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FW: Wacker list of individuals



Maj Shaw (Sir),

As you know, I'm detailed defense to Capt Wacker.  I am informed that within the past 2 years, Capt Wacker came to you asking for legal advice in your capacity as an attorney and maybe even exchanged some emails between you and him via gmail.  Long story made short, would you be willing to confirm whether or not this is accurate?  Thank you.

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: Monday, August 23, 2010 12:44
To: Sullivan LtCol Sean; 'Haytham Faraj'
Cc: Hur Capt Christian P; Hatch MAJ Douglas C; 'mariam@puckettfaraj.com'
Subject: RE: Wacker list of individuals

Gentlemen,

As LtCol Sullivan said, we would like to see affidavits from Maj Shaw and Ted Wacker supporting the claimed affidavits before we agree to exclude those names from the subpoena.  Please let me know if you intend to provide those affidavits (as well as the other email addresses) by Wednesday.  If we still don't have an agreement, we will need to take this matter up in an 802 with LtCol Rubin.  Since the records will be kept under seal from the time that they received from Google until given to the MJ, my preferred COA would be to not exclude those addresses from the subpoena and have the MJ make a ruling whether they are privileged.

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: Sullivan LtCol Sean 
Sent: Wednesday, August 11, 2010 9:18
To: Haytham Faraj; Day Capt Evan S
Cc: Hur Capt Christian P; Hatch MAJ Douglas C; mariam@puckettfaraj.com
Subject: RE: Wacker list of individuals

Gents, 

Maj Shaw has no AC with Captain Wacker, was simply a fellow student attending USD, and burden will be on defense to file a motion setting forth facts to establish any alleged AC relationship that would lead to any right to assert a privilege.  Same goes for Mr. Ted Wacker, a written pleading with attached affidavits from Major Shaw and Ted Wacker will be required to set forth facts which establish any privileged relationship 

LTCOL Sean M. Sullivan, USMCR
Staff Judge Advocate, MCRD
3700 Chosin Ave, Building 12
San Diego Ca 92140
(O)  619 524 4104 DSN 524 4104
(BB) 619 302 2145  


-----Original Message-----
From: Haytham Faraj [mailto:haytham@puckettfaraj.com]
Sent: Wednesday, August 11, 2010 8:18
To: Day Capt Evan S
Cc: Hur Capt Christian P; Sullivan LtCol Sean; Hatch MAJ Douglas C; mariam@puckettfaraj.com
Subject: RE: Wacker list of individuals

Capt Day:
We will get you the email addresses you requested.  Regarding Maj Shaw, our client asserts a privilege to communications he had with Maj Shaw regarding this case.  The standard on A/C privilege is the client's state of mind.  It is my understanding the Maj Shaw provided advice early in the case.  If there is a disagreement as to the facts, then I agree that it may be something that we will have to resolve before the MJ.  If on the other hand there is no issue as to the facts -that is that they did discuss the case- then I think it is a matter of law that should be resolve before the subpoena issues.

With respect to Mr. Ted Wacker, I personally represent that he and I had consultations on this case.  He has been a member of this team from the first day I was retained.  Although he has not made any appearances, he has been engaged in this case and any communications between him and Capt Wacker is privileged.  The fact that he does not practice criminal law is of no relevance.  Mr. Ted Wacker is a highly experienced trial attorney, familiar with the rules of evidence and trial strategies.  He is a licensed attorney and is qualified to represent Capt Wacker.  I, therefore, request that his email address be included in the list of exempted persons.  Please advise as to your decision.  If you do not agree to add his name, I request that we resolve this with the Military Judge before the subpoena issues.

I have no other concerns with the subpoena or the list of names.  Thank you for providing it and giving me an opportunity to comment.

Vr,

Haytham Faraj, Esq.
PUCKETT & FARAJ, PC
_______________________
WASHINGTON DC METRO
1800 Diagonal Road
Suite 210
Alexandria, VA 22314
703-706-0442 Phone

DETROIT METRO
6200 Schaefer Road
Suite 202
Dearborn, MI 48126
313-457-1390 Phone
202-280-1039 Fax

www.puckettfaraj.com

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.


