Court-Martial Record: Private First Class Edward L. Richmond, Jr. (Volume 7 of 7)

This Court Martial record (Volume 7 of 7) discusses the court martial proceedings of Private First Class Edward L. Richmond, Jr., he was charged with murder for shooting and killing an Iraqi civilian-farmer on or about February 28, 2004 at or near Taal Al Jal, Iraq. Included in the record are photos (withheld), exhibits, motions, orders, briefs, voir dire, and instructions to panel.
PFC Richmond plead not guilty, he was found guilty of the lesser included offense of voluntary manslaughter. Also, he was sentenced to forfeit all pay and allowances, was reduced in grade to a Private, confined for three years and dishonorably discharged. Included in the record are letters from family, US Representatives, and a brief explanation of the facts and judgment.

Doc_type: 
UCMJ
Doc_date: 
Monday, June 13, 2005
Doc_rel_date: 
Tuesday, November 29, 2005
Doc_text: 

COURT-MARTIAL RECORD

RICHMOND, EDWARD L.VPFC
NAIVIE
Aa-z-
SSN
ACTIONS CODED: ASSIGNED TO:
INITIAL PANEL
ACCA EXAM. DIV.
FINAL
COMPANION(S):

RETURN THIS FILE TO:

OFFICE 0,F TUE CLERK OF COURT
US- ARMY JUDICIARY
901 NORTH, STUART STREET,. SUITE 1200
ARLINGTON, VA, 2220'3-1837

C.)
0
VOL VI I OFVIVOL(S)

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ARMY2
JALS-CC FORM 24, tOCTOBFR 2000.
JUN I 3 2005
017788
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VOL-40'5=V''
ORIGINAL COPY

VERBATimi
RECORD OF TRIAL2
(and accompanying pa.pers)
OF
RICHMOND, Edward L., Jr. 11111111111, LO9 Private First Class
(NAME: Last, First Middle Initial) (Social Security Number) (Rank)
HHC, 1st Bn, 27th In,
2nd Bde, 25th IN (unit/Command Name) US Army (Branch of Service) Kirkuk, Iraq (Station or Ship)

BY
GENERAL COURT-MARTIAL CONVENED BY COMMA.NDING GENERAL
(Title of Convening Authority) Headoo,iarters, lst Infantry Division
(Unit/Command of Convening Authority)
TRIED AT

FOB Danger, Tikrit, Iraq ON.

3-5 August 2004

(Place or Places of Trial)
(Date or Dates of Trial)
COMPANION CASES:

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' insert "verbatim" or summarized" as appropriate. (This form will be used by the Army and Navy for verbatim records of trial only.) CO 2 See inside back cover for instructions as to preparation and arrangement. DD FORM 490, MAY 20002 PREVIOUS EDITIONS ARE OBSOLETE. FRONT 001flari g 9
2 0 0 4 0 7 8 7
PROSECUTION EXHIBITS ADMITTED

017790

BATES PAGEs 17791-17799 are
photographic exhibits withheld based on 5
U.S.C. 552(B)(6) AND (B)(7)(C).

BATES PAGE 17800, a photographic exhibit,
is nonresponsive based on application of the
Judge's specific and applied rulings

;."
•.,
UNITED STATES

STIPULATION OF FACT
v.
Edward L. RICHMOND, Jr. PFC, US Army HHC, 1st Battalion, 27th Infantry 25th Infantry Division (Light) APO AE 09347-9998
The government and defense, with the express consent of the accused, stipulate the following fact is true, susceptible of proof, and is admissible in evidence. This fact may be considered by the court-martial. The accused expressly waives any objection he may have to the admission of this fact into evidence at trial under the Military Rules of Evidence, the United States Constitution, or applicable case law.
The name of the Iraqi man who was shot and killed in this case was
ED ARD L. RI HN/IOND, JR. , JA PFC, USA2 CPT, JA Defense Counsel Accused2 Assistant Defense Counsel
Trial Counsel
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DEFENSE EXHIBITS ADMITTED

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DEPARTMENTOF TH E ARMY

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i '\V -,-Th,h RECOMMENDATION FOR AWARD t ) For use of this form, see AR 600.8.22; the proponent agency is ODCSPER
For valorTheroismlwartime and all awards higher than MSM, refer to special instructions in Chapter 3, AR 600-8-22.
l 2. FROM 3. DATE
¦_V, 1st Bn, 27th Inf Cdr, HHC, 1st Bn, 27th Inf I Schofield Barracks, HI 96857 Schofield Barracics, HI 96857
lV-V PART I -SOLDIER DATA CV .-Z
4. NAME 5. RANK 6. SSN 1RICHMOND, EDWARD LYNN JR PFC mow
, 7. ORGANIZATION 8. PREVIOUS AWARDS
I, HHC,lsi Bn, 27th Inf None I Schofield Barracks, HI 96857
10. RECOMMENDED AWARD 11. PERIOD OF AWARD9. BRANCH OF SERVICE a. FROM b. TO
AAM 08 SEP 03 17 SEP 03
.
13. POSTHUMOUS12. REASON FOR AWARD
12a. INDICATE ACH, SVC, PCS, ETS, OR RET 12b. INTERIM AWARD YES '-. X NO
IF YES, STATE AWARD GIVEN YES I NO I X I

ACH
•V PART II -RECOMMENDER DATA
6 (C) 7_
15. ADDRESS
14. NAME
HHC 1st Bn, 27th Inf.
16. TITLEIPOSITION 17. RANK Schofield Barracks, HI 96857
I91G) -a-
SQUAD LEADER SGT
19. SIGNATURE
18. RELATIONSHIP TO AWARDEE
SQUAD LEADER
PART III -JUSTIFICATION AND CITATION DATA (Use specific bullet e amples of metitodous acts or service!
20. ACHIEVEMENTS
,4, cult EMENT #1

Lightning Thrust Warrior 2003, as base gun gunner in the 81mm Mortar Platoon PFC Richniond demonstrated the ability to get
,V.1idone without supervision. He was instrumental in manipulating the gun system to provide timely and accurate indirect fire to
destroy enemy forces. PFC Richmond's attention to detail, along with his technical and tactical proficiency, contributed greatly to the

platoon's mission success.
ACHIEVEMENT #2
PFC Riclunond was identified by the observer controller as the best gurmer and the overall performer during Lightning 'Thrust Warrior.
He was selected as hero of the battle because of his abilities to perform his duties above and beyond the standard.

ACHIEVEMENT #3
PFC Richmond took charge of fellow soldiers on numerous occasions in the execution of different duties and taskings. PFC Richmond
performed the basic soldier skills with precision and with determination. He was always the first soldier awalce and ready each day
during the training exercise. He served as a role model for the other soldiers in the platoon to emulate.

ACHIEVEMENT #4
, .
.V
21. PROPOSED CITATION
FOR OUTSTANDING ACHIEVEMENT AS A SOLDIER IN THE MORTAR PLATOON DURING LIGHTNING THRUST WARRIOR 2003. PRIVATE FIRST CLASS RICHMOND'S TIRELESS EFFORTS AND COMMITMENT TO SELFLESS SERVICE CONTRIBUTED GREATLY TO THE OVERALL
TESS OF THE EXERCISE. HIS ACTIONS REFLECT GREAT CREDIT UPON HIM, THE
JLFHOUNDS", AND THE UNITED STATES ARMY.,,, ,,. ,1

REPLACES OA FORM 638.1. USAPPC V8.00
DA FORM 638, NOV 94
PREVIOUS EDITIONS OF OA FORM 638 ARE OBSOLETE.
017805
NAME f \ SSN (-
RICHMOND, EDWARD LYNN JR
PART IV • RECOMMENDATIONSIAPPROVALIDISAPPROVAL

22. I certify that this Milgrim, i s eligide for en award i n accordance with 22e. 22b. DATE
2----"sk600-8-22; end that the information contained in Pelt I is correct. Ce OCT-13

)FIMEDIATE a. TO Cdr, 1st Bn, 27th Inf b , c. DATE .AHORITY Schofield Barracks, HI 96857 Schofield Barracks, HI 96857 4 6 Cr 6
d. RECOMMEND:2CR/APPROVAL OVAL UPGRADE TO:2 DOWNGRADE TO:
f. RANK ..
e. NAME
0"--7,--
h. SIGNATURE
g.
TIT POSITIO

i.
COMMENTS

1 /\.A12Ow-,51-4,440, ,,g.256 1,01 FA244)2A- v / I-At "A 4-...452.14 774. Ticslom ,.
1^-1614. 06S &el !
b. FROM2 c. DATE
24.2INTERMEDIATE a. TO
AUTHORITY'
APPROVAL DISAPPROVAL UPGRADE TO:2 DOWNGRADE TO:
d.RECOMMEND:
f. RANK
e. NAME
h. SIGNATURE
R. TITLEIPOSITION
i
i. COMMENTS
, 25.2INTERMEDIATE a. TO b. FROM c. DATE .VAUTHORITY
APPROVAL nDISAPPROVAL UPGRADE TO:2 DOWNGRADE TO:
MEND:
f.
RANK

h.
SIGNATURE

, g. TITLEIPOSITION
' i. COMMENTS
26.2APPROVAL a. To Orders Issuing Authority b. FROM Cdr, 1st Bn, 27th Inf. c. DATE
AUTHORITY Schofield Barracks, HI 96857 Va(1-05

d.2APPROVED2DISAPPROVED RECOMMEND UPGRADE TO: DOWNGRADE TO:
p
f. RANK
-
MEM (Wt)2Z.-
g. TITLEIPOSITION
Battalion Commander
I
i. COMMENTS
PART V -ORDERS DATA
27b. PERMANENT ORDER NO. 31. DISTRIBUTION27a. ORDERS ISSUING HG
SCIVW211 H 1 qlo fIS 1 SI ( -t9ii. OM PF -2I
286. RANK
28a. NAME OF ORDE S L AUT 0 T
..sq-7 INR-1-2I
29.APPROVED AWARD-TLEIPOSITION ,
_V ?fir0ri re) SeXteml— erliTh 601-DIek' i
30. DATE
28d. SIGNATURE
i WOW 0 3 rAit/& "-
USAPPC V6.00
REVERS& DA FORM 638, NOV 84.
017806
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INFANTRY TRAINING BRIGADE
).UNITED STATES ARMY
INFANT SCHOOL

INFANTRY
TRAINING BRIGADE

Be i -„
V1 EDWAR RICHMOND

has successfully eted individual
•:i

Infantry Trai 'ethe
,,,„ L h4" 1--
2..let

Infantry Trai, e
courscr from 30 May 20 ;tember 2002 and that in testi on 6r, ore is awarded
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DIPL
given at Fort Benning, Georgia, on this
6t-Wday
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D17608:

Bates pages 17809-17875, some of which are photographic exhibits, are nonresponsive based on application of the Judge's specific and applied rulings
PROSECUTION EXHIBITS NOT ADMITTED

017876
V—¦ ( I , RIM+, ‘..-e4ARNING PROCEDURE/WAIVER CERTtrUTE
For use of thls form, see AR 190-30; the proponent agency is 013CSOPS
DATA REQUIRED BY THE PRIVACY ACTV
-

AUTHORITY:VTitle 10, United States Code, Section 3012(g)
To provide commanders and law enforcement officials with means by which information may be accurately identified.

PRINCIPAL PURPOSE:V
ROUTINE USES:VYour Social Security Number is used as an additional/alternate means of identification to facilitate filing and retrieval.

DISCLOSURE:VDisclosure of your Social Security Number is voluntary. V er-
2.VDATEVTIME FILE NO.
i \44.V
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.VLOcATION,
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9(6)r-t--VPART- I -R1GHT$-WAIVER/NON-WAIVER -CERTIFICATE-
Section A. Rights
j i./V.

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'The investigatorVhose name appears below told me that he/she is with the United States ArmyV&III v)/ el A" 1.Itlitif 114 t lel,
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suspected/ascused:VII.1 nratiritir=.1.---__
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Before he/she asked me any questions about the offensels),,trwever, he/she made it clear to me that I have the followinV
1..V.1 do net heyp to enswer eny stuegion pr pey Anything: t 4.,:'

2..Anything l say or do can be used as evidence against me in a criminal trial. ct)k--
(For personnel subject othe UCMJ I have the right to talk privately to a lawyer before, during, and after questioning and to have a lawyer present with me

..
during questyning. This lawyer can be a civilian lawyer I arrange for at no expense to the Govemment or a military lawyer detailed for me at no expense to me,
.-i--i..-
or both.V
-Or -V.V
.
(For civilians not subject to the UCMJJ I have the right to talk privately to a lawyer before, during, and after questioning and to have a lawyer present with
can be one that I arrange for at my own expense, or if I cannot afford a lawyer and want one, a lawyerme during questioning. I understand that this lewyer
will be-appointed for me-before-any questioning begins: I have a right to stop answering questions at any time, or
.VIf I am now willing to discuss the offense(s) under investigation, with or without a lawyer pcnt,
speak privately with a lawyer before answering further, even if I sign the waiver below.

.VCOMMENTS (Continue on reverse side)
Section B. Waiver
understand my rights as stated above. I antw willing to discuss the offense(s) under investigation and make a statement without talking to a lawyer first and
I
without having a lawyer present with me.

,r—
-V.1V
..
WITNESSES (If available) SIGV -
la.VNAME (Type or Print)
,,,,k3i : •.. •. -
..ORGANIZATION OR ADDRESS AND PHONE .VSIGNAV-V
(i6-)( ("))4

.VNAME (Type.or Print) ..PED NAM OFINVES . GATOR
.VOR-G-ANtfATIO-N OWADDRISS-AND-P1-10-NE- .V011-6-ANIZATION OF INVESTIG
q 'i ,C /IV h 7 6e)i-refii -:i-r-velf
Section C. Non-waiver

I do not want to give -up my rights
0VI do not want to be questioned or say anything

0VI want a lawyerV
0•1787 t
.VSIGNA-tbfkE tif 1-NtEfIVI-E-WEE
ATTACH THIS WAIVER CERTIFICATE TO ANY SWORN STATEMENT (DA FORM 2823) SUBSEQUENTLY EXECUTED BY THE SUSPECT/ACCUSED
EDITION OF NOV 84 IS OBSOLETE
DA FORM 3881, NOV 89
R1/- Of-NckiitlyiU)C- 4??=.
DOD-041058

SWORN STATEMENT

For use of this form, see AR 190-45; the proponent agency ts Office of The Deputy Chief of Staff for Personnel.
LOCATION

rigl,VEzeN
DATE FILE NUMBER
FOB Warrior, Kirkuk, Iraq 1 Mar 2V. 0040-04-CID469-79638

LAST NAME, FIRST NAME, MIDDLE NAME SOCIAL SECURITY NUMBER GRADE/STATUS
RICHMOND, Edward, Lynn

111111111111111/ E-3/RA
ORGANIZATION OR ADDRESS
HHC, 1-27th Infantry Battalion, FOB McHenry, Iraq (-9(G1—Z-
Edward L. RICHMOND WANT TO MAKE THE FOLLOWING STATEMENT UNDER OATH: OnVFeb 04 around 0530 I was attached to 1st squad as a gunner and I went with this squad to a Traffic Control Point (TCP) west of the city of Taal Al Jal. The squad was supporting A Company, 1-27th Infantry Battalion who was conducting a cordon and search operation to search for weapons and selected personnel. The squad's main responsibility was to insure that nobody left the village and came into the village while the operation was being conducted. The operation had no time limit so we were never told when it would end. When we arrived at the TCP it was still dark and very foggy so we c,ould not see very far away. We could see about 20 meters utilizing are night vision devices. Once daybreak came we began to see the town and could hear the raid being conducted. Around 0800 we began to see local Iraqi nationals walking around in the fields herding their cows and sheep's. The Iraqis herding there cows and sheep did not pose a threat to us or the infantry men conducting the raid so we left them alone. About 0900 we received a call over the radio, which stated any males in the area must be detained. There was never a reaso given to why these Iraqis are being detained. Once the call came in we observed one male Ira Herder about 200 meters away from the TCP. I saw this same farmer come out of the cit and s is cows around 0800, but
we received the call to detainee all Iraqis myself and SGT ent out to the farmers location to detainee
(Chi2nce w saw this herder after the call came over the radio I tol I would go detainee him with you.SGT told me "lets go detainee this Iraqi herder". So SGT myself proceeded to the Iraqi Herders location. While we were walking towards the Iraqi SGT Vstated to me that I would be the s uri for him and that he would be putting the flexi-cuffs on the Iraqi. Once we arnved to the locatton of-the Iraqi SGT informed the Iraqi to place his hands behind his back. The Iraqi just kept pointin ack to the iallage and seemed upse that we were out at his location. Since the Iraqi did not understand English SGT grabbed his hands and attemptVp ace b hind his back. The Iraqi complied with SGT and his hands were placed behind his
ba2, owever, when S attempted to place the flexi-cuffs aroun is wrists the Iraqi started to resist by
__,--moving his arms. SGT2en stated to me "place my weapon on his head and if he so much as moves shot him", which I did. I origina y ad my weapon pointed at the Iraqis chest, but when SGT 2old me to place it2by the Iraqis head so I did. Once I directed my weapon towards the Iraqis head I started looking thou h the scope and site just in case I had to shoot the Iraqi. I wanted to get a good site picture because I knew SGT 2was close by and I did not want to shoot him. While I was looking through the scope and site I saw the Iraqi spin around to the left and lung towards SGT Vo I shot and killed him. I shot him in the back of the head. Once I shot the Iraqi he dropped to the ground. The posi ion of the Iraqis body w Vhe fell to the ground was his chest was facing up and his head was turned to the left. After I shot the Iraqi SGT 2complained to me that he could not hear anything because of the gunshot the he roceeded to go to the TCP to call this incident to higher. I was the only one th e for about 5 minutes then SPC came to my loca 'on. SPIIMIllrasked me if I was ok an I wanted to smoke a cigarette. So I did. SP asked m2e Iraqi was flexi-cuffed, but I told • ••• did not no. We
then sat around and waited for someone to we me guidance. Abo. a 000Ver I shot the Iraqi CPT the 1SG for A Company and ome other people I did know should up at my location. The 1SG then
eize my weapon and told me to go sit dow About two hours later I went back to FOB McHenry. Once I arrived at FOB McHenry CS2told me to wai in the Chaplains tent, which I did for about eight hours. From the chaplains tent I went bac to my platoon for e night and then the following day I was transported to FOB Warriort
Q: SA
I)
et: PF RI
• At anytime did you ever that you were going to kill an Iraqi?
2
A: but eve s about that.
Q: Why would you say ou would kill an Iraqi? 017873
EXHIBIT TINITIALS,OF PE5SON MAKING STATEMENT
( r7.-(-kc— PAC-1F 1 OF 5 PAnPS
ADDITIONAL PAGES MUST CONTAIN THE HEADING "STATEMENT OF iTAKEN AT iDATED iCONTINUED " THE BOTTOM OF EACH ADDITIONAL PAGE MUST BEAR THE INITIALS OF THE PERSON MikKING THE STATEMENT AND BE INITIALED AS "PAGEiOFiPAGES." WHEN ADDITIONAL PAGES ARE UTILIZED, THE BACK OF PAGE 1 WILL BE LINED OUT, AND THE STATEMENT WILL BE CONCLUDED ON THE REVERSE SIDE OF ANOTHER COPY OF THIS FORM.
SUPERSEDES DA FORM 2823, 1 JAN 68, WHICH WILL BE USE.7516 .__
DA F°Rm 2823
i
1 JUL 72
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town crevii9-7qo
-
STATEMENT OF PFC RICHMOND TAKEN AT FOB Warrior DATED 1 March 2004 CONTINUED
A: Because some of them are trying to kill us.
Q: Did you want to kill an innocent Iraqi?
A: No.
Q: What position was the Iraqi being detained at when SGTMEINIIrwas attempting to place the flexi-cuffs on him?
A: His right side was facing me. He was at a slight angle so some of his front was also facing me.
Q: Did you know the Iraqi was flexi-cuffed?
A: No, I found out aft I shot him.
Q: Did SGT ell you he finished placing the flexi-cuffs on the Iraqi?
A: No.
Q: When the Iraqi was getting flexi-cuffed what were you observing?
A: In the beginning I was observing everything around us, but after the Iraqi started to resist I focused on his head.
Q: When you were focusing on the Iraqis head what did you see?
A: I was focusing on the right side of the Iraqis head. I don't know the o
t
excLCV but i was above the Iraqis ear.
Q: What could you see through the scope of your weapon when SG as attempting to flexi-cuff the Iraqi?
A: As far as I remember all I could see was the Iraqis chest and up.
Q: What part of the chest could you see?
A: I could see from the pectoral region and up, but I was only focused on the Iraqis head.
Q: How did you see the chest on the Iraqi if you were focused on his head?
A: That is what I could see looking through the scope. I was mostly focused on the red dot from my scope, which was plated on the Iraqis head.
Q: Did you intend on killing the Iraqi?
A: I did not intend on killing the Iraqi when we went out to detainee him.; however I intended on killing the Iraqi when he lunged at SGTION(LI(
GY-
Q: Why did you ki the Ira41 w en you t, ht he lunged a SGT
iode
A: I felt the Iraqi was attacking SGT I felt SGT life was in dang& so I shot to kill the Iraqi.
Q: While you were looMng through your scope on your weapon cou yo4elhe Iraqis arms?
A: Not fully.
Q: What part of the arms could you see?
A: I could see the shoulders on the Iraqi.
Q: Were the shoulders on the Iraqi canted to the front of his body?
A: I don't know.
Q: Were the shoulders in a vy that you could tell the Iraqis arms were behind him?
A: I could not tell.
Q: When was the las • you saw the Iraqis hands behind his back?
A: When SGT
old me to raise my wealion to hishead and shot him if he mov
Q: While you were looking through your scope on your weapon could you see SG
A: No.
FV 0
Q: How did you know the Iraqi was lunginglowards SGT
A: Becaue the way the Iraqi turned I thought he was attemp e to attack SG1111111,
Q: Describe to me what you saw vvhen the Iraqi lunged?
A: I saw his hepici and shoulders quickly turn to the left and I also saw the Iraqi move forward.
Q: Did the Iraqi say anything when he was lunging forward?
A: .1¦1o.
Q: Did the Iraqi have anything covering his eyes?
A: No.
Q: How far away from the detainee were you standing?
A: About one to two meters.
Q: What is the name of the scope you have on your weapon?
A: M68.
Q: What is the M68 used for?
A: It is an aiming device and it puts a red dot on the target.
0 17 8 7 9
Q: Does the M68 have any type of magnification?
A: No.
Q: Why were you looking through your scope o
pon when you were so close to the detainee? INITIALS OF PERSON MAKING STATEMENT:
PAGE 2 OF 5 t PAGES
A n.I i , . te . 1. EXHIBIT 112
040-o-two6 (1- / 4675

STATEMENT OF PFC RICHMOND TAKEN AT FOB Warrior DATED 1 March 2004 CONTINUED
A:
Because over the last week are chain of command stressed to us that anytime we took a shot it had to be aimed. Plus, I wanted to make sure I was takin an aimed shot so I did not shot SGT

A:
Right.

Q: If you did not know where SGT as why did you fire your wea
A: When I went to fire my weapon I open left eye and saw SG tanding on the side.
Q: What type of firer are you?
A: Right handed.
Q: Which eye do you use to site in an object? (9(0:2-

Q: You say you observed SGT efore you fired you weapon, did you see his hands?
A: No, I just took a quick glace to confirm SG ut of the way.
Q: Why did you shdot the detainee?
A: I felt like he was attempting to kill SGT111111.
Q: Why did you feel like the Iraqi was going to kill SGT11111111111
A: He originally resisted being flexi-cuffed, we did not search him yet, the raid being conducted focused on old Iraqi army personnel wh not like coalition forces, and I did not know he was flexi-cuffed. So when the Iraqi lunged towards SGT I took that as a direct threat against his life.
Q: Was the detain searched prior to being flexi-cuffed?
A: No.

(61 '7,

Q: Why wasn't e tainee search before he was flexi-cuffed?
A: I don't know. I w s just the security personnel.
Q: Why did you not now the detainee was flexi-cuffed?
A: Because SGT never gave me any indication the Iraqi was flexi-cuffed and I never saw the flexi-cuffs on the Iraqi.
Q: When you shot your weapon was it your intent to kill the Iraqi?
A: Yes.
Q: After the Iraqi was'shot did you recover any weapons from him?
A: No.
Q: Why did you shot the Iraqi?
A: He made a threat against SGT
Q: Describe to me what your definition of lung is?
A: Shift movement towards something.
—Z.
Q: What threat did you perceive the Iraqi was making?
A: I though he was going to stab SG1111.1111.
Q: What was the Iraqi wearing?
A: He was wearing a brown ioat, which was open in fr nt. I can't rememb anything else.
Q: Why did you think the Iraqi was going to stab SGT
A: Because I could not see his hands so I thought he wasn flexi-cuffed.
Q: Did the Iraqi make any indication he was pulling somethinf out of his coat?
A: I could not see that area.
Q: Did you see the Iraqi lung at SGT
A: Al I saw was the Iraqi moving towards SGT
Q: Could it be possible that SGT was pulling the Iraqi?
A: Yes.
Q: Did you see SGT ull t e Ira
tirelt
A: No, because I cou rarms.
Q: When the Iraqi lunged at SGT hat did you see?
A: I saw the Iraqis head and shoulders move t
Q: How did you know the Iraqi lunged at SGT
A: I assumed he was lunging towards SGT because SGT as in the direction the liaqi was lunging to.
Q: Did the Iraqi touch SGT... when he lunged towards him?
A: No.
017880

Q: Was this killing unlawful?
A: No. INITIALS OF PERSON MAKING STATEMENT: PAGE 3 OF 5 PAGES
tie/ft21 uc Alb,
-c-rovel-716,F

STATEMENT OF PFC RICHMOND TAKEN AT FOB Warrior DATED 1 March 2004 CONTINUED
Q: Why wasn't the killing of the Iraqi unlawful?
A: According to the Rules of Engagement card I have it states a hostile intend directed towards coalition forces authorizes coalition forces to use deadly force.
Q: What was the hostile intent directed towards SGOIMEr (C/6) —
A: The way I perceived the situation I thought the Iraqi was going to kill SGT
Q: Do you feel remorseful about killing the Iraqi?
A: No.

(9N-7_,
Q: When did you find ou the Iraqi was flexi-cuffed?
A: When CPT rrived and they began to look at the body.
Q: Why did you eel the raqi was a threat?
A: Because there were hostile forces in the area, he wasn't searched and I did not know he was flexi-cuffed.
Q: When you shot your weapon at the detainee did you know you would kill Om if you shot him?
A: Yes
Q: When did you place your weapon onto fire?
A: After I saw the Iraqi make a sudden movement towards SGTillrala
Q: What type of weapon did you shoot the Iraqi with?
A: M4 Ntqq—
Q: Were you coerced into providing this Matement?
A: No
Q: How were you treated while you were being intersviewed? ..
A: Good # *
#
#
Q: Were you given breaks throughout the interview?
A: Yes
Q: Do you have anything else to a to this statement?
A: No.///End of Statement/// Etsci

kJ
017881
INITIALS OF PERSON MAKING STATEMENT:
1-1— PAGE 4 OF 5 PAGES
EXHIBIT
F-vc Ogiketk 111-C 0 dy
00q0.atenibefr 710
STATEMENT OF Edward L. RICHMOND TAKEN AT FOB Warrior DATED 1 March 2004 CONTINUED: STATEMENT (Continued)
AFFIDAVIT
Edward L. RICHMOND V, HAVE READ OR HAVE HAD READ TO ME THIS STATEMENT
WHICH BEGINS ON PAGE 1 AND ENDS ON PAGE 5. I FULLY UNDERSTAND THE CONTENTS OF THE ENTIRE STATEMENT MADE BY ME. THE STATEMENT IS TRUE. I HAVE INITIALED ALL CORRECTIONS AND HAVE INITIALED THE BOTTOM OF EACH PAGE CONTAINING THE STATEMENT. I HAVE MADE THIS STATEMENT FREELY WITHOUT HOPE OF BENEFIT OR REWARD, WITHOUT THREAT OF PUNISHMENT, AND WITHOUT COERCION, UNLAWFUL INFLUENCE, OR UNLAWFUL INDUCEMENT
/
(Signature orPertbn Making Statement)
WITNESSES: Subscribed and swom to before me, a person authorized by law
to administer oaths, this I St day of March, 2004
atV Ira
ORGANIZATION OR ADDRESS
(Signature o ersig at
(Typed Name of Person Administering Oath)
ORGANIZATION OR ADDRESS

Article 136, UCMJ
(Authority To Administer Oaths) 882
INITIALS OF PERSON MAKING STATEMENT

PAGE 5 OF 5 PAGES
r
ft)/ OS(I'ck4 1 li1 4-e 044

RIGHTS WARNING PROCEDURE/WATVER CERTIFICATE
AL:THOR1TY: Title 10, United States Code. Section 3012(g)
PRINCIPLE PURPOSE: To provide conunanders and law enforcement oMcials with means by which
information may be accurately identified.
ROUTINE USES: Your Social Security is used as an additIonal/alternative means of identification
to facUltate filing and retrieval.
DISCLOSURE: DIsclosm... of your Social Security Number Is voluntary.

