense and experts retained by the United States of all materials upon which they may rely to form the basis of their opinions, including all medical records and other record, on or before December 1, 2008.

“Fed. R. Crim. P. 12.2 requires, in the plainest terms, that the defendant give notice and discovery to the United States whenever it plans to offer mental health evidence at trial, whether it be at the guilt or penalty phase. The Rule’s ‘objective is to give the government time to prepare to meet the issue, which will usually require reliance upon expert testimony.’ […] The Defendant has had at least a year, since the date the United States’ filed its notice of intent to seek the death penalty in this case, to prepare his insanity defense. Since September 15, 2008, the United States has had a thirteen page narrative summary which purports to set forth the complex neuropsychological assessments of the Defendant’s team of expert witnesses. At this juncture, the United States simply does not have enough meaningful discovery to meet the Court’s deadline for the filing of pretrial motions in this case. […]”

November 3^rd, 2008 - United States’ Response to the Court’s Order Requiring a Brief

“[…] As the Court is, of course, well aware, the United States is engaged in a conflict in Iraq and is conducting active military operations in that country. It is currently not possible to obtain a summary of victim-impact evidence because the witnesses have relocated due in part to the crimes allegedly committed by Green and others. Although U.S. authorities are coordinating with the Iraqi government in attempting to locate Iraqi civilian witnesses, the ongoing conflict and the country’s limited infrastructure has made communicating with the witnesses a slow and potentially dangerous process.

“For these reasons, it is difficult to provide the Court with a date certain when the United States will be able to provide defense counsel with a summary of its victim-impact evidence. However, taking into account the coordination required with the Iraqi government, the United States believes that it will be in communication with the victim witnesses within 60 days. After that, the United States anticipates that U.S. authorities will be in a position to obtain a summary of the testimony of the victim witnesses after an additional three to four weeks.

“In short, the United States expects that it will be in contact with Iraqi civilian witnesses within sixty days and have summaries of its victim-impact evidence to provide to defense counsel by February 1, 2009. In going forward, if the United States believes it cannot abide by this schedule, the undersigned will alert the Court. Of course, if the United States is able to obtain a summary of the anticipated testimony of Iraqi victim witnesses in advance of current predictions, it will immediately make that information available to counsel for the Defendant. […]”

October 24^th, 2008 - Order

“[…] The order entered December 18, 2007, DN 87, paragraph 11 is amended as follows:

“11. The jury that is summoned for the case is directed to report to the courthouse the week of January 12, 2009 to complete the jury questionnaire. It is so ordered. […]”

October 21^st, 2008 - Order

“[…] It is ordered. A hearing on the Defendant’s Motion to Suppress is set on October 29, 2008 at 1:00 p.m. EST in Louisville, Kentucky as stated in the official court record. […]”

October 21^st, 2008 - United States’ Response to Defendant’s Motion to Suppress Statements

“[…] Comes the United States, by counsel, and responds to defendant Steven Green’s Motion to Suppress Statements. The Motion concerns statements that the defendant made during his arrest in Nebo, NC, on June 30, 2006. It also concerns post-arrest statements Green made while agents were driving him to the Buncombe County Detention Center in Asheville, NC, on June 30, 2006, and statements made while he was being driven to the federal courthouse in Charlotte, NC, on July 3, 2006. The Motion should be denied because Green’s statements were made voluntarily and not in response to interrogation.

“I. Facts - On June 30, 2006, law enforcement agents from the Federal Bureau of Investigation (‘FBI’) arrived at a house in Nebo, NC, to arrest the defendant based on a Warrant for Arrest issued in the Western District of Kentucky. An undercover officer encountered Green in the backyard of the house. Once Green was identified, a team of agents approached him and he was immediately restrained. While the defendant was being handcuffed, Green said he wished the agents had called him because he would have turned himself in to the authorities.

“As the arresting agents walked Green from the backyard of the house toward the officers’ cars parked toward front of the house, agents noticed that the defendant’s grandmother - who had just witnessed Green’s arrest - was visibly upset. Agents asked the defendant if they could explain to his grandmother why he was being arrested. Green initially said yes, but then changed his mind and said no because he did not want to upset her.

“Before transporting Green to the Buncombe County Detention Center in Asheville, NC, the agents let Green smoke a few cigarettes. Although the agents did not attempt to question Green, the defendant told the officers that he did not want to answer questions without an attorney present. When Green was done smoking, agents placed him in the backseat of their car and began driving to Asheville.

“During the defendant’s transport to the detention center, agents did not ask Green any questions. However, without prompting, the defendant stated the following over the course of the approximately 45-minute drive: ‘You probably think I’m a monster.’ ‘I’m not a criminal in the United States - except for getting arrested for marijuana when I was sixteen.’ ‘Knew you guys were coming.’ ‘All of my buddies were getting killed over there - my Lieutenant got his face blown off.’ ‘George Bush and Dick Cheney ought to be the ones that are arrested.’ ‘Joining the Army was the worst decision I ever made.’

“In addition to these statements, Green engaged the agents in small talk regarding the amount of time that he spent in Iraq and said he would have turned himself in prior to arrest. The agents, however, did not ask him any questions.

“Three days later, on July 3, 2006, FBI agents transported Green from the Buncombe County Detention Center to the Federal Courthouse in Charlotte, NC. During the approximately 2-hour drive to Charlotte, agents did not ask Green any questions.

