RE: 802 Conference ICO US v Wacker

We'll ask for a continuance. I may also be unavailable. 

Haytham Faraj 
760-521-7934
Sent from my iPhone

On Sep 30, 2010, at 6:46 PM, "Hur Capt Christian P" <christian.hur@usmc.mil> wrote:

> I believe that I'm going to be booked for the US v. Sgt Brito contested courtmartial on 2 November.
> 
> 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: Day Capt Evan S 
> Sent: Thursday, September 30, 2010 14:37
> To: 'Haytham Faraj'; Sullivan LtCol Sean
> Cc: Hur Capt Christian P; Hatch MAJ Douglas C
> Subject: RE: 802 Conference ICO US v Wacker
> 
> Gentlemen,
> 
> I drafted a joint continuance motion per LtCol Jones' email below.  I am wide open from 27 October through 15 November, so if 2 November doesn't work for the initial motions date, we can change it.
> 
> Very Respectfully,
> Captain Evan S. Day
> Trial Counsel, Military Justice Office
> Joint Law Center
> 3rd MAW/ MCAS Miramar
> Comm: 858-577-1887
> DSN: 312-267-1887
> Fax: 858-577-1734
> 
> Classification: UNCLASSIFIED//LIMDIS
> This e-mail is FOR OFFICIAL USE ONLY and is exempt from mandatory disclosure under FOIA. DoD 5400.7R, "DoD Freedom of Information Act Program", DoD Directive 5230.9, "Clearance of DoD Information for Public Release", and DoD Instruction 5230.29,  and "Security and Policy Review of DoD Information for Public Release".
> ATTORNEY-CLIENT PRIVILEGED COMMUNICATION OR ATTORNEY WORK PRODUCT. The information contained in this message is privileged. It is intended only to be read by the individual or entity addressed or their designee. If the reader of this message is not the intended recipient, you are on notice that any distribution of this message, in any form, is prohibited. If you have received this message in error, please immediately notify the sender and delete or destroy any copy of this message.
> 
> 
> 
> -----Original Message-----
> From: Jones LtCol David M 
> Sent: Wednesday, September 29, 2010 21:37
> To: Day Capt Evan S; 'Haytham Faraj'; Sullivan LtCol Sean
> Cc: Hur Capt Christian P; Hatch MAJ Douglas C
> Subject: RE: 802 Conference ICO US v Wacker
> 
> Counsel,
> 
> I like Capt Day's sentence: "The other is that we could litigate all of the witness/discovery motions (whether they relate to production of witnesses/discovery solely for motions or for trial) in November, and then handle remaining motions in January."  That sounds reasonable.  
> 
> I will be available for an 802 beginning 1 November.  We can work on a Saturday, or whenever we need to, to discuss witness and discovery issues so that we do the trial as I scheduled below.
> 
> 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: Day Capt Evan S 
> Sent: Wednesday, September 29, 2010 23:50
> To: Haytham Faraj; Jones LtCol David M; Sullivan LtCol Sean
> Cc: Hur Capt Christian P; Hatch MAJ Douglas C
> Subject: RE: 802 Conference ICO US v Wacker
> 
> Gentlemen,
> 
> I will also be available for any time in November, ideally before the 19th, but I can adjust leave plans to make myself available up to the 21st.  With regard to the proposal to have motions on 25-28 January, my main concern is that those days will not leave enough time before trial for certain issues to be resolved (particularly with regard to discovery, witness production, site visits) and could result in the trial getting delayed. As I see it, there are two ways to handle it.  One is that we could have another 802 conference to set a 39(a) date in December, which already seems problematic.  The other is that we could litigate all of the witness/discovery motions (whether they relate to production of witnesses/discovery solely for motions or for trial) in November, and then handle remaining motions in January.
> 
> Very Respectfully,
> Captain Evan S. Day
> Trial Counsel, Military Justice Office
> Joint Law Center
> 3rd MAW/ MCAS Miramar
> Comm: 858-577-1887
> DSN: 312-267-1887
> Fax: 858-577-1734
> 
> Classification: UNCLASSIFIED//LIMDIS
> This e-mail is FOR OFFICIAL USE ONLY and is exempt from mandatory disclosure under FOIA. DoD 5400.7R, "DoD Freedom of Information Act Program", DoD Directive 5230.9, "Clearance of DoD Information for Public Release", and DoD Instruction 5230.29,  and "Security and Policy Review of DoD Information for Public Release".
> ATTORNEY-CLIENT PRIVILEGED COMMUNICATION OR ATTORNEY WORK PRODUCT. The information contained in this message is privileged. It is intended only to be read by the individual or entity addressed or their designee. If the reader of this message is not the intended recipient, you are on notice that any distribution of this message, in any form, is prohibited. If you have received this message in error, please immediately notify the sender and delete or destroy any copy of this message.
> 
> 
> -----Original Message-----
> From: Haytham Faraj [mailto:haytham@puckettfaraj.com] 
> Sent: Wednesday, September 29, 2010 5:33
> To: Jones LtCol David M; Day Capt Evan S; Sullivan LtCol Sean
> Cc: Hur Capt Christian P; Hatch MAJ Douglas C
> Subject: RE: 802 Conference ICO US v Wacker
> 
> I'll be available for whatever is decided any time in November.
> 
> Haytham Faraj, Esq.
> PUCKETT & FARAJ, PC
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> 
> -----Original Message-----
> From: Jones LtCol David M [mailto:david.m.jones5@usmc.mil] 
> Sent: Wednesday, September 29, 2010 8:22 AM
> To: Jones LtCol David M; Day Capt Evan S; Sullivan LtCol Sean; haytham@puckettfaraj.com
> Cc: Hur Capt Christian P; Hatch MAJ Douglas C
> Subject: RE: 802 Conference ICO US v Wacker
> Importance: High
> 
> All Counsel,
> 
