Haytham, It was a pleasure speaking with you this afternoon. Pursuant to our conversation, please provide a list of your experts (both the witnesses, as well as any consultants) to me ASAP so that I can ensure that the contracting process is completed and they are ready to testify. Also, please provide additional justification for any lay witnesses you believe that we have denied improperly. As indicated during our discussion, I will consider any additional justification you provide for the witnesses we denied in terms of their relevance and materiality, and I will answer any written request with a written response. Finally, it is our position that the defense should file a written response to the motions we filed on 26 April 2010. This is especially true if you intend to make a blanket MRE 106 objection to our motion to pre-admit AE 58 (DVDs 3, 4, and 8 from the Accused interview with Mr. Pelley). Take care. Very respectfully, Nick -----Original Message----- From: Haytham Faraj [mailto:haytham@puckettfaraj.com] Sent: Monday, May 03, 2010 4:46 Cc: Gannon Maj Nicholas L Subject: Re: Motions ICO U.S. v. Wuterich Nick, Would you please email me a number to call you on this afternoon? Thanks. Haytham Faraj 760-521-7934 Sent from my iPhone On May 3, 2010, at 3:46 AM, "Jones LtCol David M" <david.m.jones5@usmc.mil > wrote: > Counsel, > > I am not aware of my previously litigating witness issues via an 802 > conference. I certainly didn't anticipate doing that in this case. > > The government is still concerned with: > 1. The defense answering the motions so they know if the defense > will be objecting under MRE 106; > 2. The denial of defense requested witnesses; > 3. What expert witnesses have been approved and if there are > contracts in place to fund them. > Numbers 2 and 3 are of most concern to me. It was my understanding > that we would have all of the expert witness issues cleared up so that > we could litigate or not on 13-14 May. The defense thinks the experts > have been granted, the government isn't sure. > > My concern is that on 26 April 2010 motions should have been filed by > the defense for any experts or witnesses. They were not. Based on Mr > Faraj's email, I must assume that the defense is not just gaffing off > the court and that they believed these issues to have already been > solved. But I need the parties to communicate better. > > Per the defense's assertions that there are no expert or other > scientific type issues that needed to be litigated, THERE WILL BE NO > COURT SESSION NEXT WEEK. However, please put this issue to rest > between the two parties. I do NOT want to reward people for missing > judicially-ordered deadlines, but if I need to come out earlier than > August to litigate something (in June or July), I need to know as soon > as possible. As all parties are aware, I am the only judge in my area > of responsibility and need as much notice as possible for the busy > docket here. I was quite clear on the record that I do not > want anything to interrupt our trial schedule, for everyone's sake. > With so many moving parts, and counsel coming from all over, both > parties need to be able to plan on those firm trial dates. > > Mr. Faraj, thank you for reporting back to me after your conversation > with Major Gannon. > > R, > > LtCol David M. Jones > Circuit 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: Haytham Faraj [mailto:haytham@puckettfaraj.com] > Sent: Sunday, May 02, 2010 22:08 > To: Jones LtCol David M; Gannon Maj Nicholas L; 'Neal Puckett' > Cc: Sullivan LtCol Sean; 'Vokey Colby'; 'Mark Zaid S.'; Sullivan LtCol > Sean > Subject: RE: Motions ICO U.S. v. Wuterich > > Your honor: > I continue to maintain that it is unnecessary to hold the 13 and 14 > May 39a. > I will respond to their motions as soon as practicable. I just > completed a members trial on Friday and am starting another tomorrow. > Before that I was in back to back hearings that did not allow me > sufficient time to draft a response. As I said in my previous email, > I intend to work directly with trial counsel on the witness production > issue. Where we are unable to reach agreement, I propose we send it > to you for a final decision. This can be done via email and > telephonic 802. We can do that sometime in late May. > > I will also resend our expert requests. We relied on our previous > requests because this court-martial was never adjourned and the > charges were never dismissed. I understand that it has been a while. > Accordingly, we will resend our requests. Our position > however, is that we are not bound by the contracting process. > Experts are producible as a matter of law and were granted based on a > factual showing of necessity and relevancy. I am not sure how the > lack of an existing contract in 2010 requires us to go through the > request process again to show materiality and relevancy. In short, > we're all familiar with U.S. v. Warner. If the Government has one, > then we get one. > > I agree with Maj Gannon that there may be an issue that requires > litigation with respect to the CBS outtakes. This is a matter that > can be resolved in August. It's a legal question that will require > little or no logistical work, as I believe all 8 outtake CDs are > available. > > I will speak to Maj Gannon by telephone tomorrow, Monday April 2. I > will report back on progress as soon as we're done. > > Vrs, > Haytham Faraj > > -----Original Message----- > From: Jones LtCol David M [mailto:david.m.jones5@usmc.mil] > Sent: Tuesday, April 27, 2010 8:56 PM > To: