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The War
Profiteers - War Crimes, Kidnappings, Torture and Big Money |
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The Falluja Killings of November 9th, 2004 |
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United States of America vs. Jose Luis Nazario - The Case File Criminal Proceedings against Jose Luis Nazario USA v. Jose
Luis Nazario Jr. U.S. District Court for the Eastern Division/Riverside of California Case No.: 5:07-mj-00244-DUTY-1 (Magistrate judge case number) Case No.: 5:07-cr-00127-SGL-1 August 28th, 2008 - Judgment of Discharge “[…] In
the presence of the attorney for the government and defendant, Jose Luis
Nazario, Jr., who appeared in person with counsel […] on August 28, 2008. “It
appearing that the defendant named in paragraph one above is now entitled to
be discharged on all pending counts of the First Superseding Indictment for
the reason that: “[…] the
jury has returned its verdict, finding the defendant not guilty. […]” August 28th, 2008 - Minutes Of Jury Trial “[…] 6th
Day held before Judge Stephen G. Larson as to Defendant Jose Luis Nazario,
Jr. Jury polled. Verdict reached. Jury finds: Jose Luis Nazario Jr (1) Not
Guilty on Count 1s,2s,3s. Bond exonerated as to Defendant Jose Luis Nazario,
Jr. […]” August 26th, 2008 - Minutes of Jury Trial “[…] 5th
Day held before Judge Stephen G. Larson as to Defendant Jose Luis Nazario,
Jr. Government and Defendant reast. Motion No. 84 argued by counsel is
denied. Motion for judgment of acquittal is denied. Closing arguent made.
Court instructs jury. Bailiff sworn. Alternates excused. Jury retires to
deliberate. Jury Trial continued for 8/28/2008 09:00 AM before Judge Stephen
G. Larson. Counsel ordered present for bench conference on 8/27/08, at 9:00
a.m., regarding Jury Note #1. […]” August 26th, 2008 - List of Exhibits and
Witnesses August 26th, 2008 - Government’s Brief re
Admissibility of Telephone Call between Nelson & Defendant “[…]
Defendant has objected to the admissibility of the telephone call between
Jermaine Nelson and defendant […] on the grounds that the statements of
Nelson are barred by the Confrontation Clause and the Supreme Court’s
decision in Crawford v. Washington, 541 U.S. 36 (2004). The government is not
seeking to elicit the statements of Nelson for the truth of the matter
asserted. Rather, the government is seeking to introduce Nelson’s statements
on the telephone call for the non-hearsay purpose of explaining and placing
into context defendant’s statements. Therefore, the Confrontation Clause is
not implicated and the entire conversation is admissible. […]” August 25th, 2008 - Motion for Judgment of
Acquittal “[…] Jose
Nazario has been charged with manslaughter and assault with a deadly weapon –
two crimes that require the government to identify a specific victim.
However, the government has utterly failed to prove that any of the alleged
victims are actually deceased, nor has the government attached a name, or
even a sufficient physical description, to any of the alleged victims. As a
result, Jose Nazario is entitled to a judgment of acquittal. “The
government’s lack of proof in this case is unprecedented in that there is no
reported case nationwide, State or Federal, where, like here, a defendant was
prosecuted for killing another human being 1) without a corpse; and 2)
without an identified victim or any physical evidence. Such a failure of
victim identification creates two problems: “(1)
Without producing a body, a name, or any testimony that any specific
individual is missing, the government cannot prove that any alleged victim is
deceased, rendering the manslaughter charge insufficient on its face; and “(2)
Failure to identify the victim creates a severe double jeopardy problem.
Without a sufficient victim identification Sgt. Nazario is exposed to a
future charge based on the same crime – a situation that violates Sgt.
Nazario’s Fifth Amendment rights. For these
reasons, Sgt. Nazario respectfully urges the Court to enter a judgment of
acquittal in this case. […]” August 21st, 2008 - Order Granting Defendant’s
Motion in Limine “[…] This
Court finds that Special Agent DeZeeuw's formal interview of Weemer was a
police interrogation – or, more precisely, a federal law enforcement
interrogation – both in form and in substance, one that was designed, through
structured law enforcement questioning, to elicit information about Weemer’s
past crimes and other bad acts. That it was at the time of the interview
directed towards a criminal background investigation for Weemer’s application
for employment with the Secret Service and not towards defendant’s (or
Weemer’s) later criminal prosecutions alters neither its form or substance. “Notwithstanding
their apparent reliability, to admit Weemer’s testimonial statements in the
criminal prosecution against defendant, without defendant having the
opportunity to cross examine Weemer, would run afoul of the Sixth Amendment.
