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.
Attachment:
smime.p7s
Description: S/MIME cryptographic signature