Witness for accused Marine lieutenant threatened with perjury charge

By: MARK WALKER - Staff Writer | Saturday, January 27, 2007 10:52 PM PST

CAMP PENDLETON ---- A hearing for a Marine lieutenant accused of assaulting three Iraqis took a dramatic turn Saturday when a witness called in his defense was told he may face criminal charges for allegedly lying.

Lance Cpl. Andrew Kraus was read his legal rights and informed that he might be charged with making a false official statement and committing perjury during his testimony in a hearing for the accused officer, 2nd Lt. Nathan Phan.

The allegations against Kraus came from the lead prosecutor, Maj. Donald Plowman, who told the court he was duty-bound to level the charges.

The hearing officer, Lt. Col. William Pigott, agreed that Kraus should be read his rights. Once he was, Kraus told Pigott he wanted a lawyer and was then ordered out of the courtroom and directed to seek legal advice.

Plowman's action came after the lance corporal testified under oath that he did not have any recollection of meeting with the prosecutor in August, nor any memory of telling Plowman during that session that his sworn statement that implicated Phan in the assault was accurate.

Plowman told the court that the meeting had taken place and was witnessed by co-prosecutor, Capt. Nicholas Gannon, and that Kraus had affirmed during the meeting that his statement implicating Phan was correct.

Kraus had been called by Phan's defense team after providing them with a signed, sworn affidavit that contends his original statement prepared by an agent of the Naval Criminal Investigative Service contained falsehoods and that he never told the agent that he had any knowledge of Phan committing an assault.

He was the third of three enlisted Marines to make such statements in an ongoing Article 32 hearing for Phan that will determine whether the 26-year-old lieutenant and platoon leader from Camp Pendleton's 3rd Battalion, 5th Marine Regiment will face court-martial.

Two other enlisted Marines have also testified that statements attributed to them by the Navy and Marine Corps' civilian law enforcement agency contained things they never said that implicate Phan. Their affidavits came several months after the statements they made to investigators in Iraq.

The other two enlisted men were not threatened with criminal charges stemming from their statements they gave in Iraq last spring during an investigation into the slaying of a 52-year-old Iraqi civilian in the village of Hamdania.

The assault allegation against Phan was an outgrowth of the homicide probe that has led to guilty pleas from five of the eight men charged.

Phan, who commanded the platoon members charged in the April 26 killing of retired Iraqi policeman Hashim Ibrahim Awad, was not present when that incident took place and is in no way connected to the slaying.

But members of the squad charged in that case have made statements that Phan and others assaulted three Iraqis in March and April of last year, resulting the charge against Phan. He also faces a charge of making a false official statement in connection with one of the alleged assault victims.

After Kraus was led from the courtroom, Pigott told the attorneys that he may urge the convening authority over Phan's case, Lt. Gen. James Mattis, to order an investigation to determine how the three enlisted Marines made what are considered official statements in Iraq against Phan and now deny having ever said things damaging to the defendant.

The veracity of the Naval Criminal Investigative Service agents who took those statements has been made a centerpiece of the defense's case.

David Sheldon, Phan's lead attorney, contends the witnesses had no motivation to lie and that the law enforcement agency cannot prove the statements it attributes to them are accurate because it does not routinely audio or videotape witness statements nor interrogations of criminal suspects.

Sheldon told Pigott that he believed the law enforcement agents also should have been cautioned before they testified.

"Each witness should be read their rights," he said. "One (either the enlisted Marines or the agents) is telling the truth and one is not ---- there should be an investigation."

Pigott was not entirely clear as to whether he will ask for an investigation of the agents but said he will clarify that aspect when the hearing resumes at 10 a.m. this morning.

"I will likely recommend an investigation into this whole matter," he said shortly after the proceedings were interrupted by the allegations against Kraus.

Phan's attorneys maintain the Sacramento-area native is innocent and that the prosecution has failed to present sufficient evidence for Pigott to recommend he face court-martial.

One of the Naval Criminal Investigative Service agents who prepared some of the statements being challenged, Kyle Casey, testified that Phan acknowledged during an interview in Iraq on May 20 that he had placed an unloaded pistol into the mouth of one of the alleged assault victims.