As Justice Scalia counseled in Crawford, ‘[d]ispensing with confrontation
because testimony is obviously reliable is akin to dispensing with jury trial
because a defendant is obviously guilty. This is not what the Sixth Amendment
prescribes.’ 541 U.S. at 62. Thus, ‘[w]here testimonial statements are at
issue, the only indicium of reliability sufficient to satisfy constitutional
demands is the one the Constitution actually prescribes: confrontation.’ Id.
at 69. “Defendants
motion in limine is granted: If Weemer is not available for cross-examination,
his statements to the Secret Service are not admissible. […]” August 20th, 2008 - Opposition to Defendant’s
Motion in Limine “[…] Plaintiff,
United States of America, through its counsel of record, Assistant United
States Attorneys Jerry A. Behnke and Charles J. Kovats, hereby opposes
defendant’s motion in limine regarding Ryan Weemer’s pre-polygraph interview. “This
opposition is based on the attached points and authorities, the government’s
trial memorandum, the testimony of Special Agent DeZeeuw, the files and
records in this matter, and any additional evidence or argument as may be
presented at the hearing on the matter. […]” August 18th, 2008 - Protective Order re
Disclosure of Information from Law Enforcement Personnel Records “[…]
Counsel for parties, having conferred concerning this matter have reached a
resolution, hereby apply for and stipulate to the following Protective Order: “1.
Counsel specially appearing for Riverside Police Department shall provide to
counsel for plaintiff and defendant a copy of defendant’s personnel file as
subpoenaed by plaintiff. “2.
Counsel shall not convey, transfer, publish, distribute, copy, duplicate or
disseminate the information so provided except as may be reasonablly
necessary for the prosecution or defense in this litigation. […]” August 18th, 2008 - Notice of Lodging of
Partial Transcript of Interview “[…]
Plaintiff, United States of America, hereby gives notice of its lodging of
the attached partial transcript of the interview of Ryan Weemer dated October
3, 2006. […]” August 18th, 2008 - Motion in Limine re
Weemer’s Polygraph Interview “[…] Now
comes the defendant, Jose Nazario, and respectfully requests that this Court
bar admission of any statement derived from thye pre-polygraph interview of
prospective witness Ryan Weemer as the statement was obtained under
circumstances that bar admission under Crawford v. Washington, 541 U.S. 36
(2004). […]” August 14th, 2008 - Government’s Proposed Voir
Dire Questions “[…] 7.
Do you feel that soldiers or Marines should be allowed to kill unresisting
detainees under their control? If so, if you learn that the law prohibits the
killing of unresisting detainees, would you be able to follow and apply that
law in spite of your personal beliefs? Would you feel differently if the
detainees had been firing on American forces before they were captured? “8. Do
you believe that military members must follow any order they receive, even if
the order is unlawful? […]” August 13th, 2008 - Government’s Trial
Memorandum “[…] B.
Defendant’s Squad Captures and Summarily Executes Four Detainees “On November
8, 2004, defendant’s unit was staged just north of the city. On the morning
of November 9, 2004, the Marines were transported to the northern portion of
the city where they dismounted and moved south through the city on foot. “After
advancing several blocks through the city and participating in firefights
with enemy insurgents, defendant’s squad was ordered to search a nearby
house. When the Marines entered the house, they immediately encountered four
unarmed males. As the Marines entered the house, the four males were seated
against the wall with their hands raised in the air. Defendant and other
Marines stood watch over the detainees and questioned them while other
Marines searched the house. After searches of the house revealed firearms and
ammunition, defendant placed a call over his radio. Following the radio call,
defendant executed two of the detainees and ordered two of his subordinates,
Ryan Weemer and Jermaine Nelson, to execute two of the detainees. None of the
detainees were armed and none of the detainees resisted defendant or his
subordinates in any way. “After
the shootings, defendant’s squad exited the house. One of the Marines who
witnessed the incident appeared visibly shaken. Another Marine who had been
outside during the incident went into the house to see what had happened.
Inside the house, he saw four dead male bodies. Three of the victims had
gunshot wounds to the head and the fourth had gunshot wounds to his chest.
