Court-Martial: Corporal Scott A. Burton

Court Martial and Record of Trial of Corporal Scott A Burton, of the 81mm Mortar Platoon, Weapons Company, 3rd Battalion, 5th Marine Regiment. He was tried at Camp Pendleton, CA. Burton conspired with Corporal Jeffery S. Case to use a fire extinguisher "to spray its contents in the face and body of an Iraqi detainee" who did not have a weapon and was "unthreatening". He also locked detainees in an abandonned tank and forced detainees to kneel in front of fighting holes while he fired a round next to a detainee's head, described as a "mock execution". He pleaded "Not Guilty" to all charges. Burton was convicted and sentenced to forfeit $156 pay per month for 6 months, to perform hard labor without confinement for one (1) month and to be reduced to pay grade E-3.

Doc_type:

Court-Martial

Rec_aclu_path:

https://www.thetorturedatabase.org/node/4776

Doc_pdf_path:

Doc_rel_date:

Thursday, June 29, 2006

Doc_text:

SUMMARIZED
RECORD OF TRIAL.
(and accompanying papers) nf (b)(6)

BURTON . Scott A. CPL/E-4 (Name Last. First, Middle Initial) ' (Social Securhy Number) (Rank)
.
......_..3.&13n.,......5.th_114r...,A.AtidarDiv USMC Camp Pendleton, CA
(Unit Command Name) (Branch of Setvice) Motion or stop)

RPF!r7 TAT, CO U RT- MARTIAL
Convened by rrirosrEnciirtg nff4 neve-
• (Title of Convening Authority)
3d Battalion, 5th Marines 1st mo,r4p0 114sTiorimr,
(Unit/Command of Convening Authority)
Tried at •
On

- _ 24-414ar.gla , 2, 1-4—
( 'lace or ac;s of Trr -I (Date or Catli-el
f iir24:14:34
ACTION OF JUDGE ADVOCATE OR GENERAL COURT-MART1AL CONVENING AUTHAR1TY(SPCM)/JAG(GCM) RCM 1111 and 1112, MCM, 1984)
NIT COMMAND NAME (LOCATION OF JUDGE ADVOCATE OR GENERAL
i DATE RECORD RECEIVED !COURT MARTIAL CONVENING AUTHORITY JAG
!
1

ACTIONN
DATE REMARKS FINAL DISPOSITION: Findings and sentence, as approved
by convening authority, correct in law
and fact; to tilt

OR Findings ancluntence,_ais modified of
. _ _
corrected (see remarks), correct in law
_amifacr toille___ •

-
Acquittal or sentence set a.skie (see
remarks). to file

COPIES OF [MO DISPOSED OF IN ACCOR
DANCE WITH DEPARTMENT REGULATIONS
JUDGE ADVOCATE OR LAW SPECIALIST SIGNATURE
I MX SIGNED

.
i I

'
Ront Cover

2578
DOD JUNE
DOD056394

R :!:CORD OF TRIAL

BURTON, S. A..

(b)(6) CPL/E-4

USMC.
By

3d&n, 5th Mar, lst MarDiv.Camp Pendleton, CA

Special Court-Martial

Conv,aned by Commanding Officer

3d Battolion, 5th Marines
1st Marine Division
tried at

Camp Pendleton, California, on 23 March, 2, 1417 June

COPIES OF RECORD
ccpy of re:::! furni..

the accused or defense col:nsel as

per attaebed certificate or receipt.
copy Cies) of record forwarded. herewith.

RECEIPT FOR COPY OF RECORD
1 hereby ecknowlede r,weipt of a copy of the record of trial of

United States v..

S. A. Burton, delivered to me at
.this.

day of

I do / do not have mat:ers to submit pursuant to R.C.M. 1105 and

1106 MCM,

Flrst Lieutenant C. J. Dewberry

U.S. Marine Corps

DOD JUNE 2579
PROCEEDXNGS OF A SPECLAL COURTMARTIAL

The military judge called the Article 39(a) session to order
at Marine Corps Base Camp Pendleton, California, in the case of
the United States v. Corporal S. A. Burton, U.S. Marine Corps, at
0815, 23 March 2004, pursuant to the following order:

DEND OF PAGE]

DOD JUNE 2580

UNITED STATES MARINE CORPS
3RD BATTALION, 5TH MAR/NES
1ST MARINE D/VIS/ON (REIN), FMF
BOX 555483

CAMP PENDLETON, CA 92055-5483

INUPWW01.0.

5813
EBH
CMCO Ser:#1 -04
9 Feb 2004

SPECIAL COURT-MARTIAL CONVENING ORDER 1-04

Pursuant to authority contained in paragraph 0120b(3), Judge
Advocate General of the Navy Instruction 5800.7C, of 3 October
1990, a special court-martial is convened and may proceed at
marine Corps Base, Camp Pendleton California, or at any such
authorized place as directed with the following members:

Captain B. P. Collins, U.S. Marine Corps;
Captain T. E. Robertson, U.S. Marine Corps;
First Lieutenant B. R. Chontosh, U. S. Marine Corps Reserve;
First Lieutenant S. Rosales, U.S. Marine Corps Reserve;
Second Lieutenant J. W. Burgess, U. S. Marine Corps Reserve and;
Second Lieutenant R. A. McIntosh, U.S. Marine Corps Reserve

P.C7. MALA

Lieutenant olonel
United Sta s Marine Corps
Commanding

DOD JUNE 2581

UNITED STATES MARINE CORPS
3D BATTALION 5TH MARINES
1ST MARINE DIVISION (REM), FM?
BOX 555401
CAMP PENDLETON, CA 92055-5401

IN REPLY REFER TO:
5813
Legal
CMCO Ser: la-04
04 Jun 04

SPECIAL COURTS-MARTIAL CONVENING ORDER la-04

Special Courts-Martial Convening Order 1-04 dated 9 Feb 2004 is modified as
follows specifically for U.S. v. Corpora' Scott A Burton, U.S. Marine Corps
only:

Delete

Captain Brendan P. Collins, U. S. Marine Corps:
Captain Brian R. Chontosh, U. S. Marine CorpS;
First Lieutenant Samuel Rosales, U.S. Marine Corps Reserve

Add

Major Hugh C. Curtright IV, U. S. Marine CorpS;
Captain Thomas B. Noel, U. S. Marina Corps;
Captain David L. Kowalski, u. S. Marine Corps

Heathers

Major Hugh C. Curtright TV, U. S. Marine CorpS;
Captain Thomas B. Noel, U. S. Marine Corps;
Captain David L. Kowalski, U. S. Marine Corps;
Captain Timothy 2. Robertson, U.S. Marine Corps;

-First Lieutenant Joshua W. Burgess, U. S. Marine Corps Reserve;
First Lieutenant Rex A. McIntosh, U.S. Mar e Corps Reserve

MALAY
Lie anant C nel
United State Marine Corps
Commanding

P..

ORIGINAL

DOD JUNE 2582

•

UNITED STATES MARINE CORPS
3D FIAT'FALION 5TH MARINES
1ST MARINE DIVISION (REIN), FM.
BOX 555401
CAMP PENDLETON, CA 92055-5401

IN REPLY REFER TO:
5813
Legal
CMCO Ser: lb-04
21 aun 04

SPECIAL COURTS-MARTIAL CONVENING ORDER lb-04

Special Courts-Martial Convening Order la-04 dated 4 Jun 2004 is modified as
follows specifically for U.S. v. Corporal Scott A Burton, U.S. Marine Corps
only:

Delete

Captain David L. Kowalski, U. S. Marine corps
First Lieutenant Joshua W. Burgess, U. S. Marine Corps Reserve

Add

First Lieutenant Michael V. Prato U. S. Marine Corps
First Lietuenant John F. Campbell U. S. Marine Corps Reserve

Members

Major Hugh C. Curtright rv. u. S. Marine Corps;
Captain Thomas B. Noel, U. S. Marine Corps;
Captain Timothy E. Robertson, U.S. Marine Corps;
First Lieutenant Rex A. McIntosh, U.S. Marine Corps Reserve
First Lieutenant Michael V. Prato U. S. Marine Corps
First Liettenant John F. Campbell U. S. Marine orps Reserve

0,104,5-

4,12
142. i//

MALAY
Lie tenant Coyo el
United Stater

P.r

rine Corps
Commanding

ORIGIN4

DOD JUNE 2583

PERSONS PRESENT

Commander C. L. Reismeier, U.S. Navy, MILITARY JUDGE;

Captain R. M. Manning, U.S. Marine Corps Reserve, TRIAL COUNSEL;

First Lieutenant A. Pettes, U.S. Marine Corps Reserve; ASSISTANT

TRIAL COUNSEL;

First Lieutenant C. J. Dewberry, U.S. Marine Corps Reserve,
DEFENSE COUNSEL.

PERSONS ABSENT

MEMBERS;

Mt. F. J. Spinner, 0.S. Air Force (Ret), CIVILIAN COUNSEL.

Corporal Scott Burton, U.S. Marine Corps, the accused, was present
and attired in the appropriate service uniform with all
decorations and awards to which he was entitled.

Sergeant K. Johnson, U.S. Marine Corps, the detailed

court reporter who had been previously sworn, was present.

The trial counsel- announced his legal qualifications and status as
to oath; that he had been detailed by the Officer-in-Charge,
Legal Services Support Team Delta, Camp Pendleton, California; and
that he had acted in no disqualifying capacity.

The assistant trial counsel announced his legal qualifications and
status as to oath; that he had been detailed by the
Officer-in-Charge, Legal Services Support Team Delta, Camp
Pendleton, California; and that he had acted in no disqualifying
capacity.

The assistant trial counsel was duly sworn.
The detailed defense counsel announced his legal qualifications

and status as to oath; that he had been detailed by the Senior

Defense Counsel, Legal Service Support Team Echo, Camp Pendleton,California; that he had acted in no disqualifying capacity; and that no other defense counsel had been detailed to the case. The defense counsel went on to state that the accused had retained civilian defense counsel, but waived his presence during thearraignment.
2

DOD JUNE 2584
•

The military judge stated that civilian counsel must file a notice
of appearance with the Court before the next session.

The military judge advised the accused of his rights concerning

counsel. The accused stated that he understood his rights with

respect to counsel and that he chose to be defended by First

Lieutenant Dewberry, his detailed defense counsel, as well as

Mr. Spinner, his civilian counsel.

The military judge stated his legal qualifications and status as

to oath and that he had been detailed by the Circuit Military

Judge of the Sierra Judicial Circuit.

The military judge stated that he would not be a witness for
either Side in the case and was not aware of grounds for challenge
against him.

Neither side desired to voir dire or challenge the military judge
for cause.

The military judge advised the accused of his rights with respect
to forum. The accused stated that he had consulted with his
defense counsel and had been informed of his right to request a
trial by members, including one-third enlisted persons. Tho
military ludge approved the accused's request to reserve forum

selection.

The accused was arraigned on the following charce and
specification:

(END OF PAGE)

DOD JUNE 2585
CHARGE SHEET
PERSONAL DATA

1. NAME OF ACCUSED (Led. First, MC Z SSN .
RANK/RATE 4. PAY GRADE BURTON. Scott A. (b)(6) Cul E-4
d. UNIT OR ORGANIZATION. 11, CURRENT SERVI
a. INrrem. DATE
b. TERM
3rdEn, 5thMar, IstiviarDiv, CamPen, CA 92055 2 Oct 00
4*vrs
7 PAY tett MONT.O. 8 NATURE Of RESTRAINT OF ACCUSED O. DATE(S)IMPOSED a BASIC b. SENFOREIGNrANY o TOTAL
/
/-102444tatrdif /7P4. None N/A54479r60-" . NO= $44.7.9,90-n CH E Ds ECIFICATION
10. CHARGE I:r
VIOLATION OF THE UCMJ, ARTICLE B1

SPECIFICATION:r

In that Corporal Scott A. Burton, U.S. Marine Corps, on active duty, did, at Ad Diwaniyah, Iraq, between on or about 1 June 2003 and until on
or

about 6 July 2003, conspire with Corporal Jeffery E. Case, U.S. Marine Corps, to commit an offense under the Uniform Code of Military Justice, to wit: assault, and in order to effect the object of the conspil-ary tho o^iri r orporal Scott A. Burtonreceived a fire extinguisher from corpora]mos) and then used that fire extinguiSher to spray its centents in the lal.m anu upuy va. an Iraqi detainee.
VIOLATION OF THE UCMJ, ARTICLE 93CHARGE II:r
In that Corporal Scott A. Burton, U.S. Marine Corps, on active duty, did, at Ad Diwaniyah, Iraq, between on or about 1 June 2003 and until on or about 6 July 2003, maltreat Iraqi detainees, persons subject to hie orders, by locking them in an abandoned tank.r
SPECIF/CATION 1:r

In that Corporal Scott A. Burton, U.S. Marine Corps, on active
duty, did, at Ad Diwaniyah, Iraq, between on or about 1 June 2003 and until on or
about 6 July 2003, maltreat an Iraqi detainee, a person subject to'his'Orders,.by
spraying the detainee with a fire extinguisher.

SPECIFICATION 2:r

In that Corporal Scott A. Burton, U.S. Marine Corps, on active duty, did, at Ad Diwaniyah, Iraq, between on or about 1 June 2003 and until on or about 6 July 2003,. maltreat Iraqi civilian detainees, persona subject to his orders, by forcing the detainees to kneel in front of fighting holes while he drew his pistol behind them and fired a round next to the head of one of the detainees.
SPECIFICATION 3:r

Vla NAME OF AC CUSER ;Lam. F M,..PFSEFERREe.. irst MO ti:GRACE I c ORG ANIZATION OF ACCUSER
velv .Se - IT _EEC v HqSvcBn. IstFSSG
a SIG Re ACcUSF_K a DATE
¦EIL:. A..4 OZ/DO a

AFRO VIT: Before me. the undersiigned, authorized byfritio administer oaths in cases of this character, personalty appeared the above named accuser this 72'0 _ day of 6A, , 20 0 and signed the foregoing charges and specitcations under oath that heiene is a person subiect to the Unitonn Code ot Military Justice and that he/sbe either has personal knowledge of or has investigated the matters set forth therein and that the same are true to the best of his/larer knowledge and belief.
J. F. HAMILT0t1 HqSvcBn. lstFSSG. MarForPac. Carn.Pcn. CA
Typed NW,* al Officer. organization of OtTket _ -
.
EiTSt Lieu _91 . Judge Advocate and s i ow& Capocity to Admirsatfitr Oaths (S•• RC.M. 307(b)-musi be commissioned ealord
¦Illif
Iit
.-- 0 .. .,...,
DDFORM

ORIGINAL

DOD JUNE 2586

DD Form 458, Charge Sheet, Supplemental Page 2
United States v. Co oral Scott A. Burton U.S. Marin* Co
CHARGE III: VIOLATION OF THE UCMJ, ARTICLE 128

SPECIFICATICV 1: In that Corporal Scott A. Buxton, U.S. Marine Corps, on active duty, did, at Aa Diwaniyih, Iraq, between on or about I June 2003 and until on or about 6 July 2003, commit an assault upon an Iraqi detainee by firing a round next to his head with a dangerous weapon, to wit: a loaded service pistol.
SPECIFICATION 2: In that Corporal Scott A. Burton, U.S. Marine Corps, on active
duty, did, at Ad Diwanlyah, Iraq, between on or about I June 2003 and until on or
about 6 July 2003. unlawfully strike an Iraqi detainee by spraying his face and
body with a fire extinguisher.

8/8 0102-LF-000-4600

DD FORM 458

ORIGINAL
DOD JUNE 2587

The accused, through counsel, requested to reserve pleas and
motions until the date contained in Appellate Exhibit I. The
military judge granted the request and adopted the dates contained
therein.

The military provided the accused a trial in absentia warning in accordance with R.C.M. 804.
The Article 39(a) session recessed at 0824, 23 March 2004.

'END OF PAGE)
4

2588
DOD JUNE
AUTHENTICATION OF THE RECORD OF TRIAL
[pages 1-51
in the case of

(WMr

Corporal Scott A. Burton U.S. Marine Corps, 3d
Battalion, 5th Marines, 1st Marine Division (Reinforced), Camp
Pendleton, California 92055

In accordance with R.C.M. 1104(a)(2)(B), Lieutenant Commander
Johnson, U.S. Navy, the mdlitary judge, was unavailable to review
the record of trial due to completion of temporary additional duty
and absence from the situs of the preparation of the record of
trial.

DOD JUNE 2589
The military judge called the Article 39(a) sessidn to order at

0845, 2 June 2004.

The military judge announced that all parties present when the

Court last recessed were again present with the following

exceptions:

Sergeant D. Cherry, United States Marine Corps, who had been

previously sworn, was the court reporter.

First Lieutenant Pettes, assistant trial counsel, had been

relieved from further participation.

Lieutenant Colonel S. M. Immel, United States Marine Corps, was

military judge.

The military judge stated his legal qualifications and status as

to oath and that he had been detailed by the Circuit Military

Judge of the Sierra Judicial Circuit.

The military judge stated that he would not be a witness for
either side in the case and was not aware of grounds for challenge
against him.

Neither side desired to voir dire or challenge the military judge
for cause.

The military judge reminded the accused of his rights concerning
counsel. The accused stated that he still wished to be
represented by First Lieutenant Dewberry, his detailed defense
counsel, as well as Mr. Frank Spinner. The accused waived
Mr. Spinner's presence at the session of court.

The military judge reminded the accused of his rights pertaining
to forum. The accused stated that he understood his rights with
respect to counsel and desired to be tried by members.

The military judge granted defense counsel's request to reserve
motions until 14 June 2004.

The accused, through counsel, entered the following pleas:

To all charges and specifications
thereunder:r Not Guilty.

The Article 39(a) session recessed at 0850, 2 June 2004.

DOD JUNE 2590

The Article 39(a) session was called to order at 0819,

14 June 2004

The military judge announced that all parties present when the

Court last recessed were again present with the following
exceptions:

Staff Sergeant D. D. Wyss, United States Marine Corps, who had
been previously sworn, was the court reporter;

Captain Snow, U.S. Marine Corps Reserve, ASSISTANT TRIAL COUNSEL;

Mr. Frank Spinner, U.S. Air Force (Ret), CIVILIAN COUNSEL.

The assistant trial counsel announced his legal qualifications and
status as to oath and that he had acted in no disqualifying

capacitY.

The assistant trial counsel was duly sworn.
The civilian counsel announced his legal qualifications and status

as to oath and that his office was located in Colorado Springs,

Colorado.

The civilian counsel was duly sworn.

The defense made a motion to grant appXopriate relief to dismiss

on grounds of multiplicity and failure to state an offense.

Absent objection, the defense counsel requested that the military

judge consider U.S. v. Curry. The military judge granted the

request.

Absent objection, the trial counsel requested that the military

judge consider Appellate Exhibit IV. The military judge granted

the request.

The following witnesses for the prosecution were sworn and testified in substance as follows:
(b)(6).

Captain, 5th Maxine Regiment, 1st Marine
Division

DIRECT EXAMINATION

I have been with my current unit for almost two years. Prior to
this assignment, I was assigned to recruiting duty in
Pennsylvania. I also served with 3/5 from 14 August 2002 through
6 February 2004. I was a company commander within 3/5. I
commanded both Company L and Weapons Company. I commanded Weapons

DOD JUNE 2591

•.ta.

Company from 1 June until 6 February 2003.

In June of 2003 Weapons Company was assigned to the city of
Ad Diwania, Iraq, along a river. Shortly thereafter, we moved to
Camp Got Some in the southern part of the city. Our mission was
to conduct security and sustainment operations within the city.
We established a permissive environment for coalition forces and a
non-permissive environment for the enemy. This was also known as
Phase IV operations. Phase IV operations began on Easter Sunday
2003.

I organized the company so that the 81 Millimeter Mortar Platoon
would provide local base security. The platoon also patrolled the
city. The Combined Anti-Axmor Platoon supported combat patrols
and operations outside the city. At this time, the city was
relatively friendly to coalition forces.

The local security patrols within our area were a force
protection issue. We wanted to ensure no one conducted
pre-operational security cn our camp or planned attacks. During
this time there was a problem with looting in the city.

While on security patrols, the Marines were to continue to use
the five S's. They were to still follow the guidance from the
commanding general. As we would detain looters, we would
determine if they were a threat to our forces or merely looting.
If we decided that they were a threat, then we would secure them
and speed them along to military police or intelliaence for
questioning.

The five S's stand for securing, silencing, separating,
safeguarding, and speeding them to the appropriate authorities.
The decision to take detained Iraqis to the MP's was made by
patrol leaders. Patrols were authorized to detain Iraqis. If an
Iraqi was detained by a Marine patrol, they were not free to leave
until being released. If an Iraqi was detained, arrangements were
made to transport them to an appropriate authority.

As the company commander, I informed my Marines that detainees
were to receive the same Geneva Convention riahts as EIPW's. I am
familiar with the Geneva Convention.

We understood that it was in our best interest to treat prisoners
with dignity and respect because we were living alongside them.
We wanted to ensure the population understood we were on their
side and were not occupiers but liberators.

8
DOD JUNE 2592

•

Iraqis detained on patrol were restricted in their freedom until
they were released.

CROSS-EXAMINATION

ln every case a determination had to be made whether an Iraqi was
a looter or a threat. They may be militarily characterized as
possibly trespassers. Whatever their characterization, if they
were in an area we were to safeguard, it was appropriate for them
to be stopped in order to ascertain what they were doing.

The Marines did not have the authority to have an Iraqi carry
their gear or make them general laborers.

If it was determined that an Iraqi was not an immediate threat,
the Marines were to instruct them to leave the area. More often
than not, Iraqis were just asked to leave the area rather than
taken into custody. We encountered many of the same people over
and over again.

If an Iraqi was instructed to go away and they disobeyed, there
was not a lot we could do. Many times they would leave because
they understood that we were the martial law. They did have a
responsibility to obey us. Many times we just convinced them that
for their own safety it was important for them to leave. We
appealed to their commonsense. We did not encounter many who
defied us.

We would arrest and detain an Iraqi if we observed one Iraqi
harming or attempting to harm another. If an Iraqi said someone
stole their property, they would come to us and ask for an arrest.
Most of the time we turn those matters over to the M2's.

REDIRECT EXAMINATION

If an Iraqi was taken into custody and placed into the back of a
IIMMWV and transported to another location, I would consider that
Iraqi subject to those Marine's orders.

RECROSS -EXAMINATION

I think the word "detainee" is a general term. It was never
specifically defined to me.

EXAMINATION BY THE COURT

If an Iraqi were detained, then an NCO would be responsible for
supervising them. "Detained" was a general term used for a person

D OD JUNE 2593

•

who was apprehended. A person was detained until we determined
what we were going to do with them. An apprehension occurred when
we stopped someone's movement. The majority of those apprehended
were released; the minority were detained.

Generally an apprehension was turned into an detention when a
person was deemed to be a repeat offender. Those that we could
not make a determination on or those we suspected of something
more were also detained.

When an apprehension became a detention there was no one act that
occurred that signified the transition. When an apprehension
would occur a suspect may be flex cuffed and have their
identification taken to make a positive ID. The flex cuffs were
used to protect the Marines until they could determine what was.
going on. Once a determination Was made that a person was not a
threat, then the Marines would cut the cuffs, return his
identification, and ask them to be on their way. I would consider
this a short detention.

For long-term detention the person apprehended.

b,2 takil 11,D
another location. These detentions could last from an hour to a
few days, depending on the'situation: For example, if a person
was held for more than six hours, they would be held in our camp
area. We did not have a makeshift brig. If we were going to hold
them we would find a shaded area, give them water, and post a
guard.

RECROSS-EXAMINATION

If an Iraqi had property they were• not supposed to have, the
property would be seized. Translators were used to assist our
communications. Through the translators we would instruct the
Iraqis not to do things. We had the power to tell Iraqis to stop
doing things,.elc If they did not listen to our commands, what we
could do ,44.51'limited. We did not have the resources to apprehend
every looter and take them to a holding area to ascertain whether
they were thieves or to prosecute them. We were an
expeditionary-type police force and unit. I relied upon the
Marines to make on-the-spot judgements to determine what to do in
regard to detaining or releasing Iraqis.

