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Great points sir. I agree that we shouldn't limit our avenues of possible success.
The issue is that the Govt has never said they won't recall Vokey. They simply say that he has never asked for recall, or that there was good cause for severence. They have only said that recall is unlikely. If you think we haven't exhausted our administrative remedies is the strategy to hope that no one picks up on it at NMCCA or CAAF? Would this work better as the contingency plan if NMCCA and CAAF deny the writ?
> From: Dwight.Sullivan@pentagon.af.mil > To: haytham@puckettfaraj.com; babu_kaza@hotmail.com; kirk.sripinyo@navy.mil; meridith.marshall@usmc.mil; dhsullivan@aol.com > CC: neal@puckettfaraj.com; ksripinyo@yahoo.com > Date: Tue, 21 Jun 2011 15:30:02 -0400 > Subject: RE: Gov't Response to Motion for Interrogatories > > Can we keep that train in the station for a little bit? I'm concerned about pulling the rug out from under our own stay even while we have two motions pending in front of NMCCA. If we try another avenue to accomplish the same thing, we're basically advertising that we haven't exhausted our administrative remedies. I'd imagine that Keller could manage to rehinge himself to put that info in from of NMCCA pretty quickly. So I don't think we want to put in such an administrative request without deciding that we're abandoning our forthcoming mandamus petition -- and I'm not at all sure we want to abandon our forthcoming mandamus petition. > > Thoughts? > > 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: Haytham Faraj [mailto:haytham@puckettfaraj.com] > Sent: Tuesday, June 21, 2011 3:26 PM > To: 'Babu Kaza'; kirk.sripinyo@navy.mil; Sullivan, Dwight H CIV USAF AFLOA/JAJA; meridith.marshall@usmc.mil; dhsullivan@aol.com > Cc: neal@puckettfaraj.com; ksripinyo@yahoo.com > Subject: RE: Gov't Response to Motion for Interrogatories > > Brilliant! I'll take care of that this week. > > > > From: Babu Kaza [mailto:babu_kaza@hotmail.com] > Sent: Tuesday, June 21, 2011 3:01 PM > To: kirk.sripinyo@navy.mil; dwight.sullivan@pentagon.af.mil; meridith.marshall@usmc.mil; dhsullivan@aol.com; haytham@puckettfaraj.com > Cc: neal@puckettfaraj.com; ksripinyo@yahoo.com > Subject: RE: Gov't Response to Motion for Interrogatories > > > > All, > > If the earliest trial could commence is now Sept/Oct, in the interim is there any reason to not independently approach the CA and ask to have Vokey involuntarily recalled to active-duty? The CA is responsible for providing defense resources, and Vokey would be a defense resource. The CA could then favorably endorse the request to HQMC. > > Or he could refuse. And if he refuses, that adds to the record of showing gov't interference with the defense team. This also takes the question of whether or not Vokey can be recalled involuntarily out of the realm of the Court. Because at this point, the gov't has never said they can't recall Vokey, Gannon just said it was "unlikely." So why not ask and get a definitive answer? Then you either get Vokey back, or you have the Govt standing in the way (with a dubious at best justification). Either outcome is favorable. > > And regarding involuntary recall from retirement being only in the interest of "national security," I would note that in addition to precedent holding that a court-martial is a sufficient basis for involuntary recall, Wuterich is also a "consolidated disposition authority" case. Under JAGMAN 0126, it indicates that certain courts-martial can be deemed "national security" matters, and there are additional requirements, one of which is that the CA be a designated CDA. As we have a CDA here, that is already a preliminary showing that national security is implicated. There should also be a paper trail under JAGMAN 0126 of how this case has been designated--and it may in fact have been designated a national security case. I would guess that the Marcent SJAs have that paperwork. > > So sending a request now could either preempt the current litigation, or enhance it, depending on what the Govt does. > > Plus, when you send this hypothetical request to recall Vokey to Marcent, the SJAs--without any doubt in my mind--would consult with Gannon on what to do. Which would be beautiful: you will then have the prosecutor influencing the makeup of the defense team and the accused's rights to counsel. If after consulting with Gannon, Marcent refuses to forward the request or favorably act on it, then we could make a showing under Spriggs of "government misconduct" interfering with Wuterich's ACR. > > --Babu > > > > > > > Subject: RE: Gov't Response to Motion for Interrogatories > > Date: Mon, 20 Jun 2011 09:42:45 -0400 > > From: kirk.sripinyo@navy.mil > > To: Dwight.Sullivan@pentagon.af.mil; meridith.marshall@usmc.mil; dhsullivan@aol.com; haytham@puckettfaraj.com > > CC: neal@puckettfaraj.com; babu_kaza@hotmail.com; ksripinyo@yahoo.com > > > > Sir- > > > > You're right. Under the NMCCA rules we don't have a response as a matter of right, although we can file a motion for leave to file a response. I doubt it's worth bothering. > > > > I've sent out everything I've received. As far as I know, there's been no response to the motion for access. > > > > v/r > > Sip > > > > -----Original Message----- > > From: Sullivan, Dwight H CIV USAF AFLOA/JAJA [mailto:Dwight.Sullivan@pentagon.af.mil] > > Sent: Monday, June 20, 2011 9:36 > > To: Sripinyo, Kirk Major NAMARA, CODE 45; Marshall Maj Meridith L; dhsullivan@aol.com; haytham@puckettfaraj.com > > Cc: neal@puckettfaraj.com; babu_kaza@hotmail.com; ksripinyo@yahoo.com > > Subject: RE: Gov't Response to Motion for Interrogatories > > > > Maj Sip, > > > > My understanding is that under NMCCA's Rules, we don't have a right to reply > > to this. Is that correct? If not, I don't think we should move for leave > > to file a reply. But boy does Keller miss the boat. He seems to be whining > > about having lost the fight on the stay rather than addressing the merits of > > the request for interrogatories. I doubt NMCCA will grant our motion -- but > > not due to anything Keller said! > > > > Did Code 46 ever file a response to our motion for access to the sealed > > record of the ex parte hearing? > > > > 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: Sripinyo, Kirk Major NAMARA, CODE 45 [mailto:kirk.sripinyo@navy.mil] > > Sent: Friday, June 17, 2011 9:41 AM > > To: Marshall Maj Meridith L; dhsullivan@aol.com; haytham@puckettfaraj.com > > Cc: neal@puckettfaraj.com; Sullivan, Dwight H CIV USAF AFLOA/JAJA; > > babu_kaza@hotmail.com; ksripinyo@yahoo.com > > Subject: Gov't Response to Motion for Interrogatories > > > > Team Wuterich- > > > > Here's is the government's response to the subject motion. I'll be out of > > the office this afternoon, but reachable via my civilian email: > > ksripinyo@yahoo.com > > > > v/r > > Sip > |