The four victims were left behind and their bodies were never recovered. […]” August 13th, 2008 - Government’s Proposed Jury
Instructions (Clean Set) “[…] The
conduct of warfare is regulated by law. The law protects persons not actually
engaged in combat and limits the circumstances under which their lives may be
taken. Persons detained or captured by the opposing force, regardless of
their loyalties, political views, or prior acts, have the right to be treated
humanely. Summary execution of unresisting detainees or prisoners is
forbidden by law. “I
therefore instruct you, as a matter of law, that if unresisting human beings
were killed in Fallujah, Iraq, as charged in Count One of the First
Superseding Indictment, while in the effective custody and control of our
military forces, their deaths cannot be considered justified and the act of
killing them, as well as any order to do so, would be unlawful. […]” August 11th, 2008 - Order re Immunity to Compel
Testimony of Ryan Weemer “[…] Now,
therefore, it is ordered pursuant to 18 U.S.C. § 6002 that Ryan Weemer give
testimony or provide other information which he refuses to give or to provide
on the basis of his privilege against self-incrimination as to all matters
about which he may be interrogated in the course of these proceedings. “It is
further ordered that no testimony or other information compelled under this
order, or any information directly or indirectly derived from such testimony
or information, shall be used against Ryan Weemer in any criminal case,
except that he shall not be exempted by this order from prosecution for
perjury, giving a false statement, or otherwise failing to comply with this
order. […]” August 11th, 2008 - Order re Immunity to Compel
Testimony of Jermaine Nelson “[…] Now,
therefore, it is ordered pursuant to 18 U.S.C. § 6002 that Jermaine Nelson
give testimony or provide other information which he refuses to give or to
provide on the basis of his privilege against self-incrimination as to all
matters about which he may be interrogated in the course of these
proceedings. “It is
further ordered that no testimony or other information compelled under this
order, or any information directly or indirectly derived from such testimony
or information, shall be used against Jermaine Nelson in any criminal case,
except that he shall not be exempted by this order from prosecution for
perjury, giving a false statement, or otherwise failing to comply with this
order. […]” July 14th, 2008 - Criminal Minutes - General “[…] The
defendant was arraigned on the First Superseding Indictment filed under docket
No. EDCR 07-00127-(A) SGL. The defendant entered a not guilty plea to all
charges as contained therein. The defendant, through his retained counsel,
does not request a continuance of the present trial date of August 19, 2008.
Counsel announce ready to proceed to trial on August 19, 2009, at 9:30 a.m. “Motion-in-Limine
Hearing: The Court having considered argument of counsel on government’s
motion-in-limine (docket No. 44) , as well as defendant’s response thereto,
the Court grants in part and denies in part in the manner and for the reasons
as set forth on the record. “Pretrial
Conference: Counsel agreed to a final pretrial conference and status hearing
being set prior to trial; accordingly, a Final Pretrial Conference and Status
Conference hearing is set in this matter for August 18, 2008, at 1:30 p.m.,
in Courtroom One. It is so ordered. […]” July 9th, 2008 - Case Summary July 9th, 2008 - First Superseding
Indictment “[…]
Count One [18 U.S.C. §§ 1112, 3261 (a)(2), 2(b)] - 6. The General Allegations
set forth in Paragraphs One through Five of this First Superseding Indictment
are realleged and incorporated herein as if set out in full. 7. On or about
November 9, 2004, in Fallujah, Iraq, defendant Jose Luis Nazario, Jr., upon
heat of passion, unlawfully and intentionally killed, and willfully caused
others to kill, four human beings. “Count
Two [18 U.S.C. §§ 113 (a)(3), 3261 (a)(2), 2(b)] - 8. The General Allegations
set forth in Paragraphs One through Five of this First Superseding Indictment
are realleged and incorporated herein as if set out in full. 9. On or about
November 9, 2004, in Fallujah, Iraq, defendant Jose Luis Nazario, Jr.,
intentionally assaulted, and willfully caused others to assault, four human
beings with a dangerous weapon, namely, a firearm, with intent to do bodily
harm. […]” June 24th, 2008 - Findings & Order
regarding Continuance of Trial & Excludable Time […] Based
upon the government’s application and declarations of Jerry A. Behnke and on
the files and records in this case, the court finds that the ends of justice
served by continuing the case as requested outweigh the interest of the
public and the defendant in a trial within the original date prescribed by
the Speedy Trial Act. “Good
cause having been shown, it is hereby ordered that the trial in this matter
is continued to August 19, 2008 at 9:30 a.m. with a pretrial hearing on July
14, 2008 at 2:00 p.m. […]” June 23rd, 2008 - Order Granting
Government’s Ex Parte Application “[…] The
Court grants the ex parte application, the pretrial conference and motions
hearing date in this matter is set for July 14, 2008, at 2:00 p.m.; the jury