. REDIRECT EXAMINATION

If an Iraqi was caught looting, they could be detained and
brought back to the compound if it was deemed necessary. The
Marines did have some power over the Iraqis.

D OD JUNE 2594
The witness was warned, excused, and withdrew from the courtroom.

0:0) Lance Corporal, 3d Battalion, 5th Marines,

1st Marine Division

I have been at my present unit for a little over a year. I
checked in to Weapons Company about 3 June 2003, while deployed to
Ad Diwania, Iraq. Our first compound was located in a police
station inside the city. We later moved to Camp Got Some outside
the city. The move took place during the first part of July.

My sauad leader was Sergeant Taylor and my fire team leader was
Corporal (b)(6)

I know the accused in this case. He was another fire team leader
within the squad.

While we were deployed to Ad Diwania we had various missions. We ran patrols within the city at times. Two or three fire teams would go out on patrol at a given time. I understood that we were patrolling the area to stop looters. There was also a UX0 or unexploded ordnance area that we had to safeguard.
When the patrol would encounter looters we would chase them off. It we got ahold of them, we would take thom for a short time and usually release them. The looters would usually run when they saw us coming. We would usually attempt to chase them down. After we caught them we would detain them and bring them back to the HMMWV's. We would sometimes release them to the Army MP's at a different location.
If a looter was caught we Could detain them, put them into
custody, and take them to tbe Irmy HP's and turn them over. We
could also detain them for a short time and just release them.
Manpower was a factor taken into consideration when making these
decisions.

When our patrol would detain an Iraqi, the patrol leader would typically assign guards to the detainee to ensure they did not escape and for safety reasons. When we apprehended an Iraqi forlooting and guards were placed on him, he was not free leave. The squad leaders determine when to release the detainees.
I recall an incident taking place with a fire extinguisher. We had caught looters with desks and chairs. After we caught the looters, we brought back one of the detainees to where the HMMWV was. My fire team did not bring the detainee back to the HMMWV.
The HMMWV's were located at another location from where the Iraqi

11
DOD JUNE 2595

was caught. I recall seeing the detainee in the location with the
vehicles. There were two or three HMMWV's at this location.

When I first arrived back at the HMMWV's the detainee was on his
knees on the ground with his hands behind his back. The detainee

was being guarded.

I remember another incident involving a detainee where a round
was discharged from a pistol. The Iraqis in this situation were
looters as well. We drove up on them, jumped out of the HMMWV,
and apprehended them. After the looters were apprehended, they
were brought back to the HMMWV's and placed them in our custody.
I do not remember transporting these detainees to another
location.

When the three or four detainees were brought back to the HMMWV's
they were placed on their knees with their hands behind their
backs. These detainees were probably guarded, but I do not
recall. These detainees were not free to leave. If they would
have ran, we would have chased them down and apprehended them.

CROSS-EXAMINATION

The detainees in both circumstances were eventually released.

The witness was warned, excused, and withdrew f:cm

The defense counsel nade an araument on the motion.

The trial counsel presented argument on the motion.
The defense counsel made an argument in rebuttal.
The Article 39(a) session closed at 0920, 14 June 2004.
The Article 39(a) session opened at 0943, 14 June 2004.
The military judge and all parties present were again present.
The military judge denied the defense motion to dismiss for failure to state an offense.and provided the following findings of fact: One, in June 2003, the accused was a member of Weapons
Company, 3d Battalion, 5th Marines, lst Marine Division; two,
during June 2003, the accused was involved in Phase IV operations
at Ad Diwania, Iraq; three, Phase IV operations involved
transitional security of both military members and Iraqi
nationals; four, the accused accompanied patrols in support of
Phase IV operations; five, duz.ing Phase IV operations the accused

DOD JUNE 2596

would be involved in actions where Iraqi civilians were detained;
six, these detentions varied in duration from a lew minutes to
much longer periods; seven, while detained, the Iraqis had a dutyto obey the Marines detaining them; eight, when an Iraqi wasdetaineCdtm, coalition forces, the coalition forces had a duty,abserrttikther duty or order, not to maltreat Iraqi civilians; •
541 t-nine, the duty of an Iraqi to follow the direction of a Marine
that detained them was not transitional, but continued through the
detention and upon their release. For example, if an Iraqi was
told by a Marine not to enter a certain place, that order would
apply even upon the Iraqi's release.
The military judge stated that the Court may supplement findings
at or before the authentication of trial.
The military judge asked the defense to clarify their second motion, a motion for appropriate relief based on grounds ofmultiplicity. The military judge stated that the motion appeared
to be a motion for relief based on unreasonable multiplication of
charges. The defense counsel concurred.
The defense counsel made an argument on the motion.
The trial counsel presented argument on the motion..
The defense counsel made an argument in ret-,Ittal.

The Article 39(a) session closed at 1003, 14 June 2004.
The Article 39(a) session opened at 1017, 14 June 2004.

The militarv judge and all parties present were again present.

The military judge granted the defense's motion in part. Themilitary judae stated that the accused may not be found guilty of both Specification 2 of Charge II and Specification 2 of Charge III, but that the accused may be found guilty of eitheroffense. The military judge went on to state that the members would be instructed that they may only find the accused guilty of Specification 2 of Charge II or Specification 2 of Charge III..The members would further be instructed that Specification 2 of
Charge III is the greater offense; that the accused may not be
found guilty of both Specification 3 of Charge II andSpecification 1 of Charge III; that they may only find the accused guilty of Specification 3 of Charge II or Specification 1 of
Charge III; that Specification 1 of Charge III is a greateroffense.
13
D OD JUNE 2597
•

The military judge stated that the Court may supplement findings
at or before the authentication of trial.

The military judge reminded the accused of his rights pertaining

to forum. The accused stated that he understood his rights with

respect to counsel and still desired to be tried by members.

The accused, through counsel, entered the following pleas:

To all. charges and specifications

thereunder: Not Guilty.

The defense counsel stated that he did not anticipate filing
additional motions.

The trial counsel offered Prosecution Exhibits 3, 4, and 6 for
identification. Absent objection, Prosecution Exhibits 3, 4, and
6 were admitted into evidence.

The Article 39(a) session recessed at 1035, 14 June 2004.

[END OF PAGE]

14
DOD JUNE 2598
The Article 39(a) session was called to order at 0910,

15 June 2004.

The military judge and all parties present were again present.

The defense counsel stated that they had seen the cleansed charge
sheet, Appellate Exhibit XI, and had no objection. The defense
counsel further stated that they had seen the member's folders and
had no objection.

The military judge and counsel discussed proposed voir dire.

The Article 39(a) session recessed at 0916, 15 June 2004.

The Article 39(a) session was called to order at 1232,

15 June 2004.

The military judge and all parties present were again present.

The following members entered the courtroom:

Major Hugh C. Curtright rv, U.S. Marine Corps;

Captain Thomas B. Noel, U.S. Marine Corps;

Captain Timothy E. Robertson, U.S. Marine Corps;
First Lieutenant Rex A. McIntosh, U.S. Marine Corps Reserve;
First Lieutenant Michael V. Prato, U.S. Marine Corps;
First Lieutenant John F. Campbell, U.S. Marine Corps Reserve.

The military judge administered preliminary instructions to the

members of the court-martial.

The members of the court-martial wore duly sworn in accordance

with R.C.M. 80'7.

The court-martial was assembled.

The trial counsel stated the general nature of the charges and

specifications in the case. That the charge was preferred by
Lance Corporal Q. Thomas, United States Marine Corps, and was
properly referred to trial by the Commanding Officer of
3d Battalion, 5th Marine Regiment.

The military judge, trial, and defense counsel conducted voir dire
of the members collectively and individually.

The trial counsel had no challenge for cause.

The defense counsel had no challenge for cause.

DOD JUNE 2599

The military judge expressed his concern with First Lieutenant
McIntosh sitting as a member on the grounds that he was
Absent objection, the military judge excused First Lieutenant
McIntosh from further participation in the court-martial. The
military judge ascertained whether the excusal of First Lieutenant
McIntosh would in any way prejudice the defense. The defense
counsel stated that it would not.

First Lieutenant McIntosh entered the courtroom and was excused

from further participation in the court-martial.

The trial counsel had no peremptory challenge.

The defense counsel exercised their peremptory challenge upon

Captain Noel.

The members entered the courtroom.

The member challenged was excused from further participation in

the court-martial and withdrew from the courtroom.

The military judge administered further preliminary instructions

to the members of the court-martial.

The court-martial recessed at 1337, 15 June 2004.

Thc court-martial was coiled to order at 1349, 15 June 2004.

The military judge and all parties present were again present.

The trial counsel made an opening statement.

The defense counsel made an opening statement.

The following witnesses for the prosecution were sworn and

testified in substance as fellows:

(b)(6)r

Lance Corporal, 3d Battalion, 5th Marines,

1st Marine Division

DIRECT EXAMINATION

I am presently assigned to Weapons Company. I am a member of
Headquarters Platoon. My MOS is 0341. I joined my present unit
in June of 2002. I deployed to Iraq with my current unit. 1
cannot recall when my company arrived in Kuwait, but it was in the
beginning of the year.

DOD JUNE 2 6 0 0

•

In June and July of 2003, Weapons Company was located in
Ad Diwania, Iraq, which is two-hours south of Baghdad. The
Weapons Company compound was located in an abandoned Iraqi
military base known as Camp Got Some.

I recognize Prosecution Exhibit 3 as part of Camp Got Some.
There are some HMMWV's depicted in the exhibit next to the
buildings.

I cannot recall the name of my squad leader or fire team leader.

My platoon was performing patrols within Ad Diwania. We would
arrest or apprehend Iraqis that were stealing or loitering. We
would encounter these Iraqis stealing while on security patrols
north of our camp and around the tank factory. The most security
patrols I have done in a week was three or four.

Two EMMWV's with a squad of five in each would go out on one-hour
patrols.

I recognize Prosecution Exhibit 4 as the tank factory near Camp
Got Some. Camp Got Some is in the lower, center portion of the
diagram. The tank factory is in the upper, center portion.

Looking at the diagram, we would start our patrols on the main
road heading toward one o'clock. We would then make a left and
proceed toward ten o'clock. While we were patrolling through
these buildings we would check for Iraqis. The Iraqis would take
metal from the tank factory and proceed toward ten o'clock. The
Iraqis would travel on the back roads. Some of our patrol route
is not depicted on the diagram. Our patrols would conclude back
at Camp Got Some.

I know the accused in this case. He stayed in the room across
from me in Camp Got Some. He stayed in the room next. to me in San
Mateo. The accused was part of my squad.

I cannot accurately recall an incident involving a fire
extinguisher, but I made a statement that would refresh my memory.
The incident would have taken place in the morning. I did not
really keep track of time, but I know it was in the summer months.
en this occasion we were patrolling behind the tank factory.

Before the incident with the fire extinguisher we were on a
normal patrol with two vehicles. Sergeant Taylor was the patrol
leader on this occasion. I cannot recall whose vehicle I was in.

17
DOD JUNE 2 6 01

Our patrol led us into the tank factory and we looked around. We

then went out behind the factory and saw two Iraqis with a donkey

cart full of metal objects. They were going to the main road that

is depicted on the exhibit.r

I do not recall whose HMMWV caught the Iraqis that were stealing;
I was off chasing the donkey cart that belonged to the Iranis we
were pursuing. After I caught the donkey cart, Corporal !ow)
came up in the HMMWV and picked me up and brought me back to where
Sergeant TAvlor's vehicle waA. T recall that Serceant Taylor-

Corporals (0)(6).

and Burton, (bm. and
Docr

were present around the Hmmwv.

(13)(6)

After we caught the donkey cart, we examined what they took and
determined that it was not really anything that would bring us
harm. There were metal pipes and sheets of metal inside the

donkey cart.

The Iraqis and the donkey cart were hard to miss. When the
Iraqis saw us comina for them they ran. When we saw them run we

to:;;: off

When I arrived back to where the vehicles were, I saw one Iraqi
sitting Indian style on the ground with his hands on his knees.
The Marines were surrounding him. There were two Iraqis total. I
cannot recall what happened to the other but I think he ray have
ducked underneath some bushes and hid.

I recognize Prosecution Exhibit 1 as a depiction of how the
vehicles were positioned. I was located in what has been marked
as Sergeant Taylor's HMMWV. I think all of Prosecution Exhibit 1
is incorrect. Sergeant Taylor's vehicle was up next to Corporal
Case's vehicle. The Iraqi is depicted in the correct position on
the diagram. I remember there being Marines surrounding the Iraqi
in a half-circle.

When we pulled up in the HMMWV I got out and went to Sergeant
Taylor's HMMWV and started eating an MRE. Corporalmm).

was
sitting next to me. Corporal Burton was in the middle of the
half-circle. I draw a blank from this point.

I saw an Iraqi get sprayed with a fire extinguisher by Corporal
Burton. Corporal Burton got the fire extinguisher from Case's
HMMWV. Corporal Burton asked if there was an extinguisher in
Sergeant Taylor's truck. He did not ask me directly. I picked
one up and it was full, but I told him it was empty. I knew what
he was going to do because Marines have done it in the past. I

did not have any conversations with Corporal Burton prior to him

2602

DOD JUNE
spraying the Iraqi.

When the fire extinguisher was sprayed powder came out. The
powder from the extinguisher hit the Iraqi in the midsection.

When the Iraqi was hit with the powder he was sitting Indian
style with his hands on his knees. Corporal Burton took out the
fire extinguisher hose and sprayed the Iraqi in the midsection.
There were a few Marines standing around watching this take place.

When Corporal Burton sprayed the detained Iraqi he was standing
directly in front of him, about five to eight feet away. The
Iraqi was facing the same way the vehicles were. I was ten to
fifteen feet away from Corporal Burton. When the Iraqi was
sprayed, I did not see him acting in a threatening manner. I do
not know if the Iraqi possessed a weapon.

After the Iraqi was sprayed with the extinguisher he was coughing
and gagging. The Iraqi appeared scared.

Every BMMWV has a fire extinguisher.

Corporal Burton thought spraying the Iraqi with the extinguisher
was funny because he was laughing.

I recall an incident involving a pisol and the dischnrge of a
round. I do not recall when this incident occurred. It was after
the incident with the fire extinguisher.

I remember moving in to Camp Got Some. We were located at the
previous mayor's house.

During the incident with the pistol we were out on a normal
patrol. I believe we caught four Iraqis, two were teenagers and
two were just kids. There ages wprn IR to 19 and 10 to 11. We
had two vehicles on this patrol. mor_ was in my iiMMWV along

I cannot recall who the driver was.

with ODX6).

The four Iraqis were caught were looting tile. None of them had
weapons. Once we caught the Iraqis we took them into custody and
placed them in the back of the EIMMWV. There were Marines guarding
them in the back of the vehicle.

These Iraqis also had donkey carts. We dumped the donkey cart
over and let the donkeys go.

Once these four Iraqis saw our patrol they tried to run like
every other Iraqi. We saw the goods on the cart so we went off

2 6 0 3
DOD JUNE
after them.

We took the detained Iraqis to an area where there was a three-
to four-foot high wall behind them and two, one-man trenches.
These trenches were about a foot deep. There were blown-up
buildings around us.

The Iraqis were not cuffed in the back of the vehicle. They had
there hands in front of them where we could see them.

When we got to the location, the Iraqis were taken out of theHMMWV's and were placed in front of the first trench. They were then lined up on their knees with their hands be"--' their backs. They were in execution style. Corporal Burton, MP . and SergeantTaylor went tm elle front of Sergeant Taylor's qmmwv eed were talkino. DOC (b)(6) ! was sitting in thp HNIMWV. rilvm.
wan npmf 1-0

me and(bm t wee evross from me. Abm
were ie eee other HMMWV watching Lue 1LO41.r(.1-L4.4 ilv1/4. see IL,

blYt. it was obvious.
The defense counsel objected to the witness' response stating that the witness did not see the event. The military judge sustained the objection.
I recognize Prosecution Exhibit 2 for identification as the setup for the pistol incident. The third HMMWV at the top cf the diagram was not there. There was not a third liMMWV. The two RMMTV's at the bottom of the diagram are not accurately depicted. The second 14.MMWV in the center of the diagram was forward more because I could not see the Marines in discussion. There were four Iraqis rather than three.
The military judge stated that he would not allow the witness to
use either diagram.

After the meeting I could not see, the next thing I saw was Sergeant Taylor in front of his HMMWV. Corporal Burton and Case began walking toward the Iraqis. Case stayed at the end of Sergeant Taylor's HMMWV and Corporal Burton continued walking to what would be the first Iraqi if you were looking directly at it. This took about ten seconds. This Iraqi appeared to be the oldest. Corporal Burton stepped to the side of him, diagonally, and started saying some stuff to him with his pistol in hand.
After he got done talking, he walked aroend behind the Iraqi and placed bis wrists on the right shoulder of the Iraqi with thepistol inches away from his ear and head. Corporal Burton pointed the weapon at a 45-degree angle pointing up and fired a round.
20

2 6 04
DOD JUNE
Corporal Burton and Case placed the Iraqis on their knees in
front of the fighting hole with their hands behind their back. He

was holding their wrists and his hand was on their shoulder and
put them down. He was guiding them to their knees.

I recall hearing the pistol being charged. I did not think he
actually had chambered a round. Corporal Burton was at the front
of the HMMWV when this happened, about 23 to 27 feet from the
Iraqis.

I did not see the Iraqis make any threatening movements before the round was discharged. It did not appear Corporal Burton was acting in self-defense. I did not see the Iraqis give their consent for this to happen.
I was approximately 10 to 15 feet from where this occurred.
There was nothing obstructing my view.

I recognize Prosecution Exhibit 5 as an accurate replica of a 9-millimeter Beretta. I have seen one before. This exhibit would
help me explain this incident to the members. This is the type of weapon I recall Corporal Burton used.
The witness reenacted the incident in the well using the assistant
trial counsel.

When Corporal Burton fired the shot next to the Iraqi, the other three Iraqis were crying. Corporal Burton told them- to get out of here, to go, in Arabic. They ran and took off.
The Iraqi who had the round discbaraed next to his head showed no
emotion. Be was a pacifist. He was petrified.

Right after the incident took place Corporal Burton showed no
emotion. After two to three minutes he sort of laughed about it.
After the incident Corporal Burton walked back to the area where

Sergeant Taylor and 03)(6) were.

CROSS-EXAMINATION

Corporal Burton was an NCO, superior to me, and in a position to supervise me. On occasion he had to discipline me on minor infractions.
The trial counsel objected to the question. The military judge
overruled the objection.

I felt like Corporal Burton picked on me.

2 6 0 5
DOD JUNE
It is net pOssible that just two Iraqis were placed on their
knees. It is not possible that the younger Iraqis were standing
away and removed from the trench I described.

All of my observations were made while I was sitting in the back
of one of the HMMWV's. There were benches in the back. I was
sitting next to 0:on the bench. I never got out of the

4)(6).

HMMWV.
I got sleep but MP.This incident
did not the night before. occurred fairly early in the morning and Donald was sleeping inthe HMMWV during the incident. We were in the RIMMWV that was closest to the Iraqis On 1-1.10ir knees. Kline and Docm(6).
were

also in the HMMWV. Docome).

was in the passenger seat or thevehicle. Tha. eehiele was diagonal to the Iraqis that werekneeling. (bxe).
was not a doctor; he was an HN3..WaS a lance corporai and was sitting across from me and "6) in the HMMWV.
Sergeant Taylor remained in front of him HMMWV when Corporal
Burton walked over to the Iraqis. Corporal Burton placed the
Iraqis on their knees before he began talking with Sergeant
Taylor.

PFC ODX6).. and PFC (1?)(6).

. PFC 0:9(6).were inside's Sergeant Taylor's TIMMWV. There were no other Marines present at the scene. Corporal (b)(6) 4as the only Marine standing within ten feet of Corporal Burton when he fired the weapon. I think he may have been a little bit more than ten feet and everyone else was in the HMMWV's.
I have testified previously during proceedings involving this
case where I was placed under oath. I testified to the best of my
memory about these At that time I could not recall Ohare

PUT,17...r

reminded me that he was there and is the reason I put him there now.
being present. Doc(exe).that

was not on the floor of the HMMWV, he was on the bench
leaned against the hood of the HMMWV.

0:9(6)r

Corporal Burton fired the pistol 10 to 15 feet away from my HMMWV. It was exactly 10 feet from my HMMWV to the first Iraqi that was kneeling. There was five feet from where the weapon was fired to the fourth Iraqi.
At no time were the Iraqi's hand tied behind their backs.
22

DOD JUNE 2 6 0 6

•

Ofteqtimes when we would stop and detain Iraqis we would have

them sititlown so they could not run away. If they are on their

knees it is easier for them to run. If other Marines testified

that they placed Iraqis on their knees they did not do what they

were told.

When Corporal Burton pulled the trigger of the pistol I was
watching him. I do not recall being under oath and testifying
that I was not watching Corporal Burton when he pulled the
trigger. I also do not recall testifying under oath that his
hands were on the Iraqi's shoulder for about five seconds. If you
produced a tape that showed I said that I would say that my
testimony today was more accurate.

There was not an older Iraqi that was allowed to depart.

In each of the two incidents I described, the Iraqis were not
otherwise apprehended and taken back to the camp. They were all
allowed to leave. I do not recall if any of these Iraqis had been
previously stopped or detained by patrols.

REDIRECT EXAMINATION

Lance Corporal (b)(6).

was sleeping when the shooting took place
with his head cocked back, leaning on the liMMWV with his eyes
shut. My attention was not focussed on (wo”.the pistol was

whr.n
fired, but prior to the shot, Lance Corporal owq.

was asleep.
Re was tired because he did patrols the night before.

EXAMIN.;TION BY THE COURT

Our weapons were supposed to be in Condition 1 while we were On
patrols. Usually we do not chamber a round because the round
could go off. With an M16 you could chamber a round because you
would know it would not go off. I would leave the pistol in
Condition 3.

The tiMMWV's we were in were high backs on both occasions.

The witness was warned, excused, and withdrew from the courtroom.

03)(6)

Lance Corporal, 3d Battalion, 5th Marines, 1st
marine Division

I am currently FAP'd to Division. I have been there for about
three months.

DOD JUNE 2 6 07

I was with 81's Platoon, Weapons Company during the war. My MOS
is 0341. I have been with 3/5 for over three years. I deployed
with 3/5 in support of Operation Iraqi Freedom. Weapons Company
arrived in Kuwait in early February.

In June and July of 2003, Weapons Company was located in Camp Got
Some, Ad Diwania, Iraq. My Squad leader at the time was Sergeant
Taylor..

was a tire team leader. My fire team consisted of
and perhaps another member.

0:0)(6).

I am testifying today under a grant of immunity from the base
commanding general. I was offered a pretrial agreement and
immunity in exchange for my testimony today. The grant of
immunity that I was given specified that I must testify
truthfully.

When I was in Iraq in June of 2003, our missions included
escorting fuel trucks, running money, and patrolling our camp's
perimeter. We also received other small tasks.

We would take at least two HMMWV's on patrol.

I know the accused in this case. I went to SOI with him and we
were in the same company in boot camp. I went through the ranks
with him. Be was part of my squad.

I recall an incident involving a fire extinguisher. I remembe,-
this incident occurred in June or July of 2003. I believe it took
place in early afternoon. My nquad was on patrol at the time.

I believe we came upon three Iraqis. They got scared for some
reason and ran. We pursued them. A few Marines were chasing a
donkey cart and the rest of, the Marines caught the Iraqis. We
brought the Iraqis back to a center location in the back of the
HMMWV. I was part of the HMMWV that actually apprehended the
Iraqis. There were either one or two other HMMWV's located in
this center location.

We threw the Iraqis in the back of the HMMWV because I did not
want them to ride up front with me. We were taking the Iraqi into
custody. We were chasing them because they ran. I was unsure why
they were running but it could have been a number of things. I do
not remember specifically what he did but I am sure he was doing
something.

