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RE: Article 32 hearing ICO US v Wacker
Sir,
Ms. Davis never returned my call, so we stand on the proffer Mr. Faraj sent in his last witness request: that Ms. Davis was the bartender that served Wacker and Cusack alcohol in Seattle at Finn McCools of the incident. Also, Ms. Davis speaks highly of Capt Wacker and does not believe he would sexually assault a woman or have sex with her without a woman's consent.
Christian P. Hur
Captain, USMC
Senior Defense Counsel
Telephone: (619) 524-8713
Fax: (619) 524-6784
Address: Defense Section, Bldg 7W, 2nd Floor, Parade Deck, MCRD, San Diego, CA 92140
This email may contain Attorney Work Product. Please delete if you received
this message in error.
-----Original Message-----
From: Sayegh LtCol Michael E
Sent: Thursday, March 25, 2010 9:12
To: Day Capt Evan S; Hur Capt Christian P; 'sean.sullivan@cox.net'; 'Haytham Faraj'
Cc: Keske Maj Zenon W; 'farajh@gmail.com'; Hatch MAJ Douglas C
Subject: RE: Article 32 hearing ICO US v Wacker
ALCON:
With respect to Theunissen, Baxter, and Kopacz: I first note that I still am not clear on where Kopacz is located. Regardless, beyond the fact that Theunissen (LA) and Baxter (NY) are beyond 100-mile, I find more of a basis in the defense proffer to find these witnesses not available to be required to be in-person to testify. Although clearly relevant with respect to the charges involving Ms. Cusack, the significance of the proffered testimony when analyzed under RCM 405(g)(1)(A) does not lead me to conclude these witnesses are available and must be invited to attend. It does not appear from the proffers than these witnesses have any direct knowledge or information regarding the allegations concerning Ms. Cusack on the dates alleged. Additionally, it appears from the proffers that these witnesses may be offering cumulative testimony - however - I am withholding that determination until we are on the record and only if that issue is raised at that time.
With Regard to Santerre, Story, and Davis my original response remains the same. I note that Story and Santerre are local to the San Diego area. However, neither proffer details the basis upon which the character evidence will be made. The proffer for Story with regard to what the NCIS agent may have told the civilian witnesses is not relevant to the charges, but may be relevant for other defense purposes. The is no indication in the proffer with regard to Santerra as to when she formed her opinion of character. With regard to Davis the proffer does not establish what the basis for her character testimony will be, or the extent of observation she had on the parties as the bar tender.
If defense provides me this information, I can rule on availability by COB Monday. The Government could make the issue moot by simply inviting these three witnesses to attend. Or we could have another pre-hearing conference this Friday or Monday or Tuesday of Next week.
Finally, still waiting to here the Governments response with regard to the NCIS notes.
v/r
LtCol Sayegh
-----Original Message-----
From: Day Capt Evan S
Sent: Wednesday, March 24, 2010 17:23
To: Hur Capt Christian P; 'sean.sullivan@cox.net'; Sayegh LtCol Michael E; 'Haytham Faraj'
Cc: Keske Maj Zenon W; 'farajh@gmail.com'; Hatch MAJ Douglas C
Subject: RE: Article 32 hearing ICO US v Wacker
Gentlemen,
I believe I responded to the supplemental witness request on 16 March. The government has extended invitations to testify telephonically to Talbot Theunissen, Jessie Baxter, and Melissa Kopacz, and has advised these witnesses of the continuance in the Article 32 investigation. The government's position has not changed with respect to the remaining witnesses.
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: Hur Capt Christian P
Sent: Tuesday, March 23, 2010 11:40
To: 'sean.sullivan@cox.net'; Sayegh LtCol Michael E; Haytham Faraj; Day Capt Evan S
Cc: Keske Maj Zenon W; Sayegh LtCol Michael E; 'farajh@gmail.com'
Subject: RE: Article 32 hearing ICO US v Wacker
Trial Counsel (Sirs),
Based on Mr. Faraj's supplemental witness testimony proffer (the PDF) in response to the Government's first response to Capt Wacker's witness request (see word document attached drafted by Maj Keske) does the Government change its denial of any of Capt Wacker's requested witnesses (Talbot Theunissen, Jessie Baxter, Melissa Kopacz, Kristen Santerre, Amber Davis, and Michael Story)?
Also, although this was not brought up at the telephone conference between the parties last week, the Defense has found after further review that we still have not received any field notes from the NCIS SA Burge to date (see PDF, paragraph 2e). I don't have anything hand written from the NCIS agent in my file, but we would like this information before the 32. Thank you.
Christian P. Hur
Captain, USMC
Senior Defense Counsel
Telephone: (619) 524-8713
Fax: (619) 524-6784
Address: Defense Section, Bldg 7W, 2nd Floor, Parade Deck, MCRD, San Diego, CA 92140
This email may contain Attorney Work Product. Please delete if you received this message in error.