trial date in this matter is re-set to August 19, 2008, at 9:30 a.m. before
Judge Stephen G. Larson […]” June 23rd, 2008 - Defendant’s Opposition to
Government’s Ex Parte Application “[…]
Defendant Jose Luis Nazario, Jr., by and through his undersigned counsel,
respectfully submits this Opposition to the Ex Parte Government’s Application
to Continue the trial date from July 8, 2008 to August 12, 2008. Defendant
respectfully submits that the basis for the continuance tendered by the
Government is without substantial basis in fact. “This
Opposition is based the attached declaration of counsel and associated
exhibits. […]” June 20th, 2008 - Ex Parte Application to
Continue Trial Date “[…] The
United States of America, by and through its counsel of record, the United
States Attorney’s Office for the Central District of California, hereby
applies to this Honorable Court for an order continuing the trial date to
August 12, 2008 with a pretrial hearing on July 28, 2008. “This
application is based on the attached points and authorities, the attached
declaration of Jerry A. Behnke, the declaration of Jerry A. Behnke filed
under seal and in camera, and the files and records in this case. […]” June 18th, 2008 - Order Allowing Disclosure
of Grand Jury Testimony […] It is
hereby ordered that plaintiff, United States of America, may supply defense
counsel of record with a copy of the grand jury testimony of any witnesses
whom the government may call at trial. The purpose of this order is to enable
defendant to prepare his defense and to permit compliance with the disclosure
provisions of the Jencks Act, Title 18, United States Code, Section 3500. It is
further ordered that defense counsel shall not disclose this grand jury testimony
to any other person or persons, except as necessary in preparation of the
defense, without prior authorization from this Court, and that the copies of
the testimony provided to defense counsel shall be returned to the government
at the conclusion of the proceedings in this case. It is so ordered. […]” June 16th, 2008 - Government’s Motions in
Limine “[…]
Plaintiff, United States of America, through its counsel of record, Assistant
United States Attorneys Jerry A. Behnke and Charles J. Kovats, hereby submits
its motions in limine with defendant’s responses attached hereto. The
government is submitting its motion filing after attempting to comply with
the Court’s standing order requiring a joint filing as set forth in the
attached declaration of Jerry A. Behnke. […] “This
motion is based on the attached memorandum of points and authorities,
declaration of Jerry A. Behnke, exhibits, the files and records in this case,
and any additional evidence or argument that may be presented at the hearing
on the motion. […] “[…] In
January 2007, Jermaine Nelson (‘Nelson’) agreed to assist in the
investigation of this matter by engaging in recorded telephone conversations
with defendant. During one of these recorded calls on January 8, 2007,
defendant and Nelson discussed the killings at issue in this case. […].
During the conversation, Nelson asked defendant how he should respond if
asked on a polygraph whether he ever murdered somebody. Nelson then discussed
the shootings at issue and asked defendant, ‘I mean, we had the right orders,
didn’t we?’ Defendant responded, ‘Yeah.’ Nelson then asked, ‘Who gave us the
orders though, nigger?’ Defendant responded, ‘I did.’ A few lines later,
defendant explained further, ‘That shit is coming from the (INAUDIBLE)
Commanders. We got to get from point A to point Barreto and we ain’t got time
to throw mutherfuckers on the truck ‘cause we moving.’ Then, defendant
explained, ‘It was, you know, a decision we made because it was the outcome
that’s the best. So it was, it was a decision. You can’t play Monday morning
quarterback, bro.’[…]” April 28th, 2008 - Order Denying Defendant’s
Motion to Dismiss “[…] On September 4, 2007, a federal grand jury charged defendant Jose
Luis Nazario, Jr (‘defendant’), a former United States Marine, with two
counts of voluntary manslaughter in violation of 18 U.S.C. §§ 1112,
3261(a)(2). The Indictment alleges that on November 9, 2004, defendant
unlawfully killed two unidentified individuals. The parties do not dispute
that the alleged killing took place incident to a search of a residence in
which weapons were recovered during the Battle of Fallujah, also known as
Operation Phantom Fury, in Iraq. “Defendant seeks to dismiss the Indictment on the grounds that the
trial will necessarily reach non-justiciable political questions that can and
should only be answered by the executive branch, and that Congress did not
intend that Military Extraterritorial Jurisdiction Act to apply to cases such
as the instant one. “[…] Defendant fails to demonstrate that adjudication of this case
would intrude on any policy choices or value judgments of the
politically-accountable branches. Here, unlike any of the cases relied upon
by defendant, the executive branch is actually prosecuting this case and, as
explained below, the legislative branch has expressly provided this Court
with jurisdiction to hear this particular type of case. “[…] The Motion to Dismiss is denied. Pursuant to stipulation of the
parties, trial in this matter shall commence on July 8, 2008, at 9:30 a.m.