U.S. forces in Iraq are instructed that they can question detainees but are not allowed to use physical force or threats of injury or death.

During questioning of an instructor who provided training in handling detainees to the entire battalion before it left for Iraq in January 2005, Sheldon said Phan had been ordered to kill or capture a suspected insurgent. It was while questioning a brother of that man that Phan used the pistol, according to Casey.

One of the two other alleged assault victims is no longer alive and the third has refused to cooperate with U.S. authorities, according to testimony during the hearing.

Saturday's testimony ended with the defense calling William Gaut, a former police detective and police procedure witness who testified that standard operating procedure is to videotape all suspect interrogations and to have witness statements written by the person being interviewed and not the investigating officer, as is the practice of the Naval Criminal Investigative Service.

"Agencies that choose not to record place themselves in a very precarious position," Gaut said.

Once the hearing concludes, Pigott will consider all the evidence and make a written recommendation to Mattis, who can order Phan to trial, dismiss the case entirely or take some form of administrative action. He directed the attorneys to work through this weekend in order to wrap up the testimony when all the parties could be present.

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

Next Previous

Advertisement

35 comment(s)[-]Go to Top

Did NCIS conspire with the witness wrote on Jan 27, 2007 4:51 PM:THE FBI should be brought in to clean this up. These civilian flunkies with the NCIS are outta control. Sure looks suspicious to me! Bring in the FBI, like you would in any other agency that is corrupt or nees some house cleaning!

NCIS coaching the witness! wrote on Jan 27, 2007 4:53 PM:Do these police officers with teh NCIS get a new toaster with every conviction or what! There must be a lot pf pressure to make cases where there is none! Does this happen alot. Has anyone out there ever had the NCVIS lie about them? I wonder!

NCIS wrote on Jan 27, 2007 4:57 PM:Naval Clown Instigative Suckers! (NCIS) I agree bring in the FBI to clean this up! Where are the politicians asking querstions about these kangaroo court and sloppy and maybe corrupt investigative techniques! Bullies with badges! They need to be taken over by a mandate and have some oversite over this organization. Where is the Sec of the Navy in all of this! Why isn't anyone asking the hard questions! Coaching a witness to lie. I am more concerned about the NCIS policeman, than I am about some scared LCpl, who will do as he is ordered or threatened to do!

Veritas wrote on Jan 27, 2007 5:18 PM:There seems to be no honor among the marines--the lie more easily than the proverbial rug. What is wrong with these young men--have they no decency or capacity to tell the truth. They create an topsy turvey world where they say whatever they think will make things better for them. Don't they teach the truth to Marines?

mark wrote on Jan 27, 2007 6:11 PM:Wow, it sounds like the hearing officer has pretty much made up his mind about this case. He won't be standing for any of that defence stuff in his courtroom. I guess we should go straight to sentencing. I don't blame Kraus for wanting an attorney. One thing I've really learned from these cases is that if you get involved with the military justice system you had better lawyer up quick, particularly and especially if you are innocent.

NCIS wrote on Jan 27, 2007 6:40 PM:AW4cryin is that you under there?? Gotta be cuz you're on a roll!! Haha!!

AW4cryinoutloud wrote on Jan 27, 2007 8:59 PM:To NCIS: I guess that's me under there. I agree wholeheartedly with everything you said at 4:57PM.

GFN wrote on Jan 27, 2007 9:11 PM:The NCTimes would not post my earlier thoughts on this topic, but they will have to post this or deal with a censorship charge that an American, freedom of speech, newspaper should not want to address. Prosecution IS trying to intimidate the witness to tell...PROBABLY... the truth, however, the case has been lost. Prosecution has no proof that they are telling the truth; no video proof is available, even though it would have been easy to obtain. The fact that "co-prosecutor, Capt. Nicholas Gannon," was present gives no credence to the prosecution because, "The veracity of the Naval Criminal Investigative Service agents who took those statements has been made a centerpiece of the defense's case.", and it has been proven time and time again that the "Military" does not tell the truth. Jessica Lynch; Pat Tillman; WMD's; the "repelling" of the Iraqi insurgents who wore American uniforms and spoke English, and executed four American soldiers...on and on the lies flow. This case is over...NOT GUILTY...even if it is due to government incompetence due to a culture of lies and deception.