LOCATION: Kirkuk, Iraq2DATE: 29 Nfar 042TLME: 10 0 5 FILE NUMBER: 0040-04-CID469-79638 NAME (Last, First NII): RICEMOND, EDWARD L. 2SSAN: in= GRADE / STAT1 PFC ORGANIZATION OR ADDRESS: EEC. 1 /27th Infantry Battalion, FOB McHenry, APO. AE 0411441
RIGHTS WAIVER/NONWAIVER CERTIFICATE
-
The investigator whose name appears below told me that he:she is with the United States Army Criminal Investigation Command as2ecial Agent and wanted to question me about the. follorA offense(s) of which I am suspected2• • Murder: False Official Statements: False Swearing Before he .she asked me any questions about the offense(s), however, he'she made it clear to me that I have the following rights:
I. I do not have to answer questions or say anything.
Anything I say or do can be used as evidence nainst me in a criminal trial.
(For personnel subject to the UCMJ) I have the right to talk privately to a lawyer before, during, and after

qaestionine and to have a lawyer present with me durin2 questioning. This lawyer can be a civilian lawyer I arrange for at no expense tc.-) the Government or a military lawyer detailed for me at no expense to me, or both or -
(For civilians not subject to the UCMJ) I have the right to talk privately to a lawyer before, during. and after questioning and to have a lawyer present with me during questioning. I understand that this lawyer can be one that arrantze for at my own expense, or if I cannot afford a lawyer and want one, a lawyer will be appointed for me bei.c.re
/0 any questioning begins. VV.-, 4. If I am now willing to discuss the offense(s) under investictation, with, or without a lawyer prese;it. h.ave the 7-to_ht to stop answerin2 questions at any time or speak privately with a lawyer before answering_ further. e!2:ht waive; below.
5. Cava:LENTS:
./L1 understand my rights as stated above. I am now willina to discuss the offense(s) underek. tigation and make a
statement without talkina to a lawyer first and without havina a lawyer present ¦ h meV--

„ t I
,L..1.
Signature of Interviewee
Witness-- 2
-,,anature of W'itne,, • igt
S_
22"2BN
_APO, AE 09342

NON-WAIVER CERTIFICAV
I do2ant2up my rights I want a lawyer: 2I (lc not 1,1/ant to be fiestioned or say a -..ything: El

Simature of Interviewee: 2
DA Form 3881-E
017883
FOR OFFICIAL USE ONLY
VE3
SWORN STATEMENT
LOCATION: Kirkuk, Iraq FILE NUMBER: 0040-04-CID469-79638 DATE: 29 Mar 040 TIME: IL{isi NAME: RICHMOND EDWARD L. SSAN: GR_ADE/RANK: PFC ORGANIZATION OR ADDRESS: HHC, 1/27th Infantry Battalion, FOB McHenry, Kirkuk, Iraq,.
APO, AE 09347
, Edward L. RICHMOND, want to make the following statement under oath: I provided a sworn statement on 1 Mar 04 concerning the incident in which I shot and killed an Iraqi farmer during a raid. Looking back on the entire situation, I would like to make some corrections to that statement at this time. Prior to the raid, the rules of engagement were put out that if zi ti. one tried to flee the villiage, we were to shoot them. After arriving to the villiage and settins2. iip. 1 could hear some shotgun blasts going off in the villiage where t 2'd was taking place. I t1,:o noticed an Iraqi male walking his cattle away from the 2ge. Since the rules of en -gement werL put out that 1,ve were to shoot anyone fleein2e villiage, I asked if I should shoot the farnier .)ecause he was leaving the village. I was to2SGT1111111110 not shoot him. About an hour 2r. someone, maybe CPT 2put out over the radio to apprehend all males leaving th villiage. At that time, we decided to apprehend the farmer. Myself and alar.ach had a set of flexicuffs and began walking into the field where the farmer was still with his cattle. My adrenaline was already pumping becat_.....,
ise of the raid and then even more so as we approached the farmer to apprehend him. Myself andIIIIIIIIIgldecided thatillMwould place the flexicuffs on the farmer, while I stood guard. The farmer seemed to be directing our attention to
0-2
something else as we approached him, and then as SGTIINgabegan placing the flexicuffs on iii(° him, he started resisting. Already at that point I had a lot of adrenaline going through my s:. stem and2117111111 shouted at me to point my rifle at the Iraqi's head. I then pointed my rifle his
,::.
head a id he stopped resisting. In my previous statement I put in that I did not realize the 1, ,,,ii was wearii flexicuffs when I shot him. LOoking back now, I tirik it would be more accurate to say that I d',d not register in my mind that he was wearing flexicuffs. The adrenaline was affecting my
.,
perc..Lption of the situation. I remember seeing 2ytting flexicuffs on him and I saw hiiy with his arms behind his back as I pointed my rifle a iis iedd. I had to know he had on flexicu:Is before I shot him but it just did not r *ster in my mind at the time. Also in my previous stateinent, I said that Ole Iraqi lunged at2in, looking back on it now, I don't think the Jr qi actually linked. \\That ha ened is2turned him to walk away; however, becauie of the
adrenaline, Whela moved the Iraqi out of my sight picture, I just reacted 2shooting him. I would have nevr-shot that man had I been thinking clearly. I would neyer-s oot someone who was wearing flexicuffs irt-regi@ered in my mind that they were W Finrthem. It is everything
combined between the pressure of theTai-d—, tlfelizwrtiles o engagement, the Iraq resisting his detention, and the whole situation in general that caused me to not be react like I normally would. 6, v,
r(( PAGE 1 OF 2vPAGES2LNHTIALS OF PERSON MAKING STATEMENT k.-"
017884
Ca-
DA Form 2823-E FOR OFFICIAL USE ONLY

Expeeir_Te Lk
DOD-041065
a,
Sworn Statement of PFC E(..,,ard L. RICHMOND, taken at Kirkuk, Iraq, 29-Mar-04,
CONTINUED:
A. PFC RICHMON 1.4(`)) 2
Q. Did you hear2ell you "he's good, let's go"?
A. No. He might have said it, but if he did, I did not hear it because of the adrenaline and the
situation. It just did not register.

Q. How do you feel you were treated today?
A. Good.
Q. Were you given the opportunity to drink, eat, and use the restroom today?
A. Roger.
Q. Is there anything else you would like to add to this statement?
A. No///End of Statement/// 6
AFFIDAVIT
al, Edward L. RICHN1OND, have read or have had read to me this statement which begins on page 1 and ends on page 2. I fully understand the contents of the entire statement made by me. The statement is true. I have initialed all corrections and have initialed the bottom of each page :ontaining2statement. ,,I have made this statement freely without hope of benefit or reward, .ithout thrett of punishAnt, and without coercion, unlawful influence or unlawful inducement.Cg.
„.•
(Sigria e of Personl\faking Statement)
Subscribed and sworn before me, a
person authorized by law .to administer
oaths, this 29th day of March 2004,
at Kirkuk, Iraq
Witness
Lie—v) (62ure o rs2nisterinv, Oath)
(Typed name o2 Oath) _Article 136 (b) (4) UCMJ (Authority to Administer Oath)
INITIALS OF PERSON MAKING STATEMENT 1?,?-,2 PAGE 2 OF 2 PAGES
fE-.017885
DA Form 2823-E
FOR OFFICIAL USE ONLY2
EXHIBIT LC
DOD-041066
0040-0(fr WWI-796n
SWORN STATEMENT
For use of this form, see AR 190-45; the proponent agency Is ODCSOPS

PRIVACY ACT STATEMENT
AUTHORITY: Title 10 USC Section 301; Title 5 USC Section 2951; E.O. 9397 dated November 22, 1943 (SSN).PRINCIPAL .
To provide commanders and law enforcement officials with means by which information may be accurately Identified. ROUTINE USES:
Your social security number is used as an additional/alternate means of Identification to facilitate filing and retrieval. DISCLOSURE: Disclosure of your social security number is voluntary.
1. LOCATION
2. ph-rf (nYYYMMDDJ 3. TIME 4. FILE NUMBER
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8. aRGANIZATION OR ADDRUS
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, WANT TO MAKE THE FOLLOWING STATEMENT UNDER OATH:
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THE BOTTOM OF EACH ADDITIONAL PAGE MUST BEAR THE INITIALS OF THE PERSON MAKING THE STATEMENT, AND PAGE NUMBER I MUST BE BE INDICATED.
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STATEMENT OF TAKEN AT DATED
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* PAGE z DA FORM 2823, DEC 1998
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SWORN STATEMENT
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For use of this form, see AR 190-45; the'proponent agency is ODCSOPS
PRIVACY ACT STATEMENT AUTHORITY:VTitle 10 USC Section 301; Title 5 USC Section 2951; E.O. 9397 dated November 22, 1943 (SSN). PRINCIPALVTo provide commanders and law enforcement officials with means by which information may be accurately Identified ROUTINE USES:VYour social security number is used as an additional/altemate means of identification to facilitate filing and retrieval. DISCLOSURE:VDisclosure of your social security number is voluntary.
1. LOCATIOV„...k e7 2. DATE 1YYYYMMDD) 3. TIMEV, 4. FILE NUMBER
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STATEMENT OF TAKEN AT DATED
9. STATEMENT (Continued)
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INITIALS OF PERSON MAKINASTVERT PAGE 4(/ OF2PAGES
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.
017389
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WHICH BEGINS ON PAGE 1, AND ENDS ON PAGE . I FULLY UNDERSTAND THE CONTENTS OF THE ENTIRE STATEMENT MADE BY ME. THE STATEMENT IS TRUE. I HAVE INITIALED ALL CORRECTIONS AND HAVE INITIALED THE BOTTOM OF EACH PAGE CONTAINING THE STATEMENT. I HAVE MADE THIS STATEMENT FREELY WITHOUT PE OF BENEFIT OR REWARD, WITHOUT THREAT OF PUNISHMENT, AND WITHOUT COERCION, UNLAWFUL INFLUENCE, 0 LAWF L IN CI, ENT/
. •
Signatur f Person Making Statement)

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WITNESSES: Subscribed and swom to before me, a person authorized by law to administer oaths, this day of at
SS ,
ORGANIZATION OR ADDRESS (Signature of Person Administering Oath)
(Typed Name of Person Administering Oath)
ORGANIZATION OR ADDRESS (Authority To Administer Oaths)
INITIALS OF PERSON MAKING STATEMENT PAGE S— OF PAGES
V1.00
PAGE 3, DA FORM 2823, DEC 1998
_V11 A V. IVIV.V..-
1 PRIVATE FIRST CLASS EDWARD L. RICHMOND JR., was called by the
2 Investigating Officer to make an unsworn statement, and testified as
3 follows:
4

.QUESTIONS BY THE INVESTIGATING OFFICER
6.Please state your full name, grade, organization, and

Q..
7 branch of service please.
8.Edward L. Richmond, Jr., E3, PFC, HHC, 1-27 Infantry, sir.

A..
9.How long have you been in Iraq now?

Q..

A..
11.Okay, and you've been with the Wolfhounds the whole time?

.Approximately two and a half months now, sir.

Q..
12.Roger, sir.

A..
13.How many missions of this type, cordon and search or TCP

Q..

14 missions, have you been on since you've been with the Wolfhounds in
.

Iraq.
16.I'd say approximately ten, sir.

A..
17.Prior to the day in question, 28 February, how many -- or

Q..
18 have you ever provided security during -- while attempting to take
19 someone into custody?

.

• Roger, sir 21.Roughly how many times have you've done that excluding the
Q..

22 28th?
23.Twice, sir.

A..
24.On your sworn stacement on the 29th of March, you stated

Q..
.

that --

017891
1

2 pe
\`6
DOD-041072

0

DC: May I ask for a minute to get that out for him, sir?
.

1.

2 IO:.

Certainly.
.

3 [The defense counsel retrieved the statement.] .2
4 IO: What I'm going to do is cross reference it to -- the 29
5 March is the one where you clarify your testimony from the previous

6 sworn statements.
.

7 ACC: Roger, sir.
.

2
8 4• Originally you had said the Iraqi had lunged at Sergeant
9
Cr)

10.Roger, sir.

A..1 124•2And then in the statement you now have before you, you 12 changed it to read that Sergeant.u t have been turning the
(L.

13 Iraqi, is that correct? Is that what you meant?
.

That's - its like my perception of the events -- since I
15 know all the facts now, sir, knowing everything, hearing testimony,

14 A..

1461-7_
16 reading statements, roger, I would say Sergeant was turning
17 and moving the Iraqi, sir, but that's not what I thought or knew at
18 the time, sir.
19.I understand. So this change and understanding of the

Q..
20 facts came over time as you reran the events?
21.

DC: Sir, I'll be able to address some of that in the closing
22 argument to kind of put some of the missing pieces together, sir.
23.Okay.

IO:.

.

2 017892
1.During this time the adrenalin, the pressure, the stress is
2 affecting your perception, according to your statement. Now the
3 moment the Iraqi moved out of your sight picture you stated that you
4 reacted by shooting him, just going off of your statement. Now you
5 consciously took the weapon off of safe and squeezed the trigger;
6 based off of what you said, "He moved out of my sight picture and I
7 reacted by shooting him."
8.That's one way of putting it, sir. I wouldn't say that has

A..
9 everything involved in the situation present when it's stated like

10 that, sir, but --
.

11.Okay, how would you put it?

Q•
12.I mean the reason I:shot him, sir, is the way I saw it he

A..

13 was attacking Sergeant alb That was my perception of the events
14.

and looking back on it,.it's easy to say okay, likkant

15.was pulling the guy and, you know, he might have tripped but
( (to\ -Z-
16 the\-way I saw it this guy was jumping at Sergeant"...
/
(L)/6)-7.----

Q..
18 your - you're going to discuss some of that other stuff in your
19 closing statement so -- the rest of it is in your statement. Would
20 you like to add anything?
21.Sir, looking back on the statement now I think it appears

17.Okay. That's really all I wanted to disc ss based off of

A..
22 somewhat misleading. Towards the bottom of it says, and I quote "I
23 had to know he had on flexicuffs before I shot him but it just did

3

1 not register in my mind at the time." That can be misinterpreted,
2 sir, like the way I meant that to sound and to mean, the way it means
3 to me, sir, is that I had to know this if I was to be able to address
4 the situation properly. If I was to be able to deal with a detainee
5 tripping and falling I would have to know that he was detained and
6 flexicuffed, and by saying it did not register in my mind at the time
7 that means I did not know, sir. I could not take everything in
8 consideration being that I did not know these facts at the time, sir.
9 It was like a split second decision, I just had to react.

.

10.

4. Okay. So you never saw the back of the Iraqi now?
11.I -- his back was facing me, sir, but I did not see his

A..
12 arms or hands.
13.Why was that?

Q..
14.Because the way I was facing him, sir, I was f4cingtthe

A..
15 fr,ont ri'5ht of the person and Sergeant.nd the person's hands
16 were, like, out of my sight picture becantb_ctuld ee the guy's
17 chest right there and then once SergeantAIIIIIIPtold me to raise my
18 weapon to his head, "if he moves, fucking shoot him" that's where I
19 was looking, sir. I was very close to him. I was two or three feet
20 away, like, just the length of the barrel, a little bit more for
21 space, and I was just looking at his head, sir, just like this. So,
22 I mean, when he turned around swiftly like that I just didn't see it,
23 sir, with everything there.

4

.017894
1.Okay and you didn't hear SergeantIIIIIII,say anything about

Q..

2 he's good to go or anything of that nature? C9 MQ
3.Negative, sir.

A..

.

4.How many times did you make eye contact with Sergeant

Q•

5 1111111/

6.The only time I remember making eye contact with him is

A..

7 when the guy started resisting putting on his flexicuffs because he

8 had his hands behind his back like this, and when SergeantAIIIIIIIP

9 noticed the guy was resisting he looked into my eyes and that. s when

10 he basically screamed at me. He was like, "Put your fucking weapon

11 on his head, if he fucking moves shoot him" like screaming at me,

12 "Roger, sergeant" you know, and that's when I did it, sir.

13.Do you have anything else you would like to add?

Q..

14.Negative, sir.

A..

15
16
17
18

19 I certify that this is a true and accurate verbatim transcript of PFC
20 Richmond's testimony during the Article 32 Investigation in the case
21 of U.S. v PFC Edward L. Richmond, Jr.
22
23
24
25
26

27. SSG, U.

rmy

.

28 Senior Court Reporter

.

5 017895
Bates pages 17896-17898, which are photographic
exhibits, are nonresponsive based on application
of the Judge's specific and applied rulings.

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017904

Bates Page 17905, a photographic exhibit, is a duplicate found at Bates Page 17898 which is nonresponsive based on applications of the Judge's specific and applied rulings.
APPELLATE EXHIBITS

017906
Compose Message Page 1 of 1
To: "Qmarmysrill [SMTP2 us.army.milbjenri
Cc: us.army.mil [SMT2 us.army.mil];Hall
Subject:V'Production of Mr. Richmond for U.S. v. Richmond
Counsel -

have carefu.

con idered both sets of pleadings on the issue of

:01,1
wheth r..
must be produced for trial or not. I find that Mr.
has relevant, material, and necessar.

'dence to present on
I e alf of the accused, that to deny Mr..presence is to deny a
substantial right of the accused under Article.

, UCMJ, and that there
is no adequate substitute for his live testimony hich would enable the
court-martial to determine an appropriate sentence.

qtg..L

(d
Significant to my decision were the following fa ts anX conclusions: Mr.
is willing to pay his way to Kuwait. Mr. alliMs willing to .
a old-harmless agreement; he knows of and accepts the risk of.

.'
co ing into theater. The accused is facing a murder charge, and life .

.:

.

prisonment. There is no one else on earth, arguably, who knows the .
accused better than his father. It is my duty to ensure that this court-
martial is conducted in the same manner as any other court-martial held .

t;.d
017907
0 )
https://lidwzbintra.lid.army.mil/exchange/forms/ipm/note/cmpMsg.asp?obj=..... . 7/22/200
Counsel -
4 •
I have carefully considered both sets of pleadings on the issue of whether Mr.
must be produced for trial or not. I find that Mr. 2as relevant material
necessary evidence to present on behalf of the accused, hat to deny Mr
presence is to deny a substantial right of the accused un Article 46, UCM
there is no adequate substitute for his live testimony which ould
martial to determine an appropriate sentence. 2
(L)(61 r-z-
Significant to my decision were the followin f ts and conclusions: Mr.
willing to pay his way to Kuwait. Mr.2is willing to sign a hold-harm ess agreement; he knows of and accepts the risk of coming into theater. The accused is facing a murder charge, and life imprisonment. There is no one else on earth, arguably, who knows the accused better than his father. It is my duty to ensure that this court-martial is conducted in the same manner as any other court-martial held worldwide, whether the unit is deployed or not. Civilian counsel have fairly routinely been flown in on milair to conduct trials in theater. Civilian counsel also hold the military harmless for their time in theater. The right of equal access to witnesses and evidence is a substantial right, which can not be automatically refused because the unit is deployed.
I expect that Mr2will be present for trial in Tilcrit on 3-5 August 2004.
Cases I considered include the following:
U.S.
v. Thornton, 24 C.M.R. 256 (CMA 1957)

U.S.
v. Scott, 5 M.J. 431 (CMA 1978)

U.S.
v. Combs, 20 M.J. 441 (CMA 1985)

U.S.
v. McDonald, 55 M.J. 173 (2001)

Thanks.
LTC111/1 (9(k)1,
017908

1111111111FLTC (Judge)
From: us.army.mil
Sent: 17 2004 2:37 PM
To:
Cc:
Subject: n o ompel Production of Overseas Witness
Mtn to Compel
Production.pdf Ma'am,

As referenced in an e-mail sent yesterda.

tached lease find a defense Motion to Compel
Production of PFC Richmond's father,

CPT, JA

Trial Defense Counsel.

(411-1

Tikrit Branch Office (FOB Danger

Region IX

DNVT:.362

9383 or.
E-mail:.us.army.mil

ATTENTION: This electronic transmission may contain attorney work-product or information
protected under the attorney-client privilege. Portions of this transmission may contain
information protected from disclosure under the Freedom Of Information Act, 5 USC 552. Do
not release this information without prior authorization from the sender. If this has
inadvertently reached the wrong party, please delete this information immediately and
notify the sender.

017909
1
UNITED STATES
v. MOTION TO COMPEL
PRODUCTION OF OVERSEAS
PFC Edward D. Richmond, Jr'. WITNESS

U.S. Army
Headquarters and Headquarters Co.,
1st Battalion, 27th Infantry Regiment
25th Infantry Division (Light) 17 July 2004
APO AE 09347

COMES NOW the accused, PFC Edward L. Riclunond, Jr., by and through counsel, to
move for the production of Mr. msamarair, pursuant to Rule for Courts-Martial
(R.C.M.) 703, R.C.M. 906(b)(7), and R.C.M. 1001(e). (9(0,

A. RELIEF SOUGHT
The defense respdctfully requests that the defense Motion to Compel Production of Overseas Witness be granted and that 2 , be permitted to come to Iraq to testify at his son's General Court-Martial. 2
(6) (.9 -2-
B. BURDEN OF PROOF & STANDARD OF PROOF
As the proponent of the motion, the defense bears the burden of proof by a preponderance of the evidence. R.C.M. 905(c). The standard of appellate review for denials of requests for the production of witnesses is abuse of discretion. See United States v. Reveles, 41 M.J. 388, 393-94
(C.A.A.F. 1995).
C. FACTS
On or about 15 June 2004, the government, the defense, and a representative of the trial judiciary informally agreed upon 1-3 August 2004 as the trial dates for the above-captioned case.
On 17 June 2004, the defense submitted to government counsel a request for the production of PFC Richmond's fatherall.11111111111111po testify at his son's General Court-Martial.2
(L) (Co\ -7-
On 2 July 2004, fifteen days after the submission of the defense re uest, government counsel indicated that the govenunent would not produce Mr. 2. On that same day, the defense submitted a request for production to the Commanding Gen ral of the 1st Infantry
Di ision, the General Court -Martial Con yelling Authority [liereina ft r 'convening authority].
(9(61-2
017910

United States v. PFC Edward L. Riclunond, Jr.
Motion to Compel Production of Overseas Witness

On 4 July 2004, government counsel notified the defense of the witnesses it intends to call
at trial. Two of the listed witnesses are active duty service members stationed at Ft. Hood,
Texas. The government will produce those witnesses for trial.

On 16 July 2004, two weeks after the submission of the 2 July defense request, the
convening authority denied the defense request for production o

((31-Z-
t VMINis willing to come to Iraq for his son's court-martial. He is willing to do so at his own expense. He will reimburse the government, if necessary, for any transportation, meals and/or lodging arranged at government expense. He is willing to sign a government-drafted "hold harmless" agreement in order to travel to Iraq.
The defense requests judicial notice of the fact that the government does not have federal
subpoena power to compel production of witnesses at a Gbneral Court-Martial in Iraq.

the only overseas witness of whom PFC Richmond requested
government production.

If PFC Richmond is convicted of the charge for which he stands trial, he is facing a
maximum confinement of life in prison.

D. LAW
The defense relies on the following authorities in support of its motion:
R.C.M.
703

R.C.M.
905

R.C.M.
906

R.C.M.
1001
Weiss v. United States, 510 U.S. 163 (1994)
United States v. Breeding, 44 M.J. 345 (C.A.A.F. 1996)
United States v. Reveles, 41 M.J. 388 (C.A.A.F. 1995)
United States v. Harmon, 40 M.J. 107 (C.M.A. 1994)
United States v. Credit, 8 M.J. 190 (C.M.A. 1980)
United States v. Williams, 3 M.J. 239 (C.M.A. 1977)

E. EVIDENCE
The defense requests consideration of the following.documentary evidence, attached to this
7
motion:
1. Memorandum for Commander, 1st Infantry Division, from CPT
dated 2 Jul 04 (with Enclosures A & B)

(9(61
2
017911
DOD-041090
United States v. PFC Edward L. Richmond, Jr.
Motion to Compel Production of Overseas Witness

C9(L\r7—
2.
Memorandum for Commanding General, 1st Infantry Division, from LTCraripated 15 Jul 04

3.
Memorandum for CPT/MM. Trial Defense Services, from MG John

R.S. Batiste, dated 16 Ju 04
4. E-mail for CP2 rom Mrs. 111111111111111ated 6 Jul 04
If the Court requires additional infonnatioit-theAelense respectfiilly re u 2e opportunity tofile a Supplemental Brief to present additional evidenceTailffilaTits to the Court.
F. ARGUMENT
At trial, a criminal accused is entitled to present witness testimony in defense,
extenuation or mitigation. See United States v. Harmon, 40 M.J. 107, 108 (C.M.A. 1994)(recognizing the constitutional right of the defense to call witnesses and to determine which witnesses they want to call). Further established is a criminal accused's right to due process of
law as guaranteed by the Fifth Amendment. See Weiss v. United States, 510 U.S. 163 (1994).A criminal accused is entitled to the production of witnesses at trial to the same extent as thegovernment. R.C.M. 703(a); see also United States v. Breeding, 44 M.J. 345, 353 (C.A.A.F.
1996)(Sullivan, J., concurring)(finding that "[a] servicemember has the right to 'compulsory
process for obtaining witnesses in his favor' under the Sixth Amendment").

Production is required when a witness' testimony is "relevant and necessary." R.C.M.
703 b2party must set forth "a synopsis of the testimony" and "reasons why the
ness' personal appear 2
will be necessary." R.C.M. 703(c)(2)(B)(ii). The testimony of Mr.s relevant as it is2cessary when it is not cumulative and when it would contributeto a party's presentation of the c e in some positive way on a matter in issue."
See, e.g., United
States v. Credit, 8 M.J. 190, 193 ( .M.A. 1980 • United States v. Williams, 3 M.J. 239 (C.M.A.
1977). Further, the testimony of Mr 2

"is necessary for consideration of a matter of
substantial significance to a determination of an appropriate sentence." R.C.M. 1001(e)(2)(A).
For presentencing proceedings, a request for witness production is evaluated by additional
factors outlined in the Manual for Courts-Martial. R.C.M. 1001(e). Ultimately, a balancing of

the factors of R.C.M. 1001(e)(2)(E) shows that the significance of • - • sal appearance by Mr.
eighs any practical difficulties of producing Mr.

1. Costs of producing the witness. In his 16 July 2004 denial of the d fense request for production, the convening authority does not allege cost as a prohibitive fac r in the production
of2
. The government has conceded in verbal discussions ,th the cost of producingMr. not a factor. Indeed, if necessary, 2p y for all costsassociated with travel, food and lodging in Iraq.
2. Timin of the re uest for roduction of the 2itness.
e defense submitted its initial
re est for the production of Mr. 2er six2
ee prior to the scheduled start of the
court artial. All significant delays are attn utabl 2
the government and should not be held
3
017912

United States v. PFC Edward L. Richmond, Jr.
Motion to Compel Production of Overseas Witness

against PFC Riclunond. Further, Mr. NWalready has a reserved seat on a flight into
kuwait with ample time to then travel to Iraq.

.
3. Potential delay in the presentencing proceeding that may be caused by the production of
the witness. The defendasserts that timely action on the pending request7will cause no delay inthe presentencing proceedings.
4. Likelihood of significant interference with military operational deployment, mission accomplishment or essential training. The defense asserts that the production of Mr.~ causes little interference with such unspecified missions.
The logistics cited2e convening authority as a reason to deny production do not
outwei the presence of Mr.2t trial. Logistical coordination is minimal. Mr.