[…]” April 21st, 2008 - Minutes of Motion Hearing held before Judge Stephen G. Larson as to Defendant Jose Luis
Nazario, Jr, re Defendants Motion to Dismiss Indictment for Failure to Invoke
the Courts Jurisdiction or to State an Offense 39. Court hears oral argument
and takes the matter under submission. April 18th, 2008 - Defendant's Reply to the
Government’s Opposition to Motion to Dismiss the Indictment “[…] Sgt. Nazario is not charged with a war crime. The government
argues, however, that Sgt. Nazario’s conduct was in contravention of his orders
and training concerning the treatment and processing of detainees at the
First Marine Division Detainee Handling and Detention Facility. The
government thereby invites the court to inquire into Sgt. Nazario’s training
and orders in the days leading up to the combat operations in Fallujah in
order to determine the lawfulness of his actions. Rather than rendering the
political question doctrine inapplicable, such an inquiry into military
training and orders is exactly what the political question doctrine counsels
the court not to do. Such an inquiry will unavoidably implicate military
decision-making, rules of engagement (i.e., under what conditions is deadly
force authorized), and tactical orders. The court, therefore, should find the
political question doctrine applicable to Sgt. Nazario’s actions and find
that this criminal prosecution presents a nonjusticiable case that should be
dismissed. […] “The charges against Sgt. Jose Nazario present this Court with
nonjusticiable political questions and a statue that violates Congressional
intent when applied to this case. Sgt. Nazario requests that the Court
dismiss this indictment for the foregoing reasons. […]” April 11th, 2008 - Opposition to Motion to
Dismiss for Failure to Invoke the Court’s Jurisdiction “[…] Defendant, a former United States Marine, is charged with two
counts of voluntary manslaughter in the shooting deaths of detainees captured
by defendant’s squad on November 9, 2004 in the city of Fallujah, Iraq.
Defendant’s squad had entered a house and encountered four unarmed males.
Defendant and his squad ordered the males to get down on the ground and they
complied. After a search of the house revealed several firearms, defendant
placed a call over his radio. He then executed one of the detainees and
ordered two of his subordinates to execute two of the detainees. Defendant
then shot and killed the remaining detainee. At the time of the shooting, the
detainees were unarmed and in the custody of defendant’s squad. “Defendant has filed a motion to dismiss the indictment on two
grounds. First, defendant argues that the trial of this matter will
necessarily reach ‘non-justiciable’ political questions. Second, defendant
argues that the application of 18 U.S.C. § 3161, et seq. (‘MEJA’) to the
instant matter contravenes Congressional intent. “The government opposes defendant’s motion. First, the instant matter
deals with a defined criminal violation. Furthermore, the issue before the
court is justiciable under the standards set forth by the Supreme Court.
Second, on its face, MEJA clearly applies to the instant matter and
application of MEJA does not lead to unreasonable results. […]” March 28th, 2008 - Notice of Motion &
Motion to Dismiss the Indictment “[…] Jose Nazario faces Federal felony charges in a context that
Congress never intended that evolve from non-justiciable political questions
that MEJA cannot overcome. He respectfully asks that this Court dismiss the
indictment that fails to invoke the court’s jurisdiction or to state a
justiciable offense. […]” March 24th, 2008 - Findings & Order
Regarding Excludable Time “[…] It is hereby
ordered that the trial in this matter is scheduled for July 8, 2008 at 9:30
a. m. with a pretrial hearing and hearing on any motions in limine on June
23, 2008 at 2:00 p.m. […]” March 4th, 2008 - Criminal Standing Order “[…] 1. Setting Final
Pretrial Conference for June 23, 2008, at 2:00 p.m. 2. Setting Jury Trial
Date of July 8, 2008, at 9:30 a.m.
[…] “1. Pretrial motions shall be filed no later than March 28, 2008.