John1 wrote on Jan 27, 2007 9:17 PM:Jay, where are you? Obviously the right wingers got in the courtroom today!LOLOL

John1 to Veritas wrote on Jan 27, 2007 9:18 PM:What, and more importantly, who, are you writing about?

Wake up!! wrote on Jan 27, 2007 9:59 PM:I re-post this comment on this story as well. "To all who are so quick to believe NCIS and so quick to condemn Marines who fight for your right to have any opinion you like: You now have testimony from NCIS agents themselves saying that their notes and their report conflicts...why do you think that is?? And you have other testimony from other Marines that NCIS put things in their statements that they DID NOT SAY! Now you don't know any of these Marines or NCIS agents...so how is it that you are deciding who is lying and who is not?? Simple...it's just what YOU want to believe. There is no fact that you are basing it on. And you have no right to judge. Leaking is pretty relevant to these cases because FAIR TRIALS are pretty damned important. Apparently that doesn't fall in your line of thinking. Hope you never get in a position where you are not afforded that right. Then I'm sure you would have a different opinion. But NOTHING is at stake for YOU, personally in this...that makes it easy for you to spew all this. Thanks to AW4..who makes very valid points!"

AW4cryinoutloud wrote on Jan 27, 2007 11:50 PM:I'd also like to know where Jay is. He went to a lot of trouble recently to point to everyone's attention supposed comments by me made on a story about the Border Patrol agents. I'm still waiting for him to clarify. He seems to come out of the woodwork to make cheap shots but can't seem to back them up. Still waiting Jay.

The NCIS pushes the little guy around! wrote on Jan 28, 2007 7:56 AM:They are not the protectors by any means. Why does the military have these civilians doing this anyway! They need real military members doing this job and not these FBI flunkies doing this! The real FEDS (FBI) should come in and unscrew this! My god whose steering this NCIS idiot cruise ship!

Veritas wrote on Jan 28, 2007 8:02 AM: Everyone seems to be in a celebratory mood because the prosecution may not be able to prove its case. The fact that we all believe the charges are true and that the accused are bald faced liars, and in many cases double liars, doesnt seem to phase anyone. I dispair at just how low the public sense of morals and ethics has sunk. It really is no wonder that these young men don't have a clue about what honesty and honor mean. It is all about winning and the ends justify the means.

To Veritas wrote on Jan 28, 2007 10:54 AM:How dare you speak of thisng you nothing about! We don't all believe the charges are true! We belive that war is a confusing thing that cannot be judged in this civilized world. You do not even want to know what it takes to clean up a rat hle like Iraq! Trying to put sanity in where there is none! Combat and war zones are ruthless and make no sense! It is hell!

AW4cryinoutloud wrote on Jan 28, 2007 11:15 AM:I like the call name: Veritas. It's kind of impressive. Leads one to possibly assume that the one making the comments is truthful. How disappointing. It is "not" a fact that we all believe the prosecutions charges are true, or that the accused are liars...Oh, Wow; double liars? Did Veritas consider the Duke La Crosse players liars and have them convicted before it was found that the Prosecutor was the "liar"? What the heck was the comment Veritas made, that "It is all about winning and the ends justify the means."??? This isn't a video game. This is as real as it gets. These are good young men from good families. They've been to Hell and back and have been put in an impossible situation by those in power over them; the very ones who trained them, taught them, mentored them, encouraged them, lead them, and now... Abuse that power and Cut and Run from them. The ones who are clueless about what honor and honesty mean are not in the Brig. Would you teach your child the path of honesty and honor, watch him grow with those values, know that he held those values in his heart and then, on the word of mortal strangers, turn on your child and not give him the benefit of the doubt when accused? Would you seek someone to put your child through the grinder for hours, without bathroom privileges, or food, and let them threaten your child with years in prison or even death? Would you let someone deny your child the right to face his accusers? Would you not have someone (ANYONE) there by your child to make sure "his" statements (Not the statements of those ADMITTEDLY trying to "break" him) were recorded or video taped? Give me a break. The VERITAS is that the lack of honor does Not reside in the Brig.

