Marine lieutenant could be ordered to trial for alleged assault of three Iraqi civilians

By: MARK WALKER - NC Times Staff Writer | February 27, 2007

CAMP PENDLETON - A Marine lieutenant accused of assaulting three Iraqi civilians last year should face a court-martial, a hearing officer is recommending.

Lt. Col. William Pigott makes that determination in a report filed this week with Lt. Gen. James Mattis in the case of 2nd Lt. Nathan Phan. Mattis must now decide whether to order Phan to trial.

The lieutenant was charged in August with assault, a case that arose during an investigation that led to a murder charge filed against eight men under his command last year in Hamdania, Iraq.

Phan was not charged in the homicide case, but stands accused of assaulting the three Iraqis in Hamdania in March and April 2006 while trying to get information from each about insurgent activity in the Anbar province area northwest of Baghdad.

Phan's lead attorney, David Sheldon of Washington, said Tuesday that he does not believe his client did anything wrong and that he will be acquitted if ordered to trial.

"Justice will be served and he will be exonerated if the charges go forward," Sheldon said during a telephone interview. "Lt. Phan deserves a medal and not second-guessing from those in the rear."

The report prepared by Pigott remains under seal pending a decision from Mattis, but Sheldon shared its contents with the North County Times.

The hearing officer recommends that not only should Phan be court-martialed on the assault charges, Sheldon said, but also that prosecutors charge him with conduct unbecoming an officer. That charge should be lodged because of Phan's alleged failure to report an alleged incriminating conversation among the men charged in the homicide case that the lieutenant supposedly witnessed and overheard, according to the report.

Sheldon said there is conflicting testimony about that alleged conversation.

"That completely ignores the fact that people who were there and have absolutely no motive to lie say that there was no such conversation," Sheldon said.

Pigott does recommend that the government drop a charge of making a false official statement, saying there was no solid evidence to support that allegation, the attorney said. That charge stemmed from Phan's reportedly filing a radio report in which he said he had released one of the three men being questioned about insurgent activity.

The defense produced testimony during Phan's January Article 32 hearing that showed the official radio log saying the 26-year-old lieutenant reported that he still had that insurgent in custody. An Article 32 hearing is the equivalent of a probable cause hearing in civilian court and is conducted to determine if an accused should be ordered to trial.

During the tumultuous five-day hearing, several enlisted Marines who served under Phan in Iraq testified they never saw him commit any of the alleged assaults.

Three enlisted men also testified that signed, sworn statements prepared by the Naval Criminal Investigative Service included what they said were lies about them having witnessed Phan commit assault.

Pigott is recommending that Mattis conduct a separate investigation to determine how their official statements were later contradicted in sworn affidavits stating those statements contained falsehoods.

Mattis will make the decision on what to do in the Phan case as part of his responsibilities as head of Camp Pendleton's I Marine Expeditionary Force and as commander of all Marine forces serving in the Middle East.

Sheldon said he and two military attorneys assigned to Phan plan to file a set of objections to the Pigott report by the end of the week. He said he also may ask for a meeting with Mattis.

The attorney and Pigott often clashed during the Article 32 hearing, which ended with Sheldon being loudly admonished by the hearing officer.

Sheldon said that despite what he believes was sufficient evidence to question all the charges against Phan, he wasn't surprised by Pigott's recommendation.

"It reflects what appears to be a prejudgment in the case," he said. "There didn't appear to be a sufficient willingness to hear all the evidence regarding the credibility and believability of all the witnesses."

As a matter of policy, Marine prosecutors will not comment in any way on any pending case.

Five of the eight men from the platoon that Phan commanded and who were charged in the homicide case have reached deals with prosecutors and entered guilty pleas.

Phan was not present when those men say the squad from Camp Pendleton's 3rd Battalion, 5th Marine Regiment abducted and killed 52-year-old Hashim Ibrahim Awad in the early morning hours of April 26.