Oppositions shall be filed no later than April 4, 2008. Replies, if any, must
be filed on or before April 11, 2008. 2. Hearing on motions is set for April
21, 2008, at 3:00 p.m., and a hearing on the Pretrial Conference as well as any
motions-in-limine are set for June 23, 2008, at 2:00 p.m. 3. Jury Trial is
set for July 8, 2008, at 9:30 a.m. […]” December 17th, 2007 - Minutes of Motion Hearing “Minutes of Motion Hearing held before Judge Stephen G. Larson as to Defendant
Jose Luis Nazario, Jr, re First Motion for Discovery of DoD Records &
Government Records & Investigation. The Court was informed by counsel
that a stipulation has been reached among the partiesresolving the
above-referenced motion, thus the motion is moot and the hearing thereon is
ordered vacated. Status Conference set for 3/3/2008 at 03:00 PM before Judge
Stephen G. Larson. […]” December 3rd, 2007 - Opposition to Motion for
Discovery “[…] I. Introduction - Defendant has filed a motion for an order
compelling the government to search for and produce various materials,
including materials believed to be held by the United States Marine Corps
(‘USMC’), United States Navy (‘USN’), Naval Criminal Investigation Service
(‘NCIS’) and Department of Defense (‘DOD’). As explained further below, much
of the material sought by defendant has already been produced by the
government or simply does not exist. Thus, the pertinent issue for purposes
of this motion is whether the government is compelled to search the files of
all DOD components for the materials sought by defendant that have not
already been produced. “The government believes that it has satisfied its discovery obligations
and, to the extent defendant requests additional material, his motion should
be denied on the grounds that (1) DOD components beyond the NCIS are not part
of the prosecution team for purposes of discovery; and (2) even if all DOD
components are part of the prosecution team, defendant has not established
that the requested discovery is material to the defense of this matter. […] “III. Discovery Produced - To date, the government has provided
defendant 1166 pages of discovery, including witness statements, military
records, casualty reports, briefing materials and photographs. The government
has also provided approximately 16 compact discs containing audio recordings
of witness statements, photographs, and military personnel records of the
defendant. Finally, the government has provided both audio recordings and
transcripts of consensually monitored phone calls involving the defendant. To
date, defendant has not provided any discovery to the government. […]” November 21st, 2007 - Notice of Motion and Motion
for Discovery October 31st, 2007 - Findings and Order “[…] Findings and Order by Judge Stephen G. Larson as to Defendant
Jose Luis Nazario, Jr, re Stipulation to Continue. It is hereby ordered that
the trial setting conference and hearing on any discovery motions is
continued to December 17, 2007 at 2:00 p.m. It is further ordered that any
discovery motions shall be filed by November 26, 2007. Oppositions shall be
filed by December 3, 2007. Replies, if any, shall be filed by December 10,
2007. It is further ordered that, for the purpose of computing time under the
Speedy Trial Act, 18 U.S.C. § 3161, et seq. within which trial must commence,
the time period from November 19, 2007 to December 17, 2007 is deemed
excludable pursuant to 18 U.S.C. § 3161(h)(8)(A) and (B)(iv). […]” September 26th, 2007 - Findings and Order “[…] It is hereby ordered that a trial setting conference and hearing
on any discovery motions is scheduled for November 19, 2007 at 2:00 p.m. It
Is Further Ordered that any discovery motions shall be filed by October 29,
2007. Oppositions shall be filed by November 5, 2007. Replies, if any, shall
be filed by November 12, 2007. It is further ordered that, for the purpose of
computing time under the Speedy Trial Act, 18 U.S.C. Section 3161, et seq.,
within which trial must commence, the time period from September 24, 2007 to
November 19, 2007 is deemed excludable pursuant to 18 U.S.C. Section
3161(h)(8)(A) and (B)(iv). […]” September 12th, 2007 - Minutes Of Post-Indictment
Arraignment “[…] Defendant is
arraigned and states true name is as charged. “Defendant is given a
copy of the Indictment. “Defendant
acknowledges receipt of a copy and waives reading thereof. “Defendant pleads not
guilty to all counts in the Indictment. […]” September 4th, 2007 - Indictment “[…] Count One [18 U.S.C. §§ 1112, 3261 (a) (2)] 6. The General Allegations set forth in Paragraphs One through Five of
this Indictment are realleged and incorporated herein as if set out in full. 7. On or about November 9, 2004, in Fallujah, Iraq, defendant Jose
Luis Nazario, Jr., upon a sudden quarrel and heat of passion, caused by
adequate provocation, unlawfully and intentionally killed John Doe #1, a
human being. Count Two [18 U.S.C. §§ 1112, 3261 (a) (2)] 6. The General Allegations set forth in Paragraphs One through Five of
this Indictment are realleged and incorporated herein as if set out in full. 7. On or about November 9, 2004, in Fallujah, Iraq, defendant Jose
Luis Nazario, Jr., upon a sudden quarrel and heat of passion, caused by
adequate provocation, unlawfully and intentionally killed John Doe #2, a
human being. […]” August 17th, 2007 - Notice directing Defendant to
appear for Preliminary Hearing and Arraignment “[…] Notice directing Defendant to appear for Preliminary Hearing and Arraignment
on Indictment/Information. Defendant Jose Luis Nazario, Jr is directed to
appear for Preliminary Hearing on 9/5/07 at 4:30 PM and for Post Indictment
Arraignment on 9/12/07 at 3:00 PM before the Duty Magistrate Judge. […]” August 16th, 2007 - Minutes of Initial
Appearance on Local Complaint “Minutes of initial appearance on local complaint held before
Magistrate Judge Oswald Parada as to Defendant Jose Luis Nazario, Jr.
