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Re: Eickenhorst 32
Major Redmon,
I am not questioning your competence or objectivity. If i had a doubt I would raise it. I objected to a decision. I am no where near having any doubts about you personally.
Before we start this off on the wrong foot -perhaps we already have- let me make clear that I am objecting to SSgt Wilson not testifying in person not to your objectivity to be an IO in this matter. His testimony -in my opinion- will be so crucial to your decision that if you don't hear from him to see what he alleges happened and hear what he says, you will be making a decision based on a statement. I cannot cross examine a statement and you can't ask it questions. The SSgt will be out of the Marine Corps when we have this regardless of when it takes place. The government can invite him to come. If he declines, we will be stuck with that but that was not attempted. Your decision can result in this case going forward. But if hearing from the SSgt could possibly cause you to find that there is not sufficient evidence to recommend referral, then the CA and Maj Eichenhurst are entitled to that.
Rs,
Haytham Faraj
Sent from my iPad
On Aug 31, 2011, at 12:21 PM, "Redman Maj Hugh J" <hugh.redman@usmc.mil> wrote:
> Mr. Faraj:
>
> Please be careful when attempting to accuse me of "having a paper 32" over your objections, prior to the hearing even being held, and insinuating that in any way I accused you of misrepresenting your schedule, or doubted your word. Neither of those accusations are true, but I now will consider them formal accusations of record against my objectivity and competence as an Article 32 officer, since that is your clear insinuation.
>
> I have been tasked by a General Officer with conducting an Article 32 investigation. I take that obligation seriously. That requires, in my opinion, detailed records-including detailed reasons for extensive delay. I simply requested that you describe the nature of your conflicts so that I had a complete record prior to granting or not granting a continuance request. In no way did I challenge that you had genuine reasons for delay. You can see the problem, I'm sure, if I'm asked by a General Officer why an Article 32 is taking so long, and my response to him is, "Well Sir, the Defense Counsel needed more time," without any facts to back that up. Detailed explanations for extensive delay is an extremely basic Article 32 IO duty I have always followed. Your initial response to me simply that the proposed date was "untenable" and that you needed another 30 days would hardly create a sufficient record for me as the IO. It does NOT, however, carry with it any allegation that I think you are misrepresenting your availability.
>
> Regarding your assertion that I am conducting a "Paper 32," that is, without doubt, an insinuation that I am biased for the Government and/or incompetent in ensuring that a thorough and impartial 32 take place (another responsibility I take seriously). Your quote that now you are forced to consult with your client "to see whether it is worth the expense to even have a 32" is an obvious allegation that I am poised to conduct a meaningless 32 in violation of R.C.M. 405.
>
> The objection you initially raised was to the Government's assertion that SSgt Wilson was unavailable to testify. After applying the balancing test contained in R.C.M. 405, I determined that SSgt Wilson was unavailable. Your objection will obviously be noted and preserved for the record. That hardly creates a "paper 32 however," with two witnesses still scheduled to testify. I also asked for input as to whether telephonic testimony from SSgt Wilson (his EAS is today) would be amenable, to which I have yet to receive any reply.
>
> As stated previously, due to the serious nature of your accusations against myself personally, I will consider them a formal objection by yourself as to my competence and partiality to continue as the Article 32 IO.
>
>
>
> Major Redman
>
> -----Original Message-----
> From: Haytham Faraj [mailto:haytham@puckettfaraj.com]
> Sent: Wednesday, August 31, 2011 7:04
> To: Redman Maj Hugh J
> Cc: Marshall Maj Meridith L; Smith Maj Keith D
> Subject: Re: Eickenhorst 32
>
> Maj Redmon,
> I am frankly surprised that I have to justify my request. Even Federal court judges take the word of officers of the court. Both you and Maj Smith know me and know that I would not misrepresent my schedule or anything else for that matter. In any event, here's my schedule. Next week I have a series of depositions in a civil case that had been postponed a number of times. I had to juggle several matters to enable me and the opposing side to take the respective depositions of five police officers and two plaintiffs during that week. On the weekend beginning the 9th, I have an official function that I am committed to attend on the 9th. My partner and I have a business meeting scheduled for that weekend. He will be traveling to Michigan to conduct it. On the 12th I have a hearing in state court. I will not change it because I have had a terrible time getting the defendants into court because they keep asking for and being granted time. On the 13th I have a mandatory day long seminar for CJA attorneys in the Eastern District of Michigan. On the 14th I will be traveling to Wyoming to teach a trial skills course that begins on the 15th and ends on the evening on the 24th. On the 27th I again have to be in Michigan for day two of the mandatory CJA seminar. On the 28th I would travel to San Diego for the 32 on the 29th.