There were several Marines guarding the Iraqi in the back of the
vehicle.

DOD JUNE 2 6 0 8

I recognize Prosecution Exhibit 1 for identification because I
drew it. This is how I recall the vehicles being positioned. I
believe we apprehended one or two Iraqis. I think one was let go
and we had the one left. We kept the one Iraqi in custody because
he ran.

The vehicle 1 was riding in is labeled as Case on the exhibit.
Zamora, Kline, and possibly another Marine were in my vehicle. I
do not recall what vehicle the accused was in.

When we arrived at the location the Iraqi was removed from the
truck. He was placed between the two HMMWV's as indicated on the
exhibit. There were several Marines guarding him at this time.
He may have been standing or on his knees. I do not remember. I
remember the Iraqi was scared because of his body language.

I would guess there were six to ten Marines at the location at
this time. Most of the Marines were eating chow and some were
guarding the Iraqi.

Before the incident took place I had a conversation with the
accused. The subject came up of spraying the Iraqi in the face
with the fire extinguisher. I wanted to do it but it did not work
out that way because Corporal Burton wanted to do it. He did not
tell me why he wanted to spray the Iraqi. Corporal Burton sprayed

the Iraqi in the face with the fire extinguisher.

Corporal Burton got the fire extinguisher from my HMMWV. I gave
it to him.

This conversation with the accused took five seconds or less.

I do not recall how the topic came up of spraying the Iraqi I:1
the face. I think it was just us becoming frustrated from chasing
the Iraqis. I believe it was Corporal Burton's idea to spray.the
Iraqi with the extinguisher.

When Corporal Burton sprayed the fire extinguisher I saw a white
mist on the Iraqi. I cannot say for sure whether the Iraqi was
standing or sitting at the time. The contents of the extinguisher
hit the Iraqi in the upper-body, face area. After the Iraqi had
been sprayed he looked like someone who had been sprayed with a
fire extinguisher, powdery substance on his face and clothes.r

It
looked like he had kitchen flour dumped on him.

The fire extinguisher lasted for about a second.

DOD JUNE 2 6 0 9

I was maybe ten feet from Corporal Burton when this took place. There was nothing blocking my view,
I did not see the Iraqi acting in any threatening manner towards the accused. To my knowledge, the Iraqi did not have a weapon when he was apprehended.
After the Iraqi was sprayed with the fire extinguisher he was unhappy and a little upset. I think he was crying. I think the Marines there thought it was funny because we were laughing. I believe pictures were taken during this event. I think I took them. I did not recognize the Iraqi as anyone we had detained in the past.
I recall an incident involving a pistol. I do not recall if this took place before or after the extinguisher incident. I know it took place in June or July. It did not occur on the same patrol.
I am sure the Iraqis in this incident were stealing something.

They may have been running. The decision was made to stop and
deal with them.
I think were in my vehicle during this incident.

(b)(6).

When the Iraqis ran we chased and caught them. I was not there 51^.1-•
when the Iraqis were apprehended. We pulled up after they were
apprehended. ÷-de--iltrt---rum.'SM17ett. I remember three vehicles on
this patrol and we caught six Iraqis. After they were caught I
recall seeing Marines guarding them. They were guarded for our
safety.

The Iraqis wo caught on both this patrol and thc fire
extinguisher incident were in our control. These Iraqis were not
free to leave.

When I first encountered the Iraqis they were out of the vehicles, off to the side by the fighting holes. I do not recall where the fighting holes were in relation to where the Iraqis were
apprehended.

I recognize Prosecution Exhibit 2 for identification because I drew it. While not to scale, this accurately depicts myrecollection of how the vehicles and detainees were placed. I wason one of the vehicles on the bottom of the diagram, either the lead or trail vehicle.
I have no idea whose idea it was to conduct the mock execution.
26

D OD JUNE 2 6 1 0

The defense counsel objected to the trial counsel's use of the

term "mock execution." The military judge sustained the

objection..

Wk--S.At . The holes could eve been deeper than ankle deep but they may
Yr

have been. They are drawn to scale on the exhibit. It was a sort

of skirmish trench.

When my vehicle drove-up I saw Marines and Iraqis. The Marines
were hanging out around the top HMMWV where it says detained
Iraqis and hole on the exhibit. I saw the Iraqis standing outside
the fighting hole. I do not recall if they were on their knees or
standing. They were facing the fighting hole. When I drove up
Corporal Burton was close to the first vehicle on the top of the
diagram at 12 o'clock.

I was not. at the.location long before the incident occurred. I
remember three to six Iraqis. Sergeant Taylor, Corporal Burton,
and a couple of other members of the squad got together close to
the 12 o'clock HMMWV•on the diagram..

do not recall what was
discussed. While this conversation was taking place, I believe
the Iraqis were at the 12 o'clock hole but I do not recall. I did
not see who positioned the Iraqis at the hole.

After this conversation or greeting at the HMMWV a shot was
fired. After the conversation 1 came back to the HMMWV I was
driving, one of the bottom two on the diagram. Sergeant Taylor-
and Corporal Burton were still at the 12 oThinr7.k HMMWV with a
couple of Marines in the back. I believe (bm ,, was with me when
I heard a shot. I did not actually see the snot fired, but T
heard it. There was a 9-millimeter pistol being held by the
accused. Where "shooter" is depicted on the exhibit is where the
accused was s':andinc whcn I saw him with the pistol in hand. Ec.
was behind the top iraqi.

I had some idea why the Iraqis were positioned in front of the
fighting hole.

The defense counsel objected to the line of questioning on the
grounds of speculation. The military judge sustained thc
objection.

After the conversation at the HMMWV, Corporal Burton was where it
says shooter cn the diagram. Corporal Burton got his weapon from
his holster that he carried on patrol. We had extra pistols from
people leaving who had them. From time to time we all carried
dual arms.

DOD JUNE 2 611

I never saw the Iraqis make any threatening advances toward
Corporal Burton. I could not see Corporal Burton acting in
self-defense.

After the shots were fired and I saw Corporal Burton, he was a
foot to two feet behind the Iraqi. I was facing a 9 o'clock
position when the shots were fired. After the shots were fired I
faced the 1 o'clock position. I am sure that Corporal Burton had
the pistol in his right hand. I think he is right handed.

I do not recall hearing a pistol being charged. I doubt that I
did because we carry our weapons in Condition 1. Before firing
the,round Corporal Burton placed the weapon six inches to a foot
to the right of the Iraqi's head. He was holding the weapon at a
45-degree angle upward.

The defense counsel objected on the grounds the question had been

asked and answered. The military judge overruled the objection.

The lead Iraqi appeared to be 30 years old. The other two Iraqis
appeared to be in their upper teens or 20's.

After the shot was fired and I turned around I do not recall what
I saw. The Iraqis were still there. When the shot was fired the
Iraqi did not look very startled to me. The other two Iraqis did
not appear startled either.

The Iraqis were eventually released from right there. They ran
away once they were released.

There was nothing blocking my view once I heard the shot fired
and turned around.

I was not.facing Corporal Burton when the shot was fired because
when I saw the weapon positioned I knew what was going to happen
and did not want a part of it. I could sense what was going to

happen.

The defense counsel objected on the grounds of speculation. The

military judge overruled the objected but instructed the trial
counsel to rephrase the question.

fri

I got that sense because saw a pistol utholstered close to a
person's head.

After the incident when we got back to the camp Corporal Burton
Said he felt bad for doing it. I do not remember his reaction
right after the incident.

DOD JUNE 2 612

I do not recall taking these Iraqis into custody before.

CROSS-EXAMINATION

(b) (6)
We were frustrated while chasing the Iraqis because we were told
we could not do anything. It was passed through the chain of
command that no one was to be brought back tO the compound. I
felt as if the Iraqis were not respecting us. I could not think
of a way to get the IragiS to stop looting. We would either dump
or burn the property that we confiscated. We would either cut the
donkey's loose or take them back to the compound for our fun. To
my knowledge the people who were caught stealing were not taken to
justice in any way. All of the Marines were frustrated.

We could not tell a potential terrorist from a looter based on
the way they looked. We treated all Iraqis the same.

Every time we caucht someone they would always say "no alibaba."
I am sure that the individuals described in the incidents said
this at some point. We were unable to speak to the Iraqi's
effectively. On neither occasion did we have a translator with
us. Attempting to communicate led to more frustration.

During the incidents described I am unsure whether anyone was
able to communicate with the Iraqis.

I do not remember an Iraqis being placed on their knees. I

el/ remember three at each hole. The diagram i5 not a completely
Ly-.accurate depiction of what I saw. When the weapon was fired the
-7 !--Iraqis could have been on their knees or they could have been

standing. I remember the placement of the weapon. The weapon was
V.

t to the Iraqi's ear it was to the side. The Iraqis ran away
seconds after the weapon was fired. I doubt that it was a minute.
I never saw Corporal Burton hold the weapon with two hands. I did
not see the accused place his hands on any of the Iraqis.

when we would stop Iraqis and we did not want them.to leave we
would usually put them on their knees.

It is possible that I walked with Corporal Burton from the first
HMMWV to one of the holes on the diagram. I do not know 4a4 I did.
that or not.

D OD JUNE 2613
DOD056429
The trial counsel objected that the.question had been asked and
answered. The military judge overruled the objection.

I do not recall if the Iraqis had donkey carts on the occasion
illustrated in the diagram; they may or may not have.

It is hard to remember these events because they happened close
to a year ago.

If Corporal Burton were to have walked around from the back to
the front of the Iraqi he would not have been in the hole.
guess the diagram is not an accurate one. I remember the trench
in length was wide enough for three people.

I did not see anyone give the accused the pistol. The accused
was wearing a holster.

I did not see Corporal Burton actually threaten the Iraqi.

REDIRECT EXAMINATION

The Iraqi in the fire extinguisher incident did not have a weapon
when he was in front of us. I felt threatened from him when he
ran but not when he was in front of us before being shot with the
extinguisher.

I did not feel. threatened by the Iraqis that were placed in front
of the fighting holes.

The things we would catch the Iraqis looting would range from
unexploded ordnance, to American utilities and bricks and wood.
The Iraqis we would catch with unexploded ordnance would be taken
to 9/7.

When Iraqis would be placed on their knees their hands would be
either on their head, behind their backs, or in front. We placed
their hands there so we could see them.

Even thought the three Iraqis are missing from the south hole on
the diagram, it accurately depicts what I recall.

We were told that Weapons Company Compound was not going to take
detainees any longer. No one gave us authority, however, to spray
an Iraqi with a fire extinguisher or discharge a weapon in that
manner.

DOD JUNE 2 614

RECROSS -EXAMINATION

It is hard to change rules of engagement. You cannot go from
shooting anyone who looks like he has a weapon to having to wait
for them to positively point a weapon at you. We were told wer

•

could have a heavy hand with the Iraqis

REDIRECT EXAMINATION

The Iraqis during both incidents were in our custody. With
Marines guarding them. They posed no threat.

EXAMINATION BY THE COURT

I have never seen a detainee sprayed with a fire extinguisher
other than this incident. I saw a Marine NCO sprayed with one
before.

would not do their job anymore, we were told to ensure
that these people would not get too close to our compound. I
consider getting physical to be using a heavy hand. I cannot say
specifically who passed this word, It came from the command,
Meaning anyone from our platoon commander to the platoon sergeant.
We were given this word by the platoon commander in the sergeant's
berthing area. We were told that 977 was not doing their job. I
personally took American utilities and the detainee caught with

Sincer

them and I was told by 977 that it was not enough evidRnce to
prosecute. 1 reported the incident to Lieutenantow6y.

and he
brought us together in the berthing area. He told us "do what

you've got to do." No one else in the chain of command elaborated on V..tat heavy hands meant. In my mind it would include possibly spraying someone with a fire extinauisher. I do not know if it woulEi include discharging a pistol next to someone's head. At best I think that would be borderline.
The witness was excused, warned, and withdrew from the courtroom.

The court-martial recessed at 1634, 15 June 2004.
[END OF FAGS]

2 615
DOD JLTNE
The court-martial was called to order at 0820, 16 June 2004.

The military judge and all parties previously present

were again

present. The members were present.
03)(6)

Lance Corporal, Weapons Company, 3d Battalion,

'5th Marines

DIRECT EXAMINATION

I have been with 3/5 for about a year. I joined the 81's
Platoon of 3/5 early June of 2003. When I joined the platoon,
they were located at a police station inside the city of Ad
Diwania. At the beginning of July, we moved to Cam Got Some. My
squad leader was Sergeant Taylor, and Corporal om 4as mv,fire
team leader. The other members included Lance %..oLporal 040):1 and

Private First Class

Our duties included performing patrols, conducting security
missions, and guarding the camp. The patrols were mostly in a
vehicle. We would usually take two to three vehicles on the
patrols. I know Corporal Burton because he is a fire team leader
in my squad.

I recall an incident that took place around the beginning of
July while we were on patrol that involved a fire extinguisher. I
believe the incident took place in the morning hours. We were
patrolling the tank factory ensuring that unexploded ordnance was
secure from the looters. We did see looters out there. When we
saw them, we attempted to chase them down and catch them. We
caught one of them and brought him back.to the IIMOWV's. I was not
present when this looter was caught. We had caught looters in the
past while on patrol. Generally to catch looters we would grab
them and they would pretty much know that they were caught at that
time, and we would take them back to the HMMWV's. I do recall
that this looter that my squad caught that day was stealing
various items, like desks or chairs. I did not see the looter
taken into custody, but I saw him in custody when he was brought
back to the HMMWV.

The fire extinguisher incident happened where the HMMWV's
were. I saw the looter sitting near the HMMWV's, but I wasn't
paying much attention because I was getting chow. I believe there
were two or three RMMWV's there, and probably about five to ten
Marines there. The looter was sitting down with his hands behind
his back. I don't recall if he was sitting Indian style or if he
was on his knees. I know he was on the ground.

DOD JUNE 2 616

I did see about one or two Marines around the looter. I believe

they were guarding the looter.

The military judge sustained an objection by the defense as to

leading.

As I was getting chow behind one of the HMMWV's, I peeked up
around it and Corporal Burton had a fire extinguisher in his hand
and the looter had been sprayed and was leaving the area. When I
saw the looter at this time, he was standing. The looter had a
white powdery substance on him. I couldn't really tell what the
looter's demeanor was. I was probably about 10 to 20 meters away
from him. I do not recall what Corporal Burton's demeanor was. I
do not know where Corporal Burton got the fire extinguisher. I
don't recall if he was riding in my vehicle or not.

I recall an incident involving a pistol. It took place right
around the same time period as the fire extinguisher incident. I
do not recall if it was the same patrol or not. While on patrols
we found about three or four looters and we took them back to the
HMMW's. The were sitting on the ground, and I was in the back of
one of the HMMWV's posting security in the opposite direction.
Corporal Burton was one of the fire team leaders. He was out
walking with some other Marines. I heard a shot, and by the time
I turned around, the Iraqis were up and running. At this time,
Corporal Burton was out in front of the Iraqis and then he was
behind them afterwards. I saw him pull out a pistol.

There were about two ”,-hq7les on this patrol. Lance Corporal
opm , Private First Class m(6).were in

and Lance Corporal olm
the 1-E,A.KNV with me. I cannot remember what these Irclit3 were
caught looting. I don't recall if they had weapons on them. I'm
not sure where the Iraqis were apprehended.

I was sitting on the right side of the HMMWV facing outboard in the opposite direction from the incident. It was a high-back Hmr4wN,I. I was probably about 20 to 30 meters away from the incident. I saw three or four Iraqis that ranged between the ages of 8 and 18 with Corporal Burton.
The area where this incident took place was a run-down area.
It was where the Iraqis were not allowed to be. The buildings
were old and run-down. I saw Corporal Burton behind the Iraqis
before the shots were fired. The Iraqis were on their knees with
their hands behind their backs. I'm not sure what Corporal Burton
was doing before the shots were fired. The Iraqis were lined up

side by side in front of a foxhole. I believe the foxhole was
about 8 feet long and 2 feet wide. I was posted as security at

DOD JUNE 2617

11111110rN
this time. Corporal Burton had a 9-millimeter in his hand. I don't remember if there were other Marines near Corporal Burton atthis time. I don't remember seeing any of the Iraqis threateningCorporal Burton.
Corporal Burton was probably three or four feet behind the Iraqis before I heard the shot. After I heard the shot, I turned around and the Iraqis were running and Corporal Burton was walking away. I don't know the age of the Iraqi who was closest to Corporal Burton. There wasn't anything obstructing my view of the incident. I couldn't see the Iraqis' demeanor as they were running away. I don't know what Corporal Burton's demeanor was either.
CROSS-EXAMINATION

I did not serve in combat with Corporal Burton. When the
looter was sprayed with the fire extinguisher, he was standing. I
only saw the residue on him; I didn't see the actual spraying. I
believe I stated in another statement that the looter was sprayed
from his shoulders to his knees. The spraying was very brief. At
the time of the spraying, Corporal Burton was about six feet away
from the looter.

I could have said in a previous statement that the Iraqi who
was closest to Corporal Burton was about 20 years of age. I don't
have any reason to dispute that that was my testimony at the
Article 32 investigation.

I recall seeing about four Iraqis involved in the
9-millimeter incident. I don't remember exactly how many of the
Iraqis were placed in front of the foxhole. It was hot unusual to
put Iraqis on their knees. We did that to ensurc, that we had
control, and it was standard operating procedure. We were given
very little guidance on how to deal with looters prior to this
situation.

I believe I testified prior that the ages of the Iraqis were
10 to 14. I testified at the Article 32 that the oldest Iraqi was
20, and today I said that the youngest one was about 8 years old.
I was just estimating their ages. I really don't know how old
they were.

I can't remember exactly how many IIMMWV's there were-at tha
9-millimeter incident. I was in the back of one RMMWV facing a
different direction. I would tr.1-11 around and look periodically.
I'm not sure if Lance Corporalmm or Private First Class mx6)

was there or not. I don't

was there. I can't recall if.

DOD JUNE 2 618

•

remember where Lance Corporal(WM was during this incident.

don't really remember how many Marines were outside of the

HMMWW.s.

The HMMWV that I was in was about a little more than 15 or 20
meters away from Corporal Burton. There was another HMMWV that
was closer to Corporal Burton. I don't know who was in that
HMMWV. I am savina that I would have been in, the same HMMWV with
Lance Corporalmm and Private First Class Wm'.

I don't know

if there were any marines withing 10 feet of Lorporal Burton. The

closest I can place Corporal Burton to the Iraqis was 3 or 4 feet.

REDIRECT EXAMINATION

I saw Corporal Burton briefly spray the fire extinguisher. I
saw the fire extinguisher in his hands and the last half of the
downward spray and the Iraqi covered in the powder. I can't
really explain the guidance we received on the looters. We were
just told they were looters in the area and that we were supposed
to keep them out of the area. I am familiar with five S's and a

T. It means search, safeguard, segregate, tact. And I can't
remember the others. This acronym applies to EPW's. I learned it
at SOI. It is fair to say that I had some guidance. I 7;oined 3/5
in June of 2003 after the war.

The witness was excused and withdrew from the courtroom.

(b)(6)..Private First Class Weapons Company,
3d Battalion, 5th Marines

DIRECT EKAMINATION

I've been with Weapons Company, 81's Platoon for about three
and a half years. I deployed in support of Operation Iraqi
Freedom. My platoon landed in Kuwait at the end of February. I
was part of 81's Platoon during the war. Weapons Company was
located in Ad Diwania, Iraq, at Camp Got Some. My squad leader
was Sergeant Taylor or Sergeant.. My fire team leader was

0)(6)

Corporal 03)(6)

During this time, my squad was conducting patrols. around the
city and perimeter. We were basically a police force in the .city.
AbOlit 8 to 10 marines would go out on these patrols. We conducted
foot and vehicle patrols. Usually two HMMWV's would go out on
patrol. I do know Corporal Burton. He was in the 81's Platoon
when I was there. I would sometimes go out on patrol with him.

DOD JUNE 2 619

•N•

1 recall an incident involving a fire extinguisher. 1 don't
know when this incident occurred. We were on patrol, and we
picked up some kids at the tank factory. I believe there were two
vehicles present at this incident along with about 8 to 10
Marines. Sergeant Taylor was the highest ranking Marine. There
were about 4 NCO's on that particular patrol. We chased the kids,
one of the vehicles stopped at one of the kids. Everybody was
gathered around. I wasn't really paying attention because I was
in one of the HMMWV's, but I saw a fire extinguisher go off. I
don't know who did it. I didn't actually see the spraying, but :
did see the kid doused. in the powder. I was minding my business
in the back of one of the HMMWV's. I didn't want to have anything
to do with whaI.. they were doing.

I don't recall the Iraqi's demeanor afte- thin incidont.
tr,i7 y--.

fl,":7721

know the Marines were circling the Iraqi..w__
The Iraqi was sprayed in his upper tors.: arca wt.:a th.o.t
was about ten-feet away from the incidcnt.

I was on a patrol with two HMMWV's. We were doing a perimeter patrol. Right before we left, Corporal Rurton cot in V4HrthN11,.• cne c. t.71,2 tanks and Corporal Burton go: out ul t!;%.
-

looked in the tank. He lumped back into the HMMWV, and we went back to camp to drop Corporal Burton off, then we. went to resume our patrol. I don't know why Corporal Burton was checking the tank. He was not in my vehicle during.this patrol.
do recall an incident involving a 9-millimeter pistol. I believe it happened around May. During this patrol, we pulled up to an area that had foxholes in the ground. We pulled up, and there was already a HMMWV there, and the Iraqis were standing near the foxholes. In my HMMWV it was Sergeant Taylor, Lance Corporal Case, and a few other Marines that I can't remember. I remember some kids around the foxholes. Our squad was around the Iraqis. 1 saw Corporal Burton get behind the Iraqis with a 9-millimeter. He discharged a round. 1 did not see Corporal Burton actuallypull the trigger. I saw Corporal Burton holding the weapon nearthe Iraqi's head. I saw the round when it was discharged. The weapon was at an angle beside the kid's head. The angle was about a 30-or 45-degree angle. Corporal Burton had the weapon inches away from the Iraqi's head when the round was discharged.
There were two vehicles on this patrol. There.were four Iraqis near the foxholes. Two of the Iraqis were teenagers, about 14 or 17 years old. The other two were about 9 and 12 years old.The Iraqi that was in front of Corporal Burton was abOut 10 to 12
DOD JUNE 2620
•
years old. I was 10 to 15 feet away from the incident inside the
HMMWV. I didn't want to have anything to do with what they were
doing, so I stayed in the HMMWV. I was not sleeping. I can't:
remember if the Iraqis were on their knees or if they were
standing. The foxhole was about 3 to 5 feet wide and about 3 feet

in length.

My HMMWV was the one closest to the foxhole. At the time of
the incident, I was the only one in the HMMWV. I don't remember
where Corporal Burton was when I arrived at the incident. I don't
recall the positioning of the Iraqis' hands.

After the round was discharged, the Iraqis ran off. They

looked scared and relieved. The
P.urton.it was a.;.

CROSS-EXAMINATION

7 d'd 7-int kr.:ow wh7) sp-7ayi,d.

lnotcr

1-7•;•;1.:;1..; •
''Js"
if I described the looter as a kid.

: do not like what Corporal Burton did. Corporal Burton had
to discipline mc tor sleeping cn guard duty. On other occasion5,
he had tc correct my behavior. I am being discharged from the
Marine Corps.

Regarding the pistol incident, Lance Corporal(W05) was not in
the HMMWV with me. I may have been on patrol the night becore
this incident.. The mission that this incident occurred on was not
the first mission that we had. I testified earlier that this was
the first missSon that we had once we moved to Camp Got Some.
Lance Corporal (13)(6)r

was not in the back.of the HMMWV when this
incident occurred. Previously I testified that there were six
Iraqis when we picked them up, but four in front of the foxholes.
One of the Iraqis was an older man. He was let go. I can't
remember if Corporal Burton was wearing a holster or hot. The
other Marines who were there were outside of the vehicle. These
Marines were standing withing 10 feet of Corporal Burton. I
believe there were about 8 t 12 Marines there. The Marines that I
recall whn were there were Corporalmm)r

Sergeant Taylor. Lance
CorporalmmrLance Corporal 03)(6)

Lance Corporal (b)(6).
and I cannot remember the rest. my view was pretty clear.

