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Marine freed from prison after nine years will not be retried

May 8, 2009 |  2:41 pm

A Camp Pendleton Marine recently released from prison after nine years when a military appeals court overturned his rape and assault conviction will not be retried, the Marine Corps said today.

Sgt. Brian Foster, 35, was convicted by a military jury in 1999 of raping his wife and was sentenced to 17 years.

But a military appeals court in February overturned the rape conviction, citing lack of evidence and a decision by the judge to allow an expert on sexual assault to testify more as an advocate for the prosecution than a neutral observer.

In ordering Foster released from the prison at Ft. Leavenworth, Kan., the court ruled the Marine Corps could retry Foster on charges of assault and making threats. The charges arose during a bitter divorce and custody battle.

Brig. Gen. Robert Ruark, the convening authority in the case, has decided against a retrial, the Marine Corps announced. When he was charged, Foster was a military police officer at Camp Pendleton. Since being released from prison, he has been assigned to a mobilization command in Kansas City.

Foster is due back pay and allowance, Ruark said, which reportedly could exceed $250,000.

-- Tony Perry