AW4cryinoutloud wrote on Jan 28, 2007 12:16 PM:To the post at 7:56AM:I love the way you express yourself. As a civilian who has worked for the government, I learned one thing: There are too many civilians doing the work that military personnel could do. Civilian salaries are much higher than military which leads to government waste. If not for "connections" in my family I do not believe that I'd ever have attained my job with the Bureau. How's that for VERITAS? I had a very limited amount of knowledge and wasn't really that much of an asset. I've seen over the years the advantage of having connections. We used to call any higher-up in the military who was inadequate at his job; "Civilian Rejects". I agree with you. The real FEDS should come in and unscrew this.

POBT6 wrote on Jan 28, 2007 1:30 PM:The NCIS should be investigated by the FBI for Railroading u.s. marines. It sounds like the trial judge has his mind made up already. Is he playing for the prosecutions team? (NOT GUILTY, IN ANY LEGITIMATE COURT)

Angel wrote on Jan 28, 2007 2:01 PM:Maybe Jay has something better to do than answer insults from obvious biased (and perhaps not too inteligent writers)? Did any of you consider that the MARINE is lying, not the cop?

To: AW4cryinoutloud wrote on Jan 28, 2007 4:14 PM:Thanks! I agree! The NCIS needs to get a full overhaul! Let the Bureau take over for a while!

Bring in the FBI! wrote on Jan 28, 2007 4:17 PM:Why are the civilian agents with the NCIS allowed to do such sloppy work? Let this guy go and go back to interview and interrogations 101!

AW4cryinoutloud wrote on Jan 28, 2007 5:38 PM:To the post at 4:14PM: Thank you so much but, I was just echoing what the person blogged at 7:56AM and agreeing about the "real FEDS (FBI) should come in and unscrew this!" I loved the line about whose steering this NCIS idiot cruise ship. Funny person.

AW4cryinoutloud wrote on Jan 28, 2007 6:08 PM:To Angel: Nope!!! Jay is not the one answering insults. Jay is the one making them without anything to back him up. In the article about Marine Pleads Guilty In Killing of Retired Iraqi Police Officer, Jay, on the 24th at 9:33PM, made a point of wanting bloggers to know of comments that I don't remember having made concerning the Border Patrol. I asked him to give me the name of the article, date, time, and my "supposed" quote. I haven't heard diddily. I even googled the thing, read it, and commented on it so Jay wouldn't be confused. I'm still waiting for Jay to back up his accusation. The lack of intelligence is not my problem. If you follow Jay, then I believe you may be the one lacking. You asked if I ever considered whether or not the Marine is lying. Of course. The differenc is that I give the Marine the benefit of the doubt and I expect it to be proven...or...no lie!!! AW4.

Jay wrote on Jan 28, 2007 6:59 PM:To my dear "friends" john1 (...) and AW4, (...): Would it surprise you that I was probably the first one to comment on this article (as I am up late most nights). Would it further surprise you that I called for the dismissal of all the charges against this officer? Of course it would because you like to project your opinions and biases towards others instead of towards the issues. In all likelihood NCT did not publish my comments because they want us to fight, that's how they sell ad space. Also, comments attributed to "Jay" are not always written by me. When I see them I refute them, even if in agreement. There has obviously been someone blogging as AW4 recently as well. Wouldn't be surprised if it was NCT staffers. When the subject matter gets outdated or the comments too mild, I believe they plant remarks to stir the pot. Sorry to disappoint you, but I agreed with you for once only for far different reasons. This trial is a dog and pony show. The actual confessed killers got off lightly, what are they going to do to this guy if convicted, send him to bed without dessert? Don't waste anymore of our tax money on these trials. Pull out of Iraq immediately and give a general amnesty to all accused war criminals. Its an olive branch folks and a good deal. Accept it.

mark wrote on Jan 28, 2007 7:53 PM:Well I agree with AW4 that these cases are a travesty and I agree with Jay that we should start pulling out of Iraq now. Excuse me while my head explodes!