'read2Ids a erved seat on a flight from Louisiana to Kuwait City. Once inKuwait City, Mr.2will be met by a paralegal from Camp Doha who will escort him onto the military base and make arrangements for him to take a military C-130 flight into Balad or Baghdad. If Mr/WM flies into Balad, he will be met by the assistant defense counsel who will arrange for them to fly together by military Black Hawk to Tilcrit. If Mr flies into Baghdad, he will be met by a paralegal from the Camp Victory Trial De ense Services Office who will arrange for him to fly to Tilcrit with the regional defense counsel. In Tikrit, Mr. NCI ~will be met by defense co el and PFC Riclunond in an upannored military vehicle.Upon his initial arrival in Iraq, Mr.2ill borrow an extra Kevlar and OTV with SAPI plates that will be returned to the government upon Mr.11111111, departure from the Central Command (CENTCOM) area of operations (AO).
Worth noting is that the "logistics," which are of such concern to prohibit Mr.41111111111.
attendance at trial, will not prevent the goverrunent from bringing two of their own witnesses
into the I' Infantry Division AO to testify against PFC Richmond.

)
If the venue for this case was the continental United States or PFC Richmond's regular
duty location at Schofield Barracks, Hdvaii, MrarMacould travel to the site of the trial
and testify without the permission of the government. Mr111111111,ould travel at his own
expense and stay in a hotel of his choosing. He could arrange for his own meals and other

amenities.
The venue of this case is Tilcrit, Iraq. The government selected this venue. By trying this
case in Iraq, the government has not simply limited the volunt 2articipation by civilian

\\overseas witnesses, but rather has strictly prohibited it. Mr. 2ants to testify for his
ibk, but as a U.S. citizen he can not simply book a commercial fl. t into Iraq, lease a rental car,
driv‘c,t,b,Tilcrit, and check into a local hotel. In order to enter into the CENTCOM AO, he must
have thespermission of the U.S. govenunent. It is this permissio that the govermnent refuses to
give. The gclVerwent need only issue Invitational Travel Orde (ITO) for Mr2to
testify at trial at hiabAmexpense.

4
017913

United States v. PFC Edward L. Richmond. Jr.
Motion to Compel Production of Overseas Witness

Military personnel and civilian dignitaries enter the 1st Infantry Division (1lD) AO on a regular basis for, arguably, far less important missions. Civilian musicians and rock bands, with no connection to the military, are invited by the convening authority into the AO for the morale of the troops. Civilian representatives of the former Coalition Provisional Authority have flown into the lID AO for simple `meet-and-greet' sessions with soldiers at the dining facility. These invitations are at the discretion of the convening authority. Yet, the government is choosing to prevent Mr from testifying in person at his son's trial, in which PFC Richmond is facing life in prison, f convicted.
1001(e)(2)(C) acknowledges that alternate forms of testimony may bsappropri#te in certain cases. However, the Rule also recognizes that there may exist "an extraordinaiy Cise when such a stipulation of fact would be an insufficient substitute for the testimony." The pending case is such an extraordinary case. PFC Riclunond just turned 21- ears-old. He is extremely close to his family. If PFC Richmond is convicted, Mr • e defense's key sentencing witness. Mr. the only witness that can and will t. .bout PFC Richmond's upbringing; his relations ip with his family; his grades in high school; his development to becoming a young adult. ill testify about why his son joined t Army and his progression as a young sold er. Mr. ill testify as to PFC Riclunond's significant rehabilitative potential in societ . This testimony is all unique to MLA',/,' when the, court considers that the accused is nly 21-years-old with limited world experience. The only other defense sentencing witnesses w be military witnesses who have lcnown PF Richmond for no more than approximately 2 years.2
(9(Q—Z—
Alternate forms of testimony are not appropriate before t e enlisted panel in front of which PFC Richmond has elected to be tried. A stipulation of fact or stipulation of expected testimony can not convey a father's excitement in his son's joining the military, his pride in his son's deployment to Iraq, his confidence that his son can be rehabilitated, and his certainty that his son can recover in society from the stigma of a murder conviction. Neither telephonic nor video-teleconferencing (VTC) technology provides an adequate substitute. Both audio connections are marginal at best. The audio has a delay in transmission from the smker to the listener. With the question and answer format of trial examination, this form of te§timony Will inevitably contain unavoidable talking over one another and repetition of questions and answers. Such testimony begs of judicial inefficiency. Further, the video feed is not guaranteed to match the audio feed, resulting in the audio and video being projected out of sync. The electricity in the courtroom is not reliable to ensure such testimony as an adequate substitute. If the electricity shuts off for even one second, the audio and video feeds will be termired. A new telephoneNTC call must then be initiated. Understandably, power outages have no set schedule, however, to force PFC Riclunond to proceed to trial under such circumstances invites prejudice to the soldier and judicial inefficiency.
5
017914

t-n% k
United States v. PFC Edward L. Richmond. Jr. Motion to Compel Production of Overseas Witness
G. CONCLUSION
The significance of the personal appearance of the witness to the determination of an appropriate sentence, when balanced against the practical difficulties of producing the witness, favors production of the witness. R.C.M. 1001(e)(2)(E). The defense Motion to Compel Production of Overseas Witness should be granted and the government should authorize Mr.
o travel to Iraq to testify at his son's General Court-Martial.
RESPECTFULLY SUBMITTED:
CPT, JA Trial Defense Counsel

(.9(kk
I certify this I served this defense Motion to Com el Production of Overseas Witness on the government trial counsel via e-mail at
us.army.mil and on the military judgevia e-mail on 17 July 2004.
C6)(c)--z
1.111111.15
CPT, JA Trial Defense Counsel
6
017915
DOD-041094
DEPARTMENT OF THE ARMY
UNITED STATES ARMY TRIAL DEFENSE SERVICE
REGION IX, FOB DANGER BRANCH OFFICE
APO AE 09392

REPLY TO
ATTENTION OF:

2
AETV-BGJA-TDS 2 July 2004
MEMORANDUM THRU StaffJudge Advocate, ist Infantry Division, FOB Danger, Tilcrit, Iraq, APO AE 09392
FOR Commander, 1 st Infantry Division, FOB Danger, Tikrit, Iraq, APO AE 09392
SUBJECT: Request for Production of Overseas Witness — U.S. v. PFC Edward L. Richmond, Jr.
(-6)10 —Z-
1.
The defense requests government production of411111111.1111111111111111.111!2 o testify at his son's court-martial beginning on 1 August 2004. PFC Richmond will stand tria for one charge of murder. If convicted, he faces a maximum punishment of life in prison.

2.
Defense counsel submitted to the government on 17 June 2004 (enclosure A) a request for the

production o The trial counsel denied this request by e-mail on 2 July 2004 (enclosure B).
LC°)(fr\r'L
C9(.0
3. Mr711111111111, a relevant and necessary witness for the sentencing phase of this case. He is the only witness that can testify to many aspects and areas of his 20-year-old son's life. Mr.
will be the key defense sentencing witness to mitigate a military panel's option to impose t e maximum sentence of life in pris9n. Mr.alfarps the only overseas witness that the defense is requesting.
4'1'2L41(6(
4. PFC Richmond will not waive the right to have his father present as a sentencing witness at
his General Court-Martial. Neither a written stipulation nor telephonic testimony is an adequate . substitute for live testimony when a soldier is facing life in prison.
5.
If this request is denied, the defense requests that you reduce to writing your reasons for the denial of the soldier's request.

6.
POC is the undersigned at DNVT: 553-9383 or via unsecured e-mail at
alialaraffpus.army.mil .

(6\r-
Encl
as
Trial Defense Counsel

017916

UNITED STATES
v. REQUEST FOR PRODUCTION OF
OVERSEAS WITNESS
PFC Edward L. Riclunond, Jr.

U.S. Army
Headquarters and Headquarters Co.,
1st Battalion, 27th Infantry Regiment
25th Infantry Division (Light)

17 June 2004APO AE 09347
The accused, by and through his detailed defense counsel, hereby requests govenunent production of the following overseas witness for the presentencing phase of the proceedings, pursuant to R.C.M. 701(b)(1)(B)(i), 703(a), 703(b)(2) and 703(c)(2) and 1001(e):
ome phone:
Cb) -7_ (c
PFC Riclunond, 20, is the eldest of two children o
r.IIIIIIIrwill testify at the presentencing phase of the proceedings. He is the one witness that can testify about the accused's upbringtng, his family roots, his educationrandlis„, ii.p.a employment experiences prior to joining the military. Mr.111111111rt;timony is relevant to
extenuation and mitigation at any presentencing proceedings. If convicted of the charged offense, his son faces life in prison and Mr estimony is highly relevant in enabli , the military judge or panel to adjudge an appropriate s ence. Mralliiiir presenc triali L.-y.0-C is necessary so lr can provide live testimony about his son, whyhis-son-joi y, and the , pride PFC Riclunond felt at becoming an infantryman and deploying with his unit. Mr. will provide testimony about the type of support his faznily can provide to PFC
/
d about his son's future for rehabilitation.
The defense will provide the govemment with an additional request for government production of witnesses once notified of the names of the witnesses the govenunent intends to call to testify at trial.
Mr. s the only overseas civilian witness whose presence the accused intends to request.
RESPECTFULL1SUBMITTED:
(.--)(47r&

CPT, IA Trial Defense Counsel
Enclosure A
017917
DOD-041096
CERTIFICATE OF SERVICE

I certify that on 17 June 2004 this defense Request for Production of Overseas Witness was served on the government via e-mail to1111.1111111rus.army.mil .
e;') C\
Trial Defense Counsel
•. 4 f
,*
r ,
2
017918
(7)

(LFro .mil ent Friday, July 2, 2004 4:40 am
Js.arrny.mil
\'°--To-11111.1.11V_
Cc
Bcc
Subject Re: Fwd: Notice of Plea & Forum

MIN
Sorry, but marching orders from Division are to deny the Defense request to produce PFC Richmond's father for the trial. I will be happy to enter into a reasonable stipulation; or I will not object to telephonic testimony.
V/R
MAW/ 1_
Ori inal t(te"

ssa e
From: us.army.mil
Date: atur ay, June 26, 2004 12:48 pm
Subject: Fwd: Notice of Plea & Forum

Ma'am,
I am forward the Defense's Notice of Forum & Plea in U.S. v. Richmond.
V/R,

affarallalf
CPT, 3A
Trial Defense Counsel2

(,14(
Tikrit Branch Office (FOB Danger)
Region X
DNVT:
E-mail: @us.army.mil

ATIENTION: This electronic transmission may contain attorney work-
product or information protected under the attorney-client
privilege. Portions of this transmission may contain information
protected from disclosure under the Freedom Of Information Act, 5
USC 552. Do not release this information without prior
authorization from the sender. If this has inadvertently reached
the wrong party, please delete this information Immediately and
notify the sender.

Sir,
Please see attached.
Enclosure B
2
7/2/2004
https://webmail.us.army.mil/frame.html?rtfPossible=true&lang=en
017919
V/R,
,firmilmor
, JA Defeke Counsel \ 1`"Tikrit Branch Office (FOB Danger) L160)(13 Region IX DNVT: 553-9383 or 553-3362 -mail: us.army.mil
ATTENTION: This electronic transmission may contain attorney work-product or information protected under the attorney-client privilege. Portions of this transmission may contain information protected from disclosure under the Freedom Of Information Act, 5 USC 552. Do not release this information without prior authorization from the sender. If this has inadvertently reached the wrong party, please delete this information immediately and notify the sender.
7/2/2004 017920
https://webmail.us.anny.mil/frame.html?rtfPossible=true&lang--en
DEPARTMENT OF THE ARMY
Headquarters, 1st Infantry Division
Office of the' Division Conunander
APO AE 09036

REPLY TO ATTENTION OF:
JUL 1 5 20t)4 AETNLBGJA
MEMORANDUM FOR Commanding General, 1st Infantry Division, APO AE 09036
SUBJECT: Defense Request for Production of Overseas Witness
(J96\---L
1. On 17 June 2004, defense counsel for PFC Edward L. Riclunond, . equested that the government produce PFC Riclunond's father, 11111.11101111111, as a sentencin witness at trial. On 2 July 2004, the trial counsel gave defense counse no ice that Mr would not be produced and offered to enter into a stipulation of expected testimony or arrange for telephonic testimon . The same day, defense counsel submitted the enclosed request for you
ating that alternate forms of testimony are not adequate.
to produce Mr.
Cqtk—t-
2. A military judge may order production of a witness under certain circumstances. In determining whether to produce a witness, the judge will consider the importance of the
testimony, the adequacy of alternate forms of testimony and the willingness of the government to agree to alternate forrns of testimony. The judge will also balance the significance of the personal appearance of the witness against the practical difficulties of producing the witnesses. Factors to be considered when weighing the difficulties of production of the witness include: likelihood of significant interference with military operational deployment or mission accomplishment, the costs of producing the witness, the timing of the request for production of the witness, and the potential for delay in the proceedings if the witness is produced.
3. Considering the likelihood of significant interference with mission accomplislunent, the
significant cost of producing the witness, the adequacy of alternate forms of testimony, and the
physicaleafety of Mr.11111111 recommend that you deny the defense request.

04a'
LTC, JA Staff Judge Advocate
017921

DEPARTMENT OF THE ARMY
Headquarters, 1st Infantry Division
APO AE 09392

JUL 1 6 2004
AETV-BGCG
MEMORANDUM FOR CaptainfirialiMIM.S. Army Trial Defense Services, FOB Danger, Tilcrit, Iraq APO AE 09392
SUBJECT: Request for Production of Overseas Witness our request1. I have reviewed your request for the production of Mr.
, the
is denied. In making this determination, I hav considered the safety of pear in court, R.t:M. 7 3, d R.C.
logistics involved with having Mr21001(e)(2)(E).
Cq(q --z
2. The government will agree to alternate forms of testimon from ,this witness such as a written stipulation of expected testimony or telephonic t
Major General, USA Commanding

017922
Page 1 of 1
3
(
Fro 1111111111.11111111111.@pearceusa. m
nt Tuesday, July 6, 2004 7:55 pm us.army.mil
To 1111111111111111V mai)" _
c "at home (E-mail)" premier.net
Bcc
Subject Flight arrangements

We made the flight arrangements for my husband today. He will arrive in Kuwait City at 7:30 pm on July 28, 2004. The last connection will be from Frankfurt, Germany, Lufthansa-Deutsche airlines, flight number 636. Please let me know if you need any additional information. I'm sending this from my work e-mail, but I would appreciate it if you could respond, in tfie future, to both my work and home e-mail addresses so I can respond to yoti ASAP with any questions, etc. that you may have.
VIThanks,111111111111111110
Home e-mail: premier.net
rk e-mail: pearceusa.com

Phone:
Fax:

@pearceusa.com

https://webmail.us.army.mil/frame.html?rtfPossible=true&lang=en

7012f6 23
RE: Mtn to Compel Production60yerseas Witness Page 1 of 3
1 04 1 114 1.'s X itAllizifr

From. 1111111111111pus.army.mil [SMTIMMIWps.army.mi
To: us army mil, • '
Cc: TC (Judge).2 us.army.mil . us.army.mil
Subject: RE: Mtn to Compel Production of Overseas 4 ss
Sent:27/21/2004 6:07 PM Importance: Normal
Ma'am and CPT

Re: US v. Richmond otion to Compel. HD OSJA informed me that they have VTC capability. The Governmenttherefore offers VT as another form of alternative testimony.
V/R

op-t-

inal Message 2 From:2@us.army.mil Date: ues ay, July 20, 2004 9:03 pm Subject: Re: It: Mtn ta'Compel Production of Overseas Witness
Government response to subject motion is attached.

I apologize for the delay. I have another job outside the wire,
and sometimes do not get to see my e-mail (or do computer work)
until late at night.

2Original Message
From: 'ffilriatTC (Judge)" 11111.1tH 1 ID.ARMY.MIL
Date: Tuesday, July 20, 2004 4:27 pm
Subject: RE: Mtn to Compel Production of Overseas itness

Government - I need your pleading NLT Midnight 1 Jul. I don't
want this
issue to delay the trial.
LTA.

2Ori inal Message 2 (
From: TC (Judge)
Sent: Tuesday, Ju y 20, 2004 6:37 PM

To:
Cc:2 us.army.mil';
'2 us.army.mil' Subject:2: Mtn to Compel
ro uction o verseas Witness

017924

https://lidwzbintra.lid.army.mil/exchange/forms/IPM/NOTE/read.asp?comman..... . 7/22/2004
RE: Mtn to Compel ProductionA0verseas Witness Page 2 of 3
t„ 3
Government -

Please provide ASAP your res cnse-te-this-motion, with caselaw authority,for why t2ernment believes that.Mr. 2eed not be give govern nt transport to Tikrit from Kuwait for his son's murder trial.

LTC.. 2Ori inal Message From: us.army.mil us.army.mil ] Sent: Saturday, Jul 17, 2004 2:37 PM T Cc: Subject: Mtn to Compel Production of Overseas Witness

Ma'am,

As!referenced in an e-mail sent yesterday, attached please find a defenseMotion to Compel Production of PFC Richmond's father,
111111111.101/
Sr.

V/R,

CPT, JA
Trial Defense Counsel
Tikrit Branch Office (FOB Danger) Region IX
DNVT: 553-9383 or 553-3362
E-mail: 1111.111111.rus.army.mil

ATTENTION: This elecirb transtorney
nic„,„aissionmay co2 work- product or information protected under the attorney-client privilege. Portions of this transmission may contain information protected from disclosure under the Freedom Of Information Act, 5 USC 552. Do not release this information without prior authorization from the sender. If this has inadvertently reached the wrong party, please delete this information impediately and
. _
notify the sender.

017925

https://1 idwzbintra. 1 id.army.mil/exchange/forms/IPM/NOTE/read.asp?command=open&o.. . 7/22/2004
UNITED STATES
v.
Edward L. RICHMOND, Jr. PFC, US Army HHC, lst Battalion, 27th Infantry 25th Infantry Division (Light) AP AE 09347-9998 GOVERNMENT RESPONSE TO DEFENSE MOTION TO COMPEL PRODUCTION OF OVERSEAS WITNESS
20 July 2004
Government respOnds to Defense Motion to Compel Production of Overseas Witness.
• FACTS f
The First Infantry Division Commander, the General Court-Mart 2enin Authority in the above case, denied Defense's request to produce Mr 2 ue to safetyconcerns for Mr.2nd logistical difficulties.
Iraq is a combat environment.
Travel in Iraq, including air travel, is dangerous. The cities of Baghdad and Balad are often attacked, particularly in areas used by Coalition Forces.
[Defense assertion that travel from Kuwait to Baghdad/Balad, and from Baghdad/Balad to
( L-4()\--'L Tikrit, is safe and logistically simple is wholly inaccurate.] Arranging special flights for Mr.
L.,2 ould be cost prohibitive, so he would travel in space available status. It is common owledge that tactical flights in Iraq are unreliable. Soldiers often have to wait days for flights from Kuwait, Baghdad, and Balad. A noncombatant civilian would require special security protection, administrative clearances to enter the combat zone and Coalition installations, briefings and training regarding the dangers in Iraq, qualified escorts, accommodations at various locations, etc.
The two Government"listed witnesses that the Government may bring to Iraq are US Army personnel on Active Duty, both of whom have already served tours in 01F2.
Trial Counsel offers to enter into a stipulation of fact regarding Mr.MIIIIIrentencing testimony, or agrees to telephonic testimony.
(L,)
LAW & ARGUMENT
RCM 1001(e)(2) analysis:

1001(e)(2)(A). For motion purposes the Government assumes Mr 2xpected testimony to be necessary for consideration of a matter of substantial significance to a determination of an appropriate sentence.


1001(e)(2)(B). The requested witness is the Accused's father. While theaffiir family would assign great weight to the testimony, the court will assign weight according to the bias inherent in a parent's concern for his or her child. Therefore, weight of Mr.

017926

testimony would not be of substantial significance to the determination of an appropriate sentence. See United States v. Combs, 20 M.J. 441, 443 (C.M.A. 1985); Credibility of the expected testimony is not an issue.
• 1001 (e)(2)(C).
o Government will enter into a reasonable stipulation of fact.

A stipulation of fact would be a sufficient substitute for the testimony - this is not an extraordinary case in relation to 1001(e)(2). See United States v. Briscoe, 56

M.J. 903 (AFCCA, 2002). Note that the context of the word "extraordinary" refers to the sufficiency of the substitute stipulation, not the charges or circumstances of the court-martial. The testimony proffered in the Defense motion would be ordinary testimony from a parent that can be easily captured by a stipulation of fact or telephonic testimony.


1001(4)(2)(D). Telephonic testimony is among other forms of evidence that would be sufficient to meet the needs of the court-martial in the determination of an appropriate sentence. See generally, United States v. McDonald, 55 M.J. 173 (CAAF, 2001).


1001(e)(2)(E).

(.9(Q -Z—
• The significance of the personal appearance of Mr. alligtothe determination of an appropriate sentence, when balanced against the practical difficulties of producing the witness, does not favor production of the witness. In the Defense motion, Counsel overstates the significance of personal appearance, and grossly understates the practical difficulties of produc'ng the witness.
a -Z._

The significance of the personal appearance of Mr. 2to the determination of an appropriate sentence, when balanced against the likelihood of significant interference with military operational deployment and mission accomplishment, does not favor production of the witness. Bringing a noncombatant into a hostile combat environment (a war) will significantly interfere with the deployment and mission.


On balance, the Division Commander's assessment and denial should receive deference from the Court.

Brief Constitutional analysis:
By virtue of RCM 1001(e)(2), an accused does not have a Sixth Amendment right to compulsory process of a sentencing witness - the right to production of sentencing witnesses is limited. Correct application of RCM 1001(e)(2) will afford the Accused of his Fifth Amendment Due Process rights. A Military Judge's decision to deny the production of a sentencing witness is reviewed only for abuse of discretion. United States v. Combs, 20 M.J. 441, 443 (C.M.A. 1985); United States v. Tangpuz, 5 M.J. 426, 429 (C.M.A. 1978). The Military Judge would not abuse
017927
DOD-041106
her discretion by deferring to the judgment of the Division Commander and denying the Defense Motion to Compel production of a sentencing witness in a combat zone.
MAJ, JA 2-25 BCT TF J
I certify that on 20 JUL 04 this Government Response to Defens Motion to Compel wasdelivered by e-mail to Defense Counsel, CP1411.11.

CL)(C,1-7---
IIIIININIf
MAJ, JA 2-25 BCT TF JA
#
3 2 017928
DOD-041107
UNITED STATES
MOTION FOR PRODUCTION

v.
OF A VERBATIM ARTICLE 32(b)
HEARING TRANSCRIPT
PFC Edward L. Richmond, Jr.
U.S. Army
Headquarters and Headquarters Co.,
1st Battalion, 27th Infantry Regiment

25th
Infantry Division (Light) 9 July 2004
APO AE 09347

A. RELIEF SOUGHT
COMES NOW the accused, PFC Edward L. Richmond, Jr., by and through counsel, to
request production of a verbatim transcript of the Article 32(b) hearing in this case.
Alternatively, the defense requests a verbatim transcript of the testimony of certain witnesses.

B. BURDEN OF PROOF & STANDARD OF PROOF
The defense bears the burden of establishing by a preponderance of the evidence that
evidence to be produced is relevant and necessary under Rule for Courts-Martial (R.C.M.)
703(f)(1) and 703(0(4).

C. FACTS
HiLk -1
PFC Richmond is charged with the unpremeditated murder of Mr. on 28 February 2004. On 17 April 2004, a hearing was held pursuant to Article 32(b) of the UCMJ to investigate the charges against PFC Richmond.
Prior to that hearing, on 15 April 2004, the defense submitted a request to the Article 32(b) Investigating Officer for a verbatim transcript to be made of the testimony in that hearing in order to preserve each witness' testimony under oath. The hearing was held 49 days after the date of the alleged offense. At the time of trial on 1 August 2004, an additional 105 days will have elapsed since the date of the Article 32(b) hearing. In total, 154 days will have elapsed from the day of the alleged offense until the day the witnesses testify at trial. Several Article 32(b) witnesses are anticipated to testify at trial. A verbatim transcript of their sworn Article 32(b) testimony is necessary for purposes of cross-examination and/or impeachment by prior inconsistent statement. The only practical method for such purposes is a verbatim transcript of each witness' testimony.
The entire Article 32(b) hearing lasted only three hours. Only three witnesses testified under oath at the Article 32(b) hearing. To transcribe the swom testimony of these three witnesses would take minimal effort on behalf of the government. The government has adequate
017929

\\c&'-4k
1 ck-3
United States v. PFC Edward L. _ ,thmond, Jr.
Motion for Production of a Verbatim Article 32(b) Hearing Transcript
resources to provide a verbatim transcript. The defense does not have the logistical resources or
personnel to produce such a transcript.
On 22 April 2004, the Article 32(b) Investigating Officer indicated his intent to include a verbatim transcript with his final report. In block 21 of the DD Form 457, the Investigating Officer indicated, "Record of Verbatim Testimony is attached," however, only a summarized transcript was attached.
On 14 May 2004, the defense requested production of all statements by goverrunent
witnesses in its Request for Discovery, paragraph lm.

D. LAW
The defense relies on the following authorities in support of its motion:
a.
R.C.M. 405 (j)(2)(B)

b.
R.C.M. 703(f)

c.
R.C.M. 914

d.
The Jencks Act, 18 U.S.C. § 3500, et seq.

e.
United States v. Scott, 6 M.J. 547 (A.F.C.M.R. 1978)

E. ARGUMENT
A verbatim transcript of the Article 32 hearing is relevant and necessary to the preparation of the defense in this case. The defense acknowledges that R.C.M. 405 (j)(2)(B) only mandates that the Article 32 report of investigation include the "substance of the testimony taken." However, the defense has requested, and is presently renewing that request, that outside the requirements of R.C.M. 405 a verbatim transcript be prepared to assist the defense in preparation
for trial.
A verbatim transcript is necessary for several reasons. First, the defense believes that such a transcript will assist the accused in preparing a defense in his case. Soldiers testified at the Article 32(b) hearing at a date much closer in time than their testimony will be at trial. The defense must be prepared to refresh any witness' recollection with a copy of their verbatim Article 32(b) testimony. Second, during the course of the trial and motions sessions, if necessary, it will not be possible for counsel to go back and review testimony on audiotape without asking for a recess of the court. Third, the defense anticipates that during trial that it may become necessary to impeach government witnesses with their testimony at the Article 32(b) hearing. Trying to do this with tape recordings would be burdensome and potentially cause undue delay in the proceedings.
Pursuant to R.C.M. 914(a)(2) and the Jencks Act, 18 U.S.C. § 3500, the defense is entitled
to production of all statements made by government witnesses that relate to the subject matter of their testimony. See United States v. Scott, 6 M.J. 547, 548 (A.F.C.M.R. 1978) (finding that the military judge erred by not requiring production of verbatim witness testimony to the defense).
2 2 017930
United States v. PFC Edward L. —ehmond, Jr.
Motion for Production of a Verbatim Article 32(b) Hearing Transcript

Recognizing that such an entitlement does not accrue until after a witness has testified, the
defense requests the verbatim transcripts prior to trial in order to preserve judicial economy, to
reduce inconvenience to the panel, and to obviate the need for a delay in the trial proceedings.
PFC Richmond does not have the resources to pay for creation of a verbatim transcript that would cost thousands of dollars if done through a private contractor. The government has at its disposal a court reporter in Iraq who would be able to type a verbatim transcript within a matter of days. TDS does not have paralegal specialists to prepare such a transcript. Further, the part-time paralegal specialist in the FOB Danger TDS Branch Office is PCSing.
If the government is unwilling to produce a full verbatim transcript of the entire healing, or the court does not order such a verbatim transcript, the defense requests a verbatim transcription of the followin s ecific witness testimony: SGTIM111111 SPC and SP
C-6) (,1\ :1-

F. CONCLUSION
The defense respectfully requests that the court compel the government to provide the
defense with a verbatim transcript of the Article 32(b) hearing in this case. Alternatively, the
defense requests verbatim transcribed testimony of the witnesses referenced above.