DOD JUNE 2621

REDIRECT EXAMINATION

I did not want any part of what they were doing because I
thought that they were all messing around. I didn't think that
that was what we were supposed to be doing. I thought they seemed
like they were having too much fun.

EXAMINATION BY THE COURT

I am being discharged because of a pattern of misconduct.

The witness was excused and withdrew'from the courtroom.

JA'!Cll H. FLANERv, lance Cor7c,:al, W.7.7cnr7 Cf.:!r:inv, 3"

-N .N_ .N••
DIRECT EKAMINATION

I am a member of 8J's platoon. I joined the unit
28 January 2003. I deployed with this unit in support of
Operation Iraqi Freedom on / February 2003. In June and July of

• •...

....

war::.

J...
HMMWV's or in the streets. we patrolled around Camp Got Some.
The accused is in my platoon.

I recall that we caught some guys at the tank factory which

had unexploded ordnance inside of it. We caught them, and took
them away. We parked our vehicles to eat lunch, and there was an
old Iraqi tank next to us. When we were about to leave, C::)rperal
Burton put the Iraqis in there with a bottle of water. Corporal
Burton secured the hatch, but left cne hatch open. Wc lcft and
went back to camp. Corporal Burton went out with the next squad
within the hour to" ensure that the Iraqis he'd gotten out of the
tank. When he got there, they were gone. I belive there were
quite a few vehicles on that patrol. The Iraqis were placed in
the tank sometime in the morning hours. I believe this incident
happened in June or July of 2003. I was probably with the marines
who caught these particular Iraqis. This incident happened away
from the tank factory. These Iraqis ran when we saw them. To
catch them, we would yell at them. When they saw our-weapons,
they would usually drop to the ground.

After we took them into custody, we would call them thieves.
I saw the Iraqis in the back of the HMMWV before they were placed
in the tank. In May, June, and July it gets hot in.lraq during
the day. In the morning, it is not that bad.

DOD JUNE 2622
••N•

I did not have interaction with Corporal Burton prior to the
Iraqis being placed in the tank. Before the Iraqis were placed in
the tank, I would say they were a little scared.

I recall chasing a few Iraqis down who had donkey carts.
When we caught the Iraqis, the donkeys ran. Once we caught the
donkeys, we all met up again. Corporal Burton sprayed the fire
extinguisher at the Iraqi. The Iraqi laughed and turned around
and walked off. Everyone was laughing. Corporal Burton was about
8 feet away from the Iraqi when he sprayed him with the fire
extinguisher. The Iraqi was hit in the upper torso area. I
believe that one Iraqi had already left the scene. There were
about six or eight'Marines standing around the Iraqi. I don't
remember what the Iraqi was stealing.

At.afte'7

irm7ident vith.
the tank we left the scene witnin five or ten minutes. We did not
stay there for a lengthy period of time while the Iraqis were in
the tank. I don't know when the Iraqis got out of the tank, but I

The witness was excused and withdrew from the courtroom.

The court-martial recessed at 0936, 16 June 2004.

The courz-mertial was called to order at 0955, 16 June 2004.

Thc mili:F:ry judge and.prcviculy 17.1-ocnt were acan

present. The membrs were present.

Lance Corporal, Weapons Company, 3d Battalion,

5th Marines, recalled

REDIRECT EXAMINATION

I interpreted heavy hands to be a punch or a push.

The military judge sustained an objecticn by the civilian defense counsel as to leading.
The military judge sustained an objection by the civilian defense
counsel as to relevance.

DOD JUNE
2623
DOD056439

The members withdrew from the courtroom, and an Article 39(a)

session was called to order at 0958.

In response to the military judge, the trial counsel stated that the witness's interpretation of the heavy hands doctrine is relevant. The civilian defense counsel stated that he requests an instruction to the members if the trial counsel is using this witness's testimony for impeachment purposes. The trial counsel stated that he wanted tc ask whether the witness thought that it was within regulations to spray an Iraqi with a fire extinguisher or discharge a weapon. The military judge stated that this question was answered the day prior. The trial counsel stated that the witness could be excused.
The Article 39(a) terminated at 1003.

The members entered the courtroom.

(b)(6).

Special Agent, Naval Criminal Investigative Service, Camp Pendleton, California
DIRECT EXAMINATION
I am a staff sergeant in the U.S. Marine Corps. I've been
with NCIS for three years. I deployed as a special agent with
NCIS in support of Operation Iraqi Freedom. I did conduct an
i.nvps*inaririn intn Ilen.ad abuse of Iraqis along with Special
Agent 030).. I know the accused from the
investigation.

We interviewed. witnesses as part of this investigation.
Corporal Burton was one of the witnesses. His interview lasted
about an hour and a half. Corporal Burton was read and waived his
Article 31;b) rights and made a -

statement..

The bailiff handed the witness Prosecution Exhibit 6.

I recognize Prosecution Exhibit 6 as a Military Suspect's Acknowledgement and Waiver of Rights for Corporal Burton and his subsequent statement. I received this in July of 2003.
The bailiff retrieved Prosecution Exhibit 6 from the witness and
published Prosecution Exhibit 6 to the members.

The witness was excused and withdrew from the courtroom.

DOD JUNE 2624
(b)(6).a civilian, Bethesda, Maryland

DIRECT EXAMINATION

wel:i on.duty.

the U.S. Marine Corps from
July cps: 2C;)C to July of 2n4. I left active duty as a first
lieutenant. My MOS was 0302. I was attached to 3d Battalion
5th Marines. My billets included Platoon Commander for India
Company, 2d Platoon; Platoon Commander for 81's Platoon; and the
Executive Office:: :for Weapons Company, 3d Battalion, 5th Marines.
1 was the platoon commander for 81's Platoon from July or August
of 2002 until June.of 2003. After that, I became the Executive
Officer.ns Compay fcr about a year. I did deploy in
supporT. o:.Iraqi Freedom.

Phase IV operations bi,:gan in April, approximately 30 days
after the war started. During this time, Weapons Company was at
Camp.th:-!r. we mcve:! to the mayor's house, then we rmdved
to Camp Got Some. During This time period, el's Platoon did
patrolling. Wheh wr7 moved to the mayor's house, we set on the

os w-.11.wi-h
training were at -he mayor's house about mid-June to

1:C;M..

mid-July. ihe.chan_...,3 a little bit when I took over as
the.Thy 977 MP Company joined.us and took over
a lot c:f..we moved towards a motorized

polce duties ;7-16
company. 7::e wonJ conduct 7;Arols and escort missions.

As th,.: exec..;Live officer, I was aware of the missions and
sent the a:-.tual T.:arines out cn each mission. We were on a
wh,ch.

that for nine days a aroup would.go

c:unduct security patrols for nine
days, followed by nire day :7.f rest, relaxation, and training.
During th±T.. time pez:iod,.

h,-,h problems with looters in our area.
At.

Go Some, wi. were -_•yLntj to keep the' looters outside of
small arMs range of the compound. We also had to keep the looters
out of the.We would ,,Tprehend them and take them to jail or

to our compound..looters

believe this intent on what to do with
was passed Jown.

the platoons. It was standard werating

procedoye. Anytc.

-ly in our Ihit could apprehend looters..

When the Mar.Lnes apprehended a looter, they were 'to put them

in the HMMWV's and transport them to the jail or the compound. We
did not have a .17,:i.cy on how to handle them as far as physically.
We just bad the Phase IV rules of engagement. Sometimes the
100ter5 wero treated roughly. To apprehend a looter, a Marine

5;744-

would have.

takle him, so the apprehension begins ti,41444-a— physically. The looters ara sometimes dragged to the HMMWV's. They are p:_;icad the HMMWV in a physical manner, sometimes.
-,71 •

DOD J'UNE 2625

5 )4"--
5.

thrown in. I would characterize this as an 4calation of force
because how the situation begins. To take a looter into custody,
they would usually be tackled. The Marines would have to tailor
their actions to the situation at hand.

The senior man of a patrol would make the decision of what to
do with a looter. During April and May, the platoon commanders
would go on patrols. The NCO's on the patrols had a lot of trust
from their superiors. Before the war, we did some DTG's and law
of war classes. They were command dictated. We did discuss the
general handling of Iraqis.

The military judge.sustained an objection by el- :iv4lian
counsel as to leading.

Grabbing, holding, and binding an Iraqi's hands behind his cr
her back would be acceptable means of apprehension.

Corporal-Burton was in my platoon for about a year. Corporal
'Burton was part of my platoon during the war. I did learn about

about a month before we left Iraq.

Me military judge sustained an objection bv
counsel as to relevance.

r)uring Pha-u TV cpe-ation,,, my rlrines Imd quit.=. a tit nc
experience• dealing with Iraqi looters and the Iraqi population in
general.

CRUSSFAAMINATION

I graduated from Stanford University with a degree in Marine

.Biology. I do not have any advanced degrees. I joined the Marine
Corps about a month after graduation. I am turrently working at a
think tank in Washington, D.C. I left the Marine Corps on
1 June 2004.

Corporal Burton did his job very well during the combat phase
of the war. During the combat, Marines were being told that the
way home was through Baghdad. I believe I said that., When it was
determined that we were not returning home after the combat phase
of the war, it was sort of a surprise to us. The Marines took the
news pretty well. In my opinion, my Marines were not specifically
trained to apprehend looters. My Marines were not trained to
seize donkeys at the School of Infantry. This was a completely
different environment from the combat phase of the war. My
Marines were trained to fight.

DOD JUNE 2626

There were significant leadership changes after the combat
phase of the war. The battalion commander, executive officer,
S-3, S-3A, most of the company commanders and first sergeants
left, as well as the senior NCO leadership due to the lift on the
stop-loss program. In June of 2004 the leadership needed some
direction.

My Marines had not been trained to catch looters. I had
heard that some of the Iraqis that we apprehended were being set

free again only to continue looting. Specifically, somes,14L.111.21.---V-Marines aoprehended an Iraqi with some grenade fuses andrbodies.Nrtt, The 977 MP Company let him go. When we ran a jail, we could only hold the Iraqis for 48 hours. My Marines wsre told to appl-elhei an Iraqi if they came within small arms range of the camp. I knew
the Marines were frustrated because of this situation. I'm sure
there were periods of sleep deprivation.
The military judge sustained an objection by the trial counse1 as
to relevance.

involving spraying an Iraqi withNfire
The military judge overruled an objection by trile Lrial ccunsel as
to relevance.

Lm ;:iw:r:7 of r.thcr fnotanccl: whre N 2prnyc_::2,
a fire extinguisher.

I have heard the t-.c.rm "heavy hands" bef-re, but not in
connection with cur mission in Irag.

The military judge overruled an obiection by the trial counsel as
to relevance.

I know that my Marines knew that myself and other officers had apprehended Iraqis. Sometimes apprehending Iraqis who do not want to be apprehended is by nature assaultive [sic). I thinkthat it would be possible that my Marines observed me using moreforce than necessary to exercise control over an Iraqi. It ispossible that they may have talked about what they observed officers doing. It is possible that that observation could have influenced their own behavior. I don't feel that it was outside of the norm at all. f-I--wers---rrot—awarre—e-f—en—aalega.ra-en S 1
The military judge overruled an objection by the trial counsel dS to relevance.
DOD JUNE 2627

I have become aware of an allegation that Lieutenant ORB)
[ph) had fired shots in the area of looters from talking to the
counsel on this case.

On every patrol there was someone in charge. I do know
Sergeant Taylor. It was typical that he would be in charge of a
patrol. He was in a position of leadership on the patrols.

REDIRECT EXAMINATION

Corporal Burton was a corporal during the war. .As the
platoon commander,r

did give my NCO's a significant amount of

responsibility..T am fam-i.liar with.S'n an71 .71 T..

It
Iaei,;ally the SOP Lei detaining EPW'.e..an zAcidny::i

It.

Marines are taught. These are the basic skills. At this time of

the operation, my platoon had a lot of experience with Iraq!..5 and

Iraqi looters. Common sense plays a factor whorl Marine!i are o:1

patro1 as well'as with deciding what is right an:t what i::: wrang.

It is hard to train for every situation, so common sense has to be

fnctor.

In June of last yea: in the area of Camp Uot Scl:ie, the lraqi6
did not have any respect for the Marines.

Tho wi=o:;:3 was wzIrned, e:,:cuzed, and withdrew frer. the cc;:rtrocm.

The government had nothing further to present.

Tne court-martial recessed at 1043, 16 June 2004.

The court-martial.

called to order at 110.7.., 16 June 2004.

The military judge and all parties previously present were again
present. The members were absent.

The military judge summarized an 802 conference held .between all
parties in the presence of the accused befcre coming on the
record. Both counsel agreed with the military judge's summation.
SpecifirAllv. tho 1-Y-ial counsel requested to re-open their case to
ask mr.mq.two more questions. The defense counsel
objected. The military judge sustained the defense's objection.

The members entered the courtroom.

The civilian defense counsel stated that they did not have
evidence to present and rested.

DOD J'UNE 2628

The court-martial recessed at 1107, 16 June 2004.

The court-martial was called to order at 1314, 16 June 2004.

The military judge and all parties previously present were again
present. The members were absent.

The military judge and counsel for both sides discussed the
instructions to be given to the members as to findings. The
findings instructions were marked as Appellate Exhibit VII.

The findings worksheet was marked as Appellate Exhibit VIII.

The cc:L-i::Lial recessed at 1316, 16 jurio

The co..1rt-martial was called to order a': 131E„ 16 .7%:nc

T.:0 military jL:dge and all parties prcvil:sly prcsent wore again
present. .The-members were present.

7.fl. cr! findings.

The :::,111-t-martiel rec--ed nt 142, 16 Jun,a

The court-martial was called to order at 1430, 16 June 2004.

Th., military .--:drje and al1 partien previcly prcst w:L,r0
present. The members were present.

The defense presented argument on findings.

The government presented closinc; argument.

The military judge instructed the members in accordance with

R.C.M. 920, including the elements of each oTfense, the
presumption of innocence, reasonable doubt, and burden of proof as
required by Article 51(c), and on the procedures for voting on the
findings worksheet. There were no objections to the instructions

or requests for additional instructions.

The members departed the courtroom and an Article 39(a) session
was called to order at 1524.

The trial counsel stated that he was concerned with the language

contained on the findings worksheet. The military judge asked the
trial counsel if he wanted an additional instruction for the
members. The trial counsel did not request such an instruction.

DOD JUNE 2629

the members concerning procedures for voting, the responsibilities
of the members, and the matters the members should consider in
accordance with R.C.M. 1005(e). The members were given Appellate
Exhibit XX, a sentence worksheet. There were no objections to the
instructions or requests for additional instructions.

The court-martial recessed at 1137, 17 June 2004.

The court-martial was called to order at 1234, 17 June 2004.

The military judge and all parties previously present were again
present. The members were present.

The military judge,further instructed the members as to their
responoibilities in votind on a sentonc:,..

Thn court—martial nlosod for doltorat40nr. nn ccn-nnn4n 7.-
1238 on 17 June 2004.

The court-martial opened at 1319 on 17 June 2004.

The military judge and all parties previously present when the
court-martial closed for deliberations on sentencing were ap.:Iin
pr==,s,271t. Th w.are r:c2,:zent.

The President announced the following sentence:

To forfeit $156.00 pay per month for

6 months, to perform hard labor without
confinement for 1 month, and to be
reduced to the pay grade of E-3.

The members were excused and withdrew from the courtroom.

The military judge'ascertained that the accused had read and
discussed Appellate Exhibit XXII, his appellate rights, with his
defense counsel. The military judge further ascertained that the
accused understood his appellate rights and did not have any
questions of the military judge.

The military judge further ascertained that the accused requested
that his copy of the record of trial and staff judge-advocate's
recommendation be delivered tc Mr. Spinner.

The court-martial adjourned at 1324 on 27 June 2004.

D OD JUNE 2630

ADTHENT/CATION OF THE RECORD OF•TRIAL

in the case of

Corporal Scott A. Burton opm.. U.S. Marine Corps,
3d Battalion, 5th Marines, 1st Marine Division (REIN), Camp
Pendleton, California 92055.

S. M. IMMEL

Lieutenant Colonel,
.11.S. Marine Corps
Military Judge

(0 A v .t-1
I have examined the record of rial in th regoing case.
11
6qaptain, U.S. .arine Corps
Trial Counsel
12L-te.:715,

DOD JUNEr 2631

NOTTO SCALE

s'e
Acco\'
0

itin33s
PROSECUTION EXHIBIT-1----. 1 • rom
DOD juNE 2 6 3 2

SHOOTER
DETAINED IRAQI
-J -J

BUILDING
HMMV
(8)

r (3
PROSECUTION EXHIBIT--
BUILDING PAGE
HMMV
DOD JUNE 2633
_
• fN••N. • ft . 4••• •:1.1.:A• I, I V` 4'4 Viiri-44,44-
,. . ¦
'T.t-.

,
,
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r
*IPMAiii4011 14.154 111/**4101t4-!11""r4*:' N
:
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-•
PROSECUTION EXHIBrL.....5
DOD JUNE 2634
MILITARY SUSPIPTi. ACKNOWLEDGEMENT .AND Wilt. OF RIGHTS
Placa-r.17.a 'ft' .?/1
t.)2x,kai
(b)(6)
I, CZLe at,A.4r-nij
have been advised by Special Agengsf.(b)(6)
A.Lt.,dan__-r-
that I am suspected of
I have also been advised that:
have the right to remain silent and make no statement at all;
.Vg PI Any statement I do make can be used against me in a trial by court martial or other

-
or administrative proceeding; '4),(3) I have the right to consult with a lawyer prior to any questioning. This lawyer melt be a
ciMan lawyer retained by me at no cost to the United States, a military lawyer appointed to act as my counsel at no cost to me, or both; 45(4) have the right to have my retained civilian lawyer and/or appointed military lawyer present during this interview; and e7.. (5) I may 'terminate this interview at any time, for any reason.
.„-Ary) I understand my rights as related to me and as set forth above. With that understanding,
I have decided that I do not desire to remain silent, consult with a retained or appointed lawyer,
or have a lawyer present at this time. I make this decision freely and voluntarily. No threats or
promises have been made to me.
(b)(6) Date.& Time: 03 c:"..,2(.54 1?,X)..r
Witnessed:
Date & Time: CD
(b)(6)
At this time, I, c_.P(._ z 1/4" 2., desire to make the following voluntary statement This statement is made with an understanding of my rights as set forth above. It is made with no threats or promises having been extended to
me.
PROSECUTION EXHIBIT
6
1
DOD JUNE 2635
The Avalon Project : GeneviOnvention Relative to the Treatment of.oners of War; ... Page of I
ARTICLE 82
A prisoner of war shall be subject to the laws, regulations and orders in force in the armed forces of the Detaining Power, the Detaining Power shall be justified in talcing judicial or disciplinary measures in respect of any offence committed by a prisoner of war against such laws, regulations or orders. However, no proceedings or punishments contrary to the provisions of this Chapter shall be allowed.
If any law, regulation or order of the Detaining Power shall declare acts committed by a prisoner of war to be punishable, whereas the same acts would not be punishable if committed by a member of the forces of the Detaining Power, such acts shall entail disciplinary punishments only.
APPELLATE EXHIBIT PAGE OF
51t
D OD JUNE 2636
IVICRP 4-11.8C

Enemy Prisoners of War and Civilian Internees
U.S. Marine Corps
FCN 144 000047 00
( - )
APPELLATE EXHIBIT
'co
2637
DOD JUNE
DEPARTMENT' OF THE NAVY
Headquarters United States Marine Corps
Washington, -D.C. 20380-1775

29 April 1998
FOREWORD
1. PURPOSE
_-Marine Corps Reference Publication (MCRP) 4-11.8C, Enemy Prisoners of War and Civilian Internees, describes enemy prisoner of war (EPW) classification criteria and provides guidance on EPW treatment. This publication is intended to provide information to Marines assigied the task of controlling the movement and actions of individuals captured or acquired duthig combat.
2. SCOPE
MCRP 4-11.8C pro-vides specific guidance on legal and tactical requirements for EPW handling procedures. This publication also defines -procedures for handling civilian internees and states the Geneva Convention guidelines that are to be followed.
3. SUPERSESSION
FMFRP 4-26, Enemy Prisoners of War and Civilian Internees, dated 3 December 1993.
APPELLATE EXHIBIT
_
or 51)
71 4 etV
DOD JUNE 2638
4. CERTIFICATION
Reviewed and approved this date.
BY DIRECTION OF THE COMMANDANT OF THE MARINE CORPS
J. E. RHODES
.1,,ieutenant General, U.S. Marine Corps
Corramanding General
Marine Corps Combat Development Command

DISTRIBUTION: 144 000047 00
APPELLATE EXHIBIT -.5.
4 „,
DOD JUNE 2639
To Our Readers
Changes: Readers of this publication are encouraged to submit suggestions and changes that will improve it. Recommendations may be sent directly to Commanding General, Doctrine Division (C 42), Marine Corps Combat Development Command, 3300 Russell. Road, Suite 318A, Quaiitico, VA -22134-5021 or by fax to 703-784-2917 (DSN 278-2917) or by E-mail to smb@doctrine div@mccde. Recommendations should include the following information: • Location of change Publication number and title Current page number Paragraph number (if applicable) Line number Figure or table number (if applicable) • Nature of change Add, delete Proposed new text, preferably double-spaced and typevy-ritten 09 Justification andior source of change
Additional copies: A printed copy of this publication may be obtained from Marine Corps Logistics Base, Albany, GA 31704-5001, by following the instructions in MCBul 5600, Marine Corps Doctrinal Publications Status. An electronic copy may be obtained from the Doctrine Division, MCCDC, world wide web home page which is found at the following universal reference locator: http://ismo-wwwl.quantico.usme.mWdoediv . .•
Unless otherwise stated, whenever the masculine or feminine gender is used, both men and women are included.
APPELLATE EXHIBIT 1--(7—
DOD J'UNE 2640
DOD056456

TABLE OF CONTENTS
Page
Chapter I: Categories of Prisoners of War
and Civilian Internees

1. Types of People to be Controlled o r Guarded 1
2. Categories of Prisoners of War
3. Civilian Internees 4
4. Protection of Individuals in Your Custody 5
Chapter II: Legal Requirements
1. Geneva Conventions and Other Laws Concerning the
Treatment of EPWs and Civilian Internees 7

2. The Geneva Conventions are Like
the U.S. Bill of Rights 7

Chapter Ill: Handling EPWs
1. Treatment of an EPW at Time of Capture 9
2. Capture Tags 10
3. Equal Treatment for All EPWs 11
4. No Collective Punishment 12
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DOD JUNE 2641
DOD056457
5. Questioning an EPW
12
6. Movement of EPWs to the Rear Area 13
7. Use of Riot Control Agents
13
Chapter IV: EPW Properly
1. Taking Property From an EPW 15
2. Confiscating or Impounding Property 15
3. Tagging Property Taken from an EPW 16
4. Property That Should Be Confiscated 16
5. Property an EPW May Keep 7
Chapter V: Collection Points and EPW Facilities
1. Definition 19
2. Selecting a Location for a Collection Point 19
3. Who is in Charge of Collection Points 20 _ 4. Transferring EPWs to U.S. Army 20
5. Transferring EPWs to Allied Armed Forces 20
6. Location of Internment Facility 21
iv
7. Work You May Assign to an Enlisted EPW 22
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PA GE -1 OF 5.1)

DOD JUNE 2642
Chapter VI: EPW Discipline
1. Types of Punishment
25
2. Nonjudicial Punishment
25
Chapter VII: Protection of Civilian Internees
1. Humane Treatment far Civilian Internees 27
2. "Military Necessity" is No Excuse for Mistreating
Civilian Internees

28
3. Transferring Civilian Internees
to Allied Armed Forces

28
4. Rule Against Forcing Civilian Internees
to Assist You 29

5. Forcible Relocation of Civilian Internees 29
6. Work You May Assign to a Civilian Internee 30
Chapter VIII: Civilian Property 31
1. Destruction of Property 31
2. Taking Civilian Property 31
(reverse blank)
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0 /
DOD JUNE 2643
DOD056459
Chapter I
Categories of Prisoners of War and Civilian internees
1. Types of People to be Controlled or Guarded
One of the many tasks you may be asked to perform during combat operaPPPP.1.3 i.P..02111021.ths movement and- •
•
actibns. df IrialViduals you have captured or individuals turned over to you to guard. In general there are two types of people you will be tasked to guard:

a.
Prisoners of 1Nar.

b.
Civilian Internees.

