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RE: US v. Rowe witness request
Scott,
Can you draft a basic witness production motion for the witnesses denied by
the Government? The Government's reliance on 608(b) is misplaced. We are
not seeking to impeach Klay's character for truthfullness through extrinsic
evidence but to an issue in the case. See notes of F.R.E. 608. Evidence
falling under 404(b) may be proved through extrinsic evidence. The language
of the Rule is pretty clear. We can use it to prove Klay's motive's in
making the allegations; her modus opporendi; or her intent to divert
attention from her own misconduct. THIS IS NOT CHARACTER EVIDENCE. Some
courts have held that the defense faces a lower burden of admissibility
because there is no danger of prejudice to the accused. See United States
v. Stevens, 935 F.2d 1380, 1403 (3rd cir. 1991). See also United States v.
Aboumousallem, "We believe the standard of admissibility when a criminal
defendant offers similar acts evidence as a shield need not be as
restrictive as when a prosecutor uses such evidence as a sword. 726 F.2d
906, 911-12 (2nd Cir. 1984). In an extensive analysis of the law in the
various circuits, the Ninth Circuit opinion clearly finds that 404(b)
applies a lower standard to the Defendant. United States v. McCourt, 925
F.2d 1229 (9th Cir. 1991).
This doesn't need to be a lengthy motion; just enough to get it before the
court and give sufficient notice to the other side.
-----Original Message-----
From: Shinn Capt Scott R [mailto:scott.shinn@usmc.mil]
Sent: Monday, November 14, 2011 1:16 PM
To: Combe Capt Peter C
Cc: haytham@puckettfaraj.com
Subject: RE: US v. Rowe witness request
Thank you for the clarification!
V/r,
S. Russell Shinn
Captain, US Marine Corps
Officer-in-Charge
Defense Counsel Assistance Program
Marine Corps Defense Services Organization
703.614.0885 (w)
703.470.0671 (c)
"Marines Defending Marines"
-----Original Message-----
From: Combe Capt Peter C
Sent: Monday, November 14, 2011 13:12
To: Shinn Capt Scott R
Cc: 'haytham@puckettfaraj.com'
Subject: RE: US v. Rowe witness request
Apologies,
The government will produce LtCol Hudspeth. My email refered to Capt Wilson
and Maj Warren.
Capt Peter C. Combe II
Trial Counsel
Office of the SJA, MCB Quantico
3250 Catlin Ave.
Quantico, VA 22134
Comm: (703) 784-0037 DSN: 278
Fax: (703) 784-0035 DSN: 278
-----Original Message-----
From: Shinn Capt Scott R
Sent: Monday, November 14, 2011 13:11
To: Combe Capt Peter C
Cc: 'haytham@puckettfaraj.com'
Subject: RE: US v. Rowe witness request
Capt Combe,
On the phone this morning, I believe you indicated that the government
would produce LtCol Hudspeth, given the clarification Mr. Faraj provided
regarding her testimony. Does the email below reference Capt Wilson and Maj
Warren or all three that the government initially refused to produce?
V/r,
S. Russell Shinn
Captain, US Marine Corps
Officer-in-Charge
Defense Counsel Assistance Program
Marine Corps Defense Services Organization
703.614.0885 (w)
703.470.0671 (c)
"Marines Defending Marines"
-----Original Message-----
From: Combe Capt Peter C
Sent: Monday, November 14, 2011 13:05
To: haytham@puckettfaraj.com; Shinn Capt Scott R
Subject: US v. Rowe witness request
Good afternoon gentlemen,
After reviewing the applicable M.R.E.s, the various statements of the
witnesses, and your request the government maintains that the requested
witnesses will not be produced.
Unfortunately it appears that we will have to address this with the court.
Very Respectfully,
Peter C. Combe II
Capt, U.S. Marine Corps
Trial Counsel
Office of the Staff Judge Advocate
Military Justice Office
Marine Corps Base Quantico
3250 Catlin Avenue
Quantico, VA 22134
Comm: (703) 784-0037 DSN: 278
Fax: (703) 784-0035 DSN: 278
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