Haytham, 760-725-4820 = desk 760-208-7090 = Blackberry Talk to you soon, 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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