Gannon Maj Nicholas L; Neal Puckett > Cc: Haytham Faraj; Sullivan LtCol Sean; Vokey Colby; Mark Zaid S.; > Sullivan LtCol Sean > Subject: RE: Motions ICO U.S. v. Wuterich > > Defense, > > Your response? > > R, > > LtCol David M. Jones > Circuit 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: Gannon Maj Nicholas L > Sent: Wednesday, April 28, 2010 4:45 > To: Neal Puckett; Jones LtCol David M > Cc: Haytham Faraj; Sullivan LtCol Sean; Vokey Colby; Mark Zaid S.; > Sullivan LtCol Sean > Subject: RE: Motions ICO U.S. v. Wuterich > > Your Honor, > > In theory, the government does not object to the cancelation of the > 13-14 May 2010 39a session. However, the government does respectfully > request that the defense respond to our motions by the scheduled due > date. Their responses could, depending on how the defense response, > require some additional litigation and we do not want to jeopardize > the 13 September 2010 trial date. Specifically, if the defense makes > an MRE 106 objection to our motion to admit DVDs 3, 4, and 8, of AE > 58, that could require some follow-on litigation, and as such, we > believe that the defense should be required to submit a response to > our motion before we cancel the > 13-14 May 2010 39a session. I believe that the defense responses will > determine whether we need to hold the May 39a. > > Also, on 16 April 2010, the government received the defense witness > request. > On 20 April 2010, the government responded to that request. We denied > several of their requested witnesses. If the defense intends to move > the Court to compel any of the witnesses we denied on 20 April 2010, > the government feels that it would be better to litigate witness > production sooner rather than later, and thus, that too may make the > May 39a session a good idea, depending on the defense. > > Finally, in Mr. Puckett's response to the Court's email, he indicated > that the government had approved all of the defense expert witnesses > to date. > Some time ago, we requested that the defense counsel provide us a list > of the experts they intend to employ, and a justification/ statement > of work for each. This was to ensure that all contracts are in place, > and active in FY10. I could be wrong, but I don't think that we > received that list. It is entirely possible that the defense has > already coordinated directly with the MARCENT SJA's office, and thus > this could be a moot issue. However, if I am correct, and we still > need to renew all of the contracts for the defense experts, we will > need to get the experts identified and funded ASAP so that contracting > issues do not effect the trial dates. > > In short, I do not believe that we have approved any defense expert at > this time because I do not believe that there are any contracts in > place for FY 2010. This is not to say that we are going to deny all > of the defense experts, but we do need to get all of the paperwork > perfected in order to avoid delay. > > Very respectfully, > Major Gannon > > -----Original Message----- > From: Neal Puckett [mailto:neal@puckettfaraj.com] > Sent: Tuesday, April 27, 2010 2:56 > To: Jones LtCol David M > Cc: Gannon Maj Nicholas L; Haytham Faraj; Sullivan LtCol Sean; Vokey > Colby; Mark Zaid S. > Subject: Re: Motions ICO U.S. v. Wuterich > > Your Honor, > As the govt had already approved all necessary experts, the defense > concurs. > V/r, > > Neal A. Puckett > LtCol, USMC (Ret) > Puckett & Faraj, PC > > Sent from my iPhone > > On Apr 27, 2010, at 4:17 AM, "Jones LtCol David M" > <david.m.jones5@usmc.mil >> wrote: > >> All, >> >> I have received no motions from the defense by 26 April, which was >> the submission deadline. Therefore, I understand there to be no >> issues regarding experts, etc. that need to be decided early so as >> not to delay our trial schedule. Considering these two government >> motions do not appear to be time sensitive, I recommend that we forgo >> the motions session in May and plan to meet up 26-27 August to >> litigate these two government motions and any further non time >> sensitive motions the defense may file. I need to know immediately >> if either side objects to this and if so, why. >> >> R, >> >> LtCol David M. Jones >> Circuit 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: Gannon Maj Nicholas L >> Sent: Tuesday, April 27, 2010 7:55 >> To: Jones LtCol David M >> Cc: Haytham Faraj; Neal Puckett; Sullivan LtCol Sean >> Subject: Motions ICO U.S. v. Wuterich >> >> Your Honor, >> >> The Government will be submitting two motions to the Court today, 26 >> April 2010. One is to admit AE 58 (the 60 min outtakes) and the >> other is a request for a reconsideration of a previous ruling related >> to crime scene photographs and their admissibility. >> >> For the second motion, I would like to send color photographs to the >> Court for your consideration. However, I have to send hard copies as >> we do not have a color scanning capability, and the black and white >> photos that are attached to our motion are not very high quality. >> >> Thus Sir, I respectfully request the best address to send a hard copy >> of both motions. I intend to send the motions by way of FEDEX. >> >> Very respectfully, >> Major Gannon >> >> Nick Gannon >> Major, USMC >> Officer-in-Charge, >> Legal Team Echo >> Legal Services Support Section >> 1st Marine Logistics Group, Box 555607 Camp Pendleton, CA 92055-5607 >> Desk: 760-725-4820 >> Blackberry: 760-208-7090 >> Fax: 760-725-4500 >> nicholas.gannon@usmc.mil >
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