Federal Prosecutors Turn Up Heat
in Fallujah Murder Case: Trial
Will Be a Marine Reunion
by Nathaniel R. Helms | July
Navy Cross recipient is among the Marine veterans of the
Battle of Fallujah getting subpoenaed to a US District Court in
Riverside, California where former comrade-in-arms Jose L Nazario is
scheduled to go on trial for allegedly executing two captured enemy
combatants in the opening hours of the battle.
When the battle erupted on November 9, 2004 Nazario was an
infantry squad leader in 3rd Platoon, Kilo Company, 3rd
Battalion, 1st Marines – the Thundering Third. He is
scheduled to go on trial Aug 19 for voluntary manslaughter and related
charges after allegedly killing two insurgents and ordering Marines
under his command to execute two others.
Navy Cross recipient R.J. Mitchell, who earned the
nation’s second highest award for valor at the famous “Hell House”
fight, is among the witnesses ordered to appear at the US District
Court in Riverside, California.
At Fallujah, Mitchell was a corporal leading another squad from the
same platoon when Nazario’s Marines reportedly encountered the four
armed insurgents hiding in a house.
Mitchell was interviewed by Naval Criminal
Investigative Service Special Agent Mark O. Fox in
Arizona two years ago. Mitchell
has repeatedly said that he has no knowledge of the alleged incident.
The most maligned small combat unit in American military
Most of the witnesses the government intends to call
are former members of 3rd Platoon, one of the most renowned
and certainly the most maligned small combat unit in American military
Eight enlisted men from 3rd
Platoon have been charged with committing murder and other serious
crimes in Iraq in three
unrelated incidents spanning several years. Six of the accused were
blooded in the November 2004 battle to retake the city from entrenched
al Qaeda led insurgents.
More Kilo Company Marines,
including the officers and NCOs leading them at Fallujah, face similar
treatment if the government proves its case, sources say.
In addition to Mitchell, the growing list of
government witnesses includes former members of Nazario’s squad,
Marines fighting in the general vicinity, and senior Marines assigned
to Kilo Company during the alleged encounter, sources said.
Many of the active duty and former Marines facing
possible incrimination have already “lawyered up” in anticipation of a
long and ugly inquisition by government prosecutors, they said. Others
have refused to cooperate or made themselves difficult to find,
If Nazario is convicted it will be the first time in
American jurisprudence a service member engaged in lawful combat has
been convicted of killing an enemy soldier whose existence is not even
a certainty. Adding insult to injury is the government’s recent
superseding indictment charging Nazario with unlawfully using his
military issue rifle to commit the alleged crime.
Prosecutors got plenty of nothing
The government has no bodies, identities, missing
person reports, or crime scene to buttress its prosecution. Instead,
government prosecutors are relying on the conflicting statements of
battle-rattled Marines to make their case, said Nazario’s lawyer Kevin
At the top of the government’s list of witnesses are
accused murderers Sgt. Ryan Weemer and Sgt. Jermaine Nelson, Nazario's
co-defendants (read Sgt Weemer's subpoena at the
link). Both Marines are currently under open arrest at CampPendleton
pending general court-martial for unpremeditated murder and six counts
of dereliction of duty.
Weemer and Nelson were jailed for civil contempt of
court by federal judges in May and June for refusing to testify before
a Grand Jury seated in
Riverside, Calif. after being granted testimonial
immunity by prosecutors to do so.
Theirs is truly a Hobson’s choice, one observer
If Nelson and Nazario refuse to testify in open
court both Marines face mandatory six to 18-month federal jail
sentences for criminal contempt. If they testify the endangered duo
faces potential life sentences for murder because the government’s
grant of testimonial immunity only protects them from revelations the
government doesn’t already know about.
men vowed to the federal judges who sent them to jail for refusing to
talk to the Grand Jury that they will never talk - again.
Weemer revealed the alleged killings to Secret
Service agents in 2006 during a job interview to be a uniformed Secret
Service officer. His statement was forwarded to the Naval Criminal
Investigative Service for investigation.
In November 2006 Fox and another NCIS agent visited
Weemer at his job in
Missouri and then interviewed him
again at a nearby hotel after Weemer agreed to waive his right to
During that recorded interview the thoroughly
confused and obviously rattled Weemer told Fox that he killed one
insurgent with two shots from his pistol after Nazario told him to do
it. He said he later saw two more bodies, but didn’t know how they
Fox: Okay, and who was in the house when you came back in?
Weemer: I just remember Nazario was there, some – somewhere.
Fox: Okay. How many – how many bodies did you actually see? You saw
the one – you know about the one that you had shot…
Weemer: I think there was a second and another one.
Fox:And a third one?
Weemer: Um hum.
Fox: Do you know who shot either…
Weemer: I don’t know.
Fox: … of those two?
Weemer: That I don’t know.
Weemer’s statement, as well as other incriminating
statements provided by Nelson before he obtained legal representation,
led Fox to file a criminal complaint against Nazario in US District
Court ten months later.
Nazario was charged under a law written in 2000 to
give the federal government a mechanism for prosecuting American
citizens involved with the Armed Forces who are charged with criminal
offenses in foreign countries where the
doesn’t have legal jurisdiction.