-----Original Message-----
From: Day Capt Evan S [mailto:evan.s.day@usmc.mil]
Sent: Tuesday, August 10, 2010 4:03 PM
To: Haytham Faraj
Cc: Hur Capt Christian P; Sullivan LtCol Sean; Hatch MAJ Douglas C
Subject: RE: Wacker list of individuals

Mr. Faraj,

A draft subpoena and attachment regarding the email issue are attached.  The legal admin officer will be a custodian of these records only (so no TC touches them until after the MJ has reviewed them).  With regard to the list of email addresses below:
- Spousal privilege issues should be mooted by the limited time frame of the subpoena.
- Specific email addresses for Mr. DeSalvo, Mr. Blackburn, and Maj Lee will make it much easier for those emails to be excluded from the subpoena response.
- Maj Shaw: we have spoken to Maj Shaw on multiple occasions, due to the fact that he has also been listed as a defense witness, and he has never given any indication that any A/C privilege existed between him and Wacker.
- Ted Wacker: similarly to Maj Shaw, it is not clear to me how Capt Wacker's communications with his brother would be "for the purpose of facilitating the rendition of professional legal services," as opposed to a communication with a sibling not covered by any privilege.  Mr. Wacker's official firm biography shows no indication of him ever practicing criminal law.  If you can show me some basis that a privilege exists here, I would be happy to request that Google exclude those emails from the subpoena response.
Otherwise, that issue should probably be resolved by the MJ during the in camera review.

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: Monday, July 19, 2010 11:10
To: Day Capt Evan S; Rubin LtCol Peter R
Cc: Hur Capt Christian P; twacker@rcrlaw.net
Subject: Wacker list of individuals

Capt Day:

Below is a list of attorneys with whom Capt Wacker or we -as his attorneys- engaged in privileged communications.  Emails were either sent to or from Capt Wacker to these individuals.  In some cases, emails were exchanged between the people below in which Capt Wacker was cc'd.  I provide this list without waiving any privileges.  I consider the fact that Capt Wacker consulted with the people below to be privileged.  The defense maintains that the Government has not met its burden to pierce the A-C privilege and that the subpoena will do exactly that because it is too broad and, therefore, unreasonable.  The information below is provided so that we may limit what the defense considers a violation of the attorney-client privilege and not in any way meant as a waiver of the privilege or a consent to the search.

 

Ted Wacker twacker@rcrlaw.net;  twacker@gmail.com (A-C Privilege)

Alex Landon negall1121@hotmail.com (Attorney retained and consulted before the USD hearing)  (A-C Privilege)

Frank DeSalvo (New Orleans) (Unknown emails) (A-C Privilege)

Bob Blackburn (New Orleans) (Unknown emails)  (A-C Privilege)

Capt David Ahn david.ahn@usmc.mil (A-C Privilege)

Capt Chris Hur christian.hur@usmc.mil; christian.hur@gmail.com (A-C
Privilege)

Maj Ken Lee (while he was civilian attorney) (Unknown emails)  (A-C
privilege)

Haytham Faraj haytham@puckettfaraj.com; farajh@gmail.com  (A-C Privilege)

Neal Puckett neal@puckettfaraj.com (A-C Privilege)

Prof Shaun Martin (USD) smartin@sandiego.edu (A-C Privilege)

Maj Chris Shaw jurismarine@gmail.com; (A-C Privilege)

Dalliana Wacker  dalliana.wacker@gmail.com;  (Spousal Privilege)

Marc Capobianco marc.Capobianco@med.navy.mil (psycho-therapist privilege)

 

 

Haytham Faraj, Esq.

PUCKETT & FARAJ, PC

_______________________

WASHINGTON DC METRO

1800 Diagonal Road

Suite 210

Alexandria, VA 22314

703-706-0442 Phone

 

DETROIT METRO

6200 Schaefer Road

Suite 202

Dearborn, MI 48126 

313-457-1390 Phone

202-280-1039 Fax

 

www.puckettfaraj.com <http://www.puckettfaraj.com/> 

 

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.

 


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