Harry wrote on Jan 28, 2007 8:47 PM:Jay's post at 6:59 makes a lot of sense, about how sometimes on these posts, things appear attributed to a name people love to hate, that may or may not have been written by that person. I hadn't thought it was the editor, but who knows. I do know that the level of anamosity and lack of civility and the coarseness of some of the recent posts, is making me take a second look at further participation in the discussion. I doubt any minds are changed and no useful purpose seems to be served.

John1 to Jay and Harry wrote on Jan 28, 2007 9:40 PM:I don't know if it's a reasonable assumption that NCT staffers "plant" posts. I have had a number of personal interfaces with NCT reporting staff and they are quite ethical straight-shooters, IMHO. I have had many prospective posts not posted by the online editor, as well. Jay, c'mon- you have to admit my first post was funny in context to the "overall right wing want as you would see it" of a courtroom outcome. I am not so much surprised at your conclusion to acquit as how you reached that conclusion. Lt. Phan is not implicated in Awad's death; the cases are separate. I daresay the Investigating Officer will not be enjoying a long judicial career in the USMC, though. His report will be dismissed out of hand due to his behavior. I'll buy the general amnesty, though! LOL even if its a "plea bargain"! LOLOL

AW4cryinoutloud wrote on Jan 29, 2007 10:55 AM:To Jay: I just read your comments made on the 28th at 6:59PM. Answer to your first question: NO. Answer to your second question: Yes, it would surprise me. But not for the reasons you gave. There is no "projecting" going on where you're concerned. Anyone who wants to go back and read your blogs from the beginning will see that. Your animosity for me is self evident. Your comments about NCTimes are proof of your animosity and paranoid attitude. Do you really believe that you are the only one who has not had some comments printed? I, too, have talked with a couple of people at NCT and they're as professional and kind as can be. When they don't print something I type, I rewrite and resubmit. Get real Jay. NCTimes employees don't sit there and pick and choose crap from the two of us just because they want us to fight. We go at it enough to keep them too busy to have to go to the effort. Can you comprehend how many comments these guys have to read in a day? Gads Jay; Get over your unimportant self. Now you tell me that comments attributed to you aren't always written by you? Wait; I have to pick myself up off the floor from laughing. Just WHEN did you ever refute a blog as not having been your own? Give article, date, and time. I'll check it out. Someone DID do that to me recently. A very "cowardly" person. I refuted as soon as I saw it. I also called NCT. Now you want to implicate NCT staffers? Planet Earth to Jay...Come back to us Jay. You're floating too far out. In this set of comments you referred to the "confessed killers". Wrong!!! Only one has plead to unpremeditated murder. Geeeze; why not? All the really good deals have been made. It means he won't get stuck with "many" years in the Brig. Now; after months of sniping at me for defending these Marines, YOU offer them an "olive branch"??? Do olive branches have thorns? If these Marines were to read your comments from the past few months, they wouldn't accept "any" thing from you. While we're at it...Are you ever going to respond to my request for you to back up the accusation you were so eager to make toward me , for everyone to read, concerning a Border Patrol agent story? I responded and asked you to give name of article, date, time and my quote. If you want the bloggers to know, then back it up jay. Maybe then, I'll offer "you" an olive branch!!!

AW4cryinoutloud wrote on Jan 29, 2007 11:21 AM:To Harry: Are there also two of "you"? You "hadn't thought it was the editor, but who knows"? Gads Harry...No comment on that one. But, I do think I've deciphered your comment that you think "the level of animosity and lack of civility and the coarseness of some of the recent posts, is making" you "take a second look at further participation in the discussion." I wondered why the change, and came up with this: Appealing to the many new bloggers who've joined in recently. Sly move; BUT! All one has to do is go back and read past blogs and make their own decision as to whether or not they believe your doppleganger is shocked by the level of animosity of some posts and whether or not you (or you) will participate further in the discussion.

Jay wrote on Jan 29, 2007 11:27 AM:john1: I too have interfaced with the editorial staff at NCT only perhaps far less cordially than you. I don't hold them in the same high regard. After all, they are journalists whose main agenda is sales, not substance. Aren't they also on the list of least trusted professions, somewhere between oil execs and used car salesman? Does it matter who is stirring the pot, the editor or rogue bloggers? Along with Harry I too have many times not taken part in the discussions because of the villification and personal attacks. As I have said in the past I too do that, when attacked. Interestingly I have several times experimented with a different screen name expressing the same general opinions but not been attacked (You and AW4 even gave me kudos or were at least polite under that other name. On the other hand, Harry once attacked me and he rarely goes after anyone!). There is too much personal animosity.