“Again, however, without prompting, the defendant made the following statements: ‘Will I be tried federally or by the military?’ ‘Will the federal system take into account what goes on over there in Iraq?’ ‘I guess I will get called as a witness or have to testify at the other guys’ trials.’ ‘How long will judicial process take?’ ‘Guess I’m looking at spending the rest of my life in jail.’ ‘I heard that some of the Vietnam era guys had gotten out of prison after getting 20-30 year sentences for the same things.’ ‘Joining the Army was the worst decision I ever made.’ ‘Thought I was passed this, being discharged out of the military.’ ‘At least I got to enjoy being home for a while.’

“In addition to making these statements, the defendant again engaged the agents in conversation. The agents did not ask Green any questions. Green, however, volunteered information related to at least a dozen topics - most related to his tour of duty in Iraq.

“Finally, Green asked the agents about the status of the others involved, and stated that he knew authorities were coming to arrest him. Green stated that he and his grandmother had gone to dinner and planned to go to a movie. Instead, he came home because he was thinking about turning himself in. However, he thought he would ‘enjoy the last halfhour of freedom.’

“Upon reaching the Federal Courthouse in Charlotte, Green received his initial appearance and was turned over to the U.S. Marshals for booking. […]”

October 16^th, 2008 - Order

“[…] This matter is before the Court on the motion of the United States for an extension of time to November 3, 2008 in which to: 1) respond to the Court’s Order requiring the United States to provide more specific victim impact information, and 2) to file any pretrial motions.

“The Court having considered the motion of the United States, there being no objection by the Defendant, and being otherwise sufficiently advised, it is ordered that the motion of the United States be and it is hereby granted. The United States has until November 3 to respond to: 1) respond to the Court’s Order requiring the United States to provide more specific victim impact information, and 2) to file any pretrial motions. […]”

October 7^th, 2008 - Motion to Suppress Statements

“[…] Comes the Defendant, Steven Dale Green, by counsel, pursuant to the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and respectfully moves this Court to enter an order suppressing any and all statements the defendant allegedly made to law enforcement.

“In support of said motion, the defense states as follows: The defendant was arrested on June 30, 2006, in Nebo, North Carolina. The United States has stated that when the defendant was arrested, he informed law enforcement that he did not wish to speak with them without the presence of an attorney. After his arrest, the defendant was transported to a detention facility in Asheville, North Carolina, by FBI agents. The United States alleges that during this transport, the defendant made statements and ‘discussed topics’ with the agents related to this case.

“On July 3, 2006, the defendant was again transported by FBI agents, this time from the Asheville detention center to the Federal Courthouse in Charlotte, North Carolina. The United States alleges that on this date the defendant again made statements and ‘discussed topics’ related to the case with the agents.

“The United States has not alleged that law enforcement ever advised the defendant of his Miranda rights. Nevertheless, the defendant’s invocation of his right to counsel at the time of arrest prevented law enforcement from questioning him or engaging in the functional equivalent of questioning him without the aid of an attorney. As such, the defense challenges any statements the defendant allegedly made to law enforcement. The defense claims that such alleged statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and Fifth and Sixth Amendments of the United States Constitution.

“Wherefore, the defendant respectfully requests a hearing on this motion and moves the Court to suppress any and all statements the defendant allegedly made to law enforcement. […]”

October 1^st, 2008 - Motion to Preserve Agents’ Notes

“[…] Comes the Defendant, Steven Dale Green, by counsel, pursuant to the Fifth, Sixth, and Fourteenth Amendments and respectfully moves this Court to enter an order directing all government agents and all military and local investigative personnel involved in any aspect of this case to retain and preserve all notes made during the course of the investigation in this case.

“Specifically, defendant requests the preservation of all rough notes, memoranda, resumes, synopses, etc., which were taken as part of their investigation, whether or not the contents of the same were incorporated into any official records such as, but not limited to, FBI reports, military reports, Department of Defense reports, polygraph reports, and rough notes taken during both prepolygraph and post-polygraph interrogation.

“In addition, these rough, handwritten notes, resumes, synopses, etc., taken during the course of the investigation or while interviewing witnesses are potentially discoverable material at trial under the Jencks Act and are required to be preserved and produced even if these notes are not discoverable prior to trial. […]”

October 1^st, 2008 - United States’ Motion for Extension of Time

“[…] Comes the United States of America, by counsel, and moves the Court for an extension of time in which the United States must file a response to the Court’s Order requiring the government to provide more specific information on the nature of the victim impact evidence the United States expects to introduce in the trial of this case. The United States is currently engaged in communication with the appropriate officials in the Iraqi government to obtain this information. Additional time is necessary for the United States to obtain the information necessary to respond to the Court’s Order.

“Because the United States received the expert witness disclosures from Green on September 15, 2008, it is requested that the United States be permitted an extension of time within which to file any pretrial motions related to this evidence.

“Wherefore, on the basis of the aforementioned matters, the United States respectfully requests an extension through November 3, 2008 to: 1) respond to the Court’s Order requiring the United States to provide more specific victim impact information, and 2) to file any pretrial motions. […]”

August 28^th, 2008 - Order

“[…] In the Memorandum Opinion and Order denying the Defendant’s Motion to Declare the Federal Death Penalty Act Unconstitutional, Dismiss Aggravators, and Dismiss the Government’s Death Penalty Notice, the Court ordered the Government to provide a brief detailing the circumstances of obtaining victim impact evidence and what it will require by September 1, 2009.

“It is hereby ordered that the date for the Government’s submission of this brief is hereby amended such that it shall be due on or before October 1, 2008. […]”

August 26^th, 2008 - Order & Memorandum Opinion on Motion to Dismiss for Lack of Jurisdiction

“[…] Given the evidence before the Court, Defendant was a civilian ex-soldier who had severed all relationship with the military and its institutions. The Court finds that the exercise of courtmartial jurisdiction over Defendant would be unconstituti