Navy SEAL seeks new trial

A Navy SEAL who was convicted last month in an arms trafficking case wants a federal judge in Las Vegas to grant him a new trial.

San Diego attorney James Pokorny recently filed a motion that seeks a new trial for Petty Officer 1st Class Nicholas Bickle on several grounds. In the motion, the lawyer argued that Senior U.S. District Judge Roger Hunt admitted improper evidence, including "prejudicial character evidence," during the Las Vegas trial.

Prosecutors responded this week by urging Hunt to deny the motion. They argued that Bickle has failed to show "that a serious miscarriage of justice may have occurred."

"Plainly stated, defendant has not shown that the jury convicted an innocent man or any other injustice warranting a new trial," prosecutors wrote.

A federal jury found Bickle guilty of 13 of the 15 counts he faced. During the trial, which ended Oct. 7, prosecutors identified Bickle as the ringleader of a conspiracy to deal unlawfully in firearms. They accused him of bringing machine guns and other weapons into the country from Iraq for his own profit.

UNINDICTED CO-CONSPIRATOR

Prosecutors had described former Navy SEAL Dave Perry as an unindicted co-conspirator in the case. According to their response to Bickle's motion for a new trial, "The facts and circumstances strongly suggest that an unindicted co-conspirator helped defendant acquire and ship firearms from Iraq in March and April 2009."

More specifically, according to the document, emails and text messages "indicate that Dave Perry was complicit in this scheme. Perry and the defendant served as their unit's primary and secondary ordnance representatives."

Bickle, 34, was the only military member charged in the case. He remains free pending a Feb. 3 sentencing hearing.

In the motion for a new trial, Pokorny argued that Hunt erred when he allowed prosecutors to show jurors a photograph of Bickle taken when the San Diego-based SEAL was deployed in Iraq.

The photograph depicted Bickle holding an AK-47 in one hand while making an obscene gesture with the other hand, and the defense lawyer argued its admission "amounted to an allowance of improper character evidence."

Pokorny noted that Hunt previously had granted a defense request to exclude sexual references found in Bickle's email and text messages.

According to the prosecutors' response, the government seized cellphones, a digital camera, flash memory cards and other storage devices from the defendant, his locker and his apartment. Investigators subsequently found text messages and photographs pertaining to Bickle's possession and distribution of machine guns and stolen pistols, according to the document.

"Investigators additionally discovered that defendant's camera and flash memory cards contained scores of lewd photographs depicting the defendant and women engaged in assorted sexual acts," prosecutors wrote. "Defendant's telephones held sexually graphic text messages and sexually explicit photographs."

Prosecutors noted that they did not oppose the defense request to exclude that evidence.

Investigators also recovered photographs that provided "irrefutable" evidence of Bickle's possession of AK-47-style machine guns and stolen pistols, according to the prosecution document, and the photograph mentioned in the motion for a new trial specifically showed Bickle holding an AK-47 with a drum magazine.

"The drum magazine depicted in the photograph is indistinguishable from a similar drum magazine seized in a case or box in co-defendant" Richard Paul's garage, prosecutors wrote.

"Not only was the photograph evidently taken with defendant's camera ... defendant's display of bravado and cavalier manner tends to show that defendant had unsupervised access to such weapons," prosecutors argued.

According to the prosecution document, Hunt correctly overruled the defendant's objections to the photograph.

"While the defendant's chosen pose may not have been in keeping with the carefully coifed image he presented at trial, the photograph ... did not amount to 'improper character evidence,' " prosecutors wrote.

INSTRUCTION CALLED IMPROPER

Pokorny also argued in the motion for a new trial that Hunt erred when he refused to give the jury an instruction on circumstantial evidence that the defense had requested. "The evidence against Mr. Bickle in this case was largely circumstantial," Pokorny wrote. "There were no witnesses beyond the cooperating co-defendant that ever directly tied Mr. Bickle to any of these crimes."

Paul, a Colorado resident and Bickle's longtime friend, pleaded guilty in the firearms case in January and testified against him during the trial. The witness said he sold weapons for Bickle. Paul's sentencing hearing is scheduled for Jan. 6.

Prosecutors say the jury instruction on circumstantial evidence requested by the defense misstated the law.

Pokorny further argued in the motion for a new trial that Hunt improperly admitted testimony about Bickle's "prior bad acts." That testimony came from three government witnesses who testified that Bickle gave them firearms as gifts.

One of those witnesses was filmmaker Peter Berg, who said Bickle gave him an AK-47 as a "trophy weapon" after the pair developed a friendship in Iraq.

According to the prosecution response, Berg's testimony helped show "that defendant had the intent, plan and knowledge as to how to procure weapons from Iraq and did not act out of mistake or accident."

The jury convicted Bickle of conspiracy, dealing in firearms without a license, four counts of unlawful possession and transfer of machine guns, five counts of unlawful possession and sale of stolen firearms, receiving and retaining property of the United States, and distributing explosives to a nonlicensee.

During the trial, prosecutors introduced 31 machine guns and 13 stolen semiautomatic pistols. They also introduced the remnants of two AK-47-type machine guns, including the one Berg said Bickle had given him.

Contact reporter Carri Geer Thevenot at cgeer@reviewjournal.com or 702-384-8710.