So Sad wrote on Jan 29, 2007 1:15 PM:I believe these MARINES have been railroaded and used as scapegoats by their higher ups!!! Most of these MARINES are young men that learn real fast in boot camp that they either obey or live with some harsh consequences!! NO boot camp of any service departments can prepare these men/women for what they will experience during war!!! Most of the time they don't even know WHO they can trust over there. The killing/murders of 5 of our servicemen last week is a perfect example!!! Let's get the heck out of there cuz it's only going to get worse then better!!! As for the way this case has been handled......what a joke!!! These men & women have been fight for us to have rights but they don't have any when something like this occurs. How sad! All levels of our service needs to be re evealuated!!

AW4cryinoutloud wrote on Jan 29, 2007 1:46 PM:To Jay: This is becoming hysterically funny. I just can't seem to get up off the floor from laughing because every time I turn around, there's another joke. YOU have interfaced "less cordially" with the NCT staff? Tell me it isn't so. You might try reading the comments you just made at 11:27AM. Regardless of the paranoia, you VILLIFY and then turn around and say that you, "too have many times not taken part in the discussions because of the VILLIFICATION and personal attacks". I'm sorry but, I'm now visualizing NCT staff, all of them, on the floor laughing their rears off. Strange that you'd admit to using a different screen name at times. I'm still waiting for your response on the Border Patrol thing. Haven't seen it yet, but, you have now said that I've given you kudos under one of the sneaky names. Maybe you'll man-up on this one, if not the other, and give us name of the article, date, time, and my quotes. Last but not least...Harry "rarely goes after anyone"??? I guess I'll just stay on the floor for the rest of the day. No sense in getting up at this point. Just too cottonpickin' funny. AW4.

Jay wrote on Jan 30, 2007 12:04 AM:I don't respond to the nonsense written by obviously disturbed people. I neither take them seriously nor am I ammused. I simply feel pity.

GoodGriefGracy wrote on Jan 30, 2007 9:19 AM:To Jay, John, John1, Harry, o2cool1: To these folks, if you must read your banter in print, then send one another letters, rather than take up space and time of those who would like to see opinions on the ARTICLES therein. And not one anothers personal views of each other. Get together for coffee (or arsenic, as the case may be) once a week to attack one another. Those of us who read these columns regularly know just how great you think y'all are, but seriously, could you do it in private, and or possibly just stick to the topic of the articles. Maybe the North County Times would be so kind as to set aside a space just for you folks to attack one another, and not bore others with your repetiveness.

AW4cryinoutloud wrote on Jan 30, 2007 12:29 PM:You see! There you go again! You have nothing to back up accusations you make; especially to me, because "I" seem to be your favorite one to pick on. That just tells me that I'm getting to close to home Jay. It's sad in a way. I don't mind anyone disagreeing with me. None of us are perfect and we have different ideas but, it's the "way" it's done that digusts me. It's been pointed out to me a few times that I was wrong about something. When I checked it out and found they were correct, I responded and corrected it and apologized where I felt it was needed. But, I've never initiated cowardly responses with accusations of name calling such as "disturbed people". That is the way of a coward and one who can not back up his comments. I'm still waiting for you to respond to your slam at me on that one article. You made a "cowardly" point of bringing it to the attention of "everyone". All I want is for you to prove it. If you can't, then anything you have to say now or in the future holds zero credibility. As for your pity; better save some for yourself. AW4.

First name only. Comments including last names, contact addresses, e-mail addresses or phone numbers will be deleted. Attempts to misrepresent your identity or impersonate any person will not be approved. All comments are screened before they appear online, so please keep them brief. Comments reflect the views of those commenting and not necessarily those of the North County Times or its staff writers. Click here to view additional comment policies.

Submit Comment[-]

(optional)
   

Advertisement

Videos