7-)"*.ww
CPT, JA Trial Defense Counsel
I certify this I served this Motion for Production of a Verbatim Article 32(b) Hearing Transcript on the government trial counsel via e-mail atiariMirus.army.mil and on the militaryjudge via e-mail on 9 July 2004.
(1.--)(61-L
1111111111.
CPT, JA Trial Defense Counsel
3 2 017931

UNITED STATES
v.
MOTION TO SUPPRESS
PFC Edward L. Richmond, Jr.
U.S. Army
Headquarters and Headquarters Co.,
lst Battalion, 27th Infantry Regiment
25th Infantry Division (Light)

9 July 2004APO AE 09347
A. RELIEF SOUGHT
COMES NOW the accused, PFC Edward L. Richmond, Jr., by and through counsel, to request suppression of PFC Richmond's statement to the Criminal Investigation Command
(CID), dated 29 March 2004.
B. BURDEN OF PROOF & STANDARD OF PROOF
Once raised by the defense, the burden of proof belongs to the government to prove by a preponderance of the evidence that the statement to be suppressed was not obtained in violation of the rights of the accused and is voluntary tnd admissible. Rule for Courts-Martial (R.C.M.)905(c); Military Rule of Evidence (Mil. R. Evid.) 304(c).
C. FACTS
On Sunday, 28 March 2004, SSG'," of the S1 section, told PFC Richmond "you need clo go to legalilicou know you need to e at legal tomorrow." A second noncommissioned
officer, SGT2onfirmed that PFC Richmond had to be at legal at 1000. PFC Richmond did
\ not know why he was being ordered to the legal office. 1 SA PFC Richmond walked from the ALOC, unescorted, to the legal office as instructed. Upon
his a roximately 102
e was met b two CID Agents whom he had never met before,

Q.3)'
and SA2 . The officers identified themselves as CIDSpecial Agents.2ey were not weann any ra , branch insignia or unit patches on their DesertCamouflage Uniforms (DCUs).
The agents spo2ith PFC chmond On the first floor of the building for approximatelyfive minutes. SA2aske FC Richmond words to the effect of, "Do you know why we're
ere?" PFC Ric ond tol
em that he did not know. One of the agents then told PFCond that his c and ordered a polygraph exam. The agents then escorted PFCRichmon
o a ack corner office on the second floor of the building.
The back corner office had no overhead lighting. One long fluorescent light was mounted on the far left wall of the room and provided little light in the room. The room walls were dingy with a layer of filth and dust over faded mint green paint. The room measured approximately 12'5" wide and 14' 2" in depth toward the back wall. The back wall contained a door to a terrace
iS
,e`
United States v. PFC Edward L. _Ann
' ond, Jr.
Motion to Suppress

that was blocked by a curtain and unable to be opened. The wall had several windows that werepositioned about mid-waist height to the ceiling. These windows were not open and were blocked by dark curtains to preclude visibility. The room did not have air conditioning
Centered in the room was a conference table measuring approximately 4' wide by 6' long.Six metal folding chairs were unfolded, sitting around the table. A worn, battered couch sat against one wall. An arm chair also was placed around the table. The room also housed severalfloor-to-ceiling metal storage cabinets measuring several feet wide but just a few feet deep. Several large boxes of supplies and miscellaneous "junk" were piled about the room. On 29March 2004, the room was not being used for any permanent purpose and effectively was a
"junk room" for the building's tenants.
When the CID Agents escorted PFC Richmond to the room, the polygraph equipmentalready was set up. The set-up contained several pieces of equipment including a laptop computer with wires running every which way and a polygraph "box" that had wires running to
the arm chair.
SA2
advised PFC Richmond of his rights on a DA Form 3881, completed at 1005.On approxi a ely 28 February 2004 or 1 March 2004, PFC Richmond told CID investigators that he would e a polygraph but he was never contacted until his command ordered him to
"see legal" on 2 March 2004.
Several CD rms 28-R, maintained in the original CID case file, relay the following
entries:
(q(f..)- t
-
On 4 Mar 04 at TO ,5, SA2
"I see no need for Poly. Factsof case speak for hemselves.
On 4 Mar 04 a 1700, SAIIIIMInoted, "Poly is a possibility, but really not
needed."
On 7 Mar 04, S 11111111111.oted, "Agreed poly on Richmond immaterial at
this point."
After not hearing' anything about the investigation for several weeks, on 29 March 2004, PFC Richmond did not understand why a polygraph was now needed. When he asked the CID agents, they simply told him words to the effect of, "your chain of command needs a polygraph
done."
During ClD's pre-polygraph explanation of the test, SA 2n discussed differenttopics with PFC Richmond. There were certain questions that PF Richm•nd did not feelcomfortable discussing. For example, CID asked him " ve ou ever lied Le a person in a
position of authority?" and "Have you ever lied?" S2
old PFC Ric ond that his
answers to these 12relin-finary questions woul2
I -termine if he fit the profile f a murderer. PFC
Richmond expres%ed his discomfort to S 2
and said words to the effe t of, "shouldn't Icheck with a lawyer or something." SA 2gmored this concern and si ply began
ing PFC Richmond about a different su ject matter. As the quest 4ning continued, SAshifted gears and again began to redirect his questions toward t same subject matter.PFC Ric ond stated unequivocally, "I can't talk about that. I wa o see a lawyer if you want
to talk about

C6)(6)- t
2 2 017933
United States v. PFC Edward L.V..,2mond, Jr.
Motion to Su

SA1Illir conducted tl-rop2
illation. Upon completion of the question and
answer part o e exam, SA 2lled out a2
of graph paper and made some markings
and numbers n the aper, presii7lin iriasly"the polygraph ntout. After a cursory look at the
printout, S mmarily told PFC Richmond that2ailed the polygraph.
SAillphen told PFC Riclunond that the military judg would know that he failed thepolygraph an at the fact that he failed the polygraph examinatio would be used against him at his trial. S old PFC Richmond that he should explain y his answers came up
ative on the exam. FC Richmond asked S 2hich ques ions he failed but SAould not tell him. SA2gain told2'clunond th t the results could be usedagams him at trial. SA2
C Richmond that he had trave ed all the way to Kirkulc
from Tikrit and that he was there to "help out" PFC Richmond. S 2inferred that once he
left Kirkuk, he would not be able to "help out" PFC Richmond anymore. PFC Richmond
believed, "I came out of that room thinking [the polygraph result] was admissible in court."
i.
SAIIIIIPcontinued to interrogate PFC Richmond during this four-hour time period. SA
1/4-P
adgered PFC Richmond w'th "h othetical" scenarios and "what-if' situations. Among
4'.........-,

Wrogation questions by S
ere "Let's say out there you knew you shot him but it
Tr was an accident," and "Or what if you tnpped and started to fall and had an accidental

4,-.:......) discharge?" He continued, "Let's say you knew the Iraqi was cuffed...." and "....didn't you.
c \III
think anyone would see?"
PFC Richmond answered the S hypothetical scenarios as just that, h otheticalscenarios. It was his answers to these "v
A vi
a", e ues ions that were typed b / S
o o a DA Form 2823-E, "Sworn Statement." S
. ,2 rinted the sworn st ment. PFC
Ric'i* ond was given the opportunity to read throuegh the statement, however e barely read itbecause er 4 hours of questioning, PFC Richmond knew that as soon as e signed the
statement h ould leave. He signed the statement at 1419.
i
The Polygraph2mination Report, d* ated 30 Mar 04, perta. ng to the polygraph of PFC
Richmond reveals the follo * - in the Examiner's Conclusio
An analysis of the polygrams collected determined insufficient criteria was
present to make a conclusive decision regarding the truthfulness of RICHMOND.
D. LAW
The defense relies on the following authorities in support of its motiOn:
a.
U.S. Const., amend V

b.
R.C.M. 905(c)

c.
Mil. R. Evid. 304

d.
Arizona v. Fulminante, 499 U.S. 279 (f991)

e.
Schneckloth v. Bustamonte, 41(2 U.S. 218 (1973)

f Culombe v. Connecticut, 367 U.S. 568 (1961)
Rogers v. Richrnond, 365 U.S. 534 (1961)

h.
United States v. Bubonics, 45 M.J. 93 (1996)

i.
United States v. Martinez, 38 M.J. 82 (C.M.A. 1993)

j.
United States v. Hansome, 45 C.M.R. 104 (C.M.A. 1972)

k.
United States v. Planter, 18 U.S.C.M.A. 469 (C.M.A. 1969)

1. United States v. Smith, 32 C.M.R. 105 (1962)
3 2 017934
United States v. PFC Edward L. Junond, Jr.
Motion to Suppress

E. WITNESSES & EVIDENCE
If the government objects to the defense's representation of the notations on the CID Forms
28-R refereled in Section C of this Motion to Su ress the defense requests government

production of such forms. On 28 April 2004, SA2s, Special Agent-in-Charge
of the FOB Danger CID Field Office represented t at e wou not release copies of those
.2
documents without a court-order. The defense seeks to attach opies of those forms in support of
this motion.
Further, the defense requegts consideration of the following additional documents in
support of this motion:
a.
DA Form 3881-E, Rights Waiver Form, dated 29 March 2004 (Tab A)

b.
DA Form 2823-E, Sworn Statement, dated 29 March 2004 (Tab B)

c.
Polygraph Examination Report, dated 30 March 04 (Tab C)

F. ARGUMENT
The Fifth Amendment to the United States Constitution requires that confessions be
excluded from evidence in criminal trials unless they were made voluntarily. See Arizona v.
Fulminante, 499 U.S. 279, 281 (1991). Military Rule of Evidence 304(a) states that:

[A]n involuntary statement or any derivative evidence therefrom may not be received in
evidence against an accused who made the statement if the accused makes a timely motion

to suppress or an objection to the evidence under this rule.
The Military Rules of Evidence define an involuntary statement as one that is:
(1)
obtained in violation of the self-incrimination privilege or due process clause of the
Fifth Amendment to the Constitution of the United States,

(2)
obtained in violation of Article 31 of the Uniform Code of Military Justice, or

(3)
obtained through the use of coercion, unlawful influence, or unlawful inducement.

Mil. R. Evid. 304(c)(3). Once an appropriate motion has been made by the defense to suppress astatement under this rule, the burden is on the government to establish the admissibility of the
statement. Mil . R. Evid. 304(e).
To determine whether a confession is voluntary, the United States Supreme Court has held
that the necessary inquiry is:
Is the confession the product of an essentially free and unconstrained choice by its maker?
If it is, if he has willed to confess, it may be used against him. If it is not, if his will has
been overborne and his capacity for self-determination critically impaired, the use of his

confession offends due process.
See Cidombe v. Connecticut, 367 U.S. 568, 602 (1961), citing Rogers v. Richmond,
365 U.S. 534
(1961). In determining whether an individual's will was overborne in particular case, the Supreme Court has held that the Court must assess: "the totality of all the surrounding
2
4
017935
DOD-041114
United States v. PFC Edward IA—clunond, Jr.
Motion to Suppress

circumstances -- both the characteristics of the accused and the details of the interrogation."
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). The Court goes on to note a non-
exclusive list of factors that the Court has considered in assessing the totality of the
circumstancts:
(1)
the accused's age and education,

(2)
whether the accused was properly advised of his rights,

(3)
the length of the detention,

(4)
the repeated and prolonged nature of the questioning, and

(5)
deprivation of food or sleep.

See id.
The Court notes, however, that none of these criteria are controlling, they are simply part
of the assessing the totality of the circumstances of the interrogation. See id.
The Court of Appeals for the Armed Forces applied the standard set forth in Schneckloth
for assessing the totality of the circumstances of an interrogation.
See United States v. Bubonics,
45 M.J. 93, 95 (1996). The Court considered an additional factor of the accused's lack of prior
involvement with the military justice system. See id. at 96.
Under the totality of the circumstances test, assessing both the characteristics of PFC
Richmond and the details of the interrogation, the statement by PFC Richmond was involuntary
and the product of unlawful inducement, coercion and unlawful influence and should be
suppressed.
1. The Characteristics of PFC Richmond at the time of the Interrogation were such
as to Render the Statement Involuntary

PFC Richmond joined the United States Army on 22 May 2002. He was 20-years-old atthe time ClD questioned him. PFC Richmond dropped out of high school and obtained a GED inorder to join the Army. Throughout his military career, PFC Richmond has been conditioned torespond with discipline to figures in authority. In early March 2004, PFC Richmond's unit transferred him from forward operating base (FOB) McHenry to FOB Warrior. His entire military support system and chain-of-command remained at FOB McHenry. Despite the premisethat a suspected accused is innocent until proven guilty, PFC Richmond's chain-of-command moved him away from his unit and to a different FOB specifically because of the incident forwhich he now stands trial. No one from his unit accompanied PFC Richmond to his CID Interrogation on 29 March 2004. Two NCOs ordered him to go to the legal office without tellinghim why. PFC Richmond was alone against the government.
In Bubonics, the Court of Appeals for the Armed Forces found the accused's conditionedresponse to those in a position of authority to be a significant factor in a totality of the circumstances analysis. The accused had only 2 Y2 years of military experience and was"conditioned throughout that time to respond with discipline to figures of authority."
Bubonics,
45 M.J. at 96.
Further, as the United States Court of Military Appeals in United States v. Planter, 18
U.S.C.M.A. 469 (C.M.A. 1969) noted, due to the rank structure in the military, coercive tactics
employed by investigators are especially overpowering. The Court stated:
Further, military personnel to whom confessions are made are, in many instances, of higher rank than the one confessing, and certainly, if only by reason of their duties, tend tohave great influence under the circumstances.
2 017936
5
United States v. PFC Edward L. —cfunond, Jr.
Motion to Suppress

Id. at 473, citing United States v. Smith, 32 C.M.R. 105, 120 (1962).
PFC Richmond was a soldier with less than 2 years of military experience at the time of
questioning by CID. He was ordered by two noncommissioned officers to repOrt to the legal
office. When PFC Richmond arrived at the legal office, he was greeted by two CID agents who
were clearly expecting his arrival. They met him at the entrance of the building in order to escort
him to the interrogation room. The agents were older than PFC Richmond and were the ones
that initiated the questioning. They introduced themselves with the authority of law enforcement
personnel and when PFC Richmond asked why he was there, he was told that his command had
ordered a polygraph examination. Each of these factors must be considered under a totality of
the circumstances test when evaluating the voluntariness of PFC Richmond's post-polygraph

statement.
CID questioned PFC Richmond over and over again about the killing of the Iraqi farmer.
Any time he would claim that he did not know the Iraqi was flex-cuffed, he would be told that he
was lying and that he did lcnow the man was cuffed. For a soldier with no prior involvement in
the military justice system, these events were overwhelming and overbore his will.

2. The Characteristics of the Interrogation were such as to Render PFC Richmond's
Statement Involuntary
CID subjected PFC Richmond to repeated and prolonged questioning for over four hours
which overbore his will. The United States Supreme Court has noted:
In the police station a prisoner is surrounded by known hostile forces. He is disoriented
from the world he knows and in which he finds support. He is subject to coercing
impingements, undermining even if not obvious pressures of every variety. In such an
atmosphere, questioning that is long continued -- even if it is only repeated at intervals,
never protracted to the point of physical exhaustion -- inevitably suggests that the

questioner has a right to, and expects, an answer.
Colombe v. Connecticut, 367 U.S. 568, 575 (1972).
While the questioning of PFC Richmond did not take place in a police station, the physical
surroundings were analogous. The NCOs ordered PFC Richmond to go to the legal office, a
location clearly linlced to law enforcement activity. He was met at the entrance to the building
by two OD agents. The two agents controlled the setting and the dynamics of the situation; they
led PFC Richmond to a room they pre-selected for the interrogation in which the polygraph

equipment already was set up.
Another factor to be considered is the issue of admonishing a person to tell the truth duringthe course of an interrogation. The military recognizes that, "Admonishing a person to tell the truth is not coercion, unlawful inducement or improper influence," however, "if an exhortation or adjuration to speak the truth is connected with suggestions of a threat or benefit, the confession is
inadmissible."
United States v. Hansome, 45 C.M.R. 104, 107 (C.M.A. 1972).
Whenever PFC Richmond would deny that he lcnew the Iraqi was flex-cuffed SA
would tell him that he was lying or that he was not being honest with him. SA Richmond that he was there to he,e him and that once he left the inten-ogation he wou
not be
able to help him anymore. SA2
uestioned PFC Richm2
ver and over on the same
point. Any time that PFC Ric on ave an answer that SA
not like, he was toldthat he was not telling the truth S2Id PFC Richmond that once he left Kirkuk t he
017937
DOD-041116
United States v. PFC Edward ,a-chmond, Jr.
Motion to Suppress

would not be able to "help" him. He led him to believe that at that day and time of questioning, it was PFC Richmond's last opportimity to be "helped" by CID. This repeatedly and prolonged questioning combined with the other factors overbore PFC Richmond's will.
3. The 29 March 2004 Statement was the Product of an Overzealous CID Office
An important factor to consider when assessing the totality of the circumstances is the overzealousness of CID that set the stage for the coercive environment. The only reason CID 'th the polygraph on 29 March 2004 was because they previously had arranged
or SA2
travel from Balad, Iraq, to Tikrit to conduct the polygraph. The case file is replete with references that a polygraph was not needed in this case. However, ultimately, rather
than reveal to S2
hat his trip to Tikrit was for nau ht the overnment continued totransport him to r2his position is bolstered by S2own representations to PFCRiclunond that he had traveled all the way to Kirkuk2
o see C Richmond. CID did not
contact PFC Richmond to confirm a date 2
or the polygraph. Rather, representing thent CID office2an opportunity to order PFC Richmond to meet with them
and to subject PFC Richmond to over 4-hours of interrogation.
The facts of the present case are analogous to those of United States v. Martinez, 38 M.J.
82 (C.M.A. 1993). SFC Martinez consented to a polygraph exam and upon its conclusion, the CID agent told him that the test indicated deception. The CID agent conducted post-polygraph questioning of SFC Martinez. When the agent failed to get the answers that he was looking for he threatened to leave the interrogation unless SFC Martinez told the truth. After several hours
of questioning, SFC Martinez made inculpatory statements.
See id. at 83.
In the present case, SA2told PFC Richmond that he had failed the 29 March 2004
06)-1 polygraph. SA 1111111 did so lcnoi
-ig that the test did not indicate deception but rather, that thetest was inconclusive. That SA2
ied to PFC Richmond is evidence of the level of coercion that CID was willing tourirgiet the statement that they wanted to get rather than the
statement that PFC Richmond was willing to give. SA 2ook further steps to achieve his
own ends by refusing to te PFC Richmond what questions indicated deception. PFC Richmond
was confused by what SA2was telling him because he wanted to know what questions hehad failed.
Though not equaling the threat to leave the interview room, as concluded in Martinez, thetotality of the circumstances shows that SA IF coerced PFC Richmond in continuing to speak to him by telling him that he had travele om Tilcrit to Kirkuk just to meet with PFC Richmond. Important to note is that PFC Richmond knew that military personnel should not travel unnecessarily in combat-heavy Iraq. PFC Richmond knew that the special agents, like all soldiers in Iraq, put themselves in increased danger every time they leave a secured installation. This type of guilt-inducement, under the circumstances contributed to the coercive statement
obtained by SA
Additionally, the suggestive interrogation teclmiques of CID mirror those considered by
the court in Martinez.
In Martinez, "CID told him he had lied and gave him another scenariowhich it offered as the truth."
Id at 85. In the present situation, SA ellirinterrogation was plagued with "what if' scenarios. PFC Richmond indicated that he did not want to answer these hypothetical situations. Ultimately, it was PFC Richmond's hypothetical answers and not the
misleading questions that SA2yped onto a sworn statement.
A critical fact to be considered under the totality of the circumstances is that PFC
NRichmond commented to SA2about clwking with a lawyer on two occasions during the
2 017938
7
United States v. PFC Edward L. Imond, Jr. Motion to Suppress
CL-1N-\
interrogation. R.ather than address the soldier's concerns about seelcing counsel, SAME,
would simply change the topic of questioning. PFC Riclunond's mentioning of a lawyer, while
perhaps not rising to the level of invoicing his right to counsel, is a significant contributing factor
to determining if PFC Richmond's statement was the product of an overzealous CID agent who,
after risking his life by traveling in Iraq, was going to get the statement he wanted regardless of
what he was told by the soldier.
G. CONCLUSION
Under the totali of the circumstances, assessing both the characteristics of PFCRiclunond and the details of the CID interrogation, the 29 March 2004 statement by PFCRichmond was involuntary and the product of unlawful inducement, influence, and coercion and
should be suppressed.
RESPECTFULLY SUBMITTED:2
U0Y6\-2.-

4111111111111r
CPT, JA Trial Defense Counsel
I certif t I served this Motion to Suppress on the government trial counsel via e-mail at @us.army.mil and on the military judge via e-mail on 9 July 2004.
CI-Z-
CPT, JA Trial Defense Counsel
8 2 017939

49.idjsz.;;
doutAonalialterns
um:ber:;:voluniari
7
'ATI°2 Mar 04 FILE NUMBER-,2469-.7963$ AME.(LaSOirsGILMOND:2/ STAT,U4.; PFC
' t.,2EDWARD2S SAN:2
ORGANIZ.ATIO1ORNDIDRESS:'EHC.1 /27th- Infant-y Battalion_ F2APitt'AEINTS`11

•.2 -
-4ZIGHTS WAIVER/NONWAIVER CERTIFICATE .r.
-
The investiptor whoSe name appears below told me that he/she is with the United.StateArmS, Criminal Investigation Command as aAtoecial Agent and wanted to question me about the foliongoffense(s) of which I am suspected,. Murder: False Official Statements: False Swearing Before he,'she asked me any questions about the offense(s), however, helsTle made it clear to me that I have the following rights:
I. I do not have to answer questions or say anything.
". Anything I say or do can be used as evidence against me in a criminal trial.

J. (For personnel subject to the CCIVII) I have the right to talk privately to a lawyer before, during, and after questioning and to have a lawyer present with me during questioning.. This lawyer can be a civilian lawyer I arrange for at no expense to the Government or a military lawyer detailed for me at no expense to me, or both.
- or
(For civilians not subject to the 1.5CNII) I have the riaht to talk privately to a lawyer before, during!, and after questionina and to have a lawye: present with me during. questioning. I understand that this lawyer .can be one that I an-angt2e.t-my-own expense, cr.- :f I cannot 2 one, -a-h.-J.-yet-2appointc:.:2n-,Cbefore
zo any questioning. beains.2•
4.
If I arn now willina to discuss the offense(s) under investigation. with, or without a lawyer present. I have the riatit to stop answering. questions at any time or speak. privately with a lawyer before answering further. even if I si2n the waiver below.

5.
CO.NEvIENTS:

fk4 understand my Tiahts as stated above. I am nc:w willina to discuss the (.-)ffenst(s) uncler...ikvtiaation and m::ke a statement without talkina to a lawyer first and without havina a lawyer present N h me1 -
2
Witness74
4 A.
Signature of Interviewee
Witness.= 2
Signature of Witness
SA
221" (CID)
:
APO, AE 09342
NON-WAIVER CERTIFICATE
I do not want to aive up my rights: I want a lawyer: 2I do not want to be questioned or say anything:
Sianature of Lnterviewee:
DA Form 3881 -E

FOR OFFICIAL USE ONLY 017940

—SVTORN S'i EIVIESTT—

LOCATION: Kirkuk, Iraq
FILE NUMBER: 0040-04-CID469-79638
DATE: 29 Mar 040
TIME: iqii E,Cf---
NAME: RICHMOND, EDWARD L.
SS AN: 434-57-0403
GRADE/RANK: PFC
ORGANIZATION OR ADDRESS: HHC, 1/27th Infantry Battalion, FOB McHenry, Kirkulc, Iraq,
APO, AE 09347

Edward L. RICHMOND, want to make the following statement under oath: I provided a sworn statement on I Mar 04 concerning the incident in which I shot and killed an Iraqi farmer during a raid. Looking back on the entire situation, I would like to make some corrections to that statement at this time. Prior to the raid, the rules of engagement were put out that if anyone tried to flee the villiage, we were to shoot them. After arriving to the villiage and setting up, I could hear some shotgun blasts going off in the villiage where the raid was taking place. I then noticed an Iraqi male walking his cattle away from the villiage. Since the rules of engagement were put out that we were to shoot anyone fleeing the villia e I asked if I should shoot the farmer because he was leaving the village. I was told b S 2o no s2out an hour later, someone, maybe CP put out over the radio to apprehe d all ma e 2ving the villiage. At that time, we decided to apprehend the farmer. Myself an 2ach2a set of flexicuffs and began walking into the field vdtere the farmer vvas still with his cattle. My adrenaline was already pumping because of the raid and then even more so as we approached the farmer to apprehend him. Myself and Mindecided thall.1111 would place the flexicuffs on the farmer, while I stood guard. The farmer seemed to be directing our attention to something else as we approached him, and then as SGTIMErigan placing the flexicuffs on him, h2resisting. Already at that point I had a lot of adrenaline going through my system an2flouted at me to point my rifle at the Iraqi's head. I then pointed my rifle at his head and h stopped resisting. In my previous statement I put in that I. did not realize the Iraqi was weaiingfl xieuffs when I shot him. Looking back now, I think it would be more accurate to say that I did ot register in my mind that he was wearin flexicuffi. The adrenaline was affecting m perceptio of the situation. I remember seein 2puttineflexicuffs on him and I saw m with his2s behind his back as I pointed my rifle at his head. I had to Icnow he had on fle cuffs
before I sh t him, but it just did not re *ster in my mind at the time Also in my previo statement, I said that t Iraqi lunged at 2 loolcing back on i now, I don't • the Iraqi actually' lung d. What happened is 2urned him to walk away; ho ver, because ofthe adrenaline, wh2oved the Iraqi out of my sight picture 2st reacted by shooting him. I would have neve shot at man had I been thinking clearly„1- ould -never shoot someone who was wearing flexicu *ftregisteredin rnymincLthat-t* were wearing them. It is everything combined between the pressure of the raid, the new rules of engagement, the Iraq resisting his detention, and the whole situation in general that caused me to not be re-act like I normally would.

