Gentlemen, I'm not sure how this works out. If a school "must" have the student's consent prior to disclosure, how can the two named in the subpoenas answer any questions? The subpoena is for them to appear, however, they are still bound by FERPA to not discuss matters pertaining to the student. A school "MAY" disclose "education records", but it doesn't say anything about discussing the records. If they do discuss, without prior consent, aren't they in violation of FERPA? It seems to me that they are bound to appear in court, but that they must be advised that their testimony could violate my federal rights under FERPA. All documents/records have been subpoenaed by the Gov't and are now in its possession. The two are not the USD custodians of these records, but were merely members on the Board. To me it is kind of like a reporter who protects their source's identity. Except, in journalism it is an ethical obligation not founded in law; in my case, the information is protected by FERPA. Either way, I don't really care what they have to say now. Just looking for things to bind the school. Also, I think now is a good time to request an interview with Donald Godwin (university) and Kevin Cole (law school) and any other school officials who spoke with SA Burge and/or Col Smith, so that we can have that information prior to the motions hearing. The two subpoenaed witnesses are for trial. S/F Doug Disclosure of Education Records A school must: Have a student's consent prior to the disclosure of education records; Ensure that the consent is signed and dated and states the purpose of the disclosure. A school MAY disclose education records without consent when: The disclosure is to school officials who have been determined to have legitimate educational interests as set forth in the institution's annual notification of rights to students; The student is seeking or intending to enroll in another school; The disclosure is to state or local educational authorities auditing or enforcing Federal or State supported education programs or enforcing Federal laws which relate to those programs; The disclosure is to the parents of a student who is a dependent for income tax purposes; The disclosure is in connection with determining eligibility, amounts, and terms for financial aid or enforcing the terms and conditions of financial aid; The disclosure is pursuant to a lawfully issued court order or subpoena; or The information disclosed has been appropriately designated as directory information by the school. Douglas S. Wacker Captain, USMC Future Operations Officer MWHS-3, 3D MAW douglas.wacker@usmc.mil Wk: 858-577-6730 DSN: 267-6730 Cell: 858-401-9392 "Don't tell people how to do things, tell them what to do and let them surprise you with their results." ~George S. Patton -----Original Message----- From: Hur Capt Christian P Sent: Friday, February 04, 2011 17:22 To: Wacker Capt Douglas S Cc: haytham@puckettfaraj.com Subject: RE: we need to file a motion US v. Wacker I looked at FERPA Doug closer. An exception to FERPA is a subpoena. Regarding your points about ultimate issue, that helps us if members learn the board found no misconduct after investigating this. Christian P. Hur Captain, USMC Senior Defense Counsel Telephone: (619) 524-8713 Fax: (619) 524-6784 Address: Defense Section, Bldg 12, 1st Floor, MCRD, San Diego, CA 92140 This email may contain Attorney Work Product. Please delete if you received this message in error. -----Original Message----- From: Wacker Capt Douglas S Sent: Friday, February 04, 2011 13:04 To: Wacker Capt Douglas S; Hur Capt Christian P; 'Haytham Faraj' Cc: 'douglas.wacker@gmail.com' Subject: RE: we need to file a motion US v. Wacker I think the appropriate route is to put a short motion to quash the subpoena. If it is granted, then so be it. If it isn't (which is what I expect), then the Gov't brings them in to testify. What questions can they be asked? Unless I am mistaken, almost any question would have to go to the admissions I made in the transcript. Any other testimony would be lacking in relevance. Correct me if I'm wrong, but if they get up there and try to get them to say anything different or ask their opinions then objections to the questions would prevent the testimony from being on the record. I am still trying to figure out how this will all look to a jury. In the end, the prosecution is opening the door wide open on the fact that USD already considered this issue and found that it was lacking at the preponderance level. How can you get to "beyond a reasonable doubt" if you can't get to a preponderance. Even a preponderance leaves a vast amount of room for doubt. -dsw Douglas S. Wacker Captain, USMC Future Operations Officer MWHS-3, 3D MAW douglas.wacker@usmc.mil Wk: 858-577-6730 DSN: 267-6730 Cell: 858-401-9392 "Don't tell people how to do things, tell them what to do and let them surprise you with their results." ~George S. Patton -----Original Message----- From: Wacker Capt Douglas S Sent: Friday, February 04, 2011 11:00 To: Hur Capt Christian P; 