Defendant arraigned and advised of the charges. Defendant states true name as
charged. Attorney: Douglas L Applegate, Retained, present. Court orders bail
set as: Jose Luis Nazario Jr $ 50,000 A/B with affidavit of surety (no just)
signed by Diette Nazario (wife) and defendant Nazario in the amount of $
50,000 no later than 8/22/07, such affidavit of surety (no just) shall be
exonerated upon full deeding of property; with affidavit of surety with
justification with deeding of property. […] Defendant Ordered to report to USM
for processing. […]” August 16th, 2007 - Redacted Complaint “[…] AFFIDAVIT “I, Mark 0. Fox, being duly sworn, hereby depose and say: 1. I am a
Special Agent with the Naval Criminal Investigative Service. I have been so
employed since April 1982. […] “2. This affidavit is submitted in support of an arrest warrant and a
criminal complaint charging JOSE LUIS NAZARIO, JR. (‘NAZARIO’) with a violation
of Title 18, United States Code, Section 1112, Voluntary Manslaughter, with
jurisdiction arising under Title 18, United States Code, Sections 3238 and
3261(a) (2). Specifically, there is probable cause to believe that NAZARIO,
while enlisted on active duty in the service of the United States Marine
Corps in Iraq, and who presently resides in Riverside County, in the Central
District of California, on or about November 9, 2004, in Fallujah, Iraq,
while in the heat of passion caused by adequate provocation, did commit
voluntary manslaughter by unlawfully and intentionally killing two unarmed
male human beings, without malice. […] “4. On November 9, 2004, United States and Iraqi military forces were
engaged in combat operations in city of Fallujah, Iraq, in an effort to
remove insurgents from the city. Among the forces engaged in the combat
operation were the members of 3rd Squad, 3rd Platoon, K
Company, 3rd Battalion, 1st Marine Regiment, 1st
Marine Division (‘3rd Squad’). At that time, NAZARIO was an
enlisted member of the United States Marine Corps and was assigned as the
Squad Leader of 3rd Squad. “5. On November 9,
2006, I interviewed former United States Marine Corps [redacted]
(‘[redacted]’). From this interview, I learned the following information: a. [redacted]
participated in the killing of several unarmed males while on active duty and
deployed with the United States Marine Corps in Fallujah, Iraq, in 2004.
[redacted] identified his position at the time of the killings as that of a
[redacted] with 3rd Squad. [redacted] identified NAZARIO as
[redacted]’s squad leader and immediate supervisor on November 9. b. On November 9,
2004, while searching a house, [redacted], NAZARIO, and fellow Marines
assigned to the 3rd Squad encountered and detained three to five
males. NAZARIO told [redacted] they needed to ‘take care of them’ so they
could move with the rest of their advancing unit. c. [redacted] grabbed
one of the males, drew his pistol, and shot the male twice in the chest.
[redacted] did not examine the male after he shot him, but assumed he was
dead. d. [redacted] identified United States Marine [redacted] [redacted]
[redacted] as a possible witness. “6. On December 5,
2006, I interviewed United States Marine Corps [redacted] (‘[redacted]’). [redacted]
acknowledged that he was present with [redacted] and NAZARIO when they
encountered four unarmed males in an unknown house in Fallujah, Iraq on
November 9, 2004. From my interview with [redacted] I learned the following: a. On November 9,
2004, [redacted] was assigned to 3rd Squad. On that date, 3rd
Squad’s objective was to move to the center of the city, clearing the city of
insurgents as they advanced. Early on November 9, 2004, 3rd Squad
came under enemy fire and a member of 3rd Squad was killed. Later,
3rd Squad began taking fire from a nearby house and, after the
fire was suppressed, [redacted] and other Marines were assigned to search the
house. b. Inside the house,
the Marines encountered four males. After detaining the four males,
[redacted] and other Marines searched the house and found AK-47 rifles and
ammunition. NAZARIO then placed a call on his radio to an unknown Marine.