C. V,
INITIALS OF PERSON MAKING STATEMENT PAGE 1 OF 2 PAGES-DA Form 2823-E
FOR OFFICIAL USE ONLY 017941
Sworn Statement of Ptt Ee—ard L. RICHMOND, taken at Kirkulc,--n 229-Mar-
-CONTINUED:
4L\
. SA
A. PFC2 e
Q. Did you hear2ell you "he's good, let's go"?
A. No. He might have said it, but if he did, I did not hear it because of the adrenaline and the situation. It just did not register.
Q. How do you feel you were treated today?
A. Good.
Q. Were you given the opportunity to drink, eat, and use the restroom today?
A. Roger.
Q. Is there anything else you would like to add to this statement?
No///End of Statement/// ER

AFFIDAVIT
kL
I, Edward L. RICHMOND, have read or have had read to me this statement which begins on page 1 and ends on page 2. I fully understand the contents of the entire statement made by me. The statement is true. I have initialed all corrections and have initialed the bottom of each page containing the statement. I have made this statement freely without hope of benefit or reward, without threat of punishment, and without coercion, unlawful influence or unlavvful inducementlig.
.A
I i dria• I (A-C'
(Sizna e of Person Making Statement)
Subscribed and sworn before ine, a
',person authorized by law to administer oaths, this 29th day of March 2004, at Kirkuk, Iraq
Witness #2:
SA
(Typed name o Person Administering Oath) Article 136 (b) (4) UCMJ (Authority to Administer Oath)
INITIALS OF PERSON MAKENG STATEMENT 2 PAGE 2 OF 2ikAGES DA Form 2823-E
FOR OFFICIAL USE ONLY2 . 017942
_APARTMENT OF THE ARM Unit:. States Army Criminal Investigation "atmand 22"d Military Police Battalion (CIL Operation Iraqi Freedom APO, AE 09342
2
CICR-PD (195-6) 30 Mar 04 MEMORANDUM FOR Director, United States Army Crime Records Center, United States Army Criminal Investigation
Command, 6010 6th Street, Fort Belvoir, VA 22060-5585 Special Agent In Charge, 286th Military Police Detachment (CID), Tilcrit, Iraq, APO, AE 09392 SUBJECT: Polygraph Examination Report INVESTIGATIVE CASE REFERENCE: 0040-04-CID469-79638-5H1 AUTHORIZATION NUMBER: 04-0581, 24 Mar 04 DATE(S) OF EXAMINATION: 29 Mar 04
LOCATION OF EXAMINATION(S): Kirkuk, Iraq SUBJECT EXAMINED: RICHMOND, Edward L.; PFC; HHC, 1/27th Infantry Battalion, FOB McHenry, APO, AE 09347; 7 Jul 83; Monroe, LA.
OFFENSE(S): Murder PURPOSE OF EXAMINATION: Criminal Investigation INVESTIGATIVE/OPERATIONAL SUMMARY: Investigation disclosed on 28 Feb 04,
RICHMOND, along with various other members of his unit, conducted a command directed raid into the village of Taal Al Jal, Iraq. During the raid, a command directive was put out to apprehend all males in the vicinit of the villa e. After the directivd was issued, RICHMOND and SGT Jeffi-ey D.2 HHC, 1/27th Infantry Battalion entered a field where an Iraqi farmer, Mr , was walkin his c iF% with the intention en ing him in accordance with the command directive. dginq an r wh empted
to place flexicuffs on him and began resisting his apprehension. ad RICHMOND point his rifle a2at which time he stopped resisting, and allowed place the flexic2 d RICHMOND began escorting ut of the field,
OND shot2n the b ck of the head killing him. On 1 Mar 04, RICHMOND was 'nterviewed and stated he was watc in e bad
-7411/1/8 head and shoulders throu h the s o e of his rifle, as they were escortin from the field, and
FOR OFFICIAL USE ONLY

saw unge at2 CHMOND stated that he did not realize had placed
flexicuffs lunge, he felt2 as etng attacked, so he
shot him.
(6) ( 61-'1

Attached as Exhibit 2is a Polygraph Examination Report. This exhibit will be destroyed not later than three months after the date of the Report of Investigation (AR 195-6, para 2-6b). The original, to include related polygraph records, is at the US Army Crime Records Center, USACIDC, 6010 6th Street, Fort Belvoir, VA 22060-5585.
Reproduction of this exhibit or its contents is prohibited.
017943
/7
Oca-1-
on I Mar 04 intervieC—Thstated he h d to st o put the flexicuffs on hi ; howevei2ted2ever lunged at hi afte2was in flexieuffs, and knew of no reason wh RICHMOND sho2~state RICHMOND watched him place the flexicuffs on DIR, and after he put the flexicuffs o , he told RICHMOND, "he's good, let's go".2stated RICHMOND then brou ht his un down and they started walking with RICHMOND walking behind himself an tated they only took a couple of steps before RICHMOND ho On 1 Mar 04, SP HHC, 1/27th Infantry Battalion, stated he heard the shot that k lle ated the had seen the farmer earlier in the morning and RICHMO ng him. ted RICHMOND had allegedly as ld kill the2er. ated RICHMOND had commented Iraqis nce the orders for the mission were issued. On 1 Mar 04, PFC2 HC, 1/27 Infantry Battalion was d stated RICHMOND had stated on numerous occasions that he wanted to kill an Iraqi. tated he did not know if RICHMOND was joking or not, but stated "he would always see any Iraqi and ask if he could shoot them".
(
When interviewed, RICHMOND readil admitted to s but ated he o2shot
ecause he saw him lunge at t was uspected that RIC OND was predisposed to killin an Iraqi the day of e incident. I was further sus ec2 ver lunged a and it was also s ected that RI OND Icne2as in flexicuffs

Q7-1(.1'
ot him. RICHMOND denied lcnowi was in flexicuffs at the time of the shooting and RICHMOND aintained he saw nge a111111111.efore he shot him. \'‘ ICHMOND a undergo a polygraph examination to prove the veracity of his statement.
INSTRUMENTATION: This examination was conducted using an Axciton computerized polygraph instrument, SN: 4375, last calibrated on the date of the examination.
OBSERVATIONS: Unusual physiological/psychological reactions were not observed during this examination.
EXAMINER'S CONCLUSIONS- uring the re-ins ment phase, RICHMO ated he did not actually se2 den lunge at but saw him turn towards n a manner that made 2wallunging. RICHMOND stated he only fired at ecause he thought' as in er..0RICHMOND maintained he did not kno as wearing flexicuffs before he shot hi and otheryvise made no comments or s ements contrary to
those previously provided. Cq(.61
An analysis of the polygrams collected determined insufficient criteri was present to make a conclusive decision regarding die truthfulness of RICHMOND. CIA42
e(L\
Durin the os instru ent phase, CHMOND rendered a sworn s teme admit g saw tting fle icuffs o2efore he shot him. RICH2stated he so saw
ithiais halt* ehind his back.before he shot him. RI 2OND tat6d it did2register in his mind tilt2as wearing flexicuffs: because of e-adrenaline i his system he time. RICHMOND also states,2id not lunge at2but whe2mo
FOR OFFICIAL USE ONLY
Attached as Exhibit 2is a Polygraph Examination Report. This exhibit will be destroyed not later than three
months after the date of the Report of Investigation (AR 195-6, para 2-6b). The original, to include related polygraph
records, is at the US Army Crime Records Center, USACIDC, 6010 6th Street, Fort Belvoir, VA 22060-5585.
Reproduction of this exhibit or its contents is prohibited.

017944
out of his rifle's si ht tu2away, he just reacted by shoot' 2RICHMOND stated he shot2ue2'he adrenaline in his body affecting hi 2.rc ption of what was going on. RICHMOND ter2aten the interview stating he had nothing furthe to say and declined to undergo further polygraph 2ng.
RELEVANT QUESTIONS USED:
2(0q0\-'t
Series I
Q: Did you know that man was wearing flexicuffs before he wAs shot?
A: No.
Q: Did you know that man was wearing flexicuffs before he was shot, that morning?
A: No.
Q: Are youlying about why that man was shot thit morning?
A: No.
WITNESS, MONITOR OR INTERPRETER: SA2 593 2,6-1 (GI —
EXAMINEE NATIVE LANGUAdE: English LANGUAGE(S) USED DURING THE EXAMINATION: English EXHIBITS: 4 polygrams, the polygraph consent form(s) and allied documents are on file with the
original report at the US Army Crime Records Center.
Hi • • m
Polygraph Examiner, 221
FOR OFFICIAL USE ONLY
Attached as Exhibit 2is a Polygraph Examination Report. This exhibit will be destroyed not later than three months after the date of the Report of Investigation (AR 195-6, para 2-6b). The original, to include related polygraph records, is at the US Army Crime Records Center, USACIDC, 6010 6th Street, Fort Belvoir, VA 22060-5585.
Reproduction of this exhibit or its contents is prohibited.2
017945
DOD-041124
UNITED STATES
GOVERNMENT RESPONSE TO
v.
DEFENSE MOTION TO SUPPRESS
Edward L. RICHMOND, Jr.
PFC, US Army HHC, lst Battalion, 27th Infantry 25th Infantry Division (Light)
14 July 2004
APO AE 09347-9998
Government responds to Defense Motion to Suppress the Accused's 29 March 2004 statement
to CID.
FACTS
Pertinent facts are:

The Accused was made aware and understood his Article 31 rights, including the rights to remain silent, to discontinue questioning, and to an attorney during a previous CID interview on 1 March 2004. •
The Accused consented to a future polygraph examination on 1 March 2004. •
The Accused was ordered to go to the "Legal" building on 29 March 2004, but he was not ordered to take a polygraph examination or participate in an interview. •
The Accused consented to a polygraph examination and post-polygraph interview on 29March 2004. •
The Accused was made aware and understood his Article 31 rights, including the rights to remain silent, to discontinue questioning, and to an attorney during the entire process
on 29 March 2004.2
• CL)(CIThe Accuse ew that the interviewers, SA /Wand SA SA2ears rank and insignia on his DCU's.2 were CID agents.

The Accused was already familiar with the "Legal" building. The interview room was
not a coercive environment. The door would not even close properly and had no lock.•
The Accused was not told by CID, "your chain of command needs a polygraph done."•
The pre-polygraph, polygraph, and post-polygraph processes were conducted in accordance with applicable DoD and Army regulations. •
did not mark on the polygraph charts — he used a separate sheet of paper.

old the Accused that he did not pass the exam.
annot tell the Accused which questions he "failed" — the exam is gradedoverall at a later date.
• S2old the Accused that the polygraph is admissible in court if the judge lets it
in.
old the Accused that he was there to "help" the Accused tell the truth.•
The approximate four-hour period included less than two hours of interrogation. The other periods were used for administrative and polygraph tasks. S IIIIIBinterrogation techniques were legally permissible and not coercive. •
The ultimate results of the polygraph examination were inconclusive.
-P‘ eU-64colt /V \c_S V7946
LAW & ARGUMENT
The Accused's 29 March 2004 statement to CID was voluntary based on the totality of the circumstances. The Accused's "will" was to make a statement. Case law cited by defense stands for the proposition that Military Judge determines voluntariness as a question of law based on the
totality of the circumstances.
Government requests additional argument after the evidence on the motion is received.
WITNESSES & EVIDENCE
111111impfuo-)

(.(D

Testimony of SA


Rights waiver for the 29 March statement


Rights waiver and statement from 1 March

J, JA 2-25 BCT TF JA
I certify that on 16 JUL 04 this Government Res onse to Defense M ion to Suppress was delivered by e-mail to Defense Counsel, CP
(q(
11111111P

MAJ, JA 2-25 BCT TF JA
2 2 017947
DOD-041126
UNITED STATES
v.
MOTION FOR APPROPRIATE PFC Edward L. Richmond, Jr. RELIEF
U.S. Army
Headquarters and Headquarters Co.,
1st Battalion, 27th Infantry Regiment
25 th Infantry Division (Light) 16 July 2004
APO AE 09347

COMES NOW the accused, PFC Edward L. Richmond, Jr., by and through counsel, to
move for credit for violations of Article 13, Uniform Code of Military Justice (U.C.M.J.),
restriction tantamount to confinement, and Rule for Courts-Martial (R.C.M.) 305.

A. RELIEF SOUGHT
The defense respectfully requests that the defense Motion for Appropriate Relief be granted and that PFC Richmond be awarded credit toward any approved sentence of confinement.
B. BURDEN OF PROOF & STANDARD OF PROOF
Unlawful pretrial punishment and circumstances tantamount to confinement are evaluated according to the totality of the circumstances. See United States v. Herrin, 32 M.J. 983, 985
(A.C.M.R. 1991). As the proponent of the motion, the defense bears the burden of proof by a preponderance of the evidence. The standard of appellate review is for abuse of discretion. See United States v. McCarthy, 47 M.J. 162, 166 (C.A.A.F. 1997).
C. FACTS
On 28 February 2004, Mr2 Iraqi national, was killed near the village of Taal Al Jal. Since 28 February 2004 PFC Richmond has been the only person suspected of killing Mr.4111111-1e is the only ubject of the Criminal Investigative Command investigation.2
n(CI—Lt g) 2
Upon arriving at the scene of Mr.2death, 1SG2om any, took all of PFC Richmond's weapons and supervised the transportation of the soldier fi- m Taal Al Jal to Forward Operating Base (FOB) McHenry. PFC Richmond's platoon is st oned at FOB McHeru-y. Upon arriving at FOB McHenry in mid-morning, CSMONIMseparated PFC Richmond from his unit and permitted him to stay in the tent that housed the chapel. That evening PFC Richmond was allowed to return to his platoon but was told to sleep on the floor of
(
United States v. PFC Edward L. —almond, Jr. Motion for Appropriate Relief
his squad leader's room. The squad leader became PFC Riclunond's guard until he was
transported to FOB Warrior on 29 February 2004. From 29 February 2004 through the present
day, PFC Richmond has been physically separated from his platoon and forced to live on a
different FOB.
During the month of March, PFC Richmond lived at FOB Warrior. His unit housed him in transient billeting in Building 645. Other soldiers passed through the transient billeting, however, PFC Richmond was one of the only full-time non-transient soldiers that was forced to live in this room. The room had no electricity, no heat, and no door to the room. Other E3s of Headquarters and Headquarters Company were not required to live under these circumstances. PFC Riclunond was required to check in with SGT 2f Headquarters and Headquarters Company during the duty day. PFC Richmond contin ally asked his supervisors at FOB Warrior "what was going on" and questioned why he was bein held at FOB Warrior instead of working with his platoon at FOB McHenry. He was told words o the effect of "don't worry about it" and
2
"everything will work out."
(9N

-
PFC Richmond is an 11C. He has not performed as an 11C, or performed any duties commiserate with his mos since 28 February 2004. During March and continuing through April, PFC Richmond worked "extra-duty-type" details. He filled sand bags for days in a row and hours on end. He used the filled sandbags to make walkways and parking stalls. He moved the filled sandbags to different designated blocking positions. He often performed these sandbags details on his own. PFC Riclunond cut the grass surrounding the company area. When the equipment was broken he was required to cut the grass with his e-tool. When he was joined in these tasks, it was by soldiers who were performing extra duty or soldiers who were pending UCMJ action. PFC Richmond picked up trash and unsightly pieces of concrete and large trees and brush.- \PFC Richmond filled in holes in the driving areas with bags of gravel.
PFC Richmond's company commander preferred one charge of murder against the soldier on 5 April 2004.2
014-2_

In mid-April 2004, ILION the C Company Executive Officer, announced to approximately 15 soldiers tha PFC Richmond was a "murderer" and that he "executed" someone. The incident with 1L2occurred when he and PFC Richmond passed each other
as one was exiting the ALOC and one s entering. 1L asked PFC Richmond if he was the soldier from mortars. When PFC Ric d responded ffirmatively, 1LT2aid words to the effect of, "011 hell no. This is him. You a fiickin murderer." 'Continued with "I can't believe you jufst exeCuted that guy! Why wou you o som ing like that?" At least ten NCOs and junior enlisted soldiers were present in the ntr ay hen 1LT as making these comments in a loud accusatory voice. His comm s w s. directed chmond who
,las standing only a few feet from 1L2nd w 0 as i clear v
of the other soldiers. No ( ) z
After seeing PFC Richmond, 1LT ellentered t e ALt0C. Once inside the ALOC, 1LT
began to show soldiers and officers in the ALOC the crime scene photos from the day of Mr.2death. On the day of the killing, 1LTalli was the officer on the scene with a
(.9(d2 L
017949
2

United States v. PFC Edward L. Jinnond, Jr.
Motion for Appropriate Relief

(9(4—'1
digital camera who photographed Mrallirbody. 1LT Plitetained these graphic photos on his digital camera and passed his camera around to other soldiers for them to view the photos. He made comments to the soldiers that PFC Richmond was guilty of murder. Fo 2e arbitraryreason, PFC Richmond has since been banned from the ALOC. The S4, CP 2, will not allow PFC Richmond to perform duty in the ALOC despite requests by the comp commander
to permit him to do so.2 (6)(Qtr-z-
Further, the Headquarters and Headquarters Company First Sergeant, 1S
MEM humiliated PFC Richmond on several different occasions in front of junior enlisted soldiers and NCOs. Specifically, on one occasion, the 1SG called PFC Richmond a criminal while a line of approximately 40 soldiers waited to receive their anthrax shots. All of the 1st Battalion, 27th Infantry soldiers housed on FOB Warrior lizied up to receive their anthrax shots. For accountability purposes, the 1SG verbally checked off each of the sections. For example, he would announce, "HCS," "Supply," "Sl," "Commo," to ensure that each section was present.
When he concluded reviewing the sections, 1SG 2ooked at PFC Richmond and another soldier pending UCMJ action and said "Criminals?' The soldiers who heard this remark ranged in rank from 03 to El. The soldiers laughed and the G moved away to carry on with
other company business.
(9(.(1 -
By the end of April, the command directed PFC Richmond to we wit2There was no other PFC in the company that was forced to live with an NC Other hou 2was available but the command chose to house PFC Richmond with SGT 2that SG could escort PFC Richmond. PFC Richmond was not allowed to go anyw ere without SGT Phan. He could not go to the DFAC alone. He could not go to the PX alone. He could not go to the phone or computer lab alone. He was not allowed to go to the laundry point alone. SGT
taliegulated PFC Richmond's duty day and his off-duty time.
During approximately the second week in May, PFC Richmond's command allowed him to convoy from FOB Warrior to FOB Speicher in order to meet with a psychiatrist. PFC Richmond, having had his weapon confiscated on 28 February 2004, asked his chain-of­command for his weapon during the convoy. The command denied his request. PFC Richmond was forced to endure a several-hour convoy from Kirkuk to Tilcrit with no weapon and no way to protect himself or his comrades if attacked. Further, the command directed PFC Richmond to ride in an unarmored truck with just one unarmed local Traqi driVer.
(Or
By the end of May, PFC Ric 2nd's co2and altered his livin situation. No longer required to be under the 24/7 watc 1 eye of SGTORthe command used PFC Richmond with two other junior enlisted sol ers: PVT2
d2 after several
instances of misconduct and an at em ted suicide, was being chaptered out of the A_rmy for patterns of misconduct. PFC 2ed to his unit after a period of being absent without leave. These soldiers were the only ones required to live three-people to a room; other soldiers lived by themselves with an empty bunkgin their room and space for an additional soldier.
2
3 017950
4
United States v. PFC Edward L. —almond, Jr.
Motion for Appropriate Relief

D. LAW
The defense relies on the following authorities in support of its motion:
Article 13, U.C.M.J. (10 U.S.C. § 813)
R.C.M. 305
Bell v. Wolfish, 441 U.S. 520 (1979)
United States v. McCarthy, 47 M.J. 162 (C.A.A.F. 1997)
United States. v. Stamper, 39 M.J. 1097 (A.C.M.R. 1994)
United States v. Latta, 34 M.J. 596 (A.C.M.R. 1992)
United States. v. Herrin, 32 M.J. 983 (A.C.M.R. 1991)
United States v. Sassman, 32 M.J. 687 (A.F.C.M.R. 1991)
United States v. Russell, 30 M.J. 977 (A.C.M.R. 1990)

United States v. Villamil-Perez, 32 M.J. 341 (C.M.A. 1991)
United States v. James, 28 M.J. 214 (C.M.A. 1989)
United States v. Cruz, 25 M.J. 326 (C.M.A. 1987)
United States v. Mason, 19 M.J. 274 (C.M.A. 1985)
United States v. Suzuki, 14 M.J. 491 (C.M.A. 1983)
United States v. Carmel, 4 M.J. 744 (N.C.M.R. 1977)

E. WITNESSES & EVIDENCE
The defense requests argument on this Motion for Appropriate Relief. The defense intends to present the testimony of PFC Edward L. Richmond, Jr., for consideration of the motion only.
F. ARGUMENT
PFC Richmond suffered hostile and degrading treatment from the leadership of his company and is entitled to credit for unlawful pretrial punishment under Article 13, U.C.M.J.
Pretrial punishment is forbidden in accordance with Article 13, U.M.C.J., 10 U.S.C. § 813, which states that:
No person, while being held for trial, may be subjected to punishment or penalty
other than arrest or confinement upon the charges pending against him, nor shall
the arrest or confinement imposed upon him be any more rigorous than the
circumstances required to insure his presence . . .

The Court of Military Appeals in United States v. James, 28 M.J. 214 (C.M.A. 1989),adopting the standard in Bell v. Wolfish, 441 U.S. 520 (1979), set out a two-prong test to
determine if a violation of Article 13 has occurred. The Court should first decide whether the particular conditions were imposed with the intent to punish. See id. at 216. If the answer is yes, then the conditions are punishment and the Court should consider a sentence credit. See id. If the answer is no, the Court should inquire as to whether the purposes purportedly served by the
4
2 017951
DOD-041130
United States v. PFC Edward L. —ehmond, Jr.
Motion for Appropriate Relief

conditions are reasonably related to a legitimate governmental objective. See id. "[T]f a
restriction or condition is not reasonably related to a legitiinate goal -- if it is arbitrary or
purposeless -- a court permissibly may infer that the purpose of the governmental action is
punishment." Bell, 441 U.S. at 539.
Military appeals courts have routinely and "unequivocally" condemned conduct by those
in positions of authority which result in needless military degradation, or public denunciation or
humiliation of an accused." United States v. Latta, 34 M.J. 596, 597 (A.C.M.R. 1992), citing
United States v. Cruz, 25 M.J. 326 (C.M.A. 1987). Specifically, "public denunciation by the
commander and subsequent military degradation before the troops prior to courts-martial
constitute unlawful pretrial punishment prohibited by Article 13." Cruz, 25 M.J. at 330. The
court further denounced the unnecessary public identification of an apprehended person as a
criminal suspect. See id. at 331 n.3.
Accused soldiers may be entitled to credit toward an approved sentence if they are
repeatedly subject to disparaging remarks by the command. See United States. v. Stamper, 39

M.J. 1097, 1100 (A.C.M.R. 1994) (awarding credit based on disparaging remarks by a company commander regarding a larceny the accused allegedly committed). In such instances, "these remarks chipped away at the accused's presumption of innocence." Id. Further, Article 13 credit can be granted for actions of the command toward the accused soldier when "some of the [restraints] bore no relation to the purposes of his restriction and were unnecessary to his presence." United States v. Carmel, 4 M.J. 744, 748 (N.C.M.R. 1977).
(GI -7--
Both 1LT2d 1SGISMIR degraded and humiliated PFC Richmond in front of his fellow soldiers. T eir comments clearly eroded the basic presumption of innocent until proven guilty. This "moral restriction" should be given significant weight by the court in a totality of the circumstances analysis. See United States v. Russell, 30 M.J. 977, 979 (A.C.M.R.
1990); United States v. Carmel, 4 M.J. 744, 748 (N.C.M.R. 1977).
Furthermore, PFC Richmond was singled out by NCOs and leaders and treated in a derogatory manner in front of other soldiers. The degrading behavior was unwarranted and prejudicial to PFC Richmond. For certain periods, PFC Richmond was under constant NCO supervision. He was not permitted to go anywhere without this NCO escort while other soldiers were free to come and go as they pleased. By placing PFC Richmond in a living and work environment with others undergoing UCMJ action, the command unjustly stigmatized PFC Richmond. See Carmel, 4 M.J. at 748 (considering "constant, enforced association with . . . persons undergoing nonjudicial punishment," as a factor to be considered when assessing unlawful pretrial punishment).
PFC Richmond is entitled to additional credit under Article 13, UCMJ, for unlawful pretrial punishment for the actions by his chain-of-command and for the unnecessary comments made by the unit leadership. See Latta, 34 M.J. at 597, United States v. Villamil-Perez, 32 M.J. 341, 343 (CMA 1991); Cruz, 25 M.J. at 330. The hostile treatment was demeaning to PFC Richmond and chipped away at his presumption of innocence.
See Stamper, 39 M.J. at 1100.
5 2 017952
DOD-041131
0

United States v. PFC Edward L. _Zhmond, Jr. Motion for Appropriate Relief
There is no set formula for calculating credit for pretrial punishment. If the military judge finds that illegal pretrial punishment occurred, he or she determines the sentence credit to which the accused is entitled. The military judge may order more than day-for-day credit for illegal pretrial punishment. See United States v. Suzuki, 14 M.J. 491 (C.M.A. 1983).
Additionally, under United States v. Mason, 19 M.J. 274 (C.M.A. 1985), the Court should
adjudge day-for-day confinement credit for time PFC Richmond was held in conditions
tantamount to confinement. Whether conditions are tantamount to confinement depends on the
totality of the circumstances. Factors to consider include the limits of the restriction, access to
facilities, whether the soldier is singled out by the command, and whether the soldier is permitted
to continue his normal assigned duties. See United States v. Sassrnan, 32 M.J. 687, 690
(A.F.C.M.R. 1991); United States v. Russell, 30 M.J. 977, 979 (A.C.M.R. 1990).
The actions of the command as early as 29 February 2004 are restriction tantamount to confinement. By moving PFC Richmond to a different FOB, under the circumstances of deployment, the command effectively restricted the soldier. PFC Richmond was singled-out by being forced to move to FOB Warrior. When, in a deployed environment, a soldier is reliant on his battle-buddies and his squad, PFC Richmond was moved from that secure environment. He no longer lived, worked or socialized with his squad or platoon. He had little to no contact with his platoon during the time he was at FOB Warrior. He was moved to an unfamiliar post where he knew no one. This was done as punishment to the soldier.
Several other factors contribute to the reasonable conclusion that PFC Richmond suffered restriction tantamount to confinement. The command took PFC Richmond's weapon from him on 28 February 2004. Despite repeated requests by the soldier, the command never returned any weapon to the soldier. In the Iraq Theater of Operations a weapon is a part of each soldier's assigned uniform. The obvious absence of a weapon signals to others that the particular soldier is different. Assuming arguendo, that PFC Richmond shot Mr 2the shot was a well-placed shot at a specified individual for a specified reason. PFC Richmon was not a threat to those around him. He never threatened to shoot any fellow soldiers or hi self. To prohibit PFC Richmond from carrying a weapon on FOB Warrior for force prote tion was a decision made by the command designed to punish the soldier.2
(Cal r-L1
Additionally, since 29 February 2004, PFC Richmond was not permitted to continue his normally assigned duties. Instead, PFC Richmond was singled out and ordered to work extra duty type details. The factor on which the court should focus is not whether the tasks performed by PFC Richmond were those normally assigned to a PFC, but rather that the tasks were assigned to PFC Richmond because he was facing UCMJ action. Absent the pending UCMJ action, PFC Richmond would have performed the duties of an 11C and other combat arms duties. He was denied the opportunity to contribute meaningfully to his platoon and was forced to do menial tasks while pending court-martial.
62 017953

United States v. PFC Edward L. is—flimond, Jr.
Motion for Appropriate Relief

G. CONCLUSION
Under the totality of the circumstances, PFC Richmond's chain of command unlawfully punished him prior to trial. The defense Motion for Appropriate Relief should be granted and PFC Richmond should be awarded an appropriate amount of credit toward any approved sentence of confinement for violations of Article 13, U.C.M.J. Additionally, PFC Richmond is entitled to 154 days credit for restriction tantamount to confinement and 154 days credit for a violation of R.C.M. 305(i), for the time period of 29 February through 31 July 2004.
RESPECTFULLY SUBMITTED:
CPT, J Trial efense Counsel
I certify this I served this defense Motion for Ap opriate Relief on the government trial counselvia e-mail a2
us.army.mil and on the military judge via e-mail on 16 July
2004.
ptc\r--1

Inn"
CPT, JA Trial Defense Counsel
7 2 017954

UNITED STATES
GOVERNMENT MOTION

v.
IN LIMINE I
Edward L. RICHMOND, Jr. PFC, US Army HHC, 1 s' Battalion, 27th Infantry 25thInfantry Division (Light) 16 July 2004 APO AE 09347-9998
Govermnent moves in limine for the Military Judge to preclude the Defense in the above case from making any references, including in voir dire, testimony, evidence, and argument, before the panel to the following:
Any reference to the 18 February 2004 incident involving an IED and engagement with civilians in 1-27 Infantry's area of operations.
FACTS
Pertinent facts are:

18 February 2004 Incident:


On 18 February 2004 several members of HHC, 1-27 Infantry were engaged by an IED while traveling in a convoy through their area of operations.


In reaction to the IED, soldiers provided suppressive fire and then engaged civilians in nearby fields with small arms.


Three female civilians well shot by soldier(s) from distances between 70 and 150 meters, and one was killed!' $


An investigation indicated that SGT 2fired thd shots that struck the three civilians.


The Accused and several other potential witnesses in the instant case were involved in the incident.


There may have been several ROE violations from the incident.


Subsequent to the incident, the soldiers of 1-27 Infantry were counseled, briefed, and trained again on ROE.


28 February 2004 incident (the instant case):

o During morning daylight hours on 28 February 2004, 1-27 Infantry conducted a raid inside a village within their a2of operations.

o The Accused, SGT2, and o2soldiers were providing perimeter/checkpoint security outside the village.

o Upon an order from the commander to detain males o tside the village, the

Accused and SGT2proache2 r that they had been observing for at least an hour.2
(,),-.-1
o The shepherd2 g any threat.
C9N (fel Th2approached with SGT2 himself the duty of
1 ph sic Ily detainin2nd the Accused the duty o security.

operated until SGT2ted to2e flex cuffs on him, at (.. w ich timilMtrugglecLe little with his hands.
*A4-•e--2\I

017955
)
comme
qg ——
o The Accused, apparently at direction of SGTammilmise his weapon from1-3 meters away to m2m read or high ready as a show of ce.

o T e response wo d an2ettled enough for SGT2o secure ehind his back with the flex cuffs.

o egan to lea2a slightly turning him to the left.

o
A r 1-2 steps the Accused 2the back/side of the head and killed
him.
LAW & ARGUMENT
The 18 February 2004 incident is not relevant. Even if relevant its probative value would be substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the members; and it would be a waste of time. RCM 401-403.
111171111
MAJ, JA
2-25 BCT F JA
I certify that on 16 JUL 04 t vernment Motion in Lim e was delivered by e-mail to
Defense Counsel, CPT
C6)N1
J, JA 2-25 BCT TF JA
re
2 2 017956
DOD-041135
UNITED STATES
v. , DEFENSE RESPONSE TO
47 ,
GOVERNMENT MOTION PFC Edward L. Richniond, Jr. IN LIMINE I
U.S. Army Headquarters and Headquarters Co., 1st Battalion, 27th Infantry Regiment 25thInfantry Division (Light) 20 July 2004 APO AE 09347
COMES NOW the accused, PFC Edward L. Richmond, Jr., by and through cotmsel, to respond to the Government's Motion in Limine to preclude the defense from referencing the 18 February 2004 incident involving an IED and engagement with civilians in 1-27 Infantry's area of operations.
A. RELIEF SOUGHT
The defense respectfully requests that the government's Motion in Limine be denied. The evidence at issue meets the requirement of Military Rule of Evidence (M.R.E.) 401. The govenunent fails to establish why introduction of such evidence is improper under M.R.E. 403.
i B. BURDEN OF PROOF & STANDARD OF PROOF
As the proponent of the motion, the govenunent bears the burden of proof by a preponderance of the evidence. Rule for Courts-Martial (R.C.M.) 905(c). On appeal, the standard of review is for an abuse of discretion. See United States v. JenIcins, 27 M.J. 209, 211
(C.M.A. 1988).
C. FACTS
For the limited purpose of litigating this motion, the defense does not object to the facts as represented by the government regarding the 18 February 2004 incident. The defense objects to the government's representation of the facts regarding the 28 February 2004.
The defense supplements the goverrnnent's recitation of the fact with the following important distinction: After the 18 February 2004 incident, the Rules of Engagement (ROE) that were briefed to the soldiers of 1-27th Infantry differed from the previous ROE. The ROE was not simply re-taught but also changed in between 18 February and 28 February.
D. LAW
The defense relies on the following authorities in support of this responsive motion:
R.C.M. 905
ARekt-v-6c1, v\),

iJq 017957
(—)
United States v. PFC Edward L. Richmond. Jr.
Defense Response to Government Motion in Limine 1

M.R.E.
401

M.R.E.
402

M.R.E.
403
United States v. Lanier, 50 M.J. 772 (A.C.C.A. 1999)
United States v. Schap, 49 M.J. 317 (C.A.A.F. 1998)
United States v. Sinunons, 48 M.J. 193 (C.A.A.F. 1998)
United States v. Staley, 36 M.J. 896 (A.F.C.M.R. 1993)
United States v. Cole, 29 M.J. 873, 876 (A.F.C.M.R. 1989), affd, 31 M.J. 270 (C.M.A.

