Attorney says agents made up assault case evidence

By: MARK WALKER - Staff Writer | Friday, January 12, 2007 10:07 PM PST ∞

CAMP PENDLETON ---- A hearing for a Marine officer accused of assaulting an Iraqi was halted Friday after a defense attorney alleged that Naval Criminal Investigative Service agents fabricated portions of statements that led to the charges against the lieutenant.

Attorney David Sheldon made the assertion in a Camp Pendleton courtroom on the second day of an Article 32 hearing for 2nd Lt. Nathan Phan. The Sacramento-area native is charged with assaulting three Iraqis and filing a false report in an incident that took place on April 10 in Hamdania, Iraq.

Sheldon's allegation prompted the hearing officer, Lt. Col William Pigott, to order a halt to the proceedings until the three government agents could be brought to court to testify.

"I want to hear from these agents," Pigott said, ordering a recess in the hearing until an as-yet-to-be determined date when all the parties can be present in the courtroom.

The development came during the midpoint of testimony from Lance Cpl. Christopher Faulkner, a member of the platoon that the 26-year-old Phan commanded in Iraq last year.

Faulkner testified that a statement the Marine Corps' Navy law enforcement agency attributed to him contained falsehoods. The key inaccuracy, he said, was including language that said he saw Phan placing an unloaded pistol into the mouth of one of the alleged victims. In fact, Faulkner testified, he never saw that occur and never told agents that it had.

Phan's defense team also introduced a signed affidavit from Faulkner stating that he merely saw Phan in a room with a detainee and that the lieutenant was leaning against a wall as the men were being questioned.

During a break in the hearing, Sheldon approached Pigott and said he had reason to believe the government agents were lying.

"We believe in good faith that there has been misconduct on the part of NCIS agents," Sheldon said. He added that when the agents take the stand, he wants the hearing officer to read them their constitutional rights when they are sworn in, suggesting they may have committed criminal misconduct in preparation of the statements that the government is using against Phan.

Those statements were taken from several members of a Kilo Company platoon that Phan commanded in Hamdania. The assault case was lodged against Phan as a result of the investigation into the shooting death of a retired Iraqi police officer on April 26. Sheldon said that in addition to Faulkner's statements, those of two other Marines contain falsehoods, and that they have filed signed affidavits to that effect.

"It's hard to believe that three unrelated Marines who have no relation to Lt. Phan or the alleged misconduct would fabricate this kind of allegation," Sheldon said.

Phan is not accused of having any role in the homicide case, which has led to guilty pleas from three Camp Pendleton Marines and the Navy corpsman from the platoon attached to 3rd Battalion, 5th Marine Regiment. Four other Marines are awaiting courts-martial in the case.

During his testimony, Faulkner said the original statement he signed was typed by Naval Criminal Investigative Service agents who came to him several days after it was made and asked that he sign it. Faulkner, who is not accused of any wrongdoing, said he was on guard duty at the time and only had a few minutes to review the document and never read all of its contents.

Under questioning from Maj. Donald Plowman, the lead prosecutor in the Phan case, Faulkner said his amended version was given to Phan's attorneys in November and represented the truth of what he knew.

Sheldon told the court that he intends to call two other Marines who will testify that their statements prepared by the Naval Criminal Investigative Service agents also contained information, damaging to Phan, that they will say they never told the agents.

Two of those agents are in Georgia and one is in North Carolina and were not available to testify Friday.

An agent who did testify, Kelly Garbo, told the court that she assisted in the interrogation of Phan in Iraq in May and that the Navy and Marine Corps' law enforcement agency never puts falsehoods in the official statements it provides prosecutors.

But Garbo also said when asked by Sheldon that she had never read her agency's manual on how to conduct interrogations.

That statement, along with the defense's assertion that agents fabricated part of the statements being used against Phan, are serious enough to warrant the appointment of a special counsel to look at how the agency does its job, Sheldon said after the hearing.

"This raises the specter of serious misconduct," Sheldon said.

On Thursday, two Marines testified that they took part in beating one of the men Phan is accused of assaulting, but said the lieutenant wasn't in the home where that incident took place.

Lance Cpl. Saul Lopezromo, who was granted immunity from prosecution in exchange for his testimony, and Pvt. Jerry Shumate Jr. said Phan was sitting in a Humvee parked about 200 yards away from the home of the beating victim.

Marine Corps officials on Thursday said that victim, a former Iraqi intelligence officer named Khalid Hamad Daham, is one of four Iraqis that the government is attempting to bring to Camp Pendleton to testify in the Hamdania assault and homicide cases.

There are four remaining defendants in the homicide case, including two men charged along with Phan in the assault case, Sgt. Lawrence Hutchins III and Cpl. Trent Thomas.

Besides assault, Phan also is charged with making a false statement, an allegation that contends he reported to his commanders that one of the alleged assault victims had been released from custody when in fact he had not.

Sheldon said the government has failed to produce any evidence supporting that charge.

If convicted of the charges he faces today, Phan could be sentenced to as much as 28 years in prison and a dishonorable discharge. When the hearing concludes, Pigott will issue a recommendation to Lt. Gen. James N. Mattis, commander of the I Marine Expeditionary Force, as to whether he believes Phan should be court-martialed.

Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com.

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