According to the Geneva Conventions, a prisoner of
war is a person belonging to one of the categories listed
In section 2 of thls chapter who has fallen into the power
of the enemy. 'To avoid confusion with references to
American POWs, the prisoners of war discussed in this
bookiet. wIli be referred to as "enemy prisoners of war"
(EPWs).

A civilian internee is a person in your custody who Is not entitled to EPW status. 'This tens will be further explained in section 3 of this chapter.
2. Categories of Prisoners of War
The following people are entitled to prisoner of war status if they fall into the power of the enemy:
a. tvlembers ef the armed forces (soldiers in uniform).
APPBLLATE EXHIBIT 33±-
1,5 A CI •••
DOD JUNE 2644
DOD056460
b. Civilians who are authorized to accompany the
armed forces In the field.
FOr eXampie, On enemy ships you may find civilians who assist In the ship's operations or maintain its weapon systems. (These people, are sometimes called "tech reps.") If an enemy shlp is captured, the enemy sailors and marines on board would clearly be entitled to prisoner of war status. The Geneva Conventions require the people who capture the enemy shlp to treat the tech reps_ kaa rd with.t same gh"lenrei-crf. care as The" WithY sailors and marines would receive. if you capture a tech rep, you never have the option of executing him as a spy
just because he was not wearing a uniform at the moment of capture. In addition, you are prohibited from putting the tech rep into a civilian internment camp or a
The rule concerning the treatment of civilians who are
authorized to accompany the armed forces also applies
to:

•• War correspondents.
•
Red Cross or USO-type personnel.

•
Civilian members of military aircraft crews.
•• Supply contractors.

•
Labor units.

•
Merchant Marine crews.

•• Crews of civilian ships and aircraft which support the military.
These civilians should have some type of identifica,-tIon or documentation to show that they are authorized to accompany the armed forces in the field. For example, the enemy government may charter a civilian aircraft to transoort its soldiers. If you capture the aircraft, the enemy
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e•r:: N P-11
DOD JUNE 2645
DOD056461
•

3
soldiers will be put Into a camp for prisonersof war. How the civilian crew le treated will be detemilned by higher military authority. The civilian crew may be released or
= kept in custody; if kept, the civilians are considered EPWs as opposed to spies Or unprivileged combatants (people who are not authorized to take part in armed conflict).
c. Members of a military organization that does not require Its members to wear formai military uniforms (for example, a militia or volunteer corps, including organized
_resistance movemOrd.q. The-members this-type-of mill- •• -tan, organization will be entitled to EPW status If their military organization follows the following rules:
(1)
it Is commanded by a person responsible for the actions of his subordinates;

(2)
The members Wear or display a fixed distinctive sign (for example, a particular type or color of shirt) recognizable rat a distance. The sign should clearly distinguish them from civilian noncombatants;

(3) The members carry their weapons openly;
and;
(4) conduct their operations in accordance with

the iavvs (Geneva Conventions) and customs of war.
If the military organization meets all four rules, Its members will be entkied to EPW status if captured. Some military organizations refuse to take prisoners of war due to their "live off the land" style of operations. Other military organizations allow their members to attamot to trick their enemy by waving a white flag and then continuing to fight. Military organizations like the ones described above have failed to conduct their operations in accordance with
APPELLATE EXHIBIT

DOD JUNE 2646
DOD056462
the laws and customs of war (which is one of the four rules). Because the organization falls the test, none of Its members are entitled to EPW status if captured. However,
— Marine Corps policy is to still treat them as EPWs as long as they ars in your custody. Higher military authority will decide at a later date whether the members of military organizations that refuse to abide by the law of war should continue to be treated as If they are entitled to EPW status.
3. 'Civilian Internees
According to Joint Pub 1-02, a "civilian internee" is a civilian who is Interned during armed conflict or occupa-tion due to•
• operations security considerations of the armed force that took the civilian into custody.
• A need to protect the civilian.
Alleged unauthorized participation in hostile acts such as sabotage, attacking U.S. forces, and storing weapons In their home. These people are sometimes called "unprivileged combatants." CIvilian Internees are not entitled to EPW status; however. they still are protected to a lesser degree by the Geneva Conventions. (There is a separate Geneva Convention concerning the pro

tection of civilians.)
The Geneva Conventions list the duties you have in dealing with civilian internees. Civilian internees may take the following forrns:

-g:St
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DOD JUNE 2647
DOD056463
5
Unprivileged combatant.
Displaced person.
Refugee.
Evacuee.

vs Detainee.
The Geneva Convention concerning civilians refers to
civilian internee as a "protected person." If the Geneva Convention concerning civilians did not mdst, a civilian in ths ustady-ef a re unfriendly force- woultilwat Tha • Malty of his captors.
4. Protection of Individuals in Your Custody
s As a rule of thumb, you should Initially treat all peo
-pia in your custody se if they are entitled to EPW status. People who are determined by higher military authority to be unprivileged combatants can be separated from the EPWs at a later date. As a general rule, all individuals in your custody should receive humane treatment. In other words, treat them es well as you would want to be treated if you were captured by an enemy force. Once someone is
in your custody, you have a duty to protect him from--
• The dangers of the battlefield.
•• Natural dangers such as quicksand, wild animals, etc.; and
" The attempts (by your fellow Marines, 'allied troops, fellow EPI'Vs, and civilians) to harm the EP¦Ns based on a desire for revenge.
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Ts it era tNC-1\

eVI.
DOD JUNE 2648
DOD056464
In addition to protecting an EPW from acts of vio
-once, you have a duty to protect him against acts of in-
and against insults and public curiosity. This means that you should not allow anyone (including the news media) to take photographs or vidaotapes of EPWs unless this Is approved by the highest possible military authority. Any media contact with EPWs In your custody should be conducted In compliance with guidance from higher rnilitary authority.
-You- should- neveridlowanyona't0 pate for any lype of photographs that indicate an EPW has been or Is about to be mistreated. An example of this is a photograph of a Marine holding a gun to the head of a blindfoldad EPW.
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DOD JUNE 2649
DOD056465
Chapter II
Legal Requirements
1. Geneva Conventions and Other Laws
Concerning the Treatment of -EPWs and -Civilian
Internees

You are expected to treat all people in your custody firmly and fairly. One of the reasons you are expected not to mistreat an EPW or 'civilian internee is because these people are protected by the Geneva Conventions. The Geneva Conventions are treaties between the U.S. and over 100 other nations. A U.S. treaty is a Federal law, and just like any other Federal law you are required to obey it. Some of the rules found in the Geneva Conventions (for example, the rule against torturing EPWs or civilian Internees) are repeated in the UCMJ as well as Marine regulations, directivess.and orders. All Marines are required to obey these rules. If you mistreat an EPW or civilian internee, you would be in violation of—
•
A Marine Corps regulation,. or order and

•
Federal law (the UCMJ and the Geneva
Conventions).

2. The Geneva Conventions are Like the U.S. Bill of Rights
The Geneva Conventions could be compared to the
U.S. Bill of Rights. Just as the U.S. Bill of Rights gives American citizens certain rights and protection, the Geneva Conventions give people who become "war victims"
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PA rIR C OF
DOD JUNE 2650

8
(for example, sick, wounded, or shipwrecked soldiers or sailors, prisoners of war, and civilian internees) protection from the enemy soldiers who take them into custody. The Geneva Conventions even protect civilians who give up their status as noncombatants by taking part in the battle.
-While -the-Gthaa-tbffifiaticirii-do -nOt theiri to take part in the battle, it does give them certain rights when they are apprehended for their improper involvement in hostile acts. For example, even if you apprehend a civilian Who was shooting at Marines, you may not execute him on the spot. (You should never execute any person, military or civilian, who is in your custody.) You should send him to the rear where he will receive a trial or hearing.
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PAGE Ik OF St
DOD JUNE 2651
Chapter III
•¦•¦•¦ ••
Handling EPWs
I. Treatment of an EPW at Time of Capture
As soon as you capture someone or accept custody
of an EPW, you should start to think of several routine security guidelines. These guidelines are: Search, Silence,
Segregate, Safeguard, and Speed. They are sometimes
called the "five S's".

a.
SEARCH. Each EPW should be thoroughly
searched for weapons and for intelligence material.

b.
SILENCE. EPWs should not be allowed to talk except to answer your questions. Talk among recently captured individuals tends to center around plans to

overpower their captors or to escape. By insisting on silence, you will cut down on their ability to plan an escape.
Operational considerations may also dictate that EPI/Vs in

your custody remain silent. While gagginn an EPW is not
necessarily illegal, it should be used only in extreme
circumstances.

c. SEGREGATE. Whenever possible, officer EPWs
should be separated from enlisted EPWs; SNCO EPWs
should be separated from junior enlisted ranks. The purpose for separating the EPWs according to rank is to
break up the enemy chain of command in order .to decrease their military effectiveness during the early stages
of captivity. Once they are intemed in an EPW facility
there is less need to segregate different ranks.

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DOD JUNE 2652
DOD056468
10
d.
SAFEGUARD. As mentioned above, you have a duty to safeguard everyone in your custody. There also is a duty to safeguard intelligence material found on an EPVV.

e.
SPEED. As soon as possible after you capture an -EPW -(keeping -ward -tattitai —aTirr—a-aufity-tions), he should be sent to the rear for interrogation and processing. You should make maximum use of available transportation returning to the rear. Speedy removal from familiar surroundings, and their own units, will lesson the like:Ilhood of an attempted escape.

2. Capture Tags
As soon as you capture an EPW, you should complete a capture tag. The capture tag should show the foilowing information:
a. Name of the EPW.
b. Rank.
c. Service number.
d. Dato of birth.
e. Date of capture.
f. EPW's unit.
g. Location of capture.
h. Capturing unit.
i. Special circumstances of capture?.
j. Description of weapons/documents.

A capture tag should have three parts, each of which includes the 10 Items listed above. Part #1 should be attached (by string or stapled to the uniform) to the EPW. Part #2 should be forwarded to the MAGTF holding facility or released to the U.S. Army or U.S. Navy when they take custody of the EPWs. Part #3 should be attached to
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DOD J'UNE 2653
11
captured weapons or documents taken from the EPW.
APPELLATE MUNI" -17± PAGE 16;1 r1P 44'7i
DOD JUNE 2654
DOD056470
12
Due to the confusion that is normally present on the
^
battlefield, front-line Marines are not always able to com-plete the capture tag.
If the Marine who captured the EPW has been unable to fill out the capture tag, you as the person who accepts
custody of the EPW for' purp-os-es-of -.guarding --or tratit:
-
-
porting him should attempt to fill in the missing information as soon as you take custody of the EpW.
Although the capture tag is the only documentation required by the U.S. Army before transferring custody of
an EPW to them, each MP collection point and holding fa
cility must maintain a log of all EPWs passing through their facility. The log should show the following information:
a.
Name.

b.
Rank.

c.
EPVV's unit.

d.
From whom the EPW is received.

e.
To whom the EPW is transferred.

f.
Personal property (with chain of custody).

g.
Appropriate dates.

3. Equal Treatment for All EPWs
The Geneva Conventions require that all EPVVs be treated equally. You may not single out a class of EPWs (e.g., members of a particular battalion) for harsh treatment based on misdeeds of the past.
APPELLATE EXTUBIT
.
PA CIP rm. T1
DOD JUNE 2655
13
4. No Collective Punishment
The Geneva Conventions forbid any type of collective punishment directed toward EPWs. An EPW rnay be punished only for his own misconduct.
If the individual in your custody is entitled to EPW
status, he is, in the eyes of the law, a "war victim" and a
"noncombatant" becaus.e his status as an EPW deprives
him of his lawful authority to fight. He has lost his "Iicense to kill,"

While you retain your license to kill enemy soldiers
not yet wounded or captured, you may not harm any noncombatants including an EPW who, prior to his capture,
had attempted to kill you and your fellow Marines.

You owe him the same duty of care as you would owe a
Marine prisoner In your custody.

5. Questioning an EPW
When qUestioning an EPW, certain rules should be
followed. The Geneva Conventions require an EPW to
provide his name, rank, service number (or serial or social
security number), and date of birth.

if an EPW refuses to give this information, he may not
be threatened or punished; however, his privileges (benefits over and above the minimum rights provided by the
Geneva Conventions) may be restricted or forfeited.

APPELLATE EXHTBIT
PAGE - OF
DOD JUNE 2 6 5 6
DOD056472
14
6. Movement of EPWs to the Rear Area
'You should evacuate EPWs in your custody from the
combat zone as soon as you can, keeping in mind security considerations and the requirements of your mission.

_During the_evacuati on, -EPWs -may- not be pia ced -at greater
risk than the Marines guarding them. You may not force
an EPW to "take the point" in order to navigate your way
through a mine field. EPWs shoUld not be considered expendable human resources. The purpose of this rule is to
avoid a situation like the World War II "Death Mareh" from
Bataan in the Philippines. When evacuating EPWs you
may use blindfolds if security considerations require it;
however, this is considered an extreme measure. Standard metal or disposable handcuffs or similar restraints
are permitted if there is a high liketihood an EPW will attempt to escape while in transit.

7. Use of Riot Control Agents
In dealing with large numbers of EPWs, there may be
a need to use nonlethal riot control agents. Riot control
agents are an effective tool to protect the. lives of the people guarding the EPWs as well as the EPWs themselves.
As part of your planning for the control of EPWs, you
should determine whether you are allowed to use riot control agents, and also, where they are kept. Advance Presidential approval is required before riot control agents are
employed in wartime (including instances of armed conflict short of a declared war). Check with your chain of
command to !earn whether Presidential authority has
been granted.

(reverse blank)
.7
APPELLATE EXHIBIT
7.
es T7
DOD JUNE 2657
DOD056473
•

APPELLATE EXPIBIT :TV
7°2-,
2658
Chapter IV
EPW Property
I. Taking Property From an EPW
When searching an EPW, you must decide what things an EPW should be allowed to keep in his possession. Items of identification such as military ID card, dog-tag, or a letter of authorization reflecting a civilian EPINTs status as an individual permitted to accompany the armed forces In the field should never be taken away from an EPW. In some instances this identification is necessary to convince a captor that his prisoner is not a spy. You may take documents from an EPW if they have some potential military Intelligence value.
2. Confiscating or impounding Property
If an EPW has an expensive watch, it may not be confiscated (taken away without an obligation to return it) because it has no inilitary intelligence value. However, if an EPW has in his possession an item of high monetary value, it may subject the EPW to robbery (possibly accompanied by physical harm) by other EPWs. For his own safety, the watch should be impounded (taken away with an obligation to return it, perhaps when the EPW is re leased from captivity). Another reason to keep items of value out of the possession of EPWs is that such items may be used as a means to bribe guards or to pay others to set up an escape. As a general rule, money and articles of value may be impounded for reasons of security, but only by order of an officer. A receipt must be given to the EPW.
APPELLATE WITEIT
PAGE rag 92)
DOD JUNE 2659
16

3. Tagging Property Taken From an EPW
As mentioned earlier, if you take documents or personal propeily from an EPW, you should attach a capture tag to the Items In order to maintain a record of ownership and to proyide fnformation forinteillgersce-personnel. -
These tags should be provided at the local level; however, If tags are not available, substitute tags will have to be used.
Z..
4. Property That Should Be Confiscated
In addition to confiscating weapons, you should confiscate any item which may facilitate escape (for example, a compass or map). This rule should not be taken to an extreme level. While confiscating an EPW's boots would tend to decrease his ability to escape, you are not permitted to do this. In gerieral, EPWs should remain in possession of ail articles of personal use such as their clothing, food and personal equipment. Items of personal protection like their helmets may be retained by an EPW because the Geneva Conventions forbid a captor from placing an EPW at greater risk than his captors. If the Marines who capture an EPW are wearing their helmets and flak jackets, these items of personal protection should not
be confiscated from the EPWs. Once an EPW is sent to
the rear and Interned in a safe facility removed from the area of operations, the items of personal proteetion may then be confiscated.
APPELLATE ExErarr N
PA (IV rtp
DOD JUNE 2660

17
5. Property an EPW May Keep
Badges of rank and personal decorations may be
re
tained by an EPW. These items have no military intelli
gence value and will not help an EPW to escape. These
items are the personal oroperty.o.f.the__EP_W._ _
_
Taking these items would be characterized as looting EPWs, which could be considered a violation of the Geneva Conventions and the UCMJ. You should not confiscate personal field rations, winter coats, shelter halves, and first-aid kits even if you or your fellow Marines. have an urgent need for these items. Confiscation is prohibited unless the EPWs have no need for the articles or satisfactory substitutes are given to the EPWs.
(reverse blank) APPELLATE EXHIBIT
PAGE. 26 Or
DOD JUNE 2661

Chapter V
Collection Points and EPW Facilities
1. Definition
Collection points are areas where EPWs are held temporarily while awaiting evacuation to the rear. At collection points EPWs are sometimes interrogated for
intelligence information which may help Marines in the

.
ongoing battle. Sick or seriously wounded EPWs can be
cared for by corpsmen or transferred to Ow. closest medical facility.

2. Selecting a Location for a Collection Point
In selecting a collection point, several things should
be taken Into consideration:

a.
It should be near a main supply route (MSR) for
ease of transportation.

b.
It should not put an EPW in a position to gather
intelligence or to commit acts of sabotage.

c.
It should not expose an EPV/ to health ha=ards

(natural or man-made).
d. It should not be near a legitimate military target
(e.g., placing EPWs near your artillery or ammo dump as
"human shields").

APPELLATE BlailBIT '7 _ Ca)
DOD JUNE 2662
DOD056478
20
3. Who is in Charge of Collection Points
Collection points may be set up at any unit level depending on the number of EPWs. At the company level, tactical troops will guard the EPWs. Collection points are usually established at the battalion level.
Capturing units evacuate EPWs to a battalion collection point established at a central location designated by the ground combat element (GCE) commander. This collection point is usually operated by the military police. From the GCE and aviation combat element (ACE) collection points, EPWs are transported to various transfer points and from there to an MP-operated MAGTF holding facility.
4. Transferring EPWs to U.S. Army
In most cases, the EPWs captured by Marines eventually will be transferred to the U.S. Army for processing
and internment. In the event the U.S.. Army is not involved in the operation, the Marines will have to process the EPWs and guard them until they either are authorized to release the EPWs, or higher military authority makes arrangements to take the EPWs off the Marines' hands.
5. Transferring EPWs to Allied Armed Forces
If Marines are involved in an operation with allied troops, there may be an agreement between the U.S. and an allied nation that allows U.S. forces to transfer their EPWs to the allied nation. Even if an agreement like this exists, you should not automatically transfer your EPWs to the custody of allied troops. You should not transfer
APPELLATE EXMBIT 7 r
DOD JUNE 2663
21
EPWs out of U.S. control unless you receive specific or
ders from higher military authority.
According to the Geneva Conventions, EPWs, in the custody of the U.S. may be transferred to an allied force only if the U.S. government is satisfied that the allied force- is-wilting-and-able- to -provittg-ttre rifote-dtio-n—iirthi- --Geneva Conventions to the transferred EPWs. The purpose of this rule is to stop individuals who have captured EPWs from washing their hands of their responsibilities under the Geneva Conventions by turning over their EPWs to anyone who will take them. For example, if you were a captured pilot whose payload had missed the target and destroyed a schooihouse, would you want to be turned over to the local villagers?
Another example is the case where EPWs of one religion are transferred to the custody of members of a rival
religion whose beliefs call for the killing of the EPWs. In
this case, the U.S. government would not be able to determine that the allied force is able and willing to protect the
EPWs. In many cases the U.S. and an allied nation will
sign an agreement allowing U.S. armed forces to transfer
their EPWs to the aiiied nation. As mentioned above, even
if there is a transfer agreement, do' not give up custody of
your EPWs to allied troops unless you have specific orders to do so.

6. Locaticircof Internment Facility
The Geneva Conventions and U.S. policy require that
when it can be avoided, EPWs should not be Imprisoned
on ships. However, there are exceptions to this general
rule. EPWs picked up at sea may be temporarily held
aboard ship based on operational requirements, until

APPELIATE 7_9.-7\
DOD JUNE 2664
DOD056480
•

22
there is a reasonable opportunity to transfer them ashore
to an EPW facility or to another ship for evacuation to a
shore facility. EPWs may be temporarily held aboard ship
while being transported between land facilities.

EPWs may be temporarily held aboard ship if this would
givativimprtiv6 The' t'aTetil "of hogith—VoirCeae" -61 the

-
EPWs, such as avoidance of exposure to severe environmental or combat conditions, or improved access to medical care for those requiring it.

7. Work You May Assign to an Enlisted EPW
You may order an enlisted EPW to work; however,
there are certain restrictions. An EPW may be assigned to
public works projects (for example, roads, reservoirs, etc.)
as long as the project is not designed primmily to holp the
enemy military forces. An EPW may be forced to build
EPW barracks, medical facilities, an d other structures designed for the benefit of war victims such as EPWs, sick
and wounded, civilian refugees, etc, An EPW may be ordered to carry sick and wounded Marines to medical
facilities.

Because Marines like this are considered "war victims," the assistance provided by EPWs to the Marines is
not considered aiding an enemy armed force. Just because an EPW obeys your order to work does not mean
he is guilty of collaboration with his enemy. An EPW may
not be forced to participate In jobs which assist his enemy in support of military operations. Examples are digging artillery emplacements, transporting ammunition and
building a bridge designed primarily for military use (like
the movie "Bridge on the River Kwal").

APPELLATE EXIIIBIT
PA.C.;P, SI)

DOD JUNE 2665
DOD056481
23
Officers may not be required to work; however, they may volunteer to work. NCOs may be required to perform supervisory work only. As mentioned above, other enlisted ranks may be required to work. However, unless he volunteers, an enlisted EPW may not be employed in work which is unhealthy or dangerous.
(reverse blank)
AP. PELLATE EXEIBIT
eiC n.F
DOD JUNE 2666
DOD056482

Chapter VI
EPW Discipline
1. Types of Punishment
In order to fulfill your duty to protect EPWs, you must
be able to control the movement and actions of each EPW
in your custody. According to the Geneva Conventions an
EPW must obey all laws, regulations, and orders in effect
for the armed forces of his captor (for example, an EPW
captured by Marines is subject to the UCMJ). If an EPW
violates one of these rules, he may be given judicial or
nonjudicial punishment. For example, if an EPW under
your custody killed a Marine, a civilian, or another EPW,
he would be charged with violation of the UCMJ and tried
by a court martial just as a Marine would be treated if ho
murdered another Marine, a civilian, or an EPW. In addition to the laws, regulations and orders in effect for the
an-ned forces of the EPW's captor (for example, the UC1‘,1.1
if the U.S. is the captor), the person who is in charge of
guarding EPWs may issue rules designed to regulate the
conduct of EPWs (for example, a rule prohibiting escape
attempts).

2. Nonjudicial Punishment
If an EPW disobeys one of the rules that applies only
to EPWs, the punishment is limited to NJP. For example,
the rule against trying to escape from an EPW facility only
applies to EPWs, not to MPs or other Marines. (If a Marine
left the EPW facility without authorization, he would be
charged with desertion or unauthorized absence, not with
attempting to escape from an EPW camp.)

