Re: R.C.M. 802 conference ICO U.S. v. Wuterich

On Jul 12, 2011, at 10:37 AM, Sullivan, Dwight H CIV USAF AFLOA/JAJA wrote:

Neal,

I need to run to a moot, so I'll give you a lengthier answer later. But look at RCM 802: "the military judge may, upon request of any part or sua sponte, ORDER one or more conferences . . . ." If Jones doesn't think he has jurisdiction to make a ruling, then Jones shouldn't have jurisdiction to ORDER a conference.

That being said, if the issue were actually pushed to the appellate level, my guess is that the courts would say that holding an 802 isn't inconsistent with a stay. So we don't want to push this issue to the appellate level.

Semper Fi,
DHS

Dwight H. Sullivan
Senior Appellate Defense Counsel
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: Puckett Neal [mailto:neal@puckettfaraj.com]
Sent: Tuesday, July 12, 2011 10:20 AM
To: Sullivan Dwight; Sullivan, Dwight H CIV USAF AFLOA/JAJA
Cc: Faraj Haytham; Marshall Meridith; CODE Major NAMARA 45 Sripinyo Kirk; Babu Kaza
Subject: Fwd: R.C.M. 802 conference ICO U.S. v. Wuterich

Dwight,
Based on this, the MJ may be ready (although it isn't expressly stated in this particular email) to grant the TC's request for an 802 and "order" it. Is there any case law support from which I could argue that an 802 IS forbidden under a stay? We may just refuse to comply with the MJ's direction to come to an 802 anyway, but it would be nice to find something to hang our hat on.
One thought I had is that if we balk at an 802, a typical MJ response might be to "order" us to attend, which would be a "ruling" on a dispute between trial and defense as to whether the session could be compelled. Anyone? Anyone?
S/f,

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.

Begin forwarded message:

From: "Jones LtCol David M" <david.m.jones5@usmc.mil>

Date: July 12, 2011 10:07:14 AM EDT

To: <neal@puckettfaraj.com>

Cc: "Gannon Maj Nicholas L" <nicholas.gannon@usmc.mil>, "Sullivan LtCol Sean" <sean.sullivan@usmc.mil>, <haytham@puckettfaraj.com>, "Marshall Maj Meridith L" <meridith.marshall@usmc.mil>

Subject: Re: R.C.M. 802 conference ICO U.S. v. Wuterich

All,

I don't believe that having an 802 conference for scheduling is forbidden, however I do agree that I can not make any rulings. As the defense wanted me to release the ex parte transcript and this appears to be an issue for the government, I do agree that I can't make a ruling on this issue at an 802.

I was hoping the two sides would simply get a propsed trial schedule set some time a few months from now as there are so many people's schedules we are trying to accommodate. Evidently, that doesn't appear to be likely.

R,

LtCol Jones

David M. Jones
Military Judge
Western Pacific Judicial Circuit
Navy-Marine Corps Trial Judiciary

________________________________

From: Puckett Neal <neal@puckettfaraj.com>
To: Jones LtCol David M
Cc: Gannon Maj Nicholas L; Sullivan LtCol Sean; Faraj Haytham <haytham@puckettfaraj.com>; Marshall Maj Meridith L
Sent: Tue Jul 12 08:16:17 2011
Subject: Re: R.C.M. 802 conference ICO U.S. v. Wuterich

Judge Jones,
An RCM 802 session constitutes a "proceeding" which has been stayed by NMCCA order. This court therefore lacks authority to act on the trial counsel's request.
V/r,

Neal A. Puckett, Esq
LtCol, USMC (Ret)
Puckett & Faraj, PC
1800 Diagonal Rd, Suite 210
Alexandria, VA 22314
703.706.9566
www.puckettfaraj.com <http://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 Jul 11, 2011, at 6:24 PM, Jones LtCol David M wrote:

Maj Gannon,

I can only discuss if it is when I am not teaching. Safest bet is Tuesday morning, the, 19th, in the morning, Okinawa time. That would be Monday evening/night for all of you.

R,

LtCol Jones
David M. Jones
Military Judge
Western Pacific Judicial Circuit
Navy-Marine Corps Trial Judiciary

----- Original Message -----
From: Gannon Maj Nicholas L
To: Jones LtCol David M; 'Puckett Neal' <neal@puckettfaraj.com>
Cc: Sullivan LtCol Sean; 'Haytham Faraj' <haytham@puckettfaraj.com>; Marshall Maj Meridith L; Keller, Brian K NAMARA, CODE 46 <brian.k.keller@navy.mil>
Sent: Tue Jul 12 06:28:25 2011
Subject: RE: R.C.M. 802 conference ICO U.S. v. Wuterich

Your Honor,

The government respectfully requests an RCM 802 conference. Is the Court available to conduct an 802 sometime this week?

