Thursday, Aug. 10, 2006 | Attorneys close to the military investigation into the murder and assault of Iraqi civilians said it is likely that Marine 1st Lt. Nathan P. Phan will be charged after he returns to Camp Pendleton this weekend. Phan would be the first commissioned officer to be drawn into the war crimes probe that surrounds the actions of Camp Pendleton-based Marines while deployed in Iraq.

Phan’s lawyer, David Sheldon, said military officials are considering filing assault charges against Phan, the commanding officer of the Camp Pendleton based 2nd Platoon of Kilo Company in the 3rd Battalion, 5th Marine Regiment.

Attorneys familiar with the investigation, who wished to remain anonymous because of the ongoing investigation, said that Phan will likely also be charged with conspiracy in connection with the alleged murder and kidnapping of an Iraqi civilian in April.

Sheldon said his client is innocent of any wrongdoing and he plans a vigorous defense against any forthcoming accusations. He said charges could be filed as soon as Phan returns for duty, but didn’t believe they would include conspiracy. Other officers could also face charges, he said.

“I understand…that the command has been looking at charges for a number of different officers,” said Sheldon.

The entire 3rd Battalion, 5th Marine Regiment returned from a seven-month deployment in Iraq on Saturday, but Phan and 11 other Marines weren’t among their ranks.

In June, seven Marines and a Navy corpsman from Kilo Company were charged with murder, kidnapping and conspiracy, in connection with the April 26 death of Hashim Ibrahim Awad, a 52 year-old man, in Hamdaniya, Iraq.

Military authorities have accused the eight of abducting Awad from his home and shooting him. Authorities also allege that the Marines planted an AK-47 rifle and shovel near Awad’s body in an attempt to make him look like an insurgent and cover up the murder.

Last Friday, unrelated assault charges were brought against six Marines from Kilo Company, three of whom were already charged in Awad’s death. All six were accused of assaulting three Iraqi men on April 10.

It’s unclear what involvement, if any, Phan had in either incident. His attorney said he wasn’t present during the alleged kidnapping and murder of Awad.

While the eight Marines charged in Awad’s death are still confined in the Camp Pendleton brig, the three Marines accused of assault were released and continue to report for duty.

If Phan is charged with conspiracy in Awad’s death but not detained, attorneys for other Marines may have stronger cases to argue that their clients should be released from the brig pending trial. The Marines don’t pose flight risks, they say.

“I think Phan will not be taken into custody and it will be a strong argument for my client to be released from the brig,” Jane Siegel, an attorney for one of the Marines charged in Awad’s death, wrote in an e-mail. “I also think that this escalation and broadening of charging of people just indicate that the government is not sure what happened. They are throwing a lot of stuff on the wall and seeing what sticks.”

Sheldon said he has advised Phan not to testify in any of the upcoming Article 32 hearings of the men under his command.

Three separate Article 32 hearings – the military version of a grand jury hearing held before an impartial investigating officer – have been set for all eight Marines charged in Awad’s death. They’re scheduled to being on Aug. 28, Sept. 25 and Oct. 18.

The investigating officer can then dismiss the charges or, if reasonable grounds exist to believe that the accused committed the alleged offenses, recommend that the cases move forward to a full court martial proceeding before a military jury.

The Marines charged in Awad’s death are Sgt. Lawrence G. Hutchins III, Cpl. Trent D. Thomas, Lance Cpl. Jerry E. Shumate Jr., Lance Cpl. Tyler A. Jackson, Pfc. John J. Jodka, Lance Cpl. Robert B. Pennington, Cpl. Marshall L. Magincalda and Navy Hospitalman Third Class Melson J. Bacos.

All eight are currently being held in the brig at Camp Pendleton.

Thomas, Shumate and Lance Cpl. Saul H. Lopezromo, Pfc. Derek I. Lewis and Lance Cpl. Henry D. Lever, were each charged with a single count of assault for allegedly striking Khalid Hamad Daham with their fists and knees, according to charges released by military officials.

Hutchins was charged with three counts of assault for allegedly striking Daham, choking Hassam Hamza Fayall and placing a loaded pistol into the mouth of Ali Haraj Rbashby “with a force likely to cause death or grievous bodily harm by chocking him,” according to details released by military investigators.

In late May, Maj. Gen. Richard C. Zilmer ordered Phan and the accused Marines to return to Camp Pendleton from Iraq after a preliminary criminal investigation indicated there was enough evidence to warrant further investigation.

According to military records, Phan was promoted to 1st Lieutenant on April 20, more than a week after the alleged assaults and just days before Awad’s death. His promotion took effect May 28, just four days after returning to Camp Pendleton.

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