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Fwd: Fosler Ruling



Haytham and Ranae,
Fosler issue and ruling in AF case attached.  TC was Capt Harris (at Dyess supervising U.S. v.  Burke).  He called today to ask if we could either not object to adding the terminal element in our 134 offense or schedule another Art 32 between now and 11 Oct.  Told him that Haytham and I were booked so, no, we probably couldn't attend a 32.  Not sure how they'll handle that, or whether we should just accede to his request to add the terminal element language as a pen change to the Art 134 offense on the Burke case charge sheet.  He implied that if we can't work this out (32 or no objection) pretrial, they might choose to re-prefer and take him to a new 32 and court-martial post-trial.  Not sure they'd go to that trouble, but they might be tempted when we win.  Though Col Sullivan opines that they have to bring all known (and properly pled) charges to the same trial and that Fosler has been out since May.  So they've had plenty of time to fix the defect and we might could win on that issue second time around.  Frankly I'm not inclined to let them just do it if we can leverage this to our client's advantage in any way.  The other fix would be ordering you, Ranae, to attend a 32 even in our absence.  Then there would be error but current case law calls for that error to be tested for prejudice, and there may not be very much.  So the decisions we make now about this might either make the charge sheet have one less charge but subject our client to a second process, on which we may prevail procedurally.  Or we can all (or one of us) go (at additional expense to the client) and do another 32.  Or we can not object, give them what they want on the assumption that an additional throwaway charge of leaving the scene of an accident doesn't really tip the scales either way.  Seeking your learned input here.  Have attached the earlier case, motion and ruling.
Neal 
Neal A. Puckett, Esq
LtCol, USMC (Ret)
Puckett & Faraj, PC
1800 Diagonal Rd, Suite 210
Alexandria, VA 22314
703.706.9566

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Begin forwarded message:

From: "Sullivan, Dwight H CIV USAF AFLOA/JAJA" <Dwight.Sullivan@pentagon.af.mil>
Date: September 22, 2011 4:04:41 PM EDT
To: Puckett Neal <neal@puckettfaraj.com>
Subject: FW: Fosler Ruling



Dwight H. Sullivan
Acting Chief
Air Force Appellate Defense Division
(AFLOA/JAJA)
1500 West Perimeter Road, Suite 1100
Joint Base Andrews, MD 20762
240-612-4773
DSN:  612-4773
Fax:  240-612-5818  


-----Original Message-----
From: White, Nathan A Capt MIL USAF AFLOA/JAJA
Sent: Thursday, September 22, 2011 4:04 PM
To: Sullivan, Dwight H CIV USAF AFLOA/JAJA
Subject: Fosler Ruling

Sir,



Attached.



V/R,



Nathan A. White, Captain, USAF

Appellate Defense Counsel (AFLOA/JAJA)

Joint Base Andrews, MD 20762

Phone:  (240) 612-4782  Fax: -5818

Toll free:  1-800-414-8847 (clients)



Attachment: Ruling on Def motion to Reconsider wrt Amendment of Charge - Brissette.pdf
Description: Adobe PDF document

Attachment: Gov Response Def Motion Recon.pdf
Description: Adobe PDF document

Attachment: Brissette Motion for Reconsideration.pdf
Description: Adobe PDF document