| My reply to John Baker. Neal A. Puckett, Esq LtCol, USMC (Ret) Puckett & Faraj, PC 1800 Diagonal Rd, Suite 210 Alexandria, VA 22314 703.706.9566 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. Begin forwarded message: From: Puckett Neal <neal@puckettfaraj.com> Date: September 15, 2010 7:29:20 AM PDT To: Baker LtCol John <john.baker1@usmc.mil> Subject: Re: Need some sage advice Hi, John, Neither choice is good. Have you researched vacation pkgs to countries without extradition treaties? Lying is not your main problem, though it is one that will absolutely prevent him getting a retirement. "Falling in love" with the wife of a deployed Marine when you've never deployed would have landed you in jail in Judge Puckett's court. Jail time can be avoided, but dismissal is certain. Only one way to make sure he doesn't spend time in jail away from his two groups of children. He's not getting a pension either way. No way. No chance. If the court doesn't dismiss him (highly unlikely), a BOI panel will send him packing. So a course of action designed to try to keep that option alive is not worth considering if that's the only or main reason it's being considered. Don't know where he would live, but VA calls all GCM convictions felonies, regardless of the charges. Excellent brief of the case, by the way. Good luck! Haytham and I could both be available to talk to different topics or could tag team legal issue involved in Wuterich and/or the Navy SEAL case. Neal A. Puckett, Esq LtCol, USMC (Ret) Puckett & Faraj, PC 1800 Diagonal Rd, Suite 210 Alexandria, VA 22314 703.706.9566 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 Sep 15, 2010, at 5:56 AM, Baker LtCol John wrote: Capt John Cacioppo and I have an odd officer case that I'd like your take on -- the gov't will portray this one as the case of the perpetual liar. Our client is a CWO3 admin-type with just over 19 years of service, he had a very solid record until a year ago, he's a homesteader at Lejuene with no OIF or OEF deployments, but taught at the admin clerk schoolhouse of several year and has a chest full of personal awards. He is heavily involved in youth soccer - coaching several teams a season and volunteering countless hours on the soccer pitch. A year ago the client, who is married with a couple of kids, came under investigation for having an affair with the wife of a master sergeant and team mom on a team my client coached while the master sergeant was deployed to Iraq. During the course of the command investigation they discover my client has a tattoo on his shoulder with the names of his kids and the names of the master sergeant's kids surrounding a cross. They also learn my client has slept at her house and she at his house and this all started about the time my client told his wife he wanted a divorce. Everyone assumes they have been having an affair. During the command investigation both the client and the wife of the master sergeant deny having a sexual relationship, but are instead claim they are very close friends. They admit to going away on vacations, both separately and with the kids. The client tells the IO that when he and the master sgt's wife go away alone they stayed in separate rooms -- the IO knows this is not true. In a later interview, the client admits to sleeping in the same hotel room and told the IO he had forgotten that they stayed in the same room. Charges for 133 - unduly familiar relationship with wife of a deployed MSgt and 107 - lying to the IO are preferred and Art 32 hearing set. Client did not want to go to court, so we reached a PTA for client to go to NJP and plead G to the 133, NG to 107 - no intent to deceive, he just made a mistake. As part of the NJP read ahead package, client signs an affidavit saying he and the now ex-wife of the master sergeant are just friends - no sexual relationship. At NJP, client asks the CG to consider all matters previously submitted, including the one that says just friends. Client has several character witnesses/letters aimed at client not being ordered to a BOI. The CG grills the client when the client attempts to explain why he was not guilty of the 107. CG says client did both 107 and 133, issues letter of reprimand and takes 1/2 pay for two months and tells client he going to a BOI. We appeal the sentence as being unjust. As part of the appeal, client explains he has lots of debt from previous marriage, has child support payments, and lives frugally. Appeal denied. We then request clemency and ask that the forfeitures be set aside and as part of this letter, client explains that he lives in a small apartment and lives frugally. BOI ordered. Command then finds out that the client actually did not live in a small apartment as he claimed in clemency package, but instead had recently purchased a house where he was living with his new wife, the master sergeant's ex-wife - who he married several weeks after the date of his affidavit saying just friends but prior to the NJP where he offered the affadavit. BOI postponed, case past up the MARFORCOM, charges referred, we go to a 32, and the case now at a GCM. Client is charged with lying at the NJP, lying in his appeal package, and lying in his clemency package -- the G can prove two of three lies very easily - they may not be able to prove the appeal package contained a false official statement. Client is strongly considering submitting resignation in lieu of trial and getting an OTH in his 19th year as the client does not want to have a GCM conviction, the possibility of some jail time or dismissal, and then if no dismissal going to a BOI with a NJP and GCM where he thinks he'll get an OTH. I've advocating rolling the bones by going to the GCM, pleading NG but understand that he will be convicted of something, but put on a good sentencing case (sentencing theory is good Marine who had mid-life crisis brought on by finally finding true love, which is why he married the master sergeant's ex-wife) and hope he doesn't get a dismissal, and then go to a BOI a couple of months from now and hope the members don't separate him at 19 and half years so he can draw a retirement check. In essence I'm advocating accepting a GCM conviction in order to have a shot at getting retirement pay (he was married to his ex for 13 years, so she gets more than a quarter of his retirement pay). He'd rather take a known OTH and not risk going to jail or getting a dismissal and ending this now instead . We've done a practice direct and cross of the client and videotaped it -- he sucks as a witness both on the merits and in sentencing. Case goes to trial in a month. I'm seeking a second opinion because of the weird fact pattern and because I'm probably too close to this case. Questions: 1) RILT or accept having a GCM conviction for a shot at retirement pay 2) If go to court, judge or jury? (I don't think I want a panel sentencing a CWO after convicting him of lying three times and learning he has an NJP for lying to an investigating officer) 3) If go to court - what type of sentence do you see -- jail time? Dismissal? 4) Do you call his current wife (master sergeant's ex-wife) as a witness? She's articulate and will help humanize him. 5) Any other advice besides have the client hire you (he can't afford it)? Warning order -- the annual Defense Counsel of the Marine Corps Conference will be going the first of February at Miramar, we will have mess night and I'll be looking for lecturers shortly. Semper Fi, LtCol John G. Baker, USMC Chief Defense Counsel of the Marine Corps Office: (703) 614-0885; Cell: (703) 944-2580 ATTORNEY-CLIENT PRIVILEGED COMMUNICATION OR ATTORNEY WORK PRODUCT. The information contained in or attached to this communication is confidential, legally privileged and intended for use only by the individual or entity to which it is transmitted. Any other use of this communication is strictly prohibited. Do not disseminate without the approval of the Chief Defense Counsel of the Marine Corps. This e-mail and all other electronic or voice communication from this address are for informational purposes only. 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