-----Original Message-----
From: sean.sullivan@cox.net [mailto:sean.sullivan@cox.net]
Sent: Monday, March 22, 2010 19:13
To: Sayegh LtCol Michael E; Haytham Faraj; Hur Capt Christian P; Day Capt Evan S
Subject: Re: Article 32 hearing ICO US v Wacker
Sir
I have confirmed with Mr Faraj that continuance to 12 April is a mutually agreed upon request with mutually agreed upon excludeable delay for good cause per RCM 707
I will submit formal document through Captain Day tomorrow
Vrs-Ltcol Sullivan
Sent from my BlackBerryR smartphone with SprintSpeed
-----Original Message-----
From: "Sayegh LtCol Michael E" <michael.sayegh@usmc.mil>
Date: Mon, 22 Mar 2010 17:18:46
To: <sean.sullivan@cox.net>; <Haytham@puckettfaraj.com>; Hur Capt Christian P<christian.hur@usmc.mil>; Day Capt Evan S<evan.s.day@usmc.mil>
Subject: Re: Article 32 hearing ICO US v Wacker
Please send me the delay requst and I will approve.
LtCol Sayegh --------------------------
Sent from my BlackBerry Wireless Handheld
----- Original Message -----
From: sean.sullivan@cox.net <sean.sullivan@cox.net>
To: Haytham Faraj <Haytham@puckettfaraj.com>; Sayegh LtCol Michael E; Hur Capt Christian P; Day Capt Evan S
Sent: Mon Mar 22 16:49:32 2010
Subject: Re: Article 32 hearing ICO US v Wacker
I am also available 12 and 13 April 10
Sf
Sent from my BlackBerryR smartphone with SprintSpeed
-----Original Message-----
From: "Sullivan LtCol Sean" <sean.sullivan@usmc.mil>
Date: Mon, 22 Mar 2010 15:34:43
To: <sean.sullivan@cox.net>
Subject: FW: Article 32 hearing ICO US v Wacker
-------------------------------------------
From: Haytham Faraj[SMTP:HAYTHAM@PUCKETTFARAJ.COM]
Sent: Monday, March 22, 2010 3:33:45 PM
To: Sayegh LtCol Michael E; Hatch MAJ Douglas C; Hur Capt Christian P; Day Capt Evan S; Sullivan LtCol Sean
Subject: RE: Article 32 hearing ICO US v Wacker Auto forwarded by a Rule
I am also available 12-13 April.
-----Original Message-----
From: Sayegh LtCol Michael E [mailto:michael.sayegh@usmc.mil]
Sent: Monday, March 22, 2010 6:14 PM
To: Hatch MAJ Douglas C; Hur Capt Christian P; Day Capt Evan S; Sullivan LtCol Sean; haytham@puckettfaraj.com
Subject: RE: Article 32 hearing ICO US v Wacker
12 to 13 April works for me as well.
-----Original Message-----
From: Hatch MAJ Douglas C
Sent: Monday, March 22, 2010 15:12
To: Hur Capt Christian P; Day Capt Evan S; Sayegh LtCol Michael E; Sullivan LtCol Sean; 'haytham@puckettfaraj.com'
Subject: RE: Article 32 hearing ICO US v Wacker
I am unavailable 1 April, all other dates Capt Hur listed below are acceptable.
S/f
Maj Hatch
-----Original Message-----
From: Hur Capt Christian P
Sent: Monday, March 22, 2010 15:04
To: Day Capt Evan S; Sayegh LtCol Michael E; Sullivan LtCol Sean; 'haytham@puckettfaraj.com'; Hatch MAJ Douglas C
Subject: RE: Article 32 hearing ICO US v Wacker
I am available for these dates (with advance notice I can be available on Saturday and Sunday too):
1 April
12 to 13 April
5 to 14 May
24 to 28 May
14 to 30 June
Christian P. Hur
Captain, USMC
Senior Defense Counsel
Telephone: (619) 524-8713
Fax: (619) 524-6784
Address: Defense Section, Bldg 7W, 2nd Floor, Parade Deck, 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, March 22, 2010 15:00
To: Sayegh LtCol Michael E; Sullivan LtCol Sean; Hur Capt Christian P; 'haytham@puckettfaraj.com'; Hatch MAJ Douglas C
Subject: Article 32 hearing ICO US v Wacker
Gentlemen,
I have been informed by LtCol Sullivan that both he and Mr. Faraj expect the motions hearing in U.S. v. Wuterich to last this entire week. Mr. Faraj indicated that 21 April would be an acceptable start date for the Article 32; however, Capt Hur indicated by phone that we was unavailable that date.
I respectfully request that ALCON send their dates of availability and unavailability for the next six weeks, in order to determine an appropriate alternate date for the Art 32 hearing.
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.