As the United States Court of Appeals for the First Circuit has observed, "Courts cannot function smoothly if parties, and counsel, ignore the rules, overlook due dates, or flout court orders." Anderson v. Beatrice Foods Co. 900 F.2d 388, 395 (1st Cir. 1990). 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: Sullivan, Dwight H CIV USAF AFLOA/JAJA Sent: Monday, June 06, 2011 1:13 PM To: 'Sripinyo, Kirk Major NAMARA, CODE 45'; DHSULLIVAN@aol.com; neal@puckettfaraj.com Cc: haytham@puckettfaraj.com; babu_kaza@hotmail.com; meridith.marshall@usmc.mil Subject: RE: Wuterich follow-up I didn't get it. Maj Sip, I'll be at the Navy Yard tomorrow. Can I stop by and pick it up from you then? Under NMCCA rules, is our deadline for responding to the motion to lift the stay a week from today? I don't see a reason to file our opposition any sooner than that. Did Code 46 consult with us before filing? Aren't they required to? Maybe we'll move to strike. 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: Monday, June 06, 2011 12:38 PM To: DHSULLIVAN@aol.com; neal@puckettfaraj.com Cc: haytham@puckettfaraj.com; Sullivan, Dwight H CIV USAF AFLOA/JAJA; babu_kaza@hotmail.com; meridith.marshall@usmc.mil Subject: RE: Wuterich follow-up Sir- I just received paper copies of the following: (1) Gov't motion to attach Unauthenticated versions of the record of trial, government argument on the issue below, and the judge's FoF and conclusions of law. (2) Unauthenticated record of the Article 39(a) session that occurred on 25 April 2011. (3) Judge Jones' FoF and Conclusions of law dated 31 May 2011. (4) The government's written argument on the defense motion below. (5) Appellate government's motion to remove the stay of proceedings and expedite review of the case. In it the government says, among other things, that Neither LtCol Sullivan nor Maj Gannon has ever visited the site. There's frankly too much here to scan. I can fedex it to you if you give me an address. The service document says that this stuff was served on me and the "counsel of record" on June 3rd. Did anyone else receive this stuff? v/r Sip -----Original Message----- From: DHSULLIVAN@aol.com [mailto:DHSULLIVAN@aol.com] Sent: Sunday, June 05, 2011 14:55 To: neal@puckettfaraj.com Cc: haytham@puckettfaraj.com; Sripinyo, Kirk Major NAMARA, CODE 45; Dwight.Sullivan@pentagon.af.mil; babu_kaza@hotmail.com; meridith.marshall@usmc.mil Subject: Re: Wuterich follow-up Oorah. I think we certainly shouldn't file tomorrow. We should be ready to file on 9 June but then decide whether we actually want to. I'll begin drafting the mandamus petition today. Semper Fi, DHS In a message dated 6/5/2011 12:18:16 P.M. Eastern Daylight Time, neal@puckettfaraj.com writes: I believe the correct answer is, "neither." 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 888-970-0005 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 5, 2011, at 11:45 AM, DHSULLIVAN@aol.com wrote: Haytham, I seem to have misremembered. I think this is what I was thinking of: "I will send the transcript of the ex parte proceeding to the Clerk of Court for NMCCA. I have already made corrections to the record which have been captured by my identity and the date and time of the change." So it's possible that NEITHER transcript has been filed with NMCCA yet. So, Maj Sip, please hold off on filing the motion I suggested. Is it possible to check with NMCCA tomorrow to see whether either transcript has been filed yet? If neither transcript has been filed, that would seem to strengthen the case for waiting past 9 June to file our mandamus petition. If Jones waits until 13 June to file the authenticated transcript and we have to then file our motion for access to the sealed transcript, it literally might not be possible to file our mandamus petition until next week. Semper Fi, DHS In a message dated 6/5/2011 11:30:22 A.M. Eastern Daylight Time, DHSULLIVAN@aol.com writes: Thanks, Haytham. My recollection is that Jones filed an authenticated copy of the sealed ROT with NMCCA. I'll try to verify that. But I don't think I've heard of him filing an authenticated copy of the unsealed ROT. Maj Sip, would you be so kind as to file a motion with NMCCA tomorrow for us to access the sealed portion of the ROT. (We don't wan't to file a motion to unseal it; we don't want the government to have access to it, but we need access to it ourselves. The motion should be similar to what we filed at CAAF, attached.) Semper Fi, DHS In a message dated 6/5/2011 11:26:15 A.M. Eastern Daylight Time, haytham@puckettfaraj.com writes: I don't believe Jones has authenticated a copy of the sealed portion. He asked Gannon to forward the record to the court including the sealed portion but directed that only the court reporters handle it. None of us have the sealed portion. Haytham Faraj Sent from my iPhone On Jun 5, 2011, at 10:29 AM, DHSULLIVAN@aol.com wrote: Team Wuterich, Two questions which give rise to other questions: (1) Has Jones authenticated the non-sealed portions of the ROT of the Article 39(a) session yet? (2) Do Neal, Hatham, and/or Meredith have access to the sealed ROT of the ex parte hearing? The answer to (1) affects our optimal filing date. If Jones hasn't filed the authenticated ROT before 9 June, there's no reason for us to file our mandamus petition before then. If Jones hasn't filed the authenticated ROT by 9 June, we'll have to make a decision about whether to go beyond 20 days from the ruling complained of to file the mandamus petition. If the answer to (2) is no, Maj Sip, can you please file a motion with NMCCA tomorrow for access to the sealed ROT? Oh, and a third question -- Maj Kaza, were you able to get associate duty orders but? Semper Fi, DHS =
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