'Haytham Faraj' Cc: 'douglas.wacker@gmail.com' Subject: RE: we need to file a motion US v. Wacker Here is a short overview of FERPA: http://www2.ed.gov/policy/gen/guid/fpco/ferpa/students.html The prosecution is trying to subpoena the parties to the Critical issues Board (the members) to find out their thought processes. The prosecution already got the recording of the hearing and made a transcript. There aren't any other "records" to get. All they are trying to do is get further opinions from the board members. There is no point to having them speak or be deposed. At best, they say that the Board found I was not responsible for any misconduct. At worst, they say they had reservations about their decision at the time, because they didn't feel there was enough evidence. The prosecution is raising this to see if they can get the boardmembers to change their previous documented opinion. However, if they don't, they are going to argue that the USD Board's decision isn't dispositive and can't be used in deciding my case at court martial. Hmmm... I don't know how you want to proceed. S/F Doug Douglas S. Wacker Captain, USMC Future Operations Officer MWHS-3, 3D MAW douglas.wacker@usmc.mil Wk: 858-577-6730 DSN: 267-6730 Cell: 858-401-9392 "Don't tell people how to do things, tell them what to do and let them surprise you with their results." ~George S. Patton -----Original Message----- From: Hur Capt Christian P Sent: Friday, February 04, 2011 10:47 To: Wacker Capt Douglas S; 'Haytham Faraj' Cc: 'douglas.wacker@gmail.com' Subject: RE: we need to file a motion US v. Wacker Well I like the idea of another motion, even if we lose. It further clouds the issues. Christian P. Hur Captain, USMC Senior Defense Counsel Telephone: (619) 524-8713 Fax: (619) 524-6784 Address: Defense Section, Bldg 12, 1st Floor, MCRD, San Diego, CA 92140 This email may contain Attorney Work Product. Please delete if you received this message in error. -----Original Message----- From: Wacker Capt Douglas S Sent: Friday, February 04, 2011 10:41 To: Haytham Faraj; Hur Capt Christian P Cc: douglas.wacker@gmail.com Subject: RE: we need to file a motion US v. Wacker Gentlemen, The two individuals subject to the subpoena are two of the three boardmembers who sat on the Critical Issues Board (the third was a student at the University, but his name is not listed on the subpoena). These are not people who anyone from the Marine Corps/NCIS would have talked to. The only thing the prosecution is trying to garner is whether or not each individual felt I was honest in speaking with the board, then they are going to say, "we have 'evidence' that Wacker did use drugs, would that have changed your opinion and/or decision now knowing that information?" They only plan on asking 2 of the 3 and they are trying to get at the decision-making process they went through. After trying to keep the decision of the USD Critical Issues Board out of the trial as not dispositive, the prosecution is putting a lot of effort into introducing it as evidence. I don't even know what a motion to quash would look like other than that Capt Wacker asserts his privacy rights under FERPA and does not give permission for any USD staff-members to discuss private material within his personal records at the university. Let me know if you need me to do anything. S/F Doug Douglas S. Wacker Captain, USMC Future Operations Officer MWHS-3, 3D MAW douglas.wacker@usmc.mil Wk: 858-577-6730 DSN: 267-6730 Cell: 858-401-9392 "Don't tell people how to do things, tell them what to do and let them surprise you with their results." ~George S. Patton -----Original Message----- From: Haytham Faraj [mailto:haytham@puckettfaraj.com] Sent: Friday, February 04, 2011 10:18 To: Hur Capt Christian P Cc: douglas.wacker@gmail.com; Wacker Capt Douglas S Subject: RE: we need to file a motion US v. Wacker Don't quash the subpoena, there is nothing that they're going to find in his university records except positive information- correct me if I'm wrong Doug. This will allow us to demand that they produce the Dean who had conversations with Smith and may open the door to get into the Board's findings. Chris. Is Smith on the witness list for the court-martial? -----Original Message----- From: Hur Capt Christian P [mailto:christian.hur@usmc.mil] Sent: Friday, February 04, 2011 12:57 PM To: haytham@puckettfaraj.com Cc: douglas.wacker@gmail.com; Wacker Capt Douglas S Subject: we need to file a motion US v. Wacker Gentlemen, Please see attached jpeg that I just received. Doug, Can you work on a motion that I can get out today? Christian P. Hur Captain, USMC Senior Defense Counsel Telephone: (619) 524-8713 Fax: (619) 524-6784 Address: Defense Section, Bldg 12, 1st Floor, MCRD, San Diego, CA 92140 This email may contain Attorney Work Product. Please delete if you received this message in error. -----Original Message----- From: Christian Hur [mailto:christian.hur@gmail.com] Sent: Friday, February 04, 2011 9:44 To: Hur Capt Christian P Subject:
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