>
> In light of your decision to essentially have a paper 32 over my objections, I need to contact Maj Eichenhurst to see whether it is worth the expense to even have a 32.
>
> I have not received the investigation yet. I, therefore, request that you not read any of it until I have had an opportunity to review it and lodge the appropriate objections for your consideration, if any are applicable.
>
> R/S
>
> Haytham Faraj
> Sent from my iPad
>
> On Aug 29, 2011, at 6:24 PM, "Redman Maj Hugh J" <hugh.redman@usmc.mil> wrote:
>
>> Mr. Faraj:
>>
>> I understand that 8 September does not work for you. Can you give me a better idea of the nature of your conflict for 30 days? In other words, is this due to specific litigation already scheduled or in progress over the next four weeks? If so, are you available weekends during that time?
>>
>> Thanks,
>>
>> Major Redman
>>
>> -----Original Message-----
>> From: Smith Maj Keith D
>> Sent: Monday, August 29, 2011 12:48
>> To: Redman Maj Hugh J
>> Cc: Marshall Maj Meridith L; Pere GySgt Christopher B; 'Haytham Faraj'; Holmes Capt Annamarie B
>> Subject: RE: Eickenhorst 32
>>
>> Maj Redman, the Government objects to any further continuances or delays in this case. This Article 32 Investigation was originally scheduled for 5 Aug 11, but was continued at the request of defense to allow Maj Eickenhorst time to contract and consult with Mr. Faraj (see attachment). The implication was that defense requested the time necessary for the scheduling of this Investigation. Further, It is the government's position that, in the in interest of justice, the aggrieved parties (i.e., the command and the victim) need to move forward with the prosecution of this case sooner rather than later.
>>
>> V/R,
>>
>> Keith D. Smith, Major, USMC
>> Military Justice Officer, MCAS Miramar
>> DSN: 312-267-6859
>> Commercial: 858-577-6859
>> Email: keith.d.smith1@usmc.mil
>>
>> Email Work Product / Attorney-Client Privilege Notice:
>>
>> NOTICE: ATTORNEY-CLIENT PRIVILEGE or WORK PRODUCT PRIVILEGE may apply to this email, including any attached files. Any review, use, distribution or disclosure by others is prohibited. The contents of this message may be exempt from disclosure under the FOIA. If you are not the addressee indicated in this message (or authorized to receive information for the recipient), please contact the sender by reply e-mail and delete all copies of this message (including any attachments).
>>
>>
>>
>>
>> -----Original Message-----
>> From: Redman Maj Hugh J
>> Sent: Monday, August 29, 2011 12:27
>> To: 'Haytham Faraj'; Smith Maj Keith D
>> Cc: Marshall Maj Meridith L; Pere GySgt Christopher B
>> Subject: RE: Eickenhorst 32
>>
>> Alcon:
>>
>> Let's tackle the availability issue first. What is the Government's position as to a continuance to 29 September?
>>
>> S/F,
>>
>> Major Redman
>>
>> -----Original Message-----
>> From: Haytham Faraj [mailto:haytham@puckettfaraj.com]
>> Sent: Monday, August 29, 2011 12:20
>> To: Smith Maj Keith D
>> Cc: Redman Maj Hugh J; Marshall Maj Meridith L; Pere GySgt Christopher B
>> Subject: Re: Eickenhorst 32
>>
>> Maj Redman,
>> I apologize my tardiness in responding. September 8 is untenable for me. My first availability is Sep 29. I request that the Article 32 be rescheduled to that date.
>> I object to the failure to produce military witnesses. SSgt Williams, as I understand, is the main complainant. It's unacceptable that he is not produced. The fact that he is on terminal leave is of no relevance. He can be ordered to return and testify. Terminal leave is still leave.