> To my knowledge, I have received no reply to my email below, sent out 9 days ago.  A new wrinkle is that I may not have to go out in October for the Wuterich case.  (I am waiting for a response on that issue from the government and was just notified by the defense that they see no need for a motion that week.)  That being the case, I would like to modify the below to handle the witness issues for the UCI motion in Wacker that first week of the Wuterich case, perhaps on Tuesday evening, the 2nd of November after we do some voir dire with the members.  But any time that week, even Saturday, will work with me.  
> 
> I need to get some buy in by the counsel or we are going to have to do another 802 conference via phone.  I need to know whether I have to schedule a trip to CA for roughly a week from now.  It doesn't look like it.  Please respond.
> 
> 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: Jones LtCol David M 
> Sent: Monday, September 20, 2010 10:29
> To: Day Capt Evan S; Sullivan LtCol Sean; 'haytham@puckettfaraj.com'
> Cc: Hur Capt Christian P; Hatch MAJ Douglas C
> Subject: RE: 802 Conference ICO US v Wacker
> 
> All,
> 
> Capt Day: no problem.  I do NOT want to interrupt your vacation times if we can avoid it.  And I do understand that it will be difficult to get witnesses there.  We will do the UCI motion another time.  I also found out on Friday, after we met, that the annual, mandatory, Interservice Military Judge's Seminar (IMJS) that I was told would be in January is now scheduled for 1-4 February at Montgomery, Alabama.  That also interrupts our plans.  So, here is what I would suggest:
> 
> 11 October at 1600 - We still meet, after the Wuterich motions session that day, to discuss production of witnesses for UCI, other motions.
> 
> 25 - 28 January = UCI and all other motions
> 
> 1 - 4 February = All Judges at IMJS
> 
> 7 - 18 February = Trial. 
> 
> I understand that after the Wuterich case, the defense counsel is not available until February, that is why I suggest the foregoing.  Hopefully, the defense could go the last week of January.  I also understand that this is quite unusual to schedule a case so far out.  Unfortunately, due to everyone's schedules, the unique issues involved in this case, and the postponement of the Wuterich trial dates into the Wacker original trial dates, I don't see other viable options.  
> 
> Please let me know if this is palatable to all parties.  If not, then we need to schedule another 802.  I don't want to wait until 11 October to discuss this and then have the parties schedule more things in the interim. 
> 
> 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: Day Capt Evan S 
> Sent: Friday, September 17, 2010 9:20
> To: Jones LtCol David M; Sullivan LtCol Sean; 'haytham@puckettfaraj.com'
> Cc: Rubin LtCol Peter R; Hur Capt Christian P; Hatch MAJ Douglas C
> Subject: 802 Conference ICO US v Wacker
> 
> Good Afternoon Gentlemen,
> 
> Here is my summary of our RCM 802 conference this afternoon:
> - Currently docketed trial and Article 39(a) dates will be cancelled. 
> - Next Art 39(a) session will be 11 October at 1600 on board MCB Camp Pendleton (following US v Wuterich motions), focused on issues relating to production of witnesses for motions.
> - Counsel for both sides will re-submit previously filed motions to MJ.
> - Art 39(a) motions session will be 22-24 November.
> - Trial will be 31 January 11- 11 February 11.
> - Counsel will agree on new appropriate trial milestones and submit consent MFD to MJ.
> 
> I realize that I should have spoken about this at the appropriate time during the conference call, but I would like to ask to reconsider holding the motions session on 22-24 November.  
> - On a practical level, we are going to have a large number of witnesses who have vacation travel plans immediately before Thanksgiving.  Holding a motions hearing then is likely to either interfere with witness vacation plans or make it likely that more witnesses will need to be produced telephonically or via VTC rather than in person.  To the extent that witnesses are produced in person, that is an extremely difficult time to schedule travel, particularly if last-minute adjustments need to be made.
> - On a personal level, I have leave plans for 19 November through 6 December to drive up to Seattle with my wife and 3 kids to see my family.  Having a court session on 22-24 November will cancel my plans to see my extended family over Thanksgiving due to the difficulty and expense of getting a 3-year-old and 7-month-old twins on a commercial flight the day of or day before Thanksgiving.  If there is absolutely no other time, I would prefer to have motions over the weekend (19-21 November).  
> 
> Again, I absolutely should have spoke up during the 802 and I apologize for not doing so.  But if there is any way at all to find an alternate date for the motions hearing, I would like to find it.
> 
> Very Respectfully,
> Captain Evan S. Day
> Trial Counsel, Military Justice Office
> Joint Law Center
> 3rd MAW/ MCAS Miramar
> Comm: 858-577-1887
> DSN: 312-267-1887
> Fax: 858-577-1734
> 
> Classification: UNCLASSIFIED//LIMDIS
> This e-mail is FOR OFFICIAL USE ONLY and is exempt from mandatory disclosure under FOIA. DoD 5400.7R, "DoD Freedom of Information Act Program", DoD Directive 5230.9, "Clearance of DoD Information for Public Release", and DoD Instruction 5230.29,  and "Security and Policy Review of DoD Information for Public Release".
> ATTORNEY-CLIENT PRIVILEGED COMMUNICATION OR ATTORNEY WORK PRODUCT. The information contained in this message is privileged. It is intended only to be read by the individual or entity addressed or their designee. If the reader of this message is not the intended recipient, you are on notice that any distribution of this message, in any form, is prohibited. If you have received this message in error, please immediately notify the sender and delete or destroy any copy of this message.
> 
>