Conspicuously absent from the current list of
government witnesses is Jesse Grapes, in 2004 the 3rd
Platoon commander at Fallujah. Senior Marine officers – including Brig
Gen John Toolan – described Grapes as one of the finest small unit
leaders in the Marine Corps.
Last year Grapes was briefly recalled to active duty
and then released after reportedly refusing to cooperate with
“The government doesn’t want to give Grapes
immunity", one source said.
Investigators continue search for the identity of the
Marine on the radio
Multiple sources told Defend Our Marines
that the “real target” of the investigation is the Marine or Marines
who authorized the unlawful order to kill the prisoners and then
relayed it over the radio.
The Marine radio operator carrying the platoon radio
told investigators last year that he doesn’t remember hearing the
alleged order to kill the prisoners being given over the radio he was
Marine LCpl James B. Crossan, a veteran of Fallujah who was grievously
wounded in the infamous ambush at Haditha a year later, said so in a
recorded interview with Fox almost 18 months ago.
What would have been the procedure say if one of the other squads, a
squad you weren’t with, 1st or 3rd Squad, had
taken prisoners, what would have been the procedure?
Talk to command, tell them they’ve got some detainees, and they would
send up somebody, the supply guy, to check them out.
When you say command, what command is that?
They [squad leaders] would talk to me and then I would talk to higher
Did you receive any calls [about prisoners] from any of the squads
I don’t remember.
Undeterred, Fox continued
interviewing Crossan for several more minutes before trying again.
During that day, I am told, is a group of Iraqi males were
encountered. They were detained and Sergeant Nazario called in to
somebody and said, "We’ve detained these individuals and what do we do
with them." And the response he received was "Are they dead yet?" And
he asked whoever he was talking to come again and again it was "Are
they dead yet?" Did you hear any communication like that that day?
Not that I remember.
you think you would remember if that had been said?
Probably not. No.
Still in the air is whether Nazario might have
received the mystery order over aninter-squad (ISR) IC-4008M radio issued to the squad leaders
and other senior Marines in the platoon. At least seven of the “hands
free” radios were issued to Grapes, the senior NCOs spread around the
formation, and all three squad leaders before the platoon crossed the
line of departure at Fallujah.
One squad leader was subsequently killed during the
battle and both Mitchell and Nazario deny ever hearing such a command.
The platoon sergeant, medically retired Gunnery Sergeant Jon Chandler,
told Fox he didn’t know anything about it, and former Platoon Guide
SSgt Christopher Pruitt declined to be interviewed, as did Grapes.
The low power ISR radios can only be heard by
individuals wearing specially designed headsets. Photographs taken at
the time reveal that the platoon command staff and all the squad
leaders were wearing them.
Nazario had his on when his Marines discovered the
four enemy combatants barricaded in a locked house just yards away
from where one of their members had just been killed by small arms
fire, he said.
He says he never received radioed orders over his
ISR or any other kind of radio to kill the prisoners.
Even if Nazario had received the order nobody else
could possibly have heard it that didn’t have a radio set on the same
frequency and a headset, according to Marine Corps operating
instructions for the device.
The government maintains that Nazario, after
receiving radioed instructions from higher authorities to kill the
combatants, ordered Nelson and Weemer to help him execute them.
The government’s account is disputed in numerous
respects by every witness Fox interviewed. Lance Corporal James Prentice,
who says he was standing next to Nazario when the alleged order was
received, swore the alleged execution command arrived via Nazario’s
backpack radio. That particular device has a handset that makes it
impossible to mistake for an inter-squad radio.
That’s about the point where Sgt. Nazario called in on the radio and
said that they have four, ahh, fighting age males in the house. At any
rate they took fire from the house, what do you want us to do? And
they pretty much told them – asked them – "Are they dead yet?" He (Nazario)
said negative and they said, "Make it happen." They said, "Roger, so I
copy," and then both…
Could you hear who they were talking to?
No, I heard that is what happened in a conversation with Sgt. Nazario
when both we were talking to each other right after he got off the
What kind of radio did he have?
A One-Nineteen (119) he was using and then ahh…
That is not for inter-squad conversation is it? That is for
inter-platoon or company?
Accused wait for big day in court
Nazario was arrested August 7 2007 while on patrol as a rookie police
officer in Riverside.
Nelson, still on active duty, was arrested and
charged a month later and then freed by General James N. Mattis pending
further investigation. He was charged again in January 2008.
Weemer was recalled to active duty from his home
in March and then charged.
Last month the federal
Grand Jury in Riverside investigating the matter handed up a
superseding indictment charging Nazario with two counts of
Voluntary Manslaughter, Assault with a Dangerous Weapon, Discharging a
Firearm during a Crime of Violence, and Causing an Act – multiple
murder – by Nelson and Weemer.
The Marine Corps says it killed at least 3,000
insurgents and destroyed most of the ancient city during the month
long battle. While doing so almost half the Marines in the Thundering
Third were wounded at least once and 33 of them died.
Nathaniel R. Helms
Defend Our Marines
30 July 2008
Note: Nat Helms is a Contributing Editor to Defend Our
Marines. He is a Vietnam veteran, former police officer, war
correspondent, and, most recently, author of
My Men Are My Heroes: The Brad Kasal Story (Meredith Books, 2007).