>>
>> Vr,
>>
>> Haytham Faraj
>> Sent from my iPhone
>>
>> On Aug 29, 2011, at 9:01 AM, "Smith Maj Keith D" <keith.d.smith1@usmc.mil> wrote:
>>
>>> Maj Redman, the government will be requesting that Sgt Rich (attending Sgt's Course at Twenty-Nine Palms) and SSgt Williams (on terminal leave in Florida) be found to be "not reasonably available" and their sworn CID statements be admitted at the Article 32 in their stead. This means that the only two witnesses that the government intends to call are Capt Dimoh and Sgt Guerrerro.
>>>
>>> Absent any objections by defense, my Military Justice Chief is sending the entire investigation to you simply to create context for the other statements/testimony. We understand that you will only consider those items that are submitted at the actual Article 32 Investigation when you make your recommendation to the Convening Authority.
>>>
>>> Also, no objections to proceeding with the Article 32 on the below mentioned date and time.
>>>
>>> V/R,
>>>
>>> Keith D. Smith, Major, USMC
>>> Military Justice Officer, MCAS Miramar
>>> DSN: 312-267-6859
>>> Commercial: 858-577-6859
>>> Email: keith.d.smith1@usmc.mil
>>>
>>> Email Work Product / Attorney-Client Privilege Notice:
>>>
>>> NOTICE: ATTORNEY-CLIENT PRIVILEGE or WORK PRODUCT PRIVILEGE may apply to this email, including any attached files. Any review, use, distribution or disclosure by others is prohibited. The contents of this message may be exempt from disclosure under the FOIA. If you are not the addressee indicated in this message (or authorized to receive information for the recipient), please contact the sender by reply e-mail and delete all copies of this message (including any attachments).
>>>
>>>
>>>
>>> -----Original Message-----
>>> From: Redman Maj Hugh J
>>> Sent: Monday, August 29, 2011 8:40
>>> To: Marshall Maj Meridith L; Smith Maj Keith D
>>> Cc: 'haytham@puckettfaraj.com'
>>> Subject: RE: Eickenhorst 32
>>>
>>> ALCON:
>>>
>>> Let's proceed with the Article 32 on 8 September, at 0800 at the JLC, Miramar. Please let me know if either side has any additional witnesses they wish to call, in addition to the Government's listed below in the email chain. I have been delegated the authority to issue continuances, so please let me know if 8 September is an issue.
>>>
>>> Thanks,
>>>
>>> Major Redman
>>>
>>> -----Original Message-----
>>> From: Marshall Maj Meridith L
>>> Sent: Friday, August 26, 2011 11:38
>>> To: Redman Maj Hugh J; Smith Maj Keith D
>>> Cc: haytham@puckettfaraj.com
>>> Subject: RE: Eickenhorst 32
>>>
>>> Maj Redman,
>>>
>>> Maj Eickenhorst has retained Mr. Haytham Faraj, cc'd above.
>>>
>>> I have not gotten a date of his availability yet as he has been in court. I did alert the government to this already.
>>>
>>> R/
>>>
>>> Major Meridith L. Marshall
>>> Senior Defense Counsel
>>> MCAS, Miramar
>>> 858-577-1720 (desk line)
>>> dsn 267-1720
>>> 858-997-8332 (government cell)
>>> meridith.marshall@usmc.mil
>>>
>>>
>>> -----Original Message-----
>>> From: Redman Maj Hugh J
>>> Sent: Friday, August 26, 2011 11:27 AM
>>> To: Marshall Maj Meridith L; Smith Maj Keith D
>>> Subject: Eickenhorst 32
>>>
>>> Major Smith/Major Marshall:
>>>
>>> Just confirming 8 September for the 32 date. Does 0800 work for you both? Also, I'd like to get a copy of the investigation IOT determine which witnesses I may want to have there that aren't on either of your lists. So far (from Gunny Pere's attached email) from the Government I have:
>>>
>>> Capt Patrick Dimoh
>>> SSgt Christopher Wilson
>>> Sgt Manual Guerrero
>>> Sgt Jacob Rich
>>>
>>> Let me know if either of you foresee any availability issues or other concerns you'd like to address prior to the hearing.
>>>
>>>
>>> Thanks,
>>>
>>> Major Redman
>>>
>>> Major Hugh Redman, USMC
>>> SJA, MCAS Yuma
>>> 928-269-3484 (DSN 269)
>>> hugh.redman@usmc.mil
>>>
>>>
>>>