Motion to dismiss charges against C-4 soldier

Federal prosecutors filed a motion Friday to dismiss the criminal complaints against an “excellent” special operations forces demolition expert caught trying to board a New Year’s Eve Day flight with C-4.

The government filed a motion to dismiss the case against Sgt. First Class Trey Scott Atwater after, a news release stated, an investigation by the Federal Bureau of Investigation said there was not sufficient evidence to prove that Atwater knew that he was carrying explosives in his carry-on bag.

The FBI’s investigation also showed Atwater was an “above-average” soldier whose overall rating showed he was “among the best,” the release stated.

Public Affairs Officer for the United States Attorney’s Office Daryl Fields said all information regarding the case was in the release.

When asked if the good marks Atwater obtained as a solider had any weight in the government’s decision, Fields said, “Obviously that was one of the findings of the FBI,” but would not elaborate.

Atwater, 30, was originally arrested and charged with one count of attempting to board an aircraft with explosives on or about his person after he was stopped Dec. 31 at Midland International Airport with two 2.5-pound blocks of the military-grade explosives lodged between padding in the lumbar area of the backpack he was carrying.

Atwater and his family were attempting to board American Eagle flight 3283 to fly back home to Hope Mills, N.C., after visiting family in Midland when federal agents found the explosives and evacuated the Midland airport.

Atwater was released on a $50,000 unsecured bond after a Jan. 6 hearing and was told he was to return to Fort Bragg, N.C. He was released into the custody of his first-line supervisor at Fort Bragg.

Although the criminal charge will be dropped, Atwater likely will face administrative and “other measures” from the Army, according to the motion.

The Green Beret's commanders will review the case and decide whether to take any disciplinary action, said Lt. Col. Tom Bryant, a spokesman for the Army Special Operations Command at Fort Bragg.

“There's a number of options for the commander to take, ranging from a letter of reprimand to a court martial,” Bryant said. “They'll look at all the facts surrounding the incident.”

Defense attorney Jason Leach said that without being able to prove all the elements of the accused offense, it would have been difficult for the U.S. Attorney’s Office to proceed with a case.

“The motion states what our position was all along – that he didn’t knowingly possess them nor did he intend to board an airplane with them,” Leach said. “There’s gotta be criminal intent to have a criminal offense.”

Atwater had stated to investigators it was common for his military unit to carry around at least two blocks of C-4 while stationed in Afghanistan. When returning home, Atwater said he had placed his bag in his garage and was not aware the explosives where there, even as he packed the bag for the trip to Midland.

Investigators later determined the C-4 came from a lot number shipped only to Iraq and Afghanistan and that “the investigation … developed no evidence that Atwater knowingly possessed the explosives … or that he intended to board an aircraft in possession of explosives,” the release stated.

Atwater was also stopped on Dec. 24 at the airport in Fayetteville N.C., after Transportation Security Administration officials found a smoke grenade in his bag. The grenade was confiscated and Atwater was allowed to continue on his trip after being warned.

The release made no mention the event in Fayetteville, N.C.

Leach said he hoped the motion was coming, and that something was going to happen at the end of the month anyway.

With Midland federal court grand juries meeting once a month at the end of the month, the U.S. Attorney’s Office was either going to have to indict Atwater, dismiss his case, or extend the deadlines of his bond conditions.

“He was charged with a serious crime, and I believed in his innocence,” Leach said. “And I’m just glad the motion has been filed and I hope that the order is signed.”

Magistrate Judge David Counts will have to sign the order he said, although Leach said he does not yet have a date for a hearing on that.

The Public Access to Court Electronic Records website also did not have any court settings for Atwater.

Atwater is from the Permian Basin, having graduated from Midland Lee High School in 1999 and playing linebacker for the football team. He joined the Army under the delayed-entry program at the Army Recruiting Station in Midland and went to Fort Benning in Columbus, Ga., for basic training. A military spokesman confirmed Atwater was assigned to the John F.  Kennedy Special Warfare Center and School, which is at Fort Bragg, N.C.

Attempts to reach Atwater for comment Friday were unsuccessful.

Odessa American reporter Jon Vanderlaan and the Associated Press contributed to this report

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