Haytham, I'm on it. ~Russ -----Original Message----- From: Haytham Faraj [mailto:haytham@puckettfaraj.com] Sent: Tuesday, November 15, 2011 12:37 To: Shinn Capt Scott R Cc: 'Jim Rowe' Subject: RE: US v. Rowe witness request Scott, Can you draft a basic witness production motion for the witnesses denied by the Government? The Government's reliance on 608(b) is misplaced. We are not seeking to impeach Klay's character for truthfullness through extrinsic evidence but to an issue in the case. See notes of F.R.E. 608. Evidence falling under 404(b) may be proved through extrinsic evidence. The language of the Rule is pretty clear. We can use it to prove Klay's motive's in making the allegations; her modus opporendi; or her intent to divert attention from her own misconduct. THIS IS NOT CHARACTER EVIDENCE. Some courts have held that the defense faces a lower burden of admissibility because there is no danger of prejudice to the accused. See United States v. Stevens, 935 F.2d 1380, 1403 (3rd cir. 1991). See also United States v. Aboumousallem, "We believe the standard of admissibility when a criminal defendant offers similar acts evidence as a shield need not be as restrictive as when a prosecutor uses such evidence as a sword. 726 F.2d 906, 911-12 (2nd Cir. 1984). In an extensive analysis of the law in the various circuits, the Ninth Circuit opinion clearly finds that 404(b) applies a lower standard to the Defendant. United States v. McCourt, 925 F.2d 1229 (9th Cir. 1991). This doesn't need to be a lengthy motion; just enough to get it before the court and give sufficient notice to the other side. -----Original Message----- From: Shinn Capt Scott R [mailto:scott.shinn@usmc.mil] Sent: Monday, November 14, 2011 1:16 PM To: Combe Capt Peter C Cc: haytham@puckettfaraj.com Subject: RE: US v. Rowe witness request Thank you for the clarification! V/r, S. Russell Shinn Captain, US Marine Corps Officer-in-Charge Defense Counsel Assistance Program Marine Corps Defense Services Organization 703.614.0885 (w) 703.470.0671 (c) "Marines Defending Marines" -----Original Message----- From: Combe Capt Peter C Sent: Monday, November 14, 2011 13:12 To: Shinn Capt Scott R Cc: 'haytham@puckettfaraj.com' Subject: RE: US v. Rowe witness request Apologies, The government will produce LtCol Hudspeth. My email refered to Capt Wilson and Maj Warren. Capt Peter C. Combe II Trial Counsel Office of the SJA, MCB Quantico 3250 Catlin Ave. Quantico, VA 22134 Comm: (703) 784-0037 DSN: 278 Fax: (703) 784-0035 DSN: 278 -----Original Message----- From: Shinn Capt Scott R Sent: Monday, November 14, 2011 13:11 To: Combe Capt Peter C Cc: 'haytham@puckettfaraj.com' Subject: RE: US v. Rowe witness request Capt Combe, On the phone this morning, I believe you indicated that the government would produce LtCol Hudspeth, given the clarification Mr. Faraj provided regarding her testimony. Does the email below reference Capt Wilson and Maj Warren or all three that the government initially refused to produce? V/r, S. Russell Shinn Captain, US Marine Corps Officer-in-Charge Defense Counsel Assistance Program Marine Corps Defense Services Organization 703.614.0885 (w) 703.470.0671 (c) "Marines Defending Marines" -----Original Message----- From: Combe Capt Peter C Sent: Monday, November 14, 2011 13:05 To: haytham@puckettfaraj.com; Shinn Capt Scott R Subject: US v. Rowe witness request Good afternoon gentlemen, After reviewing the applicable M.R.E.s, the various statements of the witnesses, and your request the government maintains that the requested witnesses will not be produced. Unfortunately it appears that we will have to address this with the court. Very Respectfully, Peter C. Combe II Capt, U.S. Marine Corps Trial Counsel Office of the Staff Judge Advocate Military Justice Office Marine Corps Base Quantico 3250 Catlin Avenue Quantico, VA 22134 Comm: (703) 784-0037 DSN: 278 Fax: (703) 784-0035 DSN: 278 NOTICE: This electronic transmission contains privacy sensitive information, attorney work-product or information protected under the attorney-client privilege. It is confidential, legally privileged and intended for use only by the individual or entity which is entitled to receive this transmission for official use only. Any misuse or unauthorized access is strictly prohibited and may result in both civil and criminal penalties. Do not release this information without prior authorization from the sender. If this has inadvertently reached the wrong party, please delete all materials pertaining to it immediately and notify the sender at the email address or phone number above. This electronic transmission is also not intended by the sender or the agency to constitute either an electronic record, or an electronic signature, or to constitute any agreement by the sender to conduct a transaction by electronic means.
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