1990)
United States v. Jenkins, 27 M.J. 209 (C.M.A. 1988)
Department of the Army Pamphlet 27-9, para. 5-3-1, dated 1 April 2001

E. WITNESSES & EVIDENCE
The defense requests the opportunity to cross-examine any government witnesses called in support of this motion.
F. ARGUMENT
(,.c),(0)
The government asserts that the 18 February 2004 incident is not relevant. Alternatively,
if relevant, the government states that the probative value would be substantially outweighed by
the danger of unfair prejudice and confusion of the issues. The government believes that
presentation of such evidence would mislead the members and would be a waste of time. The
goveriunent fails to offer any specific argument as to why the statements should be excluded
under M.R.E. 401 — 403.
For evidence to be admitted, it must be both logically and legally relevant at trial. See
United States v. Simmons, 48 M.J. 193, 196 (C.A.A.F. 1998). Relevance is evaluated as any
"evidence having any tendency to malce the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence." M.R.E. 401. Generally, all relevant evidence is admissible. M.R.E. 402.
Once the threshold determination of relevancy is met, evidence may be evaluated for admissibility under M.R.E. 403. Evidence may be excluded if its prejudicial effect is "substantially outweighed" by the probative value of the evidence. The military judge is the gatekeeper for such evidence and should apply a balancing test to determine the admissibility ofevidence under M.R.E. 403. See United States v. Staley, 36 M.J. 896 (A.F.C.M.R. 1993); UnitedStates v. Cole, 29 M.J. 873, 876 (A.F.C.M.R. 1989), aff'd, 31 M.J. 270 (C.M.A. 1990).
In the present case, testimony about the 18 February 2004 shooting incident is relevant as required by M.R.E. 401. The 18 February shooting incident was the catalyst for the ROE to change. The fact that the new ROE changed and was briefed in the days leading up to the 28
February 2004 killing of Mr.2
s relevant to evaluating PFC Richmond's state of mind. A recognized defense to the charge homicide is that the accused acted in defense of another or inself-defense. When evaluating su h a deCense, a military judge may instruct the panel: " I o
61-L1
C9
2

017958

United States v. PFC Edward L. Richmond. Jr. Defense Response to Government Motion in Limine 1
determine the accused's actual belief as to the amount of force necessary, you must view the situation through the eyes of the accused." Department of the Army Pamphlet 27-9, para. 5-3-1, dated 1 April 2001 [hereinafter "DA Patn."]; see also United States v. Lanier, 50 M.J. 772, 776
(A.C.C.A. 1999)(noting the military judge gave the proper defense of another instruction that "correctly oriented the members to view the situation through appellant's eyes"). In viewing the situation through the eyes of the accused, the trier-of-fact may consider any unlimited number of factors, to include: age, intelligence and emotional control. DA Pam. 27-9, para. 5-3-1. In the present case, PFC Richmond's lcnowledge of the mission ROE is relevant to evaluating the situation from the eyes of the accused.
Q")
Additionally, testimony about the 18 February 2004 shooting incident is legally relevant as required by M.R.E. 403, as the probative value greatly outweighs any prejudicial effect. The government fails to state the prejudicial effect of the admissibility of the statement and fails to
name who would be prejudiced by their admissibility. Further, the government has failed to allege how the members would be mislead or confused by the presentation of testimony regarding the 18 February shooting incident. Ultimately, any such minor confusion can be clarified or distinguished by the military judge at the instructions phase of the case. See United States v. Schap, 49 M.J. 317, 324 (C.A.A.F. 1998) (upholding the military judge's explanation in instructions to the panel).
G. CONCLUSION
The govenunent has failed to meet its burden to show why evidence of the 18 February 2004 incident is inadmissible. The 18 February 2004 incident is relevant under M.R.E. 401 and admissible under M.R.E. 402 and 403. The defense respectfully request that the government Motion in Limine be denied.
RESPECTFULLY SUBMITTED:
Trial Defense Counsel
3

017959

United States v. PFC Edward L. Richmond. Jr. Defense Response to Government Motion in Limine I
CERTIFICATE OF SERVICE I certify this I served this Defense Response to Government Motion in Limine I
on the goverment trial counsel via e-mail at s.army.mil and on the militaryjudge via e-mail on 20 July 2004.
Et;)(q -z-
11111111.1.
CPT, JA Trial Defense Counsel
4
017960
k
UNITED STATES GOVERNMENT MOTION
v. IN LIMINE II
Edward L. RICHMOND, Jr. PFC, US Army HHC, 1st Battalion, 27th Infantry 25th Infantry Division (Light) 16 July 2004 APO AE 09347-9998
Government moves in limine for the Military Judge to preclude the Defense in the above case from making any references, including in voir dire, testimony, evidence, and argument, before the panel to the following:
Any reference to the alleged order by company commander CPT 2o shoot all males fleeing a village during the 28 February 2004 raid operation in 1-27 Infantry's area of operations.
FACTS
Pertinent facts are:

In preparation f „frara-i ide a village in the 1- 7 Infant area of operations, on 27 February 20 Alpha C pany Commander CPT 2briefed the operation to partici ting leader including SG2, an HHC Squad Leader.


SGT2unders2 o have briefed the normal ROE for the operation, except S2believed that CPT2added that soldiers were to shoot all males fl ing t e vi lage during the raid (or wor s to that effect).


In turn, SGT2riefed the soldiers assigned to him for the operation, including the Accused. SGT2told the soldiers about his understandin that they were to shoot males fleeing the vi age during the raid. However, SG2told his soldiers, including the Accused, that he (SGT 2would de e if any of them were to shoot fleeing males.


During the morning hours o 28 Februa2, -27 Infantry conducted the raid inside the village.2&)(61-7-


The Accused, SGT2, and other soldiers were providing
perimeter/checkpoint security outside the village.


At some point when the sun rose an unarmed civilian shepherd walked out of the village with his group of cows. SGT2apd his soldiers observed the man, who obviously was not in the process of eeing.2

CCWG)


The Accused asked SGT2f he could shoot the shepherd. SG2old the Accused no.


The shepherd watched the cow as the soldiers continued to observe him for at least an

hour, when an order from t mmander to detain males outside the village came over the radio.2 t


The Accused and SGT2pproached the civilian shepherd, who had not run, fled, or posed any threat at all. The shepherd's name was later learned to b

I c42
Nvc\lch_-61,44“6:
(-'
coN -T

_....nomi
nt(Art-

Th two a roachediliffwith GT 1111.111,signing himself the duty of physicallyd tainin nd the Accus d the duty of security.


cooperated until SGT

ttempted to place flex cuffs on him, at which timestruggled a little with is an s.


The Accused, apparently at the direction of SGT

, raised his weapon from 1-3meters away to medium read or high ready as a sh w of force.
• The response worked an ettled enough for Gal" to secur~armsbehind his back with th ex cuffs.
0-1.61-T_ (9N1

SGT

a , slightly turning him to the left.

After 1-2 steps

• never e so diers n the back/side of the head and killed him. intention or act to flee the village or the custody of the
CIL) (1q r-L1 LAW & ARGUMENT
The alleged order from CPT not relevant. Even if relevantits probative vaue

would be substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the members; and it would be a waste of time. RCM 401-403.
MAJ, JA :2-25 BCT T JA
I certify that on 16 JUL 04 this Goverinnent Motion i was delivered by e-mail toDefense Counsel, CP
z_
J, JA 2-25 BCT TF JA
2 017962
DOD-041141
UNITED STATES
v.
DEFENSE RESPONSE TO
GOVERNMENT MOTION
PFC Edward L. Riclunond, Jr. TN LEVENE II

U.S. Army
Headquarters and Headquarters Co.,
1st Battalion, 27th Infantry Regiment
25th Infantry Division (Light) 19 July 2004
APO AE 09347

COMES NOW the accused, PFC Edward L. Richmond, Jr., by and through counsel, to
respond to the Government's Motion in Limine to preclude the defense from referencing an
alleged order by CPT2to "shoot all males fleeing the village."

(6) NI
A. RELIEF SOUGHT
The defense respectfully requests that the government's Motion in Limine be denied.
The evidence at issue meets the requirement of Military Rule of Evidence (M.R.E.) 401. The
government fails to establish why introductiOn of such evidence is improper under M.R.E. 403.

B. BURDEN OF PROOF & STANDARD OF PROOF
As the proponent of the motion, the government bears the burden of proof by a preponderance of the evidence. Rule for Courts-Martial (R.C.M.) 905(c). On appeal, the standard of review is for an abuse of discretion. See United States v. Jenkins, 27 M.J. 209, 211
(C.M.A. 1988).
C. FACTS
(9N
On 27 Feb ary 2004, Headquarters an eadquarters Company, 1-27 Infantry, tasked
SG -Mortars Platoon, to join a ission lead by A Company, 1-27 Infantry. Late in t e evening of 27 February 2004, SG attended a pre-mission briefing. At the briefing, the A Company Commander, CPT
, told the soldiers words to the effect of, "if there are any males fleeing the village, shoot them," or "put them down."
After the briefing, SGT returned to his platoon area to brief the 4 or 5 soldiers that would be joining him on the ission. These soldiers did not attend the briefing by CPT
bri fed these soldiers that CPT2had announced that if anyonewas eeing the vi or running across the field that the diers were to shoot that person. PFC Edward L. Ric ond, r., attending this briefing an eard SGT2instructions. Other soldiers, includin
atte2e briefing and heard SGTinstructions.

kvoUvc-x„,"\\,
14 017963
United States v. PFC Edward L(2mond, Jr.
Defense Response to Govemment Motion in Limine II

D. LAW
The defense relies on the following authorities in support of this responsive motion:
R.C.M. 905
M.R.E.
401

M.R.E.
402

M.R.E.
403
United States v. Lanier, 50 M.J. 772 (A.C.C.A. 1999)
United States v. Schap, 49 M.J. 317 (C.A.A.F. 1998)
United States v. Simmons, 48 M.J. 193 (C.A.A.F. 1998)
United States v. Staley, 36 M.J. 896 (A.F.C.M.R. 1993)
United States v. Cole, 29 M.J. 873, 876 (A.F.C.M.R. 1989), affd, 31 M.J. 270 (C.M.A.

1990)
United States v. Jenkins, 27 M.J. 209 (C.M.A. 1988)
Department of the Army Pamphlet 27-9, para. 5-3-1, dated 1 April 2001

E. WITNESSES & EVIDENCE
The defense requests the opportunity to cross-examine any government witnesses called
in support of this motion.

F. ARGUMENT (6) (GI
The government asserts that the statements by CPT 11111Ware not relevant. Alternatively, if relevant, the government states that the probative value would be substantially outweighed by the danger of unfair prejudice and confusion of the issues. The government believes that presentation of such evidence would mislead the members and would be a waste of time. The government fails to offer any specific argument as to why the statements should be excluded under M.R.E. 401 — 403.
For evidence to be admitted, it must be both logically and legally relevant at trial. See
United States v. Simmons, 48 M.J. 193, 196 (C.A.A.F. 1998). Relevance is evaluated as any "evidence having any tendency to make the dxistence ofany fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." M.R.E. 401. Generally, all relevant evidence is admissible. M.R.E. 402.
Once the threshold determination of relevancy is met, evidence may be evaluated for Llmissibility under M.R.E. 403. Evidence may be excluded if its prejudicial effect is "substantially outweighed" by the probative value of the evidence. The military judge is the gatekeeper for such evidence and should apply a ba.tancing test to determine the admissibility of evidence under M.R.E. 403. See United States v. Staley, 36 M.J. 896 (A.F.C.M.R. 1993); United States v. Cole, 29 M.J. 873, 876 (A.F.C.M.R. 1989), affd, 31 M.J. 270 (C.M.A. 1990).
2 2 017964
United States v. PFC Edward Laond, Jr.
Defense Response to Govemment Motion in Lirnine II

[_(0\ _'L
In the present case, the statements made by CPT 2relevant as required by
M.R. 401 because they are logically related to the charged offenses. Evidence that CPT
riefed soldiers to "shoot all males fleeing the village," and to "put them down" is relevant to the charge of murder. A recognized defense to the charge of homicide is that the accused acted in defense of another or in self-defense. When evaluating such a defense, a military judge may instruct the panel: "To determine the accused's actual belief as to the amount of force necessary, you must view the situation through the eyes of the accused." Department of the Army Pamphlet 27-9, para. 5-3-1, dated 1 April 2001 [hereinafter "DA Pam."]; see also United States v. Lanier, 50 M.J. 772, 776 (A.C.C.A. 1999)(noting the military judge gave the proper defense of another instruction that "correctly oriented the members to view the situation through appellant's eyes"). In viewing the situation through the eyes of the accused, the trier-of­fact may consider any unlimited number of factors, to include: age, intelligence and emotional control. DA Pam. 27-9, para. 5-3-1. In the present case, the accused's knowledge of the mission objective and Rules of Engagement (ROE) for the mission are all relevant to evaluating the situation from the eyes of the accused.q
C/71(21,"-c—
Additionally, CPTillWarstatements are legally relevant as required by M.R.E. 403, as their probative value greatly outweighs any prejudicial effect. The government fails to state the prejudicial effect of the admissibility of the statement and fails to name who would be prejudiced by their admissibility. Further, the government has failed to allege how the members 27 would be mislead or confused by the presentation of testimony regarding CPTIMIEW (*IP L statement. Ultimately, any such minor confusion can be clarified, delimited or expounded upon by the military judge at the instructions phase of the cases. See United States v. Schap, 49 M.J. 317, 324 (C.A.A.F. 1998) (upholding the military judge's explanation in instructions to the
panel).
G. CONCLUSION
The government has failed to meet its burden to show why CPT 2statements are inadmissible. The statements are both relevant under M.R.E. 401 and a issible under M.R.E. 402 and 403. The defense respectfully request that the government Moti n in Limine be denied.
RESPECTFULLY SUBMITTED:
C*D\
011111111
Trial Defense Counsel
32
017965
DOD-041144
United States v. PFC Edward L. chmond, Jr. Defense Response to Government Motion in Limine II
CERTIFICATE OF SERVICE
I certify this I served this Defense Response to Government Motion in Limine II on the government trial counsel via e-mail atillininrus.army.mil and on the militaryjudge via e-mail on 19 July 2004.
(G)(cl -z--

1111111.Pr
CPT JA Trial Defense Counsel
.r
017966
4
UNITED STATES
v.
FINDINGS OF THE COURT
RICHMOND, Edward L., Jr.
DEFENSE MOTION TO
PFC, U.S. Army
SUPPRESS
HHC, 1/27th IN

APO AE 09347
3 August 2004
The Defense Motion to Suppress is denied.
I make the following findings:
1. The accused is a 20-year old infantry mortarman, who completed 10 years of education and
holds a General Education Diploma from high school. He had been in trouble with the law
several times before coming on active duty. He had been read his rights 2 or 3 times in the past
by law enforcement officials, but does not recall whether he invoked his rights or talked to
investigators in the past. As a child, the accused was diagnosed with Attention Deficit
Hyperactive Disorder, which he describes as causing him to make quick decisions without ,

thinking.
2.
On 28 February 2004, the accused was involved in an incident at Taal Al Jal. During a raid
on the town, the accused, while pulling perimeter security, shot and killed an Iraqi farmer. The
accused subsequently came under investigation for murder.

3.
On 1 March 2004, the accused was advised of his rights under Article 31, UCMJ, using a DA
Form 3881 Rights Warning Procedure/Waiver Certificate. The accused waived his rights to
remain silent or obtain a lawyer and gave a sworn written statement to CID investigators. At that
time, the accused indicated that he would be willing to take a polygraph examination.

4.
The accused did not hear back from CID or any other law enforcement persormel until 28 March 2004. On 28 March 2004, the accused was told by his supervisors to go to "legal" tomorrow. He was not told why to report to "legal."
5. (qu'l
The ne,ct cra , 29 March 2004, when the accused arrived at "legal," he was introduced toSpecial2
, a polygrapher who has traveled from Tikrit to Kirkuk FOB Warr rFto
conduct a po ygraph examination of the accused. The accused knew that S 2as a
enforcement official in a position of authority and that he outranked the accused. S
was friendly with the accused. SA2
advised the accused of his rights again using a DAForm 3881 Rights Warning Proce ur2
aiver Certificate. The accused waived his rights andstated that he was willing to talk to S2The accused understood his rights and
specifically understood that he could ha e (a) stopped the interview at any time and (b) asked for a lawyer at any time. The accused under od that he did not have to stay. The accused wanted to take and pass the polygraph.
017967 NVV6e_CKLM 1 (4. Li
6.
SAiairthen explained to the accused the polygraph examination procedures and obtained the used s consent to take part in a polygraph examinatio 2en took biographical me al information from the accused to make sure was not on any medication, that he felt all right to satisfy the agent that there were n 2edical reasons not to conduct the examination.

7.
SA2en talked briefly with the accused about the case, went over the list of questions to be used duri the examination, and took a break before administering the polygraph. Afterthe break, S2did a practice test to calibrate the machine, then conducted the examination, going over the relevant questions three times.

8.
At the conclusion of the examination, S 2eviewed the results and determined that the accused's test results were either inconcl 2e or failed. He then informed the accused "you did not pass the test." From that, the accu d concluded that he must have failed the test. The accused asked which questions he failed 2plained that he could not tell whichparticular questions the accused fai ed, 2the accused did not pass the test.

6 61r--
9. The cused then tal ed to S2bout the events of 28 February2. he accused did no change his statement about the events right away, but eventually did so. He an
also re-enacted the events of the shooting — role-playing where the accused was and where the farmer was at the time of the shooting. At 1419, the accused signed a sworn written statement regarding the events of 28 February 2004. This statement differed in several respects from the initial statement made by the accused on 1 March 2004. Some of the key differences included the following:
a. The accused stated that the farmer turned away and left his sights, explaining that the farmer might not have lunged at SGT
CI -
b.
The accused stated that, thinking back on it, he must have known the farmer had flexicuffs on but that it didn't "register" in his mind;

c.
The accused stated that the adrenaline was flowing and that because of that he may not have perceived everything clearly.

me point, SA2old the accused that he was there to help him tell the truth. SA
C,c)((312
so told the accuse that the results of the polygraph would be admissible against him in ---eso.zt if the judmallakveci-it7-S2xplained to the accused that he should explain himself.
11. The room in which the interview took place was a room with a conference able, 'several folding chairs, an easy chair, an entrytay with a door that would not remain shut, a balcony at the far end, windows, with drapes, sane boxes, a wall locker, and a fan. The room was not very clean and was most likely normally used ps a day room or "hang-out" room. The temperature was comfortable not too hot, but not too cold. On the conference table was S 2laptop

computer, the polygraph box and cables leading off of the box. The accused sat on a fo ing
CLAA
017968
cha , as did SAIIIIIIPexcept during the takin f the test, at which time the accused was
s ted on the easy chair.
12. The entire process, start to finish, was observed by
IOW
13.The accused had a friendly2fessional, calm, and confident demeanor throughout the time he was with SAIIIIN and S2In testimony before the court on this motion, the accuse/ exhibited a similar demeanor. The accused is a strong-willed person who speaks his mind.
14.During the pre-test interview, Sillintsked the accused if he had ever been charged with anything in the ast. The accused replied that he had and that it related to drugs. The accused told SA2at if he wanted to ask the accused about that, the accused wanted to talk to a lawyer first. S2hen stopped talking to the accused about the prior misconduct and focused on the events of 28 February 2004. I conclude that the accused did not ask to talk to a lawyer before answering questions or talking to a law enforcement investigator about the events of 28 February 2004. SA Huston did not violate the accused's right to talk to a lawyer about these events by continuing his interview/interrogation after the accused's statement. It was clear to the accused and the investigator that the accused's desire to talk to a lawyer related only to the prior drug offenses, which were not the subject of this interview and interrogation.' In the jp
.f
accused's words, he "wanted to be as forthcoming as he could to help with the investigatioir but CD2didn't want to talk about the drugs subject."
15.During the post-polygraph interview, SAIIIMPsuggested several theories of what might —2have happened on 28 February 2004 and asked the accused if any of them were true. The J2accused, fairly forcefully, corrected SA 2ex lainin several times that "that's not the way I remember it." For example, the accused to S 2that it was not an accident, as SA
suggested. The accused wanted to make the post-polygraph statement to help explain why he might have failed the polygraph examination. Th accused thought it was in his best interest to cooperate.
16.During the four hours that the accused was with SA 2, he was permitted to take several breaks — cigarette breaks, and restroom breaks. He was als provided water and an MRE to eat.
17.Neither SAM, nor SAalleriade any promis s to the accused to get him to confess.
Nor did either agent malce anSr threats or in any way t7 or coerce the accused to make a
statemcnt.
18. The accused read his typewritten state t after it was printed out, initialed the places he
s told to ini ial t • - swore to the ement, and signed it. At the end, the accused shookhan with on a cordial note.
I I note that the defense, in written pleadings and oral arguments, concedes that the accused did not make a request
to talk to a lawyer regarding the charge of murder under investigation. The defense does not make an &legation of a
violation of the accused's right to counsel, nor do I find one under the facts of this case. Rather, I find that the
government has proven by a preponderance of the evidence that the accused did not invoke his right to counsel as to
the charge of murder then under investigation.
017969
Anal2and conclusions:
I conclude, based on the totality of the c umstances, that the government has met its burden
(osfApialit a prepo2n9deranche 2oofothzte evideTe t at the accused's typewritten sworn statement to

d is admissible against him. The accused knowingly, intelligently, and consciously waived his ight to remain silent and right to obtain an attorney before talking to law enforcement investigato on 29 March 2004 about the shooting which occurred on 28 February 2004.
I specifically find that the accused's decision to talk to AglIllrfter the polygraph examination, and to render the second sworn written statement to CID was made by him because he wanted to tell the truth, tell what he knew, and assist in the investigation. I find the accused to be an intelligent, articulate soldier. He has a greater knowledge of and experience with the
,2
process of rights advisement than most soldiers his age. He is not a newcomer to the system. I
12further find that the accused is a strong enough person to have told investigators that he did not
want to talk to them or to have demanded to talk to a lawyer about these allegations first before

,--92
¦___..)2talking to investi ators if that was what he wanted to do. Indeed, the accused shut down SA alliarhen S2ted to ask about the prior drug offenses. Further, the accused
(---:
S2
corrected S2when anas suggesting possible scenarios for the shooting. This
___)2
accused is a savvy soldier who made is statement because it was something he wanted to do.
The statement was not the product of coercion by law enforcement investigators. I do not find that SAIIIMover-stepped his bounds in this'case. Siff/Mid not lie to the accused when he told him, "you did not pass the test." SAtid, however, let the accused assume that he thus failed the test. I do not find this to be al"7774wrrent police interrogation technique. Nor to I find S2romise to help the accused tell the truth to be a technique which was
t
ei her designed o overbear the accused's free will, nor did it, in fact, do so. Throughout the rocess, Sillillikaintained a cordial, friendly relationship with the accused, did not pressure
accused in any way, and let the accused give his version of he events of 28 February 2004 in his2way. Certainly, I find no actions by S 2or S2hich offend my sense of due p ess in this case.
Here, the statement made by the accused on 29 March 2004 was the product of an essentially free and unconstrained choice by him. The accused wanted to help investigators, wanted to tell the truth, and wanted to assist in the investigation, in his words. The accused's will was not overborne and his capacity for self-determination was not critically impaired.
The government may introduce Prosecution Exhibits 3 and 4 against the accused at this
court-martial. The defense is free to raise the issue of voluntariness of the statement with the
members if it chooses to do so.
LTC, JA Circuit Judge
017970
UNITED STATES
v.2 FINDINGS OF THE COURT
RICHMOND, Edward L., Jr. 2 DEFENSE MOTION FOR
PFC, U.S. Army2 APPROPRIATE RELIEF
HHC, 1/27th IN
APO AE 09347

3 August 2004
The Defense Motion for Appropriate Relief to grant credit for a violation of Article 13, UCMJ,
for restriction tantamount to confinement, and for a violation of R.C.M. 305 is granted in part
and denied in part.

I make the following findings and conclusions: 2
COP
1.
On 28 February 2004, the accused shot Mr.111111111111111111M, an Iraqi national. That afternoon, he is confined to a tent and guarded by an NCO. That night, he slept on the floor of his squad leadet's container. The next day, he was moved from Forward Operating Base (FOB) McHenry to FOB Warrior. I conclude that the accused was effectively confined on 28 and 29 February and that he is entitled to 2 days credit for such confinement.

2.
From 29 February to the present, the accused has been living at FOB Warrior. He is not performing MOS duties (11C — mortarman). Indeed, all members of his platoon remain at FOB McHenry. I find that the defense has failed to meet their burden of proving by a preponderance of the evidence that the accused was moved to FOB Warrior as a form of punishment for the crime of which he is accused. Indeed, there are many more plausible reasons for why the Battalion Commander ordered the accused to be transferred to FOB Warrior. I find it likely that the commander wanted to (a) prevent any acts against the accused by soldiers who were likely upset over the events of 28 February 20041, (b) segregate the accused from other witnesses to prevent changing of testimony, (c) transfer the accused to the rear support elements who had better ability to maintain supervision and control over him, or (d) better ensure the accused's safety, given his decision to remove the accused's weapon. Any or all of those reasons for the transfer would serve legitimate government interests and not be illegal punishment under Article 13, UCMJ.

3.
Since 29 February, the accused has performed details as assigned daily by his chain of command. Those details involve such things as filling sandbags and placing them, police call, PMCS, area beautification, and mail call. I find no evidence to suggest that the duties performed by the accused are punishment. Rather, I find that the duties he has performed are commensurate with his rank and are, in fact, the norm for many soldiers in the accused's situation. I believe the company commander when he says the dutiqs performed by the accused were legitimate duties

( 6( r
For example, 1LT2who was also living at FbB McHenry, testified that he was very upset by the events of 28 February 2004. If the accused had been on FOB McHenry, the likelihood of an encounter such as that which 0 7 9 7 I
occurred on FOB Warrior on 8 April 2004 was great.
2
1

ftk(,)\(-1--
and that he did not intend "to smoke" the accused. The duties given were not intended to punish the accused. Many days, the accused was not fully employed during the day and was able to use the Internet cafe or do as he pleased. Finally, the accused was permitted specially to have a private space every day from 1100 to 1200 in order to work on his case and assist in his defense. The accused was, arguably, treated better than other infantry soldiers assigned to 1/27 Infantry. Again, the defense has failed to prove by a preponderance of the evidence that the accused's details were either intended to be, or were, illegal punishment under Article 13, UCMJ.
4.
FOB Warrior is a better place to be than FOB McHenry. FOB McHenry is a tiny FOB. It is frequently subject to attack by mortars. The Dining Facility (DFAC) is in a tent. There is no PX, no medical unit, and limited MWR. FOB Warrior is a large FOB. There is a PX, hard shell DFAC, medical and triage units, an Internet Cafe, an Education Center, an MWR facility, a gymnasium, telephone facilities, and a laundry point. FOB Warrior is not attacked as often as FOB McHenry.

