I do get Maj Sip's joke, but to get serious on everyone for a second, as I discussed with Neal, by far the most likely outcome of our most recent writ appeal is a one-sentence denial without prejudice--though I counted within that box the possibility of a one-sentence denial accompanied by a somewhat longer concurring opinion by one or two judges. I estimated the chance of a one-sentence denial without prejudice as about 85 to 90%. The next most likely outcome, accounting for all but about 1% of the delta, is an oral argument in the case. The remaining 1% would be an order providing a more thorough analysis of the writ appeal without oral argument. I believe our only chance of success (which is quite small) is through the oral argument route. I told Neal that an oral argument at which Judge Effron didn't participate would be almost impossible for us to win. But with the new news about Judge Cox (if true), I no longer believe that is the case -- we could potentially win with an Erdmann-Ryan-Cox majority. Semper Fi, DHS Dwight H. Sullivan Acting Chief Air Force Appellate Defense Division (AFLOA/JAJA) 1500 West Perimeter Road, Suite 1100 Joint Base Andrews, MD 20762 240-612-4773 DSN: 612-4773 Fax: 240-612-5818 -----Original Message----- From: Sripinyo, Kirk Major NAMARA, CODE 45 [mailto:kirk.sripinyo@navy.mil] Sent: Friday, September 16, 2011 4:03 PM To: Puckett Neal; Sullivan, Dwight H CIV USAF AFLOA/JAJA Cc: DHSULLIVAN@aol.com; babu_kaza@hotmail.com; haytham@puckettfaraj.com; meridith.marshall@usmc.mil; ksripinyo@yahoo.com Subject: RE: Interesting fact and interesting rumor Sir- I think Col Sullivan may be counting outcomes such as a two sentence denial in that remaining 84%. ;) -Sip -----Original Message----- From: Puckett Neal [mailto:neal@puckettfaraj.com] Sent: Friday, September 16, 2011 15:48 To: Sullivan, Dwight H CIV USAF AFLOA/JAJA Cc: DHSULLIVAN@aol.com; Sripinyo, Kirk Major NAMARA, CODE 45; babu_kaza@hotmail.com; haytham@puckettfaraj.com; meridith.marshall@usmc.mil; ksripinyo@yahoo.com Subject: Re: Interesting fact and interesting rumor I'll take 16%! Neal A. Puckett, Esq LtCol, USMC (Ret) Puckett & Faraj, PC 1800 Diagonal Rd, Suite 210 Alexandria, VA 22314 703.706.9566 www.puckettfaraj.com www.twitter.com/puckettfaraj The information contained in this electronic message is confidential, and is intended for the use of the individual or entity named above. If you are not the intended recipient of this message, you are hereby notified that any use, distribution, copying of disclosure of this communication is strictly prohibited. If you received this communication in error, please notify Puckett & Faraj, P.C. at 703-706-9566 or via a return the e-mail to sender. You are required to purge this E-mail immediately without reading or making any copy or distribution. On Sep 15, 2011, at 3:02 PM, Sullivan, Dwight H CIV USAF AFLOA/JAJA wrote: Interesting fact: As you've probably seen, the President has nominated a new judge for CAAF -- Kevin A. Ohlson, whose current job is heading DOJ's professional misconduct review unit. Not a bad place for a judge considering the Wuterich case to be coming from. (Of course, he probably won't be confirmed anytime soon, so he probably won't be a player on our writ appeal. But in the event of a conviction and sentence qualifying for appellate review -- which hopefully will not occur -- he might be a very good judge on direct appeal.) Interesting rumor: I had previously heard that CAAF would operated as a 4-judge court until a new judge is seated. But I've now heard a contrary rumor that Senior Judge Walter T. Cox III will sit with the court until a new judge is confirmed. If that's true, I'm very happy. Judge Cox comes from an earlier era at CAAF, when doing justice was considered more important than, say, rigidly enforcing a made-up filing deadline. (Of course, Chief Judge Effron was on the right side in that case, but all-in-all, Judge Cox is likely to be less concerned with doctrinal matters and more concerned with basic fairness than Chief Judge Effron is -- not a slight against Chief Judge Effron, who is fabulous.) So our odds just got a little better. Hell, we might now have a 16% chance of some outcome other than a one-sentence denial without prejudice. :- ) Semper Fi, DHS Dwight H. Sullivan Acting Chief Air Force Appellate Defense Division (AFLOA/JAJA) 1500 West Perimeter Road, Suite 1100 Joint Base Andrews, MD 20762 240-612-4773 DSN: 612-4773 Fax: 240-612-5818
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