Very respectfully,
Maj Gannon

-----Original Message-----
From: Jones LtCol David M
Sent: Friday, July 08, 2011 0:13
To: Puckett Neal
Cc: Gannon Maj Nicholas L; Sullivan LtCol Sean; Haytham Faraj; Marshall Maj Meridith L
Subject: RE: R.C.M. 802 conference ICO U.S. v. Wuterich

Government,

Any objection?

R,

LtCol David M. Jones
Military Judge
Western Pacific Judicial Circuit
Navy-Marine Corps Trial Judiciary
Office: 645-7287 / 2156
Fax: 645-2035
From the U.S.: 81-611-745-7287 / 2156

-----Original Message-----
From: Puckett Neal [mailto:neal@puckettfaraj.com]
Sent: Tuesday, July 05, 2011 23:57
To: Jones LtCol David M
Cc: Gannon Maj Nicholas L; Sullivan LtCol Sean; Haytham Faraj; Marshall Maj Meridith L
Subject: Re: R.C.M. 802 conference ICO U.S. v. Wuterich

Judge Jones,
Would you you please provide the defense with a copy of the authenticated transcript of the ex-parte hearing, including the password by separate, ex-parte email?
V/r,

Neal A. Puckett, Esq
LtCol, USMC (Ret)
Puckett & Faraj, PC
1800 Diagonal Rd, Suite 210
Alexandria, VA 22314
703.706.9566
www.puckettfaraj.com <http://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 Jun 29, 2011, at 10:41 PM, Jones LtCol David M wrote:

Thank you, I'll stand by.

R,

LtCol David M. Jones
Military Judge
Western Pacific Judicial Circuit
Navy-Marine Corps Trial Judiciary
Office: 645-7287 / 2156
Fax: 645-2035
From the U.S.: 81-611-745-7287 / 2156

-----Original Message-----
From: Gannon Maj Nicholas L
Sent: Wednesday, June 29, 2011 23:34
To: Jones LtCol David M
Cc: Sullivan LtCol Sean; 'Neal Puckett'; 'Haytham Faraj'; Marshall Maj Meridith L
Subject: RE: R.C.M. 802 conference ICO U.S. v. Wuterich

Sir,

The defense has proposed 3 Oct 2011 as a start date. I am in the process of determining the impact of that date on the witnesses. I will work to expedite that process and will either agree to the 3 Oct 2011 date, or request a different date no later than the end of the week (so long as that COA is acceptable with the Court).

Very respectfully,
Maj Gannon

-----Original Message-----
From: Jones LtCol David M
Sent: Wednesday, June 29, 2011 1:57
To: Gannon Maj Nicholas L
Cc: Sullivan LtCol Sean; 'Neal Puckett'; 'Haytham Faraj'; Marshall Maj Meridith L
Subject: RE: R.C.M. 802 conference ICO U.S. v. Wuterich

All,

I see that the Hohman case is out. Please let me know what your dates are for the trial. As I understood it, you were all going to talk together and you did not need my intervention. Thank you.

R,

LtCol David M. Jones
Military Judge
Western Pacific Judicial Circuit
Navy-Marine Corps Trial Judiciary
Office: 645-7287 / 2156
Fax: 645-2035
From the U.S.: 81-611-745-7287 / 2156

-----Original Message-----
From: Gannon Maj Nicholas L
Sent: Tuesday, June 14, 2011 5:20
To: Jones LtCol David M
Cc: Sullivan LtCol Sean; Neal Puckett; Haytham Faraj; Marshall Maj Meridith L
Subject: R.C.M. 802 conference ICO U.S. v. Wuterich

Your Honor,

The government respectfully requests a telephonic R.C.M. 802 conference as soon as the Court is available.

I propose that we conduct the R.C.M. 802 conference on 14 June 2011, at 1700 California time, 2000 East Coast time, and 0900 (15 June 2011) Okinawa time/ date. The defense has indicated that they are available at the above proposed time Sir.

Our conference line number is 760-725-8101.

The topic of the R.C.M. 802 conference will be the Stay of the proceedings issued by the CCA on 27 May 2011.

Very respectfully submitted,
Major Gannon