5.
After the shooting, on 28 February 2004, the accused's assigned weapon, an M4 with M68 scope, was taken from him. I find this action to be a reasonable response on the part of the chain of command. The accused had just fired that same weapon in an alleged criminal act. It would have been irresponsible to put a weapon with anununition back into his hands. The defense has not proven by a preponderance of the evidence that the decision to remove the accused's weapon

6.
Initially on FOB Warrior, the accused lived in the ALOC. He had his own room. Several other soldiers lived i • -2-, "Tratrsed-was treated well by living there. Later, the accused was - •ved into a container unit with SG1111111re lived with SGT approxi • .tely 30 days. Upon the accused's request, joined in by his defense couns the comm. ¦ der moved the accused out of SG 2ontainer unit and into a container unit occup'ed b2 s then pending UCMJ action rsr AWOL. Privat2as then pending a chapter discharge from the Army due to a patte of miscond gt. The accused was then pending court-martial charges. I find the ommand's decision to p the three together to maintain supervision and control o them to be a reasonable decisi2I do not find that the living arrangements • . for the accused in any way rise to a level of illeg2ent under Article 13

from him was either intended to be, or was, illegal punishment under Article 13, UCMJ. I
further find that it was not necessary for the accused to have a weapon while on FOB Warrior.
Many other people stationed on FOB Warrior did not carry weapons — 2 '01 L
contractors, interpreters, and other civilians did not carry weapons. Neit er the accused, nor Cir2-/
those people, were inherently in danger because they did not have a weapon. Indeed, the
accused did not have to defend himself while on FOB Warrior.

Cbl
7. For one 30 day period, the accused was directly supervised by and lived with SG The company commander's stated purpose for making those arrangements wa to (a) have T an NCO, talce charge of and supervise the accused, along with PVT 2and PVTOM and (b) ensure that if anyone gave the accused any trouble, they would have to answer to SGTpaDuring that 30 day period. SGTIIIIIictated where the accused could go and when.
accused shadowed SG 2verywhere. Although the-B-riga-dad-d-a-golicy 2tha-T-Wh-eTerirer on e OB, they ad to have a buddy, that policy was not always enforced. Further,
2
2 017972
0 0
c6)P-Z-
only th accused was required to have an NCO as his buddy rather than a peer. The effect of
SGTIllibeing the accused's "buddy" for purposes of the policy was to have 24 hour
supervision by an NCO who restricted the accused's freedom of movement. I find that for that
30 day period, the limitations on the accused's liberty rose to the level of restriction tantamount
to confinement and differed significantly from the everyday level of restraint imposed upon other
soldiers assigned at FOB Warrior. The accused is entitled to 30 days credit for that restriction
tantamount to confinement.

8.
Given the Brigade policy, however, and given that all soldiers are restricted to the FOB, I
find it unreasonable to require that the command recognize that the level of restriction for that 30
day period rose to the level of de facto confinement. The command was thus not required to
hold a magistrate's hearing either pursuant to United States v. Rexroat or pursuant to R.C.M. 305
to review the legality of such restriction.

9.
The accused was permitted to use the telephone whenever he wanted, to use the Internet Cafe
often, and to consult with his defense counsel upon request.

10.On one occasion, the accused left FOB Warrior (Kirkuk) by convoy to FOB Danger (Tikrit).
He asked to have a weapon for the trip, but was denied. I find the command's decision to not
issue the accused a weapon for that trip to be reasonable. Again, the accused was charged with a
crime involving misuse of his weapon; it would not have been responsible to put a weapon and
ammunition back into his hands while pending this charge. I further find that the accused was
not in undue risk while on the convoy. The accused was situated similarly todelhers whatilitot
carry weapons — contractors, civilian drivers, and Iraqi interpreters. The convoy had gun trucks
providing security. Most of the soldiers accompanying the convoy were armed with
ammunition. The accused rode in an up-armor HMMWV. The accused was as safe as everyone
else on the convoy. He is not entitled to credit against his term of confinement for that trip.

11.On one occasion, the accused was required to hand-pull weeds with his E-tool after the
weedeater he was using broke. Several days earlier, NCOs in his company had hand-pulled
weeds in the front of the same building. I do not find that the requirement for the accused to pull
weeds2is oo2ishment under Article J3, UCMJ.

12.On or about 8 April 2004, 1LT2aw the accused in the ALOC on FOB Warrior. 1LT
illicalled the accused a "murderer" in a tone of voice loud enough for the 10-15 soldiers in the area to hear. lUMithen, on his own initiative, showed photographs he had taken of the dead victim in this case to the soldiers in the ALOC. The accused is presumed innocent until proven guilty. He is not to be called a "murderer" until and unless he is found guilty of the charge of murder. Although 1L 2not in the accused's chain of command, he is a commissioned officer with authority ov the accused and the other enlisted soldiers in the area. I find that 1L2ctions were degrading and improper. The accused will be credited with 10 days credit for this violation of Article 13, UCMJ.
13. In late June or early July, members of HHC, 1/27 IN, were standing outside the medical
cility on FOB Warrior waiting for their anthrax shots. First Sergeant 2tarted listing
of2sections to ensure everyone's presence. He stated, "Commo?" "ruppo 2S-1?" "S-4?"

017973
DOD-041152
0 0

At the end 1SG2ed to the accused and PV2and said, "Criminals?" The government concedes that 1SG 2ctions were improper and recommends that the accused be credited with 5 days credit against his term of confinement for a violation of Article
13, UCMJ. I agree.
To summarize, the accused is entitled to the following:
Time frame2 Reason2 Days Credit
28-29 Feb 042 RTTC22 2
April 042 RTTC2 30
8 Apr 042 Art. 132 10
late June, early Jul 042 Art. 132 5

Total credit: 47 days
C6)(61-7_2

41•1111--

LTC, JA Circuit Judge
2 Restriction Tantamount to Confinement
4 2 017974
UNITED STATES
v. FINDINGS OF THE COURT
RICHMOND, Edward L., Jr. GOVERNMENT MOTION IN PFC, U.S. Army MINE I (18 Feb 04 IED Incident) HHC, 1/27th IN APO AE 09347
3 August 2004
The Government Motion in Limine I to preclude reference to an 18 February 2004 incident involving an IED and engagement with civilians in 1/27 IN's area of operations is denied.
I make the following findings: (,-10.– C
1. On 18 February 2004, several members of Mist, 1/27 IN were engaged by an IED while traveling in a convoy through their area of operations (AO). In reaction, soldiers provided kc.,...z suppressive fire and then engaged with small arms civilians in a nearby field. SergeantaliM fired shots that ap arentl hit three female civilians, killing one. The accused was part of–M— convoy. Sergean2a.\t,subsequently investigated for his actions. No action has been talcen against SGT... da e.
L,') ((*.1--
2.
After the 18 February 2004 incident, the Battalion counseled, briefed, and trained all 1/27 IN soldiers again on the Rules of Engagement (ROE).

3.
On 27 February 2004, SGT/111111briefed the accused and several other soldiers from the mortar platoon regarding their role the next day to provide security for a raid being conducted by A Company, 1/27 IN in a village in their AO.

4.
On 28 February 2004, the accused, SGT2d others provided perimeter security for A Company's raid. U on an order from th Commander to detain males outside the village, the accused and SGT2pproached a li estock herder that they had been observing for at least an hour. The herder coopera ed until SG ent to put flex cuffs on him. When Mr. he accuse aised his wea on as a sh of force. Mrallitopped resisting and S t the fle cuffs on Mr.2hortly t eafter, the accu ed shot Mr.1111.killi him.

q(c,1 (CW1 CACI2LWP-1
Analysis u
anclA(Cci
nciLisions:
The goverrunent argues that the events of 18 February 2004 are not relevant to the charge pending against the accused. I disagree. I find that the events of 18 February 2004 are relevant to several issues in this case.
First, because the accused was present during the 18 February 2004 shooting, that event is relevant to the accused's state of mind only 10 days later when again engaging a civilian in a
017975
1 4Vkke GOD\ \''0
)
nearby village. The accused's state of mind is directly in issue in deciding any issue of either self-defense, or defense of others, which I expect to be raised by the evidence in this case.
Second, the events of 18 February 2004 apparently led to additional training on the ROE, which the accused received before he went on the raid of 28 February 2004. The accused's understanding of the rules of engagement is relevant to whether his actions on 28 February 2004 were criminal or not.
2
Third, the events of 18 Febiiiii2004 are relevant to explain the actions of SGT on 28 February 2004. Sergean2is the rimary witness against the accused in this ase. The defense is entitled to cast doubt u n SGT 2redibility by suggesting that h is biased against the accused and in favor o the governme because it was in his best inte st to assist the government so that nothing bad w Id happen to im (SG from the February 2004 incident.

Ct;Y--z

I am concerned that this court-martial not turn into a trial of SG 2or any allegations of wrongdoing from the events of 18 February 2004. That will not happen. I am convinced, however, that the relevance of the 18 February events is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members. Further, presentation of this evidence will not delay the case, waste the court's time or present cumulative evidence.
To ensure that this court-martial not be bogged down by substantial evidence on a tangential; issue, however, the defense is on notice that the limited inquiry they requested in their proffer is the extent to which I will permit questioning about this incident. The defense is then free to argue to the members how that incident should color the members view of either (a) SGTWINDtestimony, or (b) the accused's perception of his actions on 28 February 2004.
0(C01—?..-
v—As a reminder, the defense proferred that its line of questioning to SGTialrvould be to the effect of the following:
1.
Isn't it true that, on 28 February 2004, you were under investigation for shooting three civilians after the convoy you were on was struck by an IED 10 days earlier?

2.
In fact, one of those civilians was killed, wasn't she? 3 On 28 February 2004, that investigation was not yet complete, was it?

4. You.were the only zubject of that investigationlveren't you?
If either party believes further inquiry or details must be elicited in the interest of justice, beyond that line of questioning above, you are instructed to request an Article 39(a) session to obtain a ruling from me before asking such additional questions.
LTC,
Circuit Judge

2 2 017976

UNITED STATES
v. FINDINGS OF THE COURT
RICHMOND, Edward L., Jr. GOVERNMENT MOTION IN
PFC, U.S. Army IMINE 11(Alleged order by A Co
HHC, 1/27th IN Commander to shoot males fleeing
APO AE 09347 village)
:3 August 2004
The Government Motion in Limine2preclude reference to An alleged order by the A Company Commander to shoot all males fleeing a village during the raid of 28 February 2004 is denied.
I make the following findings:
1. On 27 February 2004, the A Company Commander, CPT2, briefed the mission the company had for the next day which was to conduct a raid n a village in the 1/27 area of operati ns (AO). SGT as at that briefing.
C,)
(DI t-
2.
SGT2derstoodr.Orinir to have bri t e en-existing rules of engagement (ROE), but also believed that CP had briefed that all males fleeing the village during the raid would be shot, or "put down, or words to that effect.

3.
SGT2in turn, briefed the soldiers assigned to him for the raid, including the accused. SGT2his soldiers that they were authorized to shoot any males fleeing the village, but state that h (SGT2ould decide if any of them were to shoot anyone.

RN-7,
4. On 28 February 2004, the accused, SG2thers provided perimeter security for A Company's raid. After sunrise, the accused and SG 2watched an Iraqi man walk out of the village with his cows. The accused asked SG 2if he could shoot the man. SGT
told the accused, "No." The accused and SG 2observed the man for at least an

9(6),Z_
(„q(Ccfr-L7
5. Shortly there riiiimmander ordered his soldiers to de in males o side the village. The accused SGT2approached the cow herder. Th herder, M 2cooperated until SGT2went to put flex cuffs on him. When Mr 2truggled, the accused raised his wea on as a show of force. Mr. 2topped resisting and SGAINIput the flex cuffs on Mr.2hortly thereafter, the acc sed shot Mr "Irk2illing him.
C1'),6)
Analysis an Conclusions: '(-1
The government argues that alleged ordet by CPT 2o shoot all males fleeing the village is not relevant to the charge pending ag.ainst the accused. I disagree. I find that it is relevant to several issues in this case.
C4¦

12
I E) ')217977
First, the order is part of the res gestae of this case. It is evidence inextricably part of the events of 28 February 2004 and would be relevant on that ground alone.
Second, to the extent that the accused was aware of the Commander's authorization to shoot all males fleeing the village, or believed that authorization to have been given, it is relevant to the accused's state of mind at the time that he shot Mr 2MIMIor the defense of self-defense or the defense of others, the accused's state of mind is direct y relevant. I anticipate those defenses may be raised in this case.2 (941
The government argues that if evidence of this alleged order or authorization is brought before the members, they will jump .0 the conclusion that the Company Commander authorized a violation of the ROE. The government further argues that the members will thereby be misled and confuse the issues. I disagree. The members are smart enough not to automatically jump to that conclusion. In addition, I can clarify in instructions that the members are not to speculate on whether (a) the order or authorization was actually given, or (b) whether such order was or is a violation of the ROE. I can instruct the members to make cerlain they use that information for proper purposes. Toward that end, counsel are encouraged to' suggest appropriate instruction on this issue depending upon how the evidence shapes up at trial.

filar(t4w-,
LTC, JA Circuit Judge
017976
2
UNITED STATES

FLYER
v.
Edward L. RICHMOND, Jr. PFC, US Army BBC, lst Battalion, 27th Infantry 25th Infantry Division (Light) APO AE 09347-9998
THE CHARGE
SPECIFICATION: In that Private First Class (E3) Edward L. Richmond Jr., U.S. Arm , did, at or near Taal Al Jal, Iraq, on or about 28 February 2004, murder means of shooting him in the head with a rifle.2
(cYcl
NOck_GAAI 1) 7 9

DEFENSE VOIR DIRE QUESTIONS
U.S. v. Richmond
Charge I: Violation of the UCMJ, Article 118
THE SPECIFICATION: In that Private First Class Edward L. Richmond, Jr., U.S. Army,
did, at or near Taal Al Jal, Iraq, on or about 28 February 2004, murder
means of shooting him in the head with a rifle .
Cs1(q-`1
1. Do you know the accused in this case, PFC Richmond? Yes ( ) No ( )
a. If yes, how?
2. Do you have any prior knowledge of the facts or events in this case?
Yes ( ) No ( )

b. If so, what is your knowledge? (I.e., Sig Acts, Serious Incident Reports, etc.)
3.
Have you or any member of your family ever been charged with or investigated for an offense similar to that charged in this case? (By "similar," I mean a crime of violence.) Yes ( ) No ( )

4.
If so, will that experience influence the performance of your duties as a court member in this case in any way? Yes ( ) No ( ) Explain.

5.
Have you, or any member of your family, or anyone close to you personally, ever been the victim of an offense similar to that charged in this case? Yes ( )2No ( )

a.
If so, please explain.

b.
If so, will that experience influence the performance of your duties as a court member in this case in any way? Yes ( ) No ( ) Explain.

6.
Are you serving as a court member for the fir.st time in a trial by court-martial? Yes ( ) No ( )

7.
I am sure you are basically familiar with the military justice system, and you know that the accused has been charged, his charge has been forwarded to the convening authority and referred to trial. None of this warrants any inference of guilt. Can you follow this instruction and not infer that the accused is guilty of anything more than what he has pled guilty to merely because the charge has been referred to trial? Yes ( ) No ( )

kVAz\VA-v- Gfy-XV

1407980
8.
Do you understand that the burden of proof to establish the accused's guilt of the
greater offense of murder rests solely upon the prosecution and the burden never
shifts to the defense to establish the accused's innocence?

Yes ( ) No ( )

9.
By law, the defense has no obligation to present any evidence or to disprove the
elements of the offense of murder.

a.
Do you agree with this rule?

b.
If you do not agree, will you be able to set your personal opinion aside and follow the law in this matter?

10.
Do you believe that the prosecution should not be held to such a high standard?
Yes ( ) No ( )

11.
Do you believe that the defendant should have to prove his innocence?
Yes ( ) No ( )

12.
Have you ever applied for a specialized law enforcement position?

13.
The jury for this case will probably be made up of court members of different
rank. Will you feel free to voice your opinion in deliberations, and then vote
according to your own opinion, even if someone higher in rank disagrees with you?

Will you allow anyone subordinate to you to do the same?

14.
Have you had a dealings with any of the arties to the trial, to include the
military judge, LTC and counsel (MAJ PT PT

11111111-whighmight affect r performance of duty as a court ember in any way? If you haVe-an connect' please raise your hand:
b.
MAJ

c.
CPT

Cg(0-7--
22 017981
DOD-041160
d. C P T
[L\
15. Do you know of anything of either a personal or professional nature that would cause you to be unable to give your full attention to these proceedings throughout the trial from 4-5 August? Yes ( ) No ( )
e. If so, please explain:
16.
Do you, having read the charge and specification, believe that you would be
compelled to vote for any particular punishment, if the accused is found guilty,
solely because of the nature of the charge? Yes ( ) No ( )

17.
Are you aware of any matter that might raise a question concerning your
participation in this trial as a court member?
Yes ( ) No ( )

18.
Do you believe that because the soldier has been charged that he is probably
guilty? Yes ( ) No ( )

19.
If you came to the conclusion that the prosecution had not proven the guilt of PFC Richmond beyond a reasonable doubt, and you found that a majority of the panel believed that he was guilty, would you change your verdict because you were in the minority Yes ( ) 2No ( )

20.
Have you sat on a panel previously? Yes ( ) 2No ( )

If so, what was your trial about?
21. Do you regularly view the community MP Blotters and Serious Incident Reports? Yes ( )2No ( )
22. Do you recall seeing anything about this case on those reports? Yes ( )2No ( ) If so, please explain.
23. Has this case been discussed in command meetings or briefings? Yes ( ) No ( )4
24. You are aware that courts martial are governed by certain rules, which are
-
designed not only to assist you in reaching the truth, but also to ensure fairness to both sides. Can you accept this proposition? Yes ( ) No ( )
32 017982
DOD-041161
25.
Would you agree that each side is entitled to have those rules enforced so that only proper matters are brought before you for consideration? Yes ( ) No ( )

26.
Does you agree that the defense or prosecution may properly object to evidence that the other side is trying to offer because the evidence does not comply with the rules governing courts-martial? Yes ( ) No ( )

27.
Would you hold it against either side in your deliberations for attempting to prevent improper evidence from coming before you? Yes ( ) No ( )

28.
Would you agree that a statement under stress could be unreliable or untrue? Yes ( ) No ( )

29.
Have you ever th ght you signed a document, then later discovered that you had been mistaken r sjgned something other than what you thought you were signing? Yes Noi( )

(V
(only if statement is not suppressed)
30. Do people sometimes sign documents without reading them carefully? Yes ( ) No ( )
31.Do you agree that many words in the English language can have different meanings?
32.
Do you agree that a word may mean one thing to one person and another thing to a different person?

33.
Do you agree that there may be circumstances surrounding an interrogation of an individual that could make that person get confused?

34.
Would you agree that a person's age, experience, and education might be relevant to how well they would understand an interrogator's questions?

35.
Would you agree that these factors would also affect how well they could handle the pressure of being interrogated?

2 017983
4
(7)
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36.
This case involves the death of an individual who was shot in the head. You are likely to see photographs of the body. Do you agree that it is natural to have an emotional reaction to these types of photographs?

37.
Do you agree that an emotional reaction can have an impact on your ability to rationally and objectively evaluate the facts of the case?

38.
Do you agree to minimize, as extensively as possible, your emotional reactions to the photographs you may see in order to give PFC Richmond a fair and impartial trial?

39.
Do you agree that seeing pictures of a dead body do not necessarily prove

anything about the circumstances of the death? Ai`
cf9iL".-1—
40. The d e se in this case is defense of another. /PFC Richmond was defending SSG The military judge will instruct you that if there is evidence of defense o another person, then it is lawful to use as much force as that person would be entitled to use in self-defense. When there is evidence of self-defense, the government must prove beyond a reasonable doubt that the person did not act in self-defense. Would you have difficulty returning a verdict of not guilty if the government fails to prove be ond a reasonable doubt that PFC Richmond was not acting in defense of SS
(6) --`1
41.
There will be no question in this case tha as shot by PFC Richmond. Do you agree that a person has a right to shoot an attacker if he believes that another person is in actual danger of being seriously hurt by that attacker?

42.
Should the military judge instruct you that if PFC Richmond had a reasonable belief that he could use whatever force he believed necessary to stop the attack upon SSGENW, to include shooting, and not be guilty of murder, could you follow that instruction? CAL\ :1_

43.
Knowing that the charge in this case is murder, could you give PFC Richmond the same fair trial that you would give him if he were charged with a less serious crime?

44.
This case may involve evidence about the Rule of Engagement given to PFC Richmond before the shooting. Do you agree that soldiers are not always clear on the ROE?

45.
Do you agree that changes in the ROE might confuse a young soldier?

46.
Do you agree that soldiers must make life or death decisions on the battlefield?

47.
Do you agree that they must often make these decisions immediately, with no time for reflection?

5
48.
Do you agree that they must often make these decisions based on incomplete
information?

49.
Do you agree that a snap decision based on incomplete information may turn
out to be wrong, in hindsight?

50.
But do you agree that the decision should be judged based on what the soldier
knew at the time?

51.
You will hear from many witnesses throughout the case. Can you evaluate their
testimony based on the factors the judge will instruct you on and not in reference to
"what side they are on" or other such extraneous factors?
Yes ( ) No ( )

52.
Are you willing to consider a full range of punishments if PFC Richmond is
found guilty? Yes ( ) No ( )

53.
Do you feel that the convening authority expects a particular verdict or sentence
because he selected you to sit on this court martial? Yes ( ) No ( )

54.
Do you agree that even an honest person can have an imperfect memory?
Yes ( )2No ( )

55.
In general, do you think that witnesses called by the prosecution have more credibility than defense witnesses? Do you think that defense witnesses have more credibility than prosecution witnesses?

56.
Do you agree that you will be fulfilling you sworn duty if you find PFC Richmond not guilty because the trial counsel failed to prove him guilty beyond a reasonable doubt? Yes ( ) No ( )

57.
Having read the charge and specification, do you feel that you cannot give the accused a fair trial for any reason? Yes ( ) 2No ( )

a. If yes, what is your concern?
58. The presumption of innocence law requires you to find the defendant not guilty unless you are convinced beyond a reasonable doubt that the accused is guilty.
a.
Do you disagree with this law?

b.
Can you apply this rule and follow it in this trial?

59. Is there anything I have omitted which the Court needs to know?
2
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Members of the panel, the defense has introduced evidence that the accused took a polygraph examination before making his second statement, dated 28 March 2004. You are advised that you may not consider that polygraph evidence or its results for the purpose of determining whether the accused told the truth or not when he made either of his statements. The accused's credibility, like the credibility of all other witnesses, is a matter for you to determine, not a box or machine.
You may consider that evidence for the limited purpose, if any, of its tendency to support the defense theory that the second statement made by the accused was not voluntary because the special agent who interviewed the accused may have lied to him about the results or may have promised to help the accused. You must determine the weight or significance, if any, such statement deserves under all the circumstances. In deciding what wiehgt or significance, if any, to give to the accused's statements, you should consider the specific evidence offered on the matter, your own common sense and knowledge of human nature, and the nature of any corroborating evidence as well as the other evidence in this trial.
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Question by Court-Martial Member

Panel Member's Rank & Name: 60u

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Name of Witness: Question(s): 4171c114.Efier2Pyr RAtifolowtd Ow via* i+it)2PtJ wm-c4 qm ill/Neon /1-T. 14-124-- 64/6 " 14-es Ge1111.(f-0. "
Objection(s) by Trial Counsel2(Yes) Grounds:
Signature: 2 Objection(s) by Defense Counsel2(Yes)2
e)
Grounds:
Signature:
Appellate Exhibit \/\\ \i\
017990
Question by Court-Martial Member

Panel Member's Rank & Name: _____CZ_Iejgar/P
(Please Print)
Name of Witness:
Question(s):

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Signature:
Appellate Exhibit 17991
DOD-041170

Question by Court-Martial Member

Panel Member's Rank & Name:
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Name of Witness:

P ININME
Question(s):2°awl_ pou-4,3i
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Signature:
Objection(s) by Defense Counsel 2(Yes)2(No) Grounds:
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Signatur
Appellate Exhibit *\(\ 2
017992
DOD-041 171
Question by Court-Martial Member

Panel Member's Rank & Name: (Please Print)2 Name of Witness: t-6 ((01-Z---
Question(s):

Objection(s) by Trial Counsel2(Yes) Grounds:
Signature: Objection(s) by Defense Counsel2(Yes) Grounds: Mt-07-Signatur r(-No)
Appellate Exhibit 2 017993
DOD-041172

Question by Court-Martial Member
Panel Member's Rank & Name:
2
(Please Print)
(c) —2
Name of Witness: 2 Question(s): 610 40A 5 lervi2Lic4 ovA St+isoT frf-rm i AtoV13" IA)14-1 Le govi2FLey. curpm.
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Signature: Objection(s) by Defense Counsel2(Yes) Grounds: LL)2(GI Signature:
Appellate Exhibit \((\\O
017994
Question by Court-Martial Member Panel Member's Rank & Name: 2c.A.0 (Please Print) Name of Witness: Question(s): slot is fr_ 1/014 so-0 7-?/yr•r-L-6--) MOP 5 "Pm-r 11 ciiia Liar A-14-.PlevriJS NIZCZ Aratiirfrkerill tio4 .SA-)02Sei-r62-P7..e\-/2(4,"3/r• YoLi (A" sptooT 4)6 hl-tr At_nt/h.04 //kC.LIAxtoc ." Yot4 04A./ 77401-7---Nbr acwL 713 04/Ct
Objection(s) by Trial Counsel2(Yes)2(No) Grounds:
Signature: Objection(s) by Defense Counsel 2(Yes) Grounds:
Signature:
Appellate Exhibit \(\.\(\ \ V017995
DOD-041174

Question by Court-Martial Member
Panel Member's Rank & Name: 0,e5u
(Please Print)
Name of Witness:
Question(s):
1)
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Pae, to, OY\ .
Objection(s) by Trial Counsel 2(Yes)2(No)
Grounds:

Signature:
Objection(s) by Defense Counsel 2Yes)2(No)
Grounds:

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Signatur
Appellate Exhibit
017996
Question by Court-Martial Member
Panel Member's Rank & Name: (Please Print)
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Name of Witness: Question(s):
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Objection(s) by Trial Counsel2(Yes)2(No) Grounds:
Signature: 2 Objection(s) by Defense Counsel 2(Yes) (R
N-) ) Grounds: (_t) (GI -I_ signatur1111110.
Appellate Exhibit
UNITED STATES

FINDINGS WORKSHEET
v.
Edward L. RICHMOND, Jr. PFC, US Army HHC, 1st Battalion, 27th Infantry 25th Infantry Division (Light) APO AE 09347-9998
Private First Class Edward L. Richmond, Jr., this court-martial finds you:
Of the Charge and its Specification:
[a] Not Guilty
OP
+15.1-Guaty-
[o] Not guilty, but guilty of voluntary mans‘aughter in violation of Article 119
for
: t
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igna re o resi ent) C.EDL t 45/4
United States v. Riclunond
Findings Instructions
Members of the court, when you close to deliberate and vote on the findings, each of you must resolve the ultimate question of whether the accused is guilty or not guilty based upon the evidence presented here in court and upon the instructions which I will give you. My duty is to instruct you on the law. Your duty is to determine the facts, apply the law to the facts, and determine the guilt or innocence of the accused. The law presumes the accused to be innocent of the charge against him.
You will hear an exposition of the facts by counsel for both sides as they view them. Bear in
mind that the arguments of counsel are not evidence. Argument is made by counsel to assist you
in understanding and evaluating the evidence, but you must base the determination of the issues
in the case on the evidence as you remember it and apply the law as I instruct you.
During the trial some of you took notes. You may talce your notes with you into the deliberation
room. However, your notes are not a substitute for the record of trial.
I will advise you of the elements of each offense alleged.
Unpremeditated Murder
In the specification of the charge, the accused is charged with the offense of murder, in violation
of Article 118, UCMJ. To find the accused guilty of this offense, you must be convinced by
legal and competent evidence beyond a reasonable doubt of the following elements:
(1)
That is dead;

(2)
That his death resulted fr the act of the accused in that the accused shot him in the head with a rifle at or ne T 1 21, Iraq, on or about 28 February 2004;

(3)
That the killing o2 the accused was unlawful; and

(4)
That, at the tim of the killing, the accused had the intent to kill or inflict great bodily harm upon