APPELLATE EXii.r6IT
,
,
2, .N
c7)
DOD JUNE 2667
26
Certain offenses which would ordinarily result in judicial punishment (e.g., theft or destruction of government or civilian property) will be treated as Ishil) matters if they were committed during an escape attempt.
For example, if a Marine in the brig stole a set of civil
-len. cloth ins-attacked-and seriously iTa-rm-ed -NIP,' stole a-jeep, escaped from the base, but was recaptured after crashing into a civilian vehicle, he would face a court martial on all five acts. If convicted, he could receive judicial punishment for his crimes. On the other hand, if an EPW stole a set -of civilian clothing, attacked and seriously harmed an MP, stole a jeep, escaped from the custody of
the MPs, but was recaptured after destroying the jeep as well as a civilian vehicle, he would face judicial punish-
_ _... ment only for the attack on the MP. The rule against EPW escapes is one of the rules directed only at EPW conduct;
so the puni3hment is limited to !UP. Becaunc t:10, civilian clothing and the jeep, as well as destroying the jeep and a civilian vehicle--
•
Were acts committed as part of the escape attempt;

•
Were not committed in order to enrich the EPW; and

• Did not involve an act of violence (like attacking the NIP), these acts are treated as NJP matters.
APPELLATE EMBIT 13t-
"2N1\
DOD JUNE 2668
Chapter VIJ
Protection of Civilian Internees

1. Humane Treatment for Civilian Internees
--N- •
- • • • •• • • .. ..••-•.-N
The Geneva Convention concerning civilians provides a list of actions you may not take against a civilian in your custody, as well as a list of actions you must take to help the civilian internees. The Geneva Convention provides a "safety net" for those civilians who are taken into custody by their enemy. A good rule of thumb for treating civilian internees is to treat them as if they were EPWs.
At the time a civilian first comes into your custody, it would be wise to keep a record of why you apprehended/detained the civilian. Examples of why you would apprehend a civilian are:
a.
He shot at Marines, or

b.
While searching his home, you find a cache of 1.veapons.

In some instances, you may be ordered to forcibly evacuate a group of families from their homes for security reasons (for example, a Marine.convoy .would be passing through their hamlet, and you do not want anyone to learn about the convoy). If you are going to turn the civilian internees over to other Marines, U.S. Army personnel or allied forces, it would be helpful if you inform the leader of these forces whether the civilian internees are suspected of criminal acts, or If they are innocent civilians who are being temporarily evacuated for security reasons.
APPELLATE EXHIBIT
(-7\.
nnn Tr 2669
28
2. "Military Necessity" is No Excuse for Mistreating Civilian Internees

You may not ignore the Geneva Convention concerning civilians based on the dictates of "military necessity." For example. yo_u. may notus.e physicaLforce.to_ get _ . mation from a civilian in your custody no matter how much you need the information. As a general rule, civilian internees must be treated in a humane manner at all times. However, you may control the actions and move-
-ments of civilian internees, not as puriishment, but as a
security measure. In selecting a collection point or a field
expedient brig for civilian internees, you should avoid a
site that would expose the civilians to harm due to its
closeness to a legitimate target, such as an ammo dump.

3. Transferr-ing Civilian Internee§ to
Forces

Handling and protecting civilian internees may be
burdensome. There may be allied military forces or civilian authorities that are wining to ta.l:e the civilians off your
hands. You should not transfer civilian internees out of

U.S. custody unless you receive express orders to do so
from higher military authority.

You may accept help from n.on-U.S. forces or civilian
authorities in your handling of civilian internoes, but as
long as they are still in your custody, you are responsible
for their safety. If you are looking for someone to help you
in controlling civilian internees, you must consider
whether the people you are asking for help are willing and
able to provide humane treatment to civilians under your
control. For example, if you are responsible for the protection of civilian internees of one religionitribe1political

-
APPELLATE MIMI
r
'7 C.-
DOD JUNE 2670
DOD056486
29

persuasion, you should determine whether the people you
are asking for help have an old score to settle or whether
their religion or tribe requires them to injure or kill the civilian internees you are trying to help.

4. Rule Against Forcing Civilian Internees to AsgiSt- ri50 -
While you may ask the civilian internees for help, you may never force them to act as guides or to do other dangerous acts. You may not force them to give you information. As a general rule, there should be no corporal punishment, torture, or collective punishment for past deeds or as warnings against future actions.

5. Forcible Relocation of Civilian Internees
From time to time, military consk:oratic::3 combat preparations or maintenance of security will rz_,-quire you to relocate civilian internees. This type of forcible relocation is not a violation of the Geneva Convention. If you must search a village for enemy troops or supplies, you may forcibly evacuate the village. When the danger is
over, the civilian internees should be allowed to return to their homes. If there is an ongoing security problem with the village, you may force the civilian internees to evacuate and relocate permanently. Hopefully, the host nation will provide for them. In times 6f armed conflict, a certain amount of disruption is unavoidable.
As long as you attempt to limit to the minimum extent possible the adverse effects of war, you will not be faulted.
APPELLATE mair3rr S
PAGE OP
sO
DOD JUNE 2671
30
6. Work You May Assign to a Civilian Internee
You may not force civilian internees to work for you if it would involve their taking part In battle or battle preparations, or if it would subject them to the dangers of the lagtiefi el d. lioworsr,. . -to—compel.. them to assist you in providing assistance to war victims such as the sick and wounded. For example, you could force the local civilian Internees to work as stretcher bear
ers in a field hospital provided it was in a safe location.
You could not force civilian internees to retrieve the wounded during the battle because this would put them in a dangerous position. You could force them to carry to the rear, food and supplies intended for sick or wounded Marines or for EPWs because those Marines and EPWs are considered war victims.
APPELLATE EMBIT
PAGE 3'1 or
DOD JUNE 2672
Chapter VIII
Civilian Property
1. Destruction of Property
While military necessity is not an excuse for harming a civilian internee, it could be a justification for the destruction of civilian property. Keep in mind that there Is a distinction between the duty of care you owe a civilian in your custody (a civilian Internee) and the duty you owe to civilians you do not have in your custody. If a sniper shoots at you from a house, you ire allowed to damage or destroy the house if there is no other way to neutralize the
‘,"It Intor r,
shooting from his own home, you may not destroy tne
r f-" civilians. OnCe the sniper has vacated the home (due to capture, death, or retreat), there is no rrIFTp lry
-
-
f
property), may be destroyed if there is a clear showing of military necessity (as opposed tc.,. convenience of the military) for this :lotion.
2. Taking Civilian Property
In addition to destroying civilian property, you may have reason to confiscate, seize or requisition civilian property. To confiscate something means to take away without an obligation to return it or to pay for it. To seize something means to take away (permanently or temporarily) with an obligation to pay an amount of money to be determined at the end of the war. To requisition
APPELLATE EXEMTT
PAGE Or

-3a cb
DOD JUNE 2673
4.,

32
something means to take, with or without the permission
of the owner, with an obligation to pay for it at the time
the property is taken.

There are two possible reasons for taking or destroying civilian property:

a.
you need the property, or

b.
you want to deny your enemy the use of the
property.

If there is damage or destruction to any civilian property
as a result of military operations (before, during or after
the battle), there is neither a violation of the Geneva Con-
vention nor an obligation to pay for any damage or de-

--••• • ,
value (vehicles, airplanes, ammunition, etc.) from fallinn,
hands .of tho enuiiiy, you
without obligation to compensate anyone.

a.
You decide to redeploy from an area populated by
civilians;

b.
You suspect the enemy will follow you into the
area and take civilian property like trucks, gasoline, air'craft, ammo, etc.; and

c.
Your enemy will use these things against you
then, you are allowed to destroy the civilian property. Under these circumstances, you may destroy the property
regardless of who owns it. There is no duty to compensate the civilian owners of this property.

APPELLATE EX:11.-7BIT
PACE
DOD JUNE 2674
DOD056490
33
DUTIES OF A MILITARY POLICEMAN
CONCERNING ENEMY PRISONERS OF
WAR AND CIVILIAN INTERNEES

This booklet was prepared for military police as a guide for the treatment of enemy prisoners of war and ci._vilian internees. .lt _can_b_a .use.d..by any. Marine taske.d with_
the handling of enemy prisoners of war or civilian internees, or assigned to augment a military police company. If you have any questions concerning enemy prisoners of war and civilian internees, contact the Security and Law Enforcement Branch at Headquarters, U.S. Marine Corps. The mailing address and telephone numbers are as follows:
In$.••••
roluIRRAkTrIt¦ wri-
L;L.,,urtLy and Li:yr Linorcanient Srancn
1-feadquorters, U.S. Marino Corps Washington, D.C. 20380-1775
Cornmcrcic!: (703) 614-4177, C14-21CO
(reverse blank)
APPELLATE EX' MIT ..11r.
N.GE 4.1 ___ OF co
2675
DOD JUNE
41

MI LITA RV SUSPECT' ACK NOWLEDG EM ENT . AND WAIVE*. OF RIGHTS
Place: }.14.
/Acta, t.;;;09K1,,
I, Cc _(C,1•11' (b)(6)
(b)(6)
have been advised by Special
that I am suspected of AL.S. .41
I have also been advised that:
'AFTI) I have the right to remain silent and make no statement at all;
lie) (2) Any statement do make can be used against me in a trial by court-martial or other judieiii or administrative proceeding;
emitt-)(3) I have the right to consult with a lawyer prior to any questioning. This lowyer may be a ciViTian lawyer retained by me at no cost to the United States, a military lawyer appointed to act as my counsel at no cost to me, or both; •
,,Vr,t (4) I have the right to .have my retained civilian lavryer and/or appointed military lawyer present during this interview; and 4:1,C15) I may terminate this interview at any time, for any reason.
haO2 decided that I do nut desire to remain silent, consolt witn a re-;,$:;)..t.i (,r
f.„_', •
prornises have been made to me.

/21.___74Z.
,
.....
L,
(b)(6)
Witnessed:
Date & Time: 0 .11-¦.:010
A t this time, I, C. .4 . I (b)(6)
A.S Statement iS utic,...a:dis.al,j of my rights as set forth above, It is made with no threats or promises having been extended to me.
desire to make the following voluntary statement. T ; ‘,.. ¦ ut
CNINL./ ro,•-ii !
APPELLAM EXMBIT elt\ -
or
PAGE
GPO 11116.4111P
aiLtP0/IN 001 REY 4-81
2676

DOD JUNE
DOD056492
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APPELLATE EXEIBIT ?ACE tf oF.
.....¦¦•••-•^
DOD JUNE 2682
DOD056498
MILITARY SUSPiliT la ACKNOWLEDGEMENT .AND WCEn OF RIGHTS
Place: clus¦-••
, IP-A-fps
C.e\-(b)(6)
have been advised by Special Agentls)-(b)(6)
that am suspected of A 4;
I have also been advised that:
(b)(6) (1) I have the right to remain silent and make no statement at all;
(2) Any statement I do make can be used against me in a trial by court-martial or other juAirisit or administrative proceeding;
(b)(6) (31 I have the right to consult with a lawyer prior to any questioning. This lawyer may be a civilian lawyer retained by me at no cost to the United States, a military lawyer appointed to act as my counsel at no cost to me, or both;
have the right to have my retained civilian lawyer and/or appointed military lawyer
(b)(6) (4).
present during this interview; and
15) I may terminate this interview at any time, for any reason.

(b)(6)
.
1 laa14.$1 11,d ¦. l!1.11i1 • ••••¦ ...I 1../S •
or have a lawyer ..r4t this timr. I m:11-..! this • pronii.k:s h,rye been nkiJe to roe.
ta.kA.to 11
(b)(6)
Witnessed:
Date & Time:
At this time 11--. C-sJ desire to make the iolt6-vv-ing voluntary statement. This statement is made with an understanding of my rights as set forth above. It is made with no threats or promises havinj extvided to
me.
(b)(6)
0.57
•.
APPELLAtEMT1
PAGE
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NISPORM 001 EIEY 4-81 .a/
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2684
DOD JUNE
DOD056500

UNITED STATES MARINE CORPS
SPECIAL COURT-MARTIAL
SIERRA JUDICIAL CIRCUIT

UNITED STATESN )
)
v.N ) ) MOTION TO DISMISS FOR FAILURE TO STATE OFFENTSE
scan-A. BURTON )
(b)(6) CORPORAL )) DATED: 7 Rine 2004
U.S. MARINE CORPS )
)

1. Nature of Motion: Corporal Burton, by and through counsel, pursuant to Rule for Court-Martial (RCM)
!N •:N•:.:;N rN •
maltreated were not "subject to the orders" of the accused as a matter of law. Therefore, the
St17,!111:irvNFartc:
Charge II alleges violations of Article 93, UCIVII, by Corporal Burton at various times between on or about 1 June 2003 and on or about 6 July 2003. The alleged victims, who aro nut identified by name are described, respectively under the specifications, as: "Iraqi detainees", "Iraqi detainee", and "civilian Iraqi detainees". There are no factual allegations in the specifications clarifying how or Why these alleged victims were purportedly " subject to the orders" of CPL Burton. Nor is the term "detainee" defined under Article 93.
Appellate Exhibit Page of '7
DOD JUNE 2 6 85

The brief interaction between CPL Burton and the alleged victims can bes't be described as
"transitory contacts" and nothing more.

3. Law and Discussion:
Article 93, cruelty and maltreatment, governs conduct between persons subject to the UCMJ and individuals, including civilians, who arc subject to their orders. MCM, United States, (2002), Part IV, paragraph I 7c(I), defines the term, "Any person subject to his orders" as follows:
[This term]means not only those persons under the direct or inunediate command of the accused but extends to all persons, subject to the code or not, who by reason of some duty are required to obey the lawful orders of the accused, regardless whether the accused is in the direct chain of command over the person.
' ' ;
of Military Review in which it held that, when constmine Article 93, the relationship between
No case law has been found that addresses the kind of relationship covered by the allegations in the accused's case. In other words, the alleged Iraqi victims were not prisoners, were not civilians employed by or otherwise working for United States military forccs and had no generalized and continuing duty to obey the orders of United States uniformed members.
CPL Burton was not a Member of law enforcement and had no lawful authority or power over ordinary Iraqi citizens. To the extent he may have had some authority to arrest or seize Iraqi citizens, there are no allegations and there is no evidence in this ca.se that the Iraqi detainees in question were taken into custody or arrested in any formal way, making them priSoners.
Appellate Exhibit Page .2ef —1
DOD JUNE 2686
In fact, the best way to describe the relationship between CPL Burton and the Iraqis is that of a
transitory or incidental nature. This is not the sort of relationship that is contemplated under
Article 93 and its legislative history.
h is well understood that criminal statutes are to be strictly construed under the rule of lenity. Thus, any attempt by the prosecution to claim that thc ambiguous tem "[sixty person subject to his orders" should be broadly construed to include the most transitory of contacts, is contrary to established statutory construction. See United States v. Ray, 51 MJ. 51 1 (N.M.Ct. Crim. App. 1999).
4. Nature of Relief: The defense requests this Honorable Court to dismiss Charge II and the Specifications
thereunder as failing to state an offense because the z:re,,2efl 17a:: °flaw, persons subject to the orders of CPI, Burton.
No evidence will be presented on this 'notion.
6.Nral A rmiment: The defense requests oral argument on this motion
Appellate Exhibit
Page 3 of

DOD JUNE 2 6 8 7
CERTIFICATE OF SERVICE
A true copy of this motion was served on Govenuncnt Counsel and the Military Judge by telefacsimile on 7 June 2004, by undersigned counsel.
Y4d4
fensKe
AppellatziExhibit Page of 1
DOD JUNE 2688
Li I ar.•Li.• 1 C. • gra. s•nronrsn— J T1,7 f¦•• ..... • ••••11,-1%0.• • •••N
LI PI • ¦•• •
41111r
DEPARTMENT OF THE NAVY OFFICE OF THE JUDGE ADVOCATE GENERAL 200 STOVALL STREET ALEXANDRIA VA 22332-2400
IN THE U.S. NAVY-MARINE CORPS COURT OF MILITARY REVIE1V BEFORE
KENT A. WI LLEVER R. A. STRICKLAND JAMES E. ORR
L04111ED STAllES

Bernard N. CURRY, MO”
Yeoman First Class CE-6), U. S. Navy

NMCM 88 0719Rr Decided 31 July 1991

Sentence adjudged 17 November 1987. Military Judge: Donald E. Edington. Review pursuant to Article 66(c),-UCMJ, of Special Court-Martial convened by Commanding Officer, U.S. Naval Station, FPO Miami 34051-3001. • '
LT ::-.1-FRLY s..CLNR, Appellate Dfenge Cwougt1
LT DEBRA R. SAND/TER, JAGC, USNR, Appellate D.!ftr.r., Cn.:r.•7/!1
Kaj LAU1ZAN AppcIle

PER MIMI;
of conduct (Charge I), two specifications of maltreating a gubordinata (Charge 11), ferging a noo-availability chit (Chgrge III), communicating indecent language (Charge IV) and bribery (Charge IV), in violation of Articles 92, 93, 123 and 134, Uniform Code of Military justice,(CCMJ), respectively. He was sentenced to a
confinement for 4 months, forfeiture of $Z50.00
(b)(6)N ne7 Per
month for 6 montna and reduction to pay grade g-1. Tbe convening authority
approved the adjudged sentence and this Court.fiffirmed the conviction.

This case is now before us on remand from the U.S. COUTT of Military Appeals Sith the following directions:
(a) Consider the suffiCiency of the evidence supporting Charge
II, and if sufficient, to consolidate as nultiplicious

Specifications 1 and 3 of Charge /I;
• (b) Consider whether Charge Il is multiplicious with
Specification 2 of Charge IV;

APPELLATE EXHIBIT
7AGE C OF CNI I IO;I. FILES
DOD JUNE 2 6 8 9
JUN Of GOVM IC:V= rm porremmr-ucromoc--.,,,ry ......

;

‘S •
(c)
Dismiss Charge r;

(d)
Determine what sentence should ba affirmed.

United States v. Curry, 28r

419, 424-425 (1989).

Specifications 1 and 3 of Charge II 1/ Allege that the appellant (E-6)
oppressed the victim (B-4), a person subject to his orders, by wrongfully using bia
• official poaition to improperly induce, coerce er in any other manner influence the
victim to provide a body massage and by orally communicating indecent langnege to
'the victim, in violation of Article 93, VC13.

Ths appellant's military duties included checking-out personnel at the
bachelor enlisted quarters (REQ) and providing documentation affecting residents'
pay allowances and reiebursements. The victim had moved out of the BEQ on 1 May
1987, but did not hand in her key and officially check-out with appellant until 22
lisy 1987. Due to difficulties in receiving her bachelor's allowance for quarters
(EAQ), she needed a check-out document hack-dated, which appellant provided after
the victim visited him at the 8EQ office on 28 hay 1987. During their
conversation, appellant suggested "a head to toe body massage" at a friend's house-
as a way for the victim to repay him for back-dating the document. The victim
declined, but reported the appellant's conduct: •

According to the MenUal.for Courts-Martial CCM), United States, 1984, .the
eleeents of Article 93 are: "(1) That a certain person was subject to'tthe orders
of the accused; and (2) nun the accused was cruel toward, or oppressed, or
maltreated that pmrson." Pars. 17b, Part IV, MGM. The issue therefore is'whether
the victim, under the circumstances of this case, was "subject to" the orders of

'7,-!_r, -.
! 7'

The Manual fur Courts-Martial makes clear th.lt:

"Any person subject to his orders" means not only those persons

reason of some duty are required to obey the lawful orders of
the accused, regardless whether the accused is In the direct
chain. of. comirrnd over the person.

Fara. 17(c)(1), Part IV (emphasis added).

The Governaieutt contends that the victim's presence in appellant's office was required in the checking-out pxooass and, therefore, she f,.71.nrc!..7 authority with regard to matters within his cognizance, regardless of.their relationship in the chain of command. Hovmver, even though the victim wee subordinate in rank to ths appellant and may-have needed to,deal with the appellant in cheCking-ont or in having her check-out backdated,. such_traasitory contact did not, per al, establish "some duty" of.the victim to dbey the appellant. The victim needed appollant's improper assistance to receive her RAQ. She received that assistance and than appellant improperly suggested "repayment" with an indecent
2/ Specification 2 was dismissed by the military judo as being multiplicious with Specification 3 of Charge IV.
2
APPELLATE EXHIBIT
1
PAGErOF
DOD JUNE 2690
• I¦ • ••••...I .•.et." • 1,1¦ •••• •••
proposition. Re did not order her (lawfully or otherwise) or attempt to order her
to do anything.

Relevant history of Article 93, UCMJ, is set forth in United States v. Dickey,
20 C.M.R. 486 (A.I.R. 1936). In that case (dealing with foreign nationals
performing manual labor for the United States Army), the BroT Board stated: "tha
purpose of Article 93 le to prevent persons subject to the Code who are in a
command cepacity from maltreating those who are under their supervision . . . ."
20 C.M.R. atr

The Court la Dickey emphasised that there was no doubt in that
case that the, victim had a duty to obey the lawful orders of the accused, as the
accused had sufficient authority and jurisdiction to impose restrictions and
conditions upon his daily activitiee. However, beeause proof of the first element
of Article 93, WSJ, is not present in the.case at bar, we need not decide whether
appellant's actions could constitute a violation Of the Article under the
appropriate fact pattern. See, e.g., Uhlted States v. FinCh, 22 C.M.R. 698 (H.B.R.
1936). Accordingly, Charge II and its two remaining specificationware dismissed.

Raving dismissed Specifications 1 and 3 of Charge //, it is no longer
necessary for us to determine whether they are multiplicious for findings with
Specification 2 of Charge TV. Furthermore, even though the.remand by the U.S.
Court of Military Appeals ordered us to dismiss Charge I, we respectfully decline
to do so because that order was premised on our superior.coures finding that,
based on the facts then.before them, the Article 92,offense of Charge I was
preempted by Article Y3 isf.Chargm II. Curry, 28 H.J. at 424. However, because, we
have dismissed Charge II, the Article 92 charge iv no longer factually preempted
andwe are of the opinion that the U.S. Court of Military Appeals did not intend
that tho appellant's actions, which violated a lawful gnnerel regulation on
standards of conduct, should go unpunished. In fact, the wisdom of having such a

sN !•,/NfL:zts rfN •• where, as here, su:O.an action cannot Le considered and find that the Article 92ri= a ..•..
:
from the bribery offense, Specification 2 of C!:ar.le IV, and tilPy are r.,t
multiFiiclous Ecr

military judge considered the Specification of Charge I, Specifications 1 and 3 of
Charge II, and Specificetion 1 of Marge IV to be multiplicious with Specification
2 of Charge IV. Atcordingly, our mndificAtinn of th.. findinss does nnt mffect the
offenses for whic.n appellant was sentanoed and reassessment or the sentence is
unneceasary. The sentence is therefore affirmed.

(ABSENT)
KENT A. WILLEVER, Chief Judge

R. A. STRWKLAND, Senior Judge

JAMES E. ORR, Judge

Wm 88 0719R

-Z".
APPELLATE EXHIBIT
3

PAGE OF 1
.N• ••
DOD JUNE 2691
SIERRA JUDICIAL CIRCUIT
UNITED STATES MARINE CORPS
SPECIAL COURT-MARTIAL

*UNITED STATES GOVERNMENT'S RESPONSE TO
N
V. ) DEFENSE MOTION TO DISMISS FOR
) FAILURE TO STATE AN OFFENSE
SCOTT A. BURTON )
(b)(6)N Corporal ) )
U.S. Marine Corps )

1. Nature of Answer. The government respectfully submits its response to the defense's motion to dismiss for failure to state an offense, and the govenunent respectfully requests
the court deny the same
2. Slim nlar: nr Facts.. Corporal Burton was a member of the 81mm mortar platoon,
';',77.:'.;'!"."7'..7 Cm-117:1;1y; 74`fi 1),:ittaly-i., 516 i'.',717".r.f' 7"-"77 .'t 7*"Nf‘, r".7--"
/ \ :
perrnirs'ivc environment for coalition forces to rperatc m1(1 a N.
diwaniyah, Iraq. In. June andNof 2003, 'Weapons Company command post waS lu::ated at C:Lutip "Ow Sonic -outside of Ad diwaniyan. The 8 min mot tur platoon mission changed. They. no lonrter provided fire support with 81mm mortars to the
battalion, but assumed a law en Corcement role and conducted patrols in the area
surrounding Camp "Got Some." During this time, Capt (b)(6) was the Company Commander for Weapons Company. While Marines from 8Imm mortar platoon were conducting patrols, there mission was to provide security and keep the peace. Marines were authorized to detain Iraqi civilians when they were caug,ht breaking the law or were a security threat. Iraqi civilians detained by Marines were subject to the orders of those
APPELLATE mann' .smoR
!MAL

PAGE _L--oF •_
DOD JUNE 2692
Marines. After talcing an Iraqi into custody, a patrol would either transport the Iraqi back to Camp "Got Some," transport the Iraqi to the detention facility managed by the Army, or release the Iraqi. Marines on patrol were authorized to detain looters. Marines from Weapons Company afforded detained Iraqis with the same rights as enemy prisoners of war under the Geneva Convention while those Iraqis were detained and in custody. ?garbles also treated detained Iraqis with certain security guidelines. These guidelines ate search, silence, segregate, safeguard, speed and tag. During all three incidences to which Cpl Burton is presently facing charges, the Iraqis were apprehended by the patrol, talcen into custody and were restricted of their freedom. The Iraqis taken into custody
were caught looting. Before being taken, the Iraqis attempted to flee the scene and evade
capture. l'hey were eventually eau ellt hy the patrol.
s'
incidences took place were subject to his orders as 1:;;;I:i
In the Military Judge's Benchbook, "subject to orders" under Artiele 91 of the L.:C1.1.) is "...includes persons under the direct or immediate chain of command of the accused and all pasz.4...s who by reason of some ditty aro rc4nired to obey the lawf,41
orders of the accused, even if those persons are not in the accused's direct chain of command." In this case, the issue is whether the detained Iraqis had some duty to obey the lawful orders of the accused. The three leading cases in this area ate United States v. Finch, 22
C.M.R. 698 (N.B.R. 1956), United States v. Dickey, 20 C.M.R. 486 (A.B.R. 1956) and United States v. Sojfer 44 M.I. 603 (NMCCA 1996.)
APPELLATE EXF1IBIT 2
PAGE OF 5
DOD JUNE 2 6 9 3

Ds its motion, the defense has argued that the contact between Cpl Burton and the
Iraqi detainees was a "transitory contact" as discussed in United States v. Curry, NMCM
88 0719RR, 31 July- 1991, an unpublished opinion. However, the facts of C‘irry are
completely distinguishable from the case at bar. Therefore, the "transitory contact"
analysis applied in KLis inapplicable in the subject case. In Curry, the appellant's
military duties were checicing-out personnel at the bachelor enlisted quarters (BEQ) and
providing documentations affecting a residents' pay and allowances. He was charged
with a violation of Article 93 for inappropriately requiriUg that a subordinate checking
out of the BEQ provide him with a full body massage for favors rendered. The court
found that the "transitory cOntact" between the accused and the victim did not establish
,N 7':t "
i./ k-.1 Ui ¦ SLL'-iN••
capacity similar to that of a police officer an:1 had atitl:,—:‘;,
conclusion that the Iraqi detainee's were subject to the orders of Cpl Burton can be
reached by examinin the case authority ia the. area and the
policies for the treatment ofdetainees.
In United Sthtes v. Dickey, 20 C.M.R. 486 (A.B.R. 1956), thc Army Board of Review held that a Korean National worlcing as a civilian employee could be the victim of maltreatment under Article 93. Moreover, in United States v. Finch, 22 C.M.R. 698
(N.B.R. 1956), the Navy Board of Review held that a brig guard could be convicted of maltreatment under Artic.le 93 for abusing brig confines. In lJnited States v. Sojfer, 44
APPELLATE EXHIBIT 13:1—
3 PAGE 3 oF N
DOD SONE 2 6 94
•
• "
M.J. 603 (NMCA 1996), the Navy-Marine Corps Court of Criminal Appeals held that
victims, not in the chain of command of the appellant, were still subject to his orders.

Under Article 82 of the Geneva Convention, prisoners of war shall be subject to
the laws and regulations and orders of the armed force of the detaining power. Per
MCRP 4-11C, Enemy Prisoners of War and Civilian Internees, Chpt para 4, "As a rule
of thumb, you should initially treat all people in your custody as if they art entitled to
EPW status under the Geneva Convention." Moreover, it is United States policy that all
detainees receive prisoner of war treatment regardless of status -ander the Geneva
Convention.

It is clear that the Marines in the Accused's platoon were permitted to take Iraqi
nil • 1, • 4 1 •I I
options. Tx impu:-tant issue to note in this :t^•0;.sis
fled. In response, the Marines had to physically chase the Iraqis and take thent into
custody. They were taken into custody by- the patrol, a guard was placed on the Iraqi
detainees so that tbe detainees could not escape. In all situations, the detainees were not
free to leave until released by the Marines. In this case, all Iraqi's were taken into
custody and transported to another location while physically restrained of their freedom.

The situation in this case is similar to that in United States v. Finch with Cpl Burton and
tbc members of his squad acting in a sense as brig guards.
Clearly, U.S. policy has always been to provide all detainees with the same rights
as those prisoners qualifying as prisoners of war under the Geneva Convention. As such,

APPELLATE EXHIBIT 7-Cr-T 4 PAGE Ntk OF 1'7;
DOD JUNE 2695
DOD056511
N
•
4#
Article 82 of the Geneva Convention applies. This policy is reiterated in the Marine
Corps publication on prisoners of war and the guidance passed on by Capt (b)(6)
(b)(6)
Based on the foregoing, the government believes that the detained Iraqis did have "some duty" to obey the orders of Cpl Burton and his patrol. Therefore, the motion t,o dismiss should fail.
4.
Evidence. 113e Government will provide documentary evidence and witness testimony.

5.
Oral Argument. The government desires to make oral argument in opposition to this motion.

A /
Date 14.1nrine , •L._--" P,eserve
Tiia1 Counsel

CERTIFICATION OF SERVICE
A true copy of this !notion was served or: the detailed defense counsel by. personal serviceon 1 I June 2004.N /7
I "7
I
t r h
1
APPELLATE EXHIBIT 5
OF
. PAGE
DOD JUNE 2696
SIERRA JUDICIAL CIRCUIT
UNITED STATES MARINE CORPS
SPECIAL COURT-MARTL4.L

UNITED STATES
GOVERNMENT'S PROPOSED VOIR

N
v. DIRE
SCOTT A. BURTON
(b)(6) CORPORAL
U.S.
MARINE CORPS

I.
Has any member ever conducted a mock execution? If they do not understand the

question, explain the term "mock execution."
2. Has any member ever hosed someone with a fire extinguisher? If you did, why did you do it?
3. At the conclusion of the trial, the judge is going to read you the following instruction:
A "),•,f1..7-1." iv .1,1177,1.1, ro? no,T ¦ Ii.r.,14;1,,,ni or (c.1)1n1FIlv T¦ r•r0;r•"!"') •In•-¦14-14;r1n trwr•r•
that the Accused cannot be NLnii;t-:.: 0:-:hui c,;)! lyinn of a pow&r lc trilm a 1:re (nti.
permission, I hit Capt (b)(6) C.:: die hcati vy.in the pipe. ‘Vould you :Ili agree based On the definitions I •.:1`..0Nect.1:i constitute a battery?
5.
ivr),,ihetir:11 2: I Invf.. S::';,. ¦ • :trill a !ittIC pir.`CC paper,1 ni:41.:e a spitball with tbe paper and a use the straw to spit tbc Npaper ball at Capt (b)(6) without his permission. As ridiculous as that sounds, would y-ou all agree that could constitute a battery?

6.
Would you all agree that, a personNcc.Immit a battery on another by spraying a powder projectile froin a fire extiiiptislr..r?

7. Did all members deploy in supi3ort of Operation Iraqi Freedom?
8. Did any members deploy with 3"1 Battalion, 5th Marine Regiment?
9, Of those members who deployed, hov,' many of you had contact with Iraqi's being detained by coalition forces?
10. Has any member ever pernonAly o:- had another Marine detain an Iraqi citizen while serving in OIF?
APPELLATE EXHIBIT ..1":"L
) OF '1 PAGE ORIGINAL
DOD J'UNE 2697

11.
Has any member ever run a facility in Iraq, which housed detained Iraqi citizens?

12.
Has any member ever worked at a detention facility?

13 Of those members who deployed, how many were in country for phase IV operations which began around 20 April? 14.Of those members who were deployed during Phase IV operations, were any of you
located in Ad diwaniyah?
15.Of those who deployed, did all of you understand the rules of engagement (ROE)
droughout the operation?
16.Of those who deployed, how many would say they received classes on the ROEs?
17.Are you all familiar witb the concept 5Ss and a T?

18. Would you all agree thit 5Ss and a T is a Marine Corps acronym utilized for dealing with detainees or prisoners?
20. 1-.),; :.1:i of you understanJ t.1.- • N- • ' ''• • ' •OA. LIA LI NV a ' -
'1. ti.izre is an •• •,• ••
22.
Would you also agree that the Iraqi citizen picked up on the street would be entitled to the same protections we give EPWs under the Geneva Convention?

23.
Would you all agree tbat Iraqis should be afforded basic human rights?

24.
Would VOU all agree that even Iraqi criininals should be afforded hasfe hurrrin ri.chts?

25.
Are you all familiar with the 4 weapons safety rules?

26.
Does any member believe that it is okay for Marines to mistreat/abuse Iraqi criminals?

27.
Does any Marine believe that warning shots were authorized during the war?

28.
Hypothetically, let's say Corporal Burton conunitted the alleged offenses. Does any member feel that they could not hold Corporal Burton accountable for the crimes if Corporal Burton was not tbe senior man on the patrol?

kit L.,
APPELLATE EXHIBIT 2 5
PAGE 1--"" OF
DOD JUNE 2 6 9 8

29.Would you ail agree that NCOs should lead by example?
30.
Would any member automatically disregard the testimony of a witness if they leamed that the witness was offered a pre-trial agreement in exchange for testimony in this court-martial?

31.
Does anyone believe that a negligent/leadership failure by a senior marine excuses isconduct by is ubordinatcs?

k. • /111/116110P
Urv.7 . DATE aptain USMCR Trial Counsel
*************** ************** ***** ********************w**•**** ***** A true copy of this motion was served on Defense Counsel by email delivery on I I June 2004.
r 1

i CSMC.R Trial Counsel
APPELLATE EXIUBIT
3 PAGE 3 OF 3
DOD JUNE 2699
UNTIED STATES MARINE CORPS
IN THE SIERRA JUDICIAL CIRCUIT

UNITED STATES SPECIAL COURT-MARTIAL
v.
DEFENSE PROPSED VOIR DIRE
SCOTT A. BURTON
330 76 &I 60
CORPORAL

U.S. Marine Corps
The defense would like to ask the members the following voir dire questions en bane:
. Has any member not served in combat?
2.
Has any member investigated allegations similar to those before you in this case?

3.
Can every member set aside the news coverage of the prisoncr abuse case at Abu Ghraib and

4.
• Does any member feel that the conveining authority expects a vaitizuLir outc.om:: Nthi.; case?

5.
Does every member understand that each member has an equal voice and vote, regard;ess or

. J. DEWB Y First Lieutenant, U.S. Marine Corps Detailed Defense Counsel
I certify that a true copy of this proposed voir dire was serval on Trial Counsel by email and personal ' service on tb.e le day ofJune 2004.
C. J. DEWB First Lieutenant, U.S. Marine Detailed Defense Counsel
APPELLATE EXHIBIT 211
I
PAGE I ,017
DOD JUNE 2 7 0 0
a

SIERRA ,TUDICIAL aRcurr
UNITED STATES MARINE CORPS
SPECIAL COURT-MARTIAL
)
UNITED STATES GOVERNMENT'S WITNESS LIST
v.
SCOTT A. BURTON
(b)(6)
Corporal
U.S. Marine Corps
The government may call the following witnesses to testify on the merits or at
pre-sentencing:

a.
Lance Corporal .(b)(6)NDivision Schools, March AFI3

b.
Lance Corporal . (b)(6)N3/5 Sniper Platoon

cl. Private. First Cinss (b)(6) , Weapons Comp:i:::;', 3/5
1.ancc Cc•Murn1 (b)(6) Weapons Co;:lp;tny, '315

(b)(6) .N LIS Cair.p Pcnkiletun,
Mr. (b)(6) Civilian

Cibbncry SeTeant .(b)(6) , SOI
I
r/
1. Cap:ain (b)(6) _ „ir „egiment
j.
Major (b)(6)N, X0, 3/5

k.
Corporal (b)(6)N62 Arca guard
N

1. Lance CorPoral (b)(6) Weapons Company, 3/5
ORIGINAL
APPELLATE EXHD3IT 1T-
2,
A CVO
DOD JUNE 2 7 01
DOD056517
2. The government requests the right to supplemeat this list should additional
witnesses be discovered.
\NG
Captain United States Marine Corps Reserve Trial Counsel
******************•************** ********* •*****************************
CERTIFICATE OF SERVICE
A true copy of this notice was served on Detailed Defense Counsel by physical service on 11 June 2004.
it..Nuck.ANNINU tapta n United States Marine Corps Reserve Trial Counsel
APPELLATE EXHIBIT ?g"
2
PAGE rt-or
DOD JUNE 27 02
CHARGE 1: VIOLATION OF THE Ur.-.MJ, ARTICLE 81
SPECIFICATION: in that Oorpemal Scott A. Burton, U.S. Marine Corps, on active
duty, did, at Ad Diwaniyah, Iraq, between.=k^"4- 1 :7,,ne 2003 and until on or
^-about 6 July 2003, conspire with Corporalom.U.S. Marine Corps, to commit an offense under the Uniform Code or military uustice, to wit: assault, and in order to effect the object of the consp4,-se”,.
"4'4 ("crporal Scott A. Burton received a fire extinguisher from Corporalmo” and then used that fire extinguisher to spray its conents in the race ana noay or an Iraqi detainee.
CHARGE 11: VIOLATION L.:: THE CCMJ, ;,RTICLE 93

SPECIFICATICN 1: In tha.Cu.1;:bral Lcutt A. Burton, U.S. Marine Corps, on active

duty, did, at Ad Diwaniyah, Iraq, bLtween on or about 1 June 2003 and until on or
about 6 July 2003, maltreat 1:aqi JL.,:.ainees, persons subject to his orders, by

locking them in an abandoned Lank.
SPECIFICATION 2: In ttat Corveral 2.:ett A. Burton, U.S. Marine Corps, on active
duty, did, at Ad Diwanlyah,.

be7:ween on or about 1 June 2003 and until on nr
about 6 July 2003, m:=.1tr:-!hr.d9tainee, a person subject to his orders, by
spraying thu Cetainei:.

SPECIFICATION 3: InrA. Eurton, U.S. Marine Corps, on aotive
duty, did, at 'Ftd.irac, betaun on or about 1 June 2003 and until on or
about 6 :July 2fl03,.detainees, rorsonn subject tn

,n.nf

7..r4orr,.n'r • •-•.

Ln ti..!.. _ :::1-,‘1 1._.Lt A. Burton, U.S. N:arine Corps, cn autive
duty, did, at T..ci 'Diwanlir:h: :.!,.

I SPECIFICAT1 I,:.

-.,::-. on or Ebc,zt I ju:-.-7, 20rY3 nrul until en rr

. . . . _ ._.
' • --:

SPEC1FICATIC:: 2:.- A. Burton, U.S. Marine Corps, en active
:n
nt:ty, did, , -1..•

on or At-1,$..!t I J..m,.! 2CO3 aro! until on cr.

bocy

A.PPELLATE EXHIBIT :Kr
o rrrz.rtr

DOD JUNE 2 7 0 3
UNITED STATE'S
COURT-:MARTI.AL

v. WITH MEMBERS (73 u12-7-40 TN.)
) — )
CP,PT go SE-e..--r5v
MEMBER'S QUESTION
A
Directed CO / 6PL-.
(NAINirE OF WI-MESS)

wribti)
,)
74, h—o-v rti
Co-pm
(2-/.-. t
,
D cp
/f7e-..??-2-‘,/ A: a :J. /
Li 7. ,
• (Mernbees Sienature)
APPELLATE' EXHIBIT "3:11
DOD JUNE 2704
STATE.S
COURT-N4ARTIAL
v,
WITH MEMBERS
dr.
MEMBER'S QUESTION
Direczed to
(NAME OF WITNESS)
air-iffyN74/pe--
VT,.
APPELLATE EXHIBIT
V •
D OD JUNE 2705
liN1TED STATES
COURT-MARTIAL
v.
WITH MEMBERS
NCEMBER'S QUESTION
Direcred to L C2) (b)(6)
(NANtE OF W rTNES S)
k.-
ok e • c.) ,t. LL)
1 le¦ i ;"51\.r..7Nlc) y (.'30(pc;-%
Co ,-'%,"i*:•%% ••
ember's Sianarure) 116 evr-I-T15k*
.
EVri(BIT
DOD JUNE 2706

ffir

UNITED STATES )NCOURT-MARTIAL
v. ) ) WITH MEMBERS
) ) 404$e)?!..156, 7-1.)
ME:v03 ER'S Q UESTION
(b)(6)
Dirmed to .C, 21—N
(NAME OF WI-MESS)

77- )*-V..") e
I •.--•
!N;
-jN, L./ ;
• (Memb.ses Siunature)
APPELLATE EVraBIT \A/
2707
DOD JUNE
. UNITED STATES
• COCIRT-MARTIAL WITH M.E.MB ERS.
NLEN,LBER'S QUESTION (b)(6)
Directed to
(NANLE 'OF WITNESS)
• ... . . • ,
, t v at 1/1--7
r.
,„
APPELLATE EX7r4IBIT
DOD JUNE 2708

Findings Instructions, United States v. CORPSgAL BURTON
Members of the court, when you close to deliberate and vote on the findings, 2 each of you must resolve the ultimate question of whether the accused is 3 guilty or not guilty based upon the evidence presented here in court and 4 upon the instructim,,; which T will give you. My duty is to instnict you on the 5 law. Your duty is to determine the facts, apply the law to the facts, and
6 determine the guilt or ini.ocenee of the accused. The law presumes the 7 accused to be innocent 2 the charges against him.
s You will hear an exposition of the facts by counsel for both sides as they 9 view them. Bear ill mind that the arg,uments of counsel are not evidence. io Argument is made by e, )11-Ise] in order to assist you in understanding and
evaluating the evidence, but you must base the determination of the issues in 12 the case on the evidence ,s ¦tou remeinber it and apply the law as I instruct
13 you.
14 15 1.7 Din-ininto p?onri ¦ 7 t I. he T.7-ial u.: too:.Nit:1n T7':!:.• 1 kr.%N,

.0
19 order :o findN ¦ iliS 2DNand coi-ripe:e;,'.Nbeyoni it reasonable Lioutil of caeh. of tlie
22 (1) That between on or bout 1 June 2003 and on or about 6 July 2003 23 at Ad Thwanivnli.Nhe ncensed entered into nn n,:reentent with
24 CorpOra1(b)(6) U.S. Marine Corps to commit an assault, an 25 offense ander theNCode of Military Justice; and
26N(2) That, whileNa;.4yermelitcoiltillued to exist, anti while
accused 27 remained a party to I he. ETeetlicnt. Corporal Scott A. Burton received a 28 fire extinguisher rt-f)111 and then used that fire 29 extinguisher to spray its contents in the face and body of an Iraqi 30 detainee for the prrpose of bringing about the object of the agreement
31 The elements glaze (?!.Thns.: which the accused is charged with conspiracy to 32 commit (i.e., simple asscnt!t.) are as follows:
33 (I) That between on or anout june 2003 and until on or about 6 July 34 2003 at Ad Dimply:111,11-aq, the accused offered to do bodily harm to 35 an Iraqi detaine2;
1 APPELLATE EX/ITETT
oF
PAGE
DOD JUNE 2709
‘01
Findings instructions, United States v. CORPORAL BURTON
(2) That the accused did so by spraying the contents of a fire 2 extinguisher Into the face and body of the Iraqi detainee; and
3 (3) That the offer was done vvith unlawful force or violence.
4 Definitions that apply to the sole specification of charge I:
5 Proof that the offense of assault actually occurred is not required. However, it must be proved beyond a reasonable doubt that the agreement included 7 every element of the offense of assault.
8 The agreement in a conspiracy does not have to be in any particular form or expressed in formal words. It is sufficient if the minds of the parties reach a io common understanding to accomplish the object of thc conspiracy, and this may be proved by the conduct of the parties. The agreement does not have to
12 expressNinnnner in which thc consn;trr.:. i7 1,-, 1-st.
..• •N•.,N..... •
-
17 The overt act must clearly be independent of' the a ereer pent itse! th:it
19 ;;;o:;:. necessary to reach the azreement.
21 of Chartte III: to t;.1.2.. urC:11:1:-gc 1 ;Ind bo:1-:
22 23 An N't of force or violence 'k onlnwfill if done withopt 1Prrni excuse and without the lawful consent of the victim. fication

24 An assault is an offer with unlawful force or violence to-do bodily harm to 25 another. An "offer to do bodily harm" is an intentional act which foreseeably 26 causes another to reasonably believe that force will immediately be applied 27 to his person. Specific intent to inflict bodily hann is not required. There 28 must be an apparent present ability to bring about bodily harm. Physical 29 injury or offensive touching is not required. The mere use of threatening 30 words is not an assault.
31 In the 3 specifications of Charge II, the accused is charged with the offense 32 of maltreatment of subordinates in violation of Article 93 of the UCMJ. In APPELLATE EXHIBTI
2 -7—,
PAGE OE
DOD J'UNE. 2710
•

Findings instructions, United States v. CORPORAL BURTON
order to find the accused guilty of this offense, you must be convinced by
2 legal and competent evidence beyond rea.sonable doubt of each of the below
3 elements:

4 For specification of Charge H:
5 (1) That Iraqi detainees were subject to the orders of Corporal Scott A.
6 Burton U.S. Marine Corps; and

(2) That between on or about 1 June 2003 and until on or about 6 July
2003 at Ad Diwaniyah, Iraq, the accused maltreated Iraqi detainees by
locking them in an abandoned tank.

For specification 2 of Charge II:
(I) That an Iraqi detainee was subject to the ordzrs of Corpor41 Scott A.
,•• t. •• 9...• • •
•
•
19 For .Tecification 3 of Chrzrge
1.4 •.,.. %/A
'
lt3 Scott A. Burton U.S. Marine Corps; and
(2) 1-1,41-N(.,;1 or about 1 Ju.lic 2+1103 ant!. Nu:
20 2003 at Ad Diwaniyah, Iraq, the accused maltreated Iraqi detainees by
21 forcing the detainees to kneel in front of fighting holes while he drew his

pistol behind them and fired a round next to the head of one of the
23 detainees.
24 Definitions that apply, to the 3 specifications of Charge II:
25 "Subject to the orders of' includes persons under the direct or immediate
26 command of the accused and all persons who by reason of some duty are
27 required to obey the lawful orders of the accused, even if those persons are
28 not in the accused's direct chain of command.
29 The maltreatment must be real, although it does not have to be physical.
30 The imposition of necessary or proper duties on a Marine and the

3
APPELLATE EXHIBIT Mar.— 1"-)
DOD JUNE 2 711
DOD056527
• 41,

Findings Instructions, United States v. CORPORAL BURTON
requirement that those duties be performed does not establish this offense 2 even though the duties are hard, difficult, or hazardous.
3 "Maltreated" refers to treatment that, when viewed objectively under all the 4 circumstances, is abusive or otherwise unwarranted, unjustified, and unnecessary for any lawfiil purpose and that results in physicaJ or mental 6 harm or suffering, or reasonably could have caused, physical or mental harm or suffering.
8 Assault and improper punishment may constitute this offense.
9 In specification 1 of charge III, Corporal Burton is charged with the offense io of aggravated assault in violation of Article 128 of the UCMJ. In order to find the accused guilty of this offense, you rnust be convinced by legal and 12 competent evidence beyond a reasonable doubt of ench of thr: elements:
';)113Nf
17N(2) That the accused did so vritli a loaded ser% ice pistol by lif;ng a 18 round next to the Iraqi detainee's head;
19 (3)1 hat tile offer was dont.. with imiaw forc.e. lir viwelice;
(4) That the weapon -was used in a manner prof1:7ce Or:101 or 21 grievous bodily harm, and,
22 (5) That the weapon vvas a loaded firearm.
23 Definitions that apply to specification 1 of Charge 111:
24 An act of force or violence is unlawful if done without legal justification or 25 excuse and without the lawful consent of the victim.
26 "Grievous bodily harm" means serious bodily injury. "Grievous bodily 27 harm" does not mean minor injuries, such as a black eye or a bloody nose, 28 but does mean fractured or dislocated bones, deep cuts, torn members of the 29 body, serious damage to internal organs, or other serious bodily injuries.
30 A weapon is likely to produce death or grievous bodily harm when the 31 natural and probable results of its particular use would be death or grievous
jaa,
4 APPELLATE EXRIEIT
44 rw
DOD JUNE 2712
Findings Instructions, United States v. CORPORAL BURTON
bodily harm. It is not necessary that death or grievous bodily harrn actually
2 result.