[redacted] heard NAZARIO say something to the effect that they had detained
four military-age males, they had found weapons and ammunition, and they had
just taken fire from the house. After ending his radio conversation, NAZARIO
said that he was asked, ‘Are they dead yet?’ to which NAZARIO responded
‘Negative.’ NAZARIO said he was told to ‘Make it happen.’ NAZARIO then grabbed
one of the two youngest males and instructed to grab the other and take him
into another room. c. Next, heard a
gunshot coming from the room where [redacted] had taken his prisoner. He
related that seconds later, he heard the sound of a gunshot coming from one
of the home’s bedrooms. According to [redacted] when he turned toward the
sound of the second gunshot, he observed NAZARIO lowering his rifle from an
‘aimed-in’ position to a ‘low-ready’ position and saw one of the four
detained males on the floor in front of NAZARIO, lying on his back.
[redacted] concluded that the detained male had been shot dead by NAZARIO. d. After NAZARIO shot
the detained male, he exited the room and asked, ‘Who else wants to kill
these guys, because I don’t want to do it all myself.’ e. [redacted] then
observed NAZARIO motion to two other Marines in the house to bring the
remaining two males to him. According to [redacted], one of the males entered
the room occupied by NAZARIO while the second waited at the doorway. At this
point, [redacted] turned to exit the house. As he turned, he heard a gunshot,
followed by about a twenty-second pause and a second gunshot. [redacted]
believed NAZARIO shot and killed the two remaining males. f. [redacted] stated that United States Marine Corps [redacted] was
present in the house when the shootings occurred. At the time of the
shootings, [redacted] held the rank of [redacted]. 6. On December 6,
2006, I interviewed United States Marine Corps [redacted] [redacted]
(‘[redacted]’). From my interview with [redacted], I learned the following
information: a. [redacted] was
present with NAZARIO in an unknown house in Fallujah, Iraq, on November 9,
2004, when United States Marines killed four unarmed males. b. Someone saw
movement from a nearby house and [redacted], NAZARIO, [redacted] and other
Marines were ordered to search the house. When they entered the house, they
encountered and detained four males. After detaining the four males within
the house, NAZARIO told other Marines to search the house. The Marines found
AK-47s and ammunition. NAZARIO then called an unknown individual on his
issued radio and told him/her that four males had.been found in the house. c. Following the
radio transmission, NAZARIO told both [redacted] and [redacted] he had been
asked, ‘Are they dead yet?’ NAZARIO then indicated to [redacted] and
[redacted] that they had to go, using words. to the effect of ‘We can't be
here all day.’ NAZARIO then said, ‘You know what has to be done.’ d. NAZARIO then
grabbed one of the four detained males and led him into a room, believed by
[redacted] to be a kitchen. Shortly thereafter, [redacted] heard a gunshot
come from the direction of the kitchen. When [redacted] looked into the
kitchen, he observed NAZARIO standing above the male, who was laying on the
floor. From his observations, [redacted] believed that NAZARIO had shot the
male in the head. Based on the large pool of blood on the floor surrounding
the male's head, [redacted] concluded that the male was dead. e. NAZARIO then
ordered both [redacted] and [redacted] to each kill one of the three
remaining detained males. NAZARIO stated that he would kill the last male
himself. f. NAZARIO then shot
a second detained male in the head with his rifle. After doing so, [redacted]
noticed brain matter and blood on the muzzle of NAZARIO’s rifle and all over
NAZARIO’s boots. g. [redacted] then
observed [redacted] shoot the detained male under his ([redacted]'s) control
with his pistol. h. Next, NAZARIO asked [redacted] ‘Yo, are you done yet? We have to
go.’ [redacted] then took the detained male under his ([redacted]’s) control
and shot him in the back of the head. “7. Based on my investigation, I have also learned that NAZARIO has
been discharged from the Marine Corps and now resides in the city of
Riverside, Riverside County, within the Central District of California. He is
currently employed as a sworn Police Officer with the Riverside Police
Department, Riverside, California. […]” |
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