The April 21 fatal stabbing of a Marine across the street from the Marine Barracks on Capitol Hill took place minutes after another Marine accused of the stabbing saw the victim hugging a gay male friend outside a straight bar, according to the prosecutor in the case.

Assistant U.S. Attorney Michael Liebman told a D.C. Superior Court hearing on May 16 that the government considers the incident a hate crime. But a spokesperson for the U.S. Attorney’s office said later that the government has not charged the case as a hate crime and that the case remains under investigation.

Liebman said defendant Pfc. Michael Poth, 20, shouted an anti-gay slur at Lance Cpl. Philip Bushong, 23, and Bushong’s gay friend, whom authorities have not identified.

Liebman told Judge Ronna L. Beck, who presided over a preliminary hearing, that the anti-gay slur came minutes before Poth and Bushong got into a verbal and physical altercation during which Poth allegedly plunged a pocket knife into Bushong’s upper chest, piercing his heart.

Bushong was pronounced dead a short time later at a hospital. D.C. police charged Poth with second-degree murder while armed. Police didn’t initially list the incident as a hate crime.

Liebman did not identify Bushong’s gay male friend, saying only that Poth saw Bushong and the friend hugging on the sidewalk outside Molly Malone’s bar and restaurant on the 700 block of 8th Street, S.E. The bar is located across the street from the Marine barracks at 8th and I Streets, S.E., where Poth had been stationed.

“This was a hate crime,” the Washington Post quoted Liebman as saying at the hearing. “The victim and his friend were embracing outside.”

Friends of Bushong have said he was straight. He had been stationed at the Marine Corps base at Camp Lejeune, N.C., and was visiting Washington, where he planned to move, friends and family members said. At the time of his death, Bushong was days away from being discharged honorably after having completed his term of enlistment.

Poth’s attorney, David Benowitz, argued at the hearing that Poth acted in self-defense. He pointed to one of several video surveillance tapes played at the hearing which showed Poth on the ground before getting back on his feet. Benowitz said Poth was on the ground because Bushong hit or pushed him.

Benowitz also noted at the hearing that a witness told police that Bushong was the first to initiate contact with Poth. At the time of his arrest, Poth told D.C. police homicide detectives that Bushong punched him in the face and head and he stabbed Bushong in self-defense.

According to accounts in the Post and the Washington Times, Benowitz argued that the facts in the case didn’t support a second-degree murder charge and that the charged should be reduced to manslaughter.

Court records show that Judge Beck denied the request to lower the charge and ruled that prosecutors established probable cause that Poth committed second-degree murder while armed. She scheduled a felony status hearing for the case on July 13.

Beck’s ruling came after D.C. Police homicide Det. Dwayne Partman testified at the hearing that a witness told police Poth shouted he was “going to stab somebody and cut their lungs out” just after he walked past Molly Malone’s bar. Partman testified that the witness said Poth made that remark while Bushong and his gay male friend along with other people were standing in front of Molly Malone’s, the Post reported.

The Post also reported that two members of the Marines dressed in civilian clothes entered the courtroom before the hearing began and informed the attorneys that the Marines had given Poth an other than honorable discharge based on poor conduct that occurred prior to Bushong’s murder.

Liebman stated at the hearing that Marine Corps officials informed prosecutors that Poth tested positive for using synthetic marijuana and he had “verbally assaulted other soldiers and had to be restrained,” the Post reported.

William Miller, a spokesperson for the U.S. Attorney’s office, said he could not provide further details on the case because it is pending in court and remains under investigation. However, Miller said that at the present time, the U.S. Attorney’s office has not charged the case in court as a hate crime.

Benowitz didn’t immediately respond to a request for comment.