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Re: U.S. v. Wuterich UCI Motion and exhibits

Your honor,
The defense objects to the government's refusal to produce the requested witnesses. Maj Gannon identified a key matter in his email. The initial burdan is on the defense. He did not concede that we have met the burden. Accordingly, the requested witnesses are relevant and necessary for us to meet our burden and prove the alleged UCI. We would be willing to depose Generals Hagee and Conway as well as Secretary Winters so long as the governments waives all objections to the admissibility of the depositions. Gen Mattis is another matter, however. He is a critical witness in this matter as evidenced by our motion, the case I included, and Judge Folsom's findings in the Chessani case. His previous testimony is not an adequate substitute because SSgt Wuterich's counsel did not have an opportunity to pose questions to him. Moreover, although he testified on general matters that may be useful to our motion, most of his testimony was related to LtCol Chessani. That said, we may be willing to enter into a stipulation of fact (not expected testimony) regarding his testimony as a substitute. In the meantime, however, I request you order the Government to be prepared to produce the requested witnesses. They have known for months that these witnesses -or most- would be necessary for this motion. 

Vr,

Haytham Faraj
760-521-7934
Sent from my iPhone
On Mar 3, 2010, at 5:42 PM, "Gannon Maj Nicholas L" <nicholas.gannon@usmc.mil > wrote: 


Your Honor,
Good morning Sir. With respect to the due date for the motions, the government and the defense have been working off of the following mutually agreed upon briefing schedule: 

Motions Due:  22 February 2010
Responses Due:  15 March 2010
39a Session:    22-? March 2010
If the court directs, we can submit our response motion on 9 March 2010, however, our preference is to keep the responses due on 15 March 2010 Your Honor. Of course, we will comply with anything the Court directs Sir.
On another note, with respect to evidence, the Government will call LtGen Helland (Ret), as well as LtCol Riggs. As the Court is aware, the defense has listed eight witnesses in the "Evidence" section of their 22 Feb 2010 UCI motion. It is the government's position that several of the witnesses listed in the defense motion are not relevant or necessary, and consequently, the government does not intend to produce theses witnesses. Each witness is discussed below Sir.
General Mattis: The government will be relying on General Mattis' former testimony in the Chessani case for our response to the defense's UCI motion. We have determined that General Mattis can be made available by way of VTC, but on the initial round of litigation we do not intend to present the General's testimony. If the burden shifts to the Government as a result of the 22 Feb 2010 defense motion, we may call General Mattis, depending on the Court's findings. If the defense wishes to present General Mattis' testimony during the week of 22 March 2010, we respectfully request that Court direct the Defense team to justify General Mattis' production. In other words, itâs the government's position that Gen eral Mattis' former testimony is on point and it unclear what additi onal probative evidence is not already covered in General Mattis' fo rmer testimony.
Col Ewers: Col Ewers will be available to testify should the defense wish to call him; the government's intent is to rely on Col Ewers' former testimony for our motion response. 

LtCol Ware:  this witness will be available.
Finally, the government does not intend to call Secretary Winters, General Hagee, or General Conway. It is our position that they are not relevant or necessary witnesses.
One final note Sir: the government would like to present General Helland's testimony on 23 March 2010 as opposed to 22 March 2010. We can proceed with the Court's plan of having an 802 on 22 March 2010 at 0830, and thereafter allow the defense to present their case in a effort to shift the burden to the government, and then the government will present its evidence, but due to scheduling issues, we wish to present Gen Helland on 23 March 2010. 

Please advise if the above is agreeable to the Court Sir.

Very respectfully submitted,
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

-----Original Message-----
From: Jones LtCol David M
Sent: Tuesday, March 02, 2010 22:55
To: 'Haytham Faraj'
Cc: 'Neal Puckett'; Tafoya LtCol Patricio A; cvokey@fhsulaw.com; bethanytrujillo@yahoo.com ; Sullivan LtCol Sean; Plowman Maj Donald J; Gannon Maj Nicholas L 
Subject: RE: U.S. v. Wuterich UCI Motion and exhibits

All,
In receipt of the above motion with exhibits. I am awaiting the government response. I believe that when we had an 802, it was decided that the counsel would come up with the trial schedule in this case and get that to me. I have never received the proposed trial dates. I understand that everyone wishes to litigate ONLY this UCI motion at our session the week of 22 March 2010. But, I still want a trial schedule set up.
As you probably are aware, I will be attending the IMJS in Reno the week before we do these motions. I understand that there are possible many high-ranking people who are being called by both sides as witnesses. This is why I agreed to only hear one motion and gave you three months to get it organized.
Here is how I see the order of march. We will have an 802 conference at 0830 on the 22nd. Then we will proceed with the motion. I will be available all week, Monday through Friday to litigate this motion, if necessary. I am not planning on leaving until Saturday, 27 March. I am happy to litigate or resolve any other issues during my stay. We will start court each morning at 0830.
So, what I would like within one week's time is the government's response and the proposed trial schedule. 

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: Tuesday, February 23, 2010 11:24
To: Jones LtCol David M
Cc: 'Neal Puckett'; Tafoya LtCol Patricio A; cvokey@fhsulaw.com; bethanytrujillo@yahoo.com ; Sullivan LtCol Sean; Plowman Maj Donald J; Gannon Maj Nicholas L 
Subject: U.S. v. Wuterich UCI Motion and exhibits

Your Honor,

The defenseâ motion and exhibits are attached.



Vr,



Haytham Faraj, Esq.

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