3 The likelihood of death or grievous bodily harm is determined by measuring
4 two factors. Those two factors are (1) the risk of the harm and (2) the
5 magnitude of the harm. In evaluating the risk of the harm, the risk of death
6 or grievous bodily harm must be more than merely a fanciful, speculative, or
7 remote possibility. In evaluating the magnitude of the harm, the consequence
a of death or grievous bodily harrn must be at least probable and not just
9 possible, or in other words, death or grievous bodily harm would be a natural

io and probable consequence of the accused's act. Where the magnitude of the
harm is great, you may find that an aggravated assault exists even though the

12 risk of ho.rzn is statistically low'. For example, if sorr::::.ene fi:cf; a rine bull,:t
13 into a crowd and a bystander in the crowd is shot, tlicn tc, C011::!
14 aeuravated assault, the risk °Niacin ofhittH_-, N;. • ;

17
./\ :1 :.,:;!-%!L ; .1. : 1: 1 4.;; ill . ; It '• 0:7 . : . . .
19 another. An "offer to do bodily harm" is an intentional act wilich foreseeably
20 causes another to reasonably believe that force will immediately be applied

22Nmust be an apparent present ability to brintz about bodily harm. ritysical
23 injury or offensive touching is not required. The mere use of threatening
v..ords is not an assault.

25 "Firearm" means any weapon which is designed to or may be readily
2E; converted to expel any projectile hy the nction of an exploqive. A SerViC
27 pistol, when used as a firearm and not as a club, may not be considered a
28 dangerous weapon or means likely to produce death or grievous bodily harm
29 unless it is loaded. A functional magazine fed weapon is'a loaded weapon if

30 there has been inserted into it a magazine containing a round of live
31 ammunition, regardless of whether there is a round in the chamber.

32 A victim may not lawfully consent to an assault in which a. weapon is used
33 in a manner likely to produce death or grievous bodily harm.

34 You are advised that if you do not find the accused guilty of specification 1
35 of Charge III that you may find the accused guilty of the lesser offense of
36 simple assault.

5 APPELLATE EXHIBIT 72ZEL___.
A 'r
DOD JUNE 2 7 13
DOD056529
•

Findings Instructions, United States v. CORPORAL BURTON
In order to find the accused guilty of the lesser offense of simple assault, you 2 must be convinced by legal and competent evidence beyond reasonable 3 doubt:
4 (1) That betvveen on or about 1 June 2003 and until on or about 6 July' 2003 at Ad Diwaniyah, Iraq, the accused offered to do bodily harm to 6 an Iraqi detainee;
7 (2) That the accused did so by firing a round next to the Iraqi detainee's 8 head; and
(3) That the offer was done with unlawful force or violence.
In specification 2 of charge III, Corporal Burton is char.:.s.d
of acsault 2nci hat-tery in violation of Artiel.: l 2S °IC'. T.7(7.t.! T. T'' (1. •:'

1:;—: • ;:
N
6...1 1-;:11...11 ¦ 11Y;111, La ........ • i•

17 detainee;
•-
19NiaCe aimNNthii /I ilre extiwgiiisner;
20N(3) Thnt the 1-.1.0tiily hartrt wns (lone with iitilnwful force .,1-vir)1;-‘7,c(s.
21 Definitions that apply to specification 2 of charge
22 An assault is an attempt or offer with unlawful force or violence to do bodily 23 harm to another. An assault in which bodily hann is inflicted is called a 24 battery. A "battery" is an unlawful and intentional applkation of force or 25 violence to another. The act must bc done without legal justification or 26 excuse and without the lawful consent of the victim. "Bodily harm" means 27 any physical injury to or offensive touching of another person, however 28 slight.
29 You are advised that if you do not find the accused guilty of specification 2 30 of Charge HI that you marfind the accused guilty of the lesser offenses of 31 simple assault.
6
T:I:EL:ATE EXHIBIT
-APtg.--of
DOD JUNE 271.4
Findings instructions, United States v. CORPORAL BURTON
In order to find the accused guilty of the lesser offense of simple assault, you
2 must be convinced by legal and competent evidence beyond reasonable
3 doubt:

4 (1) That between on or about 1 June 2003 and until on or about 6 July
5 2003 at Ad Diwaniyah, Iraq, the accused offered to do bodily harm to
6 an Iraqi detainee;

7 (2) That the accused did so by spraying toward the Iraqi detainee with a
a fire extinguisher; and

(3) That the offer was done with unlawful force or violence.
io You nrc firther advised thnt specific.atin 2 nrc:h7r7.. TT
17 Because specification 1 of charge III and specification 3 of charee II are
i 01 clitugcN 111:u
20 accused guilty of specification 3 of charge II.

21 Further Instructions:
22 Evidence may be direct or circumstantial. Direct evidence is evidence that
23 tends directly to prove or disprove a fact in issue. lf a fact in issuc were.
24 whether it rained during the evening, testimony by a witness that he saw it
25 rain would be direct evidence that it rained.

26 On the other hand, circumstantial evidence is evidence that tends to prove
27 some other fact from which, either alone or together with some other facts or
28 circum.stances, you may reasonably infer the existence or nonexistence of a
29 fact in issue. If a witness testified that the street was wet in the morning that
30 would be circumstantial evidence from which you might reasonably infer it
31 rained during the night.
N .43fil
7 APPELLATE EXPJBrI
or /
DOD JUNE 2 7 15
DOD056531
• 611,
Findings Instructions, United States v. CORPORAL BURTON
There is no general rule for determining or comparing the weight to be given
2 to direct or circumstantial evidence. You should give all the evidence the
3 weight and value you believe it deserves.
4 You are further advised:
First, that the accused is presumed to be innocent until his guilt is
6 established by legal and competent evidence beyond a reasonable doubt;
7 Second, if there is reasonable doubt as to the guilt of the accused, that doubt

a must be resolved in favor of the accused, and he must be acquitted;
9 io Lastly, the burden of proof to establish the guilt of the accused beyond a reasonable doubt is on the government. The burden never shifts to the
:
'

17 reasonable doubt.
20 evidence or lack of it in the case. It is a genuine misgiving caused by
instifri;:icm:y orFro(ir orguili. Ps,.:;:sonat,le Lioubt is a fliir 22 based upon reason and common sense and arising from the state of the 23 evidence. Proof beyond a reasonable doubt is proof that leaves you firmly 24 convinced of Corporal Burton's guilt. There are very few things in 1111S 25 world that we know with absolute certainty, and in criminal cases, the law 26 does not require proof that overcomes every possible doubt. If, based on 27 your consideration of the evidence, you are firmly convinced that the
28 accused is guilty of a specification then you must find him guilty of that 29 specification. If, on the other hand, you thinIc there is a real possibility that 30 he is not guilty, you must give him the benefit of the doubt and find him not 31 guilty.
32 The rule as to reasonable doubt extends to every element of the offense, 33 although each particular fact advanced by the prosecution that does not 34 amount to an element need not be established beyond a reasonable doubt. 35 However, if on the whole evidence, you are satisfied beyond a reasonable
8
APPELLATE EXHIBIT
s
DOD JTJNE 2 7 1 6

lip
Findings Instructions, United States v. CORPORAL BURTON
doubt of the truth ofNand every element, then you should find the
2 accused guilty.

3 You have a duty tc ..2.terr:iine the credibility, that is believability, of the 4 witnesses. In perfoimink, ibis duty, you must consider each witness's 5 intelligence, ability lo ob:.orve and accurately remember, in addition to the 6, witness's sinceriLy tud o(.,-.duct in court. Consider also the extent to which
each witness is eithe: supported or contradicted by other evidence, the 8 relation.ship each wii !less ;nay have with either side, and how each witness might bc affected i.: N-..;i -dict. 7n. weighing discrepancies between io Witnesse:;, youNwilether they resulted from an irmocent mistake or a deIiis..emtc 1;c Takin2 all these matters into account, you ShOUld 12 then corriithr!r thc: Nea:-.1-1 witness's testimony and the inclination
!.!,;
,N.
„ ,!, 7 .,.
19 consider the inconsistmt.:,,,Nevalwiting the believability of the testimony of
20 LCID] (b)(6) andlor Pi:, (ion
22 Pv'aS OTdel•Cd '
23 of imr,-FirliLy.
24 testimony. cim
25 lf LC131 (b)(6) did no.
23 deterrnin:ng fteN.
27 witness tcstified
that may 21Tcct: •
29 A witness is an accollipiic‘
30 which the accused is •1.:1;:11-
31 attention a factor
32 motive to falsify his !:-!st it"
33 self-intereq under thc
34 For exam2le,N

y I 1.1 It: convening authority. Underthis grant ::•;(.1, and T10Nrieriv,...!(? from 1:112,t inst.Nwitness in a criminal trial.
can be prosecuted for perjury. Jn -..vilaess, you should consider thc fact this of i:nmunity along with all the other factors
.; he 1.¦,as criminally involved in an offense with
The purpose of this advice is to call to your affecting the witness' believability, that is, .a in v.,hole or in part, because of an obvious--
:nstances.
may be• motivated to falsify testimony in. whole
35 or -in part bccaus?Nself-interest in receiving immunity or a pretrial
A.PFELLATE EXHIBIT
I, A !I'M OP
2 7 17
DOD JUNE
Findings Instructions, United States v. CORAL BURTON
detennination as to the weight or significance of the evidence and the
2 credibility of the witnesses in this case rests solely upon you.

3 You must disregard any comment or statement or expression made by me 4 during the course of the trial that tnight seem to indicate any opinion on my 5 part as to whether the accused is guilty or not guilty since you alone have the 6 responsibility to malce that determination. Each of you must impartially 7 decide whether the accused is guilty or not guilty in accordance with the law a I have given you, tlie evidence admitted in court, and your own conscience.
9 As the government has the burden of proof, trial counsel may open and io close. Trial counsel, you may proceed.
(ARGUMENT OF COUNSEL)
•
17. full and free discussion of all the evidence that has been presented. After you isNhave completed your discussion, then votine; on your NI 'ht."
,
4!..1 i 1 ell il) YOU:.
If you find the aceusecl guilty of thc spec:if...cation u:-Idcr the chaiTe, the 22 tinding as to that charge is also guilty. The junior member will collect and 23 count the votes. The count will then be checked by the president, who will 24 immediately announce the result or the ballot to the members.
25 The concurrence of at least two-thirds of the members present when the vote 25 is taken is required for any finding of guilty. Since we have 4 members, that 27 means 3 members must concur in any finding of guilty.
28 If you have at least 4 votes of guilty to the offense then that will result in a 29 finding of guilty for that offense. If fewer than 4 members vote for a finding 3o of guilty, then your ballot resulted in a finding of not guilty.
31 You may reconsider any finding prior to its being announced in open court. 32 However, after you vote, if any member expresses a desire to reconsider any 33 finding, open the court and the president should announce only that
APPELLATE EXHIBIT Sia—
11
pAGE OF C2--
DOD JUNE 2 7 1 8

Findings Instructions, United States v. CORPkAL BURTON
reconsideration of a finding has been proposed. Do not state whether the
2 finding proposed to be reconsidered is a finding of guilty or not guilty.

3 I will then give you specific further instnictions on the procedure for
4 reconsideration.
5 As soon as the court has reached its findings, and I have examined the
Findings Worksheet, the findings will be announced by the president in the
7 presence of all parties. As an aid in putting your findings in proper form and
8 malcing a proper announcement of the findings, you may use Appellate
Exhibit ., the Findings Worksheet that the Bailiff may now hand to the io president. Major Curtright, do you have any questions regarding this
worksheet?
f, during your donberatiou3, you have.
12 APPELLATEEXHIBIT 3aZEL op I "Z_,
-PAGE
DOD JUNE 2719
DOD056535
takt,.1
ITED ST Ans MARINE CORPS "'HE SIERRA JUDICIAL CIRCUIT
COTJRT-MARTIAL
UNITED STA.TES
v. FINDrNCS
Scoff A. Burton rnrnnra (b)(6) WORICSHEET

U.S. Marit.e Cot
[NOTE: After ilk con: t Inv ; bers have reached their findinos, the President shall strike out nil inahplien:deN91:1Ee. .iter the Military Judae has reviewed the worksheo,. 11) PresithN
A.nnotin c):_the findinKm bv
If. Afixect
Of theN t! (3 ,.:;. ! tv)
!,
Of Chall!(' (Not Guilty) (pu-iits57) Charge If: Vio!atiott of tileNricle 93
Of Specification 1 of Chi.rg,. (Not Guilty) (cini*) Of Spccification 2 of Charge 1N(Not Guilty) (9111*) Of Specification 3 of CI:• N;N (Guilv)
Of Charge Ir.:N (N)11-ellfflY) (92E7)
APPELLATE EXHIBIT N
PAGE NOF ---2---
N
DOD JUNE 2720
DOD056536
.
•
.
Charge III: Violation of the UCM.1, Article 128
Of the Specification I of Charge III: ) (paiiqj
Of Specification 2 of Charge III: (Not Guilty) ty)
Of Charge HI: (Not Guilty) (pastry)
Conviction by exceptions and substitutions:
Of Specification 3 ofCharge 0„, : Guilty
(except the word(s):+1. j-‘

substituting therefor the words N ; of the excepted word(s), Not Guilty, of thc substituted wort!5 C,!• N
Of Speciticatit,nNof Char gN: C •
IV: Conviction of lesser included offeuties:
Of Specification 1 of C:harge NNot Guilty
Of the Lesser included Offense of simple assault cmilty'
Of Specification 2 of Charge M: NNot Guilty
Of the Lesser Included Offense of simple assault curitq
Of Charge DI:

cutitf
ure of President
APPELLATE EXHIBIT
0"-•
`;'"'" OF
PAGE
DOD JUNE 2721
(;-4-1
czt
444.4
4,PPF.LLATE EXEUBIT
2722
DOD JUNE
X• v-¦f (1.)Cr ;+I Cd • 1¦•4 ;••,4 4'41--4 a).a)C••4.r'4 q•••••4w.--4 •4¦4 .4•¦ !" 11:, 0p c. ,, .--. C¦:1s ,.. t...4 - --- . ;-.1 CD bp IttO 'NG a) .= 4.—) l'0.3 . . v-----4•—• r--
• • I •--t — 4.4 1 L.) :I , ) ! °...: ..4--J . J ;111TI* r-ir---44—) powei4.d 0 011) 4..... r••••+ "43011) .-) P...0 eTh "--1rai c.ri ga, - ,--.1rA 72, • •mi 0PTO = Z1I ct 0 -.1¦••) T¦••¦‘ C.) ! 154 C.) r-4 _Lf.2 cip turj F., 0 XZ (4 C.4-) -44-) a) "71-4 C/D• 1---4 "Ci
•
APPELLATE EXHIBIT PAGE OF
D OD JUNE 2723
DOD056539

APPELLATE AND POST-TRIAL RIGHTS
You are advised that your defense counsel (DC) is required by law to fully explain to you the following post-trial and appellate rights, and, that you have the right to request the military judge explain all or any portion of your appellate rights in open court prior to adjournment of your court-martial.
Record of trial (ROT)
A copy of the ROT will be prepared and given to you. You may request that your copy cf

the ROT be delivered to your DC.

Staff Jud e Advocate or Le al Officer's Recommendation (SJAR)
If you received a punitive discharge or were sentenced by a general court-martial, the convening authority (CA)'s staff judge advocate or legal advisor will submit an SJAR to the CA. Before forwarding the SJAR and the ROT to the CA, this legal advisor will serve a copy of the SJAR upon your DC. A separate copy will be served on you. If it is impracticable to serve the SJAR on you for reasons including, but not limited to, your transfer to a distant place, your unauthorized absence, or military exigency, your ccoy will tf? You may ::!ec roTioct.7hir.
forw!rde:i to yaor DC..t!-.?.

oz in ::;.-itir6 the:. cc,Fy Le s.-r.Lz.
o.iattel:.; later.
on findings of guilty. The action to be taken on the findings and sentence is within t'n.: sole discretion of the CA and is a matter of command prerogative. The CA is not required te rcview the case for leoal errorc or iLictual sufficiency. In taking action on the aenLence, the CA a-ay pprove, disappiove, commute, or ouspend the eiont,ence in whole cr in part. The CA may never increase the aeverity of the sentence. The CA is not empowered
to reverse a finding of not gui/ty; however, the CA may change• a finding of guilty to a charge oz specification to a finding ef guilty to a lesser offense included within that charge or specification, may disapprove a iinoino of ouiity and rehearing, or.
order a y
eet aoide and dismAes any charge or srccifizetion.

Feview

If you were tried by a special ccurt-martial and your sentence: as finally approved by
the CA, does not include a punitive discharge, your case will be reviewed under the
direction of the staff judge advocate for the CA's superior general court-martial
convening authority (GCMCA). You may suggest, in writing, possible legal errors for the
judge advocate to consider and that judge advocate must file a written response to legal
errors noted by you. After such review, and completion of any required action by the
GCMCA, you may request the Judge Advocate General of the Navy (TJAG) to take corrective
action. Such a request must be filed within two years of the CA's action,unless the
time is extended for good cause.

/f you were tried by a general court-martial and your sentence, as finally approved by the CA, does not include a punitive discharge or at least one year's confinement, your case will be forwarded tO TJAG. YOu may sUggest in writing, possible legal errors or other matters for consideration by TJAG. The ROT may be examined for any legal errors
APPELLATE EXHIBIT --XXII— PAGE______LOF
DOD JUNE 2724

and for appropriateness of the sentenCe and TJAG way take corrective action, if
appropriate.

If your sentence, as finally approved by the CA, includes a punitive discharge
(regardless cf the type of court-martial), dismissal, a year or more of confinement, or
death, your case will be reviewed by the Navy-Marine Corps Court of.Criminal Appeals
(NMCCA) for legal errors, factual sufficiency, and appropriateness of sentence. This
review is automatic. Following this, your case could be reviewed by the United States
Court of Appeals for the Armed Forces (CAAF), and finally it might be reviewed by the
United States Supreme Court.

Waiver of Review

You may waive appellate review, giving up the foregoing rights, or you may withdraw your

case from appellate review at a later time. Once you file a waiver of withdrawal, your
decision is final and appellate review is barred. If you waive or withdraw appellate
review, your case will be reviewed by a judge advocate for certain legal errors. You may

submit, in writing, suggestions of legal errors for consideration by the judge advocate,
who must file a written response to each. The judge advocate's review will be sent to
the GCMCA for final action. Within twc years after such final action, you may request
7rj,71 tT. fn yc'ur.t!.Yn.

r,4-4 *7'y !",^

duciding to waive you= post-trial and appellate rishts.

If your case is reviewed by NMCCA, military counsel will be appointed to represent you at

:',ckpc...wle4,zment

1 a..7.,[irclye.my couf-f-maf-til,.p.to?id,:d wft.1

that pficr Lo .Ndic,uctmlt.Wj.5
above written advice; (2) that I have read and I understand my post-trial and appellate
rights; (3) that I discussed my .1-ghts with my DC prior to signing this form; and (4)
that the military judge will discuss my appellate rights with me on the record prior to
adjournment of the court, if I se desire.

I specifically request that my copy of the ROT he OeliVered to:

ne..7T:y.rrank

specifically request that my copy of the S:AR re delivered to:

r94e my counsel, Frank Spinner.
me.rr

Curtis J Dewberry Scott A. Burton. First LieutenantrCorporal USMCr USMC Detailed Defense CounselrAccused
APPELLATE EXHIBIT
PAGE____-2— OF
DOD JUNE 2725

•
411-‘,
UNITED STATES. COURT-MARTIAL
v.
WITH MEN,f13ERS
)
P fio60"Yrra.
Nr --.:vCB ER'S QUESTION
(b)(6)
"
Direczed co r•-•
..\./CENi: WZTNESS)
I) lll.i ou 0 12-,/,.; /
, 71 "7"-- "1-7 /feN/-1149-4)4'
"0'1 02/ ,/ 1--r 7.s .41 ,17-1-/c(-57 ,// 0
(Member's Siecature)
APPELLATE EXHIBIT PAGEN )0111-
APPELLATE EX'rlIBIT N

DOD JUNE 2726
DOD056542
INSTRUCTIONS FOR PREPARING AND ARRANGING RECORD OF 'TRIAL

USE OF FORM - This form and MCM, 1984, Appendix 14, will be used by the trial counsel and the reporter as a guide to the preparation of the record of trial in general and special court-martial cases in which a verbatim record is prepared. Air force uses this form and departmental instructions as a guide to the preparation of the record of trial in general and special court-martial cases in which a summarized record is authorized. Army and Navy use DD Form 491 for records of trial in general and special court-martial cases in which a summarized record is authorized. Inapplicable words of the
printed tert. will be deleted.
COPIES - See MCM, 1964, RCM 1103(g). The convening authority may direct the preparation of additional copies.
•
appropriate Judge Advocate General or for judge advocate review pursuant to Article 64(a), the• record
..
1 cll ¦ ter trii-ii Counsei Or ine convefung or revit.vv,...,...,
authority, whichever has custody of them.
2.
Judge advocate's review pursuant to Article 64(a), if arr,•.

3.
Request of accused for appellate defense counsel, or waiveriwithdrawal of appe/late rights, if applicabie.

4.
Briefs of counsel submitted atter trial, if any (Article 38(c)).

5.
DD Form 494, "Court-Martial Data Sheet."

6.
Coun-martial orders promulgating the result of trial as to each accused. in 10 copies when the record is verbatim and in 4 copies when it is summarized.

7.
When required, signed recommendation of staff judge advocate or legal officer. in duplicate. together with all clemency papers. including clemency recommendations by court members.

8. Matters submitted by the accused pursuant to Article 60 (MCM, 1984. RCM 1105).
9. DO Form 458. "Charge Sheet" (unless included at the point of arraignment sn the record).
10_ Congressional inquiries and replies. if any.
11. DD Forrn 457, "Investigating Officer's Report." pursuant to Article 32, if such investigation was conducted, followed by any other papers which accompanied the charges
when referred for trial, unless included in the record of trial proper.
12. Advice of staff judge advocate or legal
r.str. _ r
13. P.•-•••!•..0,1c hv •••,-.••••••-1 rtf •kr.
a. Errma shPet, if any.
ro...cord or certificate in lieu of receipt.
c.
Record of proceedinas in court. including Article 39(a) sessions, if any.

d.
Authentication sheet, followed by cer,ificate of correction, if any.

e.
Action of convening authority and, if appropriate, ac-tion of officer exercising general court-martial jursidiclidn.

f. Exhibits admitted in evidence.
g.
Exhibits not received in evidence. The page of the record of trial where each exhibit was offered and rejected will be noted on the front of each exhibit

h.
Appellate exhibits. such as proposed instructions. written offers of proof or preliminary evidence (real or documentary). and briefs oi counsel submitted at trial.

a
DOD JUNE 2727
DOD056543

Doc_nid:

4776

Doc_type_num:

651

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