The killing of a human being is unlawful when done without legal justification or excuse.
The intent to kill or inflict great bodily harm may be proved by circumstantial evidence, that is, by facts or circumstances from which you may reasonably infer the existence of such an intent. Thus, it may be inferred that a person intends the natural and probable results of an act he purposely does. Therefore, if a person does an intentional act which is likely to result in death or great bodily harm, it may be inferred that he intended to inflict death or great bodily harm. The drawing of this inference is not required.
406440,011
1 469 9
"Great bodily harm" means serious bodily injury. "Great bodily harm" does not mean minor
injuries, such as a black eye or bloody nose, but does mean fractured or dislocated bones, deep
cuts, torn parts of the body, serious damage to internal organs, and other serious bodily injuries.
Voluntary Manslaughter
The lesser offense of voluntary manslaughter is included in the crime of unpremeditated murder. Voluntary manslaughter is the unlawfill killing of a human being, with an intent to kill or inflict great bodily harm, done in the heat of sudden passion caused by adequate provocation. Acts of the accused which might otherwise amount to murder constitute only the lesser offense of voluntary manslaughter if those acts were done in the heat of sudden passion caused by adequate provocation. Passion means a degree of anger, rage, pain, or fear which prevents cool reflection. The law recognizes that a person may be provoked to such an extent that in the heat of sudden passion caused by adequate provocation, he strikes a fatal blow before he has had time to control himself. A person who kills because of passion caused by adequate provocation is not guilty of murder. Provocation is adequate if it would cause uncontrollable passion in the mind of a reasonable person. The provocation must not be sought or induced as an excuse for killing or doing harm.
If you are not satisfied beyond a reasonable doubt that the accused is guilty of murder but you are satisfied beyond a reasonable doubt that the killing, although done in the heat of sudden passion caused by adequate provocation, was done with the intent to kill or inflict great bodily harm, you may still find him guilty of voluntary manslaughter.
The intent to kill or inflict great bodily harm does not have to exist for any measurable or particular time before the act which causes the death. All that is required is that it exist at the time of the act which caused the death.
Negligent Homicide
You are further advised that another lesser included offense of the charged offense is Negligent Homicide in violation of Article 134, UCMJ. If you find the accused not guilty of unpremeditated murder, ma not guilty of voluntary thanslaughter, you should then consider whether the accused is guilty of negligent homicide. In order to find the accused guilty of this lesser-included offense, you must find the following elements beyond a reasonable doubt:
(1) That 10111111114,is dead;
CID(
(2)
That his death resulted fi-om the act of the accused, that is that at or near Taal Al Jal, Iraq„ on or about 28 February 2004, the accused sho2 n the head with a rifle;

(3)
That the killing by the accused was unlawful;

(4)
That the act of the accused which caused the death amounted to simple negligence; and

(5)
That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

2 2 018000

:Conduct prejudicial to good order and discipline is conduct which causes a reasonably direct and
obvious injury to good order and discipline. Service discrediting conduct is conduct which tends
to harm the reputation of the service or lower it in public esteem.
Killing of a human being is unlawful when done without legal justification or excuse.
Simple negligence is the absence of due care, that is, an act by a person who is under a duty to
use due care which demonstrates a lack of care for the safety of others which a reasonably
careful person would have used under the same or similar circumstances.
The offense of negligent homicide differs from unpremeditated murder and voluntary
manslaughter primarily in that it does not require that you find beyond a reasonable doubt that
the accused had the intent to kill or inflict great bodily harm. It also does not require that you
find beyond a reasonable doubt that the accused was acting in a sudden heat of passion caused by
adequate provocation.
Defense of Another
The evidence has raised the issue of defense of an
er in rela on to the offenses of either
unpremeditated murder, or voluntary manslaughte , or negli e homicide. There has been some
evidence that the accused ma have shot Mr. er Mr2

unged or took some
aggressive act toward SG A person may use force in de ense of another only if that
other person could have lawfu ed such force in defense of himself under the same
circumstances. Therefore, if S
uld lawfully have used force in defense of himself,
the accused could also have 2nde

the same manner.
.51(0—
For defense of another to exist, the accused must have a2
o able belie at death or
grievous bodily harm was about to be inflicted on S , the accus must have actually believed that the force he used was necess to protec
n other words, defense of another has two parts. First, the accused m ave2a reasonable belief that death or grievous bodily harm was about to be inflicted on SG111111111111he test here is whether, under the same facts and circumstances, a reasonably prudent person, faced with the same situation, would have believed that death or grievous bodily harm was about to be inflicted. Second, the accused must have actually believed that the amount of force he used was necessary to protect against death or grievous bodily harm. To determine the accused's actual belief as to the amount of force necessary, you must view the situation through the eyes of the accused. In addition to what was lcnown to the accused at the time, the accused's age, intelligence, and emotion4 control are all important factors to consider in determining his actual belief as to the amount Offorce necessary to protect SGT 2s long as the accused actually believed that
the amount of force he used was necessary to pro ct against death or grievous bodily harm, the fact that the accused may have used such forte or different type of force than that used by the attacker does not matter.
RC) "L
The accused, under the ress re of a fast moving situation or immediate attack, is not required to pause at his or SG2eril to evaluate the degree of danger or the amount of force necessary to protect SG 2
deciding the issue of defense of another, you must give careful consideration to t e violence and rapidity, if any, involved in the incident. The rapidity

(9(0 -L
23 018001
of the situation impacts both upon the accused's actual belief as to the amount of force necessary and as to whether a reasonably prudent person, faced with the same situation, would have believed that death or grievous bodily harm was about to be inflicted upon SAME.
ace61(iVL
The burden is on the prosecution to establish the guilt of the accused. Unless you 2sa s led beyond a reasonable doubt that the accused did not act in defense of another, you must acquit the accused of the offenses of either unpremeditated murder, or voluntary manslaughter, or negligent homicide. If you are convinced beyond a reasonable doubt that the accused did not act in defense of another under the law, you may find him guilty of unpremeditated murder or another lesser included offense.
Mistake of Fact Defense
(.) (q(C\-Z--

e evidence has raised the issue of mistake on the part of t 2cused concerning whether Mr.
allinvas about to inflict death or great bodily harm on SG 2in relation to the offenses of unpremeditated murder, voluntary manslaughter, and negligent homicide. You should consider that evidence in determining whether the government has proven beyond a reasonable doubt that the accused's acts were unlawful.
The accused is not guilty of these offenses if:
1 he mistalcenly believed that M2as about to inflict Lath Or great bodily harm on SGT nd lirr(111-1
(2) if such belief on his part was reasonable,t
To be reasonable the belief must have been based on information, or lack of it, which would indicate to a reasonable person that M2as about to inflict death or great bodily harm on SGTIMAdditionally, the mistake c ot be based on a negligent failure to discover the true facts. Q,"")LCA I2

CAL)
Negligence, again, is the absence of due care. Due care is what a reasonably careful person
would do under the same or similar circumstances.

The burden is on the prosecution to establish the accused's guilt. If you are convinced beyond a
reasonable doubt that, at the time of the charged offense or its lesser included offenses, the
accused was not under the mistaken belief that Mr 2s about to inflict death or great
bodily harm on SGT2e defense of mista2t exist. Even if you conclude that
the accused was under the2n belief that M2bout to inflict death or great
bodily harm on SG2u are cobvinced beyond a re onable doubt that, at the time of
the charged offense or its less2luded offenses, the accused' mistake was unreasonable, the
defense of mistake doe,s not e st. 2
CL)(C)
Q;)((,,,
Circumstantial Evidence
Evidence may be direct or circumstantial. Direct evidence is evidence which tends directly to
prove or disprove a fact in issue. If a fact in issue was whether it rained during the evening,
testimony by a witness that he or she saw it rain would be direct evidence that it rained.

42 018002

On the other hand, circumstantial evidence is evidence which tends to prove some other fact
from which, either alone or together with some other facts or circumstances, you may reasonably
infer the existence or nonexistence of a fact in issue. If there was evidence the street was wet in
the morning, that would be circumstantial evidence from which you might reasonably infer it
rained during the night.
There is no general rule for determining or comparing the weight to be given to direct or
circumstantial evidence. You should give all the evidence the weight and value you believe it
deserves.
I have instructed you that either for unpremeditated murder or voluntary manslaughter, the
accused's specific intent to kill or inflict great bodily harm must be proved beyond a reasonable
doubt. Direct evidence of intent is often unavailable. The accused's intent, however, may be
proved by circumstantial evidence.
Stipulations of Fact
The parties to this trial have sti ulate or a r ed that the name of the Iraqi man who was shot
and Idlled in this case wa2 They have also stipulated that the two vehicles in the left horizon background of the picture which is 5 of 10, in Prosecution Exhibit 7, are where the TCP was during the mission of 28 February 2004. When counsel for both sides, with the consent of the accused, stipulate and agree to a fact, the parties are bound by the stipulation and the stipulated matters are facts in evidence to be considered by you along with all
the other evidence in the case.
Credibility of Witnesses
You have the duty to determine th4believability of the witnesses. In performing this duty you
must consider each witness' intelligence, ability to observe and accurately remember, sincerity
and conduct in court, and character for truthfulness. Consider also the extent to which each
witness is either supported or contradicted by other evidence; the relationship each witness may
have with either side; and how each witness might be affected by the verdict.
In weighing a discrepancy between witnesses, you should consider whether it resulted from an innocent mistake or a deliberate lie. Taking all these matters into account, you should then consider the probability of each witness' testimony andAhe inclination of the witness to tell the truth. The believability of each witness' testimOny should be your guide in evaluating testimony and not the numb& of witnesses called. These rules apply equally to the testimony given by the accused.
Prior Inconsistent Statements
b)N\You have heard evidence that SGT gralliLd the ccused made statements prior to trial that may be inconsistent with their testimony at this tria . If you believe that an inconsistent statement was made, you may consider the inco istency in evaluating the believability of the testimony of either the accused or SGT 2r both. You may not, however, consider the prior statement as evidence of the truth of the matters contained in that prior statement.
5 2 0 1-§ 93

Character Evidence
To show the probability of his innocence, the defense has produced evidence of the accused's
character for good duty performance. Evidence of the accused's good character may be
sufficient to cause a reasonable doubt as to his guilt.
On the other hand, evidence of the accused's good character may be outvveighed by other
evidence tending to show the accused's guilt .
9 av

Evidence has been received as to SGT2s bad character for truthfulness. You may
consider this evidence in determining SGT 2elievability.
Uncharged Misconduct
You may consider evidence that the accused may have failed a PT test or gotten into a fight at a
club in Hawaii for the limited purpose of its tendency, if any, to test the basis of the opinion of
the witnesses who testified to the accused's character for being a good soldier. Those questions
and answers may enable you to assess the weight you accord to that testimony.

You may not consider this evidence for any other purpose, and you may not conclude from this
evidence that the accused is a bad person or has general criminal tendencies and that he,
therefore committed the offense charged.
Closing Substantive Instructions On Findings
You are further advised:
First, that the accused is presumed to be innocent until his guilt is established by legal and
competent evidence beyond a reasonable doubt;
Second, if there is reasonable doubt as to the guilt of the accused, that doubt must be resolved in
favor of the accused, and he must be acquitted;
Third, if there is a reasonable doubt as to the degree of guilt, that doubt must be resolved in favor of the lower degree of guilt as to which there is no reasonable doubt; and
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 accused to establish innocence or to disprove the
facts necessary to establish each element of the offense.
By "reasonable doubt" is intended not a fanciful or ingenious doubt or conjecture, but an honest, conscientious doubt suggested by the material evidence or lack of it in the case. It is an honest misgiving generated by insufficiency of proof of guilt. Proof beyond a reasonable doubt means proof to an evidentiary certainty, although not ne'cessarily to an absolute or mathematical certainty. The proof must be such as to exclude not every hypothesis or possibility of innocence, but every fair and rational hypothesis except that of guilt. The rule as to reasonable doubt extends to every element of the offense, althdugh each particular fact advanced by the prosecution, which does not amount to an element, need not be established beyond a reasonable
2
6 018004
doubt. However, if, on the whole evidence, you are satisfied beyond a reasonable doubt of the truth of each and every element, then you should find the accused guilty.
Bear in mind that only matters properly before the court as a whole should be considered. In weighing and evaluating the evidence you are expected to use your own common sense, and your knowledge of human nature and the ways of the world. In light of all the circumstances in the case, you should consider the inherent probability or improbability of the evidence. Bear in mind you may properly believe one witness and disbelieve several other witnesses whose testimony conflicts with the one. The final determination as to the weight or significance of the evidence and the credibility of the witnesses. in this case rests solely upon you.
You must disregard any comment or statement or expression made by me during the course of the trial that might seem to indicate any opinion on my part as to whether the accused is guilty or not guilty since you alone have the responsibility to make that determination. Each of you must impartially decide whether the accused is guilty or not guilty according to the law I have given you, the evidence admitted in court, and your own conscience.
Findings Argument
At this time you will hear argument by counsel. As the government has the burden of proof, trial counsel may open and close. Trial counsel, you may proceed.
Counsel have referred to instructions that I gave you, if there is any inconsistency between what counsel have said about the instructions and the instructions which I gave you, you must accept my statement as being correct.
Procedural Instructions On Findings
The following procedural rules will apply to your deliberations and must be observed: The influence of superiority in rank will not be employed in any manner in an attempt to control the independence of the members in the exercise of their own. personal judgment. Your deliberation should include a full and free discussion of all the evidence that has been presented. After you have completed your discussion, then voting on your findings must be accomplished by secret, written ballot, and all members of the court are required to vote.
If you find the accused guilty of the specification of the charge, the finding as to that charge must be guilty. The junior member will collect and count the votes. The count will then be checked by the president, who will immediately announce the result of the ballot to the members.
The concurrence of at least two-thirds of the members present when the vote is talcen is required for any finding of guilty. Since we have 10 members, that means 7 members must concur in any finding of guilty.
If you have at least 7 votes of guilty of any offense then that will result in a finding of guilty for that offense. If fewer than 7 members vote for a finding of guilty, then your ballot resulted in a finding of not guilty bearing in mind the instructions I just gave you about voting on the lesser included offenses of voluntary manslaughter, and negligent homicide.
7 018005
DOD-041184

You may reconsider any finding prior to its being announced in open court. However, after you
vote, if any member expresses a desire to reconsider any finding, open the court and the
president should announce only that reconsideration of a finding has been proposed. Do not
state:
(1)
whether the finding proposed to be reconsidered is a finding of guilty or not guilty, or

(2)
whether a finding as to unpremeditated murder, or as to voluntary manslaughter, or as to
negligent homicide is involved. I will then give you specific further instructions on the procedure
for reconsideration.

As soon as the court has reached its findings, and I have examined the Findings Worksheet, the
findings will be aimounced by the president in the presence of all parties. As an aid in putting
your findings in proper form and making a proper announcement of the findings, you may use
Appellate Extibit , the Findings Worksheet.
COL2e findings worksheet follows along the lines of my instructions and gives you the options available in this case. Once you have finished filling in what is applicable, please line out or cross out everything that is not applicable so that when I check your findings I can ensure that they are in proper form. Any questions about the findings worksheet?
If, during your deliberations, you have any questions, open the court, and I will assist you. The Uniform Code of Military Justice prohibits me and everyone else from entering your closed session deliberations. As I mentioned at the beginning of the trial, you must all remain together in the deliberation room during deliberations. While in your closed-session deliberations, you may not make communications to or receive communications from anyone outside the deliberation room, by telephone or otherwise. If you have need of a recess, if you have a question, or when you have reached findings, you may notify the Bailiff, who will then notify me that you desire to return to open court to make your desires or findings known. Further, during your deliberations, you may not consult the Manual for Courts-Martial or any other legal publication unless it has been admitted into evidence.
Do counsel object to the instructions given or request additional instructions?
Does any member of the court have any questions concerning these instructions?
If it is necessary and I mention this because there is no latrine immediately adjacent to your deliberation room, your deliberations may be interrupted by a recess. However, before you may leave your closed session deliberations, you must notify us, we must come into the courtroom, formally convene and then recess the court; and after the recess, we must reconvene the court, and formally close again for your deliberations. So, vvith that in mind, CO 2o you desire to take a brief recess before you begin your deliberations, or would you li e to begin immediately?2
(40
(9(0-2_colas.please do not mark on any of the exhibits, except the Findings Worksheet and please bring all the exhibits with you when you return to announce your findings.
The court is closed
8 018006
0

UNITED STATES
SENTENCE WORKSHEET

v.
Edward L. RICHMOND, Jr.
PFC, US Army
HHC, lst Battalion, 27th Infantry
25th Infantry Division (Light)
APO AE 09347-9998

Private First Class Edward L. Richmond, Jr., this court-martial sentences you:
REP.RINVEN13.
2. To bo-r-effimaixIod.
REM:IC—T-10N, 4C, 3. To be reduced to the grade of E
FoRFEIT-14REs--
:
-3-. To forfeit all pay and allowances.
RESTARA:INT-A-INTHIARWEA-lieR

!
I I ; • -
(9((..¦
: " ;,-
.y. -8.. To be confined for 2(clayerttlis.) (years).
PUM-T-WE-DISEHARGE
.1f 44. To be dishonorably discharged from the service.
(6)40)—Z—
(Signature of Presi ent)
018007
&O„k ,`1,\,01\1C‘i\A
DOD-041186
United States v. Richmond
Sentencing Instructions
Members of the court, you are about to deliberate and vote on the sentence in this case. It is the duty of each member to vote for a proper sentence for the offense of which the accused has been found guilty. Your determination of the kind and amount of punishment, if any, is a grave responsibility requiring the exercise of wise discretion. Although you must give due consideration to all matters in mitigation and extenuation, as well as to those in aggravation, you must bear in mind that the accused is to be sentenced only for the offense of which he has been found guilty.
You must not adjudge an excessive sentence in reliance upon possible mitigating action by the
convening or higher authority.
Maximum Punishment
The maximum punishment that may be adjudged in this case is:
a.
Reduction to the grade of E-1;

b.
Forfeiture of all pay and allowances;

c.
Confinement for 15 years; and

d.
A dishonorable discharge.

The maximum punishment is a ceiling on your discretion. You are at liberty to arrive at any
lesser legal sentence.
In adjudging a sentence, you are restricted to the kinds of punishment which I will now describe or you may adjudge no punishtnent. There are several matters which you should consider in determining an appropriate sentence. You should bear in mind that our society recognizes five principal reasons for the sentence of those who violate the law. They are rehabilitation of the wrongdoer, punishment of the wrongdoer, protection of society from the wrongdoer, preservation of good order and discipline in the military, and deterrence of the wrongdoer and those who Icnow of his crime and his sentence from committing the same or a similar offense. The weight to be given any or all of these reasons, along with all other sentencing matters in this case, rests solely within your discretion.
Types Of Punishment.
(REPRIMAND* This court may adjudge a reprimand, being in the nature of a censure. The court shall not specify the terms or wording of any adjudged reprimand.
(REDUCTION:) This court may adjudge reduction to the lowest or any intermediate enlisted grade, either alone or in connection with any other kind of punishment within the maximum limitation. A reduction carries both the loss of military status and the incidents thereof and
018008
1 ),()( I
results in a corresponding reduction of military pay. You should designate only the pay grade to
which the accused is to be reduced, for example, E-2.

(EFFECT OF ARTICLE 58aU.S. ARMY* I also advise you that any sentence of an
enlisted soldier in a pay grade above E-1 which includes either of the following two punishments
will automatically reduce that soldier to the lowest enlisted pay grade E-1 by operation of law.
The two punislunents are: One, a punitive discharge meaning in this case, a bad conduct
discharge or a dishonorable discharge; or two, confinement in excess of six months, if the
sentence is adjudged in months, or 180 days, if the sentence is adjudged in days. Accordingly, if
your sentence includes either a punitive discharge or confinement in excess of six months or 180
days, the accused will automatically be reduced to E-1. However, notwithstanding these
automatic provisions if you wish to sentence the accused to a reduction, you should explicitly
state the reduction as a separate element of the sentence.
(RESTRICTION* This court may adjudge restriction to limits for a maximum period not
exceeding two months. For such a penalty, it is necessary for the court to specify the limits of the
restriction and the period it is to run. Restriction to limits will not exempt an accused from any
assigned military duty.
(HARD LABOR VVITHOUT CONFINEMENT:) This court may sentence the accused to hard labor without confinement for a maximum period not exceeding three months. Such hard labor would be performed in addition to other military duties which would normally be assigned. In the usual course of business, the immediate commanding officer assigns the amount and character of the hard labor to be performed.
(CONFINEMENT:) As I have already indicated, this court may sentence the accused to confinement for a maximum of 15 years. A sentence to confinement should be adjudged in either full days or full months or full years; fractions such as one-half or one-third should not be employed. So, for example, if you do adjudge confinement, confinement for a month and a half should instead be expressed as confinement for 45 days. This example should not be taken as a suggestion, only an illustration of how to properly announce your sentence.
In determining an appropriate sentence in this case, you should consider that I have previously ruled that the accused will be credited with 47 days credit against any punishment which includes a term of confinement. If you adjudge confinement as part of your sentence, those days will be credited against any sentence to confinement you may adjudge. This credit will be given by the authorities at the correctional facility where the accused is sent to serve his confinement, and will be given on a day for day basis.
(FORFEITURES—ALL PAY AND ALLOWANCES:) This court may sentence the accused to forfeit all pay and allowances. A forfeiture is a financial penalty which deprives an accused of military pay as it accrues. In determining the amount of forfeiture, if any, the court should consider the implications to the accused of such a loss of income. Unless a total forfeiture is adjudged, a sentence to a forfeiture should include an express statement of a whole dollar amount to be forfeited each month and the number of months the forfeiture is to continue. The accused is in pay grade E-3 with over 2 years of service, the total basic pay being $ 1,495.50 per month.
22 018009

If reduced to the grade of E-2, the accused's total basic pay would be $ 1,337.70.
If reduced to the grade of E-1, the accused's total basic pay would be $ 1,193.40.
This court may adjudge any forfeiture up to and including forfeiture of all pay and allowances.
(EFFECT OF ARTICLE 58b IN GCM) Any sentence which includes either (1) confinement
for more than six months or (2) confinement for six months or less and a punitive discharge will
require the accused, by operation of law, to forfeit all pay and allowances during the period of
confinement. However, if the court wishes to adjudge any forfeitures of pay and/or pay and
allowances, the court should explicitly state the forfeiture as a separate element of the sentence.
(PUNITIVE DISCHARGE:) The stigma of a punitive discharge is commonly recognized by
our society. A punitive discharge will place limitations on employment opportunities and will
deny the accused other advantages which are enjoyed by one whose discharge characterization
indicates that he has served honorably. A punitive discharge will affect an accused's future with
regard to his legal rights, economic opportunities, and social acceptability.
(DISHONORABLE DISCHARGE ALLOWED:) This court may adjudge no discharge or this court may adjudge either a dishonorable discharge or a bad conduct discharge. Such a discharge deprives one of substantially all benefits administered by the Department of Veterans Affairs and the Army establishment. A dishonorable discharge should be reserved for those who, in the opinion of the court, should be separated under conditions of dishonor after conviction of serious offenses of a civil or military nature warranting such severe punishment. A bad conduct discharge is a severe punishment, although less severe than a dishonorable discharge, and may be adjudged for one who in the discretion of the court warrants severe punishment for bad conduct.
(NO PUNISHMENTO Finally, if you wish, this court may sentence the accused to no punishment.
General Instructions
In selecting a sentence, you should consider all matters in extenuation and mitigation as well as those in aggravation, whether introduced before or after your findings. Thus, all the evidence you have heard in this case is relevant on the subject of sentencing.
You should consider evidence admitted as to the nature of the offense of which the accused stands convicted, plus:
1.
The accused's age — he is 21.

2.
The accused's good military character as testified to by several witnesses.

3.
The accused's good duty performance since the events of 28 February 2004.

4.
The duration of the accused's pretrial restriction.

5.
The accused's GT score of 126.

2 018010
3
6.
The accused's education which includes a general education diploma and a home school high school diploma.

7.
That the accused is a graduate of the following service schools: Basic Training and AIT.

8.
That the accused is entitled to wear the medals and awards listed on Prosecution Exhibit 15, his enlisted record brief, and

9.
The lack of previous convictions or Art. 15 punishment.

(ACCUSED'S NOT TESTIFYING UNDER OATH:) The court will not draw any adverse
inference from the fact that the accused has elected to make a statement which is not under oath.
An unsworn statement is an authorized means for an accused to bring information to the
attention of the court, and must be given appropriate consideration. The accused cannot be
cross-examined by the prosecution or interrogated by court members or me upon an unsworn
statement, but the prosecution may offer evidence to rebut statements of fact contained in it. The weight and significance to be attached to an unsworn statement rests within the sound discretion of each court member. You may consider that the statement is not under oath, its inherent probability or improbability, whether it is supported or contradicted by evidence in the case, as well as any other matter that may have a bearing upon its credibility. In weighing an unsworn statement, you are expected to use your common sense and your lcnowledge of human nature and
the ways of the world.
(ARGUMENT FOR A SPECIFIC SENTENCE:) During argument, counsel recommended that you consider a specific sentence in this case. You are advised that the arguments of counsel and their recommendations are only their individual suggestions and may not be considered as the recommendation or opinion of anyone other than such counsel.
Concluding Sentencing Instructions
When you close to deliberate and vote, only the members will be present. I remind you that you all must remain together in the deliberation room during deliberations. I also remind you that you may not allow any unauthorized intrusion into your deliberations. You may not make communications to or receive communications from anyone outside the deliberations room, by telephone or otherwise. Should you need to take a recess or have a question, or when you have reached a decision, you may notify the Bailiff, who will then notify me of your desire to return to open court to make your desires or decision known.
Your deliberations should begin with a full and free discussion on the subject of sentencing. The influence of superiority in rank shall not be employed in any manner to control the independence of members in the exercise of their judgment. When you have completed your discussion, then any member who desires to do so may propose a sentence. You do that by writing out on a slip of paper a complete sentence. The junior member collects the proposed sentences and submits them to the president, who will arrange them in order of their severity.
You then vote on the proposed sentences by secret written ballot. All must vote; you may not abstain. Vote on each proposed sentence in its entirety, beginning with the lightest, until you
42 ()Wit

arrive at the required concurrence, which is two-thirds or 7 members. A sentence which includes confinement in excess of ten years requires the concurrence of three-fourths or 8 members. The junior member will collect and count the votes. The count is then checked by the president who shall announce the result of the ballot to the members. If you vote on all of the proposed sentences without arriving at the required concurrence, you may then repeat the process of discussion, proposal of sentences and voting. But once a proposal has been agreed to by the required concurrence, then that is your sentence.
You may reconsider your sentence at any time prim' to its being announced in open court. If after you determine your sentence, any member suggests you reconsider the sentence, open the court and the president should armounce that reconsideration has been proposed without reference to whether the proposed reballot concerns increasing or decreasing the sentence. I will give you specific instructions on the procedure for reconsideration.
As an aid in putting the sentence in proper form, the court may use the Sentence Worksheet
marked Appellate Exhibit 29.
Extreme care should be exercised in using this worksheet and in selecting the sentence form which properly reflects the sentence of the court. If you have any questions concerning sentencing matters, you should request further instructions in open court in the presence of all parties to the trial. In this connection, you are again reminded that you may not consult the Manual for Courts-Martial or any other publication or writing not properly admitted or received during this trial. These instructions must not be interpreted as indicating an opinion as to the sentence which should be adjudged, for you alone are responsible for determining an appropriate sentence in this case. In arriving at your determination, you should select the sentence which will best serve the ends of good order and discipline, the needs of the accused, and the welfare of society. When the court has determined a sentence, the inapplicable portions of the Sentence Worksheet should be lined through. When the court returns, I will examine the Sentence Worksheet. The president will then armounce the sentence.
Do counsel object to the instructions as given or request other instructions?
Does any member of the court have any questions? q(3\-7_
COL2
if you desire a recess during your deliberations, we must first formally reconvene the court and then recess. Knowing this, do you desire to take a brief recess before you begin deliberations or would you like to begin immediately?
lease do not mark on any of the exhibits, except the Sentence Worksheet and please bring all the exhibits with you when you return to announce the sentence.
The court is closed.
5 2 01801'4:

APPELLATE EXHIBIT XXXI
THE POST TRIAL AND APPELLATE RIGHTS
ARE LOCATED IN THE FRONT OF THE ROT IN THE
APPROPRIATE PLACE

APPELLATE EXHIBIT XXXI

018013

DOD-041192

Doc_